Opinion
16-P-366
01-24-2017
COMMONWEALTH v. Roy DUMAS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 2006, after a jury trial, the defendant was convicted of kidnapping, rape of a child with force, and threatening to commit bodily injury. In 2011, his convictions were affirmed on direct appeal in Commonwealth v. Dumas , 78 Mass. App. Ct. 1120 (2011). In March of 2014, the defendant filed, pro se, a motion for new trial that the trial judge denied. The defendant noticed an appeal but did not pursue the matter. Instead, on August of 2014, the defendant filed, pro se, an amended motion for new trial, i.e., a second motion for new trial. After counsel filed an appearance for the defendant, he requested that no action be taken on the pro se motion. That request was allowed. Thereafter, in December of 2014, the defendant filed a third motion for new trial and a motion for postconviction discovery. Because the trial judge had retired, the matter was assigned to a different judge. The defendant appeals the orders denying those motions. We affirm.
1. DNA testimony and the criminalist's report . The defendant claims that the trial testimony of the DNA analyst, Kellie Fenesan, and the admission of the criminalistics report violated his right to confrontation because the evidence technician, Sherri Crook, who collected the samples did not testify. The defendant raised that same claim on direct appeal, and it was rejected by this court. Direct estoppel bars him from relitigating it. See Commonwealth v. Rodriguez , 443 Mass. 707, 710 (2005) ; Commonwealth v. Coutu , 88 Mass. App. Ct. 686, 699 (2015). In fact, the trial judge denied the first motion for new trial for the same reason.
The defendant also repeats his claim that Fenesan's testimony regarding the general protocol of the crime lab deprived him of an opportunity for cross-examination because he claims that Fenesan was not the analyst who tested the sample, but rather that she was a substitute analyst. That too was raised and rejected on direct appeal, and thus barred by direct estoppel. See ibid . We further noted in our decision on direct appeal that even if we accept the defendant's characterization of Fenesan's testimony, because he "sought the testimony himself, on cross-examination, the defendant cannot now claim error in its admission." See Commonwealth v. Aspen , 53 Mass. App. Ct. 259, 265 (2001).
2. Ineffective assistance . The defendant also claims that his appellate counsel on direct appeal provided ineffective assistance where he failed to raise a confrontation claim relative to Melendez-Diaz v. Massachusetts , 557 U.S. 305 (2009), where Fenesan's testimony as to the results of work performed by Crook and Crook's criminalistics report were admitted in evidence without Crook's testimony. We disagree.
As the motion judge properly held, because the defendant could have raised his ineffective assistance claim in his prior motion for new trial, it is waived. See Commonwealth v. Balliro , 437 Mass. 163, 166 (2002). See also Commonwealth v. Deeran , 397 Mass. 136, 139 (1986) (defendant must raise all available grounds for relief in first motion pursuant to Mass.R.Crim.P. 30(b) or "those claims are lost"); Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001) ("All grounds for relief claimed by a defendant ... shall be raised by the defendant in the original or amended motion [for a new trial]. Any grounds not so raised are waived"). As such, the defendant's claim is reviewed only to determine if error occurred, and if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph , 438 Mass. 290, 293-295 (2002).
Again, as the motion judge properly determined, Fenesan properly testified to her independent opinion based on her analysis of the underlying data and, as such, did not violate the defendant's confrontation rights. An expert may testify to her independent opinion without violating a defendant's confrontation rights even if the expert's opinion is based on facts and data not in evidence as long as the expert, on direct examination, does not testify to the "specific information on which he or she relied." Commonwealth v. Greineder , 464 Mass. 580, 582-584 (2013).
To the extent that Fenesan testified to the details and results of Crook's DNA test results, and to the extent that the criminalistics report was erroneously admitted, as the motion judge held, such errors did not create a substantial risk of a miscarriage of justice. Defense counsel made extensive use of the data prepared by Crook in his cross-examination of Fenesan. See id . at 602-603. Moreover, as we stated on direct appeal, the majority of the testimony the defendant now challenges, he introduced himself on cross-examination of Fenesan. Finally, the report was also cumulative of other properly admitted evidence. There was no risk that justice miscarried.
3. Postconviction discovery . The defendant also claims that the motion judge abused his discretion by denying the defendant's motion for postconviction discovery. That claim is based on his assertion that Fenesan's testimony "leaves doubt that she personally had a hand in testing [the] DNA evidence" and, as such, he needs the entire lab file to determine who "actually performed the DNA testing."
"Where affidavits filed by the moving party ... establish a prima facie case for relief, the judge ... may authorize such discovery as is deemed appropriate." Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1502 (2001). See Commonwealth v. McWilliams , 473 Mass. 606, 615 (2016). As the motion judge held, the defendant failed to file an affidavit that established a prima facie case. For that reason alone, the judge was warranted in denying the request. In any event, even if the defendant's theory is correct, i.e., that Fenesan did not herself conduct the DNA test, as we explained above, her testimony did not result in a substantial risk of a miscarriage of justice. Thus, the requested discovery was not likely to uncover evidence that might warrant the granting of a new trial. The judge did not abuse his discretion in denying the motion.
Order denying motion for new trial affirmed .
Order denying motion for postconviction discovery affirmed .