Opinion
No. 12–P–1376.
2013-04-11
COMMONWEALTH v. Devon DARDEN.
By the Court (KATZMANN, MEADE & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in 2007, the defendant was convicted of rape, assault and battery, and intimidation of a witness. In 2009, the judgments were affirmed by this court on direct appeal, Commonwealth v. Darden, 73 Mass.App.Ct. 1127 (2009), and the Supreme Judicial Court denied further appellate review, Commonwealth v. Darden, 454 Mass. 1102 (2009). In 2011, the defendant moved for a new trial in a motion and a supplemental motion; the motions were denied. On appeal from the denial of the motions, the defendant claims he received ineffective assistance of counsel and the trial judge was biased. We affirm.
1. Ineffective assistance. The defendant claims that his counsel was ineffective for not objecting to the seating of two jurors who had either direct or indirect exposure to sexual abuse. As the motion judge held, the defendant waived this claim because he did not raise it at the first opportunity. However, we review even waived claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 295–296 (2002). Here, there was no such risk. During the individual voir dire, both of the potential jurors in question stated unequivocally that the abuse from their pasts would not prevent them from being fair and impartial at the defendant's trial. The trial judge was entitled to credit those claims, and his credibility findings are unassailable on appeal. See Commonwealth v. Duran, 435 Mass. 97, 108 (2001). Because any objection to the seating of these jurors would have been futile, we cannot conclude there exists any risk of a miscarriage of justice in defense counsel's decision to not so object.
Because the defendant was not represented on appeal by trial counsel, his failure to assert this claim on direct appeal is not excused. Contrast Commonwealth v. Lanoue, 409 Mass. 1, 3–4 (1990). Indeed, appellate counsel raised a different claim of ineffective assistance on direct appeal.
There is no merit to the defendant's claim that, based on Commonwealth v. Hallet, 427 Mass. 552, 554–555 (1998), the motion judge resurrected his claims for full appellate review when the judge chose to address them. First, the judge found the claims waived and only addressed them on the merits in the alternative. Second, the resurrection rule is no longer viable and Hallet has been abrogated. Commonwealth v. Bly, 444 Mass. 640, 649–651 (2005).
2. Judicial bias. The defendant also claims that the trial judge exhibited bias during individual voir dire when he stated, “I mean, everybody is against rapists,” in response to the potential juror's statement that he had “a strong prejudice against rapists.” As this claim also could have been raised on direct appeal, it too is waived and we confine our review to whether there exists a substantial risk that the judge's comment resulted in a miscarriage of justice. We hold that it did not.
Following the challenged remark, the trial judge ascertained that the potential juror's regard for rapists would not interfere with his ability to listen to the evidence in this case. The defendant made no objection to the judge's comment, no request for the judge to recuse himself, nor any request for a mistrial. Having done none of these, the judge had no opportunity to evaluate what action, if any, needed to be taken. To the extent there was any ground for recusal (and we do not conclude there was), the defendant was not entitled to secret it and then decide later if he was pleased with how the case was tried. See Demoulas v. Demoulas Super Mkts., Inc ., 428 Mass. 543, 549–550 (1998). In any event, the judge's statement was simply a means to gauge whether the potential juror could be fair and impartial. There was no error, no abuse of discretion, and thus, no risk that justice miscarried.
Order denying motion and supplemental motion for new trial affirmed.