Opinion
14-P-828
03-16-2015
COMMONWEALTH v. NARCISO DUARTE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The pro se defendant, Narciso Duarte, appeals from the denial of his motion for a new trial. We affirm.
Background. After a jury-waived trial in January and February, 2010, the defendant was convicted of trafficking in cocaine in violation of G. L. c. 94C, § 32E(b). The facts underlying the conviction are set forth in an unpublished memorandum and order affirming the conviction on direct appeal and issued pursuant to our rule 1:28. Commonwealth v. Duarte, 82 Mass. App. Ct. 1117 (2012). In May, 2013, the defendant filed a pro se motion for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), arguing that the United States Supreme Court's decision in Arizona v. Gant, 556 U.S. 332 (2009) (Gant), applied to his case and required the suppression of evidence used against him at trial. The defendant had moved for suppression before trial, arguing that State police troopers unconstitutionally seized him and items from his vehicle without a warrant. In denying the motion to suppress on April 29, 2009, the judge "acknowledge[d] the recent Supreme Court decision of Arizona v. Gant, No. 07-542 (April 21, 2009), but d[id] not find it applicable to this case." On appeal, this court held that the motion to suppress was properly denied. Duarte, supra.
Discussion. We review denial of the defendant's new trial motion for an abuse of discretion. Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 811 (2008). There was no abuse of discretion in denying the defendant's motion for a new trial based on Gant, because the defendant waived that argument by failing to raise it either in his motion for reconsideration on the motion to suppress or on direct appeal. "At its core, the waiver doctrine states that a defendant must raise a claim of error at the first available opportunity." Commonweath v. Randolph, 438 Mass. 290, 294 (2002). See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000); Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 14 (1986), and cases cited. Gant was decided in April, 2009, before the defendant's motion to suppress was decided. Although the decision was available and known to the defendant, he did not raise it when he filed his motion for reconsideration or his direct appeal. Accordingly, the claim is waived. While the judge had discretion "to give relief from such a waiver by permitting such issues to be raised for the first time by a motion for a new trial[,]" that power "should be exercised only in those extraordinary cases where, upon sober reflection, it appears that a miscarriage of justice might otherwise result." Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). This is not one of those cases.
Once the defendant filed his motion to suppress, the Commonwealth bore the burden of showing that the stop was constitutional. Commonwealth v. Comita, 441 Mass. 86, 91 (2004). The record demonstrates that the defendant was stopped for failing to display two license plates as required by G. L. c. 90, § 6, and it is well settled that police may stop a vehicle where they have observed a traffic violation. Commonwealth v. Bacon, 381 Mass. 642, 644 (1980). Commonwealth v. Santana, 420 Mass. 205, 207 (1995). The troopers searched the defendant's vehicle with his consent and not incident to his arrest; indeed, the arrest followed the search. Thus, the judge correctly concluded that Gant is inapplicable. As Gant does not apply and that was the sole basis for the defendant's motion for a new trial, "the judge did not abuse his discretion in denying the motion." DeJesus, supra.
In Gant, supra at 335, the Supreme Court held that New York v. Belton, 453 U.S. 454 (1981), "does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle" and "that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle."
Order denying motion for new trial affirmed.
By the Court (Cypher, Kantrowitz & Carhart, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 16, 2015.