Opinion
14-P-782
03-19-2015
COMMONWEALTH v. STEVEN M. PUTNAM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals the denial of his second motion for a new trial. We affirm.
Background. In 2006 the defendant was convicted by a Superior Court jury of home invasion, G. L. c. 265, § 18C; armed assault in a dwelling, G. L. c. 265, § 18A; assault and battery, G. L. c. 265, § 13A; and rape, G. L. c. 265, § 22(a). In his direct appeal he challenged only the home invasion and armed assault convictions. We affirmed the judgments in Commonwealth v. Putnam, 75 Mass. App. Ct. 472 (2009), and the Supreme Judicial Court denied further appellate review, Commonwealth v. Putnam, 455 Mass. 1105 (2009).
In his first motion for a new trial, filed pro se on September 14, 2011, the defendant argued that the prosecutor discriminated on the basis of gender in the exercise of peremptory challenges, that the trial judge erred in the admission of first complaint testimony, that the jury was improperly allowed to review a portion of the trial transcript, and that his trial and appellate counsel were ineffective. A Superior Court judge denied the motion for a new trial, and in an unpublished decision pursuant to our rule 1:28, we affirmed the order denying that motion. See Commonwealth v. Putnam, 83 Mass. App. Ct. 1115 (2013).
On February 28, 2014, the defendant filed his second pro se motion for a new trial. He argued for the first time that his rape conviction must be reversed because the evidence was insufficient to prove the element of penetration. The defendant now appeals from the denial of his second new trial motion.
Discussion. "A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal." Commonwealth v. Chase, 433 Mass. 293, 297 (2001). See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). Here, the defendant had ample opportunity to challenge the sufficiency of the evidence underlying his rape conviction, either in his direct appeal or in his first motion for a new trial, but he did not. The defendant has therefore waived this claim.
This does not end the analysis, however, because "[a]ll claims, waived or not, must be considered. The difference lies in the standard of review that we apply when we consider the merits of an unpreserved claim." Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002) (footnote omitted). Here we apply the substantial risk of a miscarriage of justice standard. See Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).
We agree with the motion judge that the evidence at trial, including specific testimony regarding digital penetration, was sufficient for a rational jury to find the defendant guilty of rape beyond a reasonable doubt. "It does not matter that some of the [victim's testimony] could be characterized as equivocal or contradictory." Commonwealth v. Ruci, 409 Mass. 94, 97 (1991), quoting from Commonwealth v. Melchionno, 29 Mass. App. Ct. 939, 940 (1990). "Credibility is a question for the jury to decide," and they permissibly accepted the victim's testimony. Commonwealth v. Ruci, supra, quoting from Commonwealth v. Parker, 389 Mass. 27, 31 (1983). We find no risk of a miscarriage of justice.
The defendant also argues that the prosecution improperly coached the victim's testimony at trial. We need not address this argument, which was not raised below. See Commonwealth v. Pares-Ramirez, 400 Mass. 604, 609 (1987). Nevertheless, we find no merit in this claim, let alone any risk of a miscarriage of justice.
Order denying motion for new trial affirmed.
By the Court (Wolohojian, Agnes & Massing, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: March 19, 2015.