Opinion
20-P-328
06-25-2021
COMMONWEALTH v. Jeffrey NEVES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On February 2, 1987, the defendant admitted to sufficient facts for a guilty finding on one count of indecent assault and battery on a child under the age of fourteen, in violation of G. L. c. 265, § 13B. Approximately thirty years later, he filed a motion to withdraw his plea based on purportedly recanted statements by the victim and the defendant's mother. The motion was denied by the judge who had presided over the change of plea hearing. The defendant appealed, and while his appeal was pending he obtained new counsel and filed a second motion to withdraw his plea based on similar grounds. Appellate proceedings were stayed, and following a hearing conducted by a different judge (the first judge had retired) the defendant's second motion was denied. The judge also denied the defendant's motion for an evidentiary hearing and later denied a motion to reconsider. The defendant's appeals from the orders denying his first and second new trial motions have been consolidated for our review. We affirm.
The defendant was originally charged with rape of a child by force.
A motion for reconsideration also was denied.
Although both motions also alleged that, given the defendant's age and other factors, the plea was not made intelligently or voluntarily, that claim has not been advanced on appeal.
The Commonwealth argues that the defendant's second motion is barred under the doctrine of issue preclusion because his claims had been "actually litigated" and decided against him when his first motion was denied. See Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). Although the Commonwealth raised this issue in its opposition to the defendant's second motion, the judge did not address it and proceeded instead to address the merits of the motion. We likewise pass over the potential procedural bar and address the merits.
Background. Given the passage of time, there is no transcript of the change of plea hearing. As a result, the parties and both judges relied on information contained within police reports to establish the underlying facts. The reports indicated that on an afternoon in May 1986, the defendant's mother found the defendant, who was seventeen years old, on the couch with the twelve year old victim, whom we shall call Sally. Both the defendant and Sally were naked from the waist down, and the defendant was lying on top of Sally. The defendant's mother took Sally home and told Sally's mother what she had seen. The defendant was arrested later that afternoon and subsequently admitted that he and Sally were "messing around" on the couch and that they both pulled down their pants. The defendant also said that he lay on top of Sally, but they did not have sexual intercourse.
Sally described the encounter differently when she was interviewed by the police. She said that she was walking past the defendant's house when he called her over, saying that he had something to tell her. The defendant led her inside by the arm, pulled her onto the couch, and began removing her pants and underwear. She yelled at him to stop. After removing her shirt and his pants and underwear, the defendant lay on top of her, kissed her cheek, and placed his penis between her legs and inside her vagina. When the defendant's mother walked in, the defendant jumped off and the defendant's mother took Sally home.
a. First motion to withdraw plea. In November 2016, the defendant filed his first motion to withdraw his plea based on allegedly newly discovered evidence consisting of affidavits from Sally and the defendant's mother recanting the statements they had previously given to the police. In her affidavit, Sally averred that at the time of the alleged assault, she was friendly with the defendant, and was at his house willingly on the afternoon in question. She further claimed that she was afraid of being punished by her parents and that nothing happened between her and the defendant. The defendant's mother's affidavit states that when she returned home during a lunch break, she found the defendant and Sally sitting on the couch. She told them that it was inappropriate for them to be alone together and brought Sally home and told Sally's mother that she did not want Sally and the defendant in her house alone.
Following a hearing, the first judge denied the motion in a written memorandum of decision. She reasoned that the affidavits did not contain "new" or "credible" evidence and that the defendant had not shown that the "new" evidence cast doubt on the propriety of the conviction, particularly in light of the fact that the defendant admitted that he and Sally had started "messing around" on the couch, had pulled their pants down, and that he had gotten on top of her. The judge also observed that the mother's affidavit merely stated that she found the defendant and Sally alone and took Sally home while omitting any mention of whether the two were undressed when she entered the room. The defendant filed a motion to reconsider supported by additional affidavits. The judge determined that the new affidavits "add very little to the credibility of the victim[ ]" insofar as they "merely relate that the victim lied because she was afraid of her father" and denied the motion.
b. Second motion to withdraw plea. Thereafter, in August 2019, the defendant filed a second motion to withdraw his plea. This motion was supported by more detailed affidavits from Sally and the defendant's mother. Sally now explicitly claimed that she had fabricated her statement to police because she was scared that she was "going to get in trouble." The mother now averred that the defendant and Sally were fully clothed and sitting next to each other when she walked into the room on the day of the incident. In addition, the defendant's mother asserted that the police reports contained false statements; she claimed that she did not say the defendant and Sally were naked or that the defendant was on top of Sally. The defendant submitted his own affidavit in which he averred that he never told the police that he and Sally started "mess[ing] around" on the couch. The defendant also submitted an affidavit from his sister, who was a friend of the victim at the time of the incident. She stated that a couple of weeks after the defendant was arrested, Sally confessed to her that she had lied about what happened because she was afraid of her father. The defendant also submitted copies of letters Sally had written to Governor Charlie Baker, Attorney General Maura Healey, and the Sex Offender Registry Board (SORB). In all three letters Sally asserted that she falsely accused the defendant because she was afraid of her father and asked that the defendant not be required to register as a sex offender.
Like the first judge, the second judge held a nonevidentiary hearing and then issued a memorandum of decision and order denying the motion. He also concluded that the evidence relied on by the defendant was not "newly discovered" and that the affidavits lacked credibility. In reaching his conclusion, the judge noted that "the new affidavits are suspect in that they seek to clarify deficits [the first judge] found originally" and that the defendant's admissions "substantiate[d] the charge."
Discussion. A motion to withdraw a plea is treated as a motion for a new trial under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Furr, 454 Mass. 101, 106 (2009). "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. Domino, 465 Mass. 569, 582 (2013), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). "In considering a motion for a new trial based on newly discovered evidence, it [is] [within] the judge's discretion to determine the weight and import of affidavits submitted. ... The abuse of discretion standard is not altered when the newly discovered evidence is an alleged recantation by a material witness" (citations omitted). Domino, supra. "In such circumstances, ‘the duty of the trial judge is to give grave consideration to the credibility of the witness's new testimony.’ " Id. at 582-583, quoting Commonwealth v. Robertson, 357 Mass. 559, 562 (1970).
"Evidence is newly discovered if it was ‘unknown to the defendant or his counsel and not reasonably discoverable by them at the time of [the plea]’ " (citation omitted). Commonwealth v. Barry, 481 Mass. 388, 404 (2019). Furthermore, newly discovered evidence must be "material and credible" (citation omitted). Id. For purposes of our discussion, we assume without deciding that Sally's and the mother's recantations constitute newly discovered evidence. We further assume that the contents of the affidavits are material. However, nothing in the record warrants disturbing the conclusions reached by the first and second judge that the affidavits lacked credibility. It was not improper for the judges to conclude that the length of time -- thirty years -- between the incident and the recantations cast doubt on the veracity of the affidavits. Both judges also properly considered the defendant's admissions in determining whether the affidavits were trustworthy. Nor was it improper to consider, as the second judge did, that it was unlikely that a number of police officers would attribute false statements to Sally and the defendant's mother. Lastly, the second judge also properly noted that the affidavits submitted in support of the second motion were aimed at addressing deficiencies identified by the first judge.
By contrast, the defendant has failed to show that the contents of the additional affidavits on which he relies were unknown or unknowable to him or his counsel at the time of the plea. Furthermore, the letters written by Sally to government officials are not material.
For primarily the same reasons we conclude that is was not an abuse of discretion to deny the defendant's motion for an evidentiary hearing.
Given these circumstances, we discern no abuse of discretion in the denial of the defendant's motions to withdraw his plea.
Orders denying motions for new trial affirmed.