Opinion
No. 12–P–2024.
09-29-2014
COMMONWEALTH v. Roger CARR.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After trial, a judge sitting without a jury found the defendant guilty of carrying a dangerous weapon and assault by means of a dangerous weapon. Before us is a consolidated appeal from the denial, after conviction, of the defendant's motion for (1) a mistrial, (2) a new trial, and (3) postconviction discovery. We affirm.
The judge allowed the defendant's motion for a required finding of not guilty on a charge of resisting arrest and found him not guilty of disorderly conduct.
1. The motion for mistrial. We treat the defendant's motion for a mistrial, filed almost thirty days following conviction, as a motion for a new trial pursuant to Mass.R.Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Gomes, 419 Mass. 630, 633 (1995). Regardless of its denomination, the defendant's motion sought reversal of his convictions on the basis that the Commonwealth's essential percipient witnesses, Marc Trotto and Lisa Albano–Selzo, had lied at trial regarding the extent of their knowledge of the defendant's history as a registered sex offender at the time of the incident.
The defendant had aired a similar claim at sentencing after Trotto and Selzo gave victim impact statements that defense counsel asserted were inconsistent with their trial testimony. Although the judge expressed surprise at their impact statements, he stated nonetheless:
“[B]ased on the testimony ... [the defendant] was somewhat intoxicated, and I do believe that Mr. Trotto confronted him in some form; I'm not saying he attacked him (indiscernible) ... What I find is that [the defendant] may have been confronted in some way but that still does not justify him pulling out a weapon and assaulting somebody with that weapon ... I believe he was carrying that weapon which is why I found him guilty of those two crimes ... But I will say again, I am shocked at what we just heard based on the testimony that was given at trial. But it would not have made a difference to me during the trial.”
Thereafter, the defendant filed a motion for a mistrial, and the judge held a hearing, heard argument, and reviewed the trial tapes. The judge then ruled:
“[T]he Court finds that none of the witnesses made any material representations during their testimony. Although their victim impact statements seemed to be in conflict with their trial testimony, it was merely an amplification of their feelings toward the defendant. The Court does not believe there was any miscarriage of justice and therefore the motion is DENIED.”
We discern no abuse of discretion or other error of law in that determination. The trial judge, as fact finder, was in the unique position to evaluate the trial evidence, determine the credibility of witnesses, and resolve whether Trotto's and Selzo's impact statements rendered their trial testimony materially misleading or incredible, or made a difference in the outcome. He ruled that it did not. See Commonwealth v. Thomas, 399 Mass. 165, 167 (1987) (“Where the motion judge presided at the jury-waived trial, that judge is in a particularly good position to assess the trial record”). As the fact finder, the judge was the ultimate arbiter of witness credibility, and his determination in that regard is neither an abuse of discretion nor an error of law.
Nothing in the defendant's motion and the judge's review of the trial transcripts convinced the judge that justice had not been done. Indeed, the judge's ruling makes explicit that Trotto's and Selzo's victim impact statements were not inconsistent with their trial testimony at all, although they “seemed” to be at the time. Rather, their statements, made well after the events, after trial, and after the findings of guilt, expressed their concerns that a registered sex offender had committed a crime in their tight-knit neighborhood. Nor did their impact statements detract from the physical evidence found at the scene by the police (the metal strip) and the judge's initial determination that the intoxicated defendant had no lawful basis to carry a dangerous weapon or use it against Trotto. Accordingly, there is no merit to the claim that the judge erred in concluding that justice was not done. See Commonwealth v.. Masonoff, 70 Mass.App.Ct. 162, 165 (2007).
2. The motion for a new trial. There is also no merit to the defendant's contention that the judge erred in denying his motion for a new trial based on a claim of newly discovered evidence. Passing over the question whether the defendant waived the claim by failing to raise it in his prior motion, we conclude that the judge did not err in denying the motion because the judge, who was also the finder of fact at trial, concluded that the evidence cited did not cast real doubt on the justice of the defendant's conviction. See Commonwealth v. Grace, 397 Mass. 303, 305 (1986) ; Commonwealth v. Schand, 420 Mass. 783, 787 (1995).
The defendant claimed that the newly discovered evidence consisted of a note left on Selzo's windshield describing another neighbor's confrontations with the defendant, an opinion from a court officer that Trotto's testimony at trial was inconsistent with his testimony at a clerk's hearing, and a third 911 call from Selzo to the police.
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3. Postconviction discovery. For substantially the reasons set forth in the Commonwealth's brief at pages twenty-six through thirty-three, the judge did not abuse his discretion in denying the defendant's motion for postconviction discovery. See Commonwealth v. Daniels, 445 Mass. 392, 405 (2005). The defendant's generalized, speculative, and conclusory motion failed to make a prima facie showing that the discovery sought “is reasonably likely to uncover evidence that might warrant granting a new trial.” Id . at 407. Even were we to assume that the broad materials identified in the defendant's discovery request were to exist, the defendant has utterly failed to make a showing that these materials, if fully developed, would play an important role in the fact finder's determination.
Order denying motion for mistrial affirmed.
Order denying new trial motion affirmed.
Order denying motion for discovery affirmed.