Com. v. Grace

• Decision Date: 15 April 1986
• Parties: COMMONWEALTH v. Frank GRACE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 246

491 N.E.2d 246

397 Mass. 303

COMMONWEALTH v. Frank GRACE.

Supreme Judicial Court of Massachusetts Bristol.

Argued Dec. 6, 1985.

Decided April 15, 1986.

Phillip L. Weiner, Asst. Dist. Atty., for Com.

Robert W. Thuotte (Richard J. Innis, Boston, with him), for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

WILKINS, Justice.

The Commonwealth appeals from an order of a judge of the Superior Court allowing the defendant's motion for a new trial on an indictment charging him with murder in the first degree. We affirmed the defendant's conviction in Commonwealth v. Grace, 370 Mass. 746, 352 N.E.2d 175 (1976). ¹ The ground of the defendant's motion considered at the hearing on his new trial motion followed from his brother Ross Grace's recantation of testimony he gave at their joint trial. ² Ross Grace has now abandoned his claim of alibi, admits that he shot the victim, and asserts that the defendant was not present. Two witnesses (Cruz and Mendes), allegedly newly discovered, corroborated this revised testimony. A witness (Lassiter) who at trial had identified the defendant as the person who shot the victim now says that he is unable to identify the defendant "as being one of the gunmen."

After briefly describing the facts shown at the trial, we begin with the test by which a judge is to evaluate a motion for a new trial based on newly discovered evidence. Next, we discuss the standard of appellate review. We then consider the judge's findings and rulings with respect to the four witnesses whose testimony, in the judge's view, made the case for allowance of the new trial motion. We conclude that further findings are required concerning two of these witnesses and accordingly remand the case. We also discuss certain of the Commonwealth's other challenges to the judge's action to the extent they may bear on further proceedings in this matter.

For the basic factual background, we quote from our opinion in Commonwealth v. Grace, 370 Mass. 746, 747-748, 352 N.E.2d 175 (1976): "The evidence introduced by the Commonwealth and the defendant was highly contradictory. It was undisputed that the victim, Marvin Morgan, was shot on the street outside the West End Social Club in New Bedford on August 8, 1972, at approximately 11:30 P.M. after descending the stairs from the club. It was also undisputed that the shooting was observed by one Eric Baker, a cousin of the victim, and one Jasper Lassiter, both of whom had accompanied the victim from Providence to New Bedford earlier in the evening. The remainder of the evidence was sharply disputed, the Commonwealth's witnesses contending that the defendant was present and shot the victim, the defendant's witnesses corroborating the defendant's own testimony that he was elsewhere at the time of the shooting.

"The Commonwealth's chief witnesses, Baker and Lassiter, testified that they were coming down the stairs with the victim when two men, identified by them as the defendant Frank 'Parky' Grace and his brother Ross Grace, approached with guns drawn. The Graces ordered them up against a wall...." After an argument concerning an alleged "rip off," according to the trial testimony of Baker and Lassiter, the defendant shot the victim in the chest. Id. at 748, 352 N.E.2d 175.

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), 378 Mass. 900 (1979). The judge must make "such findings of fact as are necessary to resolve the defendant's allegations of error of law." Id. 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. See Commonwealth v. Ortiz, 393 Mass. 523, 537-538, 471 N.E.2d 1321 (1984); Commonwealth v. Brown, 378 Mass. 165, 171, 390 N.E.2d 1107 (1979); Sharpe, petitioner, 322 Mass. 441, 444-445, 77 N.E.2d 769 (1948). The evidence said to be new not only must be material and credible (Commonwealth v. Brown, supra 378 Mass. at 172, 390 N.E.2d 1107) but also must carry a measure of strength in support of the defendant's position. See Commonwealth v. Brown, supra at 171, 390 N.E.2d 1107; DeLuca v. Boston Elevated Ry., 312 Mass. 495, 497, 45 N.E.2d 463 (1942); Commonwealth v. Dascalakis, 246 Mass. 12, 32-33, 140 N.E. 470 (1923). Thus newly discovered evidence that is cumulative of evidence admitted at the trial tends to carry less weight than new evidence that is different in kind. See Commonwealth v. Grace, 370 Mass. 746, 753, 352 N.E.2d 175 (1976). Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. Commonwealth v. Markham, 10 Mass.App.Ct. 651, 654, 411 N.E.2d 494 (1980). The strength of the case against a criminal defendant, therefore, may weaken the effect of evidence which is admittedly newly discovered. Commonwealth v. Dascalakis, supra at 33, 140 N.E. 470. The motion judge decides not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury's deliberations. See Davis v. Boston Elevated Ry., 235 Mass. 482, 495-496, 126 N.E.2d 841 (1920); Commonwealth v. Markham, supra. This process of judicial analysis requires a thorough knowledge of the trial proceedings (Commonwealth v. Dascalakis, supra at 32, 140 N.E. 470), and can, of course, be aided by a trial judge's observation of events at trial (Commonwealth v. DeChristoforo, 360 Mass. 531, 543, 277 N.E.2d 100 [1971] ).

Not only must the allegedly new evidence demonstrate the materiality, weight, and significance that we have described, but it must also have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial (or at the time of the presentation of an earlier motion for a new trial). See Commonwealth v. Brown, supra 378 Mass. at 171-172, 390 N.E.2d 1107; Commonwealth v. Grace, 370 Mass. at 753-754, 352 N.E.2d 175 Nicholas v. Lewis Furniture Co., 292 Mass. 500, 505-506, 198 N.E. 753 (1935). Cf. Commonwealth v. Markham, supra 10 Mass.App.Ct. at 653, 411 N.E.2d 494 (evidence was not reasonably discoverable). The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence. See Sharpe, petitioner, supra at 444-445, 77 N.E.2d 769; Davis v. Boston Elevated Ry., supra at 496, 126 N.E.2d 841; Commonwealth v. Markham, supra 10 Mass.App.Ct. at 654 n. 1, 411 N.E.2d 494.

The Commonwealth has an interest in ending litigation once a case has been fully and fairly tried. Davis v. Boston Elevated Ry., supra. A party seeking a new trial on the ground of newly discovered evidence must overcome this interest in finality by showing both the importance and the newness of that evidence. If the motion judge concludes that the moving party has failed to establish one aspect of the burden, the judge need not, but may, consider the other.

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. See Commonwealth v. Brown, 378 Mass. 165, 170-171, 390 N.E.2d 1107 (1979); DeLuca v. Boston Elevated Ry., supra 312 Mass. at 497, 45 N.E.2d 463; Davis v. Boston Elevated Ry., supra 235 Mass. at 497, 126 N.E.2d 841. A reviewing court extends special deference to the action of a motion judge who was also the trial judge. See Commonwealth v. DeChristoforo, supra 360 Mass. at 543, 277 N.E.2d 100. When, as here, the motion judge did not preside at trial, we defer to that judge's assessment of the credibility of witnesses at the hearing on the new trial motion, but we regard ourselves in as good a position as the motion judge to assess the trial record. Commonwealth v. Leaster, 395 Mass. 96, 101-102, 479 N.E.2d 124 (1985). Commonwealth v. Ellison, 376 Mass. 1, 16-17, 379 N.E.2d 560 (1978). We note that the motion judge here gave thorough attention to the entire record and that the issues depended largely on what was presented at the hearing on the motion for a new trial.

In deciding that the defendant had met his burden of showing that he was entitled to a new trial, the motion judge said that she could not "point to one witness or area of testimony in this case and say that it was sufficient to carry the defendant's burden." She found "the strong points to have been carried by the testimony of Lassiter, Cruz, and Mendes, together with the confession of Ross Grace." She said other testimony corroborated these strong points in varying degrees and that a survey of the entire case caused her to conclude that the evidence presented was " 'so grave, material and relevant as to afford a probability that it would be a real factor with the jury in reaching a decision.' Davis v. Boston Elevated Ry., 235 Mass. , 496 (1920)."

We shall analyze the testimony on which the judge principally relied, testing it and the judge's findings against the legal standards for a new trial discussed earlier in this opinion. As will be seen, the judge's findings as to two of the witnesses who "carried" the strong points for the defendant are inadequate because they fail to focus sufficiently on the important question whether the witnesses' testimony was newly discovered. Because the judge's ultimate conclusion relies on the defendant's entire presentation, we must remand the case for further findings (and, in the judge's discretion, further hearing). Perhaps, depending on what those findings are, the judge may also need to redetermine her decision to allow the defendant a new trial and to consider other grounds on which the new trial motion was originally based. See note 2 above. We do not imply that the judge's new trial order was unwarranted, nor do we imply what determinations...