Commonwealth v. Luis Bautista.

• Court: Massachusetts Appeals Court
• Decided: February 7, 2025
• Docket: 23-P-1148
• Status: Unpublished

Opinion

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

23-P-1148

COMMONWEALTH

vs.

LUIS BAUTISTA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Luis Bautista, appeals from the order

denying his motion for a new trial based on newly discovered

evidence in the form of an affidavit and testimony of a witness

recanting his trial testimony. We affirm.

Background. In 2010, after a jury trial in the Superior

Court, the defendant was convicted of the offenses of

intimidation of a witness and violating a restraining order.

The evidence at trial established the following: In 2008, the

defendant was subject to an abuse prevention order that

protected his then minor son, Cristian.1 While the restraining

order was still in effect, the defendant and Cristian

1 A pseudonym. encountered each other at Cristian's grandmother's house.

Cristian testified that he went to his grandmother's house

because a cousin asked him to drop off a hat. Cristian's cousin

also told him the defendant would be there and wanted to talk.

When Cristian arrived, the defendant pulled him aside and

encouraged him to make false reports against his mother for

having drugs in her home, which he later did.

In 2020, Cristian signed an affidavit recanting his trial

testimony. Cristian stated that he initiated the 2008 contact

with the defendant without prompting and that the defendant

never encouraged him to make the false reports. Instead,

Cristian averred that his mother pressured him to testify that

his father asked him to make the false reports against her. The

defendant then filed a motion for a new trial based on newly

discovered evidence.

An evidentiary hearing was held at which Cristian

testified. At the hearing, Cristian reiterated that the

defendant did not ask him to make the false reports against his

mother, but instead told him they could not see each other

because there was a restraining order. However, contrary to his

affidavit, Cristian denied that his mother told him to testify

in any particular way at trial. He also stated that he wanted

to "let the past go" and travel with his father. The motion

2 judge denied the motion because she found that Cristian's

affidavit and testimony were not credible.

Discussion. A motion for a new trial is addressed to the

sound discretion of the trial court judge, who may grant a new

trial if it appears that justice may not have been done.

Commonwealth v. Scott, 467 Mass. 336, 344 (2014). See Mass.

R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). "On

appeal, we examine the motion judge's conclusion only to

determine whether there has been a significant error of law or

other abuse of discretion" (quotation and citation omitted).

Commonwealth v. Rosario, 460 Mass. 181, 195 (2011). An issue of

credibility resolved by the fact finder "is uncontestable in the

absence of clear error of fact or law" on appeal. Linkage Corp.

v. Trustees of Boston Univ., 425 Mass. 1, 27 (1997). "The judge

is the final arbiter of questions of credibility" (citation

omitted). Rosario, supra.

Here, we see no reason to disturb the judge's determination

that Cristian's testimony at the evidentiary hearing was not

credible. Cristian's testimony conflicted with his affidavit

whether his mother pressured him to testify that the defendant

told him to make false reports against her. Additionally,

Cristian, who was "very close" to the defendant and wanted to

"let the past go" and travel with him, had a motive to be

dishonest. See Commonwealth v. Santiago, 458 Mass. 405, 416

3 (2010) (judge may "question [the witness's] motivation in

recanting his trial testimony"). Finally, even if Cristian

initiated the 2008 contact with the defendant, as he now claims,

his testimony continued to establish that the defendant violated

the restraining order. Just by failing to leave when Cristian

arrived at the grandmother's home the defendant violated the

order. See Commonwealth v. Kendrick, 446 Mass. 72, 76 (2006)

("Happening on a protected person whom one did not, and could

not reasonably, know to be present is not a violation, but the

party subject to the order must end the encounter by leaving").

Worse, the defendant went aside with Cristian to speak with him.

We discern no error or abuse of discretion.

Order denying motion for new trial affirmed.

By the Court (Henry, Desmond & Englander, JJ.2),

Clerk

Entered: February 7, 2025.

2 The panelists are listed in order of seniority.