Opinion
16-P-243
03-02-2017
COMMONWEALTH v. Lionel RODRIGUEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2006, after a jury trial, the defendant was convicted of the murder in the first degree of George R. Carpenter on the theory of extreme atrocity or cruelty. On direct appeal, the Supreme Judicial Court reduced the verdict to murder in the second degree. Commonwealth v. Rodriguez , 457 Mass. 461, 488 (2010). In 2015, the defendant filed a motion for new trial, which was denied by the trial judge, as was a motion to reconsider. He now appeals the denial of those motions. We affirm.
1. Newly discovered evidence . In his motion for new trial, the defendant claimed that through newly discovered evidence and expert opinions, he could establish that the victim's cause of death was reckless medical care at St. Luke's Hospital, and not because of an injury received during the beating and attack. We owe special deference to the motion judge, as he was also the trial judge, and determine that he properly denied the defendant's motions. See Commonwealth v. Grace , 397 Mass. 303, 307 (1986).
"A defendant seeking a new trial on the basis 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. Pike , 431 Mass. 212, 218 (2000). See Commonwealth v. Coutu , 88 Mass. App. Ct. 686, 699 (2015). "A defendant seeking a new trial on the ground of newly discovered evidence must first establish 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). Moreover, the defendant must establish that the evidence in question was "unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial .... The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence." Commonwealth v. Grace , supra at 306 (citations omitted).
The defendant claims that the expert opinions on causation are newly discovered because neither his trial counsel nor counsel for any of the codefendants ever possessed the underlying St. Luke's medical records. We disagree. As the motion judge held, trial counsel must have been aware that the records existed. Indeed, the Commonwealth subpoenaed the hospital records in 2001, which was nearly five years before the 2006 trial. Thus, these records, which are the foundation of the defendant's expert doctors' causation opinions, could have been discovered prior to trial through the exercise of reasonable pretrial diligence. See Commonwealth v. Williams , 399 Mass. 60, 64 (1987) (hospital records, documents from malpractice suit brought by victim's family, and opinion letters from doctors about substandard care were not newly discovered). The records and causation opinions were not newly discovered evidence.
Even if the evidence were newly discovered, it does not cast real doubt on the justice of the defendant's conviction. See Commonwealth v. Grace , supra at 305. "Intervening conduct that is reasonably foreseeable will not relieve the defendant of criminal responsibility." Commonwealth v. Catalina , 407 Mass. 779, 791 (1990). Moreover, to supersede the defendant's culpability, the intervening cause must be the sole cause of death, not merely a contributing cause. See Commonwealth v. Golston , 373 Mass. 249, 256-257 (1977), cert. denied, 434 U.S. 1039 (1978).
Here, even assuming the care the victim received at St. Luke's hospital was both reckless and unforeseeable, see Commonwealth v. Niemic , 427 Mass. 718, 727 (1998) ; Commonwealth v. Garcia , 470 Mass. 24, 40 (2014), the defendant was not entitled to relief. As the motion judge noted, the alleged malpractice was not an intervening cause of death, because the victim was going to die from the bleeding into his abdomen in the absence of medical care. The expert affidavits did not claim that the asserted mistreatment at the hospital was the sole cause of the victim's death. In that posture, the claimed malpractice fails to qualify as an intervening cause which would relieve the defendant of culpability. Rather, the affidavits establish only that the failure to properly diagnose hemorrhagic shock delayed life-saving treatment, and was only a substantial factor in the victim's death. It is not enough that the victim would have survived with prompt treatment of his hemorrhagic shock because it would not transform his mistreatment into the sole cause of his death. As such, the claimed newly discovered evidence does not "cast[ ] real doubt on the justice of the conviction," because the defendant failed to show that there was "a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Commonwealth v. Grace , 397 Mass. at 305, 306.
2. Ineffective assistance of counsel . The defendant also claims that his trial counsel was ineffective for not obtaining the St. Luke's medical records and pursuing a causation defense at trial. We disagree. For the same reasons that the causation experts' affidavits do not cast real doubt on the conviction, they also fail to support an ineffective assistance of counsel claim. That is, because the affidavits were insufficient to support a claim of an intervening and superseding cause, defense counsel's failure to review the hospital records and challenge the Commonwealth's evidence of causation did not deprive the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Saferian , 366 Mass. 89, 96 (1974).
Also, for these same reasons, the defendant's claim that the medical records and the causation opinions established his "actual innocence" is without merit, and the cases upon which the defendant relies are simply inapposite. See Herrera v. Collins , 506 U.S. 390, 400 (1993) (a claim of actual innocence based on newly discovered evidence does not state a ground for Federal habeas corpus relief); Schlup v. Delo , 513 U.S. 298, 318-323 (1995) (a showing of actual innocence may excuse an otherwise procedurally defaulted Federal habeas corpus petition). In addition, the motion judge properly treated as waived the defendant's claim that the asserted newly discovered evidence negated malice because it was raised for the first time in a motion for reconsideration and it could have been raised in the motion for new trial. See Commonwealth v. Gilday , 409 Mass. 45, 46 n.3 (1993).
The defendant's motion for new trial was not supported by an affidavit from his trial counsel, and there was no evidence before the motion judge that counsel did not examine the St. Luke's hospital record. As such, the ineffective assistance claim also lacks a necessary factual predicate.
The judge determined that even if the affidavits were fully credited, the defendant was not entitled to relief. Therefore, the motion for new trial did not present a "substantial issue," and the judge did not abuse his discretion by denying an evidentiary hearing. Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1502 (2001). Commonwealth v. Stewart , 383 Mass. 253, 257 (1981).
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Order denying motion for new trial affirmed .
Order denying motion for reconsideration affirmed .