Opinion
14-P-513
03-20-2015
COMMONWEALTH v. SCOTT BOYER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the order denying his motion for a new trial, alleging that it was an abuse of discretion to deny the motion without an evidentiary hearing. We affirm.
The defendant's brief addresses the merits of his claim that he was denied a public trial. However, at oral argument, defense counsel narrowed the issue on appeal to a contention that the judge abused her discretion in denying the defendant's request for an evidentiary hearing on his motion for a new trial.
Background. We recite the facts as found my the motion judge, supplemented with undisputed entries in the record. The defendant was convicted of murder in the second degree after a jury trial. Six years later, the defendant filed a motion for a new trial, alleging that the public was excluded from the courtroom during jury empanelment. The defendant submitted affidavits from his wife and his son alleging that they were barred from entering the courtroom. The motion judge, who was also the trial judge, denied the motion without an evidentiary hearing, finding that the courtroom had not been closed.
Discussion. We review a judge's decision to rule on a motion for a new trial without holding an evidentiary hearing for an abuse of discretion. Commonwealth v. Birks, 435 Mass. 782, 792 (2002). The defendant has not pointed to any evidence to suggest that anyone was actually excluded from the courtroom during jury selection as a result of any action by the judge or by courtroom personnel. On their face, the affidavits do not suggest that any court personnel excluded either the defendant's wife or his son, and therefore do not raise a "substantial issue" requiring an evidentiary hearing. Commonwealth v. Candelario, 446 Mass. 847, 858 (2006), citing Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). Furthermore, we credit the judge's finding that the courtroom was not closed based on her recollection of the trial; she "was entitled to make use of [her] knowledge of what had taken place." Commonwealth v. De Christoforo, 360 Mass. 531, 543 (1971). As such, the judge did not abuse her considerable discretion in declining to hold an evidentiary hearing on the motion. Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).
The defendant had an opportunity to raise this issue on direct appeal and failed to do so. The right to a public trial may be procedurally waived even if, as claimed here, the waiver was inadvertent. Commonwealth v. Wall, 469 Mass. 652, 672-673 & n.24 (2014). Thus, we review any error for a substantial risk of a miscarriage of justice, and find none present in this case. See Commonwealth v. Dyer, 460 Mass. 728, 735 n.7 (2011).
Order denying motion for new trial affirmed.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: March 20, 2015.