COMMONWEALTH VS. ROBERT E. STEWART.

ABRAMS, J. The defendant appeals from the denial of his motion for a new trial. Mass. R. Crim. P. 30, 378 Mass. 900

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(1979). [Note 1] At issue is whether the defendant's motion raised a substantial issue requiring an evidentiary hearing. In his motion for a new trial, the defendant asserted that newly discovered evidence indicates the Commonwealth knowingly allowed its key witness to testify falsely that there had been no promises or inducements made to him by the government in exchange for his testimony in this case. The defendant claims that the motion judge's failure to grant him an evidentiary hearing on his motion was a denial of his due process rights and an abuse of the judge's discretion under rule 30. We affirm the denial of the motion. [Note 2]

Following a jury trial in November, 1974, the defendant was convicted of murder in the second degree (the Sherter murder) and of armed assault in a dwelling house. We affirmed the convictions. See Commonwealth v. Stewart, 375 Mass. 380 (1978).

On his motion for a new trial, the defendant filed an affidavit from one Paul Hurley, who stated that Goldman, the chief witness against Stewart at the trial, told him that he (Goldman) lied when he implicated the defendant in the Sherter murder, and that he did so because a State police officer

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by the name of Flynn had told him that he would not be prosecuted for the murder or on several other pending indictments if he testified against Stewart. The affidavit also stated that Goldman said the police promised him help in obtaining parole from a Federal sentence and told him to deny that any promises or deals had been made. [Note 3]

On his motion for a new trial, the defendant claims that the Hurley affidavit, together with favorable treatment Goldman received from the Commonwealth subsequent to his testimony against the defendant, [Note 4] indicates that Goldman lied when he denied he had been promised rewards or inducements in exchange for his testimony and when he testified that the defendant had been involved in the Sherter murder.

Following a hearing on the motions, the judge denied those portions of the discovery motions that sought production of the results of Goldman's polygraph examinations, and appointment of a court stenographer to enable the defendant to depose potential witnesses. See note 2, supra. The defendant moved for reconsideration of the denials. The Commonwealth filed a motion to decide the case

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on affidavits, and submitted affidavits from three State police officers (including Lieutenant Flynn), two Newton police officers, and an assistant district attorney, all of whom had interviewed or communicated with Goldman, denying that any deals or promises had been made.

A second hearing was held on November 8, 1979. The Commonwealth produced certain discovery materials, which were taken by the judge to be examined in camera. [Note 5] On January 28, 1980, the judge issued a memorandum and order allowing the Commonwealth's motion to decide the case on affidavits and denying the defendant's motion for a new trial. [Note 6] We granted direct appellate review [Note 7] to determine

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if the motion for a new trial was correctly denied without an evidentiary hearing. Mass. R. Crim. P. 30 (c) (3), 378 Mass. 901 (1979). On the basis of the record before us, [Note 8] we conclude that there was no error or abuse of discretion in the judge's rulings on the discovery motions, the motion to decide the case on the basis of affidavits, or the defendant's motion for a new trial because no substantial issue was raised.

A new trial may be granted under Mass. R. Crim. P. 30 (b), 378 Mass. 900 (1979), "if it appears that justice may not have been done." The judge may decide the motion on the basis of affidavits without further hearing, "if no substantial issue is raised by the motion or affidavits." Mass. R. Crim. P. 30 (c) (3), 378 Mass. 901 (1979). The decision on a motion for a new trial, as well as the decision whether to decide the motion on the basis of affidavits or to hear oral testimony, is left largely to the sound discretion of the judge. Commonwealth v. Cook, 380 Mass. 314, 320 (1980). Commonwealth v. Heffernan, 350 Mass. 48, 53-54, cert. denied, 384 U.S. 960 (1966). "If however the original trial was infected with prejudicial constitutional error the judge has no discretion to deny a new trial." Earl v. Commonwealth, 356 Mass. 181, 184 (1969).

The defendant argues that his newly discovered evidence raises the "substantial issue" of whether the Commonwealth knowingly allowed its witness to perjure himself. If so, he is entitled to an evidentiary hearing. In determining whether a "substantial issue" meriting an evidentiary hearing under rule 30 has been raised, we look not only at the seriousness of the issue asserted, but also to the adequacy of the defendant's

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showing on the issue raised. We examine the affidavit in light of these standards.

The Hurley affidavit is hearsay, and, at its best, therefore is admissible solely for its impeachment value. It is "one step removed from an affidavit of recantation," Tomley v. United States, 260 F.2d 468, 469 (5th Cir. 1958), and bears no indicia of reliability sufficient to bring it within any exception to the hearsay rule. Even in those circumstances where third-party testimony has been held admissible, such as the statements which are "truly against the declarant's penal interest," see Commonwealth v. Carr, 373 Mass. 617, 624 (1977), we have required corroborating circumstances or other indicia of trustworthiness. Id. at 623-624. The Hurley affidavit does not meet these threshold requirements. Thus, the Hurley affidavit, by itself, is insufficient to trigger the need for an evidentiary hearing.

The issue is whether the circumstantial evidence of Goldman's treatment after trial, [Note 9] coupled with the Hurley affidavit, is adequate to require an evidentiary hearing. The defendant points to the fact that Goldman was not indicted for the Sherter murder, and that five other indictments are still pending. The fact that Goldman had not been indicted for the Sherter murder was fully explored at Stewart's trial. [Note 10] The untried indictments were pending at the time of trial and could have been brought to the jury's attention. Commonwealth v. Hogan, 379 Mass. 190, 192 (1979) ("If, due to pending criminal charges, the possibility of witness

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bias is present...a defendant is entitled to inquire on the subject"). Hence those facts do not support the defendant's claim that his motion is supported by newly discovered evidence.

The only evidence before us that was not before the motion judge, see note 8, supra, is a letter written to the United States Parole Board by Lieutenant Flynn of the State police one month after the defendant's trial recommending parole for Goldman, the transcript of testimony of another officer at an unrelated trial saying he had used Goldman as an informant and he "spoke for" Goldman when he was arrested, and an affidavit from that officer stating that no "promises" were made to Goldman by the officer. When viewed in the light of the other affidavits and evidence submitted by the Commonwealth, this showing does not require an evidentiary hearing. See supra at 258.

The motion judge, after considering the impeachment value of the Hurley affidavit, the facts concerning Goldman's treatment following his testimony, the six affidavits submitted by the Commonwealth, and the memoranda and statements submitted for in camera inspection, denied the motion. He concluded that no substantial issue was raised that warranted an evidentiary hearing.

We find nothing in the affidavits or circumstantial evidence, taken alone or together, to warrant disturbing this finding. "Whether or not a substantial issue is presented must...be determined on the [face] of the motion and affidavit and the court [is] fully warranted in dismissing a motion...as to which the factual allegations are `obscure' or `impressionistic and conclusory.' [Sayles v. Commonwealth, 373 Mass. 856 (1977). Commonwealth v. Coyne, 372 Mass. 599, 601 (1977).]" Mass. R. Crim. P. 30, Reporters' Notes, Mass. Ann. Laws, Rules of Crim. Procedure, at 485 (1979). There is no constitutional error in deciding the motion for a new trial on affidavits. "The constitutional guaranty of due process does not guarantee to a citizen of a State any particular method of procedure or form of tribunal in civil or criminal cases. A State may provide such procedure

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as it may determine if it has jurisdiction and provides for due notice of the charge and adequate opportunity to be heard in defence of it." Commonwealth v. Coggins, 324 Mass. 552, 557, cert. denied, 338 U.S. 881 (1949), quoting from Commonwealth v. Millen, 289 Mass. 441, 486, cert. denied, 295 U.S. 765 (1935). "It is settled in this Commonwealth that at a hearing on such a motion the judge...may receive oral testimony, affidavits, or both.... `A party has no right to insist that oral evidence be heard upon a motion. He may be required to present the evidence upon affidavits alone.'" Commonwealth v. Coggins, supra at 556-557, quoting from Commonwealth v. Millen, 290 Mass. 406, 410, cert. denied, 295 U.S. 765 (1935). "The primary purpose of [rule 30 (c) (3)] is to encourage the disposition of post conviction motions upon affidavit." Mass. R. Crim. P. 30, Reporters' Notes, Mass. Ann. Laws, Rules of Crim. Procedure, at 484 (1979). We add that where a substantial issue is raised and is supported by a substantial evidentiary showing, the judge should hold an evidentiary hearing.

Motion for discovery of polygraph results. There was no error in the denial of the defendant's motion to discover the results of polygraph examinations administered to the witness Goldman. The results of such examinations cannot be considered newly discovered evidence. The defendant was made aware at a pretrial hearing that the witness had taken a polygraph examination. There is no showing that the defendant made any effort to discover the results before or during his trial. "It is well settled that counsel may not reserve for a motion for a new trial any question or matter that could have been brought forward at the trial." Commonwealth v. White, 323 Mass. 323, 325 (1948). See Commonwealth v. Doyle, 323 Mass. 633, 638 (1949); Commonwealth v. Millen, 290 Mass. 406, 408, cert. denied, 295 U.S. 765 (1935).

Motion for polygraph examination of defendant. The defendant failed to follow the procedure required if the results of his polygraph examination were to be admitted at his trial. See Commonwealth v. Stewart, 375 Mass. 380,

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383-385 (1978). See also Commonwealth v. A Juvenile, 365 Mass. 421 (1974); Commonwealth v. Vitello, 376 Mass. 426 (1978). Assuming, without deciding, that a defendant may await the outcome of his trial and then move for a polygraph examination, the judge could conclude that the relationship between the defendant's credibility and the allegation that Goldman perjured himself as to promises or inducements made to him by the Commonwealth was too tenuous to warrant allowance of the motion for a posttrial polygraph examination.

Other discovery motions. Rule 30 (c) (4) of the Massachusetts Rules of Criminal Procedure allows the judge to "authorize such discovery as is deemed appropriate." Thus, the extent of discovery allowed is properly left to the judge's discretion. The judge heard argument and received memoranda on the discovery motions. He allowed several motions, examined some materials in camera, and denied other motions. We find no error or abuse of discretion.

The order denying the defendant's motion for a new trial is affirmed.

So ordered.