Opinion
No. 10–P–2118.
2012-05-23
COMMONWEALTH v. Francisco E. GONZALEZ.
By the Court (KANTROWITZ, KAFKER & GREEN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Francisco E. Gonzalez, appeals from the denial of his second motion for a new trial. He argues, with a few variations, that we should apply Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) ( Melendez–Diaz I ), to his case, which became final in 2005. However, the Supreme Judicial Court has held that Melendez–Diaz I is not retroactive to cases that became final before that decision issued. See Commonwealth v. Melendez–Diaz, 460 Mass. 238, 242–246 (2011) ( Melendez–Diaz II ). For this and other reasons stated below, we affirm.
Melendez–Diaz II is dispositive of the defendant's claim that Melendez–Diaz I was not a “new rule” and is therefore retroactive on collateral review.
There is no merit to the defendant's argument that equal protection principles entitled him to the benefit of other jurisdictions' more expansive interpretations of Crawford v. Washington, 541 U.S. 36 (2004).
The defendant argues that the motion judge failed to exercise his discretion to consider whether to grant a new trial to avoid a substantial risk of a miscarriage of justice, thus committing an abuse of discretion. See Commonwealth v. Amirault, 424 Mass. 618, 645–647 (1997). Compare Commonwealth v. Fredette, 56 Mass.App.Ct. 253, 259–260 & n. 10 (2002). Contrary to the defendant's contention, the motion judge did not state that he had no discretion to allow the motion for a new trial. Rather, he ruled that the motion was not meritorious and a hearing was not required. The defendant's appellate counsel was not ineffective for failing to raise a claim similar to that in Melendez–Diaz I on direct appeal. See Commonwealth v. Boria, 460 Mass. 249, 252–253 (2011). Although Commonwealth v. Verde, 444 Mass. 279 (2005) (holding that “certificates of analysis ... are akin to a business or official record”), was not decided until a few weeks after this court ruled on the defendant's direct appeal, had he raised the confrontation issue on appeal, either this court or the Supreme Judicial Court would have ruled against him based on the reasoning in Verde. Thus “the appeal would have failed, and the conviction become final long before Melendez–Diaz I was decided.” Boria, supra at 253. There was no error in the motion judge's conclusion that the defendant's ineffective assistance claim had “no basis.”
Finally, we decline to exercise our “extraordinary power” to grant a new trial “to avoid a substantial risk of a miscarriage of justice.” Amirault, supra at 646, citing Commonwealth v. Freeman, 352 Mass. 556, 564 (1967). The defendant has already obtained review of the sufficiency of the evidence against him multiple times, including twice by this court. See Commonwealth v.. Gonzalez, 63 Mass.App.Ct. 1103 (2005); Commonwealth v. Gonzalez, 71 Mass.App.Ct. 1125 (2008). We discern no reason to address the issue once more. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002), citing Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001).
Order denying motion for new trial affirmed.