Opinion
No. 12–P–932.
2013-07-22
COMMONWEALTH v. Phillip BOURGEOIS.
By the Court (BERRY, KATZMANN & RUBIN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A Superior Court jury convicted the defendant of one count of rape of a child and five counts of indecent assault and battery on a child. In 2007, this court reversed an order of the Superior Court judge granting the defendant a new trial. Commonwealth v. Bourgeois, 68 Mass.App.Ct. 433 (2007). In 2008, we affirmed the defendant's convictions in an unpublished decision pursuant to rule 1:28. Commonwealth v. Bourgeois, 72 Mass.App.Ct. 1120 (2008). The defendant now appeals from the denial of a second motion for new trial, filed in 2011, asserting that the trial judge's closure of the courtroom during jury selection violated his right to a public trial under the Sixth Amendment to the United States Constitution. We affirm.
This direct appeal was stayed while the Commonwealth appealed the Superior Court order allowing the motion for a new trial.
Discussion. The defendant has established, as is his burden, that the trial judge's actions effectively excluded the public from the courtroom during the day-long jury selection phase of the trial. See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 107 (2010) (defendant's burden to establish that courtroom was closed). Although the Commonwealth argues that the trial judge never expressly ordered spectators out of the courtroom, this is immaterial, as “a courtroom may be closed in the constitutional sense without an express judicial order.” Id. at 108. We further conclude that the closure was constitutionally improper, as the trial judge failed to conduct a hearing on the matter or otherwise comply with even a single requirement laid out in Waller v. Georgia, 467 U.S. 39, 48 (1984) ( Waller ). The remaining question is whether the courtroom closure necessitates a new trial or, to the contrary, whether the defendant waived his public trial claim by failing to raise it either at trial, in his direct appeal, or in his first motion for a new trial. For the reasons that follow, we conclude that the defendant's claim is indeed waived. We consider “whether the defendant raised this issue in a timely manner because ‘the right to a public trial, like other structural rights, can be waived.’ “ Commonwealth v. Dyer, 460 Mass. 728, 735 (2011), quoting from Commonwealth v. Cohen (No. 1), supra at 105–106. Although the defendant never expressly acquiesced to the courtroom closure, the Supreme Judicial Court recently determined that “counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision as part of counsel's trial strategy.” Commonwealth v. Lavoie, 464 Mass. 83, 88–89 (2013). Thus, by failing to object to the temporary courtroom closure, the defendant, by and through defense counsel, waived his right to a public trial. See ibid. See also Commonwealth v. Cohen (No. 1), supra at 118 n.35 (“Failure of a defendant or his counsel to raise an objection when first made aware of an alleged public trial right violation is, at the very least, a strong indication of waiver”).
In order to justify a courtroom closure, four procedural requirements must be satisfied: “[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.” Commonwealth v. Martin, 417 Mass. 187, 194 (1994), quoting from Waller v. Georgia, supra.
We note that there is a second ground upon which waiver can be established. Here, the defendant also failed to raise the public trial issue either in his direct appeal or in his first motion for new trial. “A defendant generally may not raise any ground in a motion for a new trial that could have been, but was not, raised at trial or on direct appeal.” Commonwealth v. Chase, 433 Mass. 293, 297 (2001). See Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001) (“All grounds for relief claimed ... shall be raised by the defendant in the original or amended motion”). “[E]ven when a claim is one of constitutional dimension, a defendant who has had a fair opportunity to raise it may not ‘belatedly invoke that right to reopen a proceeding that has already run its course.’ “ Ibid., quoting from Commonwealth v. Amirault, 424 Mass. 618, 639 (1997).
The defendant counters that he had no prior opportunity to raise the claim because the relevant public trial case law was not sufficiently developed at the time of his direct appeal or first postconviction motion. We disagree. The defendant filed his first motion for a new trial in 2003 and his direct appeal in 2004. During that timeframe, the notion that a defendant's right to a public trial extends to pretrial proceedings was not novel. See, e.g., Waller v. Georgia, supra (public trial right applies to pretrial suppression hearing); Commonwealth v. Gordon, 422 Mass. 816, 823 (1996) (“The guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors concerning their qualifications to serve”). “The doctrine of waiver ... is not so narrow as to require a decision that is squarely on point before a claim is deemed sufficient. The test is whether ‘the theory on which [a defendant's] argument is premised has been sufficiently developed [at the time of the defendant's trial and prior appeal or appeals] to put him on notice that the issue is a live issue.’ “ Commonwealth v. Chase, supra at 298 (internal citations omitted), quoting from Commonwealth v. Amirault, supra at 639.
The trial record indicates that defense counsel's acquiescence to the temporary closure was a conscious tactical decision prompted by a practical concern, viz., lack of space for prospective jurors. After taking measure of the space limitations in the courtroom, defense counsel stated on the record: “Your honor, I have informed the group that they will probably need to wait out in the hall until after the jury has been selected. So I think they can leave at this time.”
The judge raised the issue in open court, stating: “I see a lot of folks in the courtroom here. I don't know who these folks are, but there is a sequestration order. Just for, I think, convenience sake, I don't know if we can accommodate them during jury selection. Because I assume we're going to fill up all there and along here.”
“This tactical decision is in defense counsel's purview to manage the conduct of the trial.” Commonwealth v. Lavoie, supra at 89. We must determine, then, whether defense counsel's decision constitutes constitutionally ineffective assistance. See generally Commonwealth v. Saferian, 366 Mass. 89 (1974). “An attorney's tactical decision amounts to ineffective assistance of counsel only if it was manifestly unreasonable when made.” Commonwealth v. Martin, 427 Mass. 816, 822 (1998). “This is a relatively high burden: ‘Only strategy and tactics which lawyers of ordinary training and skill in the criminal law would not consider competent are manifestly unreasonable.’ “ Commonwealth v. Burgos, 462 Mass. 53, 69 (2012), quoting from Commonwealth v. Zagrodny, 443 Mass. 93, 98 (2004).
Several factors guide our determination that this decision, under the circumstances, was not manifestly unreasonable. First, we consider the practical importance of providing space for prospective jurors, which, when the proper Waller protocol is followed, “may well provide a valid reason for the exclusion of the public during at least some part of jury empanelment proceedings.” Commonwealth v. Cohen (No. 1), supra at 114. Second, the closure was intended only to be temporary, as defense counsel made it clear that the exodus would last only “until after the jury has been selected.” Finally, we note that the defendant at least impliedly acquiesced in the closure. See Commonwealth v. Myers, 82 Mass.App.Ct. 172, 181 (2012), quoting from Cruzado v. Puerto Rico, 210 F.2d 789, 791 (1st Cir.1954) (“[I]t is usually fair to assume that [the defendant] approves of, or at least acquiesces in, the decisions taken in open court in his behalf by his counsel”).
Having concluded that defense counsel's tactical choice was not manifestly unreasonable, it follows that his conduct did not fall “below that which might be expected from an ordinary fallible lawyer.” Commonwealth v. Saferian, supra at 96. See Commonwealth v. Lavoie, supra at 91. Accordingly, “we need not reach the second part of the test for ineffective assistance of counsel, i.e., whether his conduct prejudiced the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ “ Commonwealth v. Lavoie, supra at 91 n.13, quoting from Commonwealth v. Saferian, supra at 96. Defense counsel's representation was not ineffective.
Given our conclusion that defense counsel did not render ineffective assistance, the defendant's argument that his original appellate counsel was ineffective for declining to raise this alleged error also fails. See Breese v. Commonwealth, 415 Mass. 249, 252 (1993).
Order dated October 26, 2011, denying motion for new trial affirmed.