February 3, 2016.
Indictment found and returned in the Superior Court
Department on June 1, 2001.
case was tried before Linda E. Giles, J., and
motions for a new trial, filed on September 30, 2010, and
September 3, 2013, respectively, were heard by her.
B. Demissie for the defendant.
K. Anderson, Assistant District Attorney, for the
Kafker, C.J., Rubin, & Agnes, JJ. Agnes, J. (concurring).
is the rare case in which a court room closure was ordered
over the defendant's objection during jury empanelment,
[51 N.E.3d 497] subsequent to the decision of the United
States Court of Appeals for the First Circuit in Owens v.
United States, 483 F.3d 48 (1st Cir. 2007). That case
and the subsequent cases from the Supreme Judicial Court,
see, e.g., Commonwealth v. Cohen (No. 1), 456 Mass.
94, 921 N.E.2d 906 (2010), and from the United States Supreme
Court, see Presley v. Georgia, 558 U.S. 209, 130
S.Ct. 721, 175 L.Ed.2d 675 (2010), confirm that a
defendant's right to a public trial under the Sixth
Amendment to the United States Constitution includes a right
to have the public present during jury empanelment.
cases and those of the Supreme Judicial Court have now made
clear, prior to Owens, and notwithstanding
Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81
L.Ed.2d 31 (1984), some court rooms around this Commonwealth
routinely were closed during jury empanelment. See, e.g.,
Cohen (No. 1), supra at 102 (Superior Court
in Norfolk County); Commonwealth v. Lavoie, 464
Mass. 83, 84-85, 981 N.E.2d 192 (2013) (Superior Court in
Middlesex County); Commonwealth v. Morganti, 467
Mass. 96, 98, 4 N.E.3d 241 (2014) (Superior Court in Plymouth
County); Commonwealth v. Alebord, 467 Mass. 106,
109, 4 N.E.3d 248 (2014) (Superior Court in Plymouth County).
In many such cases, because of the long-standing culture of
these court houses, no contemporaneous objection was made to
these closures. In a wide range of circumstances, under
subsequent Supreme Judicial Court case law, those objections
have been held waived. See, e.g., Lavoie, supra at
88-89; Morganti, supra at 101-102; Alebord,
supra at 112-113.
case, however, the jury venire was brought into the court
room and, over the defendant's objections, the court room
was closed. In this direct appeal from his conviction of
voluntary manslaughter, the defendant argues that closure was
error, and that he is entitled to a new trial.
jury venire comprised ninety individuals. There were
approximately eighty seats in the court room. The judge
allowed in the entire venire and required ten of its members
to stand. The defendant objected and asked to have his family
seated but the judge, who was familiar with Owens,
found that " [t]here is no possible seating for them.
For safety reasons, we really don't want anybody to
stand, but of necessity, we're making a few of the venire
people stand. And, also, we cannot have them within the
venire for fear of jury contamination. But if seats become
available, ... we can bring in your family members."
court room was closed and the defendant's family members
were excluded. They were not seated one at a time when
individual seats became open. Nor were they seated as a group
as soon as there was sufficient space in the court room to
seat all the members of the defendant's family, allowing
some space between those spectators and the prospective
jurors. Only after the intro-
duction of the attorneys, the judge's summary of the
case, the general questioning of the venire, and the
individual voir dire of thirty-seven prospective
jurors, did the judge instruct the [51 N.E.3d
498] court officer to seat the defendant's family
members. Three more jurors were subject to individual voir
dire before the judge noted that the defendant's family
members had been seated. They were then present for the
individual voir dire of twenty jurors. Thus, the
defendant's family members missed the individual voir
dire of two-thirds of the potential jurors. ...