This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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, 881 N.E.2d 792 (2008).
The order allowing the second motion for new trial is reversed. A new order shall enter denying the motion.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After an evidentiary hearing, a judge of the Superior Court allowed the defendant's second motion for a new trial. See Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). The Commonwealth appeals, claiming that the defendant waived his right to a public trial and that he was not deprived of the assistance of counsel. We reverse.
The Commonwealth claims that by failing to object to a court room closure during jury empanelment, and by failing to raise the issue in his first motion for new trial, the defendant waived his right to a public trial. We agree.
Contrary to the defendant's claims, this case is controlled in all material respects by Commonwealth v. Wall, 469 Mass. 652, 15 N.E.3d 708 (2014), and Commonwealth v. LaChance, 469 Mass. 854, 17 N.E.3d 1101 (2014). The judge reluctantly allowed the defendant's second motion for a new trial based on the state of the law in 2012. Before LaChance and Wall, it was not clear that the defendant had waived his right to a public trial by failing to object when his family members were asked to leave the court room during jury empanelment. The judge also felt constrained to allow the defendant's motion even though the claim was made for the first time in his second motion for a new trial. LaChance and Wall have since addressed both of those issues. " 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, supra at 857. Also, " [a] procedural waiver may occur where the failure to object is inadvertent." Commonwealth v. Wall, supra at 672-673. Furthermore, " [w]here defense counsel did not object to any alleged court room closure at trial, and the defendant failed to raise the claim in his first motion for new trial, . . . the defendant's right to a public trial during jury empanelment has been waived." Id. at 673.
Because the defendant waived his right to a public trial, our review is limited to determining whether a substantial risk of a miscarriage of justice was created. Commonwealth v. LaChance, supra. The closing of the court room occurred during jury empanelment, as was the common practice in the Superior Court at that time. Because there is no " serious doubt whether the result of the trial might have been different" had the court room not been closed to the defendant's family members, Commonwealth v. Randolph, 438 Mass. 290, 297, 780 N.E.2d 58 (2002), quoting from Commonwealth v. Azar, 435 Mass. 675, 687, 760 N.E.2d 1224 (2002), the defendant has not shown he was prejudiced by the closure, and thus there is no risk that justice miscarried.,
Finally, the defendant claims that he was actually or constructively deprived of the assistance of counsel. He does so in an attempt to establish his case as one of the " limited circumstances" where prejudice can be presumed. Commonwealth v. LaChance, supra at 859. The defendant does not claim he received ineffective assistance of counsel, but that he was entirely deprived of his attorney's assistance because she was unaware of the court room's closure, and thus unable to object. We disagree. The defendant was represented by competent, well-prepared counsel at all critical stages of the proceedings, including jury empanelment. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). " Constructive denials of counsel rising to a level of structural error occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system." Commonwealth v. Valentin, 470 Mass. 186, 197, 23 N.E.3d 61 (2014). That did not happen here; counsel was not prevented from assisting the defendant during empanelment because, as the motion judge (who was also the trial judge) found, the defendant did not inform his counsel or the judge when he saw his family being escorted from the court room. The defendant's additional claim that his appellate counsel was ineffective is without merit.
The order allowing the second motion for new trial is reversed.
A new order shall enter denying the motion.
Meade, Hanlon & Blake, JJ.