COMMONWEALTH v. KEVIN NIEVES (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant, Kevin Nieves, was convicted of several charges, including armed kidnapping causing serious bodily injury as to the first victim, assault and battery by means of a dangerous weapon (firearm) causing serious bodily injury as to the first victim, and assault and battery by means of a dangerous weapon (stick) as to the second victim. Following a stay of his direct appeal, the defendant filed a motion for a new trial. The motion judge, who was also the trial judge, denied the motion without an evidentiary hearing.

The defendant appeals from his convictions and from the order denying his motion for a new trial. We affirm.

Background. 1. Facts. The jury could have found the following facts. On the night of August 20, 2018, and the early morning of the next day, the defendant and the victims were at a party in a wooded area referred to as Washington Mountain or October Mountain. Dozens of young adults had gathered there to drink, smoke, and socialize.

On the day of the party, the defendant and his former girlfriend exchanged text messages. They had recently broken up. The defendant thought that the former girlfriend was in a relationship with someone who was coming to the party with her. The defendant sent a text message to her urging her not to go to the party because he had “a bad feeling,” saying that it was “too soon” and he did not know how he was going to react. The defendant also stated, “[H]e's a man, he'll handle his own.” The defendant seemed jealous.

The two victims and the former girlfriend arrived at the party in the first victim's truck at around 11 P.M. During the party, the second victim noticed a man named Luis Delvalle-Rodriguez “lurking around.” At around 1 A.M., the victims heard a partygoer say, “It's going to happen.” Another partygoer told everyone to leave because she thought there was going to be a fight. At that point, the two victims and the former girlfriend decided to leave the party. The first victim's truck was parked at the bottom of a muddy path. The first victim got into the driver's seat, the second victim got into the front passenger seat, and the former girlfriend got in the back. As the first victim reversed the truck, a group of angry men, including the defendant, followed and ran down the path toward the truck. On seeing the group, the former girlfriend told the first victim, “You need to go.” The first victim accelerated to get away, but the truck got stuck in the mud.

When the group of men reached the truck, they banged on it with their hands and tried to open its doors. The group, including the defendant, shouted and yelled, “[G]et out before we start shooting.” The second victim testified that he heard the defendant say, “Come out, or we're going to start shooting.”¹

The first victim was holding the door closed against the defendant, Delvalle-Rodriguez, and others. At some point, the truck's doors unlocked, and the first victim was “ripped” from the truck by the defendant, Delvalle-Rodriguez, and others. The first victim was attacked with fists, parts of wooden pallets, and branches. The second victim was hit with pieces of pallet and branches. The victims fought against the defendant.

Several gunshots then rang out near the truck, and the crowd dispersed. The first victim was then found face down behind the truck in a pool of blood. He suffered life-threatening injuries to his head consistent with gunshot wounds.

At trial, the second victim testified that he saw the defendant and Delvalle-Rodriguez with a firearm. However, he detailed further that he saw the defendant “reach in his waistband and pull something out, and aim.” On cross-examination, the second victim admitted that in his first statement to police, given hours after the incident, he did not mention that the defendant had a firearm, but in a second statement three days later, he stated that the defendant did.

Another partygoer testified that shortly before the shooting, he saw Delvalle-Rodriguez go toward the truck with a bandana over his face. Delvalle-Rodriguez “flashed” a gun that was underneath his shirt and made a “smooching sound ․ [l]ike a kiss” at the partygoer. About thirty seconds later, the gunshots occurred.

Shortly after the defendant's arrest, Delvalle-Rodriguez accidentally video recorded himself on his cell phone admitting that he was the shooter at the incident (hot mic admission). In the video recording, Delvalle-Rodriguez admitted that he shot the first victim. He stated that nobody knew it was him, and that the defendant was blamed instead. Though available to the parties at the defendant's trial, the admission was not introduced in evidence.

2. Proceedings. On the defendant's motion, the defendant's trial was severed from that of Delvalle-Rodriguez and another codefendant; the defendant was tried jointly with Daquan Douglas. In support of severance, the defendant's trial counsel stated that the hot mic admission was expected to be played at trial, and allowing the trial of the defendant with Delvalle-Rodriguez “would essentially require the defendant to prove his innocence or in the alternate impeach [Delvalle-Rodriguez] in the event [Delvalle-Rodriguez] asserts his ‘hot-mic’ confession is a lie.”

Following his jury trial in 2022, the defendant was convicted of several charges, as noted. The defendant was acquitted of charges, including armed assault with intent to murder the first victim. The defendant appealed.

About two months after the defendant's trial, the second victim testified in Delvalle-Rodriguez's trial. The hot mic admission was admitted in evidence at Delvalle-Rodriguez's trial.

On December 5, 2024, after obtaining a stay of his direct appeal, the defendant filed a motion for a new trial alleging that he was “deprived of substantial grounds of defense” because (a) at Delvalle-Rodriguez's trial, the second victim “recanted” his testimony at the defendant's trial that the defendant had a firearm, (b) trial counsel did not admit the hot mic admission in evidence, and (c) trial counsel failed to argue prosecutorial favoritism based on the second victim not being charged in an unrelated home invasion case while the defendant's case was pending. In a well-reasoned memorandum and order, the judge denied the defendant's motion without an evidentiary hearing.

Discussion. 1. Jury instruction on armed kidnapping causing serious bodily injury. The defendant contends that the judge committed reversible error by giving an erroneous jury instruction on the charge of armed kidnapping causing serious bodily injury by way of joint venture. The defendant specifically points to Commonwealth v. Morrison, 494 Mass. 763, 774-776 (2024), to argue that the instruction stating that the crime required that the defendant individually or by way of joint venture possessed the firearm in the course of the assault, and not that the defendant used the firearm himself, “relieved the Commonwealth of its burden of proving that [the defendant] was armed with a firearm during the kidnapping and inflicted serious bodily injury on [the first victim] with that firearm.”

The defendant did not object to the instruction at issue. Accordingly, our review is limited to determining whether any error created a substantial risk of a miscarriage of justice. See Commonwealth v. Desiderio, 491 Mass. 809, 815-819 (2023). See also Commonwealth v. Azar, 435 Mass. 675, 685-687 (2002), S.C., 444 Mass. 72 (2005).

“We evaluate jury instructions as a whole to determine how a reasonable juror would understand them.” Commonwealth v. Carvajal, 496 Mass. 490, 500 (2025). While trial judges are not required to use any particular phrasing, the instructions must convey the correct legal standard, and “[i]nstructions that convey the proper legal standard ․ are deemed correct” (citation omitted). Id.

In the circumstances of this case, the instruction was not erroneous. In Morrison, 494 Mass. at 771 n.10, the court provided a model jury instruction for aggravated kidnapping by infliction of serious bodily injury that included the element, “That the defendant used the dangerous weapon that he was armed with to inflict serious bodily injury on the victim,” id. at 776. While that element instruction was not provided here,² the judge's erroneous instruction in Morrison (which stated that the Commonwealth was not required to prove that the defendant used the dangerous weapon to inflict the serious bodily injury) was prejudicial because either of two weapons could have been the dangerous weapon based on the trial evidence, but only one of those weapons would have been viable under the statute. Id. at 774. Here, it was clear what weapon was alleged to have inflicted the serious bodily injury. Further, the jury instructions on armed kidnapping causing serious bodily injury stated that the Commonwealth must prove “either that the defendant was armed himself with a firearm, or that he knew that another person was armed with a firearm at the time of the assault.” Because the jury instructions as a whole made it clear that the defendant was tried as a joint venturer, it was not necessary for the Commonwealth to prove that he personally used the dangerous weapon.

2. The defendant's motion for a new trial. The defendant asserts that he is entitled to a new trial because evidence of the second victim's “retraction,” Delvalle-Rodriguez's hot mic admission, and the Commonwealth's decision not to charge the second victim in an unrelated case, if presented to the jury, could have influenced their verdicts. He further contends that the judge abused his discretion in denying the motion without an evidentiary hearing.

A judge may grant a new trial “if it appears that justice may not have been done.” Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). A judge may deny a motion for a new trial without an evidentiary hearing “if no substantial issue is raised by the motion or affidavits.” Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass. 1501 (2001). “In determining whether to conduct an evidentiary hearing, both the seriousness of the issue raised and the adequacy of the showing on that issue must be considered.” Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014).

We review the motion judge's denial for an abuse of discretion. See Commonwealth v. Indrisano, 87 Mass. App. Ct. 709, 719 (2015). We extend “special deference” to a motion judge who, as here, was also the trial judge. Commonwealth v. Rosario, 460 Mass. 181, 195 (2011), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986). The judge “may use [her] knowledge and evaluation of the evidence at trial in determining whether to decide the motion for a new trial without an evidentiary hearing” (quotations and citation omitted). Commonwealth v. McWilliams, 473 Mass. 606, 623 (2016).

a. The second victim's testimony at Delvalle-Rodriguez's subsequent trial. The defendant claims that he is entitled to a new trial based on the second victim's testimony at Delvalle-Rodriguez's trial, which the defendant describes on appeal as newly discovered evidence.

“To prevail on a motion for a new trial on the basis of newly discovered evidence, a defendant must ․ establish that the evidence was unknown to the defendant or trial counsel and not reasonably discoverable by them at the time of trial” (quotation and citation omitted). Commonwealth v. Cowels, 470 Mass. 607, 616 (2015). The defendant must also show that the evidence “casts real doubt on the justice of the conviction” (citation omitted). Id. Accord Grace, 397 Mass. at 305. “The motion judge decides not whether the verdict[s] would have been different, but rather whether the new evidence would probably have been a real factor in the jury's deliberations.” Cowels, supra at 617, quoting Grace, supra at 306. In rare cases, a new trial may be warranted “[w]here the Commonwealth's case depends so heavily on the testimony of a witness and where the newly discovered evidence seriously undermines the credibility of that witness” (quotations and citation omitted). Cowels, 470 Mass. at 621.

Here, the newly discovered evidence is the second victim's testimony at Delvalle-Rodriguez's subsequent trial that he was “skeptical” about whether the defendant had a firearm. Assuming that the testimony is newly discovered evidence,³ the testimony would likely not have been a factor in the jury's deliberations such that there is a substantial risk that the outcome of the trial would have been different.

At Delvalle-Rodriguez's trial, the second victim testified on direct examination that he saw only Delvalle-Rodriguez with a firearm and did not see firearms near the truck. When impeached on cross-examination with his second statement to police that he had seen the defendant with a firearm, and asked whether he subsequently realized there was not a firearm in the defendant's hand, the second victim testified, “It was the last trial where I was skeptical on it and I made that known as well.” On further cross-examination, the second victim agreed that he saw the defendant with a gun in his hand.

The defendant characterizes the subsequent testimony as a “retraction of [the second victim's] statement that [the defendant] had and aimed a gun at the scene.” However, the second victim's statements at Delvalle-Rodriguez's trial are not directly contradictory to his testimony at the defendant's trial. While at the defendant's trial the second victim initially testified that he saw a firearm “in possession of [the defendant]” right before the altercation, he detailed that during the fight he saw the defendant “reach in his waistband and pull something out, and aim.” He did not describe the object that he saw. On cross-examination, trial counsel impeached the second victim with the fact that the second victim's first statement to police hours after the incident did not mention that the defendant had a firearm, in contrast to his second statement to police days later.

Thus, the second victim's credibility was effectively challenged at the defendant's trial. In his opening statement, trial counsel flagged discrepancies in the second victim's varying accounts of what happened. Trial counsel impeached the second victim by noting differences in the second victim's statements to police. He additionally impeached the second victim's testimony that the defendant stated, “Come out, or we're going to start shooting,” by highlighting that at a subsequent hearing the second victim said that he did not know who made that statement. In closing argument, trial counsel not only stressed the differences in statements to police about the defendant having a firearm, but questioned the second victim's bias as a result of his not having been charged in an unrelated home invasion case, discussed infra. Trial counsel had ample opportunity to undermine the second victim's credibility and did so effectively.

Additionally, the testimony at Delvalle-Rodriguez's trial about a firearm does not affect the second victim's identification of the defendant as the person who followed the victims to the truck, yelled, “Come out or we're going to start shooting,” and ripped the first victim from the truck. The second victim was not the only witness who identified the defendant as being in the group that committed these acts. And, it was clear that the Commonwealth was not proceeding on the theory that the defendant was the shooter.

Thus, at best, the subsequent testimony would have provided a minor additional ground to impeach the credibility of the second victim. We cannot reasonably conclude that the evidence would have had a real impact on the jury's deliberations. See Commonwealth v. Barry, 481 Mass. 388, 400, cert. denied, Barry v. Massachusetts, 589 U.S. 941 (2019) (new evidence “that tends merely to impeach the credibility of a witness will not ordinarily be the basis of a new trial” [quotation and citation omitted]); Commonwealth v. Brown, 71 Mass. App. Ct. 743, 748-749 (2008) (newly discovered evidence that was cumulative for impeachment purposes unlikely to be significant factor in jury deliberations). Accordingly, the judge did not err in denying the motion on this ground.

b. Ineffective assistance of trial counsel. The defendant also claims that trial counsel was ineffective for failing to introduce Delvalle-Rodriguez's hot mic admission and failing to elicit that the Commonwealth had not charged the second victim with home invasion during the pendency of the defendant's case. When the basis for a motion for a new trial is a claim of ineffective assistance of counsel, “the defendant must show that the behavior of counsel fell measurably below that of an ordinary, fallible lawyer and that such failing ‘likely deprived the defendant of an otherwise available, substantial ground of defence.’ ” Commonwealth v. Prado, 94 Mass. App. Ct. 253, 255 (2018), quoting Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). While a claim of ineffective assistance “raises an issue of constitutional importance that readily qualifies as a serious issue” (quotation and citation omitted), Commonwealth v. Denis, 442 Mass. 617, 629 (2004), we discern no abuse of discretion here in the judge's denying the motion for a new trial without an evidentiary hearing.

i. Delvalle-Rodriguez's hot mic admission. First, we discern no prejudice from counsel not introducing in evidence the video recording of Delvalle-Rodriguez's admission. The Commonwealth proceeded on the theory that Delvalle-Rodriguez was the shooter, and the jury were made aware of that fact. Codefendant Douglas's counsel told the jury this, stating in his opening, “The person who pulled the trigger is ․ De[l]valle[-]Rodriguez․ [T]he Commonwealth's whole case here is not that [Douglas] pulled the trigger, or that [the defendant] pulled the trigger․ Their whole case is that ․ De[l]valle[-]Rodriguez ․ is the one who pulled the trigger ․” This was not contested at trial. Accordingly, the hot mic admission would have added little to the defense, let alone deprived the defendant of a substantial ground of defense. See Brown, 71 Mass. App. Ct. at 747 (no ineffectiveness in failure to present cumulative evidence).

ii. Prosecutorial favoritism. Finally, the defendant contends that trial counsel was ineffective for failure to introduce evidence of the Commonwealth's decision to not charge the second victim with home invasion. The defendant claims that because of this, he lost a substantial ground of defense.

However, trial counsel did argue the defense that the defendant claims he was deprived of. Trial counsel cross-examined the second victim about this charging decision, with the second victim agreeing that he was a suspect in the home invasion case but not charged. Trial counsel also called a State police trooper, who testified that the second victim was interviewed as a suspect in the home invasion case. Additionally, trial counsel argued this ground of defense in his closing. Any failure to present cumulative evidence that would further impeach the second victim's credibility was not ineffective and would not likely have impacted the verdicts.

Judgments affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   On cross-examination, the second victim was impeached with his testimony from a previous hearing that he did not know who made that statement.

2.   At the trial in 2022, the judge did not have the benefit of the model jury instruction delineated in Morrison, 494 Mass. at 776, which issued in 2024.

3.   While on appeal the defendant argues that the second victim's subsequent trial testimony is newly discovered evidence, he did not argue as such in his motion for a new trial.