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Commonwealth v. Colon

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 30, 2012
11-P-1022 (Mass. Apr. 30, 2012)

Opinion

11-P-1022

04-30-2012

COMMONWEALTH v. MARCELINO COLON.


NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals the denial of his motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). On appeal, the defendant argues that the judge abused her discretion by denying the rule 30(b) motion based on the previous denial of the defendant's motion for reduction in verdict or new trial or required finding of not guilty pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420 Mass. 1502 (1995). We affirm.

1. Background. Following a bench trial in 2001, the defendant was convicted in Superior Court of home invasion, G. L. c. 265, § 18C; violation of an abuse prevention order, G. L. c. 209A, § 7; and threatening to murder, G. L. c. 275, § 2. In 2007, the defendant filed the rule 25(b)(2) motion supported by an affidavit of the victim and Commonwealth witness, Elizabeth Baez. In the affidavit, Baez claimed to have fabricated the allegations against the defendant, who is the father of her children. Baez stated she falsely had made the allegations against the defendant at the insistence of her boyfriend who was abusing her and her children and, according to Baez, had threatened further abuse if she did not comply with his demands. A judge denied the motion in a memorandum of decision and order entered on March 17, 2008.

All of the proceedings described herein, including the trial, were presided over by the same judge.

On May 20, 2008, the defendant filed a 'request for a hearing on the motion for new trial,' which he also captioned as a 'motion for evidentiary hearing on defendant's motion for new trial.' The cover letter that accompanied this filing indicated that his motion for new trial was included, however, it was not. Nevertheless, the judge treated the pleadings received as a motion for new trial. The judge denied a new trial and issued a memorandum and order of decision dated June 19, 2008.

In 2011, the defendant filed the rule 30(b) motion that is the subject of this appeal, purportedly based on newly discovered evidence. However, this motion was premised on the same Baez affidavit that accompanied both the 2007 rule 25(b)(2) motion and the 2008 rule 30(b) motion for a new trial. The judge denied the 2011 rule 30(b) motion '[b]ecause the defendant ha[d] not presented any new evidence' beyond what had been submitted with the rule 25(b)(2) motion.

2. Discussion. The defendant argues that the judge abused her discretion by considering the denial of the rule 25(b)(2) motion in connection with the 2011 rule 30(b) motion for new trial. In this case, the Baez affidavit twice had been presented to the judge as the grounds for postconviction relief. On both occasions, the judge did not credit the affidavit. Indeed, in denying the 2007 rule 25(b)(2) motion, the judge explicitly found as follows.

'I do not credit Baez's affidavit and deny the motion without hearing. Cf. Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (judge may decide Rule 30(b) motion solely on affidavits and discredit untrustworthy affidavits). Baez's affidavit is dated October 26, 2006, over five years after her trial testimony. Baez testified at trial that the defendant came twice to her home on the night of the incident, and that the first time, he broke into her home and assaulted her with a crowbar. Police responding to a 911 call found a crowbar and photographed the damage to her door. This evidence was consistent with Baez's testimony recounting the defendant's conduct. The evidence at trial convinced me beyond a reasonable doubt of the defendant's guilt, and Baez's contradictory affidavit, filed years later in support of the defendant's motion, does nothing to undermine that finding.'

The judge was clearly justified in relying on the same determination of lack of credibility in the Baez affidavit in denying the 2011 rule 30(b) motion. See Commonwealth v. Schand, 420 Mass. 783, 787 (1995) (judge is 'final arbiter of matters of credibility' in motion for new trial); Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997) ('credibility, weight, and impact of the affidavits in support of the motion are entirely within the judge's discretion').

Order entered May 5, 2011, denying motion for new trial affirmed.

By the Court (Berry, Kafker & Mills, JJ.),


Summaries of

Commonwealth v. Colon

COMMONWEALTH OF MASSACHUSETTS APPEALS COURT
Apr 30, 2012
11-P-1022 (Mass. Apr. 30, 2012)
Case details for

Commonwealth v. Colon

Case Details

Full title:COMMONWEALTH v. MARCELINO COLON.

Court:COMMONWEALTH OF MASSACHUSETTS APPEALS COURT

Date published: Apr 30, 2012

Citations

11-P-1022 (Mass. Apr. 30, 2012)