COMMONWEALTH v. DONALD (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 1999, the defendant, Stanley Donald, was convicted of two counts of aggravated rape, assault and battery by means of a dangerous weapon, kidnapping, carjacking, and unarmed robbery. Those convictions were affirmed on direct appeal. See Commonwealth v. Donald, 56 Mass. App. Ct. 1102 (2002). Since then, the defendant has filed a number of unsuccessful postconviction motions, including requests for forensic testing under G. L. c. 278A, § 3.³ See Commonwealth v. Donald, 468 Mass. 37 (2014); Commonwealth. v. Donald, 92 Mass. App. Ct. 1107 (2017). Before us now is the appeal from an order denying a “renewed motion” that restated an earlier request for forensic testing of a bloodstain found in the garage where the defendant attacked his victim and for discovery of the Commonwealth's rape kit forms and certain photographs that were introduced as exhibits at the defendant's trial. The “renewed motion” was filed on September 17, 2018, and, at a hearing in Superior Court, was deemed moot. We affirm.

Discussion. A detailed description of the facts underlying the offenses can be found in Commonwealth v. Donald, 56 Mass. App. Ct. 1102 (2002). We consider de novo whether the defendant's motion and affidavits meet the requirements of G. L. c. 278A, § 3. See Commonwealth v. Wade, 467 Mass. 496, 506 (2014). In order to prevail on the motion the defendant must establish that a “reasonably effective attorney” would have sought additional DNA analysis at the time of trial. See G. L. c. 278A, § 3 (b) (5) (iv).

The denial of the defendant's motion was proper in all respects. It is clear here that the defendant makes the same arguments that he made in a previous motion from which he appealed and that were rejected by this court in 2017. See Commonwealth v. Donald, 92 Mass. App. Ct. 1107 (2017). “The ‘law of the case’ doctrine reflects this court's reluctance ‘to reconsider questions decided upon an earlier appeal in the same case.’ ” King v. Driscoll, 424 Mass. 1, 7-8 (1996), quoting Peterson v. Hopson, 306 Mass. 597, 599 (1940). “An issue[,] once decided, should not be reopened unless the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice” (quotation and citation omitted). Commonwealth v. Clayton, 63 Mass. App. Ct. 608, 611 (2005). Nonetheless, the defendant still seeks to conduct a forensic analysis of the bloodstain discovered on the garage floor because, he asserts, such testing might show that the blood did not belong to the victim or to the defendant, and only if it belonged to the victim would it corroborate the victim's account of events.⁴ This logic is misguided. Even if the bloodstain is tested, no matter the result, there is no potential that evidence material to the defense would be revealed.

We likewise discern no abuse of discretion in the denial of the defendant's motion for discovery of the rape kit forms or trial photographs. Postconviction discovery is governed by Mass. R. Crim. P. 30 (c) (4), as appearing in 435 Mass. 1501 (2001). That rule “allows a judge to authorize such discovery [w]here the affidavits filed by the moving party ․ establish a prima facie case for relief” (quotation and citation omitted). Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2008). Because the defendant does not have a motion for new trial pending, he cannot now obtain discovery under the rule. See id. at 1015-1016. Additionally, the forms the defendant hopes to discover were admitted as exhibits at trial, as were the photographs, and thus have been available to the defendant since his trial in 1999.

To the extent the defendant asserts new arguments in his brief, they are waived but have not been overlooked.⁵ See Commonwealth v. Randolph, 438 Mass. 290, 296 (2002). We have reviewed the claims under the substantial risk of a miscarriage of justice standard and discern none.

Order denying renewed motion for forensic and scientific testing affirmed.

FOOTNOTES

3.   These have included motions for a new trial, for postconviction discovery, for release from unlawful restraint, for DNA testing, and to revise and revoke his sentence.

4.   Quoting from the defendant's brief, “[t]he defendant asserts in an affidavit that he is innocent and he is not the person who assaulted the allege[d] victim with the cement floor and testing of the blood stains would prove no such crime occurred.”

5.   Among them, he alleges that he is the victim of judicial and racial bias, and he argues that an earlier motion for recusal of the judge was improperly denied.