Opinion
16-P-758
02-03-2017
COMMONWEALTH v. Scyrus CARTWRIGHT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Scyrus Cartwright, appeals from a District Court judge's order denying his posttrial "Motion to Order the Change of the Verdict." We affirm.
Background . In 1997, the defendant and Lorenia Cartwright were granted a judgment of divorce in the Probate and Family Court. At that time, the defendant was ordered to pay $750 per week for child support, $250 per week as alimony, maintain a life insurance policy in the amount of $150,000 with Lorenia as beneficiary, and retain health insurance for the benefit of Lorenia and their children. Over the years, the defendant refused to make the required child support and alimony payments claiming, inter alia, that he was acting as an Apostle of Jesus Christ, and that certain court orders violated his rights under the free exercise clause of the First Amendment to the United States Constitution. On two separate occasions in 2002, he was found in contempt by different judges of the Probate and Family Court for failing to pay arrearages in an amount exceeding $200,000.
We use her first name to avoid confusion.
In 2006, the Department of Revenue filed an application for a criminal complaint against the defendant in the District Court for failure to comply with a court order to pay child support, in violation of G. L. c. 273, § 1(4). On June 5, 2007, after a jury-waived trial, the defendant was found guilty. At trial, he testified, inter alia, that he knew of the order to pay child support. He also admitted "very strongly" that he had "made no payments and can't make any payments because of religious conviction." The defendant filed neither a notice of appeal from his conviction, nor a timely motion to revise or revoke his conviction pursuant to Mass.R.Crim.P. 29, 378 Mass. 899 (1979).
The arrearage on child support payments was alleged to be in the amount of $385,966.67.
In February, 2016, the defendant filed a motion in the same court, captioned "Motion to Order the Change of the Verdict ... and the Defendant to be Allow [ed] to Obtain a Passport." A different judge (motion judge) held a hearing on May 2, 2016, and treated the motion as a motion for a new trial. That judge denied the motion on May 3, 2016. The defendant now appeals therefrom.
Discussion . Although difficult to decipher, the defendant appears to contend that his 2007 conviction violated First Amendment principles and "violated the principles of liberty and protection by Divine Providence in the U.S. Declaration of Independence." He further claims that he was justified in not making child support payments because he had received signs from God, which he was obligated to fulfil. Thus, he posits, the failure of the trial judge to accept that defense was an injustice. Finally, he argues that a probation department report issued after the verdict "raised reasonable doubt to guilt by way of religious conviction." The claims are unavailing.
Initially, the defendant's brief cites to one case only, Wisconsin v. Yoder , 406 U.S. 205 (1972), in support of his freedom of religion contention. He failed to cite any other case, statute, or authority in support of his argument. Furthermore, his motion did not raise the arguments or issues discussed in Yoder , supra . To the contrary, the motion contains general references to "a preexisting religious conviction of a calling from God," and "preexisting covenants as in the U.S. Constitution and its First Amendment protection." Having failed to raise the Yoder case and related principles before the motion judge, the grounds for relief now claimed were not properly preserved for appellate review. See generally Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001).
Even assuming that the defendant had properly preserved his claims for appeal, we conclude that the denial of the motion did not constitute an abuse of discretion or error. At most, the defendant contends that the 2007 conviction was unfair because he had had prophetic dreams and received signs that precluded him from paying child support. These arguments do not constitute newly discovered evidence or matters appropriate for determination in a motion for a new trial. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Moreover, the defendant raised these very arguments at his trial, and should have raised them through a timely appeal. See Mass.R.A.P. 4, as amended, 430 Mass. 1603 (1991). On the record before us, we discern no abuse of discretion and cannot conclude "that justice may not have been done." See Mass.R.Crim.P. 30(b).
We further note that years earlier, the defendant unsuccessfully raised the freedom of religion argument in a complaint for modification of the divorce judgment. This court upheld the denial of these claims in a memorandum and order pursuant to our rule 1:28. See Cartwright v. Cartwright , 63 Mass. App. Ct. 1119 (2005). See also Martinez v. Waldstein , 89 Mass. App. Ct. 341, 345-349 (2016), and cases cited (barring plaintiff's recycled claims under principles of issue preclusion).
To the extent that we have not specifically addressed subsidiary arguments in the defendant's briefs, they have not been overlooked. "We find nothing in them that requires discussion." Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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Order dated May 3, 2016, denying defendant's posttrial motion affirmed .