Opinion
14-P-460
12-03-2015
COMMONWEALTH v. JOHN B. WITTEY.
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
After a jury trial, the defendant was convicted of assault and battery on a person over sixty years of age. On appeal, he claims that the motion judge erred in denying his motion for new trial where newly discovered evidence "cast[s] serious and substantial doubt on the justice of the conviction." We affirm.
Discussion. "A defendant seeking a new trial on the ground 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. Horton, 434 Mass. 823, 837 (2001), quoting from Commonwealth v. Grace, 397 Mass. 303, 305 (1986). In order to show that the proffered evidence is "new," the defendant must show that it was "unknown to the defendant or his counsel and not reasonably discoverable" at the time of trial "through reasonable pretrial diligence." Commonwealth v. Buck, 64 Mass. App. Ct. 760, 763 (2005), quoting from Commonwealth v. Grace, supra at 306. The newly discovered evidence must be material and credible, and "also must carry a measure of strength in support of the defendant's position." Commonwealth v. Weichell, 446 Mass. 785, 798 (2006), quoting from Commonwealth v. Grace, supra at 305.
Here, the defendant cannot sustain his burden to establish that his proffered evidence is both newly discovered and that it casts real doubt on the justice of the conviction. Commonwealth v. Horton, supra. The defendant had ample access to the witness, Owen Malaguti, and the statements at issue are cumulative of the defendant's trial testimony. As cumulative evidence tends to carry less weight than new evidence of a different kind, Commonwealth v. Grace, 370 Mass. 746, 753 (1976), this evidence cannot be said to "cast[] real doubt on the justice of the conviction." Commonwealth v. Horton, supra.
The defendant asserted at trial that the victim threatened to shoot him. Malaguti's testimony was that he heard the defendant exclaim: "He threatened to shoot me. He had a gun in the car."
The defendant also offers the civil deposition testimony of the victim as evidence of the victim's inconsistent statements about the incident. The defendant contends that the victim's civil testimony establishes that he, not the defendant, was the aggressor. We disagree. Newly discovered evidence that merely impeaches a witness will not ordinarily be the basis for granting a new trial. Commonwealth v. Toney, 385 Mass. 575, 581 (1982). The credibility of a witness is a question for the jury whether to "accept or reject, in whole or in part, the testimony presented to them." Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978). Here, the jury made their credibility determination during the trial and the defendant cannot show that this evidence is material, credible, or of the strength to support his position. See Commonwealth v. Weichell, supra. There was no abuse of discretion in the motion judge's denial of the motion.
The defendant also claims that because the Commonwealth failed to respond to this argument it waived its right to argue against that claim. We disagree. The defendant fails to understand that he, not the Commonwealth, has the burden of proof on a motion for new trial. Commonwealth v. Horton, 434 Mass. at 837.
Order denying motion for new trial affirmed.
By the Court (Berry, Meade & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: December 3, 2015.