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-230
COMMONWEALTH
vs.
VALENTINE UNDERWOOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion for a
new trial. In May 2014, following a jury trial in the Superior
Court at which the defendant represented himself with the
assistance of standby counsel, the defendant was convicted of
kidnapping and aggravated rape. He appealed, and his
convictions were affirmed by a different panel of this court in
an unpublished memorandum and order. See Commonwealth v.
Underwood, 97 Mass. App. Ct. 1107 (2020). Thereafter, the
defendant filed a motion for a new trial, which is the subject
of this appeal. By that time, however, the trial judge had
retired, and the motion was denied without a hearing by another Superior Court judge. For the reasons that follow, we affirm
the order denying the defendant's motion.
Discussion. 1. Jurisdiction. We first address the
Commonwealth's argument that we lack jurisdiction over this
appeal because the defendant failed to file a timely notice of
appeal. The Commonwealth is correct that the notice of appeal
was filed late. However, as the defendant notes in his reply
brief, our docket shows that a single justice of this court
extended the time for filing a notice of appeal. We discern no
basis for concluding that the extension was improper and,
therefore, we too deem the notice of appeal as timely filed.
See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626
(2019).
2. Standard of review. "Under Mass. R. Crim. P. 30 (b), a
judge may grant a motion for a new trial any time it appears
that justice may not have been done. A motion for a new trial
is thus committed to the sound discretion of the judge."
Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
Here, in denying the defendant's motion, the judge reasoned
that "[a]ll of the issues which [the defendant] purports to
raise in this motion are based upon the Pretrial and trial
record and either were or could have been raised on direct
appeal." We agree with the judge that the issues that were
raised and resolved in the defendant's direct appeal are barred
2 by the doctrine of direct estoppel. However, with regard to the
defendant's remaining arguments, though waived, we review them
to determine whether an error was committed and if so, we ask
whether the error created a substantial risk of a miscarriage of
justice. See Commonwealth v. Randolph, 438 Mass. 290, 293
(2002) (all claims, waived or not, must be considered). Lastly,
we note that where, as here, the motion judge only considered
documentary evidence and did not hold an evidentiary hearing, we
may draw our own conclusions from the record. See Commonwealth
v. Howard, 81 Mass. App. Ct. 757, 760 (2012).
3. Direct estoppel. As noted above, some of the arguments
the defendant has raised in support of his motion for a new
trial were litigated and resolved in this court by the
defendant's direct appeal. Accordingly, the doctrine of direct
estoppel operates as a procedural bar to relitigating them. See
Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005). We
therefore do not address the defendant's arguments that (1) his
motion to dismiss should have been allowed, (2) he was denied
his right to an impartial jury when the judge refused to excuse
juror No. 75 for cause, (3) the judge erred by admitting in
evidence certain photographs and related testimony regarding the
defendant's appearance, and (4) the admission of evidence of
prior uncharged criminal conduct was unfairly prejudicial.
3 4. Remaining claims. We now turn to the defendant's
remaining arguments. First, the defendant argues that he was
denied access to legal materials and the law library by various
Department of Correction (DOC) officials. The defendant made a
similar claim in a federal law suit he brought against DOC
officials. The defendant submitted pleadings and documents he
obtained during the litigation of the federal lawsuit to support
his claim in Superior Court. On review of those materials, we
discern no merit to this argument.
We acknowledge that "[t]he constitutional right of access
to the courts requires correctional officials 'to assist inmates
in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.'" Cacicio v.
Secretary of Pub. Safety, 422 Mass. 764, 773 (1996), quoting
Harris v. Commissioner of Correction, 409 Mass. 472, 479 (1991).
At the same time, "[a]ny plan to give inmates access to the
courts need only provide access that is adequate, effective, and
meaningful when viewed as a whole." Cacicio, supra.
Furthermore, as the Supreme Judicial Court stated in Harris,
supra, "adequate legal assistance is an alternative means of
fulfilling the obligation to provide prisoners with access to
the courts." Here, there is no dispute that the defendant was
provided with standby counsel, and little dispute that he had
4 the same access to the law library and legal materials provided
to any inmate in his position. As the Commonwealth notes in its
brief, according to the affidavit of Carol Lawton, deputy
superintendent of programs at the Massachusetts Correctional
Institution, Cedar Junction, the defendant was permitted to
retain one cubic foot of legal documents, access the law library
twice weekly, request books not in the prison collection, and
use a laptop with flash-drive capabilities so that materials
could be shared by and with standby counsel. Viewing these
circumstances together, we conclude that the defendant had
access to adequate legal assistance. To the extent the
defendant's affidavit submitted in support of his new trial
motion asserts otherwise, those assertions need not be credited.
See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) ("Although
the judge did not make subsidiary findings explicitly refusing
to credit the [defendant's] affidavit, we may reasonably assume
from his denial of the defendant's motion that he did so").
Next, the defendant claims that on the fourth day of trial,
he was denied his anti-inflammatory medication and, as a result,
he experienced "withdrawals" and sleeplessness, which, in turn,
hindered his ability to defend himself and violated his right to
due process. Although the defendant reported to the judge that
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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-230
COMMONWEALTH
vs.
VALENTINE UNDERWOOD.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from the denial of his motion for a
new trial. In May 2014, following a jury trial in the Superior
Court at which the defendant represented himself with the
assistance of standby counsel, the defendant was convicted of
kidnapping and aggravated rape. He appealed, and his
convictions were affirmed by a different panel of this court in
an unpublished memorandum and order. See Commonwealth v.
Underwood, 97 Mass. App. Ct. 1107 (2020). Thereafter, the
defendant filed a motion for a new trial, which is the subject
of this appeal. By that time, however, the trial judge had
retired, and the motion was denied without a hearing by another Superior Court judge. For the reasons that follow, we affirm
the order denying the defendant's motion.
Discussion. 1. Jurisdiction. We first address the
Commonwealth's argument that we lack jurisdiction over this
appeal because the defendant failed to file a timely notice of
appeal. The Commonwealth is correct that the notice of appeal
was filed late. However, as the defendant notes in his reply
brief, our docket shows that a single justice of this court
extended the time for filing a notice of appeal. We discern no
basis for concluding that the extension was improper and,
therefore, we too deem the notice of appeal as timely filed.
See Mass. R. A. P. 14 (b), as appearing in 481 Mass. 1626
(2019).
2. Standard of review. "Under Mass. R. Crim. P. 30 (b), a
judge may grant a motion for a new trial any time it appears
that justice may not have been done. A motion for a new trial
is thus committed to the sound discretion of the judge."
Commonwealth v. Scott, 467 Mass. 336, 344 (2014).
Here, in denying the defendant's motion, the judge reasoned
that "[a]ll of the issues which [the defendant] purports to
raise in this motion are based upon the Pretrial and trial
record and either were or could have been raised on direct
appeal." We agree with the judge that the issues that were
raised and resolved in the defendant's direct appeal are barred
2 by the doctrine of direct estoppel. However, with regard to the
defendant's remaining arguments, though waived, we review them
to determine whether an error was committed and if so, we ask
whether the error created a substantial risk of a miscarriage of
justice. See Commonwealth v. Randolph, 438 Mass. 290, 293
(2002) (all claims, waived or not, must be considered). Lastly,
we note that where, as here, the motion judge only considered
documentary evidence and did not hold an evidentiary hearing, we
may draw our own conclusions from the record. See Commonwealth
v. Howard, 81 Mass. App. Ct. 757, 760 (2012).
3. Direct estoppel. As noted above, some of the arguments
the defendant has raised in support of his motion for a new
trial were litigated and resolved in this court by the
defendant's direct appeal. Accordingly, the doctrine of direct
estoppel operates as a procedural bar to relitigating them. See
Commonwealth v. Rodriguez, 443 Mass. 707, 710-711 (2005). We
therefore do not address the defendant's arguments that (1) his
motion to dismiss should have been allowed, (2) he was denied
his right to an impartial jury when the judge refused to excuse
juror No. 75 for cause, (3) the judge erred by admitting in
evidence certain photographs and related testimony regarding the
defendant's appearance, and (4) the admission of evidence of
prior uncharged criminal conduct was unfairly prejudicial.
3 4. Remaining claims. We now turn to the defendant's
remaining arguments. First, the defendant argues that he was
denied access to legal materials and the law library by various
Department of Correction (DOC) officials. The defendant made a
similar claim in a federal law suit he brought against DOC
officials. The defendant submitted pleadings and documents he
obtained during the litigation of the federal lawsuit to support
his claim in Superior Court. On review of those materials, we
discern no merit to this argument.
We acknowledge that "[t]he constitutional right of access
to the courts requires correctional officials 'to assist inmates
in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate
assistance from persons trained in the law.'" Cacicio v.
Secretary of Pub. Safety, 422 Mass. 764, 773 (1996), quoting
Harris v. Commissioner of Correction, 409 Mass. 472, 479 (1991).
At the same time, "[a]ny plan to give inmates access to the
courts need only provide access that is adequate, effective, and
meaningful when viewed as a whole." Cacicio, supra.
Furthermore, as the Supreme Judicial Court stated in Harris,
supra, "adequate legal assistance is an alternative means of
fulfilling the obligation to provide prisoners with access to
the courts." Here, there is no dispute that the defendant was
provided with standby counsel, and little dispute that he had
4 the same access to the law library and legal materials provided
to any inmate in his position. As the Commonwealth notes in its
brief, according to the affidavit of Carol Lawton, deputy
superintendent of programs at the Massachusetts Correctional
Institution, Cedar Junction, the defendant was permitted to
retain one cubic foot of legal documents, access the law library
twice weekly, request books not in the prison collection, and
use a laptop with flash-drive capabilities so that materials
could be shared by and with standby counsel. Viewing these
circumstances together, we conclude that the defendant had
access to adequate legal assistance. To the extent the
defendant's affidavit submitted in support of his new trial
motion asserts otherwise, those assertions need not be credited.
See Commonwealth v. Furr, 454 Mass. 101, 109 (2009) ("Although
the judge did not make subsidiary findings explicitly refusing
to credit the [defendant's] affidavit, we may reasonably assume
from his denial of the defendant's motion that he did so").
Next, the defendant claims that on the fourth day of trial,
he was denied his anti-inflammatory medication and, as a result,
he experienced "withdrawals" and sleeplessness, which, in turn,
hindered his ability to defend himself and violated his right to
due process. Although the defendant reported to the judge that
he had not received his medication, was "jumpy," and had not
slept in two days, he did not ask for a continuance or state
5 that he could not proceed. In fact, he informed the judge only
that he was "just letting the Court know so the Court don't
think I'm under the influence of something, something like
that." The defendant did not raise the issue again. 1
The defendant now contends that he never received his
medication, was unable to sleep for "three to four trial days,"
and suffered from "tremors, night sweats, loss of memory,
irritability, and loss of focus." However, our review of the
record shows that he was able to participate fully in the trial
by making objections and examining witnesses at the relevant
times, and was not, as he claims, unable to defend himself.
Thus, even if we were to assume the truth of the defendant's
subsequent assertions, which we do not, they do not provide a
basis for concluding that his right to due process was violated.
The defendant next raises a series of claims based on
various alleged errors by the trial judge. He claims that he
was precluded from (1) calling an alibi witness, (2) raising a
defense of third-party culpability, and (3) challenging the
chain of custody of deoxyribonucleic acid (DNA) evidence.
First, the alleged alibi witness, Rick Jay, was not on the
defendant's witness list and the defendant failed to subpoena
1 A prison official was present in court and confirmed that the defendant had been offered a replacement medication but had refused it, and further confirmed that the defendant's usual medication would be provided that day.
6 him or initiate an out-of-State process to secure his presence
at trial. Nonetheless, the judge made clear that he would
permit the witness to testify if the defendant could produce
him. When Jay declined to appear voluntarily, it was the
defendant's burden to procure his appearance. The defendant
cannot now complain of his own ineffectiveness in this regard.
Furthermore, although the defendant claims that Jay would
provide exculpatory testimony, he has not provided an affidavit
from him to support this assertion.
The defendant's claim that he was deprived of his right to
present a defense of third-party culpability fares no better.
At trial, the defendant pointed to two other men as potential
suspects and solicited testimony that both men matched the
victim's description of the assailant, and that at different
times during the investigation, both men were considered
suspects. The defendant appropriately (and effectively) relied
on this evidence to argue there was reasonable doubt as to his
guilt. Given these circumstances, we discern no support for the
defendant's claim that he was deprived of the ability to present
a third-party culprit defense.
The defendant's argument that he was precluded from
soliciting evidence regarding a gap in the chain of custody of
the DNA evidence also has no support in the record. The issue
stemmed from the handling of the rape kit and the victim's
7 clothing from which the DNA evidence was extracted. The
specimens were obtained when the crimes occurred in 1988 and
were stored at the New Hampshire State laboratory (lab) until
they were sent to Cellmark Diagnostics for testing in 1996. At
that time, the results were not sufficiently discriminating
based on then-existing technology, and a comparison with the
defendant's DNA was inconclusive. However, one of the two
suspects discussed above was definitively excluded as a possible
perpetrator of the crimes. Then, in 2009, the evidence was
tested at the Massachusetts State Police crime lab. From the
sperm fraction, a full single-source DNA profile was created
that matched the defendant's profile. The so-called gap
occurred when the evidence was transported to Cellmark and back
to New Hampshire. The chain of custody form introduced at trial
did not specifically note that the evidence had been sent to
Cellmark and returned to New Hampshire.
There is no question that one goal of the defense was to
create reasonable doubt on the ground that the DNA evidence was
not reliable due to the age of the specimen and the alleged gap
in the chain of custody described above. However, contrary to
the defendant's assertion, he was permitted to exploit
deficiencies in the chain of custody and had the opportunity to
further question law enforcement officers about the lack of
documentation accompanying the transportation of the evidence.
8 Moreover, to the extent that the defendant did not delve further
into the chain of custody issue, he did so prudently. As noted,
while the testing performed at Cellmark was favorable to the
defense in that a comparison of the specimen from the victim and
the defendant's DNA was inconclusive, the tests also excluded
one of the other suspects. By not inquiring further, the
defendant kept the proverbial door closed on this evidence, and
ultimately the fact that the DNA testing excluded one suspect
was not presented to the jury.
Lastly, the defendant argues that his appellate counsel
provided him with ineffective assistance by failing to raise the
issues we have discussed above. In light of our conclusion that
9 none of the claimed errors created a substantial risk of a
miscarriage of justice, there is no merit to this claim.
Order denying motion for a new trial affirmed.
By the Court (Vuono, Englander & Hodgens, JJ. 2),
Clerk
Entered: January 13, 2025.
2 The panelists are listed in order of seniority.