Commonwealth v. O'Neil

Decision Date16 May 2023
Docket Number22-P-461
PartiesCOMMONWEALTH v. JAMES M. O'NEIL.
CourtAppeals Court of Massachusetts

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).

Meade Wolohojian &Walsh, JJ.[11]

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1981, after a jury trial, the defendant was convicted of two counts of rape of a child and two counts of indecent assault and battery on a child under fourteen years of age. The sexual assaults occurred in 1978, and the victims, D.R. and R.W., were eleven and twelve year old boys at the time. On direct appeal, this court affirmed the defendant's convictions in Commonwealth v. O'Neil, 14 Mass.App.Ct. 978 (1982). The defendant's first motion for new trial was denied without an evidentiary hearing in 1985. In 2020, the defendant filed a second motion for new trial the motion judge held an evidentiary hearing, and later denied the motion in a thoughtful and comprehensive memorandum. The judge subsequently denied the defendant's motion to reconsider the denial. On appeal, the defendant raises a variety of claims concerning the denial of the new trial motion.[1] We affirm.

Discussion.

1. Victims' 2006 statements.

The defendant claims that he is entitled to a new trial based on claimed newly discovered evidence that the victims, nearly three decades after their sexual assaults, purportedly recanted their identification of the defendant as the man who raped them. We disagree.

"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. Domino, 465 Mass. 569, 582 (2013), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). The defendant "also bears the burden of demonstrating that any newly discovered evidence is admissible." Commonwealth v. Weichell, 446 Mass. 785, 799 (2006). "In considering a motion for a new trial based on newly discovered evidence, it [is] [within] the judge's discretion to determine the weight and import of affidavits submitted . . . The abuse of discretion standard is not altered when the newly discovered evidence is an alleged recantation by a material witness" (citation omitted). Domino, supra. "In such circumstances, 'the duty of the trial judge is to give grave consideration to the credibility of the witness's new testimony.'" Id. at 582-583, quoting Commonwealth v. Robertson, 357 Mass. 559, 562 (1970).

Here, the claimed newly discovered evidence is the two victims' 2006 purported recantations made to the defendant's private investigator, John Ahern. In the most generous light, these statements call into question whether the victims had properly identified the defendant as their rapist.[2] But it is difficult to conclude that these statements are newly discovered evidence. "Newly discovered evidence is evidence that was unknown to the defendant or counsel and not reasonably discoverable by them at the time of trial." Commonwealth v. Sullivan, 469 Mass. 340, 350 n.6 (2014), citing Grace, 397 Mass. at 306. As both victims were available to the defendant at trial, and both were cross-examined, the reliability or accuracy of their identification of the defendant was reasonably discoverable at trial. See Grace, supra ("The defendant has the burden of proving that reasonable pretrial diligence would not have uncovered the evidence"). In any event, the proper denial of the motion for new trial does not turn on this issue, and we will assume the evidence was newly discovered. Even if the evidence was newly discovered, it was still the defendant's burden to establish that the motion judge abused his discretion by concluding that it would not have cast real doubt on the justice of the defendant's convictions. See Grace, 390 Mass. at 305-307; Commonwealth v. Coutu, 88 Mass.App.Ct. 686, 700 (2015). The first hurdle for the defendant in carrying this burden was that, as the motion judge properly found, the evidence was not admissible. As the motion judge determined, and the defendant conceded in his memorandum in support of his motion for new trial, the statements Ahern attributed to the victims are inadmissible hearsay. Despite his concession, the defendant claims these statements would be admissible under the exception to the hearsay rule articulated in Commonwealth v. Drayton, 473 Mass. 23, 40 (2015). We disagree. In Drayton, the Supreme Judicial Court noted that in "the vast majority of cases, the established hearsay exceptions will continue to govern the admissibility of hearsay evidence at most criminal trials," but a "constitutional hearsay exception" might operate "in the rarest of cases, where otherwise inadmissible evidence is both truly critical to the defense's case and bears persuasive guarantees of trustworthiness." Drayton, 473 Mass. at 40. At issue in Drayton was a statement that was contained in an affidavit that directly contradicted the testimony of a key witness for the prosecution, who claimed to have witnessed the crime. Id. at 24. The court concluded that the affidavit was "critical to the defense," but that a remand was required to determine whether the affidavit bore "persuasive assurances of trustworthiness." Id. at 36. In this case, as noted above, the victim's statements are not directly contradictory to any of the trial testimony as were the statements recited in an affidavit in Drayton. But even if they were, as the motion judge found, the statements do not bear persuasive guarantees of trustworthiness. Ahern failed to have either victim sign an affidavit, and both had died before the evidentiary hearing was conducted in 2020. When D.R. spoke with Ahern, he was under the influence of drugs, he was in poor physical condition, and his statements were disjointed. Also, Ahern admitted that his report did not actually record the statements made to him, but rather, as the motion judge found, it "reflected statements that he pieced together from a difficult-to-understand conversation with D.R."[3] When Ahern spoke to R.W., he was similarly struggling with substance abuse. As the motion judge found, he was living at a shelter for drug users, and "almost immediately refused to cooperate further, suggesting that his statements likewise are of doubtful reliability." Furthermore, as the motion judge found, Ahern failed to create a reliable record of the victims' statements, and neither victim "ever confirmed in any reliable format the substance of what Ahern claimed they said." In fact, both victims were aware that Ahern wanted to document their statements and understood that their initial statements were not necessarily "on the record," and "both failed or refused to assist Ahern further after preliminary interviews." The statements that do exist do not bear hallmarks of reliability as was the case in Drayton. See Dayton, 473 Mass. at 36-38. Finally, even if the victims' statements were admissible, and they constituted recantations, the defendant would not be entitled to a new trial. See Commonwealth v. Tobin, 392 Mass. 604, 618-619 (1984). Even as recantations, albeit equivocal,[4] the evidence could only be offered as impeachment of the victims' testimony, which is not ordinarily a basis for granting a new trial. See Commonwealth v. Lo, 428 Mass. 45, 53 (1998). See also Commonwealth v. Berry, 481 Mass. 388, 400 (2019) (new evidence "that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial" [citation omitted]). Given this, and how the reliability of the statements was impaired, the impeachment value of the evidence is questionable. In the end, the "newly" discovered evidence would not have cast real doubt on the justice of the convictions, and the motion judge did not abuse his discretion by denying the motion for new trial on this ground. See Commonwealth v. Santiago, 458 Mass. 405, 414 (2010) (abuse of discretion standard not altered when newly discovered evidence is alleged recantation by material witness).

2. Trial issues.

The defendant also raises a variety of claimed trial errors which he argues should have been raised by counsel, and which resulted in him receiving ineffective assistance of counsel. To his credit, the defendant acknowledges that these claims, as the motion judge properly concluded, could have been raised on direct appeal or in a prior motion for new trial, which limits our review to whether there was error, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295-296 (2002).

A. Exclusion of mother's testimony.[5]

The defendant claims that the trial judge erred by foreclosing the defendant's mother from testifying to what Detective John Ridlon asked R.W. during the showup identification procedure. In particular, the defense sought to elicit from the defendant's mother her testimony regarding something that "Ridlon repeatedly kept asking R[.W.,]" but was prevented from doing so based on the Commonwealth's hearsay objection, which the trial judge sustained. As the motion judge noted, it is not clear...

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