COMMONWEALTH v. MAGRAW (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from a Superior Court judge's order denying the defendant's motion to obtain the transcript of his April 27, 1994 arraignment in this matter and an order “denying” the defendant's request for public records. The defendant's appeal concerning the transcript is premature and we remand for a ruling on the motion. On the issue of the defendant's request for public records, we affirm.

Background. In 1994, a jury convicted the defendant of murder in the first degree by extreme atrocity or cruelty. See Commonwealth v. Magraw, 426 Mass. 589, 589-590 (1998). In 1998, the Supreme Judicial Court reversed and remanded for a new trial. Id. at 590. The defendant was retried in 1999 and convicted of murder in the second degree. See Commonwealth v. Magraw, 58 Mass. App. Ct. 1112 (2003). In 2003, this court affirmed the defendant's 1999 conviction. See id. The defendant has since filed numerous motions in this case and in Federal court regarding his conviction.²

Discussion. 1. Request for arraignment transcript. On October 29, 2015, the defendant filed a “Motion to Be Provided With A Copy of Transcript of Arraignment Proceeding on April 27, 1994 Before Judge Suzanne DelVecchio,”³ which was denied without prejudice on March 9, 2016, allowing the defendant to offer a supplemental affidavit setting forth a basis of need for the transcript. The defendant filed several documents following this order, including an “Affidavit of Supplement to the Defendant's September 8, 2015” motion. According to the docket, the court did not enter a further order on these motions. Though there had been no ruling on the defendant's motion, on January 26, 2018, the defendant filed a notice of appeal from the “decision ․ den[ying] the defendant's motions to obtain the transcript of the April 27, 1994 arraignment.”⁴ Accordingly, there is no final judgment from which the defendant may permissibly appeal. See Mass. R. A. P. 4 (b) (1), as appearing in 481 Mass. 1628 (2019). We remand the matter for a ruling on the defendant's motion and related pleadings.⁵

2. Public records request. On July 1, 2017, the defendant filed a request for public records with the Walpole Police Department (department), seeking police reports relating to the investigation into the victim's death. The department denied his request and the defendant appealed the denial to the supervisor of records. On July 31, 2017, the supervisor of records similarly denied the defendant's request “with the proviso that the [d]epartment provide [the defendant] with a supplemental response,” and stated that the defendant may “appeal the substantive nature of the [d]epartment's response within ninety days,” as outlined in 950 Code Mass. Regs. § 32.08(1) (2017). The department provided the defendant with a substantive denial on August 8, 2017.

On October 31, 2017, the defendant filed a document entitled “Appeal of the Substantive Nature of the Walpole Police Department's August 8, 2017 Response” in the docket of his 1999 criminal conviction. On January 2, 2018, a Superior Court judge denied the motion, stating, “There is no right to ‘appeal’ a claimed denial of inadequacy of a municipalities [sic] response to a request for information on this closed criminal docket.” The defendant now appeals from this denial.

As an initial matter, the defendant failed to raise this argument in his revised brief; thus, we consider it waived. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019). Even considering the defendant's claim on the merits, we affirm. A requester has “the right of an administrative appeal to the Supervisor [of Public Records] under 950 C.M.R. 32.08 (1) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court.” 950 Code Mass. Regs. § 32.06(3)(c)(8) (2017). See G. L. c. 66, § 10A (a) (“A requestor, aggrieved by an order issued by the supervisor of records ․ may obtain judicial review only through an action in superior court seeking relief in [a civil action in] the nature of certiorari under section 4 of chapter 249”). A municipality's response to a request for public records is a civil matter and the defendant failed to utilize the appropriate avenue through which to appeal the denial of his request.

Conclusion. The defendant's appeal from the judge's order on the arraignment transcript is dismissed as premature and the matter is remanded for a ruling on the defendant's motion to obtain the transcript of his April 27, 1994 arraignment. The order denying the defendant's “Appeal of the Substantive Nature of the Walpole Police Department's August 8, 2017 Response” is affirmed.

So ordered.

Dismissed in part and remanded; affirmed in part.

FOOTNOTES

2.   The motions filed in Federal court were denied. See Magraw v. Roden, 743 F.3d 1 (1st Cir. 2014), cert. denied, 572 U.S. 1156 (2014); Magraw v. Roden, U.S. Dist. Ct., No. 09-11534 (D. Mass. Feb. 19, 2013); Magraw v. Roden, U.S. Dist. Ct., No. 09-11534 (D. Mass. Mar. 22, 2013); Magraw v. Roden, U.S. Dist. Ct., No. 09-11534 (D. Mass. Aug. 27, 2010).

3.   The defendant filed the initial version of this motion on September 11, 2015.

4.   The docket indicates that the defendant must obtain permission from the Supreme Judicial Court pursuant to G. L. c. 278, § 33E, to appeal. Because the defendant was convicted of murder in the second degree, G. L. c. 278, § 33E, does not apply. Because the defendant was convicted of murder in the second degree, G. L. c. 278, § 33E, does not apply. In any event, on August 6, 2018, the docket reflects that the defendant's motion to compile and assemble the record was allowed and that in September, 2018 there was communication with the Supreme Judicial Court concerning assembly of the record.

4.   The documents in the record cast doubt as to whether the arraignment transcript exists or could be created. See generally S.J.C. Rule 1:12, as appearing in 382 Mass. 717 (1981) (stenographic notes of testimony may be destroyed after six years where no transcript has been ordered). The Commonwealth similarly represents that the transcript does not exist. However, that is a factual matter, which should be decided on remand.