COMMONWEALTH v. Eugene FLYNN.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Eugene Flynn, appeals from an order denying his motion for a new trial after his conviction of one count of assault by means of a dangerous weapon, G. L. c. 265, § 15B (b). We affirm.
Background. The trial judge found the following facts. On August 5, 2016, the defendant fired John Conille, the victim, at a job site. The victim asked for his wages and moved to collect his personal belongings from a truck he had been operating. However, the defendant's brother James got to the truck first and started looking through the victim's personal belongings. The victim knocked on the truck's door. Meanwhile, the defendant went to his brother's motor vehicle and returned to the truck with his hand in his pocket. The victim saw the defendant holding a metal object in his pocket and recognized it to be a gun. While holding the gun, the defendant said to the victim, “Us Irish don't fuck around. Get out of town.” The defendant moved the gun outside his pocket and pointed it at the victim, who became scared and backed away.
Discussion. 1. Ineffective assistance of counsel. For a defendant to successfully argue a motion for a new trial based on ineffectiveness of counsel, they must first show there has been a “serious incompetency, inefficiency, or inattention of counsel - behavior of counsel falling measurably below [that] which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). If a defendant sufficiently shows such conduct, they must then show that the conduct “likely deprived the defendant of an otherwise available, substantial ground of defence.” Id. at 96-97. The defendant has not met his burden here.
The defendant claims his trial counsel failed to prepare adequately, including failing to identify, get statements from, or call as witnesses other eyewitnesses to the event, including the defendant's cousin, Christopher Flynn. The defendant provided an affidavit, as did his cousin. The defendant did not provide an affidavit of his trial counsel or an affidavit from his current counsel explaining his attempts to secure such an affidavit.
A judge may evaluate affidavits “in light of factors pertinent to credibility, including bias, self-interest, and delay” (citation omitted). Commonwealth v. Berardi, 88 Mass. App. Ct. 466, 476 n.12 (2015). Given that the defendant's statements were for the benefit of himself, and the other affidavit was written by his cousin, the motion judge could have properly considered self-interest and bias when denying the defendant's motion for a new trial. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998) (“[t]he judge ․ had the right to reject as not credible the defendant's self-serving, conclusory affidavit”). Moreover, there is no dispute that the defendant lawfully possessed a firearm and was in control of it at the time that the assault with the firearm occurred. That the cousin, who was working elsewhere on the site and came after he heard a commotion, did not see the firearm did not deprive the defendant of a substantial ground of defense. See Saferian, 366 Mass. at 96.2
The defendant also argues his counsel was ineffective by failing to use available text messages and phone records to impeach the victim for denying he drove to the defendant's house the day after the incident. The defendant has provided a screenshot of a text message from a contact named “John Truck Driver” which said, “GM I here at your house awaiting my wages, for my weeks work.” Evidence that a person's name is listed as the sender is “not sufficient alone to authenticate the electronic communication as having been authored or sent by [the person].” Commonwealth v. Purdy, 459 Mass. 442, 450 (2011).
2. Conflict of interest. The defendant argues the motion judge incorrectly denied his motion for a new trial based on ineffectiveness of counsel due to a conflict of interest. Specifically, the defendant argues that a conflict of interest arose because his trial counsel had previously represented Officer Mahoney, one of the responding police officers, in the officer's divorce proceeding eight years earlier.
The Sixth and Fourteenth Amendments to the United States Constitution and article 12 of the Declaration of Rights of the Commonwealth provide criminal defendants with the right to counsel without conflict of interest to other clients. See Commonwealth v. Mosher, 455 Mass. 811, 819 (2010). If a defendant establishes an actual conflict of interest, the defendant has a right to a new trial. Id. “An ‘actual’ or ‘genuine’ conflict of interest arises where the ‘independent professional judgement’ of ․ counsel is impaired, either by his own interests, or by the interests of another client.” Commonwealth v. Stote, 456 Mass. 213, 218 (2010), quoting Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986). The Supreme Judicial Court has found a conflict of interest “ where an attorney represents codefendants with inconsistent or contradictory lines of defense;  where an attorney or an associate maintains an attorney-client or direct and close personal relationship with a material prosecution witness; or  where an attorney has business [or personal] reasons for preferring a verdict unfavorable to the defendant he or she represents.” Mosher, 455 Mass. at 820.
The defendant has the burden of proving the actual conflict of interest and must provide more than “mere conjecture or speculation.” Stote, 456 Mass at 218. Rather, the defendant must provide “sufficient, concrete evidence demonstrating an attorney's divided loyalty such that prejudice is inherent in the representation.” Commonwealth v. Cousin, 478 Mass. 608, 618 (2018). When a defendant claims a conflict of interest resulted in ineffectiveness of counsel, a new trial shall be granted only if the defendant can demonstrate “ ‘material prejudice’ to his defense resulting from the alleged conflict” (citation omitted). Mosher, 455 Mass. at 823.
The defendant has not provided “sufficient, concrete evidence” demonstrating his trial attorney had a conflict of interest. An actual conflict of interest between an attorney and a prosecution witness has only been found where either the attorney had a continuing relationship with the witness who testified about a fundamental issue to the case, or the attorney represented the witness in a matter related to the case at hand. Mosher, 455 Mass. at 820. Here, the event in question occurred in 2016 and the trial was in 2017. The defendant does not offer evidence showing that his trial counsel had represented Officer Mahoney any time since January 2008, eight years before the incident at hand. Likewise, the defendant has not provided evidence that his trial counsel and Mahoney had any sort of ongoing professional or personal relationship. Also, counsel represented Mahoney in a divorce proceeding, something entirely separate from the incident between the defendant and the victim.3
The defendant asserts that his counsel's cross-examination of Mahoney was not vigorous. However, we have reviewed the record and the cross-examination was skillful, with trial counsel using Mahoney's testimony to establish inconsistencies in the victim's version of the crime, and portions of the defendant's testimony that were consistent. By doing so, the defendant's counsel effectively used the cross-examination of Mahoney to cast doubt on whether the gun was ever pointed at the victim. Tactical decisions are ineffective assistance of counsel only if they are “manifestly unreasonable when made.” Commonwealth v. Gaboriault, 439 Mass. 84, 90 (2003).
3. Newly available evidence. The standard for a motion for a new trial based on newly available evidence is the same standard for newly discovered evidence. Commonwealth v. Cintron, 435 Mass. 509, 516 (2001). A motion judge may grant a new trial when “it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). In doing so, a judge must determine “whether there is a substantial risk that a jury would reach a different conclusion if presented with the newly available evidence.” Cintron, supra at 516-517. The decision to grant a motion for a new trial “rests in the sound discretion of the [motion] judge” absent constitutional error. Commonwealth v. Brown, 378 Mass. 165, 170-171 (1979). We may overturn the motion for a new trial only to prevent “manifest injustice.” Id. at 171. Evidence that merely could influence the trier of fact does not result in manifest injustice. Id. Rather, “the evidence ‘must be weighty and of such nature as to its credibility, potency, and pertinency to fundamental issues in the case as to be worthy of careful consideration.’ ” Id., quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 495 (1920). “[N]ewly discovered evidence that is cumulative of evidence admitted at the trial tends to carry less weight than new evidence that is different in kind.” Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986).
The defendant contends that the victim's deposition testimony given after trial in a civil lawsuit is “wholly different” from the victim's testimony at trial, such that it raises doubt about the Commonwealth's evidence. In making this claim, the defendant seeks to discredit the victim's testimony by providing allegedly conflicting statements from the trial testimony and the deposition testimony. However, “impeachment evidence ․ is ordinarily not a proper ground for a new trial.” Blaikie v. District Attorney for Suffolk County, 375 Mass. 613, 619 (1978).
Moreover, the victim's deposition testimony is merely cumulative of his testimony at trial. See Cintron, 435 Mass. at 518 (defendant failed to meet standard for new trial because evidence “would not have differed in any particular way” from testimony at trial). During the direct examination at trial, the victim initially testified that when the defendant made the threatening statement his hand was inside his pocket gripping the gun and then said the threatening statement was made when the defendant's hand was outside his pocket holding the gun. During cross examination, the victim admitted he was unsure whether the defendant was pointing the gun at him. After the trial, in the victim's deposition for a civil lawsuit, he testified that the defendant made the threatening statement while the gun was pointed at him. Adding this testimony to the victim's trial testimony would not add anything new to the evidence because he already presented inconsistent views at trial. Thus, the deposition testimony is cumulative and does not raise a “substantial risk that a jury would reach a different conclusion” if given this evidence. Cintron, 435 Mass. at 516-517.
Order denying motion for new trial affirmed.
2. We also note that the defendant's affidavit is internally inconsistent, stating both that trial counsel could have called other employees as witnesses and that some of the witnesses were not in this country.
3. The defendant relies on Tucker v. United States, 235 F. 2d 238, 240 (9th Cir. 1956), to note that a conflict of interest may be present because of the possibility that in the future the witness may return as a client to counsel. However, the mere possibility of future work is “too tangential to constitute an actual conflict [of interest].” Cousin, 478 Mass. at 624. The defendant did not provide any evidence supporting the possibility his trial counsel has any intention of representing Mahoney again.
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