Opinion
15-P-1102
08-08-2016
COMMONWEALTH v. JAMES J. STOKES.
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
Following a jury trial in the Superior Court, the defendant was convicted of murder in the first degree. On the defendant's direct appeal, consolidated with his appeal from the denial of his first motion for a new trial, the Supreme Judicial Court reduced his conviction to murder in the second degree pursuant to G. L. c. 278, § 33E. See Commonwealth v. Rego, 360 Mass. 385, 393-397 (1971). The defendant now appeals the denial of his fifth motion for a new trial. The motion judge concluded that the defendant's claims of error in the jury instructions and in the Commonwealth's closing argument either were or could have been raised on direct appeal or in prior motions for new trial and were therefore waived.
The defendant is responsible for ensuring that the record, which includes the transcript, is adequate for review. See Commonwealth v. Woody, 429 Mass. 95, 97 (1999). If the trial transcript is unavailable, the defendant has the responsibility to reconstruct the trial proceedings for appellate review. See id. at 97-98. See also Mass.R.A.P. 8(c), as amended, 378 Mass. 933 (1979). He has failed to do so here. The record does not include a complete copy of the trial transcripts, full excerpts of the jury charge, or the Commonwealth's complete summation for our review. See Commonwealth v. Whitman, 453 Mass. 331, 343 (2009) (closing arguments are reviewed in "the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury"); Commonwealth v. Pittman, 76 Mass. App. Ct. 905, 906 (2010) (jury instructions are reviewed in the context of the judge's entire charge to the jury).
We review a judge's decision to allow or to deny a motion for a new trial "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303, 307 (1986). Under the doctrine of direct estoppel, the defendant is estopped from raising claims previously adjudicated. See Commonwealth v. Rodriguez, 443 Mass. 707, 709-710 (2005). Claims the defendant could have challenged earlier are waived. See Commonwealth v. Randolph, 438 Mass. 290, 293 (2002). Thus, we review his waived claims for a substantial risk of a miscarriage of justice. See Commonwealth v. Smith, 460 Mass. 318, 320-321 (2011). It is well established that "'[e]rrors of this magnitude are extraordinary events and relief is seldom granted,' . . . and that '[s]uch errors are particularly unlikely where, as here, the defendant's conviction . . . has undergone the exacting scrutiny of plenary review under [G. L. c. 278,] § 33E.'" Id. at 321, quoting from Randolph, supra at 297. On the limited record before us, we discern no error or abuse of discretion in the denial of the motion for new trial.
Order dated July 3, 2015, denying motion for new trial affirmed.
By the Court (Cypher, Grainger & Kinder, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: August 8, 2016.