Opinion
18-P-1384
04-08-2020
COMMONWEALTH v. Troy E. NOCK.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Troy E. Nock, was convicted of breaking and entering in the nighttime; aggravated rape; assault and battery by means of a dangerous weapon; and threats to commit a crime; after a subsequent bench trial, the defendant also was convicted of being a habitual offender. He now appeals from the denial of his third motion for new trial. His principal claim is that he was denied procedural and substantive due process in connection with the taking of a blood sample, pursuant to a court order, on August 7, 2002, for the purpose of deoxyribonucleic acid (DNA) comparison. Specifically, he contends that he did not receive adequate notice or opportunity to consult with counsel before or during the hearing where the court entered that order. We affirm.
The defendant's appeal from the denial of his first motion for new trial was consolidated with his direct appeal, and both his convictions and the denial of the motion were affirmed by a panel of this court. See Commonwealth v. Nock, 74 Mass. App. Ct. 1126 (2009). On the relevant issues, we said,
The issues raised in the direct appeal are not relevant to the issue before us.
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"The defendant moved for a new trial on the ground that his due process rights had been violated because the Commonwealth had not produced exculpatory evidence, specifically audits and proficiency test results regarding the State DNA lab and/or its employees. Evidence is exculpatory if it tends to negate the guilt of the accused. Commonwealth v. Ellison, 376 Mass. 1, 22 n.9 (1978). Here, as the motion judge (who was also the trial judge) correctly concluded, there was nothing to indicate that the evidence would have helped this defendant. See Commonwealth v. Laguer, 448 Mass. 585, 595 (2007) (evidence that is not shown to have any bearing on the defendant's guilt or innocence is not exculpatory as to that particular defendant). The defendant was allowed funds to retain, and did retain, his own expert to examine the DNA evidence. He, however, presented no evidence on the topic at trial, which undermines his posttrial claim that the audit and proficiency materials might have been helpful to him. Moreover, he has presented nothing to suggest that any information in the audit reports or proficiency reports related to the testing or processing of his own DNA sample or the validity of the match made in his case. We conclude, therefore, that the judge did not abuse her discretion in denying the motion for new trial."
In 2015, the defendant filed, pro se, a second motion for a new trial. The essence of that motion was that he was denied due process of law during the investigation of the underlying crime when the motion requesting an order that he submit a DNA sample was allowed. He argued, inter alia, that he had inadequate notice of the proceedings, that counsel was appointed for him without any inquiry into whether he wished to retain counsel, and that counsel was ineffective for failing to consult with him prior to the proceeding at issue; further, he argued that appellate counsel was ineffective for failing to pursue on further appellate review issues relating to the taking of his DNA.
That motion was denied in the trial court, and this court affirmed. See Commonwealth v. Nock, 90 Mass. App. Ct. 1121 (2016). In so doing, we explained,
"To begin, we note that the issue of motion counsel's ineffectiveness was litigated and decided against the defendant in his first new trial motion. The motion judge, who was also the trial judge, stated that the argument had no merit, ‘because any effort by defense counsel to object to the order to take a blood sample, or to seek appellate review of that order, would have been futile. The Commonwealth's motion and supporting affidavit, reflecting the CODIS match, established probable cause to believe that a sample of the defendant's blood would provide evidence that would be probative and material to the case.’
"Likewise, we discern no viable claim of ineffective assistance based on appellate counsel's failure to press the issue of motion counsel's ineffectiveness. We agree with the motion judge that any such effort would have been futile. ‘[I]neffective assistance of counsel exists only where there is both a deficient performance by counsel and the likelihood of serious resulting prejudice to the defendant’ (emphases supplied). Commonwealth v. Nardone, 406 Mass. 123, 126 (1989). That is, even assuming that by failing to consult with the defendant regarding the blood sample hearing, motion counsel's representation demonstrated ‘serious incompetency, inefficiency, or inattention ... falling measurably below that which might be expected from an ordinary fallible lawyer,’ Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), the defendant has not and cannot show that ‘better work might have accomplished something material for the defense.’ Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977).
"A grand jury does not need probable cause to request a blood sample to confirm a deoxyribonucleic acid (DNA) identification. See In the Matter of a Grand Jury Investigation, 427 Mass. 221, 225 (1998) (‘Given that a grand jury must find probable cause to indict, it would be peculiar to require them to demonstrate the same degree of probable cause to believe that a target of their investigation committed a crime before the grand jury could properly obtain evidence in aid of their investigation’). Rather, ‘[a] grand jury must have a reasonable basis for believing (have probable cause for believing, if you wish) that a blood sample will provide test results that will significantly aid ... the grand jury in their investigation.’ Id. at 226. Here, where the investigation had revealed a ‘hit’ of the State DNA database, indicating a match of crime scene evidence with the defendant's DNA profile stored in the database, such a basis was established. Nothing that motion counsel could have done would have altered the inevitable result of the blood sample being ordered, and appellate counsel would have achieved nothing by pressing this meritless claim" (emphasis added).
At issue now is his third motion for new trial, which also was denied in the trial court by the trial judge. She determined that the defendant's argument "is in substance a third motion for new trial ... raising the same issue that both this [c]ourt and the Appeals Court have rejected in connection with the defendant's two previous motions for new trial .... [T]he defendant is not entitled to another opportunity to be heard on the same issue .... Accordingly, his motion will be denied."
The defendant's present appeal expresses considerable frustration with the process. In his view, "[t]he fact that the trial court ignores in this case is that the defendant was brought into court [when the blood sample was ordered] without arrest, charged [sic ], or indictment and without notice. This is a clear violation of art. 12 [of the Massachusetts Declaration of Rights] and the [F]ourteenth Amendment to the United States Constitution." He further argues: "Nock's contention to the courts is the constitutionality of the judicial proceeding in which the court had allowed the Commonwealth's motion to take his blood without affording him due process."
However, "[a] motion for new trial may not be used to compel the review of issues on which the defendant has already had appellate review or issues on which the defendant has forgone the opportunity. See Commonwealth v. Gagliardi, 418 Mass. 562, 565 (1994), cert. denied, 513 U.S. 1091 (1995), quoting Commonwealth v. Watson, 409 Mass. 110, 112 (1991). A judge does have the discretion to rehear such issues.... [However,] [w]e have recommended restricting the exercise of that power to the extraordinary situations when ‘upon sober reflection, it appears that a miscarriage of justice might otherwise result.’ Id. The waiver rule applies equally to constitutional claims that could have been, but were not raised. Id." Commonwealth v. Balliro, 437 Mass. 163, 166 (2002).
"A judge's decision to deny a motion for a new trial -- and thus to conclude justice was done at trial, Mass. R. Crim. P. 30 (b), [as appearing in 435 Mass. 1501 (2001)] -- will not be disturbed unless a review of the defendant's case shows that the decision, if not reversed will result in ‘manifest injustice’ " (citations and quotations omitted). Watson, 409 Mass. at 114.
We agree that this claim has been litigated both in the trial court and in this court and we have very little to add to what has been said. The motion judge's decision denying the defendant's motion here did not result in manifest injustice. The law is clear that, even if we accepted -- and we do not -- the defendant's claims that his rights were violated during the grand jury investigation and the proceeding when the court issued the order to take his blood sample, his claim would still fail because he has made no showing that earlier notice or different representation by counsel would have accomplished anything different or better for him. For the reasons we have explained, we cannot say that there has been "manifest injustice" in the order to take the defendant's blood sample, given that the crime scene evidence matched the DNA profile in the State DNA database.
Order denying third motion for new trial affirmed.