Opinion
14-P-251
11-06-2015
COMMONWEALTH v. RICHARD C. VEGA.
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, who appears pro se, appeals from the January 28, 2014, order denying his third motion for a new trial. We affirm.
Background. In November, 1990, the defendant was convicted, after a Superior Court jury trial, of three counts of rape, arising from three distinct acts of vaginal and anal rape during an attack upon the elderly victim. This court affirmed the judgments in Commonwealth v. Vega, 36 Mass. App. Ct. 635 (1994). Thereafter, as reflected in the Superior Court docket, the defendant has filed numerous pro se motions. Relevant here, the defendant filed two motions for a new trial prior to filing the motion at issue in this appeal. His first motion, filed in 2000, was denied by the trial judge, and an appeal from that order was dismissed by this court for procedural reasons. His second motion, filed in 2005 and styled as a "motion for release from unlawful restraints," was denied by a second Superior Court judge, and the defendant appealed to this court. In a memorandum and order pursuant to rule 1:28, we affirmed, reasoning that the defendant's claims were waived by his failure to raise them on direct appeal or in his first motion for a new trial, and that the defendant had not demonstrated a substantial risk of a miscarriage of justice. 74 Mass. App. Ct. 1108 (2009). As to the nonwaived claims, they had been disposed of in the defendant's direct appeal. Ibid. On May 13, 2013, the defendant filed the present motion. A third judge of the Superior Court denied the motion without a hearing, and this appeal ensued.
Although the defendant's claims are somewhat overlapping, we understand the grounds of his motion to be as follows: the defendant's first attorney rendered ineffective assistance by, in particular, advising the defendant not to accept a favorable plea bargain; the defendant's prosecution for three rapes committed during the same episode was vindictive, duplicative, and resulted in improper consecutive sentences; the judge committed reversible error in admitting flawed deoxyribonucleic acid (DNA) evidence at trial; the judge failed to take appropriate action when it was called to his attention that two jurors were sleeping during the presentation of the Commonwealth's DNA evidence; the judge erred in failing to admit the defendant's exculpatory polygraph test results; and the defendant's trial counsel was ineffective in failing to object or to move for a mistrial at various times during the trial.
Two of these arguments already have been explicitly resolved on direct appeal -- the claim that it was error to admit flawed DNA testimony at trial, and the claim that the defendant could not be prosecuted and sentenced for more than one count of rape. In our 1994 decision, we concluded that it was error to admit the DNA evidence but that the conventional evidence was so powerful that the defendant suffered no prejudice. 36 Mass. App. Ct. at 639-640. We also concluded that three separate rape charges were proper in the circumstances, as was the judge's imposition of successive sentences. Id. at 640-641. The defendant may not utilize his current (third) motion filed pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), to relitigate these issues. See Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005).
Because the defendant's remaining claims were generally known and available at the time of the defendant's direct appeal or first motion for postconviction relief, they are waived. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000). Our review therefore is limited to examining whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002); Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 461 (2004). We conclude that none of the defendant's claims has sufficient support to raise a substantial issue as to error or prejudice. Accordingly, he was not entitled to an evidentiary hearing much less the allowance of his motion. See Commonwealth v. Smith, 459 Mass. 538, 556-557 (2011).
In brief, the defendant's various ineffective assistance claims are supported only by his own conclusory, self-serving affidavit; conspicuously absent is any affidavit from either of the defendant's attorneys. Even assuming that two jurors were inattentive during the DNA testimony, the defendant has failed to demonstrate why the circumstances demanded more action from the trial judge than ordering a recess, or how he has been prejudiced. Finally, the defendant's claim that his polygraph results should have been admitted in evidence is contrary to law. See Commonwealth v. Martinez, 437 Mass. 84, 88 (2002).
Notably, this court already has held that while the DNA evidence was erroneously admitted, there was no prejudice in view of the overwhelming evidence of the defendant's guilt. 36 Mass. App. Ct. at 639-640.
For these reasons, as well as other reasons stated in the Commonwealth's brief at pages 15 through 25, we discern no abuse of discretion on the part of the third judge in denying the defendant's motion, and in doing so without a hearing.
Order dated January 28, 2014, denying motion for new trial affirmed.
By the Court (Cohen, Meade & Agnes, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 6, 2015.