COMMONWEALTH v. ELEVES (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In October 2015, the defendant, Cynthia A. Eleves, was convicted (1) by a District Court jury of operating a motor vehicle while under the influence of intoxicating liquor (OUI); and (2) by the trial judge on the subsequent offender portion of the complaint. A panel of this court affirmed the judgment and an order denying the defendant's first motion for a new trial in an unpublished decision issued pursuant to our former rule 1:28. Commonwealth v. Eleves, 92 Mass. App. Ct. 1104 (2017). The defendant subsequently filed a second motion for a new trial based on newly discovered evidence. The newly discovered evidence was that, in 2007, the Commonwealth's primary witness, Massachusetts State Police Trooper Leigha Genduso, admitted to committing perjury (and other crimes involving dishonesty) when testifying before a Federal grand jury in 2005. The defendant argues that this admission constituted a “conviction” that would have been admissible to impeach Trooper Genduso, and that such impeachment evidence likely would have changed the verdict in the defendant's case. The motion judge, who also had been the trial judge, denied the motion. On appeal, the defendant contends that the judge erred in concluding that (1) the newly discovered evidence would not have been admissible at trial; and (2) the evidence would not have cast real doubt on the justice of the defendant's conviction. We affirm.

1. Background. Trooper Genduso graduated from the State police academy in May 2014. In October 2015, she was the primary, but not the only, witness against the defendant at her OUI trial.² In 2018, the defendant's appellate counsel saw a news story about an internal affairs investigation into past misconduct by Genduso, which had occurred before she became a State trooper. In 2007, Genduso had testified, under oath and pursuant to a grant of immunity, in Federal District Court against her then-boyfriend about her involvement in his marijuana trafficking operation from around 2001 until 2003. During her testimony, Genduso acknowledged that she had not testified truthfully before the grand jury in 2005 in the underlying proceedings in that case.³ Neither the defendant nor the prosecutor was aware of this information at the time of the defendant's OUI trial. This information served as the basis for the defendant's second motion for a new trial.

2. Discussion. A judge “may grant a new trial at any time if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). To prevail on a motion for a new trial based on newly discovered evidence, the defendant “must demonstrate, first, that the evidence was previously unknown to [her] or not reasonably discoverable before trial and, second, that the evidence ‘casts real doubt on the justice of the conviction.’ ” Commonwealth v. DiBenedetto, 475 Mass. 429, 438 (2016), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). “[T]he judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial.” Grace, supra at 306. See Commonwealth v. Wright, 469 Mass. 447, 461-462 (2014). “The standard is not whether the verdict in fact would have been different, but whether there is a meaningful risk that it would have been.” DiBenedetto, supra at 439. The judge must examine the evidence that the jury did not hear and consider, deciding “not only whether it is material and credible, but whether it is admissible.” Wright, supra at 462. See Commonwealth v. Weichell, 446 Mass. 785, 799 (2006) (defendant “bears the burden of demonstrating that any newly discovered evidence is admissible”); Commonwealth v. Lopez, 433 Mass. 406, 416 (2001).

“Whether an appeal is from the granting or the denial of a motion for a new trial, an appellate court will examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.” Grace, 397 Mass. at 307. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). An appellate court affords special deference to the rulings of a motion judge who, as in this case, was also the trial judge. See Grace, supra. See also Commonwealth v. Sullivan, 469 Mass. 340, 351 (2014). In such circumstances, reversal of the denial of a motion for a new trial for abuse of discretion is particularly rare. See Commonwealth v. Santiago, 458 Mass. 405, 414 (2010).

In her order, the motion judge stated that the parties had agreed that, at the time of the defendant's trial, neither party was aware of Trooper Genduso's testimony in 2007. The judge put aside the question whether reasonable pretrial diligence by the defendant could have uncovered such testimony, and she proceeded to consider whether the defendant had shown that the newly discovered evidence would have been admissible at the defendant's trial. Similarly, we assume without deciding that the newly discovered evidence proffered by the defendant was, in fact, newly discovered. See Commonwealth v. Lessieur, 472 Mass. 317, 331-332, cert. denied, 136 S. Ct. 418 (2015); Wright, 469 Mass. at 461.

The defendant contends that Trooper Genduso's admissions, made while under oath at her then-boyfriend's trial, should be admissible for impeachment purposes, regardless of whether Genduso was charged with any crimes. That being the case, the defendant argues that she was entitled to a new trial because Genduso was a critical witness for the Commonwealth, and the newly discovered evidence cast real doubt on the justice of the defendant's conviction. Contrary to the defendant's position, we conclude that the newly discovered evidence did not cast real doubt on the justice of the defendant's conviction because such evidence would not have been admissible as a conviction in the first instance.

“The general rule in the Commonwealth is that a party may impeach a witness by attacking the witness's character for truthfulness, but only through general reputation evidence, or evidence of a witness's prior criminal convictions in conformity with the requirements of G. L. c. 233, § 21.” Commonwealth v. Almonte, 465 Mass. 224, 241 (2013) (declining to abandon long-standing limitation on type of evidence admissible to show untruthful character). See Commonwealth v. Daley, 439 Mass. 558, 563 (2003). That is to say, “specific instances of misconduct showing the witness to be untruthful are not admissible for the purpose of attacking ․ the witness's credibility” (citation omitted).⁴ Commonwealth v. Lopes, 478 Mass. 593, 606 (2018) (no abuse of discretion where judge excluded evidence that, five years earlier, key prosecution witness had been suspended for lying in internal affairs investigation on personal matter). See Commonwealth v. Frey, 390 Mass. 245, 249 (1983) (witness could not be impeached by showing that she testified falsely in collateral civil proceeding). See also Commonwealth v. Buzzell, 79 Mass. App. Ct. 460, 463 (2011), quoting Commonwealth v. Podkowka, 445 Mass. 692, 696 (2006) (“Generally, a witness cannot be impeached by use of a specific act of misconduct not resulting in a conviction”); Mass. G. Evid. § 608(b) (2020).

As mentioned, the use of evidence of a prior criminal conviction to impeach the credibility of a witness is permitted by G. L. c. 233, § 21.⁵ “[T]he term ‘conviction’ as used in the statute means a judgment that conclusively establishes guilt after a finding, verdict, or plea of guilty ․ In a criminal case, the sentence is the judgment.” Forcier v. Hopkins, 329 Mass. 668, 670-671 (1953). See Commonwealth v. Jackson, 45 Mass. App. Ct. 666, 670 (1998) (“a conviction occurs when there has been a finding of guilty by a jury or a judge at a jury-waived trial, the entry of a formal guilty plea, or an admission to sufficient facts [for a finding of guilty]”). See also Commonwealth v. Bruneau, 472 Mass. 510, 515-516 (2015). “For the purpose of impeachment, a conviction may be ‘nothing less than a final judgment.’ ” Wilson v. Honeywell, Inc., 409 Mass. 803, 809 (1991), quoting Attorney Gen. v. Pelletier, 240 Mass. 264, 311 (1922). The conviction can be proved by production of a court record or a certified copy of such record. See Commonwealth v. Puleio, 394 Mass. 101, 104 (1985); Mass. G. Evid. § 609(a).

Here, Trooper Genduso's admission in Federal District Court that she lied during her testimony to a grand jury simply does not constitute a criminal “conviction.” The defendant candidly acknowledges that Genduso's admission is technically outside the scope of the statute. As such, the defendant did not satisfy her burden of demonstrating that this newly discovered evidence would have been admissible pursuant to G. L. c. 233, § 21, to impeach Genduso's credibility at the defendant's trial. We decline the defendant's invitation to expand the established limitation on the type of admissible evidence of untruthful character to allow “a party on cross-examination of a witness [to] inquire into the details of prior instances of misconduct if probative of the witness's character for veracity.” Almonte, 465 Mass. at 241. See Lopes, 478 Mass. at 606 n.11. Accordingly, we conclude that the judge did not abuse her discretion in denying the defendant's second motion for a new trial.⁶

Order denying second motion for new trial affirmed.

FOOTNOTES

2.   Massachusetts State Police Trooper Kyle Flanagan was the “backup” officer on the scene. The defendant admitted to him that “she had two or three margaritas” at a restaurant in Woburn. He testified that her eyes “were glossy, bloodshot” and she was unsteady on her feet. He also observed her perform several field sobriety tests, and inventoried her vehicle, where he found three small bottles of wine, one of which was partially empty.

3.   Genduso testified in 2007 as follows:Q.: “So when you testified before the grand jury after understanding [the meaning of perjury], you told the truth?”A.: “Apparently I didn't.”Q.: “Apparently you didn't?”A.: “That's correct.”Q.: “So you told -- well, you told the grand jury that you never counted the money, right? Is that right?”A.: “That's correct.”Q.: “And you also told the grand jury that the day that [your then-boyfriend] was arrested you gave the money to [his friend]. And that's not true either, is it?”A.: “No. But I've had a long time to think about it since that last grand jury appearance.”Q.: “And your memory is better now?”A.: “It's a lot better considering I've been thinking about it for such a long time. There are also places and events that I don't remember.”․Q.: “And by the way, there's no question in your mind that you lied at the grand jury, right?”A.: “Not today, though.”

4.   The Supreme Judicial Court has carved out narrow exceptions to this rule, “allowing evidence of prior false accusations of rape to impeach a witness's credibility in rape and sexual assault cases.” Commonwealth v. Lopes, 478 Mass. 593, 606 n.11 (2018). See Commonwealth v. LaVelle, 414 Mass. 146, 151-152 (1993); Commonwealth v. Bohannon, 376 Mass. 90, 94-95 (1978), S.C., 385 Mass. 733 (1982). The circumstances presented here do not fall within the narrow and limited exceptions contemplated by Bohannon and its progeny.

5.   General Laws c. 233, § 21, provides that “[t]he conviction of a witness of a crime may be shown to affect his credibility, except as [precluded by specified time limitations].”

6.   We note that the defendant has acknowledged that, absent Trooper Genduso's testimony, the evidence would have satisfied the standard articulated in Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979).