Opinion
No. 11–P–2122.
2013-02-27
COMMONWEALTH v. Tyrone STALEY.
By the Court (GRASSO, MEADE & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order in which the motion judge, who was also the trial judge, ordered a new trial. In this case, the defendant was convicted in 2000 of open and gross lewdness, assaulting a child with intent to rape, and two counts of indecent assault and battery on a child, based primarily on the testimony of his son. In a number of venues, the son recanted his accusation. He recanted it to the defendant's private investigator, who submitted an affidavit attesting to the recantation made to him. The son submitted an affidavit asserting that what was contained in the investigator's affidavit was accurate and that the statements he made to the investigator were true. The son submitted a second affidavit saying that his younger brother, another victim, said many times that the defendant never abused him and that his brother's adoptive mother says he does not remember being abused. Affidavits were also entered from three individuals who lived with the son and the defendant, who, under oath, recounted the son telling them that his father had not committed the molestation to which the son testified at trial. On the day on which the hearing on the motion was originally scheduled, the son failed to appear to testify because he went to the hospital for a panic attack. Four days later, at the rescheduled hearing, the Commonwealth introduced an affidavit of Tracy Dagesse, the son's therapist, asserting, “According to [the son], [the defendant] has been threatening and coercive on several occasions, asking him to recant his ‘story’ regarding the molestation.... Due to the intimidation by [the defendant], [the son] told the detectives for the defense what [the defendant] instructed him to.” The son was in the courthouse. Counsel was appointed to represent him. Rather than testify, the son invoked his right under the Fifth Amendment to the United States Constitution not to testify based on the risk of prosecution for perjury. The Commonwealth declined to offer him immunity. The experienced motion judge also reviewed the trial transcript, where the son testified in detail regarding the abuse, and concluded that the defendant received a fair trial. The judge applied the correct legal standard and concluded that he could not tell what had happened with respect to the alleged molestation, but that “justice may not have been done.” He therefore ordered a new trial.
We owe great deference to the judgment of the motion judge, particularly in a case such as this in which the motion judge was also the trial judge. Even where there are no live witnesses, the judge's determination as to the weight and import of affidavits may not be disturbed unless it was an abuse of discretion, Commonwealth v. Thomas, 399 Mass. 165, 167 (1987), and his determination that justice may not have been done and that a new trial therefore should be ordered may not be disturbed except for abuse of discretion or a significant error of law.
In this case, we think the record reveals a significant error of law. The judge made his legal determination but expressly declined either to credit or discredit the affidavits before him. In the absence of any finding with respect to the credibility of the affidavits of the son or of the recantations to which the other affidavits submitted by the defendant refer, we are left with a record in which no factual basis is recited for the determination that justice may not have been done. In the face of that gap in the record before us, the order allowing
the motion for new trial must be reversed.
So ordered.