COMMONWEALTH v. MCCANTS (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant was convicted of kidnapping, G. L. c. 265, § 26; rape of a child by force, G. L. c. 265, § 22A; drugging a person for sexual intercourse, G. L. c. 272, § 3; assault of a child with intent to rape, G. L. c. 265, § 24B; and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A.² The convictions were based on evidence that the defendant abducted the eleven year old girl victim from her great grandmother's home, placed duct tape over the victim's eyes and mouth, forced her to ingest controlled substances, drove her to a remote location, and sexually assaulted her. The convictions were affirmed on direct appeal, Commonwealth v. McCants, 65 Mass. App. Ct. 1121 (2006), and further appellate review was denied.Commonwealth v. McCants, 447 Mass. 1102 (2006).

In his first motion for a new trial the defendant claimed, among other arguments, that newly discovered evidence in the form of an affidavit from his sister cast doubt on his convictions. A judge other than the trial judge (the first motion judge) denied the motion in a comprehensive memorandum of decision, reasoning that the affidavit was not newly discovered evidence and that the defendant's other claims were waived because he had failed to raise them in his direct appeal. The order denying the defendant's first motion for a new trial was affirmed on appeal. Commonwealth v. McCants, 83 Mass. App. Ct. 1129 (2013).

The defendant raised multiple claims in a second motion for a new trial. A second motion judge denied the motion, reasoning that the claims were barred by the doctrines of direct estoppel and waiver. On appeal from that order, the defendant claims that the victim's identification of the defendant should not have been admitted at trial, his bedroom was illegally searched, the defendant's letter to the victim's great grandmother should not have been admitted at trial, and that evidence of the victim's deoxyribonucleic acid (DNA) did not support his convictions.³ We affirm.

We review a judge's ruling on a motion for a new trial “only to determine whether there has been a significant error of law or other abuse of discretion” (citation omitted). Commonwealth v. Brescia, 471 Mass. 381, 387 (2015). “The decision to deny a motion for a new trial ․ will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802 (2000).

Under the principles of direct estoppel, arguments that were previously resolved on direct appeal cannot be relitigated in a motion for new trial. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). The defendant's claims regarding his identification by the victim, the evidence seized from the defendant's bedroom, and the admission of the handwritten letter were raised and rejected in the defendant's direct appeal. McCants, 65 Mass. App. Ct. 1121. These arguments are therefore barred, and we need not address them. See 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”).

The defendant's argument regarding the DNA evidence presented at trial could have been raised on direct appeal and was not. Therefore, the argument is waived. See Commonwealth v. Chase, 433 Mass. 293, 297 (2001). We review waived claims for whether any error created a substantial risk of a miscarriage of justice. Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). Where, as a different panel of this court has previously stated, the evidence of the defendant's guilt was overwhelming, we cannot reasonably say that the admission of evidence regarding the victim's DNA, even if error, created a substantial risk of a miscarriage of justice. For these reasons, we see no error or abuse of discretion in the denial of the defendant's second motion for a new trial.

Order entered August 16, 2018, denying second motion for new trial affirmed.

FOOTNOTES

2.   Following a jury-waived trial, the defendant was also convicted of being a habitual offender.

3.   The defendant raised other issues in his second motion for a new trial, but we address only those argued in his appellate brief.