Opinion
No. 10–P–1944.
2012-07-26
COMMONWEALTH v. Roberto LANTIGUA.
By the Court (SIKORA, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Roberto Lantigua, appeals from the denial of a motion for a new trial. For the following reasons, we affirm the denial.
Background. In 1993, a judge of the Superior Court convicted the defendant of trafficking in more than fourteen grams but less than twenty-eight grams of cocaine, G.L. c. 94C, § 32E( b )(1), and imposed the mandatory minimum sentence of three years to three years and one day at State prison. The judge stayed execution of the sentence pending appeal. On appeal, the defendant did not challenge the admission of the State laboratory certificate of the nature and amount of the controlled substance. This court affirmed the conviction. Commonwealth v. Lantigua, 38 Mass.App.Ct. 526, 529–530 (1995).
The defendant failed to appear for sentencing. A default warrant issued for him on September 30, 1996. His whereabouts remained unknown for twelve years. On April 7, 2009, the Superior Court issued a habeas to the Essex County house of correction for the appearance of the defendant then incarcerated under the name of Carlos Pagan and the alias of Jose Soto. On May 29, 2009, the sentencing judge imposed the term of three years to three years and one day for service after completion of sentences then in progress for the defendant under his alternate names. On September 24, 2010, the defendant filed a motion for production of his trial transcript so that he could “prepare and submit a Rule 30 motion claiming a Melendez–Diaz trial error.” The Commonwealth opposed the request upon the ground that Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009), did not provide retroactive collateral review of convictions final before its delivery in 2009.
In October of 2010, the defendant filed his motion for a new trial. By supporting affidavit and memorandum, he argued that the admission of the drug certificate at his trial in 1993 without the testimony of the authoring chemist violated his Sixth Amendment right to confrontation “as explained in Davis v. Alaska,” 415 U.S. 308 (1974). His papers no longer referred to the United States Supreme Court decision of Melendez–Diaz v. Massachusetts. The sentencing judge denied the motion for a new trial with the explanation that “the 2009 decision of the U.S. Supreme Court in Melendez–Diaz is not retroactively applicable to cases on collateral review.”
Analysis. We review the denial of a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2009), for a significant error of law or abuse of discretion. Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006). Neither is present.
1. Waiver. Any argument upon the basis of Davis v. Alaska, supra, was fully available for the direct appeal pursued by the defendant in 1993 through 1995. He did not raise it. A postconviction motion for a new trial based upon a ground available but not invoked on direct appeal is waived. See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2009); Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973), citing Commonwealth v. Dascalakis, 246 Mass. 12, 24 (1923). The waiver standard applies equally to constitutional contentions. Commonwealth v. Amirault, 424 Mass. 618, 641 (1997). See Commonwealth v. Lantigua, 38 Mass.App.Ct. at 526–530 (no contention of denial of confrontation rights).
2. Inapplicability. Under the standard of substantial risk of a miscarriage of justice, Commonwealth v. Randolph, 438 Mass. 290, 297–298 (2002), we address briefly the confrontation claim. First, the United States Supreme Court's Melendez–Diaz decision of 2009 created “new” constitutional doctrine governing the application of the right to confrontation to forensic certificates. Consequently the new rule applied only prospectively. See Teague v. Lane, 489 U.S. 288, 305–310 (1989). Second, the Supreme Judicial Court has now squarely ruled that a confrontation challenge to the admission of certificates cannot operate by collateral retroactive challenges. Commonwealth v. Melendez–Diaz, 460 Mass. 238, 239–240 (2011). See Commonwealth v. Velez, 82 Mass.App.Ct. 12, 16–17 (2012). Third, the circumstances of Davis v. Alaska, bear no resemblance to the category of forensic certificates. No stretch of the holding of that case involving the exclusion of the juvenile delinquency history of a prosecution witness as a denial of adequate confrontation could reasonably relate to the circumstances and doctrine controlling this case. See 415 U.S at 309–315.
Order denying motion for a new trial affirmed.