Full-text Opinions
Massachusetts Superior Court
COMMONWEALTH
v.
THOMPSON
COMMONWEALTH OF MASSACHUSETTS
WORCESTER, ss. SUPERIOR COURT
CRIMINAL ACTION
No. 95-1726, 1727
COMMONWEALTH
v.
CHARLES THOMPSON
MEMORANDUM OF DECISION AND
ORDER
ON DEFENDANT’S MOTION
FOR A NEW TRIAL
BACKGROUND
On May 23, 1996, the defendant, Charles
Thompson, was convicted by a jury sitting in Hampden County of
the murder in the first degree of his wife, Holly Thompson, in
August 1995. The defendant appealed his conviction for murder in
the first degree pursuant to G.L. c. 278 §33E. Upon
defendant’s filing of a motion for a new trial, the appeal
was stayed. That motion for a new trial was remanded to the
Superior Court, Toomey, J., for disposition. A two day
evidentiary hearing was held on April 6 and 29, 1998. On October
27, 1998, the defendant’s motion for a new trial was denied.
Defendant appealed the denial of his motion for
a new trial to the Supreme Judicial Court where it was
consolidated with his pending appeal from his conviction. On
April 23, 1999, the defendant filed a "Motion for
Reconsideration of the Motion for New Trial" in which he
raised a new issue, the alleged presence of different coins in
the crime scene video.[1] That motion was also remanded to the trial court,
Toomey, J., who denied the motion on May 13, 1999. The defendant
filed a notice of appeal from the denial of the motion to
reconsider, and a supplementary brief with the Supreme Judicial
Court.
Oral arguments were presented upon the entire
case and, on May 27, 2000, the Supreme Judicial Court affirmed
the judgement of conviction and the orders denying the two
motions for new trial. See Commonwealth v. Thompson,
431 Mass. 108 (2000).
The defendant, on March 26, 2001, filed a third
motion for a new trial pursuant to Mass.R.Crim.P 30. In his
latest effort, defendant contends that his state and federal
constitutional rights to due process were violated because of
ineffective assistance of trial counsel. The defendant did
not raise the ineffectiveness issue in his direct appeal or in
either of his two previous Rule 30 motions, in each of which he
had counsel other than the lawyer who represented him at trial.
The defendant also asserts now that his appellate counsel’s
failure to raise the ineffective assistance of trial counsel on
appeal was a discrete violation of his state and federal
constitutional rights to due process.
DISCUSSION
Under art. 12 of the Declaration of Rights of
the Massachusetts Constitution and the Sixth Amendment to the
United States Constitution, a defendant possesses the right to be
represented by effective counsel. See Commonwealth v. Fuller,
394 Mass. 251, 255-256 (1985). But claims of ineffective
assistance of counsel are subject to waiver. Commonwealth
v. Egardo, 426 Mass. 48, 50 (1997). Where a defendant was
represented on direct appeal by different counsel than at trial,
any claim for ineffective assistance of trial counsel must be
raised in his direct appeal. Commonwealth v. LeFave,
430 Mass. 169, 171-174 (1999); Commonwealth v. Lanoue,
409 Mass. 1, 3 (1990). No such claim was raised at bar by
"new" counsel in the direct appeal or the first two
Rule 30 motions.
There is a presumption of regularity in
convictions. See Commonwealth v. Lopez, 426 Mass.
657, 662 (1998). The waiver provisions of Rule 30 "were
designed to achieve ‘finality of convictions,’ and to
eliminate ‘piecemeal litigation…whose only purpose is to
vex, harass, or delay.’ …The very purpose of the rule is
to curtail successive and vexatious post-conviction proceedings
initiated by dissatisfied defendants who have already obtained
review of their convictions on direct appeal." Commonwealth
v. Deeran, 397 Mass. 136, 142 (1986) (citations omitted).
The Commonwealth has a valid interest in seeking a just end to
the criminal process, id; and "once the regular
procedures have run their course, the presumption tilts heavily
towards finality." Commonwealth v. Amirault,
424 Mass. 618, 637 (1997). Where, as in the case at bar, a
defendant has unsuccessfully pursued a direct appeal in which he
did not raise a claim of ineffective assistance of trial counsel,
that issue is ordinarily waived. Id.
Once a ground for relief is waived by omission,
Rule 30 (c)(2) provides that a motion judge may only grant relief
from such a waiver if the issue presents a substantial risk of a
miscarriage of justice. See Curtis, supra at 626; Commonwealth
v. Watson, 409 Mass. 110, 112 (1991); Commonwealth
v. Harrington, 379 Mass. 446, 449 (1980). That limitation
applies equally to constitutional(both structural and
non-structural) and non-constitutional issues. Commonwealth
v. Burnett, 428 Mass. 469, 475 (1998) (waiver rule applies
to constitutional structural errors); Amirault 428 Mass.
at 641 (waiver rule applies to constitutional claims). Discretion
to "revive" an issue should not be exercised lightly in
this type of a case, but only when, "upon sober reflection,
it appears that a miscarriage of justice might otherwise
result." Gagliardi, 418 Mass. at 565. Under such a
standard, defendant "has the burden of demonstrating why
‘this is a truly extraordinary case where the consideration
of the merits of [his motion for a new trial] is
required.’" Commonwealth v. Gagliardi,
418 Mass. 562, 565 (1994), quoting Commonwealth v. Watson,
409 Mass. 110, 114 (1991).
Having examined the instant defendant’s
third motion, supporting papers, affidavits and the memoranda of
counsel, the Court concludes that defendant has not demonstrated
that a miscarriage of justice is likely to have occurred and,
accordingly, has not presented this Court with reason to absolve
him from the consequences of his multiple earlier failures to
have offered the present claim for relief. See Commonwealth
v. Watkins, 433 Mass. 539 (2001).
Nor does the court consider a hearing
upon this third Rule 30 motion to be required. The decision of
whether to hold a hearing on a motion for a new trial rests
solely with the motion judge. Commonwealth v. Stewart,
383 Mass. 253, 257 (1981). The judge may decide the motion on the
affidavits and the papers if he or she determines that an
evidentiary hearing is not useful, or where, as here, the issues
are purely ones of law, rather than fact, and the issues do not,
because of waiver, possess merit. Gagliardi, 418 Mass. at
572. A judge "may rule on the issue or issues presented by
such a motion on the basis of the facts alleged in the affidavits
without further hearing if no substantial issue is raised by the
motions or affidavits." Mass. R. Crim. P. 30 (c) (3), 378
Mass. 900 (1979).
The Court has carefully examined the
defendant’s motion for new trial, affidavits and supporting
memoranda. As the issue defendant raises – the effectiveness
of counsel – is purely one of law and should have been
raised on direct appeal, or in earlier Rule 30 combat, and as
defendant’s contentions in the particular circumstances of
this case do not present a substantial risk of a miscarriage of
justice, a hearing is not warranted. In these circumstances, the
Court expressly declines to resurrect the waived issues. See
generally, Commonwealth v. Hallet, 427 Mass. 522,
553-555 (1998); see also Commonwealth v. Vinnie,
428 Mass. 161, 163 & nn. 1-3, cert. denied, 119
S.Ct. 523 (1998).
This Court respects the proposition that,
"[t]here must be a reasonable moment for a judgment to
become final and a time beyond which further challenges must be
barred." Reddick v. Commonwealth, 381 Mass.
389, 403 (1980). On the other hand, justice ought not to be
sacrificed to expediency. This Court resists the elevation of
finality over fairness, but the offerings at bar do not suggest
that denial of this motion, on grounds of waiver, is either a
genuflection to denouement or a tolerance of injustice. In the
circumstances before us, finality prevails.
ORDER
For the foregoing reasons, defendant’s
motion for a new trial is DENIED.
Daniel F. Toomey
Justice of the Superior Court
Dated: July , 2001
FOOTNOTE:
[1] The motion to reconsider was, in
reality, a second motion for a new trial because it advanced a
contention not addressed in the first motion for new trial.
