Opinion
11-P-625
03-20-2015
COMMONWEALTH v. JASON BRIDDON.
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
In 2010, a Superior Court jury convicted the defendant of aggravated rape and assault and battery. The convictions were based on proof that on the night of October 8, 2008, the defendant and the victim, a sex worker, engaged in sexual activity for which the victim was paid. Thereafter, the defendant held the victim against her will and repeatedly raped and beat her. The episode occurred in the basement of a house to which the defendant had access. The victim eventually escaped and sought help from a neighbor who called the police. The theory of the defense at trial was that the sexual activity was consensual and the victim's injuries had been self-inflicted.
The jury also convicted the defendant of armed kidnapping with serious bodily injury, but the judge dismissed that charge as duplicative of the aggravated rape conviction.
Following the jury's verdict, the defendant filed a timely notice of appeal and then filed a motion for a new trial in which he alleged that his right to a public trial under the Sixth Amendment to the United States Constitution was violated when members of his family were excluded from the court room during jury empanelment. The defendant also claimed that certain statements made by the victim's mother posttrial concerning the victim's propensity to prevaricate constituted newly discovered evidence warranting a new trial. Finally, he asserted that he was deprived of the effective assistance of counsel because his lawyer failed to obtain the victim's medical records, which allegedly demonstrated that the victim suffered from "serious mental illnesses." The motion was denied by the trial judge after an evidentiary hearing. The defendant filed a timely appeal from the denial of his new trial motion.
Although the defendant appealed from both the judgments and from the order denying his motion for new trial, his arguments relate only to the denial of his new trial motion.
The disposition of a motion for new trial lies within the sound discretion of the judge, who may grant the motion only if it appears that "justice may not have been done." Commonwealth v. Desrosier, 56 Mass. App. Ct. 348, 353-4 (2002), quoting from Mass.R.Crim.P. 30(b), 378 Mass. 900 (1979). We discern no abuse of discretion in the judge's denial of the defendant's motion for a new trial, and we therefore affirm the order denying the motion.
1. The defendant's right to a public trial. The evidentiary hearing focused primarily on the defendant's allegation that the court room had been closed during jury empanelment. The judge heard testimony from the defendant, trial counsel, and two court officers who were present during empanelment and found that the defendant failed to meet his burden of demonstrating that a closure in the constitutional sense had occurred. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107 (2010). She also concluded that even if there had been a partial closure of the court room, such closure was "de minimis" and did not amount to a violation of the defendant's right to a public trial. See id. at 109. On appeal, the defendant argues that (1) the evidence does not support the judge's finding that the court room was not closed, and (2) the judge erred in concluding that even if a partial closure had occurred, it did not amount to a constitutional violation.
As the judge correctly observed, it is well settled that the right to a public trial under the Sixth Amendment to the United States Constitution extends to the jury selection process. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010).
In this case, defense counsel did not object to any alleged court room closure. Therefore, the defendant's right to a public trial during jury empanelment has been waived. See Commonwealth v. Wall, 469 Mass. 652, 672 (2014) (even structural error is subject to doctrine of waiver). Nevertheless, "[o]ur case law provides that unpreserved claims of error be reviewed to determine if a substantial risk of a miscarriage of justice occurred." Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). Here, even if we were to assume that the court room was closed in the manner alleged by the defendant, the closure would not have caused a substantial risk of a miscarriage of justice because there is no "serious doubt whether the result of the trial might have been different" had the court room not been closed to the defendant's family. Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687 (2002). Accordingly, the judge did not abuse her discretion by denying the new trial motion on this ground, even though our affirmance is for reasons different from those given by the judge. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997).
Given our conclusion that any partial closure did not create a substantial risk of a miscarriage of justice, we need not decide whether the judge's findings are supported by the evidence or whether she erred by concluding that a partial closure was "de minimis." See Commonwealth v. Va Meng Joe, 425 Mass. at 102 ("reviewing court is free to rely on an alternative legal theory").
2. Newly discovered evidence. "A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction . . . . The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence." Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986). "A defendant also bears the burden of demonstrating that any newly discovered evidence is admissible." Commonwealth v. Weichell, 446 Mass. 785, 799 (2006). The alleged newly discovered evidence in this case consists of statements made by the victim's mother during a deposition conducted by successor counsel in connection with the victim's civil suit against the defendant. In that deposition, the mother stated that the victim was "a good storyteller" and "could lie so good you'd believe her." The mother also stated that the victim suffered from "depression and other psychological problems" stemming from her drug addiction and criminal record and giving up custody of her two children.
The victim died while the civil case was pending and the victim's mother, as administratrix of the estate, was substituted as the plaintiff.
The defendant's assertion that the mother testified the victim was a "habitual liar" and suffered from a "delusional disorder" is not supported by the record.
The judge concluded that this evidence was not newly discovered because the victim's mother had been available to be interviewed and, if necessary, to be called upon to testify at the criminal trial. The judge also explained that the evidence did not cast doubt on the justice of the conviction because "the jury [were] well aware of the [victim's] drug addiction and prostitution, and could have reasonably inferred that she had mental and emotional issues" even without the allegedly newly discovered evidence.
We agree with the judge's reasoning and conclusion. Clearly, the evidence was not newly discovered. Furthermore, as the Commonwealth argues in its brief, the defendant did not meet his burden of showing that the statements, which primarily consist of character evidence and prior bad acts, were admissible. See generally Commonwealth v. Despres, 70 Mass. App. Ct. 645, 650 (2007) (to admit evidence of victim's mental impairment, defendant must establish "immutable" relationship between trait at issue and organic condition). See also Commonwealth v. Dew, 443 Mass. 620, 629 (2005) (evidence of witness's prior bad acts including drug dealing could not be used to impeach credibility). Contrast Commonwealth v. Bonds, 445 Mass. 821, 830 (2009) (testimony by mother of nineteen year old rape victim that victim was overly trusting properly admitted, because testimony was not character evidence but rather evidence of manifestations of victim's mental disability).
3. Ineffective assistance of counsel. The judge rejected the defendant's claim that his trial counsel was ineffective for not seeking to procure a pretrial inspection of the victim's medical records and records pertaining to the victim in the custody of the Department of Social Services (now known as the Department of Children and Families). The records, which were obtained during the course of discovery in the civil suit, detail the victim's prior suicide attempts, history of self-abuse, the loss of custody of her children, and a diagnosis of mental illness. The judge concluded that the defendant had failed to establish that a motion seeking production of the records in question would have been successful. See Commonwealth v. Dwyer, 448 Mass. 122, 140 (2006) (Mass.R.Crim.P. 17[a][2], 378 Mass. 886 [1979], must be satisfied before privileged documents from third party may be summonsed in advance of trial). We agree. The defendant's broad assertions that the victim lacked credibility as a result of her mental state lack the specificity and reasonableness required for production under the Dwyer protocol. Accordingly, the judge did not abuse her discretion in determining that counsel was not ineffective. See Commonwealth v. Comita, 441 Mass. 86, 90-91 (2004).
The defendant also claims that the judge should have permitted him to introduce evidence related to this issue at the hearing on his motion. We have reviewed the transcript of the hearing and discern no basis for concluding that the defendant was prevented from pursuing this issue.
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 20, 2015.