NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-203
COMMONWEALTH
vs.
DOUGLAS W. BURNS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Douglas Burns, appeals from an order denying
his motion for a new trial after his conviction of one count of
assault with a dangerous weapon, in violation of G. L. c. 265,
§ 15B. On appeal, the defendant claims that he is entitled to a
new trial because additional evidence casting doubt as to the
victim's injury at the time of the incident came to light during
hearings associated with the victim's worker's compensation
claim against his employer, Suffolk County. This purported
newly discovered evidence is an affidavit authored by Marie B.
Lungelow, a former shift commander at the Suffolk County house
of correction who was charged with investigating the incident in
1991 at which the victim claimed to have been injured.
Lungelow, in her affidavit dated December 15, 1998, claims that
the victim told her, soon after the 1991 incident, that he had not been injured. This claim stands contrary to the victim's
testimony at trial that he suffered a debilitating back injury.
The defendant claims that this affidavit is new evidence that
warrants a new trial because it would have undermined the
victim's credibility and altered the jury's analysis of who was
the first aggressor in the physical altercation.
We affirm the order after concluding the defendant did not
establish that (1) the newly discovered evidence cast real doubt
on the justice of the conviction, or (2) that the reason for a
new trial outweighed the risk of prejudice to the Commonwealth.
Background. This appeal arises from the defendant's 1995
conviction of assault with a dangerous weapon (a handgun),
stemming from an incident that occurred in February 1994. At
trial, it was undisputed that the defendant and the victim
collided as they were walking along a narrow, snow-lined
sidewalk in Boston. The Commonwealth's theory at trial was that
the defendant, unprovoked, struck the victim and then pointed a
gun at him. The defendant claimed he drew his gun in self-
defense only after the victim charged at and threw his cane at
him. The victim denied being the aggressor and insisted that
his debilitating back injury at the time of the incident
prevented him from charging the defendant. Specific to his
condition, the victim testified that in 1991, while working as a
correction officer for the Suffolk County house of correction,
2 he sustained an injury to his back while he was breaking up a
fight between inmates. The victim further testified that this
injury had led to him being unable to resume active work, and
that he was "out on a physical disability."
A percipient witness, Willie Washington, corroborated the
victim's account by testifying that the defendant bumped into
the victim, told the victim to put his hands up, and pointed his
handgun at the victim's back. On April 21, 1995, the jury
returned a guilty verdict. 1
Discussion. 1. Standard of review. Under Mass. R. Crim.
P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge may
grant a motion for a new trial any time "it appears that justice
may not have been done." To prevail on a motion for a new trial
based on newly discovered evidence, the defendant must first
establish that the evidence is newly discovered. See
Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Second, the
defendant must show that the newly discovered evidence "casts
real doubt on the justice of the conviction" and is "material
and credible . . . [and] carr[ies] a measure of strength in
support of the defendant's position." Id. Third, the defendant
must establish that the reason for a new trial "outweighs the
1 This court affirmed the judgment of conviction in Commonwealth v. Burns, 41 Mass. App. Ct. 1117 (1996).
3 risk of prejudice to the Commonwealth." Commonwealth v.
Wheeler, 52 Mass. App. Ct. 631, 636 (2001).
On appeal, it is well recognized that the decision to grant
a motion for a new trial "rests in the sound discretion of the
[motion] judge," absent constitutional error. Commonwealth v.
Brown, 378 Mass. 165, 170-171 (1979). We review a judge's
decision on a motion for a new trial "to determine whether there
has been a significant error of law or other abuse of
discretion." Grace, 397 Mass. at 307. A motion judge's
decision "is not to be reversed unless a survey of the whole
case shows that [the] decision, unless reversed, will result in
manifest injustice." Brown, supra at 171, quoting Sharpe,
petitioner, 322 Mass. 441, 445 (1948). Producing evidence that
could have influenced the trier of fact to reach a different
result does not demonstrate manifest injustice. Brown, supra.
Instead, "the evidence 'must be weighty and of such nature as to
its credibility, potency, and pertinency to fundamental issues
in the case as to be worthy of careful consideration.'" Id.,
quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 495 (1920).
2. New evidence. Evidence will be considered new for
purposes of rule 30 (b) if it was unknown and not reasonably
4 discoverable by the defendant or his counsel at the time of
trial. 2 See Grace, 397 Mass. at 306.
The motion judge found that the information in the Lungelow
affidavit was not new evidence because the trial transcript
clearly indicated that at the time of the criminal case, the
defendant's "trial attorney knew [the victim] was not receiving
his full benefits." The defendant argues that the affidavit
would have provided significantly stronger impeachment evidence
as compared with the evidence that the victim was only receiving
partial benefits. Furthermore, the defendant contends the judge
erred in finding the evidence was not newly discovered because
no degree of diligence would have uncovered Lungelow's affidavit
because it was neither drafted nor made available to the
defendant until 1998, three years after his trial. We do not
address this issue because even if the judge erred in not
considering this new evidence, any error would not merit a new
trial because we conclude, as discussed infra, that the
defendant has not met his burden of establishing the existence
of a substantial risk that the new evidence would have led to a
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-203
COMMONWEALTH
vs.
DOUGLAS W. BURNS.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Douglas Burns, appeals from an order denying
his motion for a new trial after his conviction of one count of
assault with a dangerous weapon, in violation of G. L. c. 265,
§ 15B. On appeal, the defendant claims that he is entitled to a
new trial because additional evidence casting doubt as to the
victim's injury at the time of the incident came to light during
hearings associated with the victim's worker's compensation
claim against his employer, Suffolk County. This purported
newly discovered evidence is an affidavit authored by Marie B.
Lungelow, a former shift commander at the Suffolk County house
of correction who was charged with investigating the incident in
1991 at which the victim claimed to have been injured.
Lungelow, in her affidavit dated December 15, 1998, claims that
the victim told her, soon after the 1991 incident, that he had not been injured. This claim stands contrary to the victim's
testimony at trial that he suffered a debilitating back injury.
The defendant claims that this affidavit is new evidence that
warrants a new trial because it would have undermined the
victim's credibility and altered the jury's analysis of who was
the first aggressor in the physical altercation.
We affirm the order after concluding the defendant did not
establish that (1) the newly discovered evidence cast real doubt
on the justice of the conviction, or (2) that the reason for a
new trial outweighed the risk of prejudice to the Commonwealth.
Background. This appeal arises from the defendant's 1995
conviction of assault with a dangerous weapon (a handgun),
stemming from an incident that occurred in February 1994. At
trial, it was undisputed that the defendant and the victim
collided as they were walking along a narrow, snow-lined
sidewalk in Boston. The Commonwealth's theory at trial was that
the defendant, unprovoked, struck the victim and then pointed a
gun at him. The defendant claimed he drew his gun in self-
defense only after the victim charged at and threw his cane at
him. The victim denied being the aggressor and insisted that
his debilitating back injury at the time of the incident
prevented him from charging the defendant. Specific to his
condition, the victim testified that in 1991, while working as a
correction officer for the Suffolk County house of correction,
2 he sustained an injury to his back while he was breaking up a
fight between inmates. The victim further testified that this
injury had led to him being unable to resume active work, and
that he was "out on a physical disability."
A percipient witness, Willie Washington, corroborated the
victim's account by testifying that the defendant bumped into
the victim, told the victim to put his hands up, and pointed his
handgun at the victim's back. On April 21, 1995, the jury
returned a guilty verdict. 1
Discussion. 1. Standard of review. Under Mass. R. Crim.
P. 30 (b), as appearing in 435 Mass. 1501 (2001), a judge may
grant a motion for a new trial any time "it appears that justice
may not have been done." To prevail on a motion for a new trial
based on newly discovered evidence, the defendant must first
establish that the evidence is newly discovered. See
Commonwealth v. Grace, 397 Mass. 303, 305 (1986). Second, the
defendant must show that the newly discovered evidence "casts
real doubt on the justice of the conviction" and is "material
and credible . . . [and] carr[ies] a measure of strength in
support of the defendant's position." Id. Third, the defendant
must establish that the reason for a new trial "outweighs the
1 This court affirmed the judgment of conviction in Commonwealth v. Burns, 41 Mass. App. Ct. 1117 (1996).
3 risk of prejudice to the Commonwealth." Commonwealth v.
Wheeler, 52 Mass. App. Ct. 631, 636 (2001).
On appeal, it is well recognized that the decision to grant
a motion for a new trial "rests in the sound discretion of the
[motion] judge," absent constitutional error. Commonwealth v.
Brown, 378 Mass. 165, 170-171 (1979). We review a judge's
decision on a motion for a new trial "to determine whether there
has been a significant error of law or other abuse of
discretion." Grace, 397 Mass. at 307. A motion judge's
decision "is not to be reversed unless a survey of the whole
case shows that [the] decision, unless reversed, will result in
manifest injustice." Brown, supra at 171, quoting Sharpe,
petitioner, 322 Mass. 441, 445 (1948). Producing evidence that
could have influenced the trier of fact to reach a different
result does not demonstrate manifest injustice. Brown, supra.
Instead, "the evidence 'must be weighty and of such nature as to
its credibility, potency, and pertinency to fundamental issues
in the case as to be worthy of careful consideration.'" Id.,
quoting Davis v. Boston Elevated Ry., 235 Mass. 482, 495 (1920).
2. New evidence. Evidence will be considered new for
purposes of rule 30 (b) if it was unknown and not reasonably
4 discoverable by the defendant or his counsel at the time of
trial. 2 See Grace, 397 Mass. at 306.
The motion judge found that the information in the Lungelow
affidavit was not new evidence because the trial transcript
clearly indicated that at the time of the criminal case, the
defendant's "trial attorney knew [the victim] was not receiving
his full benefits." The defendant argues that the affidavit
would have provided significantly stronger impeachment evidence
as compared with the evidence that the victim was only receiving
partial benefits. Furthermore, the defendant contends the judge
erred in finding the evidence was not newly discovered because
no degree of diligence would have uncovered Lungelow's affidavit
because it was neither drafted nor made available to the
defendant until 1998, three years after his trial. We do not
address this issue because even if the judge erred in not
considering this new evidence, any error would not merit a new
trial because we conclude, as discussed infra, that the
defendant has not met his burden of establishing the existence
of a substantial risk that the new evidence would have led to a
2 Although a case could be made that the defendant has forfeited his right to bring this claim because the allegedly new evidence was available before he brought his first postconviction motion in 1999, see Grace, 397 Mass. at 306 ("the allegedly new evidence . . . must also have been unknown to the defendant or his counsel and not reasonably discoverable . . . at the time of the presentation of an earlier motion for a new trial"), we decide this claim on its merits.
5 different result, or that the reason for the new trial outweighs
the risk of prejudice to the Commonwealth.
3. Material and credible evidence. As noted above, to
prevail on a motion for a new trial, the defendant needed not
only to have presented new evidence, but also to have presented
evidence that is "material and credible" and "casts real doubt
on the justice of the conviction." Grace, 397 Mass. at 305.
Evidence casts real doubt on the justice of a conviction when
"there is a substantial risk that the jury would have reached a
different conclusion had the evidence been admitted at trial."
Id. at 306. The defendant argues that Lungelow's affidavit
provides crucial information that would have supported the
defendant's claim that the victim was the first aggressor and
undermined the victim's credibility. This claim fails when
considering multiple trial witnesses testified in support the
victim's account of the defendant's assault and was contrary to
the defendant's defense. Willie Washington, a civilian witness
who was present at the scene for the entirety of the
altercation, testified that the defendant was the first
aggressor, and that the victim neither threw his cane at the
defendant nor charged at the defendant. The Boston police
officers also testified in ways that undermined the defendant's
claim of self-defense. Contrary to the defendant's testimony
that he neither pointed his firearm at the victim, nor placed it
6 up against the victim's back, an officer testified that he
observed the defendant holding his firearm "[in] the small of
the [victim's] back." Additionally, the jury, instructed as the
fact finder to assess the credibility of the witnesses, may have
been influenced by the officers' testimony that the defendant
provided different versions of the event to the police, and he
told the officers that he had previously been attacked near the
location of this incident and "wasn't going to let it happen
again."
Taking the entirety of the witnesses' testimony into
consideration, the motion judge's decision that there was not a
substantial risk that a jury would have reached a different
conclusion if presented with the new evidence falls within "the
range of reasonable alternatives." L.L. v. Commonwealth, 470
Mass. 169, 185 n. 27 (2014). We thus conclude the judge neither
erred nor abused his discretion in finding that the new evidence
does not "reach a threshold of gravity and relevance . . . as to
render injustice to the Defendant."
4. Prejudice to the Commonwealth. "Judges are to apply
the standard set forth in rule 30 (b) rigorously and should only
grant such a motion if the defendant comes forward with a
credible reason which outweighs the risk of prejudice to the
Commonwealth." Wheeler, 52 Mass. App. Ct. at 635-636. The
Commonwealth is prejudiced when "[w]itnesses may be
7 unavailable," and "evidence may . . . [be] destroyed."
Commonwealth v. DeMarco, 387 Mass. 481, 485-486 (1982). Here,
the prejudice to the Commonwealth would be significant if a new
trial is granted because more than twenty-eight years have
passed since Burns's conviction, at least one witness has passed
away, and other witnesses' memories have likely faded. See
Commonwealth v. Curtis, 417 Mass. 619, 623 (1994) ("witnesses'
memories would at best be considerably challenged" where
"defendants' motions for a new trial were filed many years after
the trial").
Accordingly, although Burns has produced new evidence, it
is not sufficiently grave to indicate that justice was not done,
8 and we affirm the judge's denial of the motion for a new trial.
So ordered.
By the Court (Milkey, Walsh & Smyth, JJ. 3),
Assistant Clerk
Entered: January 24, 2024.
3 The panelists are listed in order of seniority.