Commonwealth v. James M. O'neil.

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-461

COMMONWEALTH

vs.

JAMES M. O'NEIL.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1981, after a jury trial, the defendant was convicted of

two counts of rape of a child and two counts of indecent assault

and battery on a child under fourteen years of age. The sexual

assaults occurred in 1978, and the victims, D.R. and R.W., were

eleven and twelve year old boys at the time. On direct appeal,

this court affirmed the defendant's convictions in Commonwealth

v. O'Neil, 14 Mass. App. Ct. 978 (1982). The defendant's first

motion for new trial was denied without an evidentiary hearing

in 1985. In 2020, the defendant filed a second motion for new

trial, the motion judge held an evidentiary hearing, and later

denied the motion in a thoughtful and comprehensive memorandum.

The judge subsequently denied the defendant's motion to

reconsider the denial. On appeal, the defendant raises a
variety of claims concerning the denial of the new trial motion.1

We affirm.

Discussion. 1. Victims' 2006 statements. The defendant

claims that he is entitled to a new trial based on claimed newly

discovered evidence that the victims, nearly three decades after

their sexual assaults, purportedly recanted their identification

of the defendant as the man who raped them. We disagree.

"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." Commonwealth v. Domino, 465 Mass. 569, 582

(2013), quoting Commonwealth v. Grace, 397 Mass. 303, 305

(1986). The defendant "also bears the burden of demonstrating

that any newly discovered evidence is admissible." Commonwealth

v. Weichell, 446 Mass. 785, 799 (2006). "In considering a

motion for a new trial based on newly discovered evidence, it

[is] [within] the judge's discretion to determine the weight and

import of affidavits submitted . . . The abuse of discretion

standard is not altered when the newly discovered evidence is an

alleged recantation by a material witness" (citation omitted).

1 The defendant's separate appeals from the orders denying his
motions for new trial and to reconsider were consolidated for
briefing and decision. The defendant failed to address any
aspect of the memorandum and order on the latter motion, waiving
that appeal.

2
Domino, supra. "In such circumstances, 'the duty of the trial

judge is to give grave consideration to the credibility of the

witness's new testimony.'" Id. at 582-583, quoting Commonwealth

v. Robertson, 357 Mass. 559, 562 (1970).

Here, the claimed newly discovered evidence is the two

victims' 2006 purported recantations made to the defendant's

private investigator, John Ahern. In the most generous light,

these statements call into question whether the victims had

properly identified the defendant as their rapist.2 But it is

difficult to conclude that these statements are newly discovered

evidence. "Newly discovered evidence is evidence that was

unknown to the defendant or counsel and not reasonably

discoverable by them at the time of trial." Commonwealth v.

Sullivan, 469 Mass. 340, 350 n.6 (2014), citing Grace, 397 Mass.

at 306. As both victims were available to the defendant at

trial, and both were cross-examined, the reliability or accuracy

of their identification of the defendant was reasonably

discoverable at trial. See Grace, supra ("The defendant has the

2 As the motion judge found, what the victims purportedly told
Ahern was not entirely exculpatory. In fact, R.W. maintained
that the defendant may well have been the perpetrator, and D.R.
never said that he was not, despite language in Ahern's report
suggesting otherwise. However, at trial, R.W. testified that,
when he saw the defendant during the showup identification
procedure, there was no doubt in his mind that the defendant was
the person who had raped him. D.R. testified that during the
showup, he noted the defendant's distinctive teeth and voice,
and recalled: "I said that was definitely him."

3
burden of proving that reasonable pretrial diligence would not

have uncovered the evidence"). In any event, the proper denial

of the motion for new trial does not turn on this issue, and we

will assume the evidence was newly discovered.

Even if the evidence was newly discovered, it was still the

defendant's burden to establish that the motion judge abused his

discretion by concluding that it would not have cast real doubt

on the justice of the defendant's convictions. See Grace, 390

Mass. at 305-307; Commonwealth v. Coutu, 88 Mass. App. Ct. 686,

700 (2015). The first hurdle for the defendant in carrying this

burden was that, as the motion judge properly found, the

evidence was not admissible. As the motion judge determined,

and the defendant conceded in his memorandum in support of his

motion for new trial, the statements Ahern attributed to the

victims are inadmissible hearsay. Despite his concession, the

defendant claims these statements would be admissible under the

exception to the hearsay rule articulated in Commonwealth v.

Drayton, 473 Mass. 23, 40 (2015). We disagree.

In Drayton, the Supreme Judicial Court noted that in "the

vast majority of cases, the established hearsay exceptions will

continue to govern the admissibility of hearsay evidence at most

criminal trials," but a "constitutional hearsay exception" might

operate "in the rarest of cases, where otherwise inadmissible

evidence is both truly critical to the defense's case and bears

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persuasive guarantees of trustworthiness." Drayton, 473 Mass.

at 40. At issue in Drayton was a statement that was contained

in an affidavit that directly contradicted the testimony of a

key witness for the prosecution, who claimed to have witnessed

the crime. Id. at 24. The court concluded that the affidavit

was "critical to the defense," but that a remand was required to

determine whether the affidavit bore "persuasive assurances of

trustworthiness." Id. at 36.

In this case, as noted above, the victim's statements are

not directly contradictory to any of the trial testimony as were

the statements recited in an affidavit in Drayton. But even if

they were, as the motion judge found, the statements do not bear

persuasive guarantees of trustworthiness. Ahern failed to have

either victim sign an affidavit, and both had died before the

evidentiary hearing was conducted in 2020. When D.R. spoke with

Ahern, he was under the influence of drugs, he was in poor

physical condition, and his statements were disjointed. Also,

Ahern admitted that his report did not actually record the

statements made to him, but rather, as the motion judge found,

it "reflected statements that he pieced together from a

difficult-to-understand conversation with D.R."3 When Ahern

3 As the motion judge noted, one of the difficulties of this case
is that we do not know exactly what the victims said to Ahern.
Despite quoted language in the report, Ahern testified that the
report was "not an affidavit" and was not based on

5
spoke to R.W., he was similarly struggling with substance abuse.

As the motion judge found, he was living at a shelter for drug

users, and "almost immediately refused to cooperate further,

suggesting that his statements likewise are of doubtful

reliability."

Furthermore, as the motion judge found, Ahern failed to

create a reliable record of the victims' statements, and neither

victim "ever confirmed in any reliable format the substance of

what Ahern claimed they said." In fact, both victims were aware

that Ahern wanted to document their statements and understood

that their initial statements were not necessarily "on the

record," and "both failed or refused to assist Ahern further

after preliminary interviews." The statements that do exist do

not bear hallmarks of reliability as was the case in Drayton.

See Dayton, 473 Mass. at 36-38.

Finally, even if the victims' statements were admissible,

and they constituted recantations, the defendant would not be

entitled to a new trial. See Commonwealth v. Tobin, 392 Mass.

604, 618-619 (1984). Even as recantations, albeit equivocal,4

contemporaneous notes because he did not take any; and Ahern was
suffering from Alzheimer's disease at the time of the hearing,
which made reconstruction of the statements even more difficult.
4 As the motion judge found, at best, D.R. told Ahern he was

unsure whether the defendant raped him and that he "may" have
had the wrong man. Ahern's report also indicated that R.W. said
that he, too, had doubts, but offered to meet with the defendant
to decide which of them would apologize to the other, the

6
the evidence could only be offered as impeachment of the

victims' testimony, which is not ordinarily a basis for granting

a new trial. See Commonwealth v. Lo, 428 Mass. 45, 53 (1998).

See also Commonwealth v. Berry, 481 Mass. 388, 400 (2019) (new

evidence "that tends merely to impeach the credibility of a

witness will not ordinarily be the basis of a new trial"

[citation omitted]). Given this, and how the reliability of the

statements was impaired, the impeachment value of the evidence

is questionable. In the end, the "newly" discovered evidence

would not have cast real doubt on the justice of the

convictions, and the motion judge did not abuse his discretion

by denying the motion for new trial on this ground. See

Commonwealth v. Santiago, 458 Mass. 405, 414 (2010) (abuse of

discretion standard not altered when newly discovered evidence

is alleged recantation by material witness).

2. Trial issues. The defendant also raises a variety of

claimed trial errors which he argues should have been raised by

counsel, and which resulted in him receiving ineffective

assistance of counsel. To his credit, the defendant

acknowledges that these claims, as the motion judge properly

concluded, could have been raised on direct appeal or in a prior

motion for new trial, which limits our review to whether there

defendant for the rape, or R.W. for misidentifying the
defendant.

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was error, and if so, whether it created a substantial risk of a

miscarriage of justice. See Commonwealth v. Randolph, 438 Mass.

290, 295-296 (2002).

A. Exclusion of mother's testimony.5 The defendant claims

that the trial judge erred by foreclosing the defendant's mother

from testifying to what Detective John Ridlon asked R.W. during

the showup identification procedure. In particular, the defense

sought to elicit from the defendant's mother her testimony

regarding something that "Ridlon repeatedly kept asking R[.W.,]"

but was prevented from doing so based on the Commonwealth's

hearsay objection, which the trial judge sustained. As the

motion judge noted, it is not clear that this testimony was

being adduced for the truth, and thus, it would not have been

hearsay as the defendant now claims. See Commonwealth v. Purdy,

459 Mass. 442, 452 (2011); Mass. G. Evid. § 801(c) (2022).

As the motion judge did, we too will assume that the

objection should not have been sustained, but it is not a ground

for a new trial for a few reasons. First, at a sidebar

5 In a single sentence, the defendant also claims that he was
similarly foreclosed from testifying about the showup. This
does not constitute an appellate argument, and we treat it as
waived. See Mass. R. A. P. 16 (a) (9), as appearing in 481
Mass. 1628 (2019). See also Commonwealth v. Candelario, 446
Mass. 847, 859 (2006), quoting Commonwealth v. Donahue, 430
Mass. 710, 714 n.1 (2000) (single sentence claim "[in]adequate
for appellate consideration"). Even if the claim were not
waived, we would reach the same result as we do with the
defendant's claim relative to his mother.

8
discussion, defense counsel failed to explain why the intended

testimony was not hearsay, let alone the constitutional argument

he now makes.6 See Commonwealth v. Amirault, 424 Mass. 618, 641

n.15 (1997) ("A constitutional right is, in most cases . . . a

right to insist that things be done in a certain way, but it is

not a right that they be done in that way if the defendant does

not choose to insist. . . . [A] right that must be claimed is

not denied if it is not claimed, and the proceeding in which the

claim is not made is, in that respect, wholly free from error").

6 At sidebar, the following colloquy occurred:

The judge: "Go ahead, sir."

Defense counsel: "Judge, I am at the posture now[.] I
think, she is entitled to testify as to what went on in her
house, Your Honor. You have allowed in the testimony of
the boys, the testimony of Ridlon on the basis of fresh
complaint. I think she is entitled at this point now, in
the inter[ests of] justice, to tell exactly what happened."

The judge: "Are you making a legal argument or an
emotional argument?"

Defense counsel: "No, I am not making any emotional
argument. I have never tried a case on an emotional
basis."

The judge: "Why not?"

Defense counsel: "I know, I don't think it's right to do."

The judge: "Okay. The objection is sustained. It's
hearsay. Thank you."

9
Second, defense counsel failed to make an offer of proof as

to what the witness's answer would have been or why the

testimony was proper.7 "An offer of proof may assist the trial

judge in making the correct ruling. And the presence of an

offer of proof in a record on appeal enables an appellate court

to determine whether an error was made and, if so, how harmful

it was to the defendant." Commonwealth v. Chase, 26 Mass. App.

Ct. 578, 581 (1988). See Mass. G. Evid. § 103(a)(2) (2022).

Third, as the motion judge observed, defense counsel

extensively cross-examined both victims, and thus, had every

opportunity to develop this evidence from them, but he did not.

Furthermore, as the motion judge properly held, "much of what

[the defendant] and his mother now claim should have been

admitted is not what was said but rather what Ridlon and the

victims allegedly did -- that R.W. initially had no reaction to

7 In her 2021 affidavit, the defendant's mother offered for the
first time that she would have testified that R.W. initially
"had no reaction" upon seeing the defendant and said, "[i]t's
not him;" that Ridlon repeatedly asked R.W. "something," then
R.W. left the room; then D.R. came into the room and said,
"that's not him," indicating the defendant, and then D.R. left
the room with a police officer. Putting aside that the
defendant's mother could not indicate what Ridlon had supposedly
said, the judge was not required to credit her affidavit filed
forty years after the trial. See Commonwealth v. Buckman, 461
Mass. 24, 43 (2011) ("A judge is not required to credit
assertions in affidavits submitted in support of a motion for a
new trial, but may evaluate such affidavits in light of factors
pertinent to credibility, including bias, self-interest, and
delay").

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[the defendant] and was taken out of the room by Ridlon, after

which another officer brought in D.R., who also allegedly failed

to identify [the defendant] as his attacker. Leaving aside what

the police officer asked the victims, nothing prevented [the

defendant] or his mother from testifying to these events at

trial."

In any event, as the Commonwealth claims, the meaningful

event, i.e., that Ridlon said something to R.W. and D.R. during

the showup, was in evidence. The defendant's mother testified

that, when the defendant came downstairs during the showup, she

observed a conversation between R.W., D.R., and Ridlon. With

this evidence, nothing precluded the defendant from arguing that

Ridlon may have influenced the identification procedure. To the

extent there was any error, the defendant has failed to

establish that it created a substantial risk of a miscarriage of

justice.

B. Exclusion of the defendant's and his friends'

testimony. The defendant also claims that the trial judge erred

in failing to permit him and two other witnesses (Harry Coates

and Edward Reid), primarily on hearsay grounds, from testifying

as to what they told Ridlon on the night of the incident. The

defendant asserts that these statements would have impeached

Ridlon's testimony that the defendant and Coates did not mention

Jackie Sindoris, Gerry Suprey, Kenny Aquino, or the Golden Egg

11
restaurant to him. However, the claimed damage is not borne out

by the record.

As the motion judge noted, the defendant and Coates had

testified in detail about their activities on the night in

question and that they provided that information to Ridlon.8

Based on this testimony (described below), the jury could

properly infer that the defendant's and Coates's statements to

Ridlon comported with their trial testimony. In light of this,

the defendant's alibi was fully explored at trial and in the

defendant's closing argument. The trial judge's ruling

precluding repetition of more of the same evidence was not an

abuse of discretion let alone did it create a substantial risk

of a miscarriage of justice.9

8 Coates testified that he was with the defendant and that they
had seen Jackie Sindoris and Gerry Suprey in Kenmore Square, and
later went to the Golden Egg. Coates testified that he told
Ridlon whom he had been with and what he had done the previous
night, including going to the Golden Egg. The defendant
testified that he encountered Kenny Aquino in Somerville, and
Jackie Sindoris and Gerry Suprey in Kenmore Square, and he went
to the Golden Egg. He testified that the next morning, he told
Ridlon where he was the night of the crimes, and immediately
affirmed that he had similarly told the jury where he had been
that night.

9 The defendant's argument that the evidence was admissible as
prior consistent statements is also without merit. The
Commonwealth had not impeached the defendant or Coates, nor had
it alleged that the defendant's and Coates' alibi testimony had
been fabricated. See Commonwealth v. Wright, 444 Mass. 576,
582-583 (2005); Mass. G. Evid. 613(b) (2022). Also, the
defendant did not ask the judge to make a finding of recent

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C. The missing witness instruction. Finally, the

defendant claims that the trial judge erred first, by allowing

the Commonwealth to ask the defendant, over objection, about

whether witnesses that could support his alibi would be

testifying, including waitresses at two restaurants, Kenny

Aquino, and the defendant's Uncle Robbie; and then by giving,

sua sponte, a missing witness instruction, to which there was no

objection. The defendant contends that there was no basis for

the prosecutor's questions or the trial judge's instruction

because the testimony of these absent witnesses would have been

collateral to the issue of the defendant's innocence or

cumulative of testimony that he, Reid, and Coates provided. We

disagree.

The decision to provide a missing witness instruction to

the jury is "within the discretion of the trial judge, and will

not be reversed unless the decision was manifestly

unreasonable." Commonwealth v. Saletino, 449 Mass. 657, 667

(2007). "In order to determine whether there has been a

sufficient foundation for a missing witness instruction, we look

at '(1) whether the case against the defendant is [so strong

that,] faced with the evidence, the defendant would be likely to

call the missing witness if innocent; (2) whether the evidence

contrivance. See Commonwealth v. Caruso, 476 Mass. 275, 284-285
(2017).

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to be given by the missing witness is important, central to the

case, or just collateral or cumulative; (3) whether the party

who fails to call the witness has superior knowledge of the

whereabouts of the witness; and (4) whether the party has a

'plausible reason' for not producing the witness.'"

Commonwealth v. Broomhead, 67 Mass. App. Ct. 547, 552 (2006),

quoting Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 471

(2004).

As the motion judge properly determined, the trial judge

implicitly found that the foundation for a missing witness

instruction had been laid. The Commonwealth's case was strong.

Both victims had amply opportunity to view the defendant during

the more than hourlong rapes, the victims positively identified

the defendant as their rapist, the defendant fit the description

the victims gave, and the police followed the defendant from the

Sunnyhurst Farms store10 at a time that contradicted his alibi.

In light of this evidence, the defendant, if innocent,

would be expected to call as a witness his friend, Aquino, who

could have established that the defendant could not have been in

Charlestown at the time of the rapes because at approximately

10As the motion judge also noted, the clerk at the store, Kevin
Russell, a lifelong friend of the defendant, admitted that
following the rapes, the defendant came to see Russell and asked
about why police had come to see Russell, which suggested the
defendant's consciousness of guilt.

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12:30 A.M., he encountered Aquino in Somerville. Aquino's

testimony to this effect would not have been cumulative because

the defendant's other witnesses did not mention Aquino, and only

one specified that they had been in Charlestown at that time.

Testimony from the defendant's uncle would have established

that between 1:30 A.M. and 2 A.M., the defendant was not at

Sunnyhurst Farms talking to Russell or at his house, but that he

was with his uncle. In addition, Coates testified that they had

run into the defendant's uncle on two occasions that night,

including at 1:30 A.M. The uncle's testimony would have

clarified the timing of his encounters with the defendant and

eliminated the confusion from conflicting testimony. Also, at

least with respect to his uncle, the defendant had superior

knowledge of his whereabouts.

Furthermore, the defendant identified a waitress at a

Dunkin Donuts to support his alibi but made no effort to

identify the waitress or waiter at the Golden Egg, presumably a

witness without any ties to the defendant suggestive of bias and

who could have supported his alibi and contradicted the police

officer who testified that the defendant was home at that time.

The defendant provided no reason for not calling any of these

witnesses. Given the above, the defendant has failed to

establish that the trial judge abused his discretion in giving

15
the missing witness instruction let alone that giving it created

a substantial risk of a miscarriage of justice.

Order dated October 31, 2021,
denying motion for new
trial affirmed.

Order entered April 28, 2022,
denying motion for
reconsideration affirmed.

By the Court (Meade,
Wolohojian & Walsh, JJ.11),

Clerk

Entered: May 16, 2023.

11 The panelists are listed in order of seniority.

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