Opinion
21-P-1071
10-24-2022
COMMONWEALTH v. TYRONE VICK.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
In 2010, after a jury trial in the Superior Court, the defendant was convicted of possession of a Class B substance, G. L. c. 94C, § 34, and sentenced to time served. After learning of chemist Annie Dookhan's misconduct in falsifying drug test results at the William A. Hinton State Laboratory Institute (Hinton lab), the defendant filed a third motion for new trial which asserted that, because Dookhan had signed the drug certificate admitted at his trial, solely as a notary public, the reliability of the evidence introduced at trial had been tainted. The Commonwealth assented to the defendant's motion for new trial and requested that the court grant him a new trial so that the Commonwealth could file a nolle prosequi in the matter. The Superior Court judge denied the defendant's motion for a new trial without an evidentiary hearing and the defendant appeals. We affirm.
This Court has previously affirmed the defendant's conviction on direct appeal. See Commonwealth v. Vick, 90 Mass.App.Ct. 622 (2016). Since then, the defendant filed three motions for a new trial; two were denied in 2019 and the other in November 2021. On appeal from the denial of his second new trial motion, the order was affirmed. See Commonwealth v. Vick, 99 Mass.App.Ct. 1115 (2021). The underlying facts are set forth in this court's prior decisions and need not be repeated in detail.
On appeal, the defendant's sole argument appears to be that the motion judge abused his discretion in denying the new trial motion without first holding an evidentiary hearing. A judge "may grant a new trial at any time if it appears that justice may not have been done." Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001). Our review of a decision to deny a motion for new trial is limited to determining whether the motion judge "committed an abuse of discretion or a significant error of law." Commonwealth v. DeJesus, 468 Mass. 174, 178 (2014). "The decision to hold an evidentiary hearing on a motion for new trial is 'left largely to the sound discretion of the judge.' Only when the motion and affidavits raise a 'substantial issue' is an evidentiary hearing required" (citation omitted). Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015).
We see no abuse of discretion in the judge's conclusion that the defendant's motion did not make a showing of a "substantial issue" warranting a hearing. For essentially the reasons stated by the motion judge, we agree that the defendant failed to identify any sufficient nexus between the Hinton lab issues and the defendant's case to create a substantial issue suggesting that justice may not have been done in this case. In particular, two chemists other than Dookhan tested the cocaine that provided the basis for the defendant's conviction and Dookhan only signed the certificate as a notary public. See Commonwealth v. Scott, 467 Mass. 336, 352 n.8 (2014) (presumption of misconduct in Hinton lab cases "does not extend . . . to cases in which Dookhan signed the drug certificate in her role as a notary republic").
The defendant's argument that the motion judge should have ordered post-conviction discovery fails if for no other reason than that the defendant did not make this request of the judge. To the extent that the defendant's appeal raises other arguments not discussed here, we have not overlooked them, but conclude that they are without merit. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Order denying motion for new trial affirmed.
Desmond, Sacks & D'Angelo, JJ.
The panelists are listed in order of seniority.