Commonwealth v. Burns

• Docket Number: 22-P-203
• Decision Date: 24 January 2024
• Parties: COMMONWEALTH v. DOUGLAS W. BURNS.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH
v.
DOUGLAS W. BURNS.

No. 22-P-203

Appeals Court of Massachusetts

January 24, 2024

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

The defendant, Douglas Burns, appeals from an order denying his motion for a new trial after his conviction of one count of assault with a dangerous weapon, in violation of G. L. c. 265, § 15B. On appeal, the defendant claims that he is entitled to a new trial because additional evidence casting doubt as to the victim's injury at the time of the incident came to light during hearings associated with the victim's worker's compensation claim against his employer, Suffolk County. This purported newly discovered evidence is an affidavit authored by Marie B. Lungelow, a former shift commander at the Suffolk County house of correction who was charged with investigating the incident in 1991 at which the victim claimed to have been injured. Lungelow, in her affidavit dated December 15, 1998, claims that the victim told her, soon after the 1991 incident, that he had

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not been injured. This claim stands contrary to the victim's testimony at trial that he suffered a debilitating back injury. The defendant claims that this affidavit is new evidence that warrants a new trial because it would have undermined the victim's credibility and altered the jury's analysis of who was the first aggressor in the physical altercation.

We affirm the order after concluding the defendant did not establish that (1) the newly discovered evidence cast real doubt on the justice of the conviction, or (2) that the reason for a new trial outweighed the risk of prejudice to the Commonwealth.

Background.

This appeal arises from the defendant's 1995 conviction of assault with a dangerous weapon (a handgun), stemming from an incident that occurred in February 1994. At trial, it was undisputed that the defendant and the victim collided as they were walking along a narrow, snow-lined sidewalk in Boston. The Commonwealth's theory at trial was that the defendant, unprovoked, struck the victim and then pointed a gun at him. The defendant claimed he drew his gun in self-defense only after the victim charged at and threw his cane at him. The victim denied being the aggressor and insisted that his debilitating back injury at the time of the incident prevented him from charging the defendant. Specific to his condition, the victim testified that in 1991, while working as a correction officer for the Suffolk County house of correction,

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he sustained an injury to his back while he was breaking up a fight between inmates. The victim further testified that this injury had led to him being unable to resume active work, and that he was "out on a physical disability."

A percipient witness, Willie Washington, corroborated the victim's account by testifying that the defendant bumped into the victim, told the victim to put his hands up, and pointed his handgun at the victim's back. On April 21, 1995, the jury returned a guilty verdict.^[1]

Discussion.

1. Standard of review.

Under Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge may grant a motion for a new trial any time "it appears that justice may not have been done." To prevail on a motion for a new trial based on newly discovered evidence, the defendant must first establish that the evidence is newly discovered. See Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Second, the defendant must show that the newly discovered evidence "casts real doubt on the justice of the conviction" and is "material and credible . . . [and] carr[ies] a measure of strength in support of the defendant's position." Id. Third, the defendant must establish that the reason for a new trial...