COMMONWEALTH v. MAGRAW (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from the denial of his motion seeking a transcript of his arraignment on April 27, 1994. We affirm.

In 1991, the defendant was indicted for the murder of his wife and, after a jury trial, was convicted of murder in the first degree. The Supreme Judicial Court vacated the conviction due to certain evidentiary errors. Commonwealth v. Magraw, 426 Mass. 589 (1998). In April 1994, a new grand jury again returned an indictment charging the defendant with murdering his wife. After a jury trial, the defendant was convicted of murder in the second degree. That conviction was affirmed. Commonwealth v. Magraw, 58 Mass. App. Ct. 1112 (2003).

Thereafter, there were various postconviction proceedings that have no bearing on this appeal and we, therefore, do not recite them here. Instead, we focus only on the defendant's motion seeking a transcript of the April 1994 arraignment, which he filed in October 2015, almost twenty years later. That motion was denied without prejudice on March 9, 2016, and the defendant was allowed to file a supplemental affidavit to explain why he needed the transcript. Although the defendant subsequently filed several documents, including a supplemental affidavit, no further action was taken on the motion. Nonetheless, as part of an appeal to this court of separate trial court orders, the defendant argued error in the denial of his motion for the transcript. A panel of this court dismissed that portion of the appeal as premature, and remanded for the trial court to make a ruling on the defendant's motion for the transcript.² Commonwealth v. Magraw, 95 Mass. App. Ct. 1114 (2019). On remand, a judge of the Superior Court denied the motion for transcript, explaining his reasons in a detailed and thoughtful memorandum. It is this decision that is before us now.

The judge concluded -- and the defendant does not dispute - - that the transcript is not available. The court reporter had previously reported that she was unable to find any transcription or notes which would enable her to produce one. Although the defendant claimed that his attorney was at one point told by an employee of the clerk's office that a transcript should exist in the basement of the court house, the judge himself inquired directly of the clerk's office, which confirmed that the stenographer had no notes of the proceeding and that there were, in any event, no notes stored at the court house going back as far as the 1994 arraignment. In short, after diligent inquiry, the judge found that there was no transcript or stenographer notes of the 1994 arraignment -- and the defendant has given us no reason to question the accuracy of the judge's findings.

In these circumstances, there is no need for us to consider the defendant's arguments about why he needs the transcript of the 1994 arraignment. However, we note that -- even were we to consider the defendant's hypothesis that the transcript would reveal that the second indictment was in some way irregular -- his theories rest on the slimmest of reeds, buttressed only by conjecture and speculation.

The order denying the defendant's motion for a transcript of his April 1994 arraignment is affirmed.

So ordered.

FOOTNOTES

2.   The appeal affirmed the other orders that were at issue.