Opinion
14-P-866
08-19-2015
COMMONWEALTH v. ALFRED P. FUSI.
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, Alfred P. Fusi, appeals from the order denying his sixth motion for new trial, filed twenty-eight years after being convicted of rape. He argues that he was deprived of his right to a public trial because the court room was closed for a period of time and his counsel was not aware of the closure; counsel's failure to object to the closure was not tactical and constituted ineffective assistance of counsel; and the defendant need not prove prejudice because the closure was structural error. We have considered the case cited by the defendant in a letter submitted pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), United States v. Negron-Sostre, F.3d , 2015 WL 3898794 (1st Cir. June 25, 2015), but find it unavailing. This case is controlled in all respects by Commonwealth v. Morganti, 467 Mass. 96, 102, cert. denied, 135 S. Ct. 356 (2014), and Commonwealth v. LaChance, 469 Mass. 854 (2014). The defendant's public trial claim has been waived and he has not demonstrated a substantial risk of a miscarriage of justice.
Order entered September 30, 2013, denying motion for new trial affirmed.
By the Court (Cypher, Meade & Rubin, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 19, 2015.