Opinion
NO. 13983
December 7, 2001
REVISED RULING OF DEFENDANT'S FIFTH MOTION FOR NEW TRIAL
In 1989, the defendant was found guilty of First Degree Murder by means of deliberate premeditation. The defendant had murdered his estranged wife. The defendant's conviction was affirmed by the Supreme Judicial Court on direct appeal. See Commonwealth v. Ruci, 409 Mass. 94 (1991). In exercising its obligation under Chapter 278, § 33E, the Supreme Judicial Court reviewed the entire record and saw no reason to exercise its discretion to enter a verdict of a lesser degree of guilt than that found by the jury. As the Court concluded:
"The facts of this case do not even hint of spontaneity. The defendant and his wife separated six months before the incident. The defendant was subject to a restraining order to stay away from her. On June 7, 1988, on their seventh anniversary, the defendant walked into his wife's sub shop with a loaded weapon. He walked to the back of the shop, and, with three members of her family watching, he shot his wife twice. After the victim fell to the floor, the defendant shot her twice more. The defendant's actions demonstrate deliberation rather than spontaneity. We shall not disturb the jury's verdict." Id. at 98.
The Supreme Judicial Court's affirmance of the judgment was dated February 12, 1991.
After the Supreme Judicial Court's affirmance, the defendant, who was still represented by his trial and appellate counsel, filed his first motion for new trial. That motion was dated April 10, 1991 and argued that a new trial should be granted because of newly discovered evidence. The allegedly newly discovered evidence was set forth in an affidavit of an Alfred LeBoeuf. LeBoeuf (who was apparently a prison mate of the defendant) claims that he sold a handgun to the defendant's wife. Defendant's counsel argued that this evidence corroborated defendant Ruci's testimony at trial that his estranged wife was in possession of a weapon when he entered the sub shop on the day of the murder. Thus, the defendant argued that the LeBoeuf's testimony, if allowed to be presented to a jury, would support his own testimony (which the jury already had heard) and, implicitly, discredit or impeach the testimony presented by the Commonwealth witnesses which established that the defendant walked into the sub shop with a weapon and had fired it repeatedly at his wife. See Commonwealth v. Lo, 428 Mass. 45, 53-55 (1998) (newly discovered evidence that merely impeaches government witness is not sufficient to grant a new trial).
The same counsel represented the defendant at trial and in the direct appeal.
The trial judge, Robert Barton, did not hold a hearing on the motion for new trial but did reach the merits of the motion. Judge Barton, who was intimately familiar with the underlying facts of the case, ruled that "this so-called `new evidence' does not create a substantial risk that a jury exposed to that evidence would have reached a different conclusion. Accordingly this motion is denied without a hearing." On May 1, 1991, counsel for the defendant filed a notice of appeal as to Judge Barton's denial of this new trial motion. By October 22, 1991, the Essex County Clerk's Office filed a notice that record had been assembled for this appeal. No appellate court ever reached the merits of the appeal of this new trial motion. Although the record is somewhat unclear, the package containing the assembled record was returned by the Appeals Court on March 1, 1993, due to the defendant's failure to obtain leave to appeal from the SJC Single Justice. The record also shows on April 12, 1995 the Supreme Judicial Court dismissed one of the defendant's appeals from his many motions for new trial, again for failure to seek permission of the Single Justice.
On May 11, 1992, the defendant, this time acting in a pro se capacity, filed his second motion for new trial. Although the motion was phrased as being "based on newly discovered evidence", the motion argued that the defendant had been deprived a fair trial because his inability to understand either "American" or the Greek language. The defendant was provided a Greek language interpreter at his trial. In this motion, the defendant claimed the language he understood was Albanian and that he should have had an Albanian interpreter. The defendant filed an affidavit in support of this motion from his cell mate. The cell mate claimed to speak Greek and opined that the defendant's mastery of the Greek language was not particularly good. On March 20, 1992, the trial judge endorsed the second motion for new trial with what was in essence a denial. Judge Barton wrote "The Court `refuses to act'. This motion raises no question which could not have been raised in the original appeal before the Supreme Judicial Court or in other motions for new trial. Justice was done and there is no miscarriage of justice."
Using more current terminology, Judge Barton essentially ruled that the defendant had waived his right to raise the issue regarding the Greek interpreter. Judge Barton also refused to resurrect that issue. Finally, Judge Barton, recognizing that the issue had been waived so saw no reason to act upon the motion in that he concluded that there was no "miscarriage of justice". See Commonwealth v. Amirault, 424 Mass. 618, 639-40 (1997).
Judge Barton's ruling that justice had been done and there was no miscarriage of justice was perfectly understandable in the context of this case. After all, the defendant filed an affidavit on February 7, 1989 (in support of his motion to suppress) where he stated that he had been in the United States for ten years and that "my native language is Albanian, but my second language is Greek and that has been my primary language during my marriage to Maria [the victim]. I speak broken English and partially understand broken English. I do not write English at all." Based upon the defendant's representations, he was assigned (at his request) a Greek interpreter. The judge who decided the motion to suppress (Judge John Ronan) noted in his findings of fact that the defendant did not even use the services of the Greek interpreter initially during the testimony on the motion to suppress. Apparently the defendant's command of the English language was sufficient that he did not need to use the interpreter. In any event, however, Judge Ronan took the precaution of ordering the Greek interpreter to interpret everything at the motion to suppress hearing. Throughout the motion to suppress hearing, and any other pretrial hearing, and throughout the trial, the defendant or his counsel never claimed an inability to understand what was being said. This was an issue that plainly could have been raised at trial and if not raised at trial plainly could have been raised upon appeal. Likewise, as trial Judge Barton stated, the issue could have been raised in the defendant's first motion for a new trial. The doctrine of waiver is particularly applicable.
On June 11, 1992 the defendant filed his third motion for a new trial. This motion was again supported by the same affidavit which had been submitted on his second motion for new trial and argued the identical issue regarding his inability to understand the Greek language. The defendant also raised one additional issue in his third motion for new trial and that was the ineffective assistance of counsel to raise this issue either at trial or upon appeal.
On June 22, 1992 the trial judge, Judge Robert Barton, denied this third motion for new trial on its merits. Judge Barton ruled that:
"Motion denied without a hearing. The motion is frivolous, and if a live issue would have been previously raised by trial and appellate counsel. The affidavit in support of the motion from the defendant's roommate or cell mate is not credited."
It was, of course, up to the trial judge to make an assessment of the credibility of the attached affidavit. In finding that the motion was frivolous and the supporting affidavit not credible, Judge Barton plainly rejected the defendant's ineffective assistance of counsel argument.
On July 6, 1992, the defendant filed a notice of appeal, appealing the judge's denial of this third motion for new trial. On September 28, 1992, the Appeals Court vacated the appeal due to the defendant's failure to comply with the provisions of Chapter 278, § 33E (requiring a petition to a single justice of the SJC to allow appeal).
Approximately 3 ½ years later, on January 25, 1996, the defendant filed his fourth motion for a new trial. In this fourth motion, the defendant asserted, for the first time, ineffective assistance of his counsel in handling the appeal of his first motion for new trial. It will be remembered that initial new trial motion was appealed but the appeal was not properly effectuated. The defendant also filed, at the same time, a motion for appointment of counsel.
On February 20, 1996, Judge Barton denied motion for appointment of counsel. The court also ruled on the defendant's fourth motion for new trial. Judge Barton ruled that "the Court refuses to act on motion, nothing in question could not have been raised at trial, and motion for new trial presently on appeal."
After receiving the judge's ruling, the defendant filed a motion for reconsideration on March 7, 1996. The defendant argued, understandably, that the judge had misinterpreted this fourth motion for new trial. The defendant pointed out that he was arguing that his counsel had been ineffective in failing to prefect the appeal of the first motion for new trial (a matter that plainly could not have been raised at trial or upon direct appeal). The defendant also pointed out that the judge was in error in thinking that the a motion for new trial was on appeal (all the appeals of the new trial motions at this point had been vacated due to procedural inadequacies). This motion for reconsideration was denied on March 18, 1996. The defendant never filed an appeal from this denial of the motion for reconsideration or an appeal on the ruling the fourth motion for new trial.
Why the defendant failed to file an appeal from the decision on the fourth motion for new trial is a mystery. The defendant certainly had been informed by this time of the proper method of filing an appeal and he had filed prior notices of appeal in his pro se capacity. The defendant obviously realized (as he pointed out in his motion for reconsideration) that there is a basis for such an appeal. He probably had not waived the issue of ineffective assistance of counsel as to the appeal of the first motion for new trial. Arguably, he was not informed of the procedural failure of that appeal until either March of 1993 or April of 1995 (dates subsequent to his third motion for new trial). In his fourth motion for new trial, the defendant recognized the principle ofCommonwealth v. Cowie, 404 Mass. 119 (1989) (citing it several times) whereby a defendant may raise an issue by means of a motion for new trial when he was unable to directly appeal his conviction due to a procedural inadequacy. Despite having these arguments, however, the defendant did nothing. By not appealing Judge Barton's ruling on the fourth motion for new trial, the defendant waived that argument.
On or about May 14, 2001, the defendant filed his fifth motion for new trial. By this point, Judge Robert Barton had retired from the bench. The Regional Administrative Justice assigned this fifth motion for new trial to the present judge on November 26, 2001.
This fifth motion for new trial seeks to resurrect all of the issues raised in the previous four motions for a new trial. As noted above, all of those issues have been waived and there is no reason to resurrect them at this late date. This case might serve as a textbook example of an unending series of motions for new trial — some being frivolous, others completely untimely — that undercut society's very legitimate interests in the finality of criminal convictions and judicial economy. A defendant is not allowed to continually file motions for a new trial in an attempt to resurrect issues by simply arguing that they were previously erroneously determined. In essence, this is what this fifth motion for new trial seeks.
There is, however, one issue that the Court must address as to this fifth motion for new trial. As set forth above, the defendant raised (in his fourth new trial motion) the issue of ineffective of assistance of counsel in appealing his first motion for new trial. Judge Barton's ruling on that fourth motion for new trial may be in error. The defendant, in failing to appeal that decision, waived that issue. This Court, however, must still determine whether there exists a substantial risk of a miscarriage of justice. Commonwealth v. Amirault, supra (if the defendant had fair opportunity to raise issue and has waived the issue, the conviction will stand unless it will result in "manifest injustice"). This Court firmly concludes that there is no substantial risk of any miscarriage of justice in applying the waiver doctrine in this case. The trial judge had already found that the purported new evidence offered in the first motion for new trial was such that the jury would not have reached a different conclusion. See Commonwealth v. Moore, 408 Mass. 117, 125 (1990) ("A defendant seeking a new trial on the ground of newly discovered evidence must establish . . . that the evidence . . . cast real doubts on the justice of the conviction. . . .The judge must find that there is substantial risk that the jury would have reached a different conclusion had the evidence had been admitted at trial"). The purported newly discovered evidence advanced in the first motion for new trial merely corroborated the defendant's trial testimony and attempted to impeach the testimony of various witnesses who testified for the Commonwealth. A trial judge is well within his or her discretion to deny such a motion. Commonwealth v. Lo, 428 Mass. 45, 53-54 (1998). Therefore, even if counsel had properly appealed Judge Barton's denial of the first motion for new trial, it is highly unlikely that the defendant would have obtained any type of favorable result. Thus, even assuming that trial counsel behavior fell measurably below that which would have been expected of an ordinary fallible lawyer, the defendant was not likely deprived of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
For this reason, the defendant's fifth motion for new trial must be denied. As the trial judge already ruled, justice was done. There is no showing of substantial risk of miscarriage of justice. To quote the Supreme Judicial Court, this Court "shall not disturb the jury's verdict."
Given the nature of the issues raised by this motion, a hearing would not be helpful and is not necessary.
____________________________ Richard E. Welch III Justice of the Superior Court
Dated: December 7, 2001