Commonwealth v. David Magraw. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-943
COMMONWEALTH
vs.
DAVID MAGRAW.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from an order denying his second
motion for a new trial. This appeal follows a procedural
history spanning three decades. In 1994, a jury convicted the
defendant of murder in the first degree of his wife. The
Supreme Judicial Court reversed and ordered a new trial. See
Commonwealth v. Magraw, 426 Mass. 589 (1998) (Magraw I).
Another jury found the defendant guilty of murder in the second
degree, and the Appeals Court affirmed in an unpublished
memorandum and order. See Commonwealth v. Magraw, 58 Mass. App.
Ct. 1112 (2003) (Magraw II). The Supreme Judicial Court
thereafter denied further appellate review. See Commonwealth v.
Magraw, 440 Mass. 1107 (2003). In 2007, a Superior Court judge
denied the defendant's first motion for a new trial. The
Appeals Court affirmed the denial in an unpublished memorandum
and order. See Commonwealth v. Magraw, 73 Mass. App. Ct. 1102(2008) (Magraw III). The Supreme Judicial Court denied further
appellate review. See Commonwealth v. Magraw, 452 Mass. 1110(2008). The Federal courts have denied habeas corpus relief.
See Magraw v. Roden, 743 F.3d 1 (1st Cir.), cert. denied, 572
U.S. 1156 (2014). On September 6, 2022, a Superior Court judge
denied the defendant's second motion for a new trial.
Concluding that the defendant's arguments were either
(1) raised during his previous appeals or (2) could have been
raised during previous appeals, and absent a showing of a
substantial risk of a miscarriage of justice arising from the
claims of error, we discern no error or abuse of discretion in
the judge's denial of his second motion for a new trial. We
separately discern no abuse of discretion in the denial of these
claims without an evidentiary hearing. Accordingly, we affirm.
Discussion. 1. Direct estoppel. "We review a decision on
a motion for a new trial for an abuse of discretion, meaning we
consider whether the motion judge's decision resulted from 'a
clear error of judgment in weighing the factors relevant to the
decision such that the decision falls outside the range of
reasonable alternatives.'" Commonwealth v. Jacobs, 488 Mass.
597, 600 (2021), quoting L.L. v. Commonwealth, 470 Mass. 169,
185 n.27 (2014). "A judge's authority to grant a new trial
pursuant to Mass. R. Crim. P. 30 (b), [as appearing in 435 Mass.
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1501 (2001)], while broad, is limited by principles of direct
estoppel." Commonwealth v. Watkins (No. 1), 486 Mass. 801, 806
(2021), quoting Commonwealth v. Sanchez, 485 Mass. 491, 498
(2020). "In general, a defendant is directly estopped from
obtaining review of a claim where the Commonwealth demonstrates
that the issue was 'already litigated and determined . . ., that
such determination was essential to the . . . conviction, and
that the defendant had an opportunity to obtain review of the
determination.'" Commonwealth v. Arias, 488 Mass. 1004, 1006
(2021), quoting Watkins (No. 1), supra. See Commonwealth v.
Rodriguez, 443 Mass. 707, 710-711 (2005).
The defendant contends that Magraw I prohibited the
admission of certain evidence, and the Superior Court judge
erred by admitting the evidence. This contention fails because
the defendant already unsuccessfully raised this claim about the
evidence in Magraw II:
"Upon review of the entire record, including transcripts,
we conclude that the judge's evidentiary rulings pertaining
to the admissibility of the victim's oral and written
statements to others, introduced by the Commonwealth as
state of mind evidence, did not constitute an abuse of his
broad discretion. We add that the judge was attentive to
Magraw I's dictates in all respects, including that he be
mindful of limiting the amount of state of mind evidence."
Magraw II, 58 Mass. App. Ct. at 1112. Direct estoppel precludes
the defendant from litigating this claim again. See Watkins
(No. 1), 486 Mass. at 806. As an alternative argument, the
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defendant contends that the decision of this court in Magraw II
contradicted the prior decision of the Supreme Judicial Court in
Magraw I. The Supreme Judicial Court, however, denied further
appellate review of Magraw II. "Justice would not be well
served by permitting the relitigation of the same or similar
claims on multiple occasions simply by selecting different
procedural vehicles." Arias, 488 Mass. at 1006. We discern no
error in the denial of this claim.
The defendant next argues that the trial court erred by
allowing hearsay evidence regarding the victim's statements.
This argument has also been considered previously in Magraw III,
where a panel held that "the statements at issue were not
admitted for their truth, but rather as nonhearsay statements
reflecting the victim's state of mind." Magraw III, 73 Mass.
App. Ct. at 1102. See Commonwealth v. Caruso, 476 Mass. 275,
295 n.15 (2017). Direct estoppel prevents the defendant from
relitigating that claim of hearsay here. See Watkins (No. 1),
486 Mass. at 806. To the extent that the defendant raises
alternative arguments regarding hearsay in the present appeal,
we are confident that the issues were sufficiently examined in
Magraw III. The defendant may not merely rephrase his hearsay
arguments to elude direct estoppel. See Arias, 488 Mass. at
1006.
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The panel in Magraw II also previously considered the
defendant's argument that the prosecution unlawfully withheld
the deceased's larynx during the trial. The panel concluded,
inter alia, that "the absence of such evidence did not preclude
the defendant from presenting his theory of the case to the
jury," and "defense counsel was able to cross-examine the
Commonwealth's pathologist on his failure to conduct such
sampling." Magraw II, 58 Mass. App. Ct. at 1112. The defendant
is estopped from raising the claim here. See Watkins (No. 1),
486 Mass. at 806. See also Arias, 488 Mass. at 1006.
2. Additional arguments. The defendant's remaining
arguments pertaining to trial errors could have been raised in
prior appeals, but were not. "'[A] motion for a new trial may
not be used as a vehicle to compel a trial judge to review and
reconsider questions of law' on which a defendant has had his
day in an appellate court, or forgone that opportunity."
Fogarty v. Commonwealth, 406 Mass. 103, 107 (1989), quoting
Commonwealth v. McLaughlin, 364 Mass. 211, 229 (1973). The
defendant's remaining arguments are predicated on issues of fact
and law that were available to the defendant at the time of his
direct appeal. Having failed to raise them at that time, the
defendant may not make those arguments now. See Fogarty, supra.In any event, no showing of any substantial risk of a
miscarriage of justice has been made by the defendant. See
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Watkins (No. 1), 486 Mass. at 805 n.7. We discern no error by
the motion judge in denying these claims.
3. Absence of evidentiary hearing. Finally, we discern no
abuse of discretion from the absence of an evidentiary hearing
on the second motion for a new trial. "On a motion for a new
trial, the judge may rule on the motion 'on the basis of the
facts alleged in the affidavits without further hearing if no
substantial issue is raised by the motion or affidavits.'"
Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting
Mass. R. Crim. P. 30 (c) (3), 378 Mass. 900 (1979). In support
of his second motion for a new trial, the defendant filed his
own affidavit. The judge did not credit the defendant's
assertions in the affidavit and noted, inter alia, the absence
of any affidavit from his attorneys. Because the judge did not
credit these allegations and the defendant did not provide
additional support, the defendant failed to raise a substantial
issue that merited an evidentiary hearing. See Commonwealth v.
Cook, 438 Mass. 766, 774 (2003) (evidentiary hearing not
required where judge "discredited the defendant's contentions
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stated in his affidavits"). As such, we discern no abuse of
discretion by the motion judge. 1
Order entered September 6,
2022, denying second motion
for a new trial, affirmed.
By the Court (Green, C.J.,
Ditkoff & Hodgens, JJ. 2),
Clerk
Entered: September 25, 2023.
1 The new double jeopardy argument raised in the defendant's
reply brief is not properly before us. See Mass. R. A. P.
16 (c), as appearing in 481 Mass. 1628 (2019) ("No new issues
shall be raised in the reply brief").
2 The panelists are listed in order of seniority.
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