COMMONWEALTH v. VALLEJO (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant was convicted of armed home invasion, aggravated rape, four counts of armed robbery, four counts of assault and battery by means of a dangerous weapon, and four counts of kidnapping. The defendant filed a motion for a new trial, which was denied. We affirmed the judgments and the denial of the new trial motion in an unpublished memorandum and order pursuant to our rule 1:28. See Commonwealth v. Vallejo, 89 Mass. App. Ct. 1130 (2016). Thereafter, on July 21, 2017, the defendant filed a second motion for a new trial on various grounds including ineffective assistance of counsel. The motion was denied by a judge who was not the trial judge in a margin endorsement without a hearing. We discern no abuse of discretion or error of law in the denial of the second new trial motion or in the denial of the defendant's request for an evidentiary hearing. Accordingly, we affirm.

The facts of the case are described in detail in our rule 1:28 decision and need not be repeated here. Accordingly, we turn directly to the merits. The defendant asserts that he is entitled to a new trial because (1) he was excluded from a critical stage of the criminal proceedings when he was not present at a pretrial conference; (2) the jury instruction on reasonable doubt was erroneous; (3) multiple first complaint testimony was improperly admitted in evidence; (4) the evidence was insufficient; and (5) trial counsel was ineffective for failing to hire an expert in deoxyribonucleic acid (DNA) analysis and for not calling any witnesses. We begin by observing that all of these claims could have been raised in the defendant's direct appeal or in his first motion for a new trial. Accordingly, these claims are waived and we review them only to determine whether a substantial risk of a miscarriage of justice occurred. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002).

1. November 18, 2004, pretrial conference. There is no merit to the defendant's claim that the judge abused her discretion by denying his motion for a new trial on the ground that he was prevented from attending a pretrial conference on November 18, 2004. First, we agree with the Commonwealth that the record fails to demonstrate that the defendant was not present. The docket entry for the date in question states that the defendant was “brought into court.” See Commonwealth v. Rauseo, 50 Mass. App. Ct. 699, 702 (2001) (“docket entries are prima facie evidence of the facts recorded therein”). In addition, a pretrial conference, by its nature, is not a critical stage of the criminal proceedings because no evidence is taken. See Mass. R. Crim. P. 18 (a), 378 Mass. 887 (1979). Lastly, even if an error occurred, there is no basis to conclude that it created a substantial risk of miscarriage of justice.

2. Jury instruction on reasonable doubt. There was no error in the judge's instruction on reasonable doubt. The instruction was consistent with Commonwealth v. Webster, 5 Cush. 295, 320 (1850), and the minor variations noted by the defendant are inconsequential. Thus, this alleged error likewise provides no basis for allowing the motion for a new trial.

3. Multiple first complaint testimony. The defendant argues that the judge should not have permitted the nurse who examined the victim to testify about statements the victim made to her regarding the sexual assault. He argues that the testimony was hearsay and resulted in the piling on of first complaint testimony. However, as the judge explained to the jury, this testimony was admitted for the limited purpose of explaining the nature of the examination, which included obtaining biological specimens for forensic testing. There was no error.

4. Sufficiency of the evidence. We have conducted a thorough review of the record and are not persuaded that a motion for a required finding of not guilty should have been allowed. It suffices to note that we previously have described the evidence of the defendant's guilt as “overwhelming.” Vallejo, 89 Mass. App. Ct. 1130.

5. Ineffective assistance of counsel. The defendant contends that he was deprived of the effective assistance of counsel because trial counsel failed to hire an expert in DNA analysis. This claim is belied by the record, which demonstrates that trial counsel did in fact have an expert who was present in the court to assist trial counsel. That expert did not testify for good reason: as trial counsel explained to the judge, the defendant's expert had reached the same conclusion as the Commonwealth's expert, namely that the defendant's DNA profile was present in bodily fluid recovered from the victim's breast. Given these circumstances, there is no support for the defendant's ineffective assistance claim.

Order denying second motion for new trial affirmed.