Opinion
11-P-1291
03-29-2012
COMMONWEALTH v. LUIS A. SANTIAGO.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Passing over the prior adverse adjudication, see Commonwealth v. Santiago, 56 Mass. App. Ct. 1115 (2002), on our review of the briefs, record appendix, and transcript presented by the defendant on this appeal from the order denying his motion for a new trial, we find no merit in the defendant's various claims of error. Nor do we discern any serious missteps on the part of the motion judge, who was also the trial judge.
'[W]hile deferring to the motion judge's assessment of the credibility of the witnesses . . . [the reviewing court is] in as good a position as the motion judge to assess the remainder of the record.' Commonwealth v. Baran, 74 Mass. App. Ct. 256, 261 (2009).
Accordingly, we address each claim of error in a summary manner, for the most part relying on the Commonwealth's brief and, where appropriate, citing relevant case law.
1. Ineffective assistance. We can confidently conclude that the defendant's claim of ineffective assistance of counsel fails, as it does not meet the second prong of the Saferian test, which requires a showing that 'better work might have accomplished something material for the defense.' Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
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a. Expert witness. We need not discuss the defendant's claim that trial counsel's failure to call Dr. William Stuart was ineffective assistance and resulted in prejudice. That issue was considered and decided adversely to him on his direct appeal. See in this regard Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005).
b. Pretrial preparation. The record reflects that the defendant knowingly and expressly waived any claim of ineffective assistance based on inadequate pretrial preparation by trial counsel, specifically the shortness of the amount of time available.
c. Appellate counsel. Passing the lack of an affidavit from prior appellate counsel, see Commonwealth v. Rice, 441 Mass. 291, 304 (2004), the defendant's claim that his prior appellate counsel did not argue that the defendant did not make a valid waiver of a claim of ineffective assistance of counsel is of no avail. The defendant is not able to show any harm, as the record reflects that this court addressed the relevant issue on his direct appeal.
2. Newly discovered evidence. The defendant fails to establish that postconviction discovery should be allowed. 'In requesting postconviction discovery, a defendant 'must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial." Commonwealth v. Morgan, 453 Mass. 54, 61-62 (2009), quoting from Commonwealth v. Daniels, 445 Mass. 392, 407 (2005). In the circumstances applicable here, the defendant must show that 'the evidence was unknown to the defendant or the defendant's counsel, and not discoverable through 'reasonable pretrial diligence' at the time of trial or at the time of the presentation of any earlier motion for a new trial.' Commonwealth v. Pike, 431 Mass. 212, 218 (2000). This is not the case here.
Here, '[t]he defendant . . . attempts to use the same factual circumstances which gave rise to his unsuccessful argument in the Appeals Court in fashioning a new argument which he previously could have made on direct appeal. This he may not do.' Commonwealth v. Gagliardi, 418 Mass. 562, 566 n.2 (1994), cert. denied, 513 U.S. 1091 (1995).
Accordingly, we reject the relief sought, based substantially on the reasoning and authorities set out in the Commonwealth's brief.
Order denying motion for new trial affirmed.
By the Court (Cohen, Brown & Fecteau, JJ.),