Opinion
14-P-289
12-10-2014
COMMONWEALTH v. LAZARO FERNANDEZ.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2009, a jury found the defendant, Lazaro Fernandez, guilty of statutory rape. This court affirmed his conviction in Commonwealth v. Fernandez, 83 Mass. App. Ct. 1107 (2013). Subsequently, the defendant moved, pro se, for DNA testing and for a new trial pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). On appeal, the defendant contends that the judge erred in denying his rule 30(b) motion because (1) he was entitled to DNA testing under G. L. c. 278A, § 3, and (2) the trial judge committed reversible error by allowing testimony from "four 'first complaint' witnesses." We affirm.
It is worth noting that even assuming the defendant prevailed on his motion under G. L. c. 278A, § 3, the remedy would not be, as he claims, a new trial. See Commonwealth v. Wade, 467 Mass. 496, 505 (2014) ("If a moving party were to prevail on a § 3 motion . . . the moving party would then be required to file a motion for new trial pursuant to Mass.R.Crim.P. 30(b) before a court could consider whether the moving party is entitled to a new trial").
Preliminarily, we acknowledge that we could affirm the judge's order solely for the reason that the defendant's brief does not rise to the level of adequate appellate argument. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975); Commonwealth v. Cook, 419 Mass. 192, 208 (1994). In any event, the judge did not err because the defendant failed to include any of the information required by G. L. c. 278A, § 3(b) in his motion for DNA testing. Commonwealth v. Wade, 467 Mass. 496, 502 (2014) (motion under G. L. c. 278A, § 3 "must contain all of the information specified by [§ 3(b)]"). Similarly, the judge did not err in dismissing the defendant's second claim, that "four 'first complaint' witnesses" testified, where the defendant failed to identify these witnesses and the improper testimony with appropriate record citation, and made no showing that the alleged error created a substantial risk of a miscarriage of justice.
Even where the "moving party is unable to include any of these items, the party must include a description of efforts made to obtain the information and may move for discovery or seek information from the prosecutor or from any third party." Wade at 502 n.9. No such effort was made here.
Order denying motions for DNA testing and for new trial affirmed.
By the Court (Kafker, Cohen & Vuono, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 10, 2014.