Opinion
10-P-1710
03-28-2012
COMMONWEALTH v. MICHAEL MARPLE.
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
As the Commonwealth correctly observes, the claims raised by the defendant in his second and third motions for a new trial are waived by virtue of his > failure to raise them twenty years ago, in his first motion for a new trial. We accordingly review the defendant's claims solely to determine whether any one or more of them gives rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Glover, 459 Mass. 836, 846 (2011). For substantially the reasons explained in the Commonwealth's brief, we discern no such risk.
The defendant's contention in his reply brief that his trial counsel's affidavit establishes that the decision to forgo a manslaughter instruction was not strategic is unavailing. Though trial counsel in hindsight may view the decision as a strategic mistake, the trial transcript (as well as the opinion of this court in the defendant's direct appeal, see Commonwealth v. Marple, 26 Mass. App. Ct. 150, 151, 161 [1988]) makes clear that the decision was conscious and tactical. The decision to pursue an 'all-or-nothing' strategy, in hopes of gaining an acquittal, is not manifestly unreasonable. See Commonwealth v. Glover, supra at 844, quoting from Commonwealth v. Roberts, 407 Mass. 731, 737-739 (1990).
Orders denying second and third motions for a new trial affirmed.
By the Court (Cypher, Green & Trainor, JJ.),