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Appeals Court of Massachusetts.



Decided: October 13, 2021

By the Court (Meade, Desmond & Ditkoff, JJ.1)


After a jury trial, the defendant was convicted of assault and battery by means of a dangerous weapon.2 After a jury-waived trial, the defendant was also found guilty of being an habitual offender. The defendant's conviction, and the denial of his first motion for new trial, were affirmed in Commonwealth v. Morello, 84 Mass. App. Ct. 1134 (2014). In 2018, the defendant filed a second motion for new trial, which was denied by the trial judge without a hearing, and the defendant appeals. We affirm.

At trial, the victim invoked his Fifth Amendment right against self-incrimination. The judge conducted a hearing in camera to inquire into the validity of the basis for the witness's Fifth Amendment privilege, pursuant to Commonwealth v. Martin, 423 Mass. 496, 504 (1996), and concluded that the witness had a valid basis for his assertion of the privilege. The victim was granted immunity and testified at trial, where the defendant was convicted.3

In his second motion for new trial, the defendant again claims that information from the Martin hearing should have been revealed to him or otherwise disclosed.4 In this posture, the defendant claims that a fraud was committed on the court. As the defendant was not given access to the Martin hearing transcript (or its contents) at trial, he claims he was denied a defense and due process of law, such that he did not receive a fair trial.

The overarching problem with the defendant's claims is that he has already litigated the Martin hearing issue. As another panel of this court stated in the first appeal,

“[N]either the transcript nor the content of the proffer it reveals would have furnished any assistance to the defendant, had it been available to him at trial. The proffer itself (as recorded in the transcript) was submitted in the form of representations by the witness's trial counsel. Accordingly, the proffer would have been inadmissible hearsay. Moreover, even if no Fifth Amendment privilege in its content survived the grant of immunity to the witness, it was independently protected by the attorney-client privilege.”

Commonwealth v. Morello, 84 Mass. App. Ct. 1134.5

Under the doctrine of direct estoppel, a defendant is barred from seeking review of claims “actually litigated” and decided against him. Commonwealth v. Rodriguez, 443 Mass. 707, 710 (2005); Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 699 (2015). Here, as noted above, the issues related to the Martin hearing, and the subsequent grant of immunity, were raised in the defendant's direct appeal, which was consolidated with his appeal from the denial of his first motion for new trial. Each of these issues were decided against the defendant in his previous appeal. Accordingly, direct estoppel operates as a bar to the defendant's attempt, in his second motion for a new trial, to relitigate these claims.6

Furthermore, a motion for a new trial may not be used as a vehicle to compel reconsideration of questions of law on which a defendant has already had his day in appellate court. See Commonwealth v. Balliro, 437 Mass. 163, 166 (2002). Where we have already considered and decided these issues previously, they warrant no further review. The second motion for new trial was properly denied.

Order denying second motion for new trial affirmed.


2.   The defendant was acquitted of the charge of armed assault with intent to murder.

3.   When the record was assembled for the appeal, the clerk inadvertently included the three-page transcript of the Martin hearing, which was sealed and impounded, and sent it to counsel for the parties.

4.   The defendant also claimed the courtroom was closed during trial, and he made a variety of ineffective assistance claims. These claims have not been pursued on appeal.

5.   The prior panel and this panel have reviewed the Martin hearing transcript, and we agree with the prior panel's assessment of the content of the proffer.

6.   Contrary to the defendant's claim, neither the circumstances presented in Commonwealth v. Rosario, 477 Mass. 69 (2017), nor in Commonwealth v. Brescia, 471 Mass. 381 (2015), nor anything akin to those cases are apparent here that would justify an exemption from the direct estoppel bar. Also, to the extent the defendant makes any new arguments related to the Martin hearing, those claims could have been raised before on direct appeal or in his first motion for new trial, and they are deemed waived. See Commonwealth v. Roberts, 472 Mass. 355, 358-359 (2015); Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501 (2001). Because, as we have previously held, the contents of the transcript would not have furnished any assistance to the defendant, there is no risk that justice miscarried. See Commonwealth v. Randolph, 438 Mass. 290, 293-294 (2002).

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