COMMONWEALTH v. DAVID MAGRAW (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant was convicted in 1999 of murder in the second degree for the killing of his wife. In this appeal, we review the denial of his sixth motion for a new trial.

The defendant's primary claim has to do with the alleged withholding of a police report of an interview of a witness, the victim's neighbor, Attilio DiMascio, on July 24, 1990. Although we need not repeat the facts or trial testimony, which are familiar to the parties, the defendant asserts that in this interview, the neighbor said that he saw the victim alive sometime between 9:00 A.M. and 11:00 A.M. on the day of her death. The Commonwealth argues that the defendant is collaterally estopped from relitigating this claim, having raised it previously. Although we are able only to glean this inferentially from the briefing, it appears that the Commonwealth's position is also that such a document does not exist.

The focus of the defendant's appeal is that the law has never been applied to the facts of this claim. But the Commonwealth is correct that there is estoppel here because this very claim was raised in the defendant's previous, fifth motion for a new trial, and it was denied on its merits, that is, by application of the law to the facts. The defendant did not appeal. The defendant therefore is collaterally estopped from raising this in a subsequent motion for a new trial. See Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806 (2021); Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).¹

The defendant argues that because he claims actual innocence he is not estopped from raising this argument. This is a misunderstanding. The case he cites, Herrera v. Collins, 506 U.S. 390, 405 (1993), involves Federal postconviction remedies. Although under Federal law such Federal claims could be waived altogether if they were not brought in a first Federal habeas corpus petition, Herrera discusses whether there is an exception where there is a claim of actual innocence, and whether executing an innocent person who has nonetheless been convicted would violate the Federal Constitution.

Here, the defendant seeks a new trial because, he argues, withheld evidence prevented him from showing he could not have committed the crime. In Massachusetts, waived postconviction claims, like this one about withheld evidence, can always be heard on their merits, whether or not they involve claims of actual innocence, but they will succeed only of the defendant can show that an error created a substantial risk of a miscarriage of justice (which is something proof of actual innocence would create). See Commonwealth v. Desiderio, 491 Mass. 809, 810 (2023). The defendant in this case is estopped not because this claim was waived, but because it was already heard and decided on the merits in his prior, fifth motion for a new trial. If the issue has already been decided, it need not be decided again.

Discovery of new evidence might allow even an estopped claim to be heard, but, although the defendant uses the words “newly discovered evidence,” he puts forward only new arguments and a reference to a recently decided case about eyewitness identification that is irrelevant to the neighbor's recollection of the time at which he saw the victim alive on the day of her death. See Commonwealth v. Gaines, 494 Mass. 525, 533-534 (2024). That case deals with evolution in the science of the accuracy of an identification of someone as a specific person; there is no dispute here that the person the neighbor saw was the victim.² See id.

Beyond that, the defendant also argues that testimony of three witnesses before the grand jury provided definitive evidence of his alibi that, he asserts, rendered it impossible that he committed the murder. Again, we need not address this issue, as it was raised and decided by the trial court in his fifth motion for a new trial.

Finally, the defendant argues that the alibi instruction at his retrial in 1999 improperly shifted the burden of proof. No objection was raised to the instruction at trial, nor was it challenged on appeal, or in any of the defendant's previous five motions for a new trial. It is therefore waived, but the defendant is not estopped from raising it. We may therefore order the allowance of the motion for a new trial on the basis of this claim, but only if we find both error and that the error created a substantial risk of a miscarriage of justice. See Desiderio, 491 Mass. at 810.

We see no error. The jury instruction included that the failure of the Commonwealth to prove beyond a reasonable doubt that the victim did not die of natural causes required the jury to return a not guilty verdict, while specifically stating that “[T]he burden of proof rests entirely with the Commonwealth and does not shift to the Defendant as a result of an alibi or alibi witness offered by the defendant.” Read as a whole, the instruction did not shift the burden of proof.

The order denying the motion for a new trial is affirmed.

Order denying motion for a new trial affirmed.

FOOTNOTES

1.   If the defendant means that no court has ever evaluated on the merits (i.e., applied the facts to the law to) his claim that he has an “iron-clad” alibi, that of course is incorrect. The jury concluded his alibi was not ironclad, as did the trial court, by denying his motion for a required finding of not guilty, and this court, by concluding in his direct appeal that the evidence was sufficient to support his conviction. See Commonwealth v. Magraw, 58 Mass. App. Ct. 1112 (2003). Even had the testimony of the neighbor been that he saw the victim alive while driving by her once sometime between 9:00 A.M. and 11:00 A.M. on the date of her death, rather than the 9:30 A.M. to 10:00 A.M. period to which he did testify, the alibi would not be ironclad. There was evidence the defendant told police he had been with the victim until 10:15 A.M. If the sighting of the victim by the neighbor occurred at 9:00 A.M., for example, it would not eliminate the possibility of the defendant's guilt, even if a fact finder believed he left at 10:15 A.M. and believed, as the testimony might have allowed, that he was in a tenant's apartment from 10:15 A.M. to 11:00 A.M.

2.   Were we to reach the merits, which we do not, we cannot see from the defendant's brief how the withholding of this report, if it exists, could have led to a substantial risk of a miscarriage of justice. The defendant says that the report would include the neighbor's statement that the neighbor saw the victim alive sometime between 9:00 A.M. and 11:00 A.M. on the day of her death. Even assuming this would have been admissible for its truth and not merely to impeach the neighbor's testimony about the time period, although we may be mistaken -- the briefing doesn't provide clarity on this issue -- it appears that the defense already had in its possession at the time of trial a materially similar statement from the defendant contained in a 1994 report.