Opinion
10-P-2215
11-23-2011
COMMONWEALTH v. DARRELL DARBY.
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
After a jury trial, the defendant was convicted of armed assault with intent to murder, assault and battery by means of a dangerous weapon, unlawful possession of a firearm, and unlawful possession of ammunition. He appeals from the denial of his motion for a new trial, and from the denial of that motion without an evidentiary hearing. We affirm.
This is the defendant's second motion for a new trial, the first of which was denied in 2004. In this second motion, the defendant claims there is newly discovered evidence that would warrant a new trial or at least an evidentiary hearing. We disagree. In a motion for a new trial, 'we extend special deference to the action of a motion judge who also was the trial judge, as here.' Commonwealth v. Greineder, 458 Mass. 207, 225 (2010) (Greineder). 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). During the defendant's trial, the victim, Roberto Rivera, testified the defendant shot him. The defendant put forth a witness who testified that the victim did not actually know who shot him. To rebut that testimony, the Commonwealth presented Yanira Ramos, who confirmed the victim had identified the defendant as the shooter.
The defendant's motion for a new trial was supported by two documents. He presented a letter written by Ramos in 2008. In the letter, Ramos apologized for testifying against the defendant and claimed the victim was unable to identify who had shot him. Ramos explained that the victim and his friends discussed whom they were going to accuse, and the defendant was the person they chose. The defendant also presented an affidavit of Shawn Roumo, who averred that he visited the victim in the hospital and the victim did not know who shot him.
1. Ramos letter. The defendant claims that Ramos's letter warrants a new trial or an evidentiary hearing. We disagree. 'Motions for a new trial are addressed to the 'sound discretion' of the trial judge.' Commonwealth v. DiBenedetto, 458 Mass. 657, 663-664 (2011) (DiBenedetto), quoting from Commonwealth v. De Christoforo, 360 Mass. 531, 542 (1971). We examine the judge's decision 'only to determine whether there has been significant error of law or other abuse of discretion.' Id. at 664, quoting from Commonwealth v. Wolinski, 431 Mass. 228, 235 (2000) (Wolinski). If there is 'no substantial issue raised by the motion or affidavits,' the judge does not need to hold an evidentiary hearing. Wolinski, supra, quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). Furthermore, '[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.' Commonwealth v. Grace, 397 Mass. 303, 305 (1986). See Greineder, 458 Mass. at 245; DiBendetto, 458 Mass. at 664. Although the letter was notarized, it was not presented as an affidavit, nor did it contain an attestation clause. In these circumstances, it was not an abuse of discretion to deny the request for an evidentiary hearing. See Commonwealth v. Raymond, 450 Mass. 729, 733-734 (2008) (no abuse of discretion where judge declined to hold evidentiary hearing based on lack of affidavits).
In addition, as the motion judge was also the trial judge, he was 'in the best position to weigh the credibility of the proffered evidence and to determine its probable impact on a jury hearing it with all the other evidence.' Commonwealth v. Santiago, 458 Mass. 405, 414 (2010). See Commonwealth v. Brown, 378 Mass. 165, 172 (1979); Commonwealth v. Moore, 408 Mass. 117, 125 (1990). Ramos indicated that the victim did not know who the shooter was, but the victim testified at trial that he had been shot by the defendant. 'Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily warrant a new trial.' Commonwealth v. Ortiz, 393 Mass. 523, 537-538 (1984). Furthermore, '[t]he strength of the case against a criminal defendant . . . may weaken the effect of evidence which is admittedly newly discovered.' DiBenedetto, supra at 664, quoting from Commonwealth v. Grace, 379 Mass. 303, 306 (1986) (Grace). The judge was entitled to weigh this new evidence with other evidence, including witness testimony, presented during the original trial. See Grace, supra. Newly discovered evidence must be both credible and material. Id. at 305. Based on other evidence presented at trial, including a direct identification of the defendant by the victim, we determine there was no abuse of discretion in the denial of a new trial without an evidentiary hearing. See Commonwealth v. Marrero, 459 Mass. 235, 240 (2011).
2. Roumo's affidavit. The defendant also claims that the information contained in Roumo's affidavit is newly discovered because he did not know of Roumo's existence until after entering MCI-Cedar Junction. We disagree. To be considered newly discovered, 'it must 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).' Grace, 397 Mass. at 306. Additionally, '[t]he defendant has the burden of proving that a reasonable pretrial diligence would not have uncovered the evidence.' Ibid.
Roumo's affidavit asserts that he was with Jose Correia visiting the victim when the victim could not identify who shot him. Correia testified at trial for the defendant. The fact that another individual, Roumo, was with Correia and the victim on that day was not unreasonably discoverable at the time of trial.
Order denying second motion for new trial affirmed.
By the Court (Kafker, Trainor & Meade, JJ.),