Opinion
13-P-785
10-14-2014
COMMONWEALTH v. ZELALEM MEZGEBU.
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
The defendant appeals from the denial of his second motion for a new trial, in which he alleges that the court room was closed to members of his family during jury selection, in violation of his constitutional right to a public trial.See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010). After a two-day evidentiary hearing, a judge of the Superior Court denied the motion, concluding that the defendant had not carried his burden of demonstrating that a closure had occurred.
The defendant was convicted by a jury of two counts of aggravated rape and single counts of indecent assault and battery and armed robbery, in April, 2008. He subsequently filed a motion for a new trial, which was denied in May, 2009. This court heard his consolidated appeal and affirmed both his convictions and the denial of the motion for a new trial in Commonwealth v. Mezgebu, 79 Mass. App. Ct. 1102 (2011).
Because the judge who presided over the defendant's trial had retired, a different judge heard and decided the motion.
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We discern no reason to disturb the judge's conclusion. The judge's finding that the courtroom was not closed is supported by the evidence and reflects thorough consideration of the circumstances. Significantly, the judge found that testimony provided by the defendant's relatives that they were excluded from the court room was not credible. We defer to her assessment in that regard. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
In any event, the defendant is not entitled to relief for an alternative reason. Even if members of the defendant's family had been excluded from the court room 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, and we review only to determine whether the exclusion would have created a substantial risk of a miscarriage of justice. See Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014). As there is no serious doubt whether the result of the trial might have been different had the court room not been closed as alleged by the defendant, we discern no such risk. See id. at 673, and cases cited.
Order denying second motion for new trial affirmed.
By the Court (Cohen, Meade & Milkey, JJ.),
Clerk Entered: October 14, 2014.