Graham v. Commonwealth

Massachusetts Supreme Judicial Court

Graham v. Commonwealth

884 N.E.2d 972, 451 Mass. 1004, 2008 Mass. LEXIS 228

Massachusetts Supreme Judicial Court·Decided April 22, 2008·Published

Opinion

In Commonwealth v. Graham, 431 Mass. 282, cert. denied, 531 U.S. 1020 (2000), we affirmed the petitioner’s conviction of murder in the first degree. We also affirmed the denial of a motion for a new trial in which the petitioner, relying on Commonwealth v. Baseler, 419 Mass. 500, 506 (1995), had challenged the decision of the trial judge, who was also the motion judge, to give the jury a tape recording of only the supplemental jury instructions. Id. at 284-287. We agreed with the judge that the petitioner had not properly raised the issue at trial, but we still reviewed the claim for a substantial likelihood of a miscarriage of justice, pursuant to our duty under G. L. c. 278, § 33E. Id. at 286-287 & n.10.

In the county court, the petitioner sought to revisit the judge’s conclusion that he had waived his Baseler claim. He also argued that he was denied certain rights under the Vienna Convention on Consular Relations. The single justice neither abused his discretion nor otherwise erred in denying the petition. He correctly noted that we already decided the Baseler issue (including whether it was waived) in the petitioner’s earlier appeal; the petitioner may not obtain additional review under G. L. c. 211, § 3. Without passing on the merits of the petitioner’s claim under the Vienna Convention, we agree with the single justice that the petitioner has not shown that he lacks an adequate alternative to relief under our extraordinary superintendence power, such as a motion for a new trial.¹ But see Medellin v. Texas, 128 S. Ct. 1346 (2008); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).

Judgment affirmed.

Footnotes

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In Commonwealth v. Graham, 431 Mass. 282, cert. denied, 531 U.S. 1020 (2000), we affirmed the petitioner’s conviction of murder in the first degree. We also affirmed the denial of a motion for a new trial in which the petitioner, relying on Commonwealth v. Baseler, 419 Mass. 500, 506 (1995), had challenged the decision of the trial judge, who was also the motion judge, to give the jury a tape recording of only the supplemental jury instructions. Id. at 284-287. We agreed with the judge that the petitioner had not properly raised the issue at trial, but we still reviewed the claim for a substantial likelihood of a miscarriage of justice, pursuant to our duty under G. L. c. 278, § 33E. Id. at 286-287 & n.10.

In the county court, the petitioner sought to revisit the judge’s conclusion that he had waived his Baseler claim. He also argued that he was denied certain rights under the Vienna Convention on Consular Relations. The single justice neither abused his discretion nor otherwise erred in denying the petition. He correctly noted that we already decided the Baseler issue (including whether it was waived) in the petitioner’s earlier appeal; the petitioner may not obtain additional review under G. L. c. 211, § 3. Without passing on the merits of the petitioner’s claim under the Vienna Convention, we agree with the single justice that the petitioner has not shown that he lacks an adequate alternative to relief under our extraordinary superintendence power, such as a motion for a new trial.¹ But see Medellin v. Texas, 128 S. Ct. 1346 (2008); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).

Judgment affirmed.

Footnotes

Graham v. Commonwealth, 884 N.E.2d 972, 451 Mass. 1004, 2008 Mass. LEXIS 228 (Mass. 2008).

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Opinion

Footnotes

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