Opinion
11-P-414
03-20-2012
COMMONWEALTH v. CLIFFORD NORLING.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant was convicted of one count of assault and battery by means of a dangerous weapon, under G. L. c. 265, § 15A, and one count of assault and battery, under G. L. c. 265, § 13A, in connection with an incident in which two victims, husband and wife, were beaten and injured after encountering the defendant and his friends while walking down the street. Before us is the defendant's appeal from the judgments and from the denial, after a nonevidentiary hearing, of his motion for a new trial. We affirm.
1. Newly discovered evidence. Less than one month after his convictions, the defendant obtained affidavits from the two friends who were present at the scene of the crime. Both averred that the husband attacked first, that the two friends fought back, and that the defendant stood by and did nothing during the fight. On the basis of these affidavits, the defendant moved for a new trial on the ground of newly discovered evidence.
The judge did not abuse his discretion in concluding that the defendant had not met his burden of showing 'that the evidence was not discoverable at the time of trial despite the due diligence of the defendant or defense counsel.' Commonwealth v. Sena, 441 Mass. 822, 830 (2004). To the contrary, the record reflects that trial counsel knew of these potential witnesses, had discussed the case with them, and expected one of them to testify voluntarily at trial. When that individual changed his mind about testifying voluntarily, counsel chose not to subpoena him or the other potential witness. The judge permissibly could conclude in his discretion that this choice was a tactical one -- not manifestly unreasonable when made -- to forego unwilling testimony that could have been harmful to the defense. See Commonwealth v. Martin, 427 Mass. 816, 822 (1998); Commonwealth v. Conley, 43 Mass. App. Ct. 385, 393 (1997).
The judge was not required to accept the defendant's unsubstantiated alternative explanation for counsel's decision not to subpoena the witnesses, i.e., that they would have invoked their Fifth Amendment privilege. Neither of the affidavits says as much; nor is there any affidavit from trial counsel to support this contention. Furthermore, the mere possibility that the potential witnesses would exercise the privilege does not make the statements in their affidavits newly discovered evidence. Cf. Commonwealth v. Cook, 12 Mass. App. Ct. 920, 920-921 (1981); Commonwealth v. Lopera, 42 Mass. App. Ct. 133, 137 n.3 (1997).
The judge also was entitled to reject the affidavits as lacking credibility. Neither affidavit made any mention of the assault upon the female victim, who was shoved and injured when she fell and struck her head; and neither affidavit was consistent with the defendant's own testimony, much less the testimony of the victims, which the judge, as fact finder, had found to be truthful.
2. Impeachment of male victim. The defendant faults trial counsel for failing to ask additional questions of the male victim in order to challenge his identification of the defendant as the person who assaulted the female victim. Contrary to the defendant's claim, however, counsel did not ignore the issue and abandoned it only when it became apparent that further impeachment would only strengthen the identification. There was neither ineffective assistance nor prejudice. See Commonwealth v. Garvin, 456 Mass. 778, 791-792 (2010).
3. Excluded evidence. Whether viewed as an unpreserved appellate issue or as a claim of ineffective assistance of counsel in failing to object, the defendant cannot show any abuse of discretion, and therefore no substantial risk of a miscarriage of justice, resulting from the judge's exclusion of additional evidence about events after the fight, which, the defendant contends, provided an alternative explanation for the injuries he suffered that night. The defendant testified that after the fight, he was 'jumped from behind,' and other witnesses testified that the defendant was restrained by two men who caught him as he ran from the scene. Further testimony about these events was of marginal relevance and would have been cumulative. See Commonwealth v. Brown, 449 Mass. 747, 770 (2007).
Judgments affirmed.
Order denying motion for new trial affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),