Opinion
14-P-644
01-12-2016
COMMONWEALTH v. DOMINGO ARCHEVAL.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Domingo Archeval, appeals from the denial of his third motion for new trial and his motions for funds. On August 31, 2000, a jury found the defendant guilty of second degree murder, in violation of G. L. c. 265, § 1; armed assault with intent to kill, in violation of G. L. c. 265, § 18(b); assault and battery by means of a dangerous weapon, in violation of G. L. c. 265, § 15A; unlawful possession of a firearm, in violation of G. L. c. 269, § 10(a); and unlawful possession of ammunition, in violation of G. L. c. 269, § 10(h). The defendant contends that the lower court judge erred for five reasons. First, the defendant argues that his third motion for new trial should have been allowed because there is newly discovered evidence. Second, the defendant maintains evidence in the case suggests that justice was not done. Third, the defendant argues that the judge erred by ruling the defendant was not entitled to a hearing on his motion for postconviction relief. Fourth, the defendant contends that the judge erred in allowing the Commonwealth to file and argue oppositions to the defendant's motions for funds. Fifth, the defendant argues that trial and appellate counsel were ineffective. We disagree.
We also refer to this motion as a motion for postconviction relief as that is its caption.
Discussion. We note at the outset that we are mindful of our scope of review.
"[A]s often stated in the past, the granting of a new trial is a decision firmly committed to the sound discretion of the trial judge. See Commonwealth v. Little, 384 Mass. 262, 268-269 (1981); Commonwealth v. Cook, 380 Mass. 314, 320 (1980); Commonwealth v. Gagne, 367 Mass. 519, 526 (1975). The trial judge has the advantage of first-hand evaluation of the witnesses and the evidence at trial. Commonwealth v. Cinelli, 389 Mass. 197, 205 (1983). He may be aware of nuances of conduct, tone, and evidence that easily escape the cold record available to an appellate court on review. See Commonwealth v. Ellison, 376 Mass. 1, 16-17 (1978). Furthermore, it is irrelevant what the justices of this court would have done had they been in the position of the trial judge. Our task is only to ensure that there exists in the record before us evidence to support the judge's decision to order a new trial. Commonwealth v. Cook, [380 Mass.] at 320."Commonwealth v. Preston, 393 Mass. 318, 324 (1984).
I. Newly discovered evidence. The defendant argues that the affidavit of his brother, Carlos Archeval (Carlos), containing the confession that he was the murderer, constitutes newly discovered evidence that warrants a new trial. "In a motion for a new trial based on new evidence, the defendant must show that the evidence is either 'newly discovered' or 'newly available' [footnote omitted] and that it 'casts real doubt' on the justice of the defendant's conviction." Commonwealth v. Sullivan, 469 Mass. 340, 350 (2014), citing Commonwealth v. Cintron, 435 Mass. 509, 516 (2001). See Commonwealth v. Grace, 397 Mass. 303, 305 (1986) (Grace). The same standard is applied for a motion for new trial based on newly available evidence as well as newly discovered evidence. Commonwealth v. Cintron, 435 Mass. at 516. The governing principles for a motion for new trial based on newly discovered evidence were articulated in Commonwealth v. Wright, 469 Mass. 447, 461 (2014):
To avoid confusion, we refer to Carlos Archeval by his first name.
The Commonwealth proceeded against Carlos as a joint defendant. However, after the shooting he fled and was not apprehended until two years later. His motions for a required finding on both the firearm charge and ammunition charge was allowed. The jury then acquitted him on the charges of murder and armed assault with intent to murder. He was, however, convicted of assault and battery by means of a dangerous weapon and was sentenced to a term of six to nine years.
"The evidence said to be new not only must be material and credible . . . but also must carry a measure of strength in support of the defendant's position. . . . Thus newly discovered evidence that is cumulative of evidence admitted at the trial tends to carry less weight than new evidence that is different in kind. . . . Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. . . . The motion judge decides not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury's deliberations. . . . This process of
judicial analysis requires a thorough knowledge of the trial proceedings . . . and can, of course, be aided by a trial judge's observation of events at trial. . . .
"'Not only must the allegedly new evidence demonstrate the materiality, weight, and significance that we have described, but it must also have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial (or at the time of the presentation of an earlier motion for a new trial). . . . The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence.' (Citations omitted.) Grace, [397 Mass.] at 305-306."
Carlos's affidavit is neither newly available nor newly discovered evidence. "Newly discovered evidence is evidence that was unknown to the defendant or counsel and not reasonably discoverable by them at the time of trial." Commonwealth v. Sullivan, 469 Mass. at 350 n.6, citing Grace, 397 Mass. at 306. The defendant fails to articulate how third-party culprit evidence, that he is not the shooter, which was argued at his trial, is newly available or newly discovered evidence. This failure to establish how the evidence was not known to him or reasonably discoverable by him is especially significant due to the fact that the defendant was at the scene of the murder. See Commonwealth v. Cowels, 470 Mass. 607, 616 (2015), quoting from Commonwealth v. Shuman, 445 Mass. 268, 271 (2005). Moreover, as the judge determined, to the extent that this comprises newly available evidence, the defendant did not engage in reasonable diligence to uncover the evidence before the defendant's first motion for a new trial. Because this evidence was known to the defendant, or easily discoverable by him at the time he filed an earlier motion for a new trial, it is not newly available evidence. See Grace, 397 Mass. at 306.
II. Justice was done. The defendant next argues that the judge erred in determining that the defendant had failed to establish that justice was not done. A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). There is no merit to the defendant's claim that the defendant clearly demonstrated that he has been convicted and remains incarcerated for a crime that he did not commit. There was ample evidence for the motion judge, who was also the trial judge, to discredit Carlos's affidavit confessing to the murder. "The affidavit, of . . . a codefendant who did not testify 'is the weakest sort of evidence.'" Commonwealth v. Grace, 370 Mass. 746, 752 (1976), quoting from Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965). "[I]f a new trial could be predicated as of right upon a codefendant's change of heart after failure to take the stand there could always be a second chance for everyone." Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 386 (1987), quoting from Dirring v. United States, 353 F.2d at 520.
III. Hearing on motion for postconviction relief. The defendant maintains that the judge abused her discretion by failing to conduct an evidentiary hearing on the motion for postconviction relief. If there is no substantial issue raised by the motion for new trial or affidavits, a hearing is not necessary. Commonwealth v. Cavitt, 460 Mass. 617, 625 (2011), quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). A judge considers the "seriousness of the issue" and the "adequacy of the defendant's showing with respect to the issue" when determining whether to conduct a hearing. Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). See Commonwealth v. Smith, 459 Mass. 538, 556-557 (2011). "A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, but may evaluate such affidavits in light of factors pertinent to credibility, including bias, self-interest, and delay." Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). We review the judge's determination to determine if there was an abuse of discretion. Commonwealth v. Candelario, 446 Mass. at 858.
The judge did not abuse her discretion when she decided not to conduct an evidentiary hearing on the motion for postconviction relief. "If, on the papers presented, the basis of the motion is not 'credible' or 'persuasive,' an evidentiary hearing accomplishes nothing." Id. at 859, quoting from Commonwealth v. Goodreau, 442 Mass. 341, 348-349 (2004). The judge determined that Carlos's affidavit was not credible, which is entirely in her discretion even if not contested. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002). Accordingly, we discern no abuse of discretion when the judge decided not to conduct an evidentiary hearing on the motion for postconviction relief.
IV. Motions for funds. The defendant argues that the judge abused her discretion by considering the Commonwealth's opposition to the defendant's motions for funds. The defendant made two motions for funds, both of which were denied. The first motion for funds was to obtain an affidavit of an expert on misidentification. Because the defendant obtained an affidavit from an expert on misidentification, he fails to show how he was prejudiced by the judge's ruling. The second motion for funds was for an expert to testify in an evidentiary hearing. Because the judge denied the motion for a new trial, without an evidentiary hearing, this motion for funds became moot. The judge appropriately denied the defendant's motions for funds.
V. Ineffective assistance of counsel. The defendant argues that both his trial and first appellate counsel provided ineffective assistance because trial counsel did not move for a required finding of not guilty after the victim's testimony and because appellate counsel did not raise the issue on appeal. To determine if there has been ineffective assistance of counsel we must "see whether there has been serious incompetency, inefficiency, or inattention of counsel -- behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer -- and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). We believe that trial counsel's performance did not fall below what is expected from an ordinary fallible lawyer. The failure to move for a required finding of not guilty did not deprive the defendant of any substantial ground of defense because it would have been denied. See Commonwealth v. Conceicao, 388 Mass. 255, 264 (1983) ("It is not ineffective assistance of counsel when trial counsel declines to file a motion with a minimal chance of success").
Order docketed February 14, 2011, denying motion for funds affirmed.
Order docketed December 26, 2013, denying motion for postconviction relief and motion for funds affirmed.
By the Court (Cypher, Trainor & Rubin, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: January 12, 2016.