COMMONWEALTH v. James J. STOKES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following his 1970 conviction of murder in the second degree and the denial of five previous motions for a new trial,2 the defendant appeals from the denial of his motion for postconviction relief based on claims of newly discovered evidence, Brady violations, and ineffective assistance of counsel.3 We discern no cause to disturb the order denying the defendant's motion, and affirm, addressing the defendant's claims in turn.4
1. Newly discovered evidence. A defendant seeking a new trial based on newly discovered evidence has the burden of showing that the evidence is both “newly discovered ․ and that it casts real doubt on the justice of the conviction” (quotation and citation omitted). Commonwealth v. Brown, 71 Mass. App. Ct. 743, 748 (2008). As the motion judge observed, all evidence the defendant describes as newly discovered was either known to the defendant at the time of trial, known to him soon after trial and before his several appeals, or is consistent with other evidence or testimony presented at trial and therefore does not cast real doubt on the justice of his conviction. As such, the defendant's claim was properly rejected.
2. Brady violations. The defendant alleges that the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). “To obtain a new trial on the basis of nondisclosed exculpatory evidence, a defendant must establish (1) that the evidence [was] in the possession, custody, or control of the prosecutor or a person subject to the prosecutor's control; (2) that the evidence is exculpatory; and (3) prejudice” (quotations omitted). Commonwealth v. Sullivan, 478 Mass. 369, 380 (2017), quoting Commonwealth v. Murray, 461 Mass. 10, 19, 21 (2011).
a. Doyle affidavit. The defendant contends that the Commonwealth failed to disclose evidence, contained in an affidavit of Boston police officer John Doyle, that its primary witness, Raymond DeMore, was working as an informant for the Boston Police Department at the time of his trial, and that the failure to disclose this fact prejudiced him.5 We discern no error of law or abuse of discretion in the motion judge's conclusion that the Commonwealth's failure to disclose DeMore's informant status was not prejudicial. At trial, defense counsel elicited testimony showing DeMore was working closely with police, including DeMore's own admission that he was questioned “close to every night,” and was providing information related to the defendants. As observed by the motion judge, this evidence “could have raised the inference of bias, even without the explicit reference to DeMore's status as an informant.” In any event, “ ‘[e]ven if the impeachment of [DeMore] at trial on the bias at issue was not as effective or potent as it might have been ․ that purpose was in fact accomplished’ where [the] jury were generally aware of [his] bias.” Commonwealth v. Sullivan, 478 Mass. 369, 384 (2017), quoting Commonwealth v. Elangwe, 85 Mass. App. Ct. 189, 196 (2014). “It is well established that ‘[n]ewly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial.’ ” Commonwealth v. Lo, 428 Mass. 45, 53 (1998), quoting Commonwealth v. Ramirez, 416 Mass. 41, 47 (1993).
b. Brody report. The defendant's claim that the Brody report (related to a silicone cast of a partial footprint found at the crime scene) was exculpatory is without merit because the record shows that the cast was inconclusive and could not be used for identification. Additionally, the defendant has known about the existence of the Brody report for many years — if not decades — and has failed to raise the claim in any of his prior appeals. As such, the motion judge correctly determined that he waived the argument.
3. Zalkind memorandum. There is no merit to the defendant's claim that the Zalkind memorandum, which (the defendant claims) shows that the prosecution was instructed to withhold evidence from the defense, supports the other alleged Brady violations. Whatever the Zalkind memorandum may mean, it does not support the defendant's claims that the Doyle affidavit and the Brody report were “Brady materials.”6
4. Ineffective assistance of counsel. There is likewise no merit to the defendant's claim that his trial counsel was constitutionally ineffective by reason of his failure to impeach DeMore's testimony based on the assertion that he testified only to matters that were publicly reported in newspapers. As a threshold matter, we note that the claim is waived by his failure to raise it in any of his prior motions. In any event, as the motion judge observed, the trial transcript discloses that there was testimony to the effect that DeMore read the newspaper and clipped articles related to the case. Based on such testimony, the jury were aware that DeMore obtained information from the newspaper, and could have considered whether such public reports were the source of his knowledge. Accordingly, the defendant has not established that trial counsel's performance fell “measurably below that which might be expected from the ordinary fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), or that “better work [by counsel] might have accomplished something material for the defense.” Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).7
Order denying motion for postconviction relief affirmed.
2. At trial the jury convicted the defendant of murder in the first degree; the Supreme Judicial Court reduced the charge to murder in the second degree in its disposition of the defendant's direct appeal. See Commonwealth v. Rego, 360 Mass. 385, 396-397 (1971).
3. Additionally, the defendant claims that justice may not have been done due to his young age at the time of trial and his consequent inability to assist counsel in formulating his defense.
4. In evaluating the defendant's claims of newly discovered evidence and Brady violations, we have confined our analysis to those argued in his briefs.
5. We note that the record does not establish that the Doyle affidavit was in fact withheld from the defense. Though appellate counsel represents that trial counsel is still alive, appellate counsel also represents that trial counsel has no memory of whether the affidavit was disclosed to him before trial. The Commonwealth and the defendant offer competing theories, drawn from the record, on whether the affidavit was disclosed, but neither is compelling. The motion judge made no finding on the question, and it is not our function to resolve disputed questions of fact. Like the motion judge, however, we conclude that the defendant would not be entitled to relief even if he were to establish that the affidavit was not disclosed.
6. The defendant's argument regarding the impact of the Zalkind memorandum on the prosecutor's mental processes amounts to little more than speculation.
7. We likewise reject the defendant's broad contention that “justice may not have been done” in this case. The defendant points to no specific evidence to support this claim, and the general contention that the defendant's age at the time of trial made him unable to adequately assist trial counsel in formulating a defense is inadequate, on its own, to warrant a new trial.
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