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which were not preserved at trial, not raised on direct appeal, or which are not set forth in the defendant's initial motion for a new trial are deemed to be waived. Commonwealth v. Curtis, 417 Mass. 619, 621-623 (1994); Fogarty v. Commonwealth, 406 Mass. 103, 107-108 (1989). In cases where waiver applies, the court need not address the merits of the waived issue. Fogarty, 406 Mass. at 107. In Fogarty, the Supreme Judicial Court held that "'[a] motion for a new trial may not be used as a vehicle to review or reconsider questions of law on which a defendant has had his day in an appellate court, or forgone the opportunity." Fogarty, 406 Mass. at 107, quoting Commonwealth v. McLaughin, 364 Mass. 211, 229 (1973). An exception to the waiver rule is provided for in Mass. R. Crim. P. 30 (c)(2), which provides: "Any grounds not raised [in the original motion] are waived unless the judge in his discretion permits them to be raised in a subsequent motion, or unless such grounds could not have been raised in the original or amended motion." Mass. R. Crim. P. 30 (c)(2). Where an issue has not been properly preserved, the Court suggests that the [motion] judge's discretion be limited to instances where "there is a substantial risk of a miscarriage of justice." Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967); Curtis, 417 Mass. at 623; Commonwealth v. Watson, 409 Mass. 110, 112 (1991); Fogarty, 406 Mass. at 107-108.
This Court finds the Commonwealth's arguments unpersuasive because the defendant: (1) preserved her right to raise the issue of newly discovered evidence in her original motion for a new trial; and (2) was unable to raise the claim in her
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second motion for a new trial because of the enormous factual and legal issues involved in preparing such a motion, which needed to be filed within twenty eight days of the Supreme Judicial Court decision//Note 26// reversing the order by this Court (Barton, J.) allowing her original motion for a new trial. Even if I found she waived her rights, because there is a substantial risk of a miscarriage of justice in this case, this Court has exercised its discretion and heard the motion on the merits.//Note 27// See Freeman, 352 Mass. 556, 564; Mass. R. Cr. P. 30(c)(2).
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defendant, the latter's right to file a subsequent motion for a new trial based upon newly discovered evidence.//Note 29// Thus, on June 2, 1995, the defendant's right to file a subsequent motion for a new trial, on the issues now before me, were preserved for a later hearing, if necessary; that day, has arrived.
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Justice Barton preserved the right of the defendant to raise this issue in a subsequent motion for a new trial, and the Commonwealth consented to the preservation of the defendant's rights. The defendant relied on Justice Barton's statements, and as a result she waited until after the March 24, 1997, Supreme Judicial Court decision, which reversed the Superior Court's order granting her a new trial, to prepare her motion for a new trial based upon newly discovered evidence. As Justice Barton recognized on June 2, 1995, and this Court has become all too-fully-aware, this motion was a massive undertaking on both the facts and the law. This Court finds that it is more than reasonable that the defendant could not have been prepared to raise this issue in her second motion for a new trial given the short period of time she had to file a motion for the new trial.//Note 30// Thus, the defendant's failure to raise the newly discovered evidence claim in her second motion for a new trial does not constitute waiver of her right to do so now.
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such an exceptional circumstance. In order to ensure that justice is done, this Court will exercise its discretion and allow the defendant to proceed with her claim regarding the reliability of the children's testimony. Although the defendant's case has been previously reviewed by this Court and the Supreme Judicial Court, this is the first time any court has had the opportunity to review the entire record in light of the newly discovered evidence. Certainly, the reliability of the children's testimony is sufficient justification for this court to address the merits of the defendant's claims, particularly with the overwhelming evidence of improper interviewing and investigative techniques, and with less than overwhelming evidence on one side. To do otherwise would allow a substantial risk of a miscarriage of justice to remain unreviewed. See Freeman, 352 Mass. at 564. To find waiver under the circumstances of this case runs counter to the most basic and fundamental requirements of fairness in our criminal justice system.//Note 32// Finally, when this Court considers the serious risk of an erroneous conviction, particularly when weighed against the possible prejudice to the Commonwealth, it remains abundantly clear that the interests of justice require this Court to hear her motion. After all, it is likely that, had the defendant presented the claims now before me in her second motion for a new trial in April or May of 1997, the hearings and preparation for the motion, the
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review of the record and the time required to render a decision would have brought us close to the present date. At most, the loss to the Commonwealth in the failure to bring it originally, is but a few months. Can it possibly be that issues of such importance be forever relegated to the repository of waiver? The answer has to be a resounding no.
Courts only decide "actual controversies." Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 514 (1911). "Litigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Blake v. Massachusetts Parole Board, 369 Mass. 701, 703 (1976) (citations omitted). Generally, courts do not decide moot cases because "(1) only factually concrete disputes are capable of resolution through the adversary process, (2) it is feared that parties will not adequately represent positions in which they no longer have a personal stake, (3) the adjudication of hypothetical disputes would encroach on the legislative domain, and (4) judicial economy requires that
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insubstantial controversies not be litigated." Wolf v. Commissioner of Public Welfare, 367 Mass. 293, 298 (1975). Courts make an exception to this general rule by deciding moot questions "where the issue is one of public importance, where it was fully argued on both sides, where the question was certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Norwood Hosp. v. Munoz, 409 Mass. 116, 121 (1991), quoting Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). When a question is "capable of repetition, yet evading review," courts will address the merits of the case. In the Matter of McCauley, 409 Mass. 134, 136 n.2 (1991). See also Roe v. Wade, 410 U.S. 113, 125 (1973); Southern Pacific, 219 U.S. at 515 (citations omitted); Norwood, 409 Mass. at 121. Judicial economy plays a significant role in determining whether the courts will decide a moot issue. Blake, 369 Mass. at 707. Where there is a "good likelihood" that the same issues would arise between the same parties judicial economy may be better served by a prompt decision rather than deferring the decision. Blake, 369 Mass. at 707; Marchand v. Director, U.S. Probation Office, 421 F.2d 331, 333-334 (1st Cir. 1970). When such a case exists, "a court should take particular care that judicial review not be foreclosed on the basis of technical mootness." Wolf, 367 Mass. at 299.
The question of whether the defendant should be granted a new trial because newly discovered evidence renders the children's testimony unreliable is not moot. The defendant continues to have a personal stake in the outcome of this fundamental
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issue. If the Superior Court does not hear this motion for a new trial, and if the allowance of her second motion for a new trial is reversed she will return to prison; if it is affirmed, she will be entitled to a new trial. At her second trial, if the Commonwealth chooses to prosecute, the question regarding the admissibility and reliability of the children's testimony would have to be answered by the trial court; at the inception of the hearing on her motion this Court did not anticipate its ultimate ruling. By applying the Wolf factors to the facts in this case, it is clear that the issues in her motion are not moot: (1) There is a live issue as to whether the defendant is entitled to a new trial and whether the children's testimony is so unreliable that it would be inadmissible at trial; (2) certainly, both the Commonwealth and the defendant have more than adequately argued their respective positions; (3) this dispute is not hypothetical; and (4) judicial economy requires that this question be addressed now. See Wolf, 367 Mass. at 298.
The defendant's motion fits squarely into the clearly enunciated exception to the general rule. The question of whether the children's testimony is unreliable, and thus inadmissible, is a question of great public importance which requires a prompt answer. The defendant is entitled to file this motion at any time under Mass. R. Crim. P. 30. There is more than a "good likelihood" that these two parties would have eventually argued this issue. See Blake, 369 Mass. at 707. Deciding this question now conserves valuable judicial resources far more efficiently and fairly than deferring the question until after the Supreme Judicial Court addresses the ineffective
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assistance of counsel question. By addressing all of the issues regarding the defendant's right to a new trial together, the Supreme Judicial Court may completely dispose of this case while protecting the public's interest in finality.
The Supreme Judicial Court may have already addressed the issue of mootness in this case. When the Supreme Judicial Court stayed the Commonwealth's appeal from this Court's allowance of the defendant's second motion for a new trial, the Court arguably ruled that the question of newly discovered evidence was not moot. By allowing this motion to go forward prior to rendering a decision on the defendant's second motion for a new trial, the Supreme Judicial Court has indicated that it believes the question regarding the reliability of the children's testimony is one of public importance, which deserves a prompt answer. Indeed, the Supreme Judicial Court is aware of the significance of the issues raised, the enormity of the legal and factual arguments, and the amount of time required of counsel for both parties and for this Court to completely, and finally, address this issue. Staying the Commonwealth's appeal is a reflection that judicial economy, in addition to fairness, is best served by deciding both the second and third motions for a new trial simultaneously.
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//Note 26: See Mass. R. App. P. 23.//
1. The Defendant's Right to Raise the Issue of Newly Discovered Evidence in a Subsequent Motion For a New Trial Was Preserved on June 2, 1995
//Note 28: At the time, the defense moved to add the second claim to the first motion for a new trial, the Court was anticipating closing arguments on the motion within the next two months and expected to render a decision within sixty days of closing arguments. The court estimated that a hearing on the second claim based upon newly discovered evidence would delay that decision by six months to one year. (Tr. 6/2/95 p. 9-10.)//
2. The Defendant Could Not Have Raised the Issue of Newly Discovered Evidence in a Prior Proceeding
//Note 30: In pertinent part Mass. R. App. P. 23 states: "... The rescript of the court shall issue to the lower court twenty-eight days after the date of the rescript... The timely filing of a petition for a rehearing or of an application for further appellate review will stay the rescript unitl disposition of the petition or application ..."//
3. Even If the Defendant's Right to Raise the Claim of Newly Discovered Evidence Has Been Waived, this Court, In Its Discretion Will Address the Issue If there is a "Substantial Risk of a Miscarriage of Justice."
//Note 31: Freeman, 352 Mass. 556, 564; Mass. R. Crim. P. 30 (c)(2).//
Where a defendant has waived her rights by not properly preserving them in a prior proceeding, the motion judge may hear an issue if there is a "substantial risk of a miscarriage of justice." Freeman, 352 Mass. at 564. The facts in this case present
//Note 32: It is worth noting that the Supreme Judicial Court's decision to stay the Commonwealth's appeal of my granting the defendant's second motion for a new trial, pending the decision on this motion for a new trial, indicates their desire to have this Court fully hear the defendant's claim, whatever the ultimate result on the merits.//
B. Mootness
The Commonwealth also argues that the defendant's motion is barred by the doctrine of mootness because this Court has already granted her a new trial based upon ineffective assistance of counsel on appeal; and, unless the Supreme Judicial Court reverses that order, the defendant gets her new trial and thus, the present motion is moot. This Court finds the Commonwealth's argument meritless and contrary to the doctrine of mootness.
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