COMMONWEALTH vs. DAVID JACKSON

The defendant, David Jackson, was convicted of murder in the first degree, armed robbery, and burglary arising out of events occurring in April, 1990. We affirmed the defendant's convictions and the denial of his first motion for a new trial. Commonwealth v. Jackson, 428 Mass. 455 (1998). His second motion for a new trial also was denied, and he was denied leave to appeal, pursuant to the gatekeeper provisions of G. L. c. 278, § 33E. [Note 1] In July, 2009, the defendant filed a third motion for a new trial, and a Superior Court judge who was not the trial judge ordered the Commonwealth to provide additional discovery. Thereafter, the judge denied the motion without an evidentiary hearing. Less than one month later, on April 13, 2011, the defendant filed a gatekeeper petition for leave to appeal, pursuant to G. L. c. 278, § 33E. A single justice of this court allowed the appeal to proceed.

Background. According to the evidence at trial, a key Commonwealth witness, Steven Olbinsky, was present on the night of the crimes, directed the defendant to the location where they occurred, and witnessed him loading a weapon before prying opening the front door at that location. Commonwealth v. Jackson, supra at 456-457. Olbinsky left before any violence occurred, but was indicted for the same crimes. Id. at 458. The record shows that the defendant's counsel sought to impeach Olbinsky in myriad ways, which we need not detail here. In summary, he elicited testimony that Olbinsky also faced murder charges for the same killing; that there were some discrepancies between the statements Olbinsky made to police in July, 1990, and his trial testimony; and that, at the time he made those statements, he was facing unrelated charges in Massachusetts. Although defense counsel additionally sought to introduce evidence of drug charges pending against Olbinsky in Oregon, the evidence was excluded on the ground that the charges were brought long after Olbinsky made his original statements to the police, and his trial testimony had not deviated from his original statements "in any substantial and material way." See Commonwealth v. Haywood, 377 Mass. 755, 762 (1979). Olbinsky additionally testified that he had received no inducements for his testimony. During his closing argument, defense counsel argued that Olbinsky was testifying to "save his own neck." He asked the jurors to "use [their] common sense," arguing that Olbinsky "would do anything, absolutely anything to please the government and convict" the defendant.

After the denial of his second motion for a new trial, the defendant obtained evidence suggesting that an arrest warrant arising out of the Oregon drug charges likely had been withdrawn at the Commonwealth's request, so that the defendant could be released on bail in Massachusetts on his pending murder charge. The evidence included a notation memorializing the basis for recalling the warrant: "[e]vidently we're trying to work wfith] prosecutors in Boston to treat this [defendant] nicely, as he's a material witness in a murder case there." If the Oregon warrant had not been lifted, Olbinsky could not have been released on bail in Massachusetts prior to the defendant's trial. Additional

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evidence suggests the possibility that, after the defendant's trial, Olbinsky's cooperation with Massachusetts authorities may have been a factor in his receipt of lenient treatment in Oregon. [Note 2] Although depositions and interviews were conducted, files were reviewed, and affidavits were given, in the defendant's words, "little, if anything," additional was learned. Jackson v. Marshall, 634 F. Supp. 2d 146, 153 (D. Mass. 2009).

Discussion. On appeal from the denial of his third motion for a new trial, the defendant argues that the Commonwealth's intervention in the Oregon case ought to have been disclosed. He contends that it constitutes evidence both that the Commonwealth provided undisclosed inducements to Olbinsky to testify, and that the Commonwealth concealed evidence of the unsustainability of the Massachusetts indictments against Olbinsky. In addition, he claims that the Superior Court judge erred in failing to order additional discovery and to conduct an evidentiary hearing. None of these claims have merit.

New trials may not be granted without a substantial reason. Commonwealth v. Tucceri, 412 Mass. 401, 406 (1992). When a defendant seeks a new trial on the basis of newly discovered evidence, as the defendant does in this case, he or she must demonstrate both that the evidence was newly discovered and that it is of sufficient strength that "it casts real doubt on the justice of the conviction." Commonwealth v. Grace, 397 Mass. 303, 305 (1986). It is for the motion judge to "determine whether there is a substantial risk that the jury would have reached a different conclusion if the evidence had been admitted at trial." Commonwealth v. Tucceri, supra at 413, citing Grace, supra at 306. Only if the motion judge concludes "on a full and reasonable assessment of the trial record, [that] the absent evidence would have played an important role in the jury's deliberations and conclusions, even though it is not certain that the evidence would have produced a verdict of not guilty," is a new trial warranted. Id. at 414. Where, as here, the motion judge did not preside at trial, and no evidentiary hearing was held, we "examine [his] conclusion only to determine whether there has been a significant error of law or other abuse of discretion," although we "regard ourselves in as good a position as the motion judge to assess the trial record." Commonwealth v. Grace, supra at 307. As applied to this case, the question is whether "the defendant was denied a substantial factual basis for contending to the jury," Commonwealth v. Tucceri, supra at 413, that "a deal had been made in exchange for Olbinsky's testimony." Commonwealth v. Jackson, supra at 457.

Evidence, although newly discovered, that is cumulative of other evidence admitted at trial carries less weight than evidence that is wholly different. Commonwealth v. Grace, supra at 305-306. See also Commonwealth v. Tucceri, supra at 414 ("If the undisclosed evidence is cumulative, if it lacks credibility, or if, in an over-all assessment, it does not carry a measure of strength in support of the defendant, the failure to disclose that evidence does not warrant the granting of a new trial"). In this case, there is no substantial risk that better impeachment of Olbinsky through the use of the additional evidence

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discovered in the Oregon materials would have accomplished anything meaningful for the defense. See Commonwealth v. Murray, 461 Mass. 10, 21 (2011). All three of the defendant's motions for a new trial have alleged, in substance, that the Commonwealth "failed to disclose material promises, rewards, and inducements made to its key witness, [Olbinsky; that it] . . . elicited and failed to correct Olbinsky's testimony that he had received no promises or inducements; and [that] . . . the prosecutor improperly vouched for Olbinsky's credibility." Jackson v. Marshall, supra at 149. See also Jackson v. Marshall, 500 F. Supp. 2d 1, 3 (D. Mass. 2007).

a. Evidence of inducements. This is not a case where we can say that "the undisclosed evidence is more credible than any other evidence on the same factual issue and bears directly on a crucial issue before the jury, such as the credibility of an important prosecution witness, that [the] evidence would have been a real factor in the jury's deliberations, and its presence before the jury might have accomplished something material for the defense." Commonwealth v. Tucceri, supra at 414. Among other things, Olbinsky had given consistent statements well before the Oregon charges arose, Commonwealth v. LaVelle, 414 Mass. 146, 153 (1993), and there was other evidence to support his testimony. Moreover, even assuming that the Commonwealth requested that Oregon withdraw its warrant so that Olbinsky could remain free on bail in Massachusetts and that, at some point after the defendant's trial, it communicated to Oregon that Olbinsky had given helpful testimony at the defendant's trial, see Commonwealth v. Morgan, 449 Mass. 343, 365 (2007) (evidence of assistance after trial does not establish pretrial agreement), there is no evidence demonstrating that the Commonwealth made these efforts to induce Olbinsky's cooperation. Although the evidence may be consistent with the defendant's theory that the Commonwealth promised Olbinsky something in exchange for his testimony, in the circumstances of this case, we cannot say that the motion judge abused his discretion in concluding that the newly discovered evidence did not merit a new trial. [Note 3] See Commonwealth v. Comita, 441 Mass. 86, 93 (2004) (defendant has burden to prove ground for new trial).

b. Unsustainability of indictments. Although new evidence from Oregon was discovered after trial to support the defendant's claim that the Commonwealth was treating Olbinsky as a witness rather than a codefendant, we considered this issue in the defendant's direct appeal. The defendant may not raise that issue again in his third motion for a new trial. See Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005). When we decided his direct appeal, the defendant was aware that Olbinsky had remained free on bail pending trial in Massachusetts; that his Massachusetts case had been continued multiple times while an unopposed motion to dismiss remained undecided; and that the Commonwealth had not appealed from the order dismissing the indictment against him. In Commonwealth v. Jackson, supra at 459, we ruled that:

"As to the defendant's second claim, that the prosecutor concealed

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from the jury the fact that the Commonwealth did not intend to prosecute Olbinsky, that concealment, even if proved, would not have served to bolster [Olbinsky's] testimony. . . . [I]f [Olbinsky] was aware of this, it would have provided him no incentive to lie on the Commonwealth's behalf. . . . Had the prosecutor revealed that Olbinsky was no longer in danger of being tried for this crime, and that he knew it, that would have done far more for Olbinsky's credibility than did the silence to which the defendant now objects."

We did more than reject the defendant's claim based on an "insufficient evidentiary basis," as the defendant claims. We ruled that, even if his claim were true, a new trial was not warranted.

c. Evidentiary hearing and further discovery. The decision whether to hold an evidentiary hearing on a motion for a new trial rests in the "sound discretion of the judge." Commonwealth v. Smith, 459 Mass. 538, 556 (2011). Such a hearing is required where a " 'substantial issue' has been raised," a determination that depends " 'not only [on] the seriousness of the issue asserted, but also [on] the adequacy of the defendant's showing on the issue raised.' " Id. at 556-557, quoting Commonwealth v. Stewart, 383 Mass. 253, 257-258 (1981). In this case, although the defendant consistently has claimed that the Commonwealth must have offered Olbinsky something in return for his cooperation, and that the evidence against Olbinsky was insufficient to support a prosecution for murder, the defendant made no showing that an evidentiary hearing or additional discovery would have accomplished more than what twenty years of discovery already had. Among other things, transcripts from the depositions of two former prosecutors and a police detective were before the judge. [Note 4] Neither those transcripts, nor the affidavits and other materials submitted to the judge, indicated that an evidentiary hearing "would add anything to the information contained [in those] transcript[s]" or affidavits. Commonwealth v. DeVincent, 421 Mass. 64, 69 (1995). Even if the testimony of the deponents or affiants had been disbelieved following an evidentiary hearing, Idlisbelief of testimony is not the equivalent of proof of facts contrary to that testimony." Commonwealth v. Nattoo, 452 Mass. 826, 828 n.1 (2009), quoting Commonwealth v. Haggerty, 400 Mass. 437, 442 (1987). The defendant did not demonstrate error in the decision not to conduct an evidentiary hearing, or to order further discovery.

Conclusion. The "newly discovered" evidence from Oregon was cumulative of other evidence the defendant used to impeach Olbinsky at trial. At trial, the defendant vigorously argued to the jury that Olbinsky would be prosecuted for murder if he did not cooperate with the Commonwealth's prosecution of the defendant. Commonwealth v. Jackson, supra at 459. Trial counsel was aware that the indictments against Olbinsky were weak. Id. at 458. He was also aware of the pendency of the Oregon charges. Additionally, Olbinsky's testimony was corroborated by other evidence and testimony. After

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decades of investigation and discovery, there is no evidence of any agreement between the Commonwealth and Olbinsky. In the circumstances, the motion for a new trial properly was denied.

Order denying third motion for new trial affirmed.

Alan Jay Black for the defendant.

Paul B. Linn, Assistant District Attorney, for the Commonwealth.