Commonwealth v. Mila Depina-Cooley.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-1144

COMMONWEALTH

vs.

MILA DEPINA-COOLEY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the Superior Court, a jury convicted the

defendant, Mila Depina-Cooley, of two counts of receipt of

stolen property over $250.1 The defendant filed a timely appeal

from her convictions, which appeal is now pending. In order to

perfect the record for that direct appeal, the defendant sought

by motion the release of all documents reviewed in camera by

Superior Court judges prior to her trial. A Superior Court

judge denied her motions in part by allowing only one of the

requested records to be released on appeal. This separate

1 G. L. c. 266, § 60.
appeal followed; the direct appeal has been stayed pending its

resolution.

Because we agree with the defendant that (as the

Commonwealth now concedes) she was entitled to include all of

the records, in unredacted form, in the appellate record, we

vacate so much of the judge's order as denied the defendant's

motions and remand with directions for the Clerk of the Suffolk

County Superior Court to transmit to this court (and to this

court only), under seal for in camera appellate review, the

unredacted documents reviewed in camera by the Superior Court

judges in this matter.

Discussion. As we have noted, the Commonwealth now

concedes that in camera review of the requested documents is

appropriate. Still, we must "examine independently the error []

confessed." Commonwealth v. Poirier, 458 Mass. 1014, 1015

(2010), quoting Young v. United States, 315 U.S. 257, 258-259

(1942).

The appellant has the burden of preparing and filing the

record on appeal. See Commonwealth v. De Christoforo, 360 Mass.

531, 536 n.2 (1971) ("defendant as the appealing party has the

burden of presenting to this court a record on appeal which

shows that he was prejudiced by an error committed by the trial

court"). "The record on appeal shall consist of the documents

. . . on file, the transcript of the proceedings, if any, and

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the docket entries." Mass. R. A. P. 8 (a), as appearing in 481

Mass. 1611 (2019). For the purposes of rule 8 (a), "documents

. . . on file" includes documents that the judge below reviewed

in camera. See Commonwealth v. Scott, 98 Mass. App. Ct. 843,

853 (2019) (transcript of in camera hearing on witness's

invocation of privilege against self-incrimination "part of the

record on appeal and is reviewed by the appellate court but is

not accessible to the parties" [emphasis added]). See also

Commonwealth v. Dunn, 494 Mass. 42, 57 n.12 (2024) (noting that

counsel could have "incorporated [photographs] into the record

on appeal" by submitting them for in camera review in connection

with request for hearing under Franks v. Delaware, 438 U.S. 154,

155-156 [1978]). Because the documents at issue are part of the

record on the defendant's direct appeal, it was error for the

judge to deny the defendant's motions to have all those

documents transmitted to this court.

Conclusion. We vacate so much of the judge's order as

denied the defendant's motions. The case is remanded for entry

of a new order allowing the defendant's motions and directing

the Clerk of the Suffolk County Superior Court to deliver to the

Massachusetts Appeals Court, in a sealed envelope marked

"Confidential Documents -- Not to be Opened, Read, Filed, or

Made Available Except by Order of the Court," unredacted copies

of all the documents and records Superior Court judges reviewed

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in camera in this matter, within thirty days of the release of

this order.2

So ordered.

By the Court (Rubin, Hand &
Smyth, JJ.3),

Clerk

Entered: September 25, 2025.

2 No party shall see or have access to these materials
unless and until the Appeals Court explicitly allows such
review. Further, the materials will remain under seal in the
trial court during and after transmission to the Appeals Court.

3 The panelists are listed in order of seniority.

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