Opinion
No. 11–P–1927.
2012-11-9
COMMONWEALTH v. Miguel GUERRERO.
By the Court (GRAINGER, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his second motion for a new trial regarding his conviction of various drug offenses. We affirm.
The defendant's direct appeal and denial of his first motion for a new trial were heard in a consolidated appeal and affirmed in an unpublished decision. See Commonwealth v. Guerrero, 76 Mass.App.Ct. 1113 (2010) ( Guerrero I ). He then filed a habeas corpus petition in the United States District Court for the District of Massachusetts. The petition was denied on the ground that the defendant had filed a “mixed petition” because he failed to exhaust all of his claims of error in State court. See Guerrero v.. MacEachern, 10–10747–DJC, 2011 WL 1598717 (D.Mass. Apr. 27, 2011). The defendant filed his second motion for a new trial, in which he argued that errors in his trial and the denial of his motion for a new trial rose to the level of Federal due process violations. A judge of the Superior Court denied the motion on the grounds that the arguments were either heard in his first appeal, or not presented and therefore waived. On appeal the defendant argues that the following alleged errors violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution: (1) the destruction of evidence before trial, (2) the insufficiency of the evidence as to whether the crime occurred within 100 feet of a park, (3) the admission of a photocopy of a drug analysis certificate, (4) the judge's questioning of a witness and instruction, (5) the judge's failure to give a missing evidence instruction, (6) the judge's failure to instruct correctly the jury after they submitted a question, (7) the judge's denial of the defendant's motion for a new trial based upon newly-discovered evidence, and (8) the cumulative effect of the foregoing errors.
The first two claims of error were argued on the basis of Federal constitutional principles in the consolidated appeal. See Guerrero I, supra; Guerrero v. McEachern, supra. With regard to these two preserved arguments, “[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....” Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).
We rely on and incorporate by reference our previous unpublished decision and the Federal District Court's order to determine which issues were adequately preserved.
The remaining six issues were not argued as matter of Federal constitutional law either on direct appeal or in connection with the first motion for new trial and are procedurally waived. Mass.R.Crim .P. 30(c), as appearing in 435 Mass. 1501 (2009). See Commonwealth v. Watson, 409 Mass. 110, 112 (1991); Commonwealth v. Amirault, 424 Mass. 618, 639 (1997). We therefore review these claims to determine whether there has been a substantial risk of miscarriage of justice, Commonwealth v. Randolph, 438 Mass. 290, 294–295 (2002), and address each of them below.
In Guerrero I we concluded that the best evidence rule allowed for the admission of a photocopy of a drug analysis certificate because the copy was entered without objection and any error in its admission was not prejudicial. “To be a constitutional violation, a state evidentiary error must so infuse the trial with inflammatory prejudice that it renders a fair trial impossible.” Lyons v. Brady, 666 F.3d 51, 56 (1st Cir.2012), quoting from Petrillo v. O'Neill, 428 F.3d 41, 44 n. 2 (1st Cir.2005). The admission of the document did not carry with it a risk of Federal constitutional error rising to the level of a substantial risk of miscarriage of justice.
With respect to the defendant's claim that the trial judge erroneously questioned a witness and assumed the role of prosecutor, we previously concluded in Guerrero I, supra, that the judge's single question to a witness was aimed at developing trustworthy testimony and that the judge's instructions were sufficient. The judge's actions did not abrogate the defendant's Federal due process right to a fair trial, as the judge was acting impartially. See Bracy v. Gramley, 520 U.S. 899, 904–905 (1997) (holding that due process requires fair trial in fair tribunal before judge with no actual bias against defendant or interest in outcome of case). Contrast Ruiz v. Delgado, 359 F.2d 718 (1st Cir.1966) (holding that due process denied where judge acts as prosecutor in presenting Commonwealth's case-in-chief and cross-examining defense witnesses); Furtado v. Furtado, 380 Mass. 137, 151 (1980) (judge's assumption of all questioning in criminal contempt proceeding violated due process).
The defendant also contends that the failure to give a missing evidence instruction violated his due process rights. The omission, however, did not “so infect[ ] the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 (1973). At trial, defense counsel did not request this instruction and agreed it was not necessary. Moreover, we have already concluded that if one were requested, the denial of that request would have been warranted. Guerrero I, supra.
The defendant further claims that the failure to instruct the jury after they submitted a question violated his due process rights. As noted in Guerrero I, the supplemental jury instruction was accurate, and thus did not violate due process. See generally Cupp, supra.
The defendant argues that the denial of his motion for a new trial on the basis of newly discovered evidence violated his due process rights. His handwriting expert opined that the drug analysis certificate, prepared at the State police drug laboratory, was forged. The pro se defendant does not provide Federal authority in support of his contention that the denial of the motion for new trial was constitutionally defective. The Commonwealth also has not addressed this contention under Federal law. Assuming without deciding that this argument rises to the constitutional level, we decipher no error of constitutional magnitude under the Fourteenth Amendment of the United States Constitution. Applying the “broader fair trial principle [as] the beacon by which we must steer,” Lyons, supra at 56, quoting from Coningford v. Rhode Island, 640 F.3d 478, 485 (1st Cir.2011), any “need for an expert ... was reasonably apparent at or before the time of trial,” Guerrero I, supra. Cf. Herrera v. Collins, 506 U.S. 390, 407–408 (1993). Here the allegedly inconsistent documents were available to counsel before trial, and defense counsel cross-examined the preparer of the certificate extensively.
The witness testified at trial that while one set of her initials looked different than the other, they were both hers, that she did perform the tests and did sign the certificate. No handwriting expert was sought or called at trial. This approach may be fairly characterized as tactical, not constitutionally defective.
Because we find no error and therefore no substantial risk of a miscarriage of justice, the defendant's last claim of cumulative error is without merit. See Commonwealth v. Gagliardi, 418 Mass. 562, 572 (1994).
Order denying second motion for new trial affirmed.