Opinion
No. 10–P–1946.
2013-05-9
COMMONWEALTH v. Owen McCANTS.
By the Court (MEADE, MILKEY & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of rape of a child by force, kidnapping, assault with intent to rape, drugging for sexual intercourse, and assault and battery by means of a dangerous weapon. At a separate bench trial, the defendant was convicted of being an habitual offender. Those convictions were affirmed on direct appeal, Commonwealth v. McCants, 65 Mass.App.Ct. 1121 (2006), and further appellate review was denied. Commonwealth v. McCants, 447 Mass. 1102 (2006). Thereafter, the defendant filed a motion for new trial in which he alleged a variety of claims. The motion was denied, and the defendant appeals from that order. We affirm.
1. The defendant's claims. In his motion for new trial, the defendant claimed that (1) newly discovered evidence, i.e., a 2006 affidavit from his sister, casts doubt on his conviction, (2) a letter he wrote was improperly provided to the Commonwealth by its recipient in violation of his rights against unreasonable search and seizure, (3) counsel provided ineffective assistance by not challenging the admissibility of the letter at trial, and (4) he was denied his right to a fair trial by the prosecutor's use of perjured testimony throughout the trial and by his erroneous characterization of the letter in his opening statement. However, as the motion judge properly determined, the 2006 affidavit did not constitute newly discovered evidence because the defendant failed to show why he could not have obtained his sister's account of the events on June 8, 2000. See Commonwealth v. Pike, 431 Mass. 212, 218 (2000). 2. Waiver. As the motion judge properly determined, the defendant's remaining claims are waived because they could have been raised on direct appeal. Because the issues were known and available to him at that time, he has effectively waived them. See Commonwealth v. Pisa, 384 Mass. 362, 365–366 & n. 5 (1981); Fogarty v. Commonwealth, 406 Mass. 103, 107–108 (1989); Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). Also, for the reasons stated in the motion judge's thoughtful and thorough memorandum of decision, the claims lack merit, and thus, there is no risk that a miscarriage of justice occurred.
The affidavit also would not have cast any real doubt on the defendant's convictions, as it does not support the defendant's position that the police coerced the recipient into providing them the letter. See Commonwealth v. Grace, 397 Mass. 303, 305–306 (1986).
3. Additional claims. The defendant makes several claims in his brief and supplemental brief that were not included in his motion for new trial. These include additional claims of ineffective assistance, that the police lacked probable cause to seize the defendant's letter, and that the Superior Court lacked “jurisdiction” over the defendant's rape indictment because evidence of penetration was absent. As these are being raised for the first time on appeal, we do not consider them. See Commonwealth v. Haas, 398 Mass. 806, 816 n. 10 (1986). See also Commonwealth v. Zinser, 446 Mass. 807, 810–811 (2006).
To the extent the defendant's claim is one of sufficiency of the evidence, the victim testified that the defendant put his fingers inside her vagina.
Finally, the defendant claims that the judge should have conducted an evidentiary hearing on his motion for new trial. We disagree. “A judge has discretion to decide a motion for a new trial without an evidentiary hearing if no substantial issue is raised by the motion or affidavits.” Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). See Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). As illustrated above, the defendant's motion did not present a substantial issue, and thus, we find no abuse of discretion in the judge's decision to decide it without an evidentiary hearing.
Order denying motion for new trial affirmed.