MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On June 9, 1998, the defendant pleaded guilty to one count of home invasion, five counts of armed assault in a dwelling, two counts of armed robbery, and one count of assault and battery by means of a dangerous weapon. Murphy was sentenced to concurrent prison terms of three years to three years and one day on the two armed robbery offenses, after which he would serve a three year probationary term on the remaining seven offenses. On July 18, 2002, the defendant was found in violation of his probation, and was subsequently sentenced to twenty years to twenty years and one day for the home invasion offense, as well as five concurrent life sentences for the five offenses of armed assault in a dwelling.
Following sentencing, the defendant filed four separate motions for new trial, all of which were unsuccessful.
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On September 4, 2019, he filed a fifth motion for new trial, seeking to withdraw his guilty pleas, which was denied without an evidentiary hearing. On appeal, the defendant claims that the motion judge abused his discretion in denying the motion given the alleged recantation of a key witness for the Commonwealth. We affirm.
Discussion. A postsentence motion to withdraw a guilty plea is treated as a motion for new trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Fanelli, 412 Mass. 497, 504 (1992). We review the decision to allow a new trial under Mass. R. Crim. P. 30 (b) for an abuse of discretion, and the trial judges decision will not be reversed unless manifestly unjust. Commonwealth v. Diaz Perez, 484 Mass. 69, 73 (2020).
“A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction.” Commonwealth v. Domino, 465 Mass. 569, 582 (2013), quoting Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Newly discovered evidence must have been unknown to the defendant, and not reasonably discoverable at the time of the plea. See Grace, 397 Mass. at 306. Any newly discovered evidence must be material, credible, and admissible, such that it would have been a “real factor” in the jurys deliberations. See Commonwealth v. Bonnett, 482 Mass. 838, 844 (2019), quoting Commonwealth v. Sullivan, 469 Mass. 340, 350-351 (2014).
The defendant claims that during an interview with an investigator from the Committee for Public Counsel Services (CPCS) Innocence Program, the victim recanted her prior sworn testimony which had identified the defendant as one of the two perpetrators involved in the home invasion. He claims that the victims alleged recantation constitutes newly discovered evidence, which casts real doubt on the justice of his conviction. We disagree.
During a hearing on the defendants motion to suppress, the victim testified that she “knew” the defendant was one of the men in her living room committing the armed robbery, as she had nearly a whole minute to “make sure [she had] seen who [she had] seen.” She explained that she had recognized the defendant from previous encounters with him, and recognized him as the ex-boyfriend of her roommate. Now, nearly twenty years after the crime took place, for which the defendant pleaded guilty, the victim told the investigator that she “[did] not believe that she actually identified [the defendant] as one of the perpetrators.” The victim also doubted whether she got a good look at either face of the two men, as the whole event “happened very quickly.” However, she remained adamant that she was still “convinced” that the defendant was one of the perpetrators.
Contrary to the defendants assertions, and as the motion judge properly concluded, the victims statements to the investigator do not constitute a recantation. As the motion judge found, “[the victim] did not say to the investigator that [the defendant] was not one of the perpetrators. She did not retract or recant her prior identifications. She did not say she was wrong or mistaken in 1998.” Cf. Grace, 397 Mass. at 311 (witness recanted earlier trial testimony by denying earlier testimony of being elsewhere at time of shooting, and instead confessing to shooting victim himself). “At most, [the victim] does not recall if she made an actual identification of [the defendant] in 1998.” As such, we discern no abuse of discretion in the motion judges decision that the statements were not newly discovered evidence, and they did not constitute a recantation of her prior sworn testimony.
Nonetheless, even if the victims statements were a recantation of her prior sworn testimony, and even if they did constitute newly discovered evidence, such statements certainly do not cast doubt on the defendants conviction, nor do they render his guilty plea involuntary. As the panel held in Murphy I, “[t]hat [the victims] present recollection varies somewhat from her previous statements is hardly surprising in light of the significant passage of time -- more than twenty years -- since the investigation and the arrest that led to the defendants guilty plea.” 97 Mass. App. Ct. at 1115. “[T]he question is not the precise wording of the victims statement to police, but [rather] whether her potential trial testimony relating her percipient observations as a witness to the armed home invasion served as a compelling basis for the defendant to accept the terms of the guilty plea he was offered and accepted.” Id. As the motion judge properly determined, but for the defendants guilty plea, there is no reason to believe that the victim would not have testified at trial consistently with her prior identification of the defendant. Therefore, there is no reason why the victims anticipated trial testimony could not serve as a compelling reason for the defendant to have voluntarily pleaded guilty.
“Although rule 30 (b) allows for a new trial ‘at any time,’ relief is limited to cases where ‘it appears that justice may not have been done.’ ” Commonwealth v. Lopez, 426 Mass. 657, 662 (1998), quoting Fanelli, 412 Mass. at 504. While under oath, the defendant pleaded guilty to all charges against him stemming from the home invasion, and affirmed the facts underlying those offenses. The defendant further acknowledged his understanding of the consequences of his guilty pleas, and still chose to freely, voluntarily, and intelligently plead guilty.
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“The defendants sworn statements must not be discarded on the later assertion that he had his fingers crossed.” Commonwealth v. Hiskin, 68 Mass. App. Ct. 633, 640 (2007). Accordingly, justice was done in this case, and there was no abuse of discretion in the motion judges decision to deny the motion for new trial.
Finally, the defendant claims that the motion judge abused his discretion in failing to hold an evidentiary hearing when ruling on the motion for new trial. We disagree. When deciding on a rule 30 (b) motion, a judge “need only proceed to [an] evidentiary hearing ‘where a substantial issue is raised [by the motion or affidavits] and is supported by a substantial evidentiary showing’ ” (citation omitted). Lopez, 426 Mass. at 663.
Here, the defendant failed to secure an affidavit from the victim to corroborate her alleged recantation. Instead, he relies solely upon the investigators affidavit as well as his own affidavit. Without an affidavit from the allegedly recanting witness, the motion judge could properly deny the motion for new trial and choose not to hold an evidentiary hearing. See Commonwealth v. Tobin, 392 Mass. 604, 618-619 (1984). This is true for the simple reason that the motion judge was entitled to discredit the defendants self-serving affidavit, as well as the investigators affidavit, which contained numerous hearsay statements from the alleged recanting witness.
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See Lopez, 426 Mass. at 663 (judge may discredit untrustworthy affidavits in deciding rule 30 [b] motion). Therefore, because the motion for new trial failed to raise a substantial issue concerning the validity of the defendants guilty plea, the motion judge did not abuse his discretion in denying the motion without an evidentiary hearing. See id.
Order denying motion to withdraw plea affirmed.
FOOTNOTES
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. The defendant also filed numerous motions seeking a stay of execution of his sentence due to the COVID-19 pandemic. One such motion was brought before a single justice of this court, and was denied because the stay had not first been sought in the trial court. After the denial of two motions for reconsideration, the defendant appealed and a panel of this court affirmed the denial of the stay in an unpublished memorandum and order pursuant to rule 1:28. See Commonwealth v. Murphy, 97 Mass. App. Ct. 1115 (2020) (Murphy I). In the unpublished decision, the panel held that the victim had not actually recanted her trial testimony, as the defendant continues to argue here on appeal. Id. “A judges authority to grant a new trial pursuant to Mass. R. Crim. P. 30 (b) ․ is limited by principles of direct estoppel” (citation omitted). Commonwealth v. Sanchez, 485 Mass. 491, 498 (2020). “[W]here the facts and the law are literally the same ․ direct estoppel prevents a judge from granting relief under rule 30 (b) solely based on [the] assertion that [the] direct appeal was decided wrongly” (quotations omitted). Id. While we do not decide this appeal on direct estoppel, we highlight the issue concerning direct estoppel, given the panels decision in Murphy I.
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. In pleading guilty, the defendant waived his right to a trial, including his constitutional right to confront the witnesses against him. See Commonwealth v. Hubbard, 457 Mass. 24, 25 (2010). Therefore, in waiving his right to trial, he waived his right to attack the credibility of the victims identification through cross-examination. See id. at 25-26. Attacking the victims anticipated trial testimony, nearly twenty years after the commission of the crime, in an interview with a CPCS investigator, does not carry the probative value that the defendant claims. See Commonwealth v. Machorro, 72 Mass. App. Ct. 377, 379 (2008) (“an identification made soon after an event is generally more reliable than one made later when memory may have faded and suggestiveness might have become a factor” [citation omitted]). See also Commonwealth v. Raedy, 68 Mass. App. Ct. 440, 449 (2007) (statements made closer in time to an event carry superior probative worth).
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. Hearsay contained within affidavits may be ignored by the motion judge when ruling on a motion for new trial. See Commonwealth v. Goodreau, 442 Mass. 341, 353-354 (2004).