Opinion
10-P-639
10-12-2011
COMMONWEALTH v. SOLOMON A. YARTEH.
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
We discern no abuse of discretion in the denial by the motion judge of the defendant's second postconviction motion for new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001).
As a threshold matter, we observe that the defendant has not furnished us with a copy of the motion to suppress, or the memorandum of law (and other materials, if any) submitted in support thereof. Accordingly, the defendant has failed to furnish us with a record adequate to support his claim that his counsel was ineffective for failure to assert specific arguments. See Commonwealth v. Woody, 429 Mass. 95, 97 (1999); Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 349 (2005). Moreover, as the Commonwealth observes, the transcript of the motion hearing suggests that the defendant's counsel made essentially the argument that the defendant now faults him for neglecting.
There is likewise no merit to the defendant's contention that his counsel should have sought suppression on grounds that his consent was involuntary. Again, we are without benefit of the motion and memorandum in support thereof, so the defendant has not provided us with a record to establish the accuracy of his contention that his counsel did not assert the claim in support of the motion. Even if we assume that he did not, so much of the record as we have illustrates that the contention would have been unavailing. The defendant sought unsuccessfully to invalidate his Miranda waiver on voluntariness grounds, due to his intoxication. As the Commonwealth observes, the standard for determining voluntariness for purposes of Miranda is more stringent than for purposes of consent to search. Compare Commonwealth v. Edwards, 420 Mass. 666, 669, 670 (1995) (Miranda) with Commonwealth v. Rogers, 444 Mass. 234, 237, 238 (2005) (search). As the Commonwealth also observes, the defendant's Miranda waiver preceded his grant of consent to search by approximately an hour; the level of his intoxication accordingly would have been less at the time he consented to search than when he waived his Miranda rights, yet the motion judge rejected his challenge to the voluntariness of his Miranda waiver based on intoxication.
Finally, the defendant's claim based on 'newly discovered evidence' fails for substantially the reasons set forth in the Commonwealth's brief at pages 20- 24. The evidence cited by the defendant is not 'newly discovered,' as it was available at the time of the defendant's motion to suppress, and in any event it would have exerted little influence on the motion judge had it been presented in support of the motion.
The order denying the defendant's motion for new trial is affirmed.
So ordered.
By the Court (Kafker, Green & Grainger, JJ.),