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Morganti v. Ryan

United States District Court, D. Massachusetts

October 6, 2016

ROBERT J. MORGANTI, JR., Petitioner,
v.
KELLY RYAN, Respondent.

          MEMORANDUM & ORDER

          Indira Talwani United States District Judge

         I. Introduction

         Petitioner Robert J. Morganti, Jr. has filed a Petition for Writ of Habeas Corpus [#1]. Petitioner contends that his conviction and incarceration for murder violate federal law because (1) he was denied his right to a public trial under the Sixth Amendment when his trial counsel decided not to object to the closure of the courtroom for two days during jury voir dire proceedings without Petitioner's knowing assent, (2) he was denied his right to effective assistance of counsel when his trial counsel did not object to the courtroom closure, and (3) he was not allowed to attend a jury view. For the following reasons, the petition is DENIED.

         II. Procedural Background

         On May 29, 1998, Petitioner was indicted by a Plymouth County grand jury for the murder in the first degree of Anthony LoConte. Supp. Answer (“S.A.”) Vol. I. 4 [#13]. A jury trial commenced on June 3, 2003 (Giles, J., presiding), and, on June 13, 2003, the jury found Petitioner guilty of first-degree murder by deliberate premeditation and by extreme atrocity and cruelty. S.A. Vol. I 6-7.

         On direct appeal to the Massachusetts Supreme Judicial Court (“SJC”), Petitioner raised the following claims: 1) the trial court should have suppressed his statements to police; 2) the trial court improperly excluded Petitioner from the jury view; 3) the prosecutor's closing argument was improper; 4) the trial court improperly prevented a witness from consulting with his counsel regarding his Fifth Amendment right against self-incrimination, rendering his testimony unreliable; 5) the jury should have been instructed that their verdict must be unanimous as to the factors under Commonwealth v. Cunneen, 449 N.E.2d 658, 665 (Mass. 1983); and 6) the conviction should be vacated under G.L. c. 278, § 33E.3 (providing for vacating a verdict if the verdict is against the weight of the evidence, because of newly discovered evidence, or if justice so requires). S.A. Vol. I 17-78. The SJC affirmed Petitioner's conviction on November 25, 2009. Commonwealth v. Morganti, 917 N.E.2d 191 (Mass. 2009); S.A. Vol. I 159-171.

         On November 19, 2010, Petitioner filed a motion for new trial alleging a violation of the right to a public trial. S.A. Vol. I 8, 304-392. Following an evidentiary hearing, Judge Giles denied the motion on December 15, 2011. S.A. Vol. I 9, 281-289.[1] The SJC allowed Petitioner's application for leave to appeal on August 8, 2012. S.A. Vol. I 591-593. The SJC affirmed the denial of Petitioner's motion for new trial on February 12, 2014. Commonwealth v. Morganti, 4 N.E.3d 241 (Mass. 2014); S.A. Vol. I 765-771. The SJC found that Petitioner “waived his right to a public trial where his experienced trial counsel was aware of the [courtroom] closure and did not object.” Id. at 243; S.A. Vol. I 767. The SJC further found that counsel's failure to raise such an objection did not constitute ineffective assistance of counsel. Id. Petitioner filed the instant Petition for Writ of Habeas Corpus [#1] on April 16, 2014.

         III. Factual Background

         The facts are described as they were found by the SJC. The court must accept the state court findings of fact unless Petitioner demonstrates “by clear and convincing evidence” that “they are in error.” McCambridge v. Hall, 303 F.3d 24, 26 (1st Cir. 2002) (en banc) (citing 28 U.S.C. § 2254(e)(1)); see also Lynch v. Ficco, 438 F.3d 35, 39 (1st Cir. 2006); Smiley v. Maloney, 422 F.3d 17, 19 n. 1 (1st Cir. 2005).

         The SJC found the following facts related to the public trial and ineffective assistance of counsel claims:

During jury empanelment, the court officers closed the court room to all members of the public, as was the custom and practice at the time in that court. Among those excluded were Beverly Cocomile, Theresa Andrade, and Richard Cocomile, the defendant's mother, sister, and stepfather, respectively. The defendant did not object to the courtroom closure . . . .
After an evidentiary hearing, the motion judge, who was also the trial judge, found that the court room had been closed for the seventy-nine minutes that it took to empanel the jury . . . .
Pursuant to the defendant's motion for new trial, the trial judge held an extensive evidentiary hearing in order to determine whether the court room was closed during the jury empanelment in this case . . . .
The defendant first presented testimony from Beverly, Andrade, and Richard. All three testified that they were present in the court room on the morning of June 3, 2003, while the judge acted on the parties' motions in limine. Unbeknownst to the judge, at 11:02A.M., before the jury venire was brought into the court room, the three were asked by the court officers to leave the court room during the empanelment process.
With the court room cleared, the prospective jurors were brought in, where, ordinarily, they took up all the available seats. The process of jury empanelment continued by way of individual jury questioning at sidebar. Sixteen jurors were empanelled and the court room was reopened seventy-nine minutes after it was closed.
Attorney Kevin Reddington, the defendant's trial counsel, testified that he was aware that Beverly and Andrade were not present in the court room during the jury empanelment process, despite the fact that they had been present for every court hearing up until that point.[2] He attributed their absence to the long-standing practice in Brockton Superior Court of closing the court room during jury empanelment.
Reddington, an established and respected trial attorney, went on to testify that he was aware of this practice, as, at the time of trial, he had seen it repeatedly during his twenty-eight years of practicing criminal law in the Brockton Superior Court.[3]According to Reddington, “[t]he practice, custom and procedure on a routine basis was that when jurors were brought into the court room, due to the size and configuration of the court room, anyone that was not directly connected with the case, in other words, the defendant, obviously, and trial counsel for the government or for the defense, were told to leave and stand in the hallway during the jury selection process. Once the jurors were selected, the individuals were, of course, invited back in.”
Although Reddington was aware of this practice, he had not objected to it at any point during his years of trying cases in the Brockton Superior Court.[4] While he was similarly aware of his clients' Sixth Amendment right to a public trial, he had never considered that the right might extend to jury empanelment. He understood that the court room was small, and that all of the seating was taken by the jury venire. Although he testified that he had no tactical reasons not to object, he explained that in acquiescing to closing the court room during jury empanelment, “we all, in our efforts to have an orderly empanelment process, and due again to the small configuration of the courtrooms, just went with the flow.”
The defendant also offered testimony from two other experienced criminal defense attorneys who practiced extensively in the Brockton Superior Court but had never objected to the closures: Attorney John Darrell and Attorney Joseph Krowski. Darrell, the attorney in charge of the Plymouth County office of the Committee for Public Counsel Services (CPCS) during the time in question, testified that the closure of the court room during empanelment was a “culture, ”[5] and that he and other defense attorneys were a part of the “culture.” He routinely told family members of his clients that they could not stay in the court room during empanelment, never objected to their exclusion in any trial, and made no effort to change the practice.
Krowski agreed that there was an established practice of closures during jury empanelment at the Brockton Superior Court throughout his extensive legal career.[6]He reiterated that the closures were due to the small size of the court room, and the need to fill all available seats with prospective jurors. While he was fully aware of the Sixth Amendment right to a public trial, he too testified that he was not aware that the right extended to jury empanelment until 2007, when he spoke with counsel from the Cohen trial, at which objections to court room closure during jury empanelment were raised. See Cohen (No. 1), 456 Mass. at 118, 921 N.E.2d 906. Krowski testified that he had never objected to the closure of the court room in the Brockton Superior Court prior to 2007, and stated, “I just thought that [closure during empanelment] was protocol. I had seen it for so many years, exclusion of the public from jury selection, that it just didn't occur to me that it presented a problem.”
[The trial judge] noted that the court room was closed for only seventy-nine minutes of a ten-day trial, that the voir dire activity at sidebar would have been inaudible to spectators, and that the defendant's lack of objection suggested that he deemed the proceedings to be inconsequential.

Morganti, 4 N.E.3d at 242-245; S.A. Vol. I 767-768.

         IV. Stand ...


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