Commonwealth v. Robinson, Docket: 0084CR10975

Dates: January 6, 2017

Present:

County: SUFFOLK, ss.

Keywords: FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ALLOWING DEFENDANTS MOTION FOR A NEW TRIAL

Defendant Jason Robinson was convicted of first degree murder in 2002. He now moves for a new trial on the grounds that: (i) his constitutional right to a public trial was violated because the court was closed during jury empanelment; (ii) there was insufficient evidence to support a conviction for felony-murder; (iii) newly discovered evidence suggests that the Commonwealth's main witness did not testify truthfully; (iv) the Commonwealth withheld potentially exculpatory evidence; and (v) it is unconstitutional to sentence Robinson to life in prison with no possibility of parole because he was nineteen years old when the victim was killed and his brain was not yet fully developed. The Court conducted an evidentiary hearing regarding Robinson's public trial claims and has scheduled a further evidentiary hearing regarding his claims about adolescent brain development.

The Court concludes that it must ALLOW Robinson's motion for a new trial and vacate his convictions for murder and unlawful possession of a firearm. As explained below, the Court finds that Robinson was denied his constitutional right to a public trial because the public was barred from the courtroom throughout the jury selection process. It also finds that Robinson did not acquiesce in this courtroom closure or waive his public trial right in any other way: neither Robinson nor his lawyer knew that the public was not allowed to observe the jury voir dire; defense counsel was not aware of any general practice of barring the public from jury selection; and this is Robinson's first motion for a new trial and the first post-verdict opportunity Robinson has had to raise this claim of error. There is no merit to the Commonwealth's assertion that any failure to object at trial to a courtroom closure waives the error, even if the defendant and his counsel did not know and had no reason to suspect that it was happening. The Court is therefore required by law to vacate Robinson's convictions and order a new trial without inquiring whether Robinson has demonstrated that the unlawful courtroom closure created any substantial risk or likelihood of a miscarriage of justice.

1. Procedural History. The dockets for this case and the transcripts from the trial of this matter indicate the following.^[1]

Jason Robinson and codefendant Tanzerious Anderson were tried together in 2002. Robinson was indicted on one charge of murder in the first degree, two charges of armed robbery, and one charge of unlawful possession of a firearm. The case was tried before Judge Barbara Rouse.

Trial of this case took place over eleven days. It began on Tuesday, March 19, 2002. That morning the trial judge first held a final trial conference to discuss jury empanelment and some motions in limine with defense counsel. The conference began at 10:10 a.m. and ended at 10:26. After a short recess jury empanelment started at 10:44 a.m.^[2] During that recess a venire or pool of thirty-five to forty prospective jurors was brought into the courtroom.^[3] Jury selection continued for the rest of the day, except for a lunch break from 1:10 p.m. to 2:25 p.m. After the first pool of prospective jurors was exhausted, a second venire was brought into the courtroom at 3:12 p.m. A jury of 15 jurors was empanelled by the end of the afternoon on that first day. After some short preliminary instructions the 15 jurors were excused for the day at 4:58 p.m.

The fifteen jurors were sworn in the next morning, on March 20, 2002. They were then taken on a view of certain locations in Brighton. The jury began hearing evidence that afternoon. The Commonwealth finished presenting evidence and rested on March 27. The trial judge then allowed Robinson's motion for a required finding of not guilty with respect to indictment 002, which was one of the two charges of armed robbery. The jury heard closing arguments, was instructed by the judge, and began deliberations on March 28. It rendered its verdict on April 3, 2002.

The jury found Robinson to be guilty of first degree murder, armed robbery, and illegal possession of a firearm. With respect to the murder charge, the jury found that Robinson was guilty of first degree based only on a theory of felony murder, both as a principal and as a joint venturer, and not on theories of acting with deliberate premeditation or with extreme atrocity or cruelty. With respect to the armed robbery and firearm possession charges, the jury found that Robinson was guilty as a joint venturer but not as a principal.^[4] The trial judge vacated the conviction for armed robbery and dismissed that indictment. She sentenced Robinson to life in prison without the possibility of parole on the first degree murder conviction and to a concurrent sentence of four to five years on the firearm conviction.

Robinson filed a timely notice of appeal, but that appeal has been stayed pending resolution of Robinson's belated motion for a new trial. Robinson's appeal was docketed in the Supreme Judicial Court on May 14, 2004, two years after the trial. In July 2007 the SJC asked defense counsel to report on the status of the appeal. Over the next seven years defense counsel submitted a series of twenty-eight status letters regarding her plans to file a motion for a new trial. The Commonwealth first expressed concern about the delay in prosecuting this appeal in January 2012, when it filed a motion asking the SJC to set a briefing schedule. It renewed that request three more times, in January 2013, January 2015, and August 2015. The SJC denied the last of these motions without prejudice and ordered defense counsel to file Robinson's motion for a new trial with the SJC rather than in the Superior Court. Defense counsel filed Robinson's new trial motion with the SJC on September 11, 2015. One week later the SJC ordered that the appellate proceedings be stayed pending disposition of the new trial motion. It remanded the case to the Suffolk Superior Court for disposition of that motion.

The Commonwealth filed its opposition to Robinson's motion for a new trial in March 2016. By that time the trial judge had retired. As a result, Robinson's new trial motion was assigned to a different judge. The new trial motion was originally assigned to Judge Frank Gaziano. After he was appointed to serve as an Associate Justice of the Supreme Judicial Court the motion was assigned to a different judge. The Court held a status conference on September 1, 2016.

The Court decided that it would need to hear evidence on the courtroom closure issue raised in the motion for a new trial, and that Robinson (and thus the Commonwealth) should be allowed to create an evidentiary record regarding adolescent brain development to support Robinson's anticipated appellate advocacy to the SJC on that issue. The evidentiary hearing had to be rescheduled several times at Robinson's request. The Court finally was able to hear the evidence on the courtroom closure issue on December 21, 2016. A further evidentiary hearing on the adolescent brain development issue is scheduled for February 16, 2017.

2. Facts Regarding Courtroom Closure

2.1. Evidentiary Record. The Court heard and received the following evidence regarding whether the public was barred from observing the selection of the jury in this case and, if so, regarding whether Mr. Robinson or his attorney waived any objection to such a courtroom closure.

The Court received and considered sworn affidavits by defendant Jason Robinson, Attorney Michael Doolin, Ms. Karen Pulido, and Mr. Robert John Tanzerious Anderson, all of which were submitted by counsel for Mr. Robison.^[5] It conducted an evidentiary hearing during which it heard oral testimony by Mr. Doolin, Ms. Pulido, and Mr. Anderson. The Commonwealth cross-examined these witnesses, but did not seek to cross-examine Robinson. The Commonwealth chose not to present any rebuttal evidence regarding whether the public was barred from the courtroom during jury selection in this case.^[6] The Commonwealth did submit copies of sworn affidavits by Attorneys Jonathan Shapiro and Steven Rappaport during the evidentiary hearing, and the Court has considered them;^[7] these two affidavits were executed in 2012 and the originals were apparently submitted in support of a motion for a new trial filed by the defendant in Commonwealth v. Joseph Bennett, Suffolk Sup. Ct. 9784CR10114, regarding a case that was tried in 1998. Defendant did not object to the submission or consideration of those affidavits, did not seek leave to cross-examine Mr. Shapiro or Mr. Rappaport, and did not seek leave to submit any rebuttal evidence. Finally, the Court also reviewed and considered the official transcript of the entire first day of trial, including the final trial conference as well as the empanelment process.

2.2. Findings of Fact. The Court makes the following findings based on this evidence and on reasonable inferences it has drawn from this evidence.

Mr. Doolin represented Mr. Robinson during the trial of this case and throughout the pretrial proceedings. Ms. Pulido is the mother of Robinson's co-defendant, Tanzerious Anderson. She was present for every day of this trial. Finally, Mr. Robert Anderson is the brother of the co-defendant. He was present for almost every day of the trial, but had to miss at least one day to go to work.

The Court finds that all three of these witnesses were credible. It credits their testimony to the extent it is consistent with the following findings of fact.

This case was tried in the old federal courthouse in Post Office Square, Boston, Massachusetts.

The public was completely barred from the courtroom for the entire first day of the trial on March 19, 2002. As a result,...