Opinion
13-P-902
09-08-2015
COMMONWEALTH v. WAYNE JACKSON.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This is an appeal by the defendant, Wayne Jackson, from the denial of his second motion for a new trial, labeled supplemental motion for a new trial. He asserts that his Sixth Amendment right under the United States Constitution to a public trial was violated when the courtroom was closed during individual jury voir dire. For the reasons that follow, we affirm the denial of his second motion for a new trial.
Background. Prior to the defendant's trial for rape of a child and indecent assault and battery of a child under fourteen, he filed a motion for individual voir dire of potential members of the jury. Some portion of the voir dire was conducted in open court. At some point, the prospective jurors were brought as a group to another room and then were invited to return to the courtroom one by one to be asked a series of sensitive questions regarding their personal experiences with sexual assault. The record contains affidavits from Jackson's family and friends reporting that they were also asked to leave the courtroom at this point, an action he alleges violated his right to a public trial. He now raises this Sixth Amendment argument, in addition to the claim that his trial and direct appellate counsel were ineffective in failing to object to and raise on appeal the courtroom closure, but did not do so in either his direct appeal or his first motion for a new trial.
On November 4, 1994, the defendant was convicted of eight counts of rape and abuse of a child under sixteen and four counts of indecent assault and battery of a child under fourteen. He was sentenced to twenty-five to forty years in prison for each of the rape convictions, and nine to ten years for each of the indecent assault and battery convictions, with all sentences running concurrently. This court affirmed the defendant's convictions four years after the trial in an unpublished decision, and the Supreme Judicial Court denied his request for further review. Commonwealth v. Jackson, 44 Mass. App. Ct. 1125 (1998), rev. denied, 428 Mass. 1101 (1998). This court also affirmed the order denying the defendant's first motion for a new trial, and the Supreme Judicial Court again denied further appellate review. Commonwealth v. Jackson, 84 Mass. App. Ct. 1116 (2013), rev. denied, 466 Mass. 1112 (2013). The underlying facts that led to the charges against the defendant are described in these decisions and need not be repeated here.
Discussion. It is significant that the defendant did not raise the closed courtroom issue in either his direct appeal or his first motion for a new trial and only does so now in his second motion for a new trial, filed almost eighteen years after his conviction. When defense counsel does not make a timely objection to the closure of the courtroom, "the defendant's claim of error is deemed to be procedurally waived." Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), citing Commonwealth v. Morganti, 467 Mass. 96, 102 (2014). In such a case, despite the constitutional and structural nature of the error, there is no presumption of prejudice. LaChance, supra. Instead, the Supreme Judicial Court has directed us to apply the substantial risk of a miscarriage of justice standard that requires the defendant to demonstrate that he suffered actual prejudice as a result of the courtroom closure. Ibid. The defendant fares no better when the structural error is the result of ineffective assistance of counsel. In LaChance the court held that "[t]o prevail on a claim of ineffective assistance of counsel, . . . a defendant also must show that counsel's deficiency resulted in prejudice, which, in the circumstances of counsel's failure to object to an error at trial, is essentially the same as the substantial risk standard we apply to unpreserved errors." Id. at 858 (citation omitted).
The LaChance and Morganti decisions were released after the briefs in this case were filed. However, both the defendant and the Commonwealth addressed their significance during oral argument.
The defendant has failed to demonstrate that the exclusion of his friends and family members from the courtroom during a portion of the jury voir dire caused him to suffer any prejudice. See id. at 859, quoting from Strickland v. Washington, 466 U.S. 668, 691, 692 (1984) ("While a jury empanelment closed to spectators (other than jurors) and the defendant's family may be a structural error, it will rarely have an 'effect on the judgment,' or undermine our 'reliance on the outcome of the proceeding'"). Although the defendant's counsel ably argued that the case should be remanded to give the defendant an opportunity to demonstrate that there was prejudice, there are no facts in the record that suggest such a showing could be made. Speculation about the impact on the sensibilities of prospective jurors who, but for the closure order, would have seen members of the defendant's family in the courtroom during the individual voir dire portion of the jury selection process is not a substitute for a factual foundation. Accordingly, because there is no evidence that the defendant suffered any prejudice and no prospect for such a showing if the case was remanded, the denial of his supplemental motion for a new trial must be affirmed.
Order dated May 20, 2013, denying supplemental motion for new trial affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: September 8, 2015.