Opinion
No. 13–P–1278.
10-02-2014
COMMONWEALTH v. Marcus PERRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury convicted the defendant, Marcus Perry, of armed assault with intent to murder, armed burglary, and assault and battery by means of a dangerous weapon. After a jury-waived trial, the judge also convicted the defendant of being a habitual offender. We affirmed his convictions in Commonwealth v. Perry, 65 Mass.App.Ct. 624 (2006). We also rejected his first and second pro se motions for a new trial in Commonwealth v. Perry, 73 Mass.App.Ct. 1114 (2009), and Commonwealth v. Perry, 78 Mass.App.Ct. 1118 (2011). As carefully and correctly explained by the Commonwealth in its brief at pages 10–21, most of the claims raised in this third pro se appeal are barred by direct estoppel as they have been raised and rejected in previous appeals. See Commonwealth v. Rodriguez, 443 Mass. 707, 709–711 (2005). We also reject the defendant's new, unsubstantiated claim that his jury were not drawn from a fair cross-section of the community. By not raising the argument until his third motion for a new trial, the defendant has waived it. “Challenges to the composition of a jury must be raised only by a pretrial motion to dismiss the indictment or the venire.” Commonwealth v. Barnoski, 418 Mass. 523, 532 (1994), quoting from Commonwealth v. Pope, 392 Mass. 493, 498 (1984). Furthermore, the motion judge, who was also the trial judge, was not required to accept the defendant's self-serving claim, made only in argument and not even by affidavit, about the jury's racial composition ten years after jury selection. See Commonwealth v. Grant, 426 Mass. 667, 673 (1998) ; Commonwealth v. White, 60 Mass.App.Ct. 193, 202–203 (2003). The defendant has made no credible factual showing regarding the composition of the jury nor demonstrated in any way a systematic exclusion of African–Americans from the jury. Commonwealth v. Arriaga, 438 Mass. 556, 562–563 (2003).
Finally, we reject the defendant's G.L. c. 278A argument, as the knife he now seeks to test was destroyed almost five years prior to the passage of c. 278A and five months after the Supreme Judicial Court denied further appellate review in the defendant's direct appeal. Moreover, even if c. 278A were applicable, its requirements would not be met for the reasons stated in the Commonwealth's brief at pages 30–36.
Order dated August 12, 2013, denying defendant's third motion for new trial affirmed.