MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, M.A., appeals from a District Court judges order denying his petition for expungement.
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See G. L. c. 276, § 100K. On appeal, the defendant argues that his petition was improperly denied because he sufficiently demonstrated that the criminal complaint issued as a result of errors attributable to a civilian witness in the supporting police report. He also argues that expungement is both in the best interests of justice and the appropriate remedy. We affirm.
Background. The defendant was charged with four offenses after a man with whom the defendant previously had a dating relationship reported to police that the defendant entered the alleged victims home without his knowledge, attempted to strangle him, and fled the residence with his cell phone.
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The Commonwealth subsequently nol prossed the charges after the alleged victim asserted his privilege against self-incrimination under the Fifth Amendment to the United States Constitution.
Approximately ten months after the incident, the defendant filed a petition for expungement premised on errors made by a civilian witness, i.e., the alleged victim. The defendant affixed various exhibits to his petition demonstrating that the alleged victim had and continued to recant the allegations he made in his statement to police on the day of the incident.
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The District Court judge held a hearing on the petition. The alleged victim was present, but did not testify as a witness. Following the hearing, the District Court judge issued written findings of fact and conclusions of law supporting his order to deny the petition. In his findings, the judge expressly did not credit the following sworn statement in the alleged victims affidavit: “The defendant did absolutely nothing wrong to me. He did not inappropriately enter my home and did not strike me in any way. He did not strangulate me nor did he take anything from me.” The judge also explained that he did not find that the police report supporting the criminal complaint “was false or that factual assertions contained within it [were] made in error.”
Discussion. A court has the discretion to order the expungement of a criminal record if the court determines, based on clear and convincing evidence, that the record was created as a result of “demonstrable errors by [a] civilian ․ witness[ ],” and if expungement is “in the best interests of justice.”
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G. L. c. 276, § 100K (a) (4) (b). We review the judges order for abuse of discretion. See Commissioner of Probation v. Adams, 65 Mass. App. Ct. 725, 737 (2006). “[A] judges discretionary decision constitutes an abuse of discretion where we conclude 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.” L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008).
While the defendant argues that he presented sufficient evidence that the alleged victims allegations contained in the police report were made in error, the District Court judge was warranted in finding that the evidence did not clearly and convincingly show that the error was demonstrable. We see no basis to set aside the judges finding.
The judge did not hear testimony on the petition, but he was able to observe the defendant as well as the alleged victim in the court room. Based on those observations and the judges review of the record, he was not required to credit the alleged victims recantation. See Commonwealth v. Thurston, 53 Mass. App. Ct. 548, 551 (2002) (“motion judge may properly determine the issues raised solely on affidavits, ․ the credibility, weight and impact of which are also entirely within her discretion ․; she is not required to credit an affidavit even if it is undisputed”). This is so even though the alleged victim appears to have repeatedly recanted his account of the incident, and even though the alleged victim explained that his initial complaint was the product of his state of confusion and hunger coupled with a medical condition. See Commonwealth v. Leate, 361 Mass. 347, 349-350 (1972) (judge not obliged to credit affidavit of recanting witness). See also Commonwealth v. Fritz, 472 Mass. 341, 354 (2015) (fact finder decides whether to credit recanting witness).
Notwithstanding the alleged victims recantation, other information in the record supported the alleged victims report to police approximately thirty minutes after the incident. Specifically, the alleged victim was transferred to the hospital after the police observed “a deep laceration to the top of [the alleged victims] head that was actively bleeding, scratches, redness, and bruising that encircled his neck. Officers also observed scratches to his chest, and face.” Moreover, the responding police officer believed that the defendant, who arrived at the police station shortly after the alleged victim was transferred to the hospital, and gave a differing account of what had occurred, was the aggressor in the incident. We recognize that the alleged victim later gave a different explanation for his injuries; however, based on the entire record here, we cannot say that the judges decision to decline to treat the alleged victims subsequent recantations as clear and convincing evidence of demonstrable errors in the police report was “outside the range of reasonable alternatives.”
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L.L., 470 Mass. at 185 n.27. See Commonwealth v. King, 436 Mass. 252, 262 (2002) (“victims of domestic violence often change their minds about whether to testify and whether to press charges in connection with a prior attack”). Cf. Commonwealth v. Morris, 82 Mass. App. Ct. 427, 432 (2012) (expert testimony permitted “to help jurors understand the potentially counterintuitive behavior of victims when assessing a victims credibility”). We discern no abuse of discretion.
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Cf. Commonwealth v. Santiago, 458 Mass. 405, 414 (2010) (“The abuse of discretion standard is not altered when the newly discovered evidence is an alleged recantation by a material witness”).
Conclusion. The order dated May 31, 2019, denying the defendants petition for expungement is affirmed.
So ordered.
Affirmed
FOOTNOTES
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. While this appeal was pending, the defendants record was sealed pursuant to G. L. c. 276, § 100C.
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. This appeal concerns an order dated May 31, 2019, denying the defendants petition for expungement premised on demonstrable errors by a civilian witness, see G. L. c. 276, § 100K (a) (4). Although not entirely clear, the defendants notice seemingly purports to appeal from orders denying his earlier petition for expungement premised on fraud on the court, see G. L. c. 276, § 100K (a) (6), and his related motion for reconsideration; however, he advances no argument concerning those orders on appeal.
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. The criminal complaint charged the defendant with assault and battery on a family or household member; entering at night with the intent to commit a felony and putting a person in fear; strangulation or suffocation; and larceny from a building.
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. The exhibits included, among others, e-mails and text messages from the alleged victim to the defendant after the incident, a report from an investigator in the Suffolk County district attorneys office regarding an interview with the alleged victim twenty-four days after the incident, and an affidavit from the alleged victim dated a month before the petition was filed, supporting the defendants request for expungement.
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. The Commonwealth argues that the defendant waived his claim that his record must be expunged based on demonstrable errors by a civilian witness, because he did not raise that ground in his first petition for expungement. We pass on the question of waiver and exercise our discretion to reach the merits in this appeal as each party has fully briefed the issues.
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. We disagree with the defendants contention that the judges findings are somehow contradictory. That the judges factual findings recited instances where the alleged victim recanted his allegations does not mean that the judge was required to credit the substance of those recantations as true.
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. For the same reasons described above, the record also does not demonstrate that expungement is in the best interests of justice.