Opinion
No. 11–P–1195.
2012-06-26
COMMONWEALTH v. Isaias RODRIGUEZ.
By the Court (RUBIN, BROWN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is the defendant's fourth motion for a new trial. The defendant's convictions were affirmed in this court on direct appeal in a memorandum and order issued pursuant to rule 1:28. See Commonwealth v. Rodriguez, 61 Mass.App.Ct. 1113 (2004). In this appeal, the defendant raises four main issues: whether excessive and unfairly prejudicial first, or fresh, complaint evidence was admitted in evidence at his trial; whether the trial judge abused his discretion in denying the defendant's motion for an evidentiary hearing on the motion for a new trial; whether Hispanic individuals were underrepresented in the Hampden County grand and petit juries; and whether the defendant's rights under the Sixth Amendment to the U.S. Constitution were violated because he was prosecuted for forcible rape and indecent assault and battery on his adopted daughter, over a six-year period beginning when she was nine, while her boyfriend was not prosecuted for what the defendant alleges was consensual intercourse with the girl when she and the boyfriend were teenagers. We begin by noting, as we did when denying the defendant's third motion for a new trial, that “[r]ule 30(c)(2) of the Massachusetts Rules of Criminal Procedure, as appearing in 435 Mass. 1501 (2001), provides that all grounds for relief must be raised in the original or amended motion for a new trial. ‘Any grounds not so raised are waived unless the judge in the exercise of discretion permits them to be raised in a subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.’ ... This waiver provision is ‘intended to establish finality of convictions and to eliminate piecemeal litigation ... whose only purpose is to vex, harass, or delay.’ [2009 Reporter's Notes to Rule 30(c)(2) ], quoting from Sanders v. United States, 373 U.S. 1, 18 (1963), and citing Commonwealth v. Donahue, 6 Mass.App.Ct. 971 (1979).' “ Commonwealth v. Rodriguez, 78 Mass.App.Ct. 1108 (2010).
The Supreme Judicial Court denied his request for further appellate review. See Commonwealth v. Rodriguez, 442 Mass. 1110 (2004). The defendant's first motion for a new trial was denied by the trial judge, and that denial was affirmed in this court. See Commonwealth v. Rodriguez, 67 Mass.App.Ct. 1111 (2006). Further appellate review was denied. See Commonwealth v. Rodriguez, 448 Mass. 1104 (2007). In 2008, the defendant filed his second motion for a new trial, which was also denied by the same Superior Court judge. This court dismissed the appeal under Standing Order 17A due to the defendant's failure to prosecute the appeal. The defendant's third motion for a new trial was also denied by the trial judge; that order was also affirmed in this court. See Commonwealth v. Rodriguez, 78 Mass.App.Ct. 1108 (2010).
The question that remains for us is whether there was a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002). After a careful review of the defendant's claims and the Commonwealth's response, we are persuaded that there was not.
First, it is clear that the first complaint doctrine enunciated by the Supreme Judicial Court in Commonwealth v. King, 445 Mass. 217 (2005), was to be applied “prospectively to only those sexual assault cases tried after the issuance of the rescript in [that] opinion.” Id. at 248. The defendant's case was tried in 2002. To the extent that the defendant alleges that the fresh complaint rule then in place was violated, that argument was addressed under the heading “improper vouching” in his direct appeal and again in his third motion for a new trial. See Commonwealth v. Rodriguez, 61 Mass.App.Ct. at 1113, and Commonwealth v. Rodriguez, 78 Mass.App.Ct. at 1108.
Second, the defendant's argument that Hispanics were underrepresented in the grand jury and the petit jury sitting in Hampden County at the time of his trial is unsupported by a single fact or record reference. “Because the defendant has not shown that minorities were excluded, intentionally or systemically, from sitting on the jury which heard his case, his claim of a violation of his right to equal protection fails.” Commonwealth v. Faust, 423 Mass. 298, 303 (1996).
Third, the defendant's argument that he was denied a fair trial because his adopted daughter's teenage boyfriend, a fresh complaint witness, was not prosecuted for what may have been a consensual sexual relationship before the girl was sixteen, fails, for at least the reason that it is unsupported by any citation to the record or to relevant authority. “To bring a claim of selective prosecution successfully, the defendant bears the initial burden to ‘present evidence which raises at least a reasonable inference of impermissible discrimination,’ including evidence that ‘a broader class of persons than those prosecuted violated the law, ... that failure to prosecute was either consistent or deliberate, ... and that the decision not to prosecute was based on an impermissible classification such as race, religion, or sex.’ “ Commonwealth v. Bernardo B., 453 Mass. 158, 168 (2009). Here, the defendant's bare claim that the prosecutor's choice was made because the boyfriend was “white” and the defendant was Mexican–American is insufficient to meet his burden.
Finally, we see no abuse of discretion in the denial of the defendant's motion without an evidentiary hearing. His long list of grievances, recited as they are without citation to the trial record or even to affidavits accompanying his motion, does not rise to the level of appellate argument. See Commonwealth v. Gentle, 80 Mass.App.Ct. 243, 252 (2011), quoting from Commonwealth v. Gray, 423 Mass. 293, 296–297 (1996). (“[C]laims of error ‘not supported by reasoned argument or citations ... do not rise to the level of appellate advocacy required under Mass.R.A.P 16[a][4], as amended, 367 Mass. 921 [1975]’ ”).
Order denying motion for new trial affirmed.