COMMONWEALTH v. KOONER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial in 2017, the defendant was convicted of assaulting and battering his then-wife. On the same day that his conviction was affirmed by a panel of this court,² the defendant filed a motion for a new trial in the trial court based on a claim of newly-discovered evidence, which he presented in the form of an affidavit. In broad strokes, the affidavit was from a person who claimed that the victim volunteered to him that she had fabricated the charges of abuse in order to gain an advantage in her divorce proceedings with the defendant. In margin endorsements, the judge (who was also the trial judge) denied both the motion for new trial, as well as the request for an evidentiary hearing; the judge also denied the defendant's subsequent motion for reconsideration. The defendant now appeals the denial of those motions; we affirm.

In connection with his motion for new trial, the defendant claimed that his attorney had received an unsolicited affidavit from Tirvinder Sing Marahar, a person defense counsel did not know. It is unexplained how Marahar knew defense counsel's name or address, that defense counsel represented the defendant, or that the information contained in the affidavit might be of interest to defense counsel. Silence on these important details bears on the credibility of the assertion that the affidavit was “unsolicited.” In any event, turning to the substance of the affidavit, Marahar (a truck driver from Canada), who does not allege he had ever previously met the victim,³ claimed that he had bumped into her at a temple in Oklahoma. There was nothing in the record before the judge to suggest that the victim had any connection to Oklahoma; the parties had resided in Massachusetts while married.⁴ Despite the lack of prior connection between them, Marahar averred that the victim averred that “she had played marriage fraud,” planned “to extract a huge amount of money from her ex-husband,” “all cases filed by her are false and fabricated, as ․ her ex-husband, never ever physically or emotionally abused and/or attacked her ․ [and] it was very easy for her to confuse the Jury by her enactment of act/drama and by shedding crocodile tears.” Marahar also stated that the victim had with her Indian court documents “show[ing her] in a very bad light,” which she showed to Marahar.

This encounter supposedly occurred on November 6, 2018, approximately one year after the defendant's conviction. Because the proposed evidence did not exist at the time of trial, it is not “newly-discovered,” but rather “newly available.” See Commonwealth v. Sullivan, 469 Mass. 340, 350 n.6 (2014). However, “[t]he standard applied when reviewing a motion for a new trial based on newly available evidence is the same as that applied to such a motion based on newly discovered evidence.” Commonwealth v. Bonnett, 482 Mass. 838, 844 n.14 (2019), citing Sullivan, supra. “To prevail on a motion for a new trial based on new evidence, a defendant must establish ‘both that the evidence is new[ ] ․ and that it casts real doubt on the justice of the conviction.’ ” Bonnett, supra at 844, quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). To cast real doubt, new evidence “must be material and credible[,] ․ carry a measure of strength in support of the defendant's position[,] ․ [and] probably would have been a ‘real factor’ in the jury's deliberations” (quotations and citations omitted). Bonnett, supra. We review the judge's determination to see whether the judge “committed ‘a significant error of law or other abuse of discretion,’ ” and give special deference where, as here, the motion judge was the trial judge. Commonwealth v. Scott, 467 Mass. 336, 344 (2014), quoting Commonwealth v. Sherman, 451 Mass. 332, 334 (2008).

Here, we discern no abuse of discretion in the judge's conclusion that the proffered evidence did not cast “real doubt” on the defendant's conviction. The affidavit lacked essential indications of trustworthiness, and there was no reason to think that the information would play any role in a jury's consideration of the evidence against the defendant. We note in particular that the evidence of abuse was corroborated by medical records. See, e.g., Bonnett, 482 Mass. at 848 (judge's conclusion that new evidence was not credible or material and did not cast real doubt was not abuse of discretion in light of evidence offered against defendant at trial).

For similar reasons, the judge did not abuse his discretion in denying the request for an evidentiary hearing. “A judge may make the ruling based solely on the affidavits and must hold an evidentiary hearing only if the affidavits or the motion itself raises a ‘substantial issue’ that is supported by a ‘substantial evidentiary showing.’ ” Scott, 467 Mass. at 344, quoting Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). To raise a substantial issue, a defendant's motions and supporting materials “must at least contain sufficient credible information to cast doubt on the issue” (quotation omitted). Commonwealth v. Barry, 481 Mass. 388, 401 (2019). Here, the defendant's motion did not rise to that level.

Orders denying motions for new trial and for reconsideration affirmed.

FOOTNOTES

2.   See Commonwealth v. Kooner, 94 Mass. App. Ct. 1116 (2019).

3.   Marahar stated that, when he had lived in India, he had met the victim's grandfather.

4.   In 2015, the wife had gone on temporary work assignment to California.