Commonwealth v. David Magraw.

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degree, and the Appeals Court affirmed in an unpublished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Appeals Court affirmed the denial in an unpublished memorandum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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