This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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 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, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In an opinion dated June 23, 2014, we affirmed an order of a judge of the Superior Court that allowed the defendant's motion for a new trial on the basis that the defendant's Sixth Amendment right to a public trial was violated when the court room was closed during general voir dire., The Commonwealth filed an application for further appellate review. In an order dated December 23, 2014, the Supreme Judicial Court denied the Commonwealth's application without prejudice and remanded the case to this court for reconsideration in light of Commonwealth v. LaChance, 469 Mass. 854, 17 N.E.3d 1101 (2014). After reconsideration, we have vacated our prior opinion. This memorandum and order follows that action. We now vacate the order allowing the defendant's motion for new trial, and remand to the Superior Court for further proceedings consistent with this decision.
In LaChance, the Supreme Judicial Court reiterated and clarified that, although the violation of a defendant's right to a public trial constitutes structural error, " even structural error 'is subject to the doctrine of waiver.'" Id. at 857, quoting from Commonwealth v. Morganti, 467 Mass. 96, 101-102, 4 N.E.3d 241, cert. denied, 135 S.Ct. 356 (2014). As briefly touched upon in LaChance, waiver can take two forms: the defendant may either waive his Sixth Amendment right to a public trial by intentionally relinquishing that right, or he may procedurally waive the right by counsel's failure to object. See LaChance at 857. See also id. at 860-861 & n.1 (Duffly, J., dissenting).
In issuing our prior decision, we did not have occasion to consider whether the defendant intentionally waived his Sixth Amendment right, or whether he procedurally waived it by failing to object to the closure during general voir dire, because the Commonwealth had not argued waiver on appeal; rather, the Commonwealth only argued that the closure was de minimis, an argument that we rejected. Given the Supreme Judicial Court's reconsideration order, and the parties' supplemental memoranda submitted in response thereto, we now have occasion to address that issue. However, in consideration of the present state of the record, we are compelled to remand for further findings and rulings on the issue of whether the defendant waived his Sixth Amendment right.
We reach this result for two reasons. First, the motion judge analyzed the issue of waiver under case law that can no longer be considered fully or completely correct. The judge reasoned that waiver of the Sixth Amendment right required the defendant's knowing waiver. That is not the case, following LaChance, Morganti, and Commonwealth v. Alebord, 467 Mass. 106, 4 N.E.3d 248 (2014) (all of these cases indicate that defendant's counsel can waive a defendant's Sixth Amendment right without the defendant's knowledge or consent, whether for tactical reasons or due to counsel's ignorance of the law).
Second, it is impossible to determine on the record before us whether the defendant's trial counsel, who had thirty-one years of experience as an attorney and had participated in more than 1,000 trials, knew or should have known that the customary practice in Norfolk Superior Court was to close the court room during general voir dire. It is important to note that the 2006 trial was the defendant's second such trial at which counsel represented the defendant in Norfolk County, and a long-time court officer in that county had testified during the motion proceedings that the court room was routinely closed to the public during general voir dire, regardless of the size of the venire. Although trial counsel testified at the evidentiary hearing that he had " no idea" until " well after the trial" that the defendant's family members had been excluded from the court room during general voir dire, counsel was not asked and therefore did not indicate whether he knew of that court house's custom and practice to close the court room during jury empanelments. If counsel acknowledges that he was aware of this customary practice, it could be said that he had actual or constructive knowledge that the court room was closed during the general voir dire at issue here, despite his lack of specific knowledge concerning the exclusion of the defendant's family members. This is an issue best reserved for the fact finder -- here, the motion judge.
The motion judge may consider the issues discussed, supra. In addition, even if the motion judge determines that the defendant procedurally waived the right, the issue may still be considered under the substantial risk of a miscarriage of justice standard. See LaChance, 469 Mass. at 857. Finally, the motion judge may consider whether the Commonwealth has at any point in the proceedings argued that the defendant procedurally waived his right to a public trial and, to the extent that the judge determines that the Commonwealth failed to so argue, consider whether such failure constitutes waiver of the argument.
Therefore, we vacate the order allowing the motion for new trial, and remand for further proceedings consistent with this decision. On remand, the judge may consider whether further evidentiary proceedings are necessary to address the issues raised.
Fecteau, Brown & Agnes, JJ.