Opinion
No. 12–P–149.
2013-06-21
COMMONWEALTH v. Clyde WILLIAMS.
By the Court (TRAINOR, GRAHAM & WOLOHOJIAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his second motion for a new trial, as twice supplemented. Proceeding pro se, he appears to raise four arguments on appeal: (1) that the police failed to read him his Miranda rights; (2) that his counsel's ineffectiveness caused the loss of his appellate rights; (3) that this ineffectiveness also led to numerous defects in the court proceedings; and (4) that the admission of drug certificates was in violation of his confrontation rights. We affirm.
Standard of review. “The decision to allow a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or unless the trial was infected with prejudicial constitutional error.” Commonwealth v. Nieves, 429 Mass. 763, 770 (1999). “We give special deference to the decisions of a judge who was, as here, the trial judge.” Commonwealth v. Murphy, 442 Mass. 485, 499 (2004). Discussion. 1. Miranda rights. For the first time on appeal, the defendant argues that during his arrest, the police failed to advise him of his Miranda rights and his rights under Article 36 of the Vienna Convention on Consular Relations. Because the defendant did not raise this issue below, it is waived on appeal. See Commonwealth v. Velez, 82 Mass.App.Ct. 12, 19 (2012). In any event, the claim is without merit. There is no evidence in the record that the defendant even made statements to the police, let alone those requiring Miranda warnings. Regarding Article 36 specifically, the defendant has not shown that he is a foreign national subject to its protections. Moreover, the suppression of evidence is not the remedy for a violation of Article 36. See Commonwealth v. Diemer, 57 Mass.App.Ct. 677, 685 (2003). See also Sanchez–Llamas v. Oregon, 548 U.S. 331, 350 (2006).
Under Article 36, “when a national of one country is detained by authorities in another, the authorities must notify the consular officers of the detainee's home country if the detainee so requests.” Sanchez–Llamas v. Oregon, 548 U.S. 331, 338–339 (2006).
2. Loss of right to appeal. The defendant next argues that his counsel's mistakes led to the loss of his right to appeal. The record shows otherwise. Not only did trial counsel bring a motion for a new trial, which was partially allowed, he also appealed the defendant's conviction to this court. See Commonwealth v. Williams, 48 Mass.App.Ct. 1108 (1999), further appellate review denied, 431 Mass. 1102 (2000). Clearly, the defendant's appellate rights were not lost.
The motion judge ordered the second or subsequent offense portion of the original indictment vacated.
3. Defects in the court proceedings. Similarly, the defendant claims that his counsel's ineffectiveness led to a bevy of defects in the proceedings. We disagree. As an initial matter, these claims are waived because the defendant knew about these alleged defects at the time of his first motion for a new trial, yet did not raise them. See Rodwell v. Commonwealth, 432 Mass. 1016, 1018 (2000).
In any event, the claims are without merit. The defendant first complains that he was not present at critical stages of the litigation, such as the motion to suppress. “To the extent that the defendant's motion [for a new trial] was based on facts which were neither agreed upon nor apparent on the face of the [trial] record, he had the burden of proving such facts.” Commonwealth v. Bertrand, 385 Mass. 356, 364 (1982), quoting from Commonwealth v.. Bernier, 359 Mass. 13, 15 (1971). The only evidence to support his claim was an affidavit stating that he was not present. But the “judge [was] not required to accept the defendant's self-serving affidavit as sufficient to satisfy his burden.” Commonwealth v. Wheeler, 52 Mass.App.Ct. 631, 637 (2001). We cannot say that the judge abused his discretion.
Next, the defendant argues that his counsel was ineffective for failing to request a probable cause hearing in the District Court. The fact that a grand jury subsequently returned an indictment belies any claim that he was prejudiced by the lack of a probable cause hearing. See Commonwealth v. Lester L., 445 Mass. 250, 255–256 (2005) (“[T]he standard of probable cause to authorize a complaint is the same as the standard that governs the grand jury's decision to issue an indictment”).
Lastly, the defendant claims that his counsel was ineffective for failing to file discovery motions. Again, the record shows otherwise. His trial counsel filed a motion for disclosure of the surveillance location and also a motion for disclosure of the drug analyst's notes. Additionally, the defendant presents only his self-serving affidavit to support his claim, which the judge was not required to credit. See Wheeler, supra.
4. Denial of confrontation. Finally, the defendant claims that his right to confrontation was violated because drug analysis certificates were introduced at his trial without accompanying testimony from the analyst, in violation of Melendez–Diaz v. Massachusetts, 557 U.S. 305 (2009) ( Melendez–Diaz I ). Even so, the defendant cannot avail himself of Melendez–Diaz I. See Commonwealth v. Melendez–Diaz, 460 Mass. 238, 239–240 (2011) ( Melendez–Diaz II ). In Melendez–Diaz II, the Supreme Judicial Court concluded that Melendez–Diaz I was not retroactive, and thus not available to defendants whose convictions became final before Melendez–Diaz I issued. Ibid. Here, the defendant's conviction became final in 2000, more than nine years before the decision in Melendez–Diaz I.
Order denying second motion for new trial, as supplemented, affirmed.