Opinion
15-P-60
01-26-2017
COMMONWEALTH v. Kevin NORRIS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his sixth and seventh motions for new trial and resentencing, as well as from the denial of his motion for reconsideration of the denial of his seventh motion. On appeal, the defendant argues (1) that he was entitled to an evidentiary hearing on the 2015 motion, (2) the 2012 motion should have been allowed because certain of his convictions are duplicative and the court room was closed during jury empanelment in violation of his constitutional rights, and (3) we should extend the procedural protections of Diatchenko v. District Attorney for the Suffolk Dist ., 471 Mass. 12 (2015) (Diatchenko II ), so that a person in his position may take advantage of them. We affirm.
We decline the defendant's invitation to extend the procedural protections of Diatchenko II to the defendant, who was an adult at the time of his offenses and, moreover is not serving a mandatory life sentence without the possibility of parole.
Under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), a "judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done." We review the motion judge's denials of the 2012 and 2015 motions for abuse of discretion or other error of law. See Commonwealth v. Goodreau , 442 Mass. 341, 348 (2004).
1. The 2015 motion . The defendant argues that the motion judge erred by denying the 2015 motion without first conducting an evidentiary hearing. If a new trial motion raises a "substantial issue," the motion judge must hold an evidentiary hearing. Mass.R.Crim.P. 30(c)(3). See Commonwealth v. Stewart , 383 Mass. 253, 256-257 (1981). "Assessment of whether the motion and supporting materials suffice to raise a ‘substantial issue’ involves consideration of the seriousness of the issue itself and the adequacy of the showing that has been made with respect to that issue.... If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence (and be subject to the prosecutor's cross-examination further highlighting the weaknesses in that evidence) will accomplish nothing." Commonwealth v. Goodreau , 442 Mass. 341, 348-349 (2004). As with the decision to deny the new trial motion, this court reviews the denial of an evidentiary hearing for abuse of discretion. See Stewart , supra at 257. For the reasons that follow, we conclude that the judge did not abuse her discretion in determining that the defendant failed to raise a substantial issue requiring an evidentiary hearing before denying the 2015 motion.
In the 2015 motion, the defendant raised three arguments: (a) due process required the judge to consider "newly discovered" scientific information on adolescent brain development and evidence of the defendant's traumatic childhood; (b) defense counsel was ineffective for failing to investigate and introduce evidence of the defendant's traumatic childhood, and for failing to raise the issue of the defendant's competency to stand trial, and (c) the judge should exercise her discretion to resentence him. The motion judge concluded that the defendant was estopped from raising the first and second arguments, and that she did not have the authority to resentence the defendant. We address each argument in turn.
a. Newly discovered evidence . The motion judge concluded that, having raised the issue at least as early as 2008, the defendant was estopped from arguing in 2015 that due process required the judge to consider what he called "newly discovered" scientific information on adolescent brain development and evidence of the defendant's traumatic childhood. Relying heavily on Commonwealth v. Epps , 474 Mass. 743 (2016), the defendant argues that estoppel should not apply because the scientific evidence in question is "newly available," not having been accepted by the courts at the time the defendant relied on it in 2008.
The science to which the defendant points is neither "newly discovered" nor "newly available." Indeed, as the judge noted, it was available to the defendant at the time of his 2008 motions to vacate his convictions and for resentencing and had achieved social and professional acceptance by that time. For example, the American Bar Association had published a report on the science upon which the defendant now relies, and the defendant himself provided this report to the lower court in 2008. Even setting these points aside, Epps is inapposite. Here, the defendant makes no claim that "he could not find an expert with ‘solid credentials' who could assist the defense" with respect to the scientific topic at the time of trial. Id . at 766.
In short, the judge did not err in concluding that, having pursued the issue in 2008, the defendant was estopped from raising it again in his 2015 motion. See Commonwealth v. Rodriguez , 443 Mass. 707, 709-710 (2005).
b. Ineffective assistance of counsel . We also agree with the motion judge that the defendant was estopped from again raising his ineffective assistance of counsel argument. "For direct estoppel to apply, the Commonwealth must show that the issues raised in the defendant's rule 30(b) motion were actually litigated and determined ..., that such determination was essential to the defendant's [earlier motion], and that the defendant had an opportunity to obtain review of the determination of [his earlier motion]." Id . at 710. See Commonwealth v. Balliro , 437 Mass. 163, 170 (2002). The defendant first raised his ineffective assistance of counsel claims in his direct appeal, and he continued to do so in his subsequent motions for new trial, referring specifically to trial counsel's failure to investigate his background and developmental and cognitive issues, counsel's failure to present mitigating factors at sentencing, and counsel's failure to reference scientific evidence supporting the defendant's position.
Regardless of estoppel, the defendant concedes the lack of a viable ineffective assistance of counsel claim regarding counsel's failure to present the so-called "newly discovered" scientific evidence. In his reply brief, the defendant acknowledges that "[t]he Commonwealth rightly points out that [the defendant's] trial counsel cannot fairly be deemed to be ineffective for failing to point out scientific evidence that was not available in 1992." Moreover, there is no factual support in the record for the defendant's argument that trial counsel was ineffective for failing to raise the issue of the defendant's competence to stand trial or to investigate the defendant's background.
c. Authority to resentence . Lastly, the defendant argues that the motion judge erred when she concluded that she lacked authority to reduce his sentence. The judge did not, however, misunderstand the applicable law. As the motion judge correctly noted in her memorandum denying the defendant's motion, "an appeal to the Appellate Division of the Superior Court functions as an exclusive and final challenge to a sentence." Commonwealth v. Malick , 86 Mass. App. Ct. 174, 185 (2014). The defendant's argument is not helped by Commonwealth v. Sullivan , 385 Mass. 497, 503 (1982) ; Commonwealth v. Pike , 431 Mass. 212, 222 (2000) ; or Epps , supra at 769. Those cases all involve instances where the court allowed the defendant's new trial motion on the grounds of newly discovered evidence. Such is not the case here.
We commend the motion judge for her thoughtful and detailed memoranda of decision with respect to both the 2012 and the 2015 motions.
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2. The 2012 motion . The defendant argues: (a) closing the court room during jury empanelment violated the defendant's Federal and State constitutional rights and, relatedly, defense counsel's failure to object to the closure constituted ineffective assistance of counsel; and (b) the defendant was convicted of duplicative crimes. The motion judge concluded the defendant waived the right to a public trial during jury empanelment and was estopped from bringing the second argument. The judge did not abuse her discretion in either regard.
a. Court room closure . "[W]here defense counsel was aware that the court room was closed to the public to facilitate jury empanelment and did not object, we conclude that the defendant's right to a public trial during that portion of the proceedings has been waived." Commonwealth v. Morganti , 467 Mass. 96, 102 (2013), cert. denied, 135 S. Ct. 356 (2014). "If an error is waived due to a failure of trial counsel to object, [the court] still may have occasion to review that error in the postconviction context of a challenge to trial counsel's effectiveness in failing to raise the objection." Id . at 103. With regard to the absence of an objection by a trial attorney to the closure of the court room during jury empanelment, in Morganti the Supreme Judicial Court concluded that "[i]n view of the professional norms at the time, and the record of the practice and the acquiescence in the practice ... [trial counsel's] decision not to object was well within the range of reasonable professional judgments applicable to his conduct." Id . at 104. There was, correspondingly, no ineffective assistance of counsel. Id . at 104-105.
In the present case, the motion judge heard testimony from the defendant's trial attorney that he "was aware of the fact that members of the public were barred from the courtroom during jury selection, [and] he took no action because he was not cognizant that the practice constituted structural error." The motion judge observed that, at the time of trial, the custom of closing the court room during jury empanelment was "firmly entrenched" in the court where Norris was tried. The motion judge concluded that the absence of an objection by trial counsel "was reasonable ‘under prevailing professional norms' " in 1992 (the time of trial) and "that the defendant cannot prevail on his public trial right argument." The motion judge's decision was consistent with the Supreme Judicial Court's decision in Morganti . There was no error or abuse of discretion by the motion judge.
b. Duplicative convictions . The motion judge did not err in concluding that the defendant is estopped from arguing that his convictions of the crimes that the jury could have found to be aggravating factors are duplicative of his aggravated rape convictions. The defendant made the same argument in an earlier motion for new trial in 2006. That motion was denied, and we affirmed the denial on appeal, rejecting his argument concerning duplicative convictions. Commonwealth v. Norris , 71 Mass. App. Ct. 1105 (2008) (affirming denial of defendant's fourth motion for new trial). The defendant is, therefore, estopped from making it again. Even were that not the case, there is no reason to disturb our earlier conclusion that the argument fails on the merits: "[W]e note that the defendant's claim that error may have resulted from the consideration of a felony against one victim to supply the element of aggravation for aggravated rape as to the other victim is wholly without merit. There is no requirement that the aggravating felony be committed directly against the actual rape victim, and the motion judge correctly denied the defendant's motion." Ibid.
Orders denying sixth and seventh motions for new trial and for reconsideration affirmed .