Opinion
No. 95-1726, 1727
Dated: July 16, 2001
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR A NEW TRIAL BACKGROUND
On May 23, 1996, the defendant, Charles Thompson, was convicted by a jury sitting in Hampden County of the murder in the first degree of his wife, Holly Thompson, in August 1995. The defendant appealed his conviction for murder in the first degree pursuant to G.L.c. 278, § 33E. Upon defendant's filing of a motion for a new trial, the appeal was stayed. That motion for a new trial was remanded to the Superior Court, Toomey, J., for disposition. A two day evidentiary hearing was held on April 6 and 29, 1998. On October 27, 1998, the defendant's motion for a new trial was denied.
Defendant appealed the denial of his motion for a new trial to the Supreme Judicial Court where it was consolidated with his pending appeal from his conviction. On April 23, 1999, the defendant filed a "Motion for Reconsideration of the Motion for New Trial" in which he raised a new issue, the alleged presence of different coins in the crime scene video. That motion was also remanded to the trial court, Toomey, J., who denied the motion on May 13, 1999. The defendant filed a notice of appeal from the denial of the motion to reconsider, and a supplementary brief with the Supreme Judicial Court.
The motion to reconsider was, in reality, a second motion for a new trial because it advanced a contention not addressed in the first motion for new trial.
Oral arguments were presented upon the entire case and, on May 27, 2000, the Supreme Judicial Court affirmed the judgement of conviction and the orders denying the two motions for new trial. See Commonwealth v.Thompson, 431 Mass. 108 (2000).
The defendant, on March 26, 2001, filed a third motion for a new trial pursuant to Mass.R.Crim.P 30. In his latest effort, defendant contends that his state and federal constitutional rights to due process were violated because of ineffective assistance of trial counsel. The defendant did not raise the ineffectiveness issue in his direct appeal or in either of his two previous Rule 30 motions, in each of which he had counsel other than the lawyer who represented him at trial. The defendant also asserts now that his appellate counsel's failure to raise the ineffective assistance of trial counsel on appeal was a discrete violation of his state and federal constitutional rights to due process.
DISCUSSION
Under art. 12 of the Declaration of Rights of the Massachusetts Constitution and the Sixth Amendment to the United States Constitution, a defendant possesses the right to be represented by effective counsel. See Commonwealth v. Fuller, 394 Mass. 251, 255-256 (1985). But claims of ineffective assistance of counsel are subject to waiver. Commonwealth v. Egardo, 426 Mass. 48, 50 (1997). Where a defendant was represented on direct appeal by different counsel than at trial, any claim for ineffective assistance of trial counsel must be raised in his direct appeal. Commonwealth v. LeFave, 430 Mass. 169, 171-174 (1999);Commonwealth v. Lanoue, 409 Mass. 1, 3 (1990). No such claim was raised at bar by "new" counsel in the direct appeal or the first two Rule 30 motions.
There is a presumption of regularity in convictions. See Commonwealth v. Lopez, 426 Mass. 657, 662 (1998). The waiver provisions of Rule 30 "were designed to achieve `finality of convictions,' and to eliminate `piecemeal litigation . . . whose only purpose is to vex, harass, or delay.' . . . The very purpose of the rule is to curtail successive and vexatious post-conviction proceedings initiated by dissatisfied defendants who have already obtained review of their convictions on direct appeal." Commonwealth v. Deeran, 397 Mass. 136, 142 (1986) (citations omitted). The Commonwealth has a valid interest in seeking a just end to the criminal process, id; and "once the regular procedures have run their course, the presumption tilts heavily towards finality."Commonwealth v. Amirault, 424 Mass. 618, 637 (1997). Where, as in the case at bar, a defendant has unsuccessfully pursued a direct appeal in which he did not raise a claim of ineffective assistance of trial counsel, that issue is ordinarily waived. Id.
Once a ground for relief is waived by omission, Rule 30 (c)(2) provides that a motion judge may only grant relief from such a waiver if the issue presents a substantial risk of a miscarriage of justice. See Curtis,supra at 626; Commonwealth v. Watson, 409 Mass. 110, 112 (1991);Commonwealth v. Harrington, 379 Mass. 446, 449 (1980). That limitation applies equally to constitutional(both structural and non-structural) and non-constitutional issues. Commonwealth v. Burnett, 428 Mass. 469, 475 (1998) (waiver rule applies to constitutional structural errors);Amirault 428 Mass. at 641 (waiver rule applies to constitutional claims). Discretion to "revive" an issue should not be exercised lightly in this type of a case, but only when, "upon sober reflection, it appears that a miscarriage of justice might otherwise result." Gagliardi, 418 Mass. at 565. Under such a standard, defendant "has the burden of demonstrating why `this is a truly extraordinary case where the consideration of the merits of [his motion for a new trial] is required.'" Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), quotingCommonwealth v. Watson, 409 Mass. 110, 114 (1991).
Having examined the instant defendant's third motion, supporting papers, affidavits and the memoranda of counsel, the Court concludes that defendant has not demonstrated that a miscarriage of justice is likely to have occurred and, accordingly, has not presented this Court with reason to absolve him from the consequences of his multiple earlier failures to have offered the present claim for relief. See Commonwealth v. Watkins, 433 Mass. 539 (2001).
Nor does the court consider a hearing upon this third Rule 30 motion to be required. The decision of whether to hold a hearing on a motion for a new trial rests solely with the motion judge. Commonwealth v. Stewart, 383 Mass. 253, 257 (1981). The judge may decide the motion on the affidavits and the papers if he or she determines that an evidentiary hearing is not useful, or where, as here, the issues are purely ones of law, rather than fact, and the issues do not, because of waiver, possess merit. Gagliardi, 418 Mass. at 572. A judge "may rule on the issue or issues presented by such a motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motions or affidavits." Mass.R.Crim.P. 30 (c) (3), 378 Mass. 900 (1979).
The Court has carefully examined the defendant's motion for new trial, affidavits and supporting memoranda. As the issue defendant raises — the effectiveness of counsel — is purely one of law and should have been raised on direct appeal, or in earlier Rule 30 combat, and as defendant's contentions in the particular circumstances of this case do not present a substantial risk of a miscarriage of justice, a hearing is not warranted. In these circumstances, the Court expressly declines to resurrect the waived issues. See generally, Commonwealth v.Hallet, 427 Mass. 522, 553-555 (1998); see also Commonwealth v. Vinnie, 428 Mass. 161, 163 nn. 1-3, cert. denied, 119 S.Ct. 523 (1998).
This Court respects the proposition that, "[t]here must be a reasonable moment for a judgment to become final and a time beyond which further challenges must be barred." Reddick v. Commonwealth, 381 Mass. 389, 403 (1980). On the other hand, justice ought not to be sacrificed to expediency. This Court resists the elevation of finality over fairness, but the offerings at bar do not suggest that denial of this motion, on grounds of waiver, is either a genuflection to denouement or a tolerance of injustice. In the circumstances before us, finality prevails.
ORDER
For the foregoing reasons, defendant's motion for a new trial is DENIED .
______________________________ Daniel F. Toomey Justice of the Superior Court
Dated: July, 2001