Commonwealth v. Eduardo Rodriguez.

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

25-P-67

COMMONWEALTH

vs.

EDUARDO RODRIGUEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2018, a Superior Court jury convicted the defendant of

aggravated rape, kidnapping, indecent assault and battery, and

unarmed robbery.1 In a subsequent jury-waived trial, the trial

judge found the defendant guilty of being a subsequent offender

with respect to the aggravated rape convictions. In 2022, a

panel of this court affirmed the defendant's convictions in an

unpublished decision. See Commonwealth v. Rodriguez, 101 Mass.

App. Ct. 1113 (2022). The self-represented defendant now

appeals a Superior Court judge's orders denying his motions for

postconviction discovery and appointment of postconviction

counsel. We affirm.

1 As a lesser included offense of armed robbery.
Discussion. 1. Postconviction discovery. In December

2024, the defendant filed a pro se motion seeking records,

including from the Somerville Police Department,2 of "any prior

allegations of a sexual assault made by [the victim]."3 The

defendant contends that the motion judge abused his discretion

by denying the defendant's motion for postconviction discovery.

See Commonwealth v. Ware, 471 Mass. 85, 94-96 (2015). We

disagree.

"The purpose of postconviction discovery is to allow a

defendant to gather evidence to support an apparently

meritorious claim . . . [where] the evidence that can be adduced

to support the claim is unknown to the court (quotation and

citation omitted)." Ware, 471 Mass. at 94. "When requesting

such discovery, a defendant by affidavit must make a sufficient

showing that the discovery is reasonably likely to uncover

evidence that might warrant granting a new trial" (quotation and

citation omitted). Id.

2 The defendant alleged in his motion that the victim had
moved from Somerville to Boston, where the rape occurred.

3 After trial, the defendant made a request under the State
public records law, G. L. c. 66, § 10, to the Somerville Police
Department "for any and all reports, investigations, and
information pertaining to [the victim] or her prior
allegations." The Somerville Police Department responded that
they could neither confirm nor deny the existence of such
records without a court order.

2
Here, the defendant made no showing that records of prior

sexual assaults alleged by the victim existed or were likely to

warrant granting a new trial. The defendant's affidavit

supporting the motion for discovery asserted only that there

were "no other means" by which he could obtain the requested

information. To the extent the defendant argued in his motion

that an entry in a medical record from his trial demonstrated

that the victim was sexually assaulted previously, we agree with

the motion judge that, in context, "[the phrase] '[s]ubsequent

encounter' has nothing to do with a prior accusation. It means

that the physician who is examining the patient [was] not the

medical professional providing acute care at the first encounter

[with the victim]." Moreover, even if records of a prior

allegation of sexual assault by the victim existed, they would

not be discoverable or admissible at a new trial based on the

defendant's motion. See Commonwealth v. Bohannon, 376 Mass. 90,

95 (1978) (requiring "factual basis from independent third-party

records for concluding that prior allegations of rape had, in

fact, been made and were, in fact, untrue").4

4 The defendant's trial motions for similar records were
allowed to the extent any prior claims by the victim were
"false." Nevertheless, we note that the admissibility of prior
false allegations pursuant to Bohannon, 376 Mass. at 95, is
"[r]ooted in the misogynist belief that women are prone to lying
about sexual assault." Commonwealth v. Mcfarlane, 493 Mass.
385, 397-398 (2024) (Cypher, J., concurring).

3
Where the defendant made no showing that the requested

information existed -- at the Somerville Police department or

anywhere else -- or that such information was likely to uncover

relevant evidence, we conclude that his motion for posttrial

discovery was an unjustified "fishing expedition." See Ware,

471 Mass. at 94. We therefore discern no abuse of his

discretion in the judge's denial of the defendant's motion for

postconviction discovery.

2. Postconviction counsel. Shortly after his request for

posttrial discovery in December 2024, the defendant filed a pro

se motion for appointment of counsel to litigate his motion for

a new trial. The defendant asserts that it was error for the

judge to deny his motion. "[A]n indigent defendant does not

have an absolute right under any provision of the United States

Constitution or the Massachusetts Declaration of Rights to

appointed counsel in preparing or presenting his motion for a

new trial." Commonwealth v. Conceicao, 388 Mass. 255, 261

(1983). We review the denial of a motion for counsel in

connection with a new trial motion for abuse of discretion. See

Commonwealth v. Monteiro, 482 Mass. 1007, 1007 (2019).

Here, the judge denied the defendant's motion because more

than a year earlier the Committee for Public Counsel Services

(CPCS) had declined to represent the defendant on the same

motion for a new trial. In his order, the judge stated, "[t]he

4
Court will not refer the matter again . . . but the defendant

can himself correspond with CPCS." The defendant does not claim

in this appeal that he made any further efforts to contact CPCS

regarding representation. On this record, we discern no abuse

of discretion in the judge's denial of the defendant's motion

for counsel.

Orders denying motions for
postconviction discovery
and appointment of counsel
affirmed.

By the Court (Desmond,
Hershfang & Brennan, JJ.5),

Clerk

Entered: May 26, 2026.

5 The panelists are listed in order of seniority.

5