Opinion
No. 13–P–360.
10-08-2014
COMMONWEALTH v. James J. CAMERON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, James J. Cameron, filed a motion for a new trial, which was denied. His motion for reconsideration was also denied. He appeals, claiming ineffective assistance of counsel, speedy trial violations, error in the prosecutor's closing argument, and error in not conducting an evidentiary hearing and in failing to appoint counsel. We affirm.
On January 23, 1998, a grand jury indicted the defendant. On December 15, 2000, the Supreme Judicial Court ordered the indictments dismissed without prejudice because the Commonwealth failed to inform the grand jury of exculpatory statements that the defendant's attorney made on his behalf during a police interview. The defendant was reindicted for rape of a child under the age of sixteen by force, assault with intent to commit rape of a child under the age of sixteen, and indecent assault and battery on a child under the age of fourteen. On February 25, 2004, a jury found the defendant guilty of all charges.
On May 21, 2007, this court affirmed the convictions but remanded to remove a lifetime community parole provision. See Commonwealth v. Cameron, 69 Mass.App.Ct. 1103 (2007). The defendant was resentenced accordingly. On November 13, 2012, the defendant filed a pro se motion for a new trial, which was denied, as was a subsequent motion for reconsideration.
Denial of a new trial motion is reviewed “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986). An appellate court will “accord substantial deference to a judge's decision on a new trial motion where, as here, that judge also was the trial judge.” Commonwealth v. Cavitt, 460 Mass. 617, 625, 953 N.E.2d 216 (2011).
Waiver. “If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal ... the claim is waived.” Rodwell v. Commonwealth, 432 Mass. 1016, 1018, 732 N.E.2d 287 (2000). If a claim is waived, appellate review is limited to examining whether the alleged error creates a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294, 780 N.E.2d 58 (2002).
The judge did not abuse her discretion in ruling that the defendant's claims of ineffective assistance of counsel in his new trial motion were available on direct appeal. The records on which the defendant based his claims of ineffective assistance were available when he filed his direct appeal and the defendant could have brought the claims at that time. See Commonwealth v. Rodwell, 432 Mass. at 1018, 732 N.E.2d 287. The claims are waived. Further, our review of the record indicates that there was no substantial risk of a miscarriage of justice.
As for appellate counsel being ineffective, “[a]ppellate counsel [is] not ineffective for choosing to forgo a meritless argument,” including meritless claims of ineffective assistance of trial counsel. Breese v. Commonwealth, 415 Mass. 249, 256, 612 N.E.2d 1170 (1993).
The defendant also contends that a new trial is required because the prosecutor's closing argument made reference to evidence not produced at trial. This claim is also waived because it could have been brought on direct appeal. Additionally, there was no substantial risk of a miscarriage of justice. The judge instructed the jury that closing arguments were not evidence and that the jurors' memories of the evidence at trial controlled. See Commonwealth v. Beland, 436 Mass. 273, 289, 764 N.E.2d 324 (2002).
The transcript reflects that the prosecutor stated in her closing that the defendant “held him with a knife.” No evidence of a knife was produced at trial. The Commonwealth introduced evidence that the defendant held the victim by his neck. The Commonwealth contends that the word “knife” is a transcription error and that the prosecutor used the word “neck” instead. Defense counsel did not object to this portion of the prosecutor's argument.
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Other issues. No absolute right to appointed counsel exists for indigent defendants filing new trial motions. Commonwealth v. Conceicao, 388 Mass. 255, 261, 446 N.E.2d 383 (1983). The record shows that an attorney from the Committee for Public Counsel Services (CPCS) was assigned to screen the defendant's case. Apparently, CPCS took no further action following the screening. The judge did not commit error by failing to appoint counsel, especially in light of CPCS's review of the matter. See ibid.
A judge may rule on a new trial motion without holding an evidentiary hearing if, in the judge's discretion, “no substantial issue is raised by the motion or affidavits.” Commonwealth v. Muniur M., 467 Mass. 1010, 1011 (2014), quoting from Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). The defendant has failed to show that the judge abused her discretion in declining to hold an evidentiary hearing in this case.
We have reviewed all of the contentions and concerns of the defendant. That we choose not to discuss them does not mean that they were not fully considered. Rather, “[w]e find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78, 123 N.E.2d 368 (1954).
For these reasons, as well as for substantially those in the brief of the Commonwealth, we affirm the denial of the motion for new trial and the denial of the motion for reconsideration.
So ordered.