Opinion
12-P-1189
10-20-2014
COMMONWEALTH v. LAJUAN MELTON.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In 1999, following a jury trial in Superior Court, the defendant was convicted of murder in the second degree. After his motion for new trial and other motions were denied and the defendant pursued a consolidated appeal, this court affirmed his conviction in an unpublished memorandum and order pursuant to our rule 1:28. Commonwealth v. Melton, 59 Mass. App. Ct. 1111 (2003). In 2012, the defendant filed a second motion for new trial in which he argued, for the first time, that his conviction should be vacated because the court room was closed to the public during the jury selection process. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010). The original trial judge denied the second motion for new trial, and a second judge denied a motion for reconsideration (the trial judge having retired in the interim). In the defendant's appeal of the denial of both motions, we affirm.
Both the second motion for new trial and the motion for reconsideration were denied on the ground that the defendant had failed to meet his burden of establishing that the court room was in fact closed. On appeal, the defendant argues that the judges improperly came to that conclusion without granting him an evidentiary hearing.
We need not reach the merits of the defendant's arguments, because his claim fails for a more fundamental reason. Even if members of the public had been excluded during jury selection, the issue was not raised by the defendant at trial or in his first motion for a new trial. The claim is therefore waived, see Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014), and our review is limited to whether any court room closure created a substantial risk of a miscarriage of justice. The defendant has not argued, much less shown, that he was in fact prejudiced by any court room closure. No substantial risk of a miscarriage of justice can be demonstrated.
Although a defendant need not have contemporaneous knowledge of a court room closure for procedural waiver to occur, we note that the defendant's own affidavit avers that he did not see his family and friends in the court room even though he expected them to be there (thus establishing, if his affidavit were credited, that he had reason to believe that people had been excluded from attending the jury selection process).
Orders denying second motion for new trial and for reconsideration affirmed.
By the Court (Cohen,
Meade & Milkey, JJ.),
Clerk Entered: October 20, 2014.