Commonwealth v. Douglas W. Burns.

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,

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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).

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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

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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.

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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

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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

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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,

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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.

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