Commonwealth v. Grant

78 Mass.App.Ct. 450

940 N.E.2d 448

39 Media L. Rep. 1399

COMMONWEALTH

v.Daniel GRANT.

No. 08–P–1619.

Appeals Court of Massachusetts, Middlesex.

Argued March 4, 2010.Decided Dec. 17, 2010.

James A. Reidy for the defendant.Denise J. Casper, Assistant District Attorney (Elizabeth A. Dunigan, Assistant District Attorney, with her) for the Commonwealth.Present: MILLS, GREEN, & KATZMANN, JJ.KATZMANN, J.

Having been convicted by a Superior Court jury of three counts of rape in violation of G.L. c. 265, § 22, the defendant appeals, contending that various trial errors warrant reversal. He also claims that his right to a public trial was violated during the general questioning and individual voir dire stages of jury empanelment, and that the motion judge (who was also the trial judge) erred in denying his motion for a new trial without an evidentiary hearing. We agree that there was a closure, in the constitutional sense, during the individual voir dire and that the judge did not make the findings required for closure. However, we remand for a determination whether the courtroom was closed during general questioning and, if so, whether it was de minimis. We also remand for a determination of whether the defendant waived his right to a public trial. We conclude that the defendant's other claims are not meritorious and do not constitute grounds for reversal.

I. Public trial. In his motion for new trial, which was filed nearly two years after his conviction, the defendant claims that his right to a public trial was violated when members of his family were excluded from the courtroom during general questioning of the venire and during individual questioning of potential jurors in the judge's chambers.

Jury selection took place on April 3 and 4, 2007, and two panels of jurors were necessary to achieve a jury of fourteen jurors. In the courtroom, after the venire was sworn and the indictments were read, the judge asked the general statutory voir dire questions: whether the jurors had any bias against or knowledge of the parties or the case, and whether jury service would pose a hardship. He instructed the jurors to raise their juror cards if they answered any of the questions affirmatively. There were only affirmative responses to the questions about knowing witnesses and jury service causing a hardship. The defendant was present in the courtroom throughout the general questioning.

After the judge completed the general questioning of the first panel of potential jurors, he called counsel to sidebar,

where the following exchange took place:

The Court: “For the individual voir dire, does your client waive his right to be present?”

Defense Counsel: “He does, your Honor. I've spoken to him about it at the office and again just before you came out.”

The Court: “Okay. We'll do it in the lobby as we proceed.”

The judge then conducted individual questioning of the potential jurors in his chambers—only the judge, prosecutor, and defense counsel participated in the proceedings. The proceedings were transcribed. During his individual questioning, the judge asked each of the jurors who indicated affirmative responses to the general voir dire questions in the courtroom to explain his or her answers and, at counsel's request, asked questions about his or her answer(s) on the jury questionnaires. Questions included inquiries of a nonsensitive nature,¹ as well as inquiries as to whether the potential jurors had been or knew someone, including family members or friends, who had been a victim of a violent or sexual crime, or had been accused of a violent or sexual crime. The judge also considered any motions from counsel to challenge a juror for cause. No objections were made to this procedure.

After conducting the individual voir dires of the first panel of jurors, the judge found that forty-one jurors were indifferent, one shy of the forty-two jurors he was seeking. In order to identify the forty-second juror, the judge questioned a second panel under the same two-part procedure of general questions in the courtroom followed by individual voir dire of a few potential jurors in chambers. Once the judge had found the forty-two jurors indifferent, the parties' counsel and the judge returned to the courtroom where counsel, in the presence of the defendant, exercised their peremptory challenges at sidebar until both parties were content.

A. General questioning of potential jurors. The defendant alleged in his motion for new trial that his wife and brother had been excluded from the courtroom during jury selection.² He attached affidavits from his wife ³ and brother.⁴ His trial counsel also signed an affidavit that the defendant's wife and brother had told him that they had been asked by court officers to leave the courtroom.⁵ The judge denied the motion without any written findings and without holding an evidentiary hearing.

“The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error.” Commonwealth v. Medina, 430 Mass. 800, 802, 723 N.E.2d 986 (2000). See Commonwealth v. Greineder, 458 Mass. 207, 225, 936 N.E.2d 372 (2010). “A judge's subsidiary findings of fact will not be disturbed on appeal unless they are shown to be the result of a ‘clear abuse of discretion or ... were clearly erroneous.’ ” Ibid., quoting from Commonwealth v. Torres, 437 Mass. 460, 469, 772 N.E.2d 1046 (2002). Furthermore, we will give deference to the decisions of a motion judge who also served as trial judge. Ibid. “A defendant's submissions in support of a motion for a new trial need not prove the factual premise of that motion, but they must contain sufficient credible information to cast doubt on the issue. A judge may also consider whether holding a hearing will add anything to the information that has been presented in the motion and affidavits.” Commonwealth v. Goodreau, 442 Mass. 341, 348, 813 N.E.2d 465 (2004) (citations & quotations omitted). “Where, as in this case, the new trial claim is constitutionally based we exercise our own judgment on the ultimate factual and legal conclusions.” Commonwealth v. Greineder, supra at 225–226, 936 N.E.2d 372.

The Supreme Judicial Court has observed:

“The public trial right applies to jury selection proceedings, Presley v. Georgia [––– U.S. ––––] 130 S.Ct. 721, [725, 175 L.Ed.2d 675] (2010), which are ‘a crucial part of any criminal case.’ Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007).... See Commonwealth v. Gordon, 422 Mass. 816, 823

[666 N.E.2d 122]

(1996). At that stage, ‘the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.’ Press–Enterprise v. Superior Court, 464 U.S. 501, 508 [104 S.Ct. 819, 78 L.Ed.2d 629] (1984).... The ‘sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known’ (emphasis in original). Id. Throughout a trial, an open court room ‘enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.’ Id. Thus, courts recognize a ‘strong presumption in favor of a public trial,’ Commonwealth v. Baran, 74 Mass.App.Ct. [256,] 294

[905 N.E.2d 1122 (2009) ]

, ‘overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ Press–Enterprise, supra at 510 .”

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106–107, 921 N.E.2d 906 (2010).⁶ “The Sixth Amendment does not require members of the public to attend the trial. It prohibits their exclusion by the State, except in limited circumstances.” Commonwealth v. Greineder, supra at 226, 936 N.E.2d 372. “In claiming that his Sixth Amendment [to the United States Constitution] right to a public trial was violated, ‘[t]he burden is clearly on the defendant to demonstrate that the public was excluded from his trial.’ ” Commonwealth v. Cohen, supra at 107, 921 N.E.2d 906, quoting from Commonwealth v. Williams, 379 Mass. 874, 875, 401 N.E.2d 376 (1980).

In Commonwealth v. Edward, 75 Mass.App.Ct. 162, 174, 912 N.E.2d 515 (2009), where the trial judge made a short statement at sidebar that the courtroom would be closed during direct and crossexamination of a child witness, we remanded for a hearing on the defendant's motion for new trial, noting that “[a]lthough the defendant's affidavits suggest that the courtroom was closed, the contemporaneous record is silent on the subject and the affiants have not been examined.” See Commonwealth v. Greineder, supra at 219, 936 N.E.2d 372 (“After oral argument ... [the Supreme Judicial Court] ... remanded the case to the trial judge for specific findings because ‘the trial record does not otherwise present a sufficient factual record for meaningful consideration of the defendant's claim’

[that a portion of the

jury selection proceeding was closed to the public]”). Here, unlike in Edward, there is no indication in the record that the judge ordered the courtroom closed. As in Edward, the record is silent as to whether the public was actually excluded. The judge did not examine the affiants and made no factual findings as to whether members of the public had been excluded. The judge, moreover, made no finding regarding the allegation that a court officer had asked the affiants to leave. See Commonwealth v. Cohen, supra at 109, 921 N.E.2d 906 (where, “pursuant to an established policy, court officers told a number of individuals that they would not be permitted in the court room during the jury selection process[,] [t]he exclusion of members of the public and the press for at least three days of jury selection ... cannot qualify as inadvertent ... [or] so trivial ... [that it falls]...