Opinion
19-P-311
12-12-2019
COMMONWEALTH v. George ECONOMOU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, George Economou, appeals from an order denying his motion for postconviction relief, captioned as a petition for writ of error coram nobis, and supported by affidavits alleging prosecutorial misconduct that he describes as "newly discovered evidence." We affirm.
The common law writ of error coram nobis was made obsolete by legislative action. See Commonwealth v. Phelan, 271 Mass. 21, 22-23 (1930). Insofar as the judge treated the defendant's motion as a motion under Mass. R. Crim. P. 30, as appearing in 435 Mass. 1501 (2001), the judge was correct to do so as all of the relief formerly available by the common law writ is now available under Mass. R. Crim. P. 30.
Background. The defendant was convicted on a total of seventeen counts on indictments that charged him with physically and sexually abusing his three daughters, Martha, Jenny, and Virginia. The facts underlying those convictions are set forth in an unpublished memorandum affirming the judgments, issued pursuant to our rule 1:28. See Commonwealth v. Economou, 46 Mass. App. Ct. 1122 (1999).
The names of the victims are the same pseudonyms used in the defendant's other appellate cases. See, e.g., Commonwealth v. Economou, 46 Mass. App. Ct. 1122 (1999) (memorandum and order pursuant to rule 1:28).
The defendant has pursued two unsuccessful postconviction motions that have resulted in appellate decisions. See Economou v. Pepe, 96 F. App'x 5, 6 (1st Cir. 2004) ; Commonwealth v. Economou, 89 Mass. App. Ct. 1106 (2016) (memorandum and order pursuant to rule 1:28).
On June 25, 2018, the defendant filed a petition for writ of error coram nobis supported by his own affidavit and affidavits from Virginia Economou (the defendant's daughter), John LeBlanc (Virginia's husband), and Anthony Economou (the defendant's son). In summary, Virginia's affidavit explained that after Virginia met with the defendant's attorney before trial to sign a statement retracting accusations against her father, the district attorney threatened to charge her with perjury if she did not sign a second document stating that the retraction was false. This account was supported by LeBlanc's affidavit, which stated that during their marriage, Virginia had repeatedly lamented the fact that she was coerced into giving false testimony against her father. Anthony's affidavit explained that after he was charged with intimidation of a witness in connection with his father's case, "[t]here was a deal" that would permit him to resolve this charge in exchange for not testifying at the defendant's trial. He further averred that, had he testified, he would have said "many things" to support his father's innocence, including his observations from living in the family home with the defendant and the victims. The defendant's affidavit stated that he was innocent and that there was critical evidence (presumably the evidence described in the other three affidavits) not presented to the jury because it was withheld by the prosecution.
The motion judge treated the defendant's petition as a motion for new trial and denied it on the grounds that the defendant had "not presented any newly discovered evidence, and/or in the alternative, it is probable that any evidence proposed as ‘newly discovered’ by the defendant would not have been a real factor in the jury's deliberation." The motion judge further incorporated in her current decision a decision that she had issued in 2014 in connection with the defendant's earlier motion for new trial, and also relied on and adopted the argument section of the Commonwealth's ten-page written opposition to the defendant's petition.
Discussion. "In reviewing the denial or grant of a new trial motion, we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Weichell, 446 Mass. 785, 799 (2006), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). "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." Grace, supra at 305. The evidence 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)." Id. at 306. "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" (citation omitted). Id. at 305.
We agree with the motion judge that Virginia's assertion that she testified against the defendant at trial under threat of perjury is not newly discovered evidence. Virginia made the same assertion in an affidavit supporting the defendant's prior motion for new trial. That affidavit was rejected by the same motion judge who determined that it was not credible and would not have affected the outcome of the trial. , See Commonwealth v. Economou, 89 Mass. App. Ct. 1106 (2016).
Specifically, the motion judge found in 2014 that it was not credible that law enforcement would contact a thirteen year old child directly and arrange a meeting without the knowledge of a custodial adult.
LeBlanc's affidavit is relevant only to the collateral issue of the credibility of Virginia's assertions. It adds little, if anything, to the case and does not "carry a measure of strength in support of the defendant's position." Grace, 397 Mass. at 305. The motion judge was also free to reject the defendant's own bare-bones, self-serving affidavit. See Commonwealth v. Colon, 439 Mass. 519, 530 (2003) ("a motion judge may reject a defendant's self-serving affidavit as not credible").
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We also agree that Anthony's affidavit was not newly discovered evidence warranting a new trial. As stated in the Commonwealth's opposition to the defendant's petition (adopted by the motion judge), Anthony's affidavit relied on hearsay that a "deal" existed between Anthony and the Commonwealth, which the motion judge was free to reject. See Commonwealth v. Goodreau, 442 Mass. 341, 353-354 (2004) ("Hearsay contained in affidavits may be ignored by the motion judge"). We also infer from the motion judge's decision that even if such a deal existed, it would not constitute newly discovered evidence warranting a new trial because it could have been discovered and explored by counsel's exercise of reasonable diligence, and therefore cannot be said to be "not reasonably discoverable" at the time of trial. See Grace, 397 Mass. at 306.
Order denying petition for writ of error coram nobis affirmed.