Fogarty v. Com.

• Citation: 406 Mass. 103,546 N.E.2d 354
• Parties: BRIAN J. FOGARTY v. COMMONWEALTH.
• Decision Date: 16 November 1989
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 354

546 N.E.2d 354

406 Mass. 103

BRIAN J. FOGARTY v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts Suffolk and Berkshire.

Argued Sept. 12, 1989.

Decided Nov. 16, 1989.

Christopher A. Grillo, Fort Lauderdale, Fla., for defendant.

Robert J. Carnes, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

Brian J. Fogarty (defendant) was convicted of assault with intent to murder, assault in a dwelling house with a dangerous weapon, assault and battery by means of a dangerous weapon, and cocaine trafficking. His convictions were affirmed by the Appeals Court, Commonwealth v. Fogarty, 25 Mass.App.Ct. 693, 521 N.E.2d 1058, further appellate review denied, 402 Mass. 1104, 525 N.E.2d 678 (1988).

He now appeals from the denial of postconviction relief in two proceedings in the Supreme Judicial Court for Suffolk County to set aside the Appeals Court's decision upholding his convictions and to reinstate his appeal, and for stay of execution and admission to bail pending appeal of the denial of that relief. He also appeals from the denial of motions before the trial judge for a new trial and for the judge's recusal from hearing the new trial motion. ¹ All appeals have been consolidated for review by this court. We affirm the orders of both the single justice and the trial judge.

The Appeals Court's opinion affirming the defendant's convictions contains an error. In the section upholding the judge's rejection of motions to continue the trial and to permit counsel to withdraw, the court states the following: "In a recorded conference between the defendant and Ms. [Quigley], a transcript of which was read by the judge before he ruled on the matter, they referred to a clash of personalities and differences as to tactics. Ms. [Quigley] indicated, however, that she was prepared for trial " (emphasis added). Commonwealth v. Fogarty, supra 25 Mass.App.Ct. at 697, 521 N.E.2d 1058. Because the conversation in which Quigley informed Fogarty she was ready to try his case occurred on June 23--the day after the judge had denied the motion to withdraw--it would have been impossible for the judge to have read a transcript containing Quigley's assessment of her preparedness prior to ruling on the motion. The Commonwealth acknowledges that this statement is erroneous.

The defendant, attributing unwarranted significance to this relatively innocuous mistake, commenced an action seeking to vacate the Appeals Court's decision and to reinstate his appeal on the ground of alleged judicial misconduct. See G.L. c. 211, § 3 (1988 ed.). ² A single justice denied relief with leave to file a motion for a new trial. The defendant then applied for stay of execution of sentence and admission to bail; ³ this too was denied by the single justice. The defendant appealed from both these rulings and submitted a pro se brief to this court.

Subsequently, the defendant's new counsel filed motions in the Superior Court for new trial and for the trial judge to recuse himself from hearing the new trial motion. The motion for a new trial sets out as error the same issues raised on appeal (trial judge's denial of motions for withdrawal and continuance and ineffective assistance of trial counsel) and in the proceeding under c. 211, § 3 (alleged judicial misconduct). In a memorandum in support of the motion, new counsel also asserted that the defendant had discovered, only after the Appeals Court's decision, that Quigley had not resolved a conflict of interest arising out of her simultaneous representation of a Commonwealth witness against Fogarty, as she had told him she would. ⁴ The affidavits submitted with the motion for a new trial did not address either the alleged judicial misconduct or the claim of a newly discovered conflict of interest of trial counsel.

On January 10, 1989, the trial judge denied the recusal motion. He then summarily denied the motion for a new trial without a hearing, stating that "this motion raises no question which could not have been raised in the original appeal." The defendant, represented by the same counsel who filed these motions, appealed. We begin our review with the single justice's decisions.

1. Denial of relief under G.L. c. 211, § 3. Decisions of a single justice will not be disturbed on appeal absent clear error of law or abuse of discretion. Palaza v. Superior Court, 393 Mass. 1001, 1002, 469 N.E.2d 60 (1984). Schipani v. Commonwealth, 382 Mass. 685, 409 N.E.2d 1300 (1980). Neither occurred here.

The defendant's conclusion that the misstatement in the Appeals Court's decision is the result of impermissible ex parte communication between the trial judge and the Appeals Court hinges, not on any facts or affidavits, but merely on his bare assertions, in a pro se motion, that it "appears" to be so, and that this conclusion is "inescapable." ⁵ His contention of posttrial judicial misconduct is lacking its essential factual underpinning and is, therefore, without merit. The defendant's other claims before the single justice were decided adversely to him by the Appeals Court.

Clearly, errors claimed and rejected on appeal along with an unsupported charge of posttrial judicial misconduct fail to demonstrate a "substantial claim of violation of his substantive rights and irremediable error" necessary to justify the extraordinary relief of G.L. c. 211, § 3. Morrissette v. Commonwealth, 380 Mass. 197, 198, 402 N.E.2d 492 (1980). Schipani v. Commonwealth, supra. Where the normal process of appeal and motions for postconviction relief are available to examine the claims cited by the defendant, there exist no "exceptional circumstances" requiring relief under c. 211, § 3. Commonwealth v. McCarthy, 375 Mass. 409, 414, 378 N.E.2d 429 (1978), and cases cited. See Simmons v. Commonwealth, 403 Mass. 1004, 528 N.E.2d 875 (1988).

Because we conclude that the single justice correctly denied the defendant relief under G.L. c. 211, § 3, it is unnecessary for us to review his appeal from the denial of his request for a stay and bail pending review by this court. The issue has become moot.

2. Denial of the motion for a new trial. The trial judge denied the motion without a hearing on the ground that "this motion raises no question which could not have been raised in the original appeal." The defendant seeks review of this action.

The defendant's motion for a new trial is based primarily on the denial of his requests for a continuance and for leave for withdrawal of counsel, and a claim of ineffective assistance of trial counsel. The trial judge correctly observed that these claims were either raised on appeal and rejected, or could have been raised through this process and were not. ⁶ "[A] motion for a new trial may not be used as a vehicle to compel a trial judge to review and reconsider questions of law" on which a defendant has had his day in an appellate court, or forgone that opportunity. Commonwealth v. McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973). While a judge does have the discretion to rehear such questions, this court has recommended restricting the exercise of that power to "those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449, 399 N.E.2d 475 (1980). In this case, the only additional facts supplied by the defendant to bolster arguments already heard by the Appeals Court were assertions in affidavits by the defendant, his wife, his chosen substitute counsel for trial, a friend, and an alleged potential alibi witness about perceived bias of trial counsel against her client, her friendly attitude toward the prosecuting attorney, and her failure to call certain witnesses. The judge had the power and the duty to determine the weight and import of these affidavits, the credibility of the affiants, and the fact that they raised no issues unknown to the defendant at the time of his trial. Commonwealth v. Thomas, 399 Mass. 165, 167, 503 N.E.2d 456 (1987). Commonwealth v. Little, 384 Mass. 262, 269, 424 N.E.2d 504 (1981). We conclude that there was no abuse of discretion on the judge's part to refuse to reconsider these questions.

The defendant's claim of newly discovered conflict of interest on the part of trial counsel is such that it requires further elaboration. By his own admission, the defendant was aware that his trial counsel had continued representing a Commonwealth witness, Sergeant Louis Peyron, in his divorce case, in anticipation that the defendant would accept an offer to plead guilty to reduced charges and would not be tried. The defendant reveals that, once he changed his mind on the plea offer, and it became clear that his case would proceed to trial, trial counsel assured him that she would arrange for another attorney to handle this divorce case. Not once did the defendant raise the issue before the trial judge of a possible conflict of interest arising out of counsel's relationship with Sergeant Peyron--even though the defendant personally addressed the judge on two successive days regarding Quigley's withdrawal motion and his own request for a continuance in order to substitute counsel. Furthermore, there was no conflict of interest claim raised in his direct appeal. Commonwealth v. Fogarty, 25 Mass.App.Ct. 693, 699-700, 521 N.E.2d 1058 (1988). Even in his motion for a new trial, the defendant only alludes to the facts concerning his trial counsel's representation of Sergeant Peyron which were known to him at the time of his request for a continuance.

In his memorandum supporting the motion for a new trial, however, the defendant's new counsel asserts a newly discovered dimension to this simultaneous representation. He states that the law partner of the defendant's trial counsel continued to represent Sergeant Peyron throughout Quigley's conduct of Fogarty's defense, after she had assured the defendant that she...