Opinion
14-P-1950
11-04-2015
COMMONWEALTH v. LEO FARRIER.
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
On March 13, 1987, the defendant, Leo Farrier, pleaded guilty to murder in the second degree of his twenty-six year old former girl friend, to the rape of her ten year old daughter, and to assault and battery by means of a dangerous weapon. On January 10, 2014, he filed a motion for a new trial alleging ineffective assistance of counsel and seeking to withdraw his guilty pleas. He also filed on that date a renewed motion for postconviction discovery. The motion judge, who was also the plea judge, denied the motions without a hearing. We affirm.
We construe the memorandum and order denying the motion for a new trial as also implicitly denying the renewed motion for postconviction discovery.
Discussion. 1. Pleas. We review the judge's denial of a motion for a new trial for an abuse of discretion. Commonwealth v. Scott, 467 Mass. 336, 344 (2014). In reviewing a denial of a motion for a new trial based on ineffective assistance of counsel, we consider whether the defendant has shown that counsel's performance fell measurably below that of ordinary, fallible counsel, and if so, has made "some showing that better work might have accomplished something material for the defense." Commonwealth v. Bell, 460 Mass. 294, 303 (2011) (citation omitted).
The defendant claims that his counsel failed to advise him of the elements of the offenses, investigate mitigating circumstances (e.g., that the defendant was "high" on heroin and alcohol at the time of the rape and murder), and explain potential defenses, including self-defense. The defendant further asserts that counsel told him he would be released in fifteen years if he accepted the plea deal.
In support of his motion, filed over twenty-six years after the pleas, and after the death of his attorney, the defendant provided his own affidavit. The judge was not required to credit the affidavit. See Commonwealth v. Lopez, 426 Mass. 657, 663 (1998); Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). Here, the defendant's newly minted factual allegations were not only uncorroborated, but were affirmatively contradicted by the defendant's own representations at the plea hearing. His version of the shooting had changed multiple times over the course of the investigation and parole hearings. His primary theme was that of self-defense, not intoxication, and the factual assertions in support of self-defense changed over time. The inability to obtain any evidence from trial counsel regarding his advice "may be directly attributed to the defendant's delay and may be said to be the defendant's fault." Lopez, supra at 661 (unavailability of records of four plea proceedings ascribed to defendant's delay of ten to nineteen years before bringing plea withdrawal motions). The judge did not abuse her discretion in denying the motion without a hearing. See Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015).
The affidavit was contradicted in all material aspects by representations made in the plea hearing. After the prosecutor recited the factual basis of the pleas, Farrier was asked if there are "any facts that you say are different?" Farrier said, "No." When asked if counsel had explained the elements of the crimes, his rights, and defenses, the defendant answered in the affirmative. He was advised of the maximum sentence of life by the judge.
At his parole hearings the defendant stated that the victim had attacked him and that he shot her in the ensuing struggle. He claimed he had fired a warning shot for the first time in his affidavit submitted in support of the motion for new trial.
Discovery. The defendant contends that the judge abused her discretion in denying him postconviction discovery of the grand jury minutes and police reports. We review the denial of a motion for postconviction discovery for abuse of discretion. Cf. Commonwealth v. Camacho, 472 Mass. 587, 598 (2015) (reviewing denial of postconviction discovery following trial).
"In order to prevail on a posttrial discovery motion, a defendant must demonstrate that it is reasonably likely that such discovery will lead to evidence possibly warranting a new trial . . . [and] must make a prima facie showing that the evidence sought would have materially benefited the defense . . . ." Camacho, supra. See Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1501 (2001). We treat the defendant's request for grand jury minutes as we would any other request for postconviction discovery. The defendant's affidavits do not establish a prima facie case for relief. See Commonwealth v. Lynch, 439 Mass. 532, 545 (2003). In his affidavit accompanying his first motion for postconviction discovery, the defendant asserted only that his attorney failed to furnish him with the grand jury minutes and police reports. The defendant's affidavit accompanying his motion for new trial merely states, "I believe that the grand jury minutes and police reports contain information confirming my possible defenses and the existence of mitigating circumstances that could reduce the charge below second degree murder." The defendant does not identify a witness whose grand jury testimony would relate to the newly proffered defenses. See Commonwealth v. Stewart, 365 Mass. 99, 105-106 (1974). The defendant's conclusory statements, devoid of specific allegations, do not sufficiently establish that the discovery would have led to evidence warranting a new trial. See Camacho, supra. Compare Commonwealth v. Daniels, 445 Mass. 392, 407 (2005) (holding that defendant established prima facie case with specific, not speculative or conclusory, allegations). The judge did not abuse her discretion in denying his motion.
In light of our determination that the defendant has failed to make a prime facie showing, we need not address the application of the prejudice portion of the standard in the context of a plea. Compare Camacho, 472 Mass. at 598 (defining prejudice as a matter which "would have factored into the jury's deliberations").
Order denying motion for new trial and motion for postconviction discovery affirmed.
By the Court (Vuono, Carhart & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 4, 2015.