Opinion
No. 15–P–1191.
10-18-2016
COMMONWEALTH v. Paul REVELLS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his second motion for new trial. He raises three issues on appeal. First, he contends that his constitutional right to confrontation was violated when the judge permitted the victim's mother to testify to the contents of a letter written by the victim in which she conveyed her first complaint of the sexual abuse. Second, he contends that the Commonwealth's failure to produce the letter during discovery violated Brady v. Maryland, 373 U.S. 83, 87 (1963). Third, he argues that his counsel was ineffective in failing to prevent the mother's testimony concerning the contents of the missing letter. We affirm.
The defendant was convicted, after a jury trial, of four counts of rape of a child with force, G.L. c. 265, § 22A. We affirmed those convictions and the denial of his first motion for new trial in Commonwealth v. Revells, 78 Mass.App.Ct. 492 (2010).
“It is well established that, ‘[i]n reviewing the denial or grant of a new trial motion, we “examine the motion judge's conclusion only to determine whether there has been a significant error of law or other abuse of discretion.” ‘ “ Commonwealth v. Brescia, 471 Mass. 381, 387 (2015), quoting from Commonwealth v. Wright, 469 Mass. 447, 461 (2014). We typically “grant special deference to a decision on a motion for a new trial of the judge who was[, as here,] also the trial judge.” Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992). Nevertheless, because the defendant's “new trial claim is constitutionally based, this court will exercise its own judgment on the ultimate factual as well as legal conclusions.” Id. at 409. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105 (2010).
Our review also must consider that to the extent the defendant's arguments could have been raised either in his direct appeal or in his first motion for new trial, but were not, they are waived. See Commonwealth v. Watson, 409 Mass. 110, 112 (1991). “If a defendant fails to raise a claim that is generally known and available at the time of trial or direct appeal or in the first motion for postconviction relief, the claim is waived.” Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). Waived claims are nonetheless subject to the substantial risk of a miscarriage of justice standard of review. See Commonwealth v. Murphy, 73 Mass.App.Ct. 57, 60 (2008). On the other hand, to the extent that the defendant's arguments actually were previously raised and decided, relitigation of them is now not possible. See Commonwealth v. Ellis, 475 Mass. 459, 475 (2016) (direct estoppel). The defendant's arguments all fall into one of these two categories.
The defendant's argument that the mother should not have been permitted to testify to the contents of the letter was previously rejected in Commonwealth v. Revells, 78 Mass.App.Ct. 492, 494–497 (2010). As we held, the letter constituted part of the victim's first complaint to the mother and, as such, was admissible, as was the mother's testimony about the contemporaneous conversation; we also rejected the defendant's contention that the mother's testimony as to the letter's contents violated the best evidence rule.
“The confrontation clause bars the admission of testimonial out-of-court statements by a declarant who does not appear at trial unless the declarant is unavailable to testify and the defendant had an earlier opportunity to cross-examine him.” Commonwealth v. Simon, 456 Mass. 280, 296, cert. denied, 562 U.S. 874 (2010). See Crawford v. Washington, 541 U.S. 36, 53–54 (2004). Here, however, both the mother and the victim testified at trial and the defendant points to no restriction on his cross-examination regarding the contents of the missing letter. There was, accordingly, no constitutional violation.
The defendant's argument that the Commonwealth failed to meet its obligation under Brady v. Maryland, 373 U.S. at 87, likewise fails because the facts do not support it. The record was undisputed that the defendant was the last person to see and handle the letter and that its whereabouts thereafter were unknown. There is nothing to suggest that the Commonwealth “possessed” the letter in the sense required to trigger a discovery obligation. See Commonwealth v. Caillot, 454 Mass. 245, 261–262 (2009) (“To establish a Brady violation, a defendant must show that [1] material information was in the possession of the prosecutor or ‘those police who are participants in the investigation and presentation of the case,’ ...; [2] the information tended to exculpate him; and (3) the prosecutor failed to disclose the evidence”). See also Revells, supra at 494, 497.
Finally, the judge correctly rejected the defendant's claim of ineffective assistance of counsel. Counsel cannot be faulted for failing to object to the mother's testimony concerning the contents of her daughter's letter; as noted above, the testimony was admissible under the first complaint doctrine.
We also see nothing to support the defendant's fleeting assertions that his original appellate counsel was ineffective and that trial counsel was ineffective for failing to make reasonable efforts to obtain the letter.
For these reasons, we affirm the order denying the defendant's second motion for new trial.