Opinion
16-P-1598
05-12-2017
COMMONWEALTH v. Robert D. GRISWOLD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Robert D. Griswold, appeals from the denial of his third motion for postconviction relief. We affirm.
Background. After a jury trial in 2010, the defendant was convicted of two counts each of rape of a child, improper storage of a firearm, and dissemination of matter harmful to a minor, as well as a single count of indecent assault and battery on a child under fourteen. The defendant was additionally convicted of enticement of a child, but that conviction was reversed on direct appeal by a panel of this court. Commonwealth v. Griswold, 81 Mass. App. Ct. 1118 (2012).
In 2013, the defendant filed a pro se motion for a new trial followed by a motion for relief from unlawful restraint. Both were denied without a hearing. The defendant appealed from the denial of the latter of these two motions, and the denial was affirmed by a panel of this court. Commonwealth v. Griswold, 86 Mass. App. Ct. 1126 (2014).
In 2016, the defendant filed a third pro se motion for postconviction relief, specifically a motion for a new trial, which was denied without hearing. The defendant makes several claims which we address in turn.
Confidential informant. The defendant claims that his right to confront witnesses was violated by the Commonwealth's failure to call a confidential informant at trial who had told police that the defendant was having an inappropriate relationship with one of the named victims.
At trial, the Commonwealth elicited testimony that a detective received information from a confidential informant regarding the defendant and, as a result, that she spoke with the victim and his family. The judge precluded the Commonwealth from eliciting any testimony as to the substance of the information provided by the informant, and no such information was put before the jury. Accordingly, the defendant's right to confrontation was not implicated.
The defendant additionally claims that trial counsel was ineffective in failing to seek the identity of the confidential informant. Generally, the identity of a confidential informant is privileged, and "the burden is on a defendant to demonstrate that an exception to the privilege ought apply, that is, that the disclosure would provide him with ‘material evidence needed ... for a fair presentation of his case to the jury.’ " Commonwealth v. Shaughessy, 455 Mass. 346, 353-354 (2009), quoting from Commonwealth v. Lugo, 406 Mass. 565, 574 (1990). Here, the defendant did not meet this burden. The confidential informant at issue "acted only as a tipster, not as an active participant in the crimes charged, and thus disclosure of [his] identity was not required." Commonwealth v. Velez, 77 Mass. App. Ct. 270, 276 (2010). Because a motion to reveal the identity of the informant would not have succeeded, no ineffective assistance of counsel resulted from the absence of such a motion. Commonwealth v. Youngworth, 55 Mass. App. Ct. 30, 37 (2002), cert. denied, 538 U.S. 1064 (2003).
Additional claims. The defendant complains of the failure to disclose a statement from one of the named victims in the case. The record, however, fails to indicate that the statement at issue was not disclosed. To the contrary, the defendant's position appears to be that the statement of the victim, a reluctant witness for the prosecution, was taken by his own investigator and was known to his attorney. Accordingly, this claim must fail.
Finally, the defendant claims error in a purported variance as to one count of rape between the date of offense listed in the indictment and the evidence adduced at trial. To the extent such a variance existed, it was of no moment where, as here, there was ample evidence supporting the elements of the offense. "Since the date of intercourse is not an essential element of statutory rape, and the defendant raised no alibi defense, in the absence of prejudice the defendant was not entitled to an acquittal even if the jurors found a variance between the date alleged in the indictment and the date proved." Commonwealth v. Day, 387 Mass. 915, 922 (1983).
Order denying motion for new trial affirmed.