Opinion
14-P-1811
03-04-2016
COMMONWEALTH v. BISMARK GUITIERREZ.
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
The defendant, Bismark Guitierrez, was convicted of unlawful possession of a firearm and two counts of armed assault with intent to murder. Following his convictions, the defendant moved for a new trial on the basis of newly discovered evidence. The motion was based on the affidavit of his codefendant, Felix Pierre.
His conviction was affirmed by this court in 2013. Commonwealth v. Gutierrez, 84 Mass. App. Ct. 1119 (2013).
At trial, Pierre and Guitierrez presented mutually consistent defenses; both argued to the jury that they had no intent to murder. Neither testified. There was evidence that the gun belonged to Guitierrez and that he was holding it shortly before the shots were fired. There was no witness to the shooting itself. Tried as joint venturers, Guitierrez was convicted of assault with intent to murder, and unlicensed possession of a firearm, while Pierre was acquitted of assault with intent to murder, but was convicted of the possessory firearm offense. Several years later, Pierre now avers that he was the shooter. We review the judge's denial of a motion for a new trial "only to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. McGee, 467 Mass. 141, 146 (2014), quoting from Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013).
Passing on whether the evidence was newly discovered, see, e.g., McGee, supra at 148, the judge did not abuse her discretion in denying the motion without an evidentiary hearing. See Commonwealth v. Evans, 439 Mass. 184, 203 (2003). A judge may deny a motion for a new trial based solely on consideration of affidavits, without resorting to an evidentiary hearing, unless a "substantial issue is raised by the motion or affidavits." Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). See Evans, supra. We give the motion judge, who was also the trial judge, special deference. See Commonwealth v. Spray, 467 Mass. 456, 471-472 (2014).
"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." Evans, supra at 203, quoting from Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The affidavit of a codefendant who did not testify at trial is the "weakest sort of evidence." Commonwealth v. Francis, 432 Mass. 353, 373 (2000), quoting from Commonwealth v. Hennessey, 23 Mass. App. Ct. 384, 385 (1987). See Commonwealth v. Grace, 370 Mass. 746, 752 (1976).
The defendant argues that Pierre's affidavit was reliable in that it was given contrary to his personal interests and against the advice of appellate counsel, and therefore, the judge erred in failing to credit the affidavit or to hold an evidentiary hearing. The defendant asserts that the affidavit could have had negative consequences for Pierre in the event of retrial after his appeal of the firearm conviction, and that it could have an adverse impact on Pierre's chances of parole at an upcoming hearing.
The judge did not abuse her discretion when she concluded that the codefendant's acquittal of the more serious offense (and the ensuing double jeopardy bar to retrial for that offense) reduced any risk associated with the statement in his affidavit that he was the shooter. Similarly, the judge concluded that where Pierre was convicted of a crime while on parole, a fact that would likely have a significant impact on his parole eligibility in and of itself, any prediction of the impact of Pierre's added statement that he was the shooter was speculative. Simply put, the judge concluded that Pierre did not lose much by giving the affidavit. Finally, the affidavit on its face establishes the existence of a joint venture. The judge's evaluation of the affidavit and Pierre's risks attendant to giving the affidavit do not demonstrate a clear error in judgment. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
The judge was not required to believe Pierre, and she did not abuse her discretion when she found his affidavit lacked credibility. See Francis, supra. "If the rule were otherwise, the right of a new trial would depend on the vagaries and vacillations of witnesses rather than upon a soundly exercised discretion of the trial court." Commonwealth v. Robertson, 357 Mass. 559, 562 (1970), quoting from State v. Wynn, 178 Wash. 287, 289 (1934), and citing to People v. Shilitano, 218 N.Y. 161, 180-181 (1916) (Cardozo, J. concurring).
"Indeed, if a new trial could be predicated as of right upon a codefendant's change of heart after failure to take the stand there could always be a second chance for everyone." Grace, 370 Mass. at 752 n.3, quoting from Dirring v. United States, 353 F.2d 519, 520 (1st Cir. 1965).
Order denying motion for new trial affirmed.
By the Court (Hanlon, Sullivan & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 4, 2016.