DocketNumber: 17–P–223
Citation Numbers: 102 N.E.3d 1031, 92 Mass. App. Ct. 1126
Filed Date: 2/8/2018
Status: Precedential
Modified Date: 7/24/2022
The defendant, Isaias Rodriguez, appeals from the order denying his sixth motion for a new trial. We affirm.
Discussion. "We review the denial of a motion for new trial 'only to determine whether there has been a significant error of law or other abuse of discretion.' " Commonwealth v. Indrisano,
1. Newly discovered evidence. The defendant claims that the judge abused his discretion in denying the defendant's motion because newly discovered evidence-specifically, a building permit application demonstrating that the addition to the defendant's house, where the victim testified he first sexually assaulted her, had not been completed at the time-casts real doubt on his convictions.
"A defendant seeking a new trial on the ground of newly discovered evidence must establish both that the evidence is newly discovered and that it casts real doubt on the justice of the conviction." Rosario,
"We need not reach the issue of whether the evidence is 'newly discovered,' however, since it plainly was waived." Cowels,
The defendant himself signed the building permit application in 1993. With reasonable diligence, he or his attorney could have obtained a copy for use at his trial in 2002 or in any of his previous five new trial motions. It does not qualify as "newly discovered" evidence.
Furthermore, while the building permit suggests that construction could not have commenced until 1993, it does not provide a completion date. If the permit had been admitted at trial, the jury could have reasonably concluded that construction was completed in 1993 and that the assault occurred later that year. Moreover, the evidence would have been relevant only to impeach the victim's testimony. "Newly discovered evidence that tends merely to impeach the credibility of a witness will not ordinarily warrant a new trial." Commonwealth v. Ortiz,
2. Integrity of the grand jury proceedings. The defendant also claims that the Commonwealth impaired the integrity of the grand jury by withholding the building permit application. Like his claim of newly discovered evidence, this claim is waived and we review any error under the miscarriage of justice standard.
The defendant bears the burden of demonstrating that the integrity of the grand jury process was impaired. See Commonwealth v. Clemmey,
3. Claim of perjured testimony. Finally, the defendant claims he is entitled to a new trial because the victim lied about the timing of the assault in the addition and that she and her boy friend lied about the number of times he had visited her bedroom. This court has addressed the defendant's claims regarding witness credibility in at least two of his prior appeals. The current version of the claim is waived, and it does not suggest a substantial risk of a miscarriage of justice.
Order denying sixth motion for new trial affirmed.