COMMONWEALTH vs. WAYNE M. CHIAPPINI.

MCHUGH, J. Wayne Chiappini, the defendant, was convicted by a jury of assault and battery by means of a dangerous weapon

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(a knife) (G. L. c. 265, § 15A[b]) after a bar fight in Wareham with the victim, Timothy Guinazzo. About six months later, Guinazzo, who had been charged with three offenses, including assault and battery by means of a dangerous weapon (pavement), for his activities in the same fight, pleaded guilty to two of the offenses and admitted to sufficient facts on the charge involving the dangerous weapon. See G. L. c. 278, § 18.

The defendant appealed from his conviction and then filed two motions for a new trial, the denials of which he also now appeals. The first motion alleged that his trial counsel had a conflict of interest in that he represented the defendant at the same time he was representing a prosecution witness, Eric Woods, for unrelated criminal charges Woods was facing. [Note 1] After an evidentiary hearing before the judge who had presided at the defendant's trial, the motion was denied. The second motion, filed after Guinazzo's plea hearing, was based on newly discovered evidence, specifically that, during the colloquy attending his plea, Guinazzo admitted to facts he had denied at the defendant's trial and which were central to the defendant's claim of self-defense. Guinazzo's switch, the defendant contends, compromised the integrity of the trial that produced his conviction. After a hearing before the trial judge, the second motion was denied as well. We vacate the order denying the second motion and remand the matter for further proceedings.

The essential facts relevant to the defendant's appellate claims are these. The fight took place on February 2, 2006, in a parking lot near a bar in Wareham. That evening, the defendant was sitting at the bar with his girlfriend, Linda Oliver, when a number of patrons saw him hit her. One of the patrons, Susan Lovell, walked over to another witness, Eric Woods, who was also sitting at the bar, and asked Woods if he had seen the defendant hit Oliver. Woods agreed that he had. Lovell then walked over to Oliver, rubbed her hand, and took her to the restroom. Woods headed for the exit, but Lovell pulled him to the restroom. While

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Woods was talking to Lovell, the defendant also came into the restroom.

In the restroom, the defendant shoved Lovell. Woods then pushed the defendant out of the building. Eventually, Oliver and the defendant wound up in the defendant's car in a nearby parking lot where they sat and argued with each other.

Meanwhile, Guinazzo, who was Lovell's boyfriend, learned that the defendant had pushed Lovell, became angry, and sought out the defendant in the parking lot. Guinazzo approached the defendant's car where Oliver and the defendant were still arguing and asked the defendant what his problem was. The defendant responded by saying "fuck you" and opened the car door, shoving it at Guinazzo's legs. Guinazzo then punched the defendant through the open driver's side window, hitting the defendant on the side of the head. The defendant got out of the car, stumbling, and the two men continued fighting. The details of the fight are important, and we return to them below.

Ultimately, the defendant stabbed Guinazzo in the neck with a knife he pulled from his left pocket. Fortunately, the wound was not disabling, and Guinazzo went to his own car where he retrieved a cloth and used it to stop the bleeding. While Guinazzo was tending to his wound, the defendant asked him if he "wanted some more." Then, as people began gathering at the scene, the defendant drove away. Guinazzo went to a hospital where the gash on his neck was closed with twenty-seven stitches.

Police soon arrested the defendant and charged him with assault and battery on Lovell and assault and battery with a knife on Guinazzo. Police also sought a criminal complaint against Guinazzo, charging him with assault and battery with a shod foot and threatening to commit a crime. See G. L. c. 275, § 2. Before a magistrate acted on the police application, the defendant filed his own application for a complaint against Guinazzo for the same two charges. Both applications were heard together and a complaint ultimately issued charging Guinazzo with assault and battery, assault and battery by means of a dangerous weapon, and threats. In the end, the defendant was found not guilty of assaulting Lovell but, as noted, was found guilty of assault and battery on Guinazzo with the knife. As also noted, Guinazzo admitted to sufficient facts regarding the charge of assault and battery by

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means of a dangerous weapon (pavement) [Note 2] and pleaded guilty to the other two charges.

Turning from those facts to the defendant's appeal from the denial of his first motion for a new trial, it is clear that counsel's representation of Woods, the prosecution witness, overlapped his representation of the defendant in this case. [Note 3] Nevertheless, where an appellant claims a new trial because of his counsel's conflicted loyalty,

"[t]he burden lies with the defendant to prove that a genuine conflict of interest existed. The defendant is obliged to present demonstrative proof detailing both the existence and the precise character of this alleged conflict of interest; we will not infer a conflict based on mere conjecture or speculation. An 'actual' or 'genuine' conflict of interest arises where the 'independent professional judgment' of trial counsel is impaired, either by his own interests, or by the interests of another client."

Commonwealth v. Shraiar, 397 Mass. 16, 20 (1986) (citations omitted).

Here, although the affidavits filed by the defendant and by Oliver assert that counsel advised them against filing applications for criminal complaints against Woods, the motion judge found the affidavits to be incredible, a finding that was not clearly erroneous. Equally important, the defendant was acquitted of assault and battery on Lovell, the only charge on which Woods offered testimony. Finally, the defendant has made no claim that the asserted conflict impaired counsel's independent judgment during any stage of the pretrial proceedings, and

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counsel's representation of Woods ended before the defendant's trial began, leaving counsel entirely unencumbered at the time when his zealous representation mattered most. See Commonwealth v. Balliro, 437 Mass. 163, 168 (2002) ("[W]e do not automatically infer a conflict of interest from dual or joint representation alone. . . . Furthermore, when a conflict arises from the dual representation of clients, discontinued representation of one will generally alleviate the conflict"). See also Commonwealth v. Smith, 362 Mass. 782, 783-784 (1973). There was no error in the judge's denial of the defendant's first new trial motion. [Note 4]

The defendant's second motion rests on the premise that there is an irreconcilable conflict between Guinazzo's testimony at the defendant's trial and his testimony at his later plea hearing. Guinazzo's refusal to admit at the trial facts he admitted at the plea hearing, the defendant maintains, seriously undermined his ability to present his theory of self-defense. More specifically, the defendant's theory at trial was that Guinazzo threw him to the ground during the fight, got on top of him, and began banging his head against the pavement. Fearing for his life, the defendant grabbed the knife he carried in his left pocket and swung wildly at Guinazzo, cutting him and ending the assault. At trial, Guinazzo, although never asked directly whether he banged the defendant's head into the pavement, denied that the defendant had been on the ground during the fight. At his later plea colloquy, however, Guinazzo admitted "hitting [the defendant's] head on the asphalt."

Chronology provides a helpful context for assessing the defendant's claims. The record reveals that on the night of the fight, the principal investigating officer, John Iacobucci, interviewed Guinazzo, who said that he "got [the defendant] on the ground and began punching him." [Note 5] On February 8, 2006, six days after the fight, the defendant, in a signed statement accompanying

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his application for a complaint against Guinazzo, said that Guinazzo had thrown him to the ground and kicked him. [Note 6] The defendant made no mention that Guinazzo banged his head on the pavement. Indeed, in the space on the application for a description of the offense, the defendant, who for sixteen years had been a correction officer, wrote Guinazzo "kicked me with shod foot in head and body."

So far as the record reveals, that is the way the stories stood as the defendant's trial began. Called as a witness by the Commonwealth, Guinazzo had the first opportunity to change the story and he took it, denying that the defendant was ever on the ground during the fight [Note 7] and denying that he ever hit the defendant with anything other than his fists. [Note 8] His denial was impeached by

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cross-examination of Officer Iacobucci regarding the content of the statement he had taken from Guinazzo soon after the fight. [Note 9]

When his turn came, the defendant, too, presented a different version of events than he had before, now stating that Guinazzo not only had kicked him while he was on the ground, but also had been on top of him, banging his head on the pavement as he held him down. [Note 10] The defendant was not cross-examined about his earlier statement.

During summation, defense counsel did not mention the defendant's

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"head-banging" allegation, focusing instead on inconsistencies between the account Guinazzo had given Officer Iacobucci on the night of the incident and his testimony at trial. Counsel also urged the jury to conclude that the defendant acted in self-defense as he was "punched" by Guinazzo while pinned to the ground. For its part, the Commonwealth argued that the defendant's claim to have knifed Guinazzo while pinned to the ground in mortal fear was incredible and that the jury should accept Guinazzo's testimony that the defendant stabbed him in the middle of a stand-up fistfight from which the defendant could easily have escaped. [Note 11]

By the time of Guinazzo's plea colloquy six months later, however, the Commonwealth's view of the fight had changed. After Guinazzo tendered a plea of guilty to the charge of assault and battery and threatening to commit a crime, and had offered to admit to facts sufficient to warrant a finding of guilty on the charge of assault and battery by means of a dangerous weapon, the judge asked the Commonwealth for a summary of the facts it anticipated proving if the case proceeded to trial. In pertinent part, the Commonwealth alleged that it would have proved at trial that Guinazzo "punched Mr. [Chiappini] through the open window of his car, dragged him out of his car, smashed his head against the pavement and began punching him about the head." [Note 12] Guinazzo agreed that the Commonwealth's recitation was accurate.

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Guinazzo's admission that he had been hitting the defendant's head against the pavement was the "newly discovered evidence" on which the defendant based his second new trial motion. The Commonwealth opposed that motion, and like the defendant's first motion, it was heard by the judge who had presided at the defendant's trial. The judge denied the motion, saying that

"[d]efendant Chiappini was present and declined to speak at the disposition [before Guinazzo's sentencing]. The prosecutor at the plea tender presented a summary of the expected testimony which he felt supported the allegation. After consideration of all evidence available the court finds there was no newly discovered evidence presented to cast real doubt on the justice of the conviction and defendant's Motion for a new trial is denied."

On this record, and in the absence of more detailed findings on the impact Guinazzo's later admissions might have had on the jury's deliberations, we think that denial of the motion was error.

To succeed on a motion for new trial based on a claim of newly discovered evidence, the defendant must satisfy two principal elements. First, the evidence "must . . . have been unknown to the defendant or his counsel and not reasonably discoverable by them at the time of trial. . . . The defendant has the burden of proving that reasonable pretrial diligence would not have

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uncovered the evidence." Commonwealth v. Grace, 397 Mass. 303, 306 (1986). Second, the evidence must

"cast[] real doubt on the justice of the conviction. The evidence said to be new not only must be material and credible but also must carry a measure of strength in support of the defendant's position. Thus 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. Moreover, the judge must find there is a substantial risk that the jury would have reached a different conclusion had the evidence been admitted at trial. The motion judge decides not whether the verdict would have been different, but rather whether the new evidence would probably have been a real factor in the jury's deliberations. This process of judicial analysis requires a thorough knowledge of the trial proceedings, and can, of course, be aided by a trial judge's observation of events at trial."

Id. at 305-306 (citations omitted). See Commonwealth v. Jones, 432 Mass. 623, 633 (2000). As usual, we approach the defendant's claim of error with the deference traditionally due the motion judge's exercise of discretion, particularly where the motion judge was also the trial judge. See Commonwealth v. Grace, supra at 307.

In reaching our conclusion, we think, first of all, that Guinazzo's admission to smashing the defendant's head against the pavement was "newly discovered evidence," and to the extent the motion judge's findings can be viewed as reaching a contrary result, the findings contain an error of law. Guinazzo's admission was "new" because, although the defendant himself had testified about the "head-banging" component of their fight, Guinazzo's admission changed the defendant's highly impeachable "head-banging" allegation into an essentially agreed fact. Moreover, it does not appear that anything the defendant or counsel could have done before trial would have uncovered the evidence. After all, Guinazzo denied at trial that the defendant was ever on the ground, and his statement to the police said nothing about smashing the defendant's head into the pavement. [Note 13]

Because Guinazzo's admission was "newly discovered evidence,"

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the question becomes "whether the new evidence would probably have been a real factor in the jury's deliberations." Id. at 306. See Commonwealth v. Jones, supra at 633. Without more than the judge's conclusory finding, we cannot agree with his determination that the admission would not have been a real factor, for, as noted above, an important component of the defendant's self-defense allegation rested on his testimony that Guinazzo was on top of him banging his head into the pavement when he slashed at him with the knife in an effort to protect himself from serious, if not mortal, danger. In summation, the prosecutor urged the jury to disregard the defendant's story and to accept Guinazzo's claim that both men were standing when the defendant cut him. Apparently, the jury heeded the prosecutor. But it is one thing for a combatant to slash with a knife at his unarmed opponent in the middle of a fistfight when both are standing, and quite another thing if he does so when pinned to the ground under attack from his opponent's own dangerous weapon. At the very least, therefore, we think that additional and specific findings on the probable impact of Guinazzo's admission are necessary before the defendant's new trial motion can be justly denied. [Note 14]

The order denying the defendant's second motion for a new

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trial is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.

So ordered.