Anthony Solimine, pro se, submitted a brief.
This is an appeal by Anthony Solimine from a decision of a single justice denying Solimine relief on his petition under G. L. c. 211, s. 3 (1994 cd.), without a hearing. There was no error.
Solimine, acting pro se, lost on his claim against the respondent, James C. Davidian, in the District Court. Solimine's unfocused pro se petition seeking relief under G. L. c. 211, s. 3, raised no issue which could not have been considered in the ordinary appellate process available within the District Court. Relief under G. L. c. 211, s. 3, cannot be obtained when someone in Solimine's position has (or had) the opportunity to pursue ordinary appellate review. See Pandey v. Pudlo, 416 Mass. 1008 (1993). The fact that Solimine is acting pro se is also of no significance because he is held to the same standards to which litigants with counsel are held. Mmoe v. Commonwealth, 393 Mass. 617 , 620 (1985).
[Note 1] Union Gulf.
The case was submitted on the papers filed, accompanied by a memorandum of law. Emmanuel N. Papanickolas for the plaintiff.
This is an appeal under S.J.C. Rule 2:21, 421 Mass. 1303 (1995), from the denial pursuant to G. L. c. 211, s. 3 (1994 ed.), of relief from an interlocutory ruling denying Jason C. Reddy access to the psychological and medical records of the complainant's mother. Supreme Judicial Court Rule 2:21 (2) requires an appellant to "set forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any adverse judgment in the trial court or by other available means." The appellant has failed to set forth reasons why normal appellate review in the event of conviction is not an adequate remedy.
Sabita Singh, Assistant District Attorney, for the Commonwealth. Robert L. Sheketoff for the plaintiff.
The defendant, Albert E. Epsom, was convicted in 1984, after a jury trial, of murder in the first degree. We concluded that, the evidence, viewed in the light most favorable to the defendant, was insufficient to raise the issue of self-defense in part because there was no evidence that the defendant was assaulted or threatened outside the pub where the homicide took place. Commonwealth v. Epsom, 399 Mass. 254 , 258 (1987).
In May, 1994, the defendant filed a pro se amended motion for a new
trial with supporting affidavits. [Note 1] The defendant alleged, inter alia, that his trial counsel was ineffective in failing to call an available material witness, Gina Carver, on the issue of self-defense and that his first appellate counsel was ineffective in not raising the failure to call Carver as an issue on appeal or in the first motion for a new trial. A Superior Court judge, other than the judge who presided at trial, denied the defendant's motion without a hearing. A single justice of this court allowed a limited appeal on "the issue of the failure to call Carver as a witness and on the related alleged ineffectiveness of appellate and trial counsel." See Breese v. Commonwealth, 415 Mass. 249 , 251 n.2 (1993) (court only considers issues designated as substantial by single justice).
We agree with the single justice that the facts alleged in the defendant's motion and affIdavits raise a new and substantial issue. Commonwealth v. Ambers, 397 Mass. 705 (1986). The affidavit from Carver presents evidence that would have supported the defendant's claim of self-defense. In particular, Carver attested that she saw Epsom backing away from the group of men outside the pub and saw men coming toward the defendant before the fatal shots were fired. This evidence, if presented at trial, would have required an instruction on self-defense. See Commonwealth v. Harrington, 379 Mass. 446 , 450 (1980). The defendant is entitled to an evidentiary hearing. See Mass. R. Crim. P. 30 (c) (3), 378 Mass. 900 (1979). See also Commonwealth v. Gagliardi, 418 Mass. 562 , 572 (1994), cert. denied, 115 S. Ct. 753 (1995); Commonwealth v. Licata, 412 Mass. 654 , 660-661 (1992) (substantial claim of ineffective assistance of counsel requires hearing in the "interest of justice").
At the hearing on his motion for a new trial, the defendant has the burden of showing that: Carver was available at the time of trial; her testimony would have been sufficient to raise the issue of self-defense; and her testimony likely would have made a material difference. [Note 2]
We also conclude that the defendant has raised an arguably substantial issue as to the ineffectiveness of appellate counsel in not pursuing the failure to call Carver at the time of the first motion for a new trial. We remand the motion to the Superior Court for an evidentiary hearing limited to "the
issue of the failure to call Carver as a witness and on the related alleged ineffectiveness of appellate and trial counsel." So ordered.
[Note 1] The defendant previously had filed a motion for a new trial, during the pendency of his direct appeal, in which he alleged ineffective assistance of counsel on the ground that his trial counsel had a conflict of interest. That motion was denied. The denial was affirmed in Commonwealth v. Epsom, 399 Mass. 254 , 263 (1987).
In 1989, the defendant filed a second motion for a new trial, pro se, and a request for the appointment of counsel. No action has been taken on that motion.
[Note 2] The Commonwealth's speculations as to why Carver did not come forward before now and as to why she would not have testified at trial go to Carver's credibility and to the merits of the defendant's motion for a new trial. The Commonwealth's assertions are irrelevant to the issue whether there should be an evidentiary hearing.