Opinion
19-P-293
12-31-2019
COMMONWEALTH v. Jose ACEVEDO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from an order denying his third motion for a new trial. He raised three claims in the motion: "(1) that he was excluded from attending the pretrial conference in [his] case; (2) that the trial court's reasonable doubt instruction warrants a new trial; and (3) unlawful courtroom closure during impanelment." We affirm.
Background. The defendant was convicted of numerous offenses in connection with a 2003 home invasion. The defendant appealed from his sentences to the Appellate Division of the Superior Court, which dismissed the appeal. The defendant also appealed from his convictions to this court. Commonwealth v. Merced, 81 Mass. App. Ct. 1107 (2012) (unpublished). We affirmed his convictions. Id. This court also affirmed the order denying his first motion for a new trial. Commonwealth v. Acevedo, 88 Mass. App. Ct. 1116 (2015) (unpublished). The defendant then filed a second motion for a new trial with the trial court, which that court denied. The defendant did not appeal from the order denying his second motion. The defendant then filed a third motion for a new trial. The motion judge denied the motion and the defendant appeals.
Discussion. In reviewing the denial of a motion for a new trial, "we ‘examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.’ " Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting Commonwealth v. Wright, 469 Mass. 447, 461 (2014).
1. Attendance at pretrial conference. The defendant claims that he was excluded from the pretrial conference that took place on April 24, 2006. However, the record shows that habeas corpus was issued on March 7, 2006, for the defendant to be transported from the "Bristol House of Correction (Dartmouth) for 4/24/06," the date of the pretrial conference. The only evidence to support the defendant's claim is a posttrial affidavit by the defendant claiming not to have been at the conference. The motion judge rejected this new evidence in both the second and third motion for a new trial "as inconsistent with court records and not credible." The motion judge was free to determine the credibility of the affidavit. See Commonwealth v. Glacken, 451 Mass. 163, 170 (2008) (judge well within his discretion in choosing not to credit defendant's self-serving affidavit). We discern no abuse of discretion.
2. Reasonable doubt instruction. The defendant argues that the trial judge's use of Instruction 21 of the Federal Judicial Center's Pattern Criminal Jury Instructions 28 (1988) was unconstitutional. This court has previously resolved this issue against the defendant. Merced, 81 Mass. App. Ct. 1107 ("This court has previously approved Instruction 21 ... and the defendants have offered no persuasive reason to revisit that decision"). Because "[a] motion for a new trial may not be used to compel the review of issues on which the defendant has already had appellate review or issues on which the defendant has forgone the opportunity," we need not address the issue again. Commonwealth v. Balliro, 437 Mass. 163, 166 (2002), citing Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 513 U.S. 1091 (1995). Even if we were to broach this subject, the Supreme Judicial Court has found Instruction 21 constitutional. Commonwealth v. Russell, 470 Mass. 464, 474 (2015).
3. Empanelment. The defendant claims that his right to a public trial was violated when the trial judge allegedly told the public to leave the court room during jury voir dire. The defendant presented an identical argument to this court during a previous appeal. Acevedo, 88 Mass. App. Ct. 1116. We concluded that the argument lacked merit, as we do now:
"Based upon the trial transcript, the prosecutor's affidavit, the judge's own recollection, and his knowledge of his customary practices, and without holding an evidentiary hearing, the judge was well entitled to reject the self-serving affidavit of the defendant and the equivocal affidavit of his trial counsel, and to find that the only individuals asked to leave the courtroom were other potential jurors, and not members of the public."
Id. Even if we had not decided this issue previously, the defendant did not object at trial, and we review only to determine whether there occurred a "substantial risk of a miscarriage of justice." Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). Since the defendant has not shown reason to create "serious doubt whether the result of the trial might have been different" (citation omitted), we discern no such risk. Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
Order denying motion for new trial affirmed.