COMMONWEALTH v. LUZ (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following his convictions of indecent assault and battery on a person over fourteen years of age, and assault and battery, the defendant filed a motion for new trial, claiming that newly discovered evidence cast doubt on the justice of the convictions and that the Commonwealth's questioning of the defendant about his failure to call police following the altercation underlying the charges gave rise to a substantial risk of a miscarriage of justice. The motion judge (who was also the trial judge) denied his motion, and the defendant's appeal from that denial was consolidated with his direct appeal from the convictions.² We discern no error of law or abuse of discretion in the order denying the defendant's motion for new trial, and affirm the convictions.

1. Newly discovered evidence. With his motion for new trial, the defendant submitted an unsworn letter from a doctor, expressing the opinion that the victim's hernias, which required surgery four months after the assault, could not have been caused by the defendant's assault and battery against the victim. The motion judge held an evidentiary hearing, but the defendant presented no testimony from any witnesses.

By failing to present the doctor for cross-examination, and by failing even to present a sworn affidavit from the doctor in support of his motion, the defendant failed to make an adequate evidentiary showing that the doctor's opinion was reliable. Moreover, the medical records from the victim's treatment at the University of Massachusetts Medical Center Emergency Department suggest the possibility that the victim's injuries were in fact caused by the altercation. In the absence of sworn testimony or an opportunity for cross-examination, the motion judge was well within her discretion not to credit the letter of opinion by the doctor.

2. Testimony concerning the defendant's failure to call police after the altercation. The defendant's claim that it was error to allow him to testify that he did not call police after the altercation (based on his contention that such testimony constituted impermissible comment on his prearrest silence) is without merit, because the challenged testimony was elicited by the defendant's trial counsel as part of her direct examination. Having elicited that testimony on direct examination, the defendant may not now complain about the Commonwealth's limited further inquiry as part of its cross-examination of him. See Commonwealth v. Johnson, 46 Mass. App. Ct. 398, 405-406 (1999).³

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

2.   On appeal, the defendant's arguments are directed solely to the denial of his motion for new trial.

3.   The defendant raised no claim in his motion for new trial that his trial counsel was ineffective by reason of his pursuit of that inquiry, nor did he offer any evidence to suggest that trial counsel's choice to pursue the inquiry was not based on strategic considerations. Moreover, we note that the Commonwealth made no further mention of the topic during the remainder of the trial, including during closing argument. Contrast Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 543-544 (2006), S.C., 449 Mass. 1035 (2007).