Commonwealth v. Robinson

102 N.E.3d 357, 480 Mass. 146
CourtMassachusetts Supreme Judicial Court
DecidedJuly 26, 2018
DocketSJC-09265
StatusPublished
Cited by13 cases

This text of 102 N.E.3d 357 (Commonwealth v. Robinson) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Robinson, 102 N.E.3d 357, 480 Mass. 146 (Mass. 2018).

Opinions

LOWY, J.

**146The 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 **147claims of structural *359error, 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, 104 S.Ct. 2210, 81 L.Ed.2d 31 (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 **148that 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 *360not 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 **149result, 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, 14 N.E.3d 900 (2014), quoting Commonwealth v. Grace, 397 Mass. 303, 307, 491 N.E.2d 246 (1986).

The Sixth Amendment right to a public trial extends to the jury selection *361process, and a violation of that right constitutes structural error. See Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) ; Commonwealth v. Wall, 469 Mass. 652, 672,

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Bluebook (online)
102 N.E.3d 357, 480 Mass. 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-robinson-mass-2018.