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Commonwealth v. Lopes

Appeals Court of Massachusetts, Suffolk

June 15, 2016

Commonwealth
v.
Nardo Lopes

         Argued February 3, 2016.

          Indictment found and returned in the Superior Court Department on June 1, 2001.

         The 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.

          Derege B. Demissie for the defendant.

          Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

         Present: Kafker, C.J., Rubin, & Agnes, JJ. Agnes, J. (concurring).

          OPINION

          Rubin, J.

          This 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.

Page 561

          As our 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.

         In this 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.[1]

         The 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."

         The 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-

Page 562

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,[2] did the judge instruct the [51 N.E.3d 498] court officer to seat the defendant's family members. Three more jurors[3] 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.[4] Thus, the defendant's family members missed the individual voir dire of two-thirds of the potential jurors.[5] ...


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