Opinion
15-P-528
07-24-2017
COMMONWEALTH v. CHARLES R. JENKINS.
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
In 1989, the defendant was convicted of murder in the second degree by a jury in the Superior Court. His conviction was affirmed by the Supreme Judicial Court. Commonwealth v. Jenkins, 416 Mass. 736 (1994). In 2005, the defendant filed a motion for "Reduction of the Verdict or New Trial" (first motion), which was denied. This court affirmed the denial of the first motion in an unpublished decision pursuant to Rule 1:28. Commonwealth v. Jenkins, 73 Mass. App. Ct. 1128 (2009).
In 2013, the defendant filed a second motion for a new trial. In the second motion, the defendant claimed that the exclusion of his younger brother from the court room during the second day of trial denied him his right to a public trial pursuant to the Sixth Amendment to the United States Constitution, and that he was denied effective assistance of appellate counsel who represented him in his direct appeal and appellate counsel who represented him in his first motion for a new trial for failing to raise this issue at either juncture. The denial of the second motion is now before us.
Where, as here, a court room closure is challenged collaterally in the context of a new trial motion claiming ineffective assistance of counsel, the defendant bears the burden of establishing prejudice. Weaver v. Massachusetts, 198 L. Ed. 2d 420 (June 22, 2017). Commonwealth v. LaChance, 469 Mass. 854, 859 (2014), cert. denied, 136 S. Ct. 317 (2015). "Strickland prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or, as the Court has assumed for these purposes, . . . to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair." Weaver supra at 435. The defendant has made no such showing here.
Order denying second motion for new trial affirmed.
By the Court (Wolohojian, Neyman & Shin, JJ.),
The panelists are listed in order of seniority. Oral argument was heard in January 2017, with Justice Grainger as a member of the panel. After argument, the panel stayed the appeal to await the United States Supreme Court's decision in Weaver v. Massachusetts. Justice Grainger retired before that decision issued. Justice Shin then became a member of the panel, and the parties were permitted to reargue before the reconstituted panel. --------
/s/
Clerk Entered: July 24, 2017.