COMMONWEALTH v. FLORES (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his second postconviction motion to reduce the verdict, pursuant to Mass. R. Crim. P. 25 (b) (2), as amended, 420 Mass. 1502 (1995). We affirm.

Procedural background. In 2011, the defendant was convicted, following a jury trial, of murder in the second degree and unlawfully possessing a firearm without a firearm identification card. The defendant timely appealed from his convictions, and, while that appeal was pending, filed his first rule 25 (b) (2) motion to reduce his verdict from murder in the second degree to manslaughter. Following review, the motion judge, who was also the trial judge, denied the motion to reduce the verdict.

In September 2013, a panel of this court affirmed the defendant's convictions in an unpublished decision under our former rule 1:28. Commonwealth v. Flores, 84 Mass. App. Ct. 1110 (2013) (Flores I). The Supreme Judicial Court denied further appellate review. Commonwealth v. Flores, 466 Mass. 1108 (2013).

In 2014, the defendant moved for a new trial, pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), and in 2015, moved for postconviction discovery. Following briefing by the parties and an evidentiary hearing, the judge acting on these motions, who, again, was also the trial judge, denied both motions in written orders. The defendant again timely appealed from both denials.

In April 2018, a panel of this court issued an unpublished decision pursuant to our former rule 1:28 affirming the denial of the defendant's motion for a new trial and his motion for postconviction discovery. Commonwealth v. Flores, 93 Mass. App. Ct. 1107 (2018) (Flores II). The Supreme Judicial Court denied further appellate review. Commonwealth v. Flores, 480 Mass. 1102 (2018).

In March 2020, the defendant again moved to reduce his verdict on the first count from murder in the second degree to manslaughter, pursuant to Mass. R. Crim. P. 25 (b) (2). Because the trial judge had retired, the matter was assigned to another judge. Following a review of the motion papers, the case file, the trial judge's memoranda of decision and orders denying the defendant's first motion to reduce his verdict and the defendant's motion for a new trial, as well as the two Appeals Court decisions, the motion judge denied the defendant's second rule 25 (b) (2) motion on January 29, 2021. This appeal followed.

Discussion. “We review a judge's decision not to reduce a verdict under Mass. R. Crim. P. 25 (b) (2) for abuse of discretion.” Commonwealth v. Reavis, 465 Mass. 875, 891 (2013). A judge's decision is an abuse of discretion when we conclude that the judge “made a clear error of judgment in weighing the factors relevant to the decision, ․ such that the decision falls outside the range of reasonable alternatives” (quotations and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).

“The authority of the trial judge under rule 25 (b) (2) to reduce the verdict or grant a new trial in criminal cases is much like [the Supreme Judicial Court's] authority to review so-called capital cases -- convictions of murder in the first degree -- under G. L. c. 278, § 33E.” Commonwealth v. Woodward, 427 Mass. 659, 666 (1998). “[A] new trial or verdict reduction may be proper even when the evidence can legally support the jury's verdict.” Commonwealth v. Carter, 423 Mass. 506, 512 (1996). “The judge's power under rule 25 (b) (2) ․ may be used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge's own error, or ․ the interaction of several causes.” Woodward, supra at 667. The purpose of the judge's power under rule 25 (b) (2) is “to ensure that the result in every criminal case is consonant with justice.” Id. at 666. “In passing on the question whether a finding of a lesser degree of guilt should be entered, the judge is not foreclosed from considering the defendant's testimony, particularly uncontroverted testimony, and, if [she] believes it, relying on it.” Commonwealth v. Keough, 385 Mass. 314, 321 (1982). But “a judge should use [her] power sparingly under rule 25 (b) (2) to reduce a verdict,” and “should not sit as a ‘second jury.’ ” Id., quoting Commonwealth v. Earltop, 372 Mass. 199, 204 (1977).

Where the trial judge has decided a motion to reduce the verdict pursuant to rule 25 (b) (2), we will give the judge's decision special deference “because [the trial judge] has the advantage of face to face evaluation of the witnesses and the evidence at trial,” and is therefore “in a far better position than we are to make the judgment required by the rule.” Reavis, 465 Mass. at 891, quoting Woodward, 427 Mass. at 668. Still, “when a substitute judge decides a rule 25 (b) (2) motion, all that is lost is any effect that first-hand observation of the trial has on an already discretionary decision,” and “[a] defendant who ‘loses’ a judge's first-hand view of some of the evidence has lost only a de minimis portion of the considerations that enter into the rule 25 (b) (2) decision.” Carter, 423 Mass. at 512.

Finally, “[t]he fact that there is no time limit for filing motions under the second sentence of [rule 25 (b) (2)] ․ does not mean that the rule authorizes a duplicative determination of claims.” Commonwealth v. Arias, 488 Mass. 1004, 1006 (2021). See Keough, 385 Mass. at 318 n.3 (“Experience under rule 25 [b] [2] may suggest that [the Supreme Judicial Court] should amend the rule to impose time limits on the filing of motions under the second sentence of rule 25 [b] [2]” in order to minimize “duplication of judicial effort” in relitigating claims that have already been decided). The Massachusetts Rules of Criminal Procedure are “construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay.” Mass. R. Crim. P. 2 (a), 378 Mass. 844 (1979). “[This] construction ․ supports application of principles of direct estoppel to preclude review of claims ‘already litigated and determined,’ regardless of the procedural vehicles selected.” Arias, supra, quoting Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806 (2021).

These principles direct the outcome of this case. The defendant's arguments in his second motion to reduce the verdict are essentially premised on the version of events he offered in his trial testimony, i.e., that the victim was armed and intended to rob the defendant, and the defendant was either under reasonable provocation, or used excessive force in defending himself from the victim's attack. A panel of this court addressed these arguments, and found them unpersuasive, in the defendant's direct appeal from his convictions. Flores I, 84 Mass. App. Ct. at 1110. There, the panel wrote:

“The defendant makes the additional argument that his conviction should be reduced to voluntary manslaughter because the evidence showed that this was a ‘killing fueled by sudden passion induced by reasonable provocation, sudden combat, or excessive force in self-defense.’ We disagree.

“Apart from his not having pursued any claim of mitigation at trial, other than excessive force in self-defense ․, the defendant failed to support voluntary manslaughter with the required proof of intentional conduct. Not only did the defendant disclaim an intent to kill the victim, there was no evidence that he did so while under the sway of reasonable provocation. See Commonwealth v. Acevedo, 446 Mass. 435, 443 (2006). Rather, the defendant claimed he acted purely out of fear for his life and that he and the victim were struggling for the weapon when it discharged. The defendant's claim hinges on believing that he accurately assessed the danger and that he properly responded to that danger. When paired with the additional evidence that immediately [after shooting the victim] the defendant cleaned the apartment and disposed of the body, the evidence does not evince a loss of self-control, but instead reflects a presence of mind that is inconsistent with the emotional state required for reasonable provocation. Absent some evidence that the defendant was so ‘provoked’ that he was incapable of reflection or restraint and that he had not ‘cooled off’ by the time of the killing, he cannot possibly avail himself of a defense based on reasonable provocation” (citations omitted). Flores I, supra.

Thus, where the arguments raised in the defendant's second rule 25 (b) (2) motion have been previously raised and actually determined, the defendant is directly estopped from raising them again, and denial of his second motion was proper. Arias, 488 Mass. at 1007-1008. Although the defendant did not appeal from the denial of his first rule 25 (b) (2) motion, and the arguments he seeks to press now were determined in his direct appeal and in his appeal from the denial of his motion for a new trial, “[p]rinciples of direct estoppel are not ․ so circumscribed as to be limited to cases in which the defendant seeks the exact same relief that previously was denied.” Id. at 1007.

Even if direct estoppel does not end the matter, the defendant would fare no better as he has given no reason for us to second guess the trial judge's assessment that “[t]he defendant's testimony was, at times, so lacking in credibility as to cast doubt on his self-defense testimony,” and that the Commonwealth's evidence was “strong.” The judge acting on the defendant's second motion to reduce the verdict also could adopt this assessment of the evidence coming, as it did, from the trial judge. In other words, although the defendant continues to argue that he acted in self-defense against an armed intruder to his own apartment, the jury rejected that view of the evidence, the Commonwealth's evidence of murder was strong, and the defendant's testimony lacked credibility. In the circumstances, the judge did not abuse discretion in denying the motion to reduce the verdict, even were it not directly estopped.²

Conclusion. For these reasons, the judge's January 29, 2021 order denying the defendant's second rule 25 (b) (2) motion to reduce the verdict from murder in the second degree to manslaughter is affirmed.

So ordered.

affirmed

FOOTNOTES

2.   “Other points, relied on by the defendant[ ] but not discussed in this [memorandum and order], have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).