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.
B. Linn, Assistant District Attorney, for the Commonwealth.
Rosemary Curran Scapicchio for the defendant.
Present: Gants, C.J., Lowy, Budd, Cypher, & Kafker, JJ.
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"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. 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. 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.
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. 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
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
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. 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
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. Construing the defendant's claim as a
preserved structural error, the judge granted the
defendant's motion for a new trial.
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.
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).
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;
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.
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.
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
Mass. 290, 294 (2002). Our waiver doctrine prevents claims