Petition for Writ of Certiorari — Spencer, Superintendent, Massachusetts Correctional Institution at Norfolk v. Norton

(1) ~ FILED.

aod

No. 04- 943456 rb <7 2004

IN THE

Supreme Court of the United States

OCTOBER TERM, 2004

LUIS SPENCER,

Petitioner,

ve

ROGER NORTON,

Respondent.

ON PETITION FOR W2IT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

PETITION FOR WRIT OF CERTIORARI

THOMAS F. REILLY

Attorney General of Massachusetts

CATHRYN A. NEAVES*

Assistant Attorney General

DEAN A. MAZZONE

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts, 02108

(617) 727-2200

*Counsel of Record

QUESTIONS PRESENTED

l. Did the First Circuit err in holding that, when a state court

summarily denies a habeas petitioner’s motion for a new trial,

which includes a Brady v. Maryland claim premised on affidavits,

the state court should be deemed not to have ruled on the

credibility of the affidavits?

2. Did the First Circuit err in holding that habeas relief can

be granted on the basis of a Brady v. Maryland claim premised

on affidavits when the state court of appeals has held that the

affidavits would, under state law, have been inadmissible at trial

in state court?

PARTIES TO THE PROCEEDINGS

All parties to this case are named in the caption. No party

to this petition is a non-government corporation requiring a

statement as to publicly held ownership interests pursyant to Rule

29.6 of the Rules of this Court.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..... peueew6eesasetecevesins i

PARTIES TO THE PROCEEDINGS .........006: seekeeues ii

TABLE OF AUTHORITIRS occ ccveccccsecesccccecesecs iv

er ere a ree 1

JURISDICTION ..... heehee hhnwe sh eneket cree 2

CONSTITUTIONAL PROVISIONS ok: a re 2

UUEEITT GO THRE CARE occ cccccccesccvccscccceses 3

3 PPOOOEIEE TENONY os ccccccccccvecesess 3

2. The First Circuit’s Decision .........004. 6

REASONS FOR GRANTING THE WRIT .......eeeeeeeeees 7°

I. THE FIRST CIRCUIT’S DECISION CONFLICTS

WITH THIS COURT’S HOLDINGS IN MARSHALL

V. LONBERGER AND LAVALEE V. DELLEROSE ...... 7

II. THE FIRST CIRCUIT’S HOLDING THAT THE

INFORMATION IN THE AFFIDAVITS WAS ADMISSIBLE AT

TRIAL IN STATE COURT CONFLICTS WITH THE STATE

COURT’S HOLDING THAT THE INFORMATION IN THE

AFFIDAVITS WAS NOT ADMISSIBLE AT TRIAL IN STATE

DS 64-seceuneees Pica Vaweeaweronneredes 12

- ill -

TABLE OF AUTHORITIES

CASES

BP Ms: TONG, 6-0 6004-000 50004 0008800000005 Passim

373 U.S. 83 (1963)

rrr 14

279 F.3d 952 (CA11 2002)

Commonwealth vy. Chin Kee, ....cccccccccccccvence 10n

283 Mass. 248,

186 N.E. 253 (1933)

Commonwealth v. Coggins, ....ccceccccccccccececs 10n

324 Mass. 552,

87 N.E.2d 200 (1949)

Com i GEE 6.0.0 0000 060068640800005005 lln

438 Mass. 766,

784 N.E.2d 608 (2003)

Commonwealth v. DeChristoforo, .........00008 0% -11n,13n

360 Mass. 531,

277 N.E.2d 100 (1971)

COMMOTION Us DER, ob dccccscccasveansvisios 10n

323 Mass. 633,

84 N.E.2d 20 (1949)

Commonwealth v. Heffernan, .......ceeceesecceees 10n

350 Mass. 48,

213 N.E.2d 399 (1966)

Comsmmnnwemttls 0 BETO, ccccccccnccccceccecccses 10n

290 Mass. 406, -

195 N.E. 541 (1935)

ee 3

38 Mass. App. Ct. 1121,

664 N.E.2d 883 (1996)

Commonwealth v. Norton, cccccccccccccccccccccccces 4

49 Mass. App. Ct. 1110,

728 N.E.2d 972 (2000)

eg rr 3

423 Mass. 1103,

667 N.E.2d 1159 (1996)

a err ry 4

432 Mass. 1110,

738 N.E.2d 354 (2000)

CO 6 GOOD, 0 6 vcnce cs scccscdisncesees 10n

255 Mass. 369,

151 N.E. 839 (1926)

ee ik IR ov 6.c0 és 000656e0and ou eeeebs neues 14

502 U.S. 62 (1991)

FPUUNON D COGDE cc ccc cecvccescesesseevevesess 11, 13n

109 F.3d 330 (CA7),

cert. denied, 522 U.S. 819 (1997)

es oh a a oan nik khkk eee 7

410 U.S. 690 (1973)

° Vie

SEVORE CB LOM, ceccvcccvcevecscsesesosevesse

459 U.S. 422 (1982)

IVNUON Th GHOMON, cccccnvcccsncesosesceess

351 F.3d 1 (CA1 2003)

Fa Ch EI 6 6665 60640680005 606nb0sbeenereses

244 F.3d 831 (CA 11 2001)

Pe SE sect ue anesbadensusabnsbeoneeesads us

830 F.2d 1197 (CA1 1987)

Bee Soaks oeceruekaeece ceeuennenveeen

300 F.3d 27 (CA1 2002)

eG Ss nv é bv cba cause ssbedenneeasnaeeenccl

265 F.3d 1 (CA1 2001)

Pg Ee re er rr

449 U.S. 53% (1980)

United States ex rel Jones v. DeRobertis,

766 F.2d 270 (CA7 ),

cert denied, 475 U.S. 1053 (1986)

Se I, BI 6 os cnb0600K0e0eseseescenedes

11 F.3d 223 (CAI 1993)

STATUTES

yp Se | PTET TTT ESTEE TTT TTT TTT

RULES

United States Supreme Court Rule 12

- Vii -

United States Supreme Court Rule 13 ............... 1

United States Supreme Court Rule 14 .............4.. 1

United States Supreme Court Rule 29.6 ............. ii

- Vill -

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 2004

LUIS SPENCER

Petitioner,

v.

ROGER NORTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Pursuant to United States Supreme Court Rules 12, 13,

and 14, the petitioner, Luis Spencer, as he is the Superintendent

of the Massachusetts Correctional Institution at Norfolk, hereby

_ petitions for a writ of certiorari to review the judgment of the

United States Court of Appeals for the First Circuit entered in this

case on December 2, 2003.

OPINIONS BELOW

The opinion of the Court of Appeals reversing the

respondent, Roger Norton’s (“Norton”) convictions for indecent

assault and battery of a minor, is reported as Norton v. Spencer,

351 F.3d 1 (CA1 2003), and is reproduced in the Appendix at

App. 1-13. The opinion of the Massachusetts Appeals Court

affirming the denial of the motion for new trial is unpublished,

and is reproduced in the Appendix at App. 14-23. The

unpublished opinion of the Massachusetts Superior court denying

the motion for new trial is reproduced in the Appendix at App.

23-24.

JURISDICTION

The judgment of the Court of Appeals entered on October

30, 2003. App. 1. The respondent timely filed a petition for

rehearing and suggestion of hearing en banc, which was denied

on December 2, 2003. The issue presented in this case is one of

federal law and was resolved as such by the circuit court of

appeals. This Court has jurisdiction to review the judgment by

petition for writ of certiorari pursuant to 28 U.S.C. § 2254.

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth and Sixth Amendments to the United States

Constitution, made binding on the states through the Fourteenth

Amendment, guarantee all citizens a fair trial, and ensure that

criminal defendants have the right to receive exculpatory

impeachment material from prosecutors. See Brady v. Maryland,

373 US. 83, 87 (1963).

STATEMENT OF THE CASE

i. Frocedural History

On September 14, 1989, a Hampden County,

Massachusetts, grand jury indicted Norton on four counts of

indecent assault and battery of a child under the age of fourteen.

After the indictment was returned, the Commonwealth was

unabie to locate Norton until his arrest on the indictment in the

state of Arizona several years later. On August 13, 1992, the

petitioner’s indictment came for trial before Massachusetts

Superior Court judge William H. Welch and a jury. On August

14, 1992, the petitioner was convicted on three of the four counts,

and on September 15, 1992, the petitioner was sentenced to

approximately sixteen years in state prison. App. 2-4.

On May 14, 1996, the Massachusetts Appeals Court

affirmed the petitioner’s convictions in an unpublished

Memorandum and Order pursuant to Massachusetts Appeals

Court Rule 1:28, as amended, 10 Mass. App. Ct. 942 (1980), in

Commonwealth v. Norton, 38 Mass. App. Ct. 1121, 664 N.E.2d

883 (1996). On July 9, 1996, the Massachusetts Supreme Judicial

Court (“SJC’”) denied the petitioner’s application for leave to

obtain further appellate review (““ALOFAR”) in Commonwealth

v. Norton, 423 Mass. 1103, 667 N.E.2d 1159 (1996). App. 2-4.

On July 9, 1997, the petitioner filed a motion for new

trial, alleging, among numerous other claims, that the

Commonwealth withheld exculpatory evidence. Specifically,

Norton submitted for the court’s inspection various affidavits

alleging, inter alia, that the victim’s cousin, Noel Rodriguez, who

had himself accused Norton of molesting him, and Noel’s mother,

Sonia Rodriguez, had told the prosecutor prior to trial that (1)

Noel had fabricated his own allegations against Norton at the

insistence of the then-eleven year old victirn, (2) Norton had

actually done nothing 1. Noel, and, (3) the victim had told Noel

aay

that he, the victim, had fabricated his own allegations as well.

App. 2-4.

On January 12, 1998, the motion for new trial was denied

by the judge who presided over Norton’s trial. On May 31, 2000,

the Massachusetts Appeals Court affirmed the denial of the new

trial motion in an unpublished Memorandum and Order in

Commonwealth v. Norton, 49 Mass. App. Ct. 1110, 728 N.E.2d

972 (2000). On November 1, 2000, the SJC denied Norton’s

ALOFAR in Commonwealth v. Norton, 432 Mass. 1110, 738

N.E.2d 354 (2000). App. 2-4.

On April 30, 2001, Norton filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Spencer moved to

dismiss the petition as time-barred and the district court agreed in

part and dismissed the bulk of the petition. The district court,

however, further held that the counts alleging violations of the

rule in Brady v. Maryland, 373 U.S. 83 (1963), may survive the

period of limitation “if the allegedly ‘new evidence’ could not

have been ‘discovered through the exercise of due diligence’

prior to approximately January 5, 1997.” See Norton v. Spencer,

USDC No. 01-30070. Those counts concerned allegations by

the petitioner, supported by affidavits, that before trial the

prosecution had been informed by Noel Rodriguez and his

mother, Sonia Rodriguez, that the victim told them that he (the

victim) had fabricated the allegations in the criminal case. App.

2-4.

On March 25, 2003, the district court determined that the

writ should be granted based solely on the petitioner’s Brady

claim. The district court, however, went on to hold that:

Based on the foregoing, [Norton] is entitled, at a

minimum, to a hearing at which the court can

make findings of fact regarding his allegations

that the prosecutor failed to provide exculpatory |

evidence. Given that the Noel and [Sonia]

Rodriguez affidavits are so far entirely

+ 2

See

unrebutted, the court will issue the petition

without an evidentiary hearing, unless [Spencer]

requests one. Counsel for [Spencer] declined to

take a position on this point at oral argument.

Unless [Spencer] requests an evidentiary hearing

by April 11, 2003, the court will allow the

petition. The court at that time will order

petitioner released unless, on or before July 11,

2003, the respondent has instituted proceedings to

retry the petitioner. Pending such further

proceedings, the petitioner shall not be enlarged

on bail, unless ordered released by some court

having competent jurisdiction.

On April 8, 2003, Spencer moved the district court to

reconsider that portion of its order requiring the respondent to

elect whether to request an evidentiary fearing. On April 16,

2003, the district court denied the motion to reconsider, and

ordered that the writ be granted. See Norton v. Spencer, USDC

No. 01-30070.

Spencer moved the district court to stay the issuance of

the writ, but the court denied the motion. Spencer appealed the

district court’s order granting the writ, and the appeal was

docketed in the United States Court of Appeals for the First

Circuit on May 1, 2003. Norton has never cross-appealed. On

May 2, 2003, Spencer moved the First Circuit to stay the Order

granting the writ, and the First Circuit allowed the motion on July

7, 2003. Norton v. Spencer, First Circuit No. 03-1571. The First

Circuit heard argument on September 11, 2003. App. 1.

On October 30, 2003, the First Circuit affirmed the

granting of the writ in Norton v. Spencer, 351 F.3d 1 (CAI 2003).

On December 2, 2003, the First Circuit denied Spencer’s Motion

for Rehearing and Suggestion of Hearing En Banc. Spencer then

moved the First Circuit to stay the mandate so that he could file

ia

the instant petition with this Honorable Court. The First Circuit

granted that motion on December 5, 2003, and Spencer hereby

submits this Petition for a Writ of Certiorari. See Norton v.

Spencer, First Circuit No. 03-1571.

y 3 The First Circuit’s Decision

The First Circuit held that, where the state trial court

denied the motion for new trial and made no express credibility

determination regarding the supporting affidavits, an inference

that the trial judge disbelieved, or even considered, the affidavits

need not be drawn by a federal habeas court. Unlike the state

Appeals Court, the First Circuit stated that it was “unwilling” to

make such an inference. The First Circuit held that the state

court’s finding that the trial judge viewed the affiants as

incredible was an “unreasonable determination of the facts,”

under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). App. 8-10.

The First Circuit further held that, contrary to the state

Appeals Court’s determination (or, in the First Circuit’s view, the

Appeals Court’s “impli[cation]”), the affidavits were admissible

at trial as a matter of Massachusetts evidentiary law. App. 12-13.

The First Circuit affirmed the district court’s granting of the writ

and subsequent order that Norton be retried, as though the

information contained in the affidavits were not mere allegations

but established facts.

REASONS FOR GRANTING THE WRIT

I. THE FIRST CIRCUIT’S DECISJON CONFLICTS WITH

THIS COURT’S HOLDINGS IN MARSHALL V.

LONBERGER AND LAVALLEE V. DELLE ROSE.

In Marshall v. Lonberger, 459 U.S. 422, 433 (1982), this

Court held that a federal habeas court should infer from a state

court’s denial of a motion for new trial that the “failure to grant

relief is tantamount to a finding against the credibility of the

defendant.” See also LaVallee v. DelleRose, 410 U.S. 690, 692

(1973) (same). In granting the writ of habeas corpus here,

however, the First Circuit’s reasoning conflicts with the above

precedent of this Court and other Courts of Appeals. As the

Seventh Circuit noted in an analogous situation:

“It is regrettable that [the trial judge] did not make

an explicit determination of credibility on the

record, but it is plain from the context - and the

treatment of the case by the [state] Supreme Court

[] - that he indeed made this determination. . . .

[The petitioner] has not offered new affidavits or

any other evidence calling into question the

decision of the state courts. He relies essentially

on the proposition that because the deponents’

statements were uncontradicted the judge was

required to credit them. This is not the law. A

judge may disbelieve testimony and he may do

this even without giving reasons. Here the ground

ofa credibility decision was apparent - the judge’s

experience at trial coupled with the vagueness of

the depositions - and we therefore think the

findings entitled to force now”).

United States ex rel. Jones v. DeRobertis, 766 F.2d 270, 272-273

(CA7), cert. denied, 475 U.S. 1053 (1986).

Thus, in the instant case, almost exactly as in the above

cases, the failure of the state trial court to grant relief is

tantamount to a finding against the credibility of Norton’s

affiants, and is, therefore, in the First Circuit’s own words,

“quintessentially a matter of fact, reserved in almost every

circumstance for the trier.” Sanna v. DiPaolo, 265 F.3d 1, 10

(CAl 2001). Accordingly, such a factual finding is

presumptively correct, and can only be overcome by clear and

convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).

Norton has never made, or been asked to make, such a showing.

He will instead simply receive a new trial, approximately twelve

years after his conviction for several counts of indecent assault

and battery ona child. Such a windfall for Norton 1s simply not

in the public interest.

Indeed, the First Circuit, like the district court before it,

rejected the inference that the state trial court implicitly

disbelieved the affidavits, and inferred contrarily that the

affidavits were not considered at all by the state court. The First

Circuit, again like the district court, then based its Brady analysis

ona fundamentally flawed premise: that the allegations presented

in the affidavits were true. This has never been established by

Norton, and certainly has never been conceded by petitioner. It

has instead simply been asserted by Norton’s affiants.

Furthermore, as discussed above, in denying the motion

for new trial and disbelieving those same affidavits, the state trial

court implicitly found that the Commonwealth never possessed

such information.' The federal habeas court apparently made the

‘Indeed, the First Circuit noted in its opinion that “it is

undisputed that the prosecutor never provided Norton with the

information contained in the affidavits.” Norton, 351 F.3d at 7.

Of course, given the state trial judge’s implicit disbelief of the

=

opposite factual finding, in contravention of the AEDPA, and

proceeded with its analysis under Brady.’ That contrary factual

finding infected and undermined the federal habeas court’s

subsequent Brady analysis, rendering that analysis fundamentally

incorrect.

Such a conclusion by the federal court squarely conflicts

with the longstanding authority discussed above, and is

particularly inappropriate in the federal habeas context, where

Norton’s case has “run the entire gamut of a state judicial

affidavits, it is a primary, historical fact that the events described

in the affidavits never happened. There was simply no

“information” for the prosecutor to provide. Once again, the

federal habeas court proceeds as if the affidavits constituted

established facts. This is incorrect; in state court, the crucial,

contrary factual finding, that the affidavits were not credible, was

already made in the Commonwealth’s favor by the state trial

judge.

*As noted, the district court gave Spencer an opportunity

to rebut the affidavits if he chose to by way of an evidentiary

hearing. App. 4. Such a proceeding, however, would have

entirely undercut the fact that the state courts had already found

the affidavits to be incredible as a matter of fact, and, under those

circumstances, saw no need in state post-trial proceedings for the

Commonwealth to attempt to rebut the allegations by way of

counter-affidavits or live testimony. “A party need not put in any

evidence if it thinks the other side’s claims feeble, and the state

put in none at the post-trial hearing. . . . Its choice to be silent was

one the prosecutors were free to make without the creation of a

compulsory inference that the state had something to hide.”

Jones, 766 F.2d at 274.

-9-

system.” Sumner v. Mata, 449 U.S. 539, 551 (1980). Requiring

*Indeed, the practice of ruling on new trial motions as the

state trial court did here is more than well-established in

Massachusetts, and the First Circuit’s erroneous ruling

improperly calls into question this standard state practice, as

elucidated by the SJC in a 1971 decision:

“The weight and import of the affidavits

submitted [in support of the new trial motion]

were likewise for the trial judge’s discretion.

Commonwealth v. Heffernan, 350 Mass. 48, 53 [,

213 N.E.2d 399 (1966)]. He did not have to

accept them as true even though they were

undisputed. Commonwealth v. Sacco, 255 Mass.

369, 450[, 151 N.E. 839 (1926)]. Commonwealth

v. Millen, 290 Mass. 406, 410 [, 195 N.E. 541

(1935)]. Commonwealth v. Doyle, 323 Mass. 633,

637 [, 84 N.E.2d 20 (1949)]. Commonwealth v.

Coggins, 324 Mass. 552, 557 [, 87 N.E.2d 200

(1949)]. In weighing the new evidence presented

he was entitled to make use of his knowledge of

what had taken place at the trial (Commonwealth

v. Sacco, supra, at 451; Commonwealth v. Chin

Kee, 283 Mass. 248, 257 [, 186 N.E. 253 (1933)]),

and he was not required to give reasons for his

action. Commonwealth v. Sacco, supra, at 450.

Finally, there was no requirement that the judge

hear oral testimony in support of the affidavits; he

was free to choose the procedure by which he

would consider the motion. Commonwealth v.

Millen, supra, at 410. Commonwealth v. Coggins,

supra, at 556-557. Commonwealth v. Heffernan,

supra, at 54.

-10-

the state court to say explicitly what is obvious implicitly “would

place the federal court in just the kind of tutelary relation to the

state courts that the [AEDPA] was designed to end.” Hennon v.

Cooper, 109 F.3d 330, 335 (CA7), cert. denied, 522 U.S. 819

(1997). Indeed, the federal courts here have invalidated Norton’s

several convictions simply because he “may have been the victim

not of any constitutional error but merely of a failure of judicial

articulateness.” /d. See also Rashad v. Walsh, 300 F.3d 27, 45

(CA1 2002) (“It is not our function . . . to grade a state court

opinion as if it were a law school examination”). The First

Circuit erred, and acted in conflict with this Court’s precedents,’

Commonwealth v. DeChristoforo, 360 Mass. 531, 543, 277

N.E.2d 100, 108 (1971). See also Commonwealth v. Cook, 438

Mass. 766, 774, 784 N.E.2d 608, 614 (2003) (“The judge denied

the motion [for new trial] without making any specific comments

on the credibility of the defendant’s submissions. It can be

inferred from the judge’s denial of the defendant’s motion,

however, that he discredited the defendant’s contentions stated in

his affidavits and elsewhere”’).

‘The First Circuit’s attempt to distinguish the above cases

is unpersuasive. The First Circuit held that “an inference that the

affiants were incredible is not ‘fairly supported by the record.’”

App. 8. The First Circuit primarily relied on the fact that there

was, in the instant case, no “lengthy hearing on the affidavits.”

App. 9. As the First Circuit has itself once observed, however:

Courts are busy places. We have repeatedly

stated that, even in the criminal context, a

defendant is not entitled as of nght to an

evidentiary hearing on a pretrial or posttria.

motion. . . . In most situations, motions can be

“heard” effectively on the papers, with the parties

sti.

when it held that the state trial court’s denial of the new trial

motion was not tantamount to a presumptively correct finding of

fact regarding the credibility of the affidavits, to which deference

must be given pursuant to the AEDPA. See Parker v. Head, 244

F.3d 831, 837 (CA11 2001) (citing 28 U.S.C. § 2254 (e)(1)).

This Court should grant the instant petition for certiorari to

review the judgment of the United States Court of Appeals for the

First Circuit.

Il. THE FIRST CIRCUIT’S HOLDING THAT THE

AFFIDAVITS WERE ADMISSIBLE AT TRIAL IN

STATE COURT CONFLICTS WITH THE STATE

APPEALS COURT’S DETERMINATION THAT

THE AFFIDAVITS WERE NOT ADMISSIBLE IN

STATE COURT.

Even assuming that the state court believed the

péetitioner’s proffered affidavits, the Massachusetts Appeals Court

held that the statements of these witnesses would not have been

admissible at trial in state court. The First Circuit had no

authority to overrule this authoritative determination of state law.

To the contrary, the federal habeas court was bound by it.

Indeed, in a footnote in its opinion, the First Circuit considered

submitting evidentiary proffers by means of

affidavits, documentary exhibits, and the like.

United States v. McGill, 11 F.3d 223, 225 (CA1 1993) (internal

citations omitted). These observations apply just as well to busy

state courts. The First Circuit’s reasoning here, however,

effectively deprives state courts of the benefit of the deferential-

AEDPA standard when a motion, like the one in this case, is

“heard” on the papers.

~ ia

the question of whether the evidence was admissible in a

Massachusetts court, and held the following:

The state courts never directly addressed whether

the material in Noel’s or Rodriguez’s affidavits

was admissible. The MAC did say, however, that

Rodriguez’s affidavit was ‘one further level of

hearsay removed from the allegedly recanting

victim,’ implying that both affidavits were

inadmissible hearsay. Noel’s affidavit is

admissible, however, because of the prior

inconsistent statement exception to the hearsay

rule. See Commonwealth v. Daye, 469 N.E.2d

483, 490-491 (Mass. 1984).

Norton, 351 F.3d at n.3.

Thus, the First Circuit has overruled the Massachusetts

Appeals Court on a matter of pure state evidentiary law,’ of

‘The First Circuit implies that the state court made no

actual determination regarding the admissibility of the evidence,

and it appears to have made that pure state law determination de

novo itself. Such a hypertechnical critique of a state appellate

court decision, however, would be “grad[ing] a state court

opinion as if it were a law school examination,” Rashad, 300 F.3d

at 45, a method of federal habeas review that Congress ended

when it enacted the AEDPA. Hennon, 109 F.3d at 335. Indeed,

the Massachusetts Appeals Court stated flatly that the affidavits

were hearsay, and, in discussing the affidavits, the Appeals Court

specifically cited Commonwealth v. DeChristoforo, where post-

trial affidavits were properly rejected because “much of the

information stated in the affidavits was hearsay and would not

have been admissible in that form in any event.” DeChristoforo,

277 N.E.2d at 108. The Massachusetts cases cited by the First

ath.

ae

which the state courts are the final arbiter. This the First Circuit

could not do. As this Court has emphatically stated: “‘federal

habeas corpus relief does not lie for errors of state law.’ . . . it is

not the province of a federal habeas court to reexamine state court

determinations of state law questions.” Estelle v. Mc Suire, 502

U.S. 62, 67-68 (1991) (internal citations and quotations omitted).

This is so especially when the state evidentiary ruling is

embedded in a federal Brady analysis. See Breedlove v. Moore,

279 F.3d 952, 963-964 (CA11 2002) (in applying Brady standard,

Florida Supreme Court’s determination that evidence was

inadmissible was binding on federal habeas court “absent extreme

circumstances”).

In the instant case, the First Circuit determined that the

State court incorrectly held that such evidence was inadmissible

in a Massachusetts courtroom, effectively overruled the state

court on that state evidentiary issue, and then affirmed the grant

of the writ. This was contrary to relevant precedent of this

Court,° and to well-established principles of comity and

Circuit in support of its conclusion that the evidence was instead

admissible are, in any event, both inapposite and easily

distinguishable.

‘This result is also contrary to the First Circuit’s own

precedents. As that court once stated:

Habeas review does not ordinarily extend to state

court rulings on the admissibility of evidence.

The federal judiciary holds no roving commission

to monitor case-by-case compliance with rules of

evidence in the trial courts of the several states.

Thus, our role is not to determine whether

[certain] testimony was admissible under the

state’s evidentiary precedents. In that regard, we

-14-

federalism. The First Circuit here erroneously held that a federal

habeas court is the ultimate authority on state evidentiary issues,

and this Court should grant certiorari.

CONCLUSION

For the reasons stated above, the Court should issue a writ

of certiorari to review the judgment of the United States Court of

Appeals for the First Circuit.

March 1, 2004

Respectfully submitted,

THOMAS F. REILLY

Attorney General of Massachusetts

CATHRYN A. NEAVES*

Assistant Attorney General

DEAN A. MAZZONE

Assistant Attorney General

One Ashburton Place

Boston, Massachusetts, 02108

(617) 727-2200

*Counsel of Record

are bound-by the Massachusetts court’s

interpretation of [its] evidentiary law.

Puleio v. Vose, 830 F.2d 1197, 1204 (CA1 1987) (internal

citations and quotations omitted).

xo

APPENDIX

351 F.3d 1

United States Court of Appeals,

First Circuit.

ROGER NORTON

V.

LUIS SPENCER.

Heard Sept.. 11, 2003.

Decided Oct. 30, 2003.

Defendant convicted in state court of four counts of

indecent assault and battery on person under age of 14, 40 Mass.

App. Ct. 1121, 664 N.E.2d 883, petitioned for writ of habeas

corpus. The United States District Court for the District of

Massachusetts, Michael A. Ponsor, J., granted petition. State

appealed. The Court of Appeals, Toruella, Circuit Judge, held

that: (1) Antiterrorism and Effective Death Penalty Act (AEDPA)

standard governed habeas proceeding; (2) findings by state

appellate court were unreasonable determinations of fact, as

would warrant habeas relief; and (3) Brady violation warranted

habeas relief.

Affirmed.

Dean A. Mazzone, Assistant Attorney General, Criminal

Bureau, with whom Thomas F. Reilly, Attorney General, were on

brief, for appellant.

Stewart T. Graham, Jr., with whom Graham & Graham,

was on brief, for appellee.

App. 1

Before: TORUELLA and LIPEZ, Circuit Judges, and

SCHWARZER,’ Senior District Judge.

TORRUELLA, Circuit Judge.

Roger Norton, petitioner-appellee, defends the district

court’s order granting his writ of habeas corpus. After careful

review, we affirm.

I. Background

Roger Norton (“Norton”), was accused of sexually

assaulting Hector Fuentes (“Fuentes”), an eleven year old child.

Fuentes reported Norton’s alleged indecent assault to the state

police after he discovered his cousin, Noel Rodriguez (“Noel”),

crying inside Norton’s camper. Noel also told the police that he

was indecently assaulted by Norton.

Following a pretrial hearing in Massachusetts Superior

Court, the trial judge ruled that Noel was not competent to testify

because he refused to answer questions regarding where Norton

had allegedly touched him. As a result, the Commonwealth of

Massachusetts (“Commonwealth”) did not proceed on the

indictment alleging that Norton indecently assaulted Noel. The

Commonwealth did proceed, however, on the charges against

Norton alleging he indecently assaulted Fuentes.

Fuentes was the only witness to testify to the incidents at

trial. He testified that Norton grabbed his genitalia, without

consent, at least three times. Fuentes also testified that Norton

asked him to have sex on more than one occasion.

6 Of the Northern District of California, sitting by

designation.

App. 2

Norton was convicted on four counts of indecent assault

and battery on a child under the age of fourteen, and sentenced to

incarceration in state prison. On appeal, the Massachusetts

Appeals Court (“MAC”) affirmed the conviction in

Commonwealth v. Norton, 664 N.E.2d 883 (Mass. App. Ct. 1996)

(“Norton I”). The Massachusetts Supreme Judicial Court (“SJC”)

denied Norton’s application for leave to obtain further aprellate

review in Commonwealth v. Norton, 667 N.E.2d 1159 (Mass.

1996) (“Norton IT’).

Some time after the SJC denied Norien’s application for

further appellate review, Norton made two discoveries that he

argued constituted “new evidence” under 28 U.S.C. § 2245(d) (1)

(D). The first discovery involved the timing of the assaults. At

trial, the prosecution established that the alleged assaults occurred

in late 1989, around the time Fuentes’s mother was in the hospital

giving birth. Norton later discovered the birth certificate of

Fuentes’s sibling, who was born in July 1989, not late 1989.

Norton also obtained affidavits stating that he was not a guest in

Fuentes’s cousin’s house, the place where the alleged assaults

occurred, in July 1989.

Second, Norton obtained affidavits from Noel and Noel’s

mother, Maria Sonia Rodriguez (“Rodriguez”), stating that Noel

had fabricated his allegation against Norton at the insistence of

Fuentes and that Fuentes also fabricated his allegations. Further,

Rodriguez added that the Assistant District Attorney and another

person repeatedly told Noel and Fuentes how to testify even after

Noel informed them that none of it was true and that Fuentes had

made it all up. It is undisputed that the prosecutor never provided

Norton with the information contained in Noel’s or Rodriguez’s

affidavits.

Norton moved for a new trial before the original trial

judge based on the new evidence. The motion was denied. The

App. 3

MAC affirmed the denial of Norton’s motion for new trial in

Commonwealth v. Norton, 728 N.E.2d 972 (Mass. App. Ct. 2000)

(“Norton III”). The SJC denied Norton’s application for leave to

obtain further appellate review in Commonwealth v. Norton, 738

N.E.2d 354 (Mass. 2000) (“Norton IV”).

Norton then filed a writ of habeas corpus in the United

States District Court for the District of Massachusetts (“district

court”) claiming, inter alia, that the prosecution violated rights

afforded by Brady v. Maryland, 373 U.S. 83 (1963). The district

court ordered that Norton’s writ of habeas corpus be allowed

unless the Commonwealth timely filed a request for an

evidentiary hearing. Norton v. Spencer, 253 F. Supp. 2d 65, 76

(D. Mass. 2003) (“Norton V”). The Commonwealth did not file

such a request. Rather, the Commonwealth filed a motion to

reconsider. The district court denied the motion and ordered the

habeas writ be granted unless the Commonwealth instituted

proceedings to retry Norton. Norton v. Spencer, 256 F. Supp. 2d

120 (D. Mass. 2003) (“Norton VI”). The Commonwealth moved

for a stay of the district court’s order granting Norton’s request

for habeas relief with this Court. This Court granted the stay

pending disposition of this appeal.

II. Analysis

A. Standard of Review for the District Court

The first question in this case is whether the district court

used the proper standard of review when it granted habeas relief.

In reviewing a judgment on a petition for a writ of habeas corpus,

this Court examines the legal conclusions of the district court,

including the proper standard of review, de novo. Aimanzar v.

App. 4

Maloney, 281 F.3d 300, 303 (1* Cir. 2002), cert. denied, 537 U.S.

817 (2002).

The Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”)

_ prohibits a federal court from granting an

application for a writ of habeas corpus with

respect to a claim adjudicated on the merits in

state court unless that adjudication resulted in a

decision that was contrary to, or involved an

unreasonable application of, clearly established

Federal law, as determined by the Supreme Court

of the United States.

Williams v. Taylor, 529 U.S. 362, 399 (2000) (internal quotations

omitted). However, “AEDPA’s strict standard of review only

applies to a claim that was adjudicated on the merits in state court

proceedings.” Fortini v. Murphy, 257 F.3d 39, 47 (1* Cir. 2001),

cert. denied, 535 U.S. 1018 (2002); see also Ellsworth v. Warden,

333 F.3d 1, 6 (1" cir 2003).° If a claim was not adjudicated on

the merits in a state court proceeding, then the issue is reviewed

de novo. Id.

The parties disagree as to whether Norton’s federal claim

under Brady v. Maryland, 373 U.S. 83 (1963) was adjudicated on

the merits in the state court proceeding. In denying Norton’s

motion for new trial, the trial court stated that Norton

filed a motion for a new trial raising the same

issues as were raised on the direct appeal or that

could have been saised. |Norton’s attorney]... .

° The Commonwealth argues that Fortini is undermined

by Early v. Packer, 537 U.S. 3, 123 S.Ct. 362, 154 L.Ed.2d 263

(2002). We rejected this argument in Ellsworth, 333 F.3d at 6 n.

B

App. 5

did an excellent job in cross-examining witnesses

and developing any inconsistencies. The incident

in [Norton’s] trailer was addressed at trial at some

length. The defendant is unhappy at the facts the

jury felt were proved. Other matters of ‘new

evidence’ were available at the time and could

have been introduced or relied on by the

defendant if it was in his best interest to do so. .

. As trial judge at the time I do not feel that any of

the issues raised by [Norton] has merit deserving

a new trial. Norton got a full fair trial with

competent counsel.

In affirming the trial judge’s decision, the MAC wrote

that the “weight and important of [the] affidavits were for the trial

court’s discretion. [The trial judge] was not required to accept the

statements as true even if they were undisputed. Thus, the judge

could properly determine that these affidavits did not demonstrate

any bad faith on the part of the prosecutor.” Norton III, 728

N.E.2d at 972 (citations omitted). The MAC further explained

that “{iJn light of the fact that much evidence at the trial was

equally calculated to discredit the victim [Fuentes], the judge

could properly regard the affidavits as largely cumulative in their

basic effect. Undisclosed evidence that is cumulative does not

normally require a judge to grant a new trial.” /d. (citing

Commonwealth v. Tucceri, 589 N.E.2d 1216 (1992)).

The district court held that “no state court remotely

addressed” Norton’s federal Brady claim. Norton V., 253 F.

Supp. 2d at 71. As a result, the district court applied de novo

review. Id. at 72. We hold that applying de novo review was

inappropriate as the MAC did address the Brady issue. The

MAC, citing to Tucceri, 589 N.E.2d 1216, held that undisclosed

evidence that is cumulative does not require a new trial. Norton

IIT, 728 N.E.2d at 972. As we have previously held, “Tucceri

states explicitly that it is articulating a state law standard that is

App. 6

more favorable to defendants than the Federal Constitutional

[Brady] standard.” McCambridge v. Hall, 303 F.3d 24, 35 (1"

cir. 2002) (internal quotations and citation omitted). When, as

here, there is a state case “that explicitly says that the state

adheres to a standard that is more favorable to the defendants

than the federal standard . . . we will presume the federal law

adjudication to be subsumed within the state law adjudication.”

Id. Since the MAC addressed the Brady issue, the district court

should not have reviewed the case de novo.

B. The AEDPA Standards

Norton’s claim must be analyzed under the AEDPA

standards because the federal claim was adjudicated in the state

court proceeding. AAEDPA precludes a habeas court from

granting relief, unless the state court holding “was contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United

States” or was based on “an unreasonable determination of the

facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(1)-(2). The Supreme Court

has stated: “Under the “contrary to” clause, a federal habeas court

may grant the writ if the state court arrives at a conclusion

opposite to that reached by this Court on a question of law or if

the state court decides a case differently than this Court has on a

set of materially indistinguishable facts.” McCambridge, 303

F.3d at 36 (citing Williams v. Taylor, 529 U.S. at 412-13).

It is diificult to determine how to approach the analysis

under AEDPA because neither the trial judge nor the MAC

provided a thorough explanation of their decisions. Fortunately,

the result is the same whether the case is viewed as an

unreasonable determination of the facts in light of the evidence

presented in the state court proceeding or an unreasonable

application of clearly established federal law.

App. 7

C. Unreasonable Determination of the Facts

A “determination of a factual issue made by a State court

shall be presumed to be correct. The applicant shall have the

burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1). The

“presumption of correctness is equally applicable when a state

appellate court, as opposed to a state trial court, makes the

finding of fact.” Sumner v. Mata, 455 U.S. 591, 593, 102 S.Ct.

1303, 71 L.Ed.2d 480 (1982).

The Commonwealth argues that, by denying Norton’s

motion for a new trial, the trial court implicitly found the

affidavits to be incredible.’ We disagree. Unlike cases holding

that a failure to make an express ruling is tantamount to a finding

against the credibility of the affiants, there is no indication that

the trial court ever viewed or evaluated the affidavits. Further, an

inference that the affiants were incredible is not “fairly supported

by the record.” See Marshall v. Lonberger, 459 U.S. 422, 103

S.Ct. 843, 74 L.Ed.2d 646 (1983) (implying a lack of credibility

in the absence of an express finding after extensive hearings and

support in the record); LeValle v. Delle Rose, 410 U.S. 690, 695,

93 S.Ct. 1203, 35 L.Ed.2d 637 (1973)(iriplying a ruling where

there is “every indication [the trial judge] applied the correct

standards.”); United States v. Jones, 766 F.2d 270 (7" Cir.

1985)(implying that the trial court found the affidavits incredible,

"In connection with this argument, the Commonwealth

argues that Norton’s Brady claim in the habeas petition was

untimely because the trial court made implicit credibility

determinations. Since we reject the implicit finding argument, we

also reject the argument that the Brady claim was untimely. We

hold that Norton’s claim was timely under the AEDPA.

App. 8

absent an express finding, because only one of the fifteen

witnesses had recanted and recantations are treated with great

skepticism). In Norton’s case, the trial judge did not hold a

lengthy hearing on the affidavits or make any findings of fact.

Nor was there evidence in the record impugning the credibility of

Noel or Rodriguez. Although the trial judge had held Noel

incompetent to testify because he refused to answer questions

regarding where he was touched, the trial judge never rules, or

suggested, that Noel was incredible. We are unwilling to infer

that the trial judge viewed the affiants as incredible when there is

nothing in the record, or in the circumstances of this Case, to

Support such an inference.

This is especially true when the language used by the trial

court suggests that it did not even consider the credibility of the

affidavits. The trial court order stated that Norton “filed a motion

for new trial raising the same issues as were raised on the direct

appeal or that could have been raised.” However, the part of the

motion for a new trial dealing with the affidavits involved new

evidence that was not available and could not have been raised on

direct appeal. This language suggests that the trial court did not

evaluate the affidavits in ruling on the motion for a new trial,

much less that the trial court implicitly found the affidavits to be

incredible.

In affirming the denial of Norton’s motion for new trial,

the MAC stated that the trial judge “was not required to accept

the [affidavits] as true” and “{iJn light of the fact that much

evidence at trial was equally calculated to discredit the victim

[Fuentes], the judge could properly regard the affidavits as

largely cumulative in their basic effect.” Commonwealth vy,

Norton, 49 Mass. App. Ct. 1110, 728 N.E.2d 972. These

statements can be interpreted as findings of fact.

App. 9

As previously discussed, a finding that the trial judge

viewed the affiants as incredible is an unreasonable determination

of the facts. In addition, we agree with the district court that the

state court’s finding that “the affidavits were necessarily

incredible or merely cumulative” is an unreasonable

determination of the facts in light of the evidence presented.

After all, evidence cannot be cumulative when it goes to an issue

that was not known at the time of trial.

It is well established that “impeachment evidence that is

merely cumulative . . . is insufficient to establish prejudice under

Brady.” United States v. Garcia-Torres, 341 F.3d 61 (1* Cir.

2003) citing United States v. Martinez-Medina, 279 F.3d 105 (1"

Cir. 2002). A determination that the affidavits were cumulative,

however, is an unreasonable determination of the facts in light of

the evidence in the record. Cf. Conley v. United States, 323 F.3d

7, 30 (1" Cir.2003)(evidence was cumulative because defendant

was 2'readv aware of essential facts that would allow him to take

advaliaye ot the exculpatory evidence at issue); United States v.

Garcia-Torres, 331 F.3d at 71 (evidence was cumulative when

there was substantial other evidence of the appellants’

involvement in the conspiracy); Lugo v. Munoz, 682 F.2d 7,9 (1"

Cir. 1982) (evidence was cumulative because the facts which

petitioner alleges to have been suppressed were a matter of public

record). As a result, we accord no deference to the appellate

court’s reconstruction of the lower court’s decision. See Parker

v. Dugger, 498 U.S. 591, 597 (1982) (reviewing court overturned

a state court decision not supported by the record using a less

rigorous standard under the previous habeas statute).

box: Se St th ets

The trial court made no finding that the affidavits were

cumulative nor did it mention the affidavits in denying Norton’s

motion. As the Commonwealth admitted, there was no other

evidence against Fuentes directly establishing that the claims

were fabricated. The affidavits, therefore, cannot be classified as

App. 10

|

LL

7

cumulative. Further, the MAC claimed that the trial judge -

“could” properly regard the affidavits as cumulative. It did not

hold that the trial court did regard the affidavits as cumulative.

D. Unreasonable Application of Clearly Established Law

We also agree with the district court that the state court

decisions are an unreasonable application of clearly established

federal law — a holding utterly inconsistent with Brady. It is not

always clear when a decision is an unreasonable application of

federal law. “If it is a close question whether the state decision

is in error, then the state decision cannot be an unreasonable

application.” McCambridge, 202 F.3d at 36. An unreasonable

application exists, however, when there “is some increment of

incorrectness beyond error.” Id. (citation omitted). “The

increment need not necessarily be great, but it must be great

enough to make the decision unreasonable in the independent and

objective judgment of the federal court.” Id. A state court

decision may be “unreasonable if it is devoid of record support

for its conclusion or is arbitrary.” Id. at 37 (citing O’Brien v.

Dubois, 145 F.3d 16, 25 (1* Cir. 1998)). For the reasons

discussed below, we find the state court’s decision arbitrary and

devoid of reason.

When addressing a challenge to the legitimacy of a

criminal prosecution based upon a failure of the prosecution to

disclose exculpatory evidence, courts must consider whether: (1)

the evidence is favorable to the accused; (Z) the evidence was

suppressed by the state; and (3) the petitioner was prejudiced.

Strickler v. Greene, 527 U.S. 163, 281-282 (1999). Indeed,

“[w]Jhen the reliability of a given witness may well be

determinative of guilt or innocence, nondisclosure of evidence

affecting credibility falls within this general rule.” Giglio v.

United States, 405 U.S. 150, 153-154, 92 S.Ct. 763, 31 L.E.2d

104 (1972) (internal quotations and citation omitted). Noel’s

affidavit established that he “made up the story against [Norton]

App. 11

because my cousin [Fuentes] told me to.” The affidavit also

established that Fuentes had told Noel that he too “had made up”

the story about Norton. Such information is evidence that is

clearly favorable to the accused and would have substantially

undermined his judgment of guilt if it had been presented at

Norton’s trial. |

Second, it is undisputed that the prosecutor never

provided Norton with the information contained in the affidavits.

Third, Norton was prejudiced by the failure to disclose the

information contained in the affidavits. Fuentes was the only

witness describing the alleged assaults that led to Norton’s

conviction, thus withholding impeachment evidence that Fuentes

lied about the assault was prejudicial to Norton. See Napue v.

Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959)

(holding that “[t]he jury’s estimate of the truthfulness and

reliability of a given witness may well be determinative of guilt

or innocence”). Prejudice only leads to the undoing of a

conviction, however, when “there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different, a reasonable probability

here being one that is sufficient to undermine confidence in the

outcome.” Ellsworth v. Warden, 333 F.3d at 4 (citing United

States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.E.2d

481 (1985)).® Confidence ia the outcome is particularly doubtful

8 It is true that “[iJnadmissible evidence is by definition

not material.” United States v. Ranney, 719 F.2d 1183, 1190 (i"

Cir. 1983); but see Ellsworth, 333 F.3d at 5 (holding that

“evidence itself inadmissible could be so promising a lead to

strong exculpatory evidence that there could be no justifi ation

for withholding it.”) The state courts never directly add sed

whether the material in Noel’s or Rodriguez’s affidavits were

App. 12

when the withheld evidence impeaches a witness whose

“testimony is uncorroborated and essential to the conviction.”

United States v. Martinez Medina, 279 F.3d 105, 126 (1" Cir.

2002) (citing Giglio v. United States, 405 U.S. at 154-55).

Fuentes’s testimony was uncorroborated and essential to Norton’s

conviction as he was the only witness to testify to the alleged

indecent assaults. Therefore, there is a reasonable probability

that, had the evidence been disclosed to the defense, the outcome

could have been different.

III. Conclusion

We therefore affirm the district court’s conclusion that

habeas be granted.

admissible. The MAC did say, however, that Rodriguez’s

affidavit was “one further level of hearsay removed from the

allegedly recanting victim,” implying that both affidavits were

inadmissible hearsay. Norton II], 728 N.E.2d at 972. Noel’s

affidavit is admissible, however, because of the prior inconsistent

statement exception to the hearsay rule- See Commonwealth v.

Daye, 393 Mass. 55, 469 N.E.2d 483, 490-91 (Mass. 1984)

(restating the established rule that prior inconsistent statements

are admissible for the purpose of impeaching the credibility of a

witness’s testimony). Rodriguez’s affidavit is admissible because

personal observations that the prosecutor improperly coached the

witness are not hearsay. See Commonwealth v. Ortiz-Soto, 49

Mass. App. Ct. 645, 731 N.E.2d 553, 555 n. 2 (Mass. App. Ct.

2000) (stating that personal observations are not hearsay).

App. 13

COMMONWEALTH

vs.

ROGER NORTON

MEMORANDUM AND ORDER PURSUANT TO RULE

1:28

The defendant was convicted by a Superior Court jury of

four counts of indecent assault and battery on a child under the

age of fourteen under G.L. c. 265, § 13B, and his convictions

were affirmed on direct appeal. See Commonwealth v. Norton,

40 Mass. App. Ct. 1121 (1996). His application for further

appellate review was denied. See Commonwealth v. Norton, 423

Mass. 1103 (1996). Subsequently, the defendant filed a motion

for a new trial on the grounds of newly discovered evidence,

prosecutorial misconduct, and ineffective assistance of counsel,

which the motion judge, who was also the trial judge, denied

without an evidentiary hearing.’ The defendant appeals, pro se,

from the trial judge’s order denying his motion for a new trial.

A decision to allow a motion for a new trial lies within the

sound discretion of the trial judge and his decision will not be

reversed unless it is manifestly unjust. See Commonwealth v.

Schand, 420 Mass. 783, 787 (1995). Where, as here, the motion

judge was also the trial judge, his decision is entitled to special

deference. See Commonwealth v. Figueroa, 422 Mass. 72, 77

(1996).

°The defendant also had filed a request for an evidentiary

hearing, along with a motion for appointment of counsel, and a

motion for leave to amend the motion for new trial.

App. 14

1. The defendant contends that the birth certificate of the

complainant’s brother, documents describing the front window of

the defendant’s trailer, and affidavits of eleven individuals

(including the defendant) constitute newly discovered evidence

requiring a new trial. We are inclined to doubt that the proffered

evidence was in fact “newly discovered.”'? We place our

decision, however, on the ground that the evidence was

cumulative of other evidence admitted at trial. See

Commonwealth v. Grace, 397 Mass. 303, 305-306 (1986)

(“newly discovered evidence that is cumulative of evidence

admitted at the trial tends to carry less weight than new evidence

that is different in kind’).

The complainant testified at trial that two of the assaults

took place at the home of his aunt and uncle (the Colons) and

occurred when he was staying with the Colons while his mother

was in the hospital giving birth to his younger brother.'' Three

members of the Colon household testified on behalf of the

defendant that the complainant had never slept over at the Colon

home and had never visited the Colon home without his parents.

As grounds for a new trial, the defendant now offers (1) a birth

certificate indicating that the complainant’s brother was born on

June 7, 1989, and (2) affidavits of four members of the Colon

household, three of whom testified at trial, stating that the

complainant did not sleep over the Colon home on June 7, 8, or

"The Commonwealth argues that the proffered evidence .

is not “newly discovered” as the evidence was known and

available to the defendant at the time of trial in 1992. See

Commonwealth v. Grace, 397 Mass. 303, 306 (1986).

"Two volumes of the trial transcript apparently have been

mislabeled. We refer to the transcript of August 17, 1992 as

volume IIA and the transcript of August 18, 1992 as volume III.

App. 15

in 1989. The birth certificate and affidavits are cumulative of the

testimony presented by the affiants at trial, and there was little

likelihood that the added details would have caused the jury to

reach a different conclusion. See Commonwealth v. Figueroa,

422 Mass. at 79, quoting from Commonwealth v. Grace, 397

Mass. at 306 (“standard for [granting new trial due to] newly

discovered evidence is whether ‘there is a substantial risk that the

jury would have reached a different conclusion had the evidence

been admitted at trial’”).

Evidence regarding the front window of the defendant’s

trailer, through which the complainant testified he saw the

defendant standing naked,'? was also cumulative. As the trial

judge found in his memo denying the defendant’s new trial

motion, “{t]he incident in the defendant’s trailer was addressed at

trial at some length.” Defense counsel had elicited a description

of the trailer’s front window from the complainant on cross-

examination. In addition, a witness familiar with the defendant’s

trailer had testified regarding the dimensions of the window and

trial counsel had used this evidence in his closing argument to

challenge the complainant’s testimony."

The complainant testified that, on one occasion, the

defendant called to him from inside his trailer and that he could

see through the front window of the trailer that the defendant was

naked. The complainant stated that he went inside the trailer and

the defendant offered him five dollars to have sex with him.

'3In his closing, defense counsel stated, “I would question

how [the complainant] is going to see [the defendant] naked

through the window. You heard the description of ihe window

from Mr. Farrell, how it’s about five and a half or six feet off the

ground and the dimensions of the window. You can imagine it’s

going to be high up on the trailer. [The complainant] said he

App. 16

es

a ae ie

It is also worth observing that both the birth certificate

and trailer specification evidence were offered to contradict the

complainant’s testimony. “Newly discovered evidence that tends

merely to impeach the testimony of a witness does not ordinarily

warrant a new trial.” Commonwealth v. Simmons, 417 Mass. 60,

72 (1994). See Commonwealth v. Grace, 370 Mass. 746, 752-

753 (1976) (proffered testimony contradicted trial testimoiiy).

2. Next, the defendant argues that several instances of

prosecutorial misconduct warrant a new trial. First, the defendant

asserted that the prosecutor committed misconduct by failing to

notify defense counsel that she had been informed, prior to trial,

that the complainant had admitted he had fabricated the charges

against the defendant. In support of this claim, the defendant

offered the affidavits of Noel and Maria Rodriguez staiing that

Maria had informed the prosecutor that the complainant had told

Noel that he had “made up” his story about the defendant. The

weight aad import of these affidavits were for the trial judge’s

discretion. See Commonwealth v. DeChristoforo, 360 Mass. 531,

543 (1971). He was not required to accept the statements as true

even if they were undisputed. See ibid. Thus, the judge could

properly determine that these affidavits did not demonstrate any

bad faith on the part of the prosecutor. See Commonwealth v.

Fazio, 375 Mass. 451, 454 (1978) (bad faith will not be

presumed); Commonwealth v. Errington, 390 Mass. 875, 883

(1984).

Moreover, the affidavits were not those of trial witnesses

who later recanted. Rather, they were in Noel’s case a statement

to the effect that the victim told Noel that “he had made up a

story” about the defendant, and, in the mother, Maria Rodriguez’s

could see the defendant’s whole body inside the trailer through

that window. It makes absolutely no sense at all.”

App. 17

case, one further level of hearsay removed from the allegedly

recanting victim. In light of the fact that much evidence at the

trial was equally calculated to discredit the victim, the judge

could properly regard the affidavits as largely cumulative in their

basic effect. Undisclosed evidence that is cumulative does not

normally require a judge to grant a new trial. See Commonwealth

v. Tucceri, 412 Mass. 401, 414 (1992).

The defendant also asserts that the prosecutor improperly

asked Maria Colon to “explain to the jury about some deed that

[the defendart] gave you to hold?” Even assuming that this

question was improper, it did not prejudice the defendant. The

judge sustained the defendant’s objection and the witness never

answered the question. In addition, the judge explicitly instructed

the jury that an unanswered question did not constitute evidence,

and the jury is presumed to have followed that instruction. See

Commonwealth v. Watkins, 425 Mass. 830, 840 (1997)."*

The defendant further claims that the prosecutor made

improper comments during her opening statement and closing

argument. The defendant, however, did not challenge these

remarks at trial or on direct appeal, as he could have, and thus the

issue is deemed waived.'® See Mass. R. Crim. P. 30 (c) (2), 378

Mass. 901 (1979); see also Commonwealth v. McLaughlin, 364

“The judge instructed “If a question was asked and it ‘wae

never answered or if a question was asked and it was objecied to

and the objection was sustained and the question contained any

facts in the question . . . that’s not evidence, because a person can

put all kinds of facts into a question, maybe full well knowing it’s

never going to be answered.”

‘SThe defendant objected to portions of the prosecutor’s

opening and closing at trial. He did not, however, object to any

of the comments contested on appeal.

App. 18

Mass. 211, 229 (1973) (“a motion for new trial may not be used

2° a vehicle to compel a trial judge to review and reconsider

questions of law . .. which could have been raised at the trial and

in appellate review after trial but which were not so raised”’).

While a judge may give relief when a waived issue is raised for

the first time by a motion for ~ .:ew trial, this power “should be

exercised only in those extraordinary cases where, upon sober

reflection, it appears that a miscarriage of justice might otherwise

result.” See Commonwealth v. Curtis, 417 Mass. 619, 626

(1994). There is no such risk here.

The prosecutor’s reference in her opening statement to the

complainant’s anticipated testimony was proper. The prosecutor

was entitled to explain in her opening statement the facts she

reasonably and in goud faith expected to prove at trial. See

Commonwealth v. Errington, 390 Mass. at 883. The only

evidence to support the defendant’s allegations that the

complainant’s testimony was false and the prosecutor knew it to

be false are the affidavits of Noel and Maria Rodriguez. Again,

the weight and import of the affidavits were for the trial judge’s

discretiten. See Commonwealth v. DeChristoforo, 360 Mass. at

543.

In addition, the prosecutor’s closing argument did not

misstate the evidence or improperly appeal to the jury’s

sympathies. The prosecutor’s characterization of the defendant’s

acts and her comment that these acts “hurt” the complainant were

based on the complainant’s testimony and reasonable inferences

drawn from that evidence. See Commonwealth v. Freeman, 430

Mass. 111, 118 (1999) (“arguments based on testimony submitted

at trial and its logical conclusions are proper”). The rhetorical

questions posed by the prosecutor were supported by the

consciousness of guilt evidence presented at trial and did not ask

the jury to engage in any improper speculation.'® Finally, the

complainant testified, over objection, that he heard his younger

cousin crying inside the defendant’s trailer. The prosecutor was

entitled to mention this fact in her closing. See Commonwealth

vy. Freeman, 430 Mass. at 118.

; 3. The defendant’s numerous ineffective assistance of

counsel claims also ere without merit.'’ “[FJailure to make an

opening statement . . . does not form the basis for a claim of

ineffective assistance of counsel.” Commonwealth v. Cohen, 412

Mass. 375, 391 (1992). In addition, trial counsel’s failure to offer

in evidence documents detailing the defendant’s trailer did not

constitute ineffective assistance of counsel. See Commonwealth

v. Medina, 20 Mass. App. Ct. 258, 261 (1985) (“ineffective

assistance is not established simply by showing that trial counsel

failed to offer certain evidence”). As the evidence relating to the

defendant’s trailer was merely cumulative of the evidence

presenied at trial, see supra, counsel’s failure to offer it did not

deprive the defendant of an otherwise substantial, material

ground of defense. See ibid.

The prosecutor stated: “You may well wonder if in [the

defendant]’s mind [the complainant]’s words were ringing? Was

he thinking about how [the complainant] said I’m going to tell my

mother? That’s for you to decide.”

"Although the defendant did not raise his ineffective

assistance claims on direct appeal, the deiendant’s trial counsel

and appellate counsel both were associateu vith the Committee

for Public Counsel Services, and, therefore, these claims are not

waived. See Commonwealth v. Egardo, 426 Mass. 48, 49-50

(1997).

App. 20

The defendant also faults trial counsel for failing to call

the complainant’s mother to testify that the complainant’s family

had filed a civil suit against the defendant. Such testimony, the

defendant contends, would have shown that the complainant had

a possible bias against the defendant. Even if the defendant were

correct in that assessment, aspects of the mother’s testimony

would have been favorable to the Commonwealth,"® and trial

counsel’s decision not to call her was tactically reasonable. See

Commonwealth v. Colantonio, 31 Mass. App. Ct. 299, 304 (1991)

(not ineffective assistance to decide against introduction of

evidence which although somewhat supportive was also

damaging).

Lastly, trial counsel’s failure to investigate the

. defendant’s reasons for leaving the Sunledge Campgrounds, the

trailer park where the defendant resided, does not amount to

ineffective assistance of counsel. The Commonwealth argued at

trial that the defendant’s abrupt departure from Sunledge

Campgrounds indicated the defendant’s consciousness of guilt.

The defendant urges that investigation would have revealed that

the defendant left Sunledge at the “insistence of Attorney Jack

Schubert with consultation from State Trooper Susan Mosman

[because the] defendant’s life had been threatened.”'’ Without

‘In the disposition of the defendant’s direct appeal in a

memorandum and order pursuant to Rule 1:28 of this court, we

found that since the complainant testified that he told his mother

about what the defendant did to him, “the mother’s testimony was

equally favorable to both sides.” Commonwealth v. Norton, 40

Mass. App. Ct. 1121 (1996).

Attorney Jack Schubert had provided legal advice to the

defendant in the past. He did not, however, represent the

defendant in this case.

App. 21

corrohorating affidavits from Attorney Schubert or Trooper

Mosman, the judge reasonably could doubt that counsel’s

investigation into the defendant’s reasons for leaving Sunledge

“might have accomplished something material for the defense.”

Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).

4. As the Commonwealth asserts, by denying the

defendant’s motion for a new tria!, the motion judge implicitly

denied the defendant’s ancillary motions. See Commonwealth v.

Campiti, 41 Mass. App. Ct. 43, 52 (1996). The decision to allow

the defendant’s motion for appointment of counsel and motion to

amend his motion for new trial lay within the sound discretion of

the motion judge. See Commonweaith v. Conceicao, 388 Mass.

255, 263-264 (1983) (motion to appoint counsel on a motion for

new trial); Commonwealth v. Pina, 1 Mass. App. Ct. 853, 854

(1973) (no error for judge to discredit affidavit, and thus deny

motion to amend the motion for new trial). We discern no abuse

of discretion in the denial of these motions.

5. A judge may rule on a motion for a new trial “on the

basis of the facts alleged in the affidavits without further hearing

if no substantial issue is raised by the motion or affidavits.”

Mass. R. Crim. P. 3C (c)(3), 378 Mass. 901 (1979). Ordinarily,

appellate courts defer to the discretion of the trial judge on the

question of whether or not an evidentiary hearing is required in

any particular case. See Commonwealth v. Licata, 412 Mass.

654, 660 (1992). For the reasons set forth above, the affidavits

and proffered evidence accompanying the defendant’s motion did

not raise a “substantial issue,” and the trial judge did not err in

determining that the defendant’s motion did not warrant an

evidentiary hearing. See Commonwealth v. DeVincent, 421

Mass. 64, 68-69 (1995).

6. Finally, as we perceive no error, there can be no

cumulative prejudicial effect.

App. 22

Order affirmed.

By the Court (Armstrong, C.J.,

Smith & Brown, JJ.),

Ashley Ahern

| Clerk

Entered: May 31, 2000

App. 23

COMMONWEALTH OF MASSACHUSETTS

HAMPDEN, ss SUPERIOR COURT

CRIMINAL ACTION

NO. 89-5634 THRU

89-5638

COMMONWEALTH

V.

ROGER NORTON

MEMORANDUM

The defendant was convicted of indecent assault and

battery on a child under 14. He appealed the conviction and it

was affirmed by the Appeals Court on May 14, 1996. 40 Mass.

App. Ct. 1121. He has now filed a motion for new trial raising

the same issues as were raised on the direct appeal or that could

have been raised. Attorney Hammerschmith , who represented

the defendant did an excellent job in cross-examining witnesses

and developing any inconsistencies. The incident in the

defendant’s trailer was addressed at trial at some length. The

defendant is unhappy at the facts the jury felt were proved. Other

matters of “new evidence” were available at the time and could

have been introduced or relied on by the defendant if it was in his

best interest to do so.

The Appeals Court specifically dealt with the issue of the

search of his wallet and rulings were made on the extent of cross-

examination; a requested missing witness instruction and

consciousness of guilt evidence.

As trial judge at the time I do not feel that any of the

issues raised by the defendant has merit deserving of a new trial.

App. 24

The defendant got a full fair trial with competent counsel.

Commonwealth v. Curtis, 417 Mass. 619, 624, 626 (1994);

Commonwealth v. Martinez, 420 Mass. 622, 624 (1995).

/s/ William H. Welch

William H. Welch

Justice of the Superior Court

Dated: January 12, 1998

/ bmr

App. 25