Opinion
14-P-1202
12-03-2015
COMMONWEALTH v. DAVID PHIM.
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
We consider the appeal of the defendant, David Phim, from an order of July 10, 2014, denying his motion for a new trial. For the reasons that follow, we affirm.
Background. On the evening of April 7, 2007, several bullets were fired into the rear wall of an apartment building at 168 Fletcher Street in Lowell. One shot entered a second-floor bedroom and penetrated the head of Vuthavy Phay, who later died as a result. The defendant and a codefendant, Savong Moun, were indicted for Phay's murder and associated crimes. Another individual, Roth Em, also was indicted for the murder, but, pursuant to a plea agreement reducing the charge to manslaughter, he became a witness for the Commonwealth.
The defendant and Moun were tried separately. In August, 2009, a Superior Court jury found the defendant guilty of murder in the second degree and related firearms charges. The Supreme Judicial Court heard the defendant's direct appeal and affirmed the judgments on June 14, 2012. See Commonwealth v. Phim, 462 Mass. 470 (2012). Meanwhile, in September, 2010, Moun stood trial. The jury acquitted him of the murder and three other charged crimes, but convicted him of being an accessory after the fact to the defendant's murder of Phay, and of committing perjury before the grand jury. This court affirmed Moun's judgments on September 24, 2012. See Commonwealth v. Savong Moun, 82 Mass. App. Ct. 1113 (2012).
This was the defendant's second trial, the first having ended in a mistrial.
As to the charges of which Moun was convicted, the Commonwealth's theory was that Moun created a false alibi for the defendant and lied to police and the grand jury about the events in question. As to the murder charge, the Commonwealth's theory was that Moun was a coventurer who had given the defendant the gun and waited in a van nearby during the shooting.
In March of 2013, the defendant filed a motion pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), claiming that newly discovered evidence cast doubt on the justice of his convictions. Specifically, the defendant pointed to two evidentiary differences between his trial and Moun's trial. The first was that at Moun's trial, prosecution witness Bunthorng Chhea recanted his prior testimony that immediately after the gunfire stopped, he saw the defendant with a gun in his hand fleeing the scene with Em. The second was the admission of previously mislabeled cellular telephone (cell phone) tower records showing the locations where Moun's cell phone was used on the night of the murder.
The defendant's motion was heard and denied by the trial judge. In brief, she reasoned that, as shown by the verdicts in Moun's trial, Chhea's recantation was not credible, and that the records for Moun's cell phone had no substantial bearing on the defendant's case.
Discussion. We review the judge's decision for abuse of discretion. Commonwealth v. Santiago, 458 Mass. 405, 414 (2010). "'Reversal for abuse of discretion is particularly rare where [as here] the judge acting on the motion was also the trial judge,' and is in the best position to weigh the credibility of the proffered evidence and to determine its probable impact on a jury hearing it with all the other evidence." Ibid. (citation omitted).
a. Chhea's recantation. When considering the likely impact of a recantation, "[t]he judge appropriately may consider whether, if the witness testified at a new trial, 'his credibility would be damaged in such a way by earlier testimony that his new testimony would be relatively worthless.'" Commonwealth v. Domino, 465 Mass. 569, 583 (2013), quoting from Commonwealth v. Ortiz, 393 Mass. 523, 537 (1984). Here, the judge had ample reason to find that the recantation was of no value.
At Moun's trial, the prosecutor examined Chhea extensively about the numerous times he had given statements or testified that he saw the defendant running away with a gun right after the shots were fired. The prosecutor also brought out that Chhea later was threatened and became afraid to testify. When the jury convicted Moun as an accessory after the fact to a murder committed by the defendant they necessarily did not believe the recantation. In these circumstances, the judge was well entitled to conclude in her discretion that the recantation would not avail the defendant at a new trial.
b. Cell phone records. Near the end of Moun's trial, it was learned that there were records of cell tower activity for Moun's phone. Moun's counsel argued based upon these records that Moun could not have participated in the murder because he would have had only fifteen minutes in which to leave a location that was two miles away from 168 Fletcher Street, travel to the vicinity of the shooting, and then drive back to his prior location.
In her decision on the defendant's motion, the judge found that fifteen minutes would have been an adequate period of time for Moun to make these movements.
The defendant argues that the cell tower evidence could have been used to support his defense that he was not at the murder scene. However, as the trial judge explained, the Commonwealth's case against the defendant did not depend upon Moun being with the defendant when the shots were fired. Moun's convictions, on the other hand, were dependent upon the jury finding that the defendant committed the murder.
The defendant frames the issue in several ways: as newly discovered evidence, as a Brady violation, and as ineffective assistance of counsel. However, regardless of how the issue is characterized, the defendant was required to establish that the records would have been material in the context of his trial. The trial judge did not abuse her discretion in concluding that he failed to do so.
See Brady v. Maryland, 373 U.S. 83, 87 (1963).
That is the case even if, as the defendant contends, the cell phone records could have been used to impeach Em's testimony about the timing and sequence of events. Impeachment evidence is not ordinarily the basis for a new trial, and there was ample exploration of Em's limitations and unreliability as a witness in any event. See Commonwealth v. Almeida, 452 Mass. 601, 616 (2008).
Order dated July 10, 2014, denying motion for new trial affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 3, 2015.