Opinion
14-P-1422
05-28-2015
COMMONWEALTH v. MARKENDY JEAN.
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, Markendy Jean, appeals from the denial of a motion for new trial. In 2007, a jury convicted the defendant of murder in the second degree, unlawful possession of a firearm, and unlawful possession of ammunition. The convictions were affirmed by this court, Commonwealth v. Jean, 76 Mass. App. Ct. 1115 (2010), and the Supreme Judicial Court denied further appellate review, Commonwealth v. Jean, 456 Mass. 1107 (2010). The defendant argues that his motion for new trial should not have been denied because his rights under the Sixth and Fourteenth Amendments to the United States Constitution were violated when the court room was closed to spectators during jury selection and because trial counsel failed to object to the closing of the court room and failed to advise him of his right to a public trial. The motion judge denied the motion for new trial. We affirm for the reasons set forth by the motion judge in her memorandum of decision.
As the motion judge observed, the right to a public trial may be procedurally waived by the failure to timely object. Commonwealth v. Jackson, 471 Mass. 262 (2015). In such circumstances, as here, we review to determine whether the closure of the court room created a substantial risk of a miscarriage of justice. Id. at 269 n.11. The defendant has not demonstrated any factors that suggest a substantial risk of a miscarriage of justice occurred, and there is no serious doubt that the result of the trial would have been different. Commonwealth v. Wall, 462 Mass. 652, 673 (2014); Commonwealth v. Jackson, supra, and cases cited therein. Similarly, the defendant has not demonstrated that trial counsel's alleged ineffective assistance resulted in prejudice. Commonwealth v. LaChance, 469 Mass. 854, 859-860 (2014).
Order denying motion for new trial affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 28, 2015.