Commonwealth v. Jose Acevedo.

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

25-P-207

COMMONWEALTH

vs.

JOSE ACEVEDO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Jose Acevedo, appeals from the denial of his

fourth motion for a new trial. The motion raised three

substantive issues: (a) that the defendant was deprived of his

right under the Sixth Amendment to the United States

Constitution to confront a witness, (b) that the Commonwealth's

failure to use a double-blind photographic array (photo array)

procedure violated his due process rights, and (c) that trial

counsel was ineffective for failing to request severance of his

trial from that of his codefendant. Because the issues have all

been waived, and we do not discern any error creating a

substantial risk of a miscarriage of justice, we affirm.
Background. Following a jury trial in the Superior Court

in 2008, the defendant was convicted of fifteen offenses in

connection with a home invasion. A panel of this court affirmed

his convictions on direct appeal. See Commonwealth v. Merced,

81 Mass. App. Ct. 1107 (2012). Panels of this court also

affirmed the orders denying his first and third new trial

motions (he did not properly appeal from the order denying his

second motion for a new trial). See Commonwealth v. Acevedo, 96

Mass. App. Ct. 1115 (2019); Commonwealth v. Acevedo, 88 Mass.

App. Ct. 1116 (2015). In July 2023 the defendant filed this,

his fourth, new trial motion, which was denied on December 18,

2024.

Discussion. 1. Waiver. "A motion for a new trial may not

be used to compel the review of issues on which the defendant

has already had appellate review or issues on which the

defendant has forgone the opportunity." Commonwealth v.

Balliro, 437 Mass. 163, 166 (2002). As a result, "[a]ny grounds

for relief not raised by the defendant in his original or

amended motion for a new trial 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.'"

Commonwealth v. Roberts, 472 Mass. 355, 359 (2015), quoting

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Mass. R. Crim. P. 30 (c) (2), as appearing in 435 Mass. 1501

(2001).

In his first motion for a new trial, the defendant raised

six issues, including that the procedure by which victims of the

home invasion identified him was unduly suggestive, that he was

entitled to relief from prejudicial joinder of his trial with

the trial of his codefendant, and that trial counsel provided

ineffective assistance of counsel by failing to seek relief from

joinder. He abandoned these claims on appeal, but raised them

again in the motion now before us. "He has had his day in court

. . . and he is bound by the unappealed decision of the trial

judge denying that motion." Commonwealth v. DeChristoforo, 371

Mass. 26, 33 (1976). We need not rehash these issues.

Additionally, by failing to assert his confrontation claim

on direct appeal or in any of his first three new trial motions,

the defendant has "forgone the opportunity" for appellate review

on that issue. Balliro, 437 Mass. at 166. Although the motion

judge has "the discretion to rehear such issues," the defendant

offers no reason why his is an "extraordinary situation[]"

warranting additional review. Id. The motion judge therefore

did not err in dismissing the defendant's fourth new trial

motion.

2. Substantial risk of a miscarriage of justice review.

Because the defendant has had ample opportunity to raise his

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claims but did not, we consider them only to determine whether

any claimed error created a substantial risk of a miscarriage of

justice. See Commonwealth v. Randolph, 438 Mass. 290, 293-294,

297 (2002). "In all cases where a defendant fails to preserve

his claim for review we must still grant relief when we are left

with uncertainty that the defendant's guilt has been fairly

adjudicated" (quotation and citation omitted). Id. at 294-295.

a. Sixth Amendment claim. The defendant argues he was

denied his right to confront one of the victims of the home

invasion, who was interviewed by police but did not testify at

trial. Although the Sixth Amendment guarantees a criminal

defendant "an adequate opportunity to cross-examine adverse

witnesses," United States v. Owens, 484 U.S. 554, 557 (1988),

the victim was not an "adverse witness." The victim did not

testify. Nor did the Commonwealth introduce evidence of the

victim's out-of-court statements, except those to which the

parties had stipulated; indeed the stipulation stated that the

victim had failed to identify the defendant. Cf. Pointer v.

Texas, 380 U.S. 400, 407-408 (1965) (right to confrontation

violated by use of witness's previous testimony, which had not

been subject to "adequate" cross-examination). The victim's

absence from the trial did not violate the defendant's Sixth

Amendment right to confrontation.

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b. Photo array procedure. The defendant alleges that the

procedure by which the victims of the home invasion identified

him violated his due process rights because the investigating

detective -- who knew the defendant's identity -- administered

the photo arrays. A double-blind identification procedure,

"administered by a law enforcement officer who does not know the

identity of the suspect," is considered "the better practice

because it eliminates the risk of conscious or unconscious

suggestion." Commonwealth v. Silva-Santiago, 453 Mass. 782, 797

(2009). However, the failure to use a double-blind photo array

procedure does not make the identification inadmissible. "The

absence of such a procedure is properly a matter of the weight

of the identification evidence, . . . rather than of

admissibility." Id.

In denying the defendant's motion to suppress his

identification from the photo array, the trial judge found

"nothing about [the showing of the photo arrays] that [made] the

presentation so unnecessarily suggestive as to give rise to a

likelihood of misidentification," and the defendant does not

identify any other aspect of the identification procedure that

could have rendered it untrustworthy. The admission of the

double-blind identification procedure was not error, nor did it

create a substantial risk of a miscarriage of justice.

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c. Counsel's failure to request severance. The defendant

argues that being tried alongside his codefendant was so

prejudicial that it violated his right to a fair trial, and that

his attorney's failure to move for severance thus constituted

ineffective assistance of counsel. "It is presumed that

individuals will be tried together when criminal charges arise

out of the same criminal conduct" (quotation and citation

omitted). Commonwealth v. Hernandez, 473 Mass. 379, 391 (2015).

In this case, the defendant and his codefendant were prosecuted

as joint venturers in the same home invasion. The defendant

does not contend that their defenses were "mutually

antagonistic" or "irreconcilable," cf. Commonwealth v. Moran,

387 Mass. 644, 659 (1982) (failure to sever prevented fair trial

where "only realistic escape for either defendant was to blame

the other"), but rather that the evidence against his

codefendant was "overwhelming" compared to the evidence against

him. "[I]f a defendant simply stands a better chance of

acquittal if tried alone, severance is not required."

Commonwealth v. DeJesus, 71 Mass. App. Ct. 799, 809 (2008). See

Commonwealth v. Clarke, 418 Mass. 207, 217 (1994) (joinder did

not create unfair prejudice where evidence against one defendant

"was slight in comparison to the evidence against" other).

"An ineffective assistance claim based on the failure to

bring a motion requires the defendant to show that the motion

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would likely have been granted." Commonwealth v. Diaz, 448

Mass. 286, 289 (2007). "[C]ounsel was not ineffective for

failing to file a motion with a minimal chance of success."

Commonwealth v. Masonoff, 70 Mass. App. Ct. 162, 168 (2007).

The failure to seek severance was not error, nor did it create a

substantial risk of a miscarriage of justice. 1

Order dated December 18,
2024, denying motion for
new trial affirmed.

By the Court (Vuono,
Massing & Allen, JJ. 2),

Clerk

Entered: December 3, 2025.

1 The defendant also argues that the motion judge erred by
denying the fourth new trial motion without an evidentiary
hearing. "A judge may rule on a motion for a new trial . . .
without an evidentiary hearing, if no 'substantial issue' is
raised." Commonwealth v. Alemany, 488 Mass. 499, 517 (2021),
quoting Commonwealth v. Vaughn, 471 Mass. 398, 404 (2015).
Because all the defendant's claims are waived -- and because
they are all, in any case, without merit -- his motion did not
present any substantial issue. The motion judge did not abuse
his discretion in denying the motion without holding an
evidentiary hearing.

2 The panelists are listed in order of seniority.

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