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Commonwealth v. Robinson

Supreme Judicial Court of Massachusetts, Suffolk

July 26, 2018

COMMONWEALTH
v.
JASON ROBINSON.

          Heard: January 10, 2018.

          Indictments found and returned in the Superior Court Department on September 27, 2000. The cases were tried before Barbara J. Rouse, J., and a motion for a new trial, filed on September 11, 2015, was heard by Kenneth W. Salinger, J.

          Paul B. Linn, Assistant District Attorney, for the Commonwealth.

          Rosemary Curran Scapicchio for the defendant.

          Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.

          LOWY, J.

         The issue before us is whether a defendant who failed to raise a timely objection to an improper court room closure at trial nevertheless preserved the claim by raising the issue for the first time in his motion for a new trial, thirteen years after his convictions. Otherwise stated, by failing to raise the claim at trial, did the defendant "procedurally waive"[1]his entitlement to the standard of review designated for preserved and meritorious claims of structural error, regardless of whether counsel and the defendant were subjectively unaware that the court room had been closed at trial? We answer the question in the affirmative: where a defendant fails to raise a timely objection to such a closure at trial, thus depriving the judge of the opportunity to either fix the error or analyze the closure under the standard set forth in Waller v. Georgia, 467 U.S. 39, 48 (1984), the defendant forfeits or procedurally waives review of his or her claim under the standard designated for preserved claims of structural error.[2] We emphasize that, although a defendant who fails to object to the closure at trial forfeits or procedurally waives the more favorable standard of review, the defendant does not waive the right to raise the claim. We review unpreserved court room closure claims to determine whether the improper closure created a substantial risk of a miscarriage of justice.[3] Because we conclude that the defendant's claim was not preserved, the grant of the defendant's motion for a new trial must be reversed.

         Background.

         In 2002, a jury in the Superior Court in Suffolk County convicted the defendant of murder in the first degree on a felony-murder theory, armed robbery, and unlawful possession of a firearm.[4] Approximately thirteen years after he had been convicted, the defendant filed his first motion for a new trial, claiming that his Sixth Amendment right to a public trial had been violated because the court room had been improperly closed during jury empanelment. The defendant did not claim that his counsel had been ineffective for failing to object to the closure at trial. This was the first time that the defendant raised the claim, as his trial counsel had not objected to the closure at any point during trial.

         Following an evidentiary hearing on the defendant's motion for a new trial, the motion judge (the trial judge having since retired) concluded that court officers had impermissibly closed the court room during jury empanelment and had excluded members of the public from entering the court room, including the defendant's family. The judge found that defense counsel did not object to the closure because neither counsel nor the defendant was aware that the court room had been closed during empanelment; the trial judge did not order the court room closure, nor was she aware of it. Defense counsel's focus on the jury selection process, according to the judge, was the reason counsel was unaware of the court room closure.

         Although counsel was aware that court rooms in the Commonwealth would occasionally close during empanelment to accommodate large venires, counsel was unaware whether this was a practice in Suffolk County court rooms at the time of the defendant's trial.[5] Similarly, counsel was unaware that the Sixth Amendment right to a public trial extended to jury empanelment. As a result, counsel stated, and the judge credited, that if he knew that the defendant's family members had been barred from the court room during jury selection, "he would have asked that they be admitted, but probably would not have made any other kind of objection."

         The judge determined that because the defendant and his counsel were unaware that the court room had been closed during empanelment, counsel's failure to contemporaneously object to the closure did not constitute a procedural waiver of his Sixth Amendment public trial claim. Instead, the judge concluded that the defendant preserved his claim by raising it in his first motion for a new trial, which was filed while his direct appeal was pending in this court. The motion judge did not examine whether the defendant and counsel, as a factual matter, had an opportunity to perceive that members of the public had been excluded from the court room or that only prospective jurors were present during empanelment, or whether they otherwise should have perceived the exclusion of the public from the court room during empanelment.[6] Construing the defendant's claim as a preserved structural error, the judge granted the defendant's motion for a new trial.

         Discussion.

         The Commonwealth contends that the judge erroneously concluded that the defendant's Sixth Amendment public trial claim had not been procedurally waived despite counsel's failure to lodge a contemporaneous objection at trial to the closed court room. We agree.

         We review the disposition of a motion for a new trial for "a significant error of law or other abuse of discretion." Commonwealth v. Forte, 469 Mass. 469, 488 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

         The Sixth Amendment right to a public trial extends to the jury selection process, and a violation of that right constitutes structural error. See Weaver v. Massachusetts, 137 S.Ct. 1899, 1910 (2017); Commonwealth v. Wall, 469 Mass. 652, 672 (2014); Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106 (2010). See also Presley v. Georgia, 558 U.S. 209, 213 (2010). It is similarly well settled that "[w]here a defendant timely raises and preserves a meritorious claim of structural error, this court 'will presume prejudice and reversal is automatic.'" Commonwealth v. Jackson, 471 Mass. 262, 268 (2015), cert, denied, 136 S.Ct. 1158 (2016), quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert, denied, 136 S.Ct. 317 (2015). See Weaver, supra ("in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to 'automatic reversal' regardless of the error's actual 'effect on the outcome'" [emphasis added; citation omitted]).

         Notwithstanding the importance of the right to a public trial, it, "like other structural rights, can be waived" (citation omitted). Cohen (No. 1), 456 Mass. at 105-106. "Where counsel fails to lodge a timely objection to the closure of the court room, the defendant's claim of error is deemed to be procedurally waived." LaChance, 469 Mass. at 857. See Commonwealth v. Alebord, 467 Mass. 106, 112, cert, denied, 134 S.Ct. 2830 (2014). A claim is procedurally waived regardless of whether counsel's failure to object to the closure was a tactical decision or "where the failure to object is inadvertent." Commonwealth v. Lang, 473 Mass. 1, 9 (2015), quoting Wall, 469 Mass. at 672. See Commonwealth v. Morganti, 467 Mass. 96, 102, cert, denied, 135 S.Ct. 356 (2014) (inadvertent procedural waiver where no tactical reason for counsel's failure to object). See also Commonwealth v. Vargas, 475 Mass. 338, 357 (2016) ("Such waiver need not be consented to by the defendant"). Indeed, a claim is procedurally waived "whenever a litigant fails to make a timely objection," including where counsel was unaware of the court room closure. Jackson, 471 Mass. at 269, quoting Wall, supra.

         In reviewing a defendant's claim that the court room was improperly closed, the threshold inquiry is whether that claim was properly preserved at the time of the alleged closure. This court recently observed that in Weaver, 137 S.Ct. at 1910-1912, "the United States Supreme Court distinguished sharply between preserved and unpreserved errors on appeal." Commonwealth v. Kolenovic, 478 Mass. 189, 203 (2017). Reaffirming the principle that a contemporaneous objection to an offending court room closure is required to preserve the claim, we held that the dispositive inquiry is "not whether the claim was made in the direct appeal or in the motion for new trial, but rather whether the court room closure issue was preserved at trial" (emphasis added) . Id. at 203 n.13. A contemporaneous objection is indispensable for purposes of preserving the claimed error on appeal because when the alleged error is raised contemporaneously with the closure, "the trial court can either order the court room opened or explain the reasons for keeping it closed." Weaver, supra at 1912.

         Furthermore, a contemporaneous objection to an improper court room closure also creates a record that can be directly reviewed by an appellate court without the need for collateral proceedings to develop the court room closure issue. See Weaver, 137 S.Ct. at 1912 (when appellate courts adjudicate preserved errors raised on direct appeal, "the systemic costs of remedying the error are diminished to some extent . . . because, if a new trial is ordered on direct review, there may be a reasonable chance that not too much time will have elapsed for witness memories still to be accurate and physical evidence not to be lost"). Absent a contemporaneous objection to the court room closure at trial, concluding that a claim is preserved "would tear the fabric of our well-established waiver jurisprudence . . . and would defeat the core purposes of the waiver doctrine: to protect society's interest in the finality of its judicial decisions, and to promote judicial efficiency." LaChance, 469 Mass. at 858, quoting Morganti, 467 Mass. at 102. See Commonwealthv.Randolph, 438 Mass. 290, 294 (2002). Our waiver doctrine prevents claims that ...


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