Opinion
19-P-550
07-29-2020
COMMONWEALTH v. ALAN B. WOOD.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In October 2015, a District Court jury convicted the defendant, Alan B. Wood, of operating a motor vehicle while under the influence of intoxicating liquor (OUI), third offense. A panel of this court affirmed the judgment in an unpublished decision issued pursuant to our former rule 1:28. Commonwealth v. Wood, 92 Mass. App. Ct. 1127 (2018). The defendant subsequently filed a motion for a new trial based on newly discovered evidence. This newly discovered evidence was that, in 2007, the Commonwealth's witness, Massachusetts State Police Trooper Leigha Genduso, admitted to committing perjury (and other crimes involving dishonesty) when testifying before a Federal grand jury in 2005. The defendant argued that his inability to impeach Genduso with this evidence deprived him of a fair trial. The motion judge, who also had been the trial judge, denied the motion. On appeal, the defendant contends that the judge erred in concluding that the newly discovered evidence was not admissible for impeachment purposes, and that, even if admitted, the evidence would not have been a real factor in the jury's deliberations or changed the outcome of the trial. We affirm.
The motion judge stated that he would not have admitted the newly discovered evidence at the defendant's OUI trial because it was too distant in time, it was not material, and Trooper Genduso had not been convicted of a crime. The judge further stated that the evidence offered by the Commonwealth's three witnesses was entirely consistent, and that "there was more than ample evidence to convict the defendant" without Genduso's testimony.
1. Background. Trooper Genduso graduated from the State police academy in May 2014. In October 2015, she was one of three witnesses against the defendant at his OUI trial. In 2018, the defendant's appellate counsel learned from trial counsel about an internal affairs investigation into past misconduct by Genduso, which had occurred before she became a State trooper. In 2007, Genduso had testified, under oath and pursuant to a grant of immunity, in Federal District Court against her then-boyfriend about her involvement in his marijuana trafficking operation from around 2001 until 2003. During her testimony, Genduso acknowledged that she had not testified truthfully before the grand jury in 2005 in the underlying proceedings in that case. Neither the defendant nor the prosecutor was aware of this information at the time of the defendant's OUI trial. This information served as the basis for the defendant's motion for a new trial.
As discussed infra, Massachusetts State Police Troopers Barry Nangle, Zachary Bolcome, and Genduso were three of the officers assigned to a sobriety checkpoint where the defendant's vehicle was stopped in June 2014.
Genduso testified in 2007 as follows:
Q.: "So when you testified before the grand jury after understanding [the meaning of perjury], you told the truth?"
A.: "Apparently I didn't."
Q.: "Apparently you didn't?"
A.: "That's correct."
Q.: "So you told -- well, you told the grand jury that you never counted the money, right? Is that right?"
A.: "That's correct."
Q.: "And you also told the grand jury that the day that [your then-boyfriend] was arrested you gave the money to [his friend]. And that's not true either, is it?"
A.: "No. But I've had a long time to think about it since that last grand jury appearance."
Q.: "And your memory is better now?"
A.: "It's a lot better considering I've been thinking about it for such a long time. There are also places and events that I don't remember."
. . .
Q.: "And by the way, there's no question in your mind that you lied at the grand jury, right?"
A.: "Not today, though."
2. Discussion. A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). To prevail on a motion for a new trial based on newly discovered evidence, the defendant "must demonstrate, first, that the evidence was previously unknown to him or not reasonably discoverable before trial and, second, that the evidence 'casts real doubt on the justice of the conviction.'" Commonwealth v. DiBenedetto, 475 Mass. 429, 438 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). "[T]he judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial." Grace, supra at 306. See Commonwealth v. Wright, 469 Mass. 447, 461-462 (2014). The strength of the Commonwealth's case against a defendant may weaken the effect of newly discovered evidence, but a reviewing court must focus on "whether, in light of 'a full and reasonable assessment of the trial record,' the evidence at issue 'would have played an important role in the jury's deliberations and conclusions.'" Commonwealth v. Cowels, 470 Mass. 607, 623 (2015), quoting Commonwealth v. Tucceri, 412 Mass. 401, 414 (1992).
The defendant cites Commonwealth v. Francis, 474 Mass. 816, 825-826 (2016), to support his contention that the appropriate standard is whether a reviewing court is "sure that the error did not influence the jury, or had but very slight effect" (citation omitted). The defendant's reliance on Francis, a case involving the egregious government misconduct of former State police crime laboratory chemist Annie Dookhan, is unavailing. Dookhan pleaded guilty to numerous criminal charges relating to misconduct that occurred during her employment with the Commonwealth, and that directly affected the integrity of evidence underlying the convictions of thousands of defendants. See Commonwealth v. Scott, 467 Mass. 336, 337 & n.3 (2014). In contrast, Trooper Genduso's misconduct occurred nearly nine years before she became a State trooper, related solely to a personal matter involving her then-boyfriend, and did not result in any criminal convictions.
"Whether an appeal is from the granting or the denial of a motion for a new trial, an appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion." Grace, 397 Mass. at 307. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). An appellate court affords special deference to the rulings of a motion judge who, as in this case, was also the trial judge. See Grace, supra. See also Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014). In such circumstances, reversal of the denial of a motion for a new trial for abuse of discretion is particularly rare. See Commonwealth v. Santiago, 458 Mass. 405, 414 (2010).
In his memorandum of decision, the judge stated that, for purposes of the defendant's motion, it appeared that the evidence of Trooper Genduso's testimony in 2007 was newly discovered. The judge did not consider the question whether reasonable pretrial diligence by the defendant could have uncovered such testimony. He proceeded to determine whether the evidence would have been admissible at the defendant's trial, and, if so, what effect, if any, it would have had on the jury. Similarly, we assume without deciding that the newly discovered evidence proffered by the defendant was, in fact, newly discovered. See Commonwealth v. Lessieur, 472 Mass. 317, 331-332, cert. denied, 136 S. Ct. 418 (2015); Wright, 469 Mass. at 461.
Passing on the issue whether evidence of Trooper Genduso's false testimony before a grand jury was admissible for impeachment purposes at the defendant's OUI trial, we focus on whether such evidence, if admitted, would have cast real doubt on the justice of the defendant's conviction. The defendant contends that Genduso was the Commonwealth's primary witness, and that, without her testimony, there would have been little evidence for the jury to find the defendant guilty beyond a reasonable doubt. In the defendant's view, evidence of Genduso's past misconduct probably would have been a real factor in the jury's deliberations, and, therefore, his motion for a new trial should have been allowed. We disagree.
In June 2014, Trooper Barry Nangle was assigned to a sobriety checkpoint where he worked as a "greeter," preliminarily assessing whether drivers needed further screening for impairment. When the defendant stopped at the checkpoint, Nangle saw that "he had bloodshot and glassy eyes," and Nangle smelled "the odor of an alcoholic beverage" emanating from the defendant. When Nangle asked the defendant if he had been drinking that night, the defendant responded that he had consumed "several beers" at a barbeque. Based on this information and his observations, Nangle determined that the defendant needed further screening, and he directed the defendant to a parking area a short distance away.
At the parking area, Trooper Zachary Bolcome was working alongside and training Trooper Genduso as they performed further screening of drivers stopped at the checkpoint. When Bolcome first encountered the defendant, he observed that the defendant's eyes were "glassy [and] bloodshot," detected an "odor of alcoholic beverage coming from" the defendant, and noticed that the defendant's "speech was slurred." The defendant told Trooper Bolcome that he had consumed "three Bud Light . . . draft beers" that night. Bolcome watched Trooper Genduso administer several field sobriety tests to the defendant, who had difficulty maintaining his balance. Bolcome was paying close attention to what was happening, making sure that Genduso "[did] everything right," and "offering pointers." Once Trooper Genduso had finished administering the field sobriety tests, Trooper Bolcome had the defendant recite the alphabet, during which Bolcome noticed that the defendant's "speech became so slurred that [Bolcome] had difficulty understanding him." Based on his interactions with the defendant, Trooper Bolcome formed the opinion that the defendant "was impaired, drunk."
We conclude that the motion judge did not abuse his discretion in determining that the admission of the defendant's newly discovered evidence would not have been a real factor in the jury's deliberations or changed the outcome of the defendant's trial. There was ample other evidence, apart from Trooper Genduso's testimony, for the jury to have found the essential elements of the crime beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). See also Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017); Commonwealth v. Ka, 70 Mass. App. Ct. 137, 140 (2007).
Order denying motion for new trial affirmed.
By the Court (Kinder, Henry & Ditkoff, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 29, 2020.