Opinion
No. 12–P–1078.
2013-04-5
COMMONWEALTH v. Ryan McNEE.
By the Court (VUONO, RUBIN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A witness testified at the defendant's request in his trial for assault and battery by means of a dangerous weapon, assault and battery, unarmed robbery, larceny from a person, and various firearms charges. After her testimony was completed, the defendant requested that the witness be permitted to remain in the court room. The judge denied the request. On appeal, the defendant contends that this decision constituted a court room closure in violation of the First, Sixth, and Fourteenth Amendments to the United States Constitution.
The judge did not close the court room. He ordered the continued sequestration of a witness at trial, an act that is “generally not considered to be a partial closure of the court room.” Commonwealth v. Buckman, 461 Mass. 24, 29 n. 2, 957 N.E.2d 1089 (2011). See Commonwealth v. Jones, 71 Mass.App.Ct. 568, 571, 884 N.E.2d 532 (2008).
“The decision to sequester witnesses lies within the discretion of the trial judge.” Commonwealth v. Ahart, 464 Mass. 437, 443, 983 N.E.2d 1203 (2013). See Commonwealth v. Thompson, 159 Mass. 56, 58, 33 N.E. 1111 (1893) (Holmes, J.); Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Mass.R.Crim.P. 21, 378 Mass. 892 (1979).
There is no suggestion in the record that the sequestration order took place during empanelment, closing arguments, deliberations, or the reading of the verdicts.
“ ‘The chief purpose’ of sequestration is to ‘prevent the commission of perjury.’ “ Commonwealth v. Ahart, supra, quoting from Commonwealth v. Gogan, 389 Mass. 255, 261, 449 N.E.2d 365 (1983), citing Commonwealth v. Jackson, 384 Mass. 572, 582, 428 N.E.2d 289 (1981). Sequestration also prevents witnesses from “ ‘tailoring’ their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid.” Geders v. United States, supra. See Commonwealth v. Bianco, 388 Mass. 358, 369, 446 N.E.2d 1041 (1983), overruled on other grounds, Commonwealth v. Zanetti, 454 Mass. 449, 910 N.E.2d 869 (2009); Reporters Notes to Mass.R.Crim.P. 21, Mass. Ann. Laws Court Rules, Rules of Criminal Procedure, at 1593 (LexisNexis 2012–2013). For these reasons, in any sequestration order, parties and their counsel also retain an “obligation to refrain from speaking to identified witnesses, including their clients, about the substance of the proceedings until they ha [ve] testified.” Commonwealth v. Santana, 438 Mass. 1009, 1009, 780 N.E.2d 46 (2002). Sequestration may therefore be continued after a witness has testified to guard against the possibility that the witness is recalled. See 6 Wigmore, Evidence § 1840, at 471 (Chadbourn rev. ed.1976). See generally Geders v. United States, supra. The rule has been in place for centuries, Wigmore, supra, and with good reason. A witness who has remained in the court room may, unexpectedly, be called or recalled. See Commonwealth v. Crowley, 168 Mass. 121, 127–128, 46 N.E. 415 (1897) (testimony of witness whom defense had not intended to use at trial and who therefore remained in court room was barred); Commonwealth v. Jones, supra (exclusion of potential witness who parties anticipated they would not likely call). The defendant maintains that the probability of being recalled in this case was virtually nil, and that the judge therefore so abused his discretion as to effectively close the court room. Trial judges cannot be required to predicate their sequestration orders on prognostications of the future. The judge acted well within his discretion in ordering the continued sequestration of the witness.
The Commonwealth concedes that the defendant's conviction for larceny from a person, G.L. c. 266, § 30(1), is a lesser included offense of unarmed robbery, G.L. c. 265, § 19( b ). The convictions are therefore duplicative and barred by double jeopardy. See Commonwealth v. Negron, 462 Mass. 102, 103–104, 967 N.E.2d 99 (2012). Accordingly, the judgment for larceny from a person is vacated, the verdict on that charge is set aside, and that indictment is dismissed. The remaining convictions are affirmed; however, we vacate the sentences on those convictions and remand for resentencing.
So ordered.