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12-P-1785                                              Appeals Court

                  COMMONWEALTH   vs.   BENJAMIN LAGUER.


                              No. 12-P-1785.

         Worcester.      November 18, 2015. - January 29, 2016.

             Present:    Cohen, Grainger, & Wolohojian, JJ.


     Practice, Criminal, New trial.       Deoxyribonucleic Acid.



     Indictments found and returned in the Superior Court
Department on August 4, 1983.

     A motion for a new trial, filed on April 28, 2011, was
heard by Richard T. Tucker, J.


     John H. LaChance for the defendant.
     Sandra L. Hautanen, Assistant District Attorney, for the
Commonwealth.


     GRAINGER, J.       On January 30, 1984, Benjamin Laguer was

convicted by a jury in Superior Court of unarmed robbery,

breaking and entering in the nighttime with intent to commit a

felony, assault and battery, and aggravated rape.1        On appeal


     1
       His convictions were affirmed by this court. See
Commonwealth v. Laguer, 20 Mass. App. Ct. 965 (1985).
                                                                    2


from a denial of the latest in a long series of motions2 for a

new trial, the defendant argues that the motion judge erred in

finding that certain evidence, specifically testimony from the

victim's caretaker and deoxyribonucleic acid (DNA) test results,

did not warrant a new trial, and that he also erred in

concurrently allowing the Commonwealth's motion to dismiss the

defendant's latest motion for a new trial due to fraud on the

court.

     As was the case in previous motions considered in the

Superior Court, then reviewed by this court and by the Supreme

Judicial Court, the credibility of the defendant as well as that

of the witnesses and the evidence presented on his behalf is

central to the result.   Accordingly we review the motion judge's

recitation of findings, as well as the protracted history of

this case, with emphasis on the degree of trustworthiness

underlying the evidence proffered to support the defendant's

claim "that justice may not have been done."    Mass.R.Crim.P.

30(b), as appearing in 435 Mass. 1501 (2001).


     2
       The parties refer to this as the defendant's ninth motion
for a new trial; eight other motions with that precise caption
are not apparent on the record. Denials of his previous motions
have been affirmed by this court and the Supreme Judicial Court.
See Commonwealth v. Laguer, 410 Mass. 89 (1991); Commonwealth v.
Laguer, 36 Mass. App. Ct. 310 (1994); Commonwealth v. Laguer, 46
Mass. App. Ct. 1108 (1999); Commonwealth v. Laguer, 65 Mass.
App. Ct. 612 (2006); Commonwealth v. Laguer, 448 Mass. 585
(2007).
                                                                    3


     Background.   The trial.   The jury found that the defendant

broke into the apartment of a fifty-nine year old woman,

brutally assaulted her, and raped her over an eight-hour period.

In so doing the jury rejected a defense of misidentification.

     The identification evidence at trial was that the victim

initially told the police she was unable to identify the

perpetrator, only describing him as a short black male.     The

following day, however, she told the police that her assailant

was the defendant, who lived in the next door apartment.3    She

also identified the defendant from a photograph array, and

identified him as her assailant at trial.

     Before trial, and because the victim had a history of

mental health treatment, the defendant moved to obtain evidence

of her mental health condition in order to determine her ability

to testify.   The trial judge privately reviewed the victim's

treatment records for the six-month period surrounding the

attack and her identification of the defendant, and determined

that the records provided no basis to question the victim's

competency to testify.   However, the trial judge permitted the

defendant to question the victim about her mental condition and



     3
       The victim further testified that she had seen the
defendant several times going into the apartment next door. She
also testified that she had not identified him initially because
he had threatened to kill her if she did so.
                                                                   4


any medication she was taking at the time of the attack and the

identification.

     No physical evidence linking the defendant to the crime

scene was introduced at trial.4   After a jury found him guilty of

all charges, the defendant was sentenced to life on the rape

charge and, on the other charges, received lesser sentences that

ran concurrently with his life sentence.

     Posttrial proceedings.   Direct appeal.   The defendant

appealed his convictions, arguing that the trial judge committed

an abuse of discretion in denying his request for a psychiatric

examination of the victim, violated his constitutional right to

confrontation, committed error in allowing the prosecutor's

reference during closing arguments to apparently matching socks

found in the victim's apartment and the defendant's apartment,

committed error in not following the model alibi charge pursuant

to Commonwealth v. McLeod, 367 Mass. 500, 502 n.1 (1975), and

committed error in the identification evidence charge.   This

court affirmed the judgments of conviction.    Commonwealth v.


     4
       The police had collected several items stained with blood
and bodily fluids at the scene of the crime. Tests conducted to
match the defendant's blood type with any of the bodily fluids
found at the scene were inconclusive. It was later learned that
the defendant had deliberately contaminated the saliva sample
obtained for the purpose of comparison with fluids obtained at
the scene. Other physical evidence included fingerprints that
were not the defendant's, found on the base of a telephone in
the victim's apartment.
                                                                      5


Laguer, 20 Mass. App. Ct. 965, 966 (1985).     The Supreme Judicial

Court denied the defendant's request for further appellate

review.   Commonwealth v. Laguer, 396 Mass. 1103 (1985).

    Petition for a writ of habeas corpus.      Subsequently, the

defendant filed a petition for a writ of habeas corpus, which

was summarily dismissed by the Federal District Court.     See

Laguer vs. Bender, U.S. Dist. Ct., No. 86-1237-WF (D. Mass. Nov.

8, 1988).

    1989 motion for a new trial.      On February 24, 1989, the

defendant filed a motion for a new trial based on ineffective

assistance of trial counsel, and also asserting that the jury

were infected with racial bias.     The defendant's claim of

ineffective assistance related, at least in part, to trial

counsel's failure to obtain a pretrial test of the defendant's

blood type, a subject to which we shall return below.      See note

4, supra; notes 10 and 11, infra.     On direct appellate review

the Supreme Judicial Court vacated the trial judge's denial of

the motion for a new trial and remanded the case "solely for the

purpose of conducting an evidentiary hearing and making a

determination with respect to the truth of [a juror's] affidavit

in so far as it describes ethnically oriented statements

attributed to jurors."     Commonwealth v. Laguer, 410 Mass. 89, 99

(1991).     The affidavit in question, submitted by juror Nowick,

"described the jury's deliberations as plagued by bigoted
                                                                     6


remarks about the defendant, who was ethnically Hispanic."

Commonwealth v. Laguer, 36 Mass. App. Ct. 310, 311 (1994).

     On remand, the trial judge conducted an evidentiary hearing

at which the defendant called four jurors, including Nowick, to

testify.     Under oath Nowick repudiated5 most of the assertions in

his affidavit.     Id. at 312.    After other witnesses made

contradictory statements,6 the judge found that no offending

statements had been made, and also determined that Nowick had

been subject to "serious lobbying by" the defendant's associates

and had "bec[o]me personally involved in [the defendant]'s

cause."7    Accordingly the judge again denied the motion for a new

trial.     This court affirmed.    Id. at 315.

     1997 motion for a new trial.       On May 22, 1997, the

defendant filed another motion for a new trial, claiming his

counsel had been ineffective because he employed peremptory

challenges to strike women from the jury.        In an unpublished

     5
       "Nowick acknowledged that words in his affidavit such as
'invectives,' 'plagued,' 'relentless,' 'bombarded,' 'tainted,'
and 'blatant,' were not in his customary vocabulary, and he
disavowed the idea of proceedings suffused with racial
epithets." Commonwealth v. Laguer, 36 Mass. App. Ct. at 312.
     6
       Another juror denied racist remarks attributed to him by
Nowick. That juror, however, attributed racist remarks to
Nowick and to "one or two women jurors -- except there were no
women on the jury." Commonwealth v. Laguer, 36 Mass. App. Ct.
at 312.
     7
       In an interview with the court's investigator Nowick
stated that he "felt like he had been baited and hooked."
                                                                    7


memorandum and order pursuant to our rule 1:28, we affirmed the

denial of that motion by a different judge of the Superior

Court, noting that the issue had been waived both at trial and

in previous posttrial proceedings and that, rather than

resulting from negligence or incompetence, striking women from

the jury was evidently a strategic decision by counsel from

which the defendant was likely to benefit in a trial involving

"a violent and protracted sexual assault on a fifty-nine year

old woman."   See Commonwealth v. Laguer, 46 Mass. App. Ct. 1108

(1999).

     Motion for DNA testing.   On January 13, 2000, the defendant

moved for DNA testing of the physical evidence.8   Due to the

limited amount of biological material available for testing,

another Superior Court judge ordered the DNA analyst to conduct

the testing with great caution and described in thorough detail

how the samples should be handled, transported, and divided.

Both parties were allowed to designate a representative to

observe any testing.

     In two reports dated February 4, 2002 and March 21, 2002,

the defendant's designated testing facility concluded that the


     8
       DNA testing became available in the late 1980's and the
Supreme Judicial Court first considered the admissibility of
test results comparing the DNA of a criminal defendant with DNA
found at a crime scene in Commonwealth v. Curnin, 409 Mass. 218
(1991).
                                                                        8


defendant could not be eliminated as the source of the

biological fluids found on the victim's pubic hair "because he

possesses all of the obligate genotypes and/or alleles . . .

identified in that" pubic hair sample.9       The reports indicated

that the array of possible genotypes from the tested pubic hair

sample "occurs in less than one out of 100 million members of

the Caucasian and Black populations and less than one out of 10

million members of the Mexican American population."       The

facility's reports therefore concluded that "[t]hese findings

fail to support [the defendant]'s claim of factual innocence in

the rape."

         Admission of evidence tampering.    At a parole board

hearing held in 2003, the defendant admitted that in advance of

his trial he had mixed his saliva with that of another inmate

before being swabbed for testing.    Commonwealth v. Laguer, 65

Mass. App. Ct. 612, 617 n.9 (2006).10       The evidentiary impact of

the falsified sample may be postulated from the fact that the

pretrial testing produced inconclusive results, while a

     9
        "Evidence that a defendant is not excluded could suggest
to the jury that a 'link would be more firmly established if
only more [sample] were available for testing.'" Commonwealth
v. Cameron, 473 Mass. 100, 106 (2015), quoting from Commonwealth
v. Nesbitt, 452 Mass. 236, 254 (2008).
     10
       As noted above, after submitting the falsified saliva
sample to the Commonwealth, the defendant argued in his 1989
motion for a new trial that his trial counsel had been
ineffective for failing to obtain a blood test.
                                                                     9


posttrial blood test found both the victim's and the defendant's

blood types on a sock used to gag the victim.11

     2004 motion for a new trial.   The defendant filed another

motion for a new trial on February 11, 2004 arguing that the

Commonwealth failed to disclose an exculpatory fingerprint

report prior to trial.   The report in question indicated that

four prints lifted from the telephone base, the cord of which

was used to bind the victim's hands, did not match the

defendant's fingerprints.   See note 4, supra.    The defendant

obtained the report in 2001, by which time the back page of the

report and the fingerprint impressions themselves were missing.

Another Superior Court judge denied the motion; this court

affirmed the denial, as did the Supreme Judicial Court on

further appellate review.   See Commonwealth v. Laguer, 65 Mass.

App. Ct. 612 (2006); Commonwealth v. Laguer, 448 Mass. 585

(2007).   The Supreme Judicial Court pointed out that "the lack

of evidence that the fingerprints were left on the telephone at

the time of the crime deprived them of probative value."

Commonwealth v. Laguer, 448 Mass. at 592-593.     See Commonwealth

v. Laguer, 65 Mass. App. Ct.   at 619-622.   In addition to the

     11
       The posttrial blood test indicated the defendant's blood
type to be "B." The victim's blood type was "O." The trial
judge, who ruled on the 1989 motion for a new trial, found that
the posttrial test detected "both blood types 'O' and 'B' on the
sock" used to gag the victim. Commonwealth v. Laguer, 410 Mass.
89, 92 (1991).
                                                                  10


fact that the fingerprints did not exculpate the defendant, the

record demonstrates that at trial the defendant took full

advantage of the lack of available physical evidence linking him

to the crime.12

     Current motion for a new trial.    On April 28, 2011, the

defendant filed his most recent motion for a new trial, which

was denied by the motion judge.    The defendant's appeal from

that denial is currently before us.

     Discussion.     Newly discovered evidence.   The defendant

based the current motion in part on the alleged statements of a

newly discovered witness, Annie K. DeMartino.     The defendant

asserts that his representative discovered DeMartino's potential

testimony long after trial either through meeting her

coincidentally at a political fundraiser, or by reading an

article in a local newspaper written by a reporter who

interviewed her.13


     12
       In his closing remarks to the jury, defense counsel
emphasized: "There is not one piece of evidence, physical or
otherwise, that puts [the defendant] in [the victim's]
apartment." Commonwealth v. Laguer, 448 Mass. at 596. This
argument, manifestly, was made possible in part by the
contaminated saliva sample referenced above.
     13
       The contradictory explanations how the defense acquired
knowledge of DeMartino are contained in two separate documents.
In his supplemental memorandum in support of the current motion,
the defendant claims that his current counsel "coincidentally
met [DeMartino] at a political fundraiser in the fall of 2006"
where "DeMartino expressed that she knew of [the defendant]'s
case." In his brief to this court, the defendant claims that
                                                                   11


     DeMartino's proffered testimony is presented in the form of

two unsigned and unverified transcripts of taped interviews

conducted by the defendant's representatives on February 13,

2007 and April 18, 2008.14   Her presumed testimony, gleaned from

the transcripts, would be that she was a health care aide who

assisted the victim at the halfway house where the victim

resided for two years while suffering from aggravated mental

distress following the crime.   This period encompassed the time

of the trial; DeMartino was one of the caregivers who

accompanied and comforted the victim in court.   In the

transcripts, DeMartino alleges that the victim suffered from

delusions and fear, frequently confusing other dark skinned

males as her attacker.   DeMartino also alleges a friendship

between the victim and an Hispanic male other than the

defendant.

     The motion judge determined that the proffered testimony

could have been discovered with reasonable diligence at the time


"DeMartino was discovered by a member of the press" who
"interviewed her . . . [and] wrote an article about it in a
local paper in Worcester County." After the defendant's counsel
at the time "learned of this he arranged to interview
[DeMartino] as well."
     14
       In the transcript dated April 18, 2008 it is unclear who
is interviewing DeMartino. Both transcripts are unverified
although the defendant was aware of the requirement to present
DeMartino's testimony in the form of an affidavit and, according
to the April 18, 2008 transcript, communicated this requirement
to DeMartino herself.
                                                                     12


of trial, see Commonwealth v. Grace, 397 Mass. 303, 305 (1986);

Commonwealth v. LeFave, 430 Mass. 169, 176 (1999), and was also

discoverable during the extensive period of posttrial

proceedings recounted above, stating:     "The prominence of the

issue of [the victim's] competency, and the attention devoted to

it by both counsel and the court, belies any argument that the

defendant was not acutely aware of this issue."     We agree; a

single request for the identities of the victim's caregivers was

all that was required.

    The motion judge also found that "the purported testimony

of DeMartino, as submitted in the motion record, lacks

attributes of reliability."     The statements are unsworn, indeed

the transcripts are unsigned.    Assuming DeMartino to be their

source, there is no indication that she reviewed and approved

the transcripted versions.     We discern no error in the judge's

determination, especially in the context of the prior

proceedings and submissions.

    The motion judge also concluded that there was no

substantial risk that the proffered evidence, admitted at trial

and credited by the jury, would have caused the jury to reach a

different verdict.   Commonwealth v. Lo, 428 Mass. 45, 53 (1998).

The judge observed that the testimony would have shown, if

anything, that while the victim was friendly with and unafraid

of men of color prior to the attack, she became fearful of men
                                                                   13


of color thereafter.    The judge did not err in finding that the

defendant was not likely to benefit from such evidence.

    DNA test results.     After successfully obtaining an order

for DNA testing in 2001, the defendant now asserts that the

inculpatory results entitle him to a new trial because they are

based on a faulty testing procedure.    The motion judge found

that there was no evidentiary support for the proposition that

the testing was flawed.    Again, there was no error in the

judge's ruling.   The allegation of potential migration of DNA

from the defendant's clothing to the pooled sample of collected

pubic hair and fluid samples is simply speculation based on the

conclusory argument that the defendant is innocent.

    Moreover, even if the postconviction DNA test results could

be called into question, it would not constitute exculpatory

evidence warranting a new trial.    "[D]isbelief of [evidence]

does not constitute evidence to the contrary."    Kunkel v. Alger,

10 Mass. App. Ct. 76, 86 (1980).    Inculpatory DNA evidence was

not introduced at trial; indeed, no such evidence was available

in 1984.   The defendant was convicted on the basis of witness

identification and circumstantial evidence sufficient to prove

his guilt beyond a reasonable doubt.    Undermining the

postconviction DNA test results do not detract from that
                                                                  14


reality.15   The motion judge did not err in concluding that

discrediting the inculpatory DNA test result would not "cast[]

real doubt on the justice of the conviction."   Commonwealth v.

Lo, 428 Mass. at 53, quoting from Commonwealth v. Grace, 397

Mass. at 305.

     Alleged pretrial plea bargain offer.   Among the exhibits

offered in support of the current motion for a new trial, the

defendant included a copy of a document purported to be a letter

sent by the assistant district attorney in charge of the case

(prosecutor) to his trial counsel agreeing to recommend a

twenty-year sentence in exchange for a guilty plea.16   The

Commonwealth asserts, and the motion judge found, that the

letter is "inauthentic."   The former prosecutor has submitted an

affidavit that states in relevant part:   "I am certain that no

plea offers were ever made to [the defendant]."   The defendant's

trial counsel submitted two affidavits, one on April 29, 2010

stating he had "discussed" a plea deal for a twenty-year


     15
       This case does not fall into the category of cases in
which a reversal of evidentiary reliability warrants a new
trial. See, e.g., Commonwealth v. Liebman, 388 Mass. 483, 489
(1983) (discrediting key witness's testimony); Commonwealth v.
Sullivan, 469 Mass. 340, 352 (2014) ("negat[ing] a key piece of
physical evidence").
     16
       The apparent import of this document is to support the
defendant's claim that he was unwilling to plead guilty to a
crime he did not commit, even if doing so would avoid the
possibility of a life sentence.
                                                                   15


sentence with the prosecutor, and one on September 6, 2011

specifying he had never received a formal plea offer in writing

from the prosecutor.   In response to these sworn statements the

defendant ineffectually asserts, without any basis, that "[i]t

may be inferred that [his trial counsel] signed an affidavit

drafted by prosecutors to advance their own agenda."    Leaving

aside this document's irrelevance to any issue presented by the

current motion for a new trial, we discern no reason to disturb

the motion judge's finding that it is fraudulent.

     Conclusion.   A motion for a new trial is addressed to the

sound discretion of the judge.    Commonwealth v. Clerico, 35

Mass. App. Ct. 407, 411 (1993).   The judge's discretion includes

the flexibility to consider the case as a whole, specifically

"to consider in the interest of justice all evidence that might

bear on the issues presented."    Commonwealth v. Grace, 397 Mass.

at 312.   We conclude that the motion judge's dispassionate and

careful consideration of the defendant's motion and of the

lengthy history of this case resulted in the proper exercise of

discretion, and that there was no error.17

                                    Order denying motion for new
                                      trial affirmed.



     17
       In view of our assessment of the defendant's failure to
support his motion for a new trial with credible evidence or a
basis in law, we need not reach the motion judge's additional
finding of fraud on the court.
