Opinion
No. 15–P–1660.
12-02-2016
COMMONWEALTH v. Aurelio PINERO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Aurelio Pinero, appeals from the denial of his third motion under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), styled a "Motion To Vacate Conviction on Indictment No. HDCR1997–00938 and Impose Judgment from First Trial." Because the defendant has previously litigated the same claim, and because his current version of the claim is no more compelling than the prior versions that have been determined against him, we affirm the denial of the rule 30(b) motion.
Background. On April 30, 1997, a grand jury returned two separate indictments against the defendant, one charging assault with intent to rape (No. HDCR1997–00938), and the other charging assault and battery (No. HDCR1997–00939). A jury found the defendant guilty of assault and battery, but deadlocked on the charge of assault with intent to rape. The judge declared a mistrial on the charge of assault with intent to rape and, without objection, held a second trial limited to that charge. The second jury found the defendant guilty. The judge then sentenced the defendant to a State prison term of nine to twelve years with respect to the conviction of assault with intent to rape, and to a concurrent two-year house of correction sentence with respect to the assault and battery conviction.
"Ordinarily, assault and battery is not a lesser included offense of assault with intent to rape." Commonwealth v. Pinero, 49 Mass.App.Ct. 397, 398–399 (2000)(Pinero I). However, the judge erroneously instructed both juries that physical touching was an element of assault with intent to rape, "making assault and battery, for purposes of this case only, a lesser included offense of the charge of assault with intent to rape." Id. at 399. The defendant appealed, arguing that the second trial violated the prohibition against double jeopardy. This court rejected that argument. Ibid. However, we recognized that as the result of the judge's erroneous instructions, the convictions on the two charges were duplicative. Id. at 400. Accordingly, we vacated the defendant's conviction of assault and battery and the corresponding sentence. Ibid. The Supreme Judicial Court denied further appellate review, 432 Mass. 1105 (2000) ; the United States District Court for the District of Massachusetts denied the defendant's subsequent Federal habeas corpus petition, Pinero v. Verdini, 295 F.Supp.2d 184 (D.Mass.2003) ; the First Circuit affirmed the denial of the habeas petition, 123 F. App'x 410 (1st Cir.2005) ; and the Supreme Court of the United States denied certiorari, 546 U.S. 833 (2005).
We omit discussion of the defendant's numerous motions for collateral review and appeals therefrom since the disposition of his direct appeal.
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Discussion. The defendant maintained in his third rule 30(b) motion that his second trial violated longstanding double jeopardy principles, that trial counsel therefore was ineffective for failing to object to the empanelment of the second jury, and that appellate counsel were ineffective in Pinero I for failing adequately to argue these longstanding principles. The motion judge, who was also the trial judge, concluded that this issue was "similar if not identical" to issues raised in the defendant's previous motions for postconviction relief and did "not advance any materially different argument than he ha[d] in the past." We agree.
The defendant's current claim of ineffective assistance of counsel turns on the same double jeopardy claim we rejected in Pinero I. "The defendant raises no new factual or legal issue in [his] rule 30(b) motion." Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005). At best, he is attempting to relitigate a claim previously decided against him "based upon the same issue but newly attired in the garb of ineffective assistance of counsel." Commonwealth v. Silva, 25 Mass.App.Ct. 220, 228 (1987). Because the double jeopardy issue has already been decided against the defendant, the doctrine of direct estoppel prevents him from raising it again. See Commonwealth v. Williams, 431 Mass. 71, 74 (2000) ; Rodriguez, supra; Silva, supra. See also Commonwealth v. Balliro, 437 Mass. 163, 166 (2002) ("A motion for a new trial may not be used to compel the review of issues on which the defendant has already had appellate review or issues on which the defendant has forgone the opportunity"); Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501–1502 (2001).
Notwithstanding the motion judge's proper denial of the defendant's motion under estoppel principles, to ensure there is no risk of a miscarriage of justice, we consider (once again) the merits of the defendant's claim. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002) ("All claims, waived or not, must be considered"). We discern no error and, accordingly, no substantial risk of a miscarriage of justice or ineffective assistance of counsel. See id. at 293–296 ("equating the ineffective assistance of counsel standard to the substantial risk standard in cases where waiver stems from an omission by defense counsel").
The defendant argues that because the judge's instructions essentially made assault and battery a lesser-included offense of assault with intent to rape, once the jury found him guilty of assault and battery, that verdict amounted to an implied acquittal on the greater offense, barring retrial. See Green v. United States, 355 U.S. 184, 191–192 (1957) ; Price v. Georgia, 398 U.S. 323, 328–329 (1970) ; Commonwealth v. Burke, 342 Mass. 144 (1961). While this claim has some superficial appeal, the flaw in the defendant's argument is in his premise that the jury were deciding between a greater and a lesser-included offense. Green, Price, Burke, and most of the other authorities that the defendant relies upon involve a single charge of murder and its lesser-included offenses (such as second-degree murder, manslaughter, and negligent homicide). Here, at the defendant's first trial, the jury deliberated upon two separate indictments. They were not tasked with rendering a verdict on a lesser-included offense instead of a greater offense, or vice versa.
The U.S. Supreme Court's decisions in these cases rest on two premises: (1) that the first jury's verdict of guilty of the lesser-included charge is an "implicit acquittal" on the greater charge; and (2) "that petitioner's jeopardy on the greater charge had ended when the first jury ‘was given a full opportunity to return a verdict’ on that charge and instead reached a verdict on the lesser charge." Price, supra at 328–329, quoting from Green, supra at 191 (emphasis added). These premises do not apply to the unique circumstances of this case. Consequently, the Green–Price–Burke line of cases is not applicable and, as we held in Pinero I, 49 Mass.App.Ct. at 399, the defendant's jeopardy on the greater charge did not end when the jury deadlocked after the first trial.
Because the defendant does not have a viable double jeopardy claim, prior counsels' failed pursuit of that claim did not deprive him "of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). See Silva, 25 Mass.App.Ct. at 227–228. Accordingly, the defendant has failed to demonstrate error, a substantial risk of a miscarriage of justice, or that counsel was ineffective.
Order denying motion for new trial affirmed.