Commonwealth v. Santos, 19-P-1661

• Court: Appeals Court of Massachusetts
• Citation: 100 Mass.App.Ct. 1102,170 N.E.3d 726 (Table)
• Docket Number: 19-P-1661
• Parties: COMMONWEALTH v. Joshua SANTOS.
• Decision Date: 16 July 2021

100 Mass.App.Ct. 1102
170 N.E.3d 726 (Table)

COMMONWEALTH
v.
Joshua SANTOS.¹

19-P-1661

Appeals Court of Massachusetts.

Entered: July 16, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Superior Court, the defendant was convicted by a jury of second-degree murder, unlicensed possession of a firearm, and unlicensed possession of ammunition.³ When his motion for a new trial was denied, he appealed both the convictions and the denial of his motion. Considering the defendant's consolidated appeals, we discern neither an abuse of discretion nor other error in the judge's determination that the defendant failed to demonstrate his entitlement to a new trial on the grounds of newly discovered evidence, and we are likewise unpersuaded that the judge abused his discretion in his evidentiary rulings at trial. Accordingly, we affirm.

Background. We briefly summarize the evidence in the case as the jury could have viewed it, reserving certain details for later discussion. On June 2, 2013, Rolando Colon, then the leader of the La Familia gang in Holyoke, was with a group of other gang members, including Damien Alvarado, Jose Santiago, and Jose Rodriguez. Colon told the group that someone had been shot the night before after a dispute, and that "the dudes from last night were coming down to talk." On instructions from Colon, the defendant and Santiago collected a handgun from a storage location up the street. The defendant put the gun in his pocket, then he, Santiago, and other members of the gang, including Jose Rodriguez, agreed to go to the place where Colon planned to meet the incoming group "to make sure [that Colon] was going to be good."

The defendant drove Santiago toward the meeting place. As they drove, Colon spoke with the defendant using the speaker phone feature on Santiago's cell phone; Santiago heard Colon say, "When I give you the signal, you know what to do." The defendant answered, "All right. Say no more." At 16 Cabot Street, the defendant parked the car on the street. Alvarado and Rodriguez were standing on the corner, and Colon was with the victim, Juan Quinones, on the porch at 16 Cabot Street. Santiago saw Colon waving his hat in his hand in an unaccustomed gesture.

In the car, the defendant told Santiago to "go pop him." Understanding the defendant to be instructing him to shoot Quinones, Santiago refused, told the defendant to do it himself, and left the car. The defendant then called Rodriguez over to the car. Rodriguez, who was wearing a red shirt, red and black hat, and black basketball shorts, got into the back seat. The defendant passed the gun to Rodriguez; Rodriguez got out of the car and walked up the ramp at 16 Cabot Street and out of Santiago's sight with his hand in the front of his basketball shorts. Santiago heard four gunshots and saw Rodriguez run down the ramp and then down Cabot Street toward South Canal Street; once the shots were fired the defendant "just took off" in his car down Cabot Street toward Canal Street. Bystanders saw a man in a red shirt and black shorts shoot Quinones. Quinones died of his gunshot wounds.

The defendant, Colon, Rodriguez, and Santiago were indicted and charged with murder in the first degree, illegal possession of a firearm, and illegal possession of ammunition; the defendant and Rodriguez were tried together. Santiago and Alvarado, each of whom ultimately entered into cooperation agreements with the Commonwealth, both testified for the prosecution at trial.

Discussion. 1. Motion for new trial. We first consider the defendant's challenge to the denial of his motion for a new trial.

A judge may allow a motion for a new trial "if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001) ( rule 30 ). Where, as here, the defendant's motion for a new trial is based on a claim of newly discovered evidence, the defendant must prove "both that the evidence is newly discovered and that it casts real doubt upon the justice of the conviction." Commonwealth v. Wright, 469 Mass. 447, 460 (2014), quoting Commonwealth v. Weichell, 446 Mass. 785, 798 (2006). The defendant also bears the burden of demonstrating that the new evidence is "material and credible." Commonwealth v. Bonnett, 482 Mass. 838, 844 (2019), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). We review a postconviction motion for "a significant error of law or other abuse of discretion" (citation omitted),⁴ Commonwealth v. Forte, 469 Mass. 469, 488 (2014), mindful that "[r]eversal for abuse of discretion is particularly rare where the judge acting on the motion [for a new trial] was also the trial judge." Commonwealth v. Rice, 441 Mass. 291, 302-303 (2004), quoting Commonwealth v. Schand, 420 Mass. 783, 787 (1995).

At the hearing on his motion for a new trial, the defendant's witnesses included John Brady and Amadi Sosa, each of whom testified to having been held at the Hampshire County Jail and House of Corrections (HJHC) with Santiago and Alvarado while the defendant was awaiting trial on this matter.⁵ Both Brady and Sosa testified that while incarcerated, Alvarado said things to them that indicated that Alvarado and Santiago planned to testify falsely against the defendant. Brady testified that Alvarado told him that Santiago was pressuring him to testify at the defendant's and Rodriguez's trial and that Alvarado asked Brady about the penalties for perjury. Similarly, Sosa testified that while he and Alvarado were at HJHC, Alvarado told him that he and Santiago were "lying" in a case in exchange for leniency in a pending firearms prosecution against Santiago. The defendant argued that this was newly discovered evidence that proved that Alvarado and Santiago "engaged in a coordinated campaign to deceive the court and the jury in the defendant's case," thus "cast[ing] real doubt on the justice of the conviction." Wright, 469 Mass. at 460, quoting Weichell, 446 Mass. at 798.

The judge disagreed. Assuming, without deciding, that Brady's and Sosa's accounts were "newly discovered evidence" for the purposes of rule 30, the judge nonetheless rejected the defendant's argument, concluding that neither witness's testimony was credible. In a thoughtful and detailed memorandum of decision, the judge explained the bases for his credibility determinations. As examples, the judge noted that Brady had a motive to testify against Alvarado and highlighted Brady's unlikely claim that although he knew the defendant, he was ignorant of the defendant's gang involvement.⁶ Similarly, the judge considered Sosa's dubious denial of his own gang affiliation and inconsistencies in his testimony about the circumstances under which Alvarado claimed to have lied about the defendant's involvement in the crime, as well as evidence of Sosa's potential bias against the Hampden County District Attorney's Office. The judge also took into account the lack of any specific detail about Alvarado's planned perjury in either Brady's or Sosa's testimony.

We discern no abuse of discretion in the judge's denial of the motion for a new trial. See Forte, 469 Mass. at 488. It was the judge's role to assess...