Heard: January 9, 2018.
found and returned in the Superior Court Department on July
cases were tried before Thomas E. Connolly, J., and
a motion for a new trial, filed on February 6, 2015, was
heard by Christine M. Roach, J.
S. Sinsheimer (Lisa A. Parlagreco also present) for the
M. Campbell, Assistant District Attorney, for the
Present: Gants, C.J., Budd, Cypher, & Kafker, JJ.
early morning hours of April 3, 2004, Vaughn Skinner, Jr.,
was shot and killed. The defendant, Ludner Imbert, was
identified as the shooter and convicted by a jury of murder
in the first degree, as well as armed assault with intent to
murder and carrying a firearm without a license.
consolidated appeal, the defendant argues that several errors
at trial require a reversal of his convictions and that the
trial record is insufficient to permit adequate and effective
appellate review. He also claims that his motion for a new
trial based on the Commonwealth's failure to disclose
exculpatory evidence was improperly denied. We affirm the
defendant's convictions and the judge's order denying
his motion for a new trial. After a review of the entire
record, we also decline to reduce or set aside the
defendant's convictions under G. L. c. 278, § 33E.
summarize the facts in the light most favorable to the
Commonwealth, reserving certain details for discussion of
after midnight on April 3, 2004, the victim and the defendant
were at a nightclub in Revere. The defendant arrived with
several friends, including Jeff Jean Charles, who drove the
defendant's vehicle. While in the club, the victim and
the defendant had a physical altercation: the victim stepped
on Charles's foot, and the defendant in turn punched the
victim in the face. The victim fell to the ground, and the
fight spread to involve several other patrons. The manager
closed the club, and security guards ushered patrons out to
the parking lot.
defendant left through the front door of the club; the
victim, who was bleeding, left through a side door. A witness
saw a man hand a firearm to another man matching the
defendant's description. Shortly thereafter, shots were
fired and the victim was seen falling to the ground. After
the initial gunshots, Kehonia Vick, who knew the defendant,
saw him stand over the victim and shoot him. After the
shooting, another witness and friend of the defendant, Shane
Clayton, saw the defendant with a snub-nosed revolver in his
the shooting, the defendant left the area on foot, leaving
his vehicle behind. He was picked up by three young women who
also had been at the club, one of whom was his girl friend.
He told his girl friend that the fight started because
someone had looked at one of his friends, and that "he
had to do what he had to do." The defendant's
cellular telephone records indicate that the cellular plan
was terminated on the day after the murder.
of the testimony of Vick and Clayton were not
transcribed. As a result, pursuant to Mass. R. A. P. 8
(e), as amended, 378 Mass. 932 (1979), the defendant moved to
reconstruct the missing portion of the record "to the
extent possible, on the basis of notes prepared by the trial
judge and trial attorneys." Because the defendant failed
to file a statement of the evidence as called for by Mass. R.
A. P. 8 (c), as amended, 430 Mass. 1601 (1999), the judge
reconstructed Vick's missing testimony based on the
"extensive" notes he took at trial, resulting in
five typewritten pages that he provided to each of the
prosecutor agreed with the judge's reconstruction.
However, defense counsel made handwritten annotations to the
document indicating where he disagreed with the judge's
recollection of the testimony. The judge rejected the
defense's annotations as inaccurate and declined to
insert objections made by the defense, as trial counsel was
unable to recall their substance.
defendant argues that his due process and equal protection
rights have been violated because a complete record is
necessary for effective appellate review and the
reconstructed trial transcript was not an adequate
substitute. We disagree. The reconstruction was adequate and
conforms to the procedure established in Commonwealth v.
Harris, 376 Mass. 74, 78-80 (1978) .
well established that a defendant is entitled to a
"record of sufficient completeness to permit proper
consideration of his claims." Mayer v. Chicago,
404 U.S. 189, 194 (1971), quoting Draper v.
Washington, 372 U.S. 487, 499 (1963). However, this does
not "translate automatically into a complete verbatim
transcript." Mayer, supra at 194.
Harris, 376 Mass. at 75, we addressed the issue of a
trial transcript that is incomplete or missing by no fault of
either party. In such a case, "'rough
accommodations' in the method in which an appeal is
presented are constitutionally permissible." I_d. at 77,
quoting Norvell v. Illinois, 373 U.S. 420, 424
(1963). A new trial will not be granted "unless the
trial proceedings cannot be reconstructed sufficiently to
present the defendant's claims." Harris,
supra at 78. We held that
"alternative methods of reporting the trial proceedings,
such as a statement of agreed facts, a bill of exceptions,
or a narrative statement based on the judge's
notes, are constitutionally adequate if they bring
before the appellate court an account of the events
sufficient to allow it to evaluate the defendant's
contentions" (emphasis added).
Id. at 77, and cases cited.
the judge determined that the record could be reconstructed
based on the notes he took of the testimony missing from the
transcript. Although defense counsel contended that the
defense made objections at trial that were not recorded, he
could not recall their substance. Counsel suggested
corrections and notes to the judge's proposed
reconstruction, but the judge found them to be inaccurate
based on the judge's own notes. Without any articulable
claim of error, the defendant's argument
defendant contends that Harris should be
distinguished because it did not require plenary review per
G. L. c. 278, § 33E. "[I]t is our duty to review
the entire record pursuant to G. L. c. 278, § 33E."
Commonwealth v. Britto, 433 Mass. 596, 615 n.ll
(2001). Where, as here, the reconstructed record is
constitutionally permissible and the defendant does not
present a specific dispute over its contents relating to any
claim of error, the reconstructed ...