Opinion
12-P-1300
05-19-2015
COMMONWEALTH v. ROBERT RIBIERO.
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 denial of his second motion for a new trial, claiming that a court officer improperly excluded members of his family from the courtroom during jury selection at his 1997 trial on charges of indecent assault and battery on a person over fourteen years old, indecent assault and battery on a person under fourteen years old, and three counts of rape of a child. As a result, the defendant argues that he was deprived of his right to a public trial; he also contends that the judge abused his discretion in denying the motion for new trial without a hearing. We affirm.
The judge submitted only one of the three rape charges to the jury, viewing the others as duplicative; the defendant was convicted on all of the remaining charges, and his conviction was affirmed in this court. Commonwealth v. Riberio, 49 Mass. App. Ct. 7, 11-12 (2000). The denial of the defendant's first motion for new trial also was affirmed. Commonwealth v. Riberio, 56 Mass. App. Ct. 1111 (2002).
The motion judge "assume[d] without deciding that a court officer on his initiative excluded one or more spectators from the impanelment because there was not room for everyone in the courtroom. The defendant did not object or in any way bring to the judge's attention that a family member, friend, or other member of the public had been excluded." See Commonwealth v. Dyer, 460 Mass. 728, 736 (2011). The judge concluded, "The defendant waived his right to have the impanelment conducted in a fully public proceeding by not objecting to the exclusion of persons from the courtroom during the impanelment." We agree.
"Where counsel fails to lodge a timely objection to the closure of the court room, the defendant's claim of error is deemed to be procedurally waived." Commonwealth v. LaChance, 469 Mass. 854, 857 (2014). "[U]npreserved claims of error [are] reviewed to determine if a substantial risk of a miscarriage of justice occurred." Ibid. The procedural posture in this case mirrors that in LaChance, "where the defendant ha[d] procedurally waived his Sixth Amendment public trial claim by not raising it at trial, and later raise[d] the claim as one of ineffective assistance of counsel in a collateral attack on his conviction." Id. at 856. In that circumstance, the court held that "the defendant is required to show prejudice from counsel's inadequate performance (that is, a substantial risk of a miscarriage of justice) and the presumption of prejudice that would otherwise apply to a preserved claim of structural error does not apply." Ibid. Here, as in LaChance, the defendant has failed even to allege prejudice, relying instead on the view, rejected by the majority in that case, that, where there is structural error, there is no need to show prejudice. Id. at 857-858.
We are satisfied that the motion for a new trial was properly denied.
The judge did not abuse his discretion when he ruled on the motion without an evidentiary hearing, because he assumed that the defendant's allegations about the courtroom closure were true. Cf. Commonwealth v. Chatman, 466 Mss. 327, 334 (2013), quoting from Commonwealth v. Stewart, 383 Mass. 253, 257-259 (1981) ("The decision whether to hold an evidentiary hearing on a motion for a new trial is 'left largely to the sound discretion of the judge'").
Order denying motion for new trial affirmed.
By the Court (Kantrowitz, Kafker & Hanlon, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 19, 2015.