Opinion
No. 11–P–1328.
2012-06-28
COMMONWEALTH v. Philip SHAHEEN.
By the Court (SIKORA, CARHART & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from the denial of his motion for a new trial upon the ground that the courtroom was closed in violation of his right to a public trial under the Sixth Amendment to the United States Constitution. He argues that the judge's refusal to hold an evidentiary hearing on the motion was an abuse of discretion. For the following reasons, we agree, and remand for an evidentiary hearing to determine whether the courtroom was closed.
Background. In February of 2004, a Norfolk Superior Court jury convicted the defendant, Philip Shaheen, of (1) trafficking in a class B substance (opium-based oxycodone), G.L. c. 94C, § 32E( c )(4); and (2) possession of a class D substance (marijuana), G.L. c. 94C, § 34. On the trafficking charge, the judge sentenced Shaheen to fifteen years to fifteen years and one day in State prison. The judge placed the conviction of possession of marijuana on file.
The Appeals Court affirmed the conviction in a memorandum and order pursuant to Rule 1:28. Commonwealth v. Shaheen, 64 Mass.App.Ct. 1111 (2005). The Supreme Judicial Court denied an application for further appellate review at 445 Mass. 1107 (2005). Shaheen has been serving his sentence.
In July of 2010, he brought a motion for a new trial upon the ground of a violation of his Sixth Amendment right to a public trial by reason of the exclusion of members of the public, especially members of his family, from the courtroom during the jury empanelment process.
In support of the motion, Shaheen's trial counsel, Raymond Buso, submitted an affidavit. Attorney Buso documented his “very specific memories” of the trial and his awareness of the closure of the courtroom during empanelment. Buso's recollections include: (1) his conversations with the defendant and his family about the closure; (2) his knowledge of a sign on the door regarding the closure; (3) his conversation with the court officers and court who informed him that closure was common practice; and (4) his belief that he made an objection about the closure. His memory of an objection to the closure is supported by a note which he found in his trial file stating, “objection/court closed.” He cannot explain why the trial record fails to include any reference to his objection.
In further support of the motion, Shaheen's sister (Lynn Allen) and mother (Gladys Shaheen) also submitted affidavits. His sister and mother recall that, during empanelment, court officers had required them to leave the courtroom, had put a sign on the door excluding the public, and had rejected their efforts to enter the courtroom during jury selection.
In opposition to the defendant's motion, the assistant attorneys general who had tried the case submitted affidavits. Attorney Eileen O'Brien, who was the lead prosecutor, specifically denied that Attorney Buso objected “either on or off the record ... that anyone had been denied entrance to the courtroom.” Attorney Robert Fisher stated that “[n]o person, including Attorney Raymond Buso, mentioned before me that the courtroom was closed or that anyone had been denied entrance.”
In December, 2010, the trial-and-motion judge denied the motion without a hearing, stating: “After review and consideration of the defendant's Motion for Post Conviction Relief, the motion is denied without a hearing. No substantial issue is raised by the motion or affidavits. Rule 30(c)(3).” Shaheen has timely appealed.
Analysis. 1. Standard of review. This court reviews a ruling upon a motion for a new trial under Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001), “only to determine whether there has been a significant error of law or other abuse of discretion.” Commonwealth v. Acevedo, 446 Mass. 435, 441 (2006), quoting from Commonwealth v. Grace, 397 Mass. 303, 307 (1986). When the motion judge was also the trial judge, the ruling receives special appellate deference. Commonwealth v. Grace, supra. That special deference extends “to the sound discretion of the trial judge on whether a motion for a new trial requires an evidentiary hearing.” Commonwealth v. DeVincent, 421 Mass. 64, 67 (1995). See Commonwealth v. Arriaga, 438 Mass. 556, 570 (2003). The dispositive question is “whether the motion or affidavits have raised a ‘substantial issue’ that would require an evidentiary hearing.” Commonwealth v. DeVincent, supra. Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004).
To determine whether an evidentiary hearing is necessary, the judge must look at (1) the importance of the issue or right submitted by the applicant; and (2) the credibility of the information offered by the applicant. See id. at 348–349 (“If the theory of the motion, as presented by the papers, is not credible or not persuasive, holding an evidentiary hearing to have the witnesses repeat the same evidence [and be subject to the prosecutor's cross-examination further highlighting the weaknesses in that evidence] will accomplish nothing”). See also Commonwealth v. Candelario, 446 Mass. 847, 858 (2006) (“In deciding whether to grant a hearing, the judge considers the seriousness of the issue asserted as well as the adequacy of the defendant's showing with respect to the issue”).
a. Importance of the issue or the right asserted. The closing of a criminal proceeding to the public may implicate rights guaranteed by the First and Sixth Amendments to the United States Constitution. Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106–107 (2010), and cases cited. “The public trial right applies to jury selection proceedings[.]” Id. at 106, citing Presley v. Georgia, S.Ct. 721, 723–724 (2010); Commonwealth v. Horton, 434 Mass. 823, 831–832 (2001). A violation of the right to a public trial “is a structural error” and is in effect per se harmful to the defendant because the injury from closure is presumptively unknowable and immeasurable. Commonwealth v. Cohen (No. 1), supra at 105, quoting from Commonwealth v. Baran, 74 Mass.App.Ct. 256, 296 (2009). As a result, the importance of the right or issue presented here is unquestionable.
b. Credibility or genuineness of the main factual issue. Despite the great importance of the right asserted, the court must still 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. Cohen (No. 1), supra at 105–106, quoting from Commonwealth v. Edward, 75 Mass.App.Ct. 162, 173 (2009). Here, there are genuine factual disputes regarding (1) credibility on the issue of waiver, and (2) closure of the courtroom during empanelment.
Factors supporting the allegations of the defendant are: (i) his mother's affidavit alleging her exclusion and her communication of that exclusion to defense counsel, including her specific assertions of (a) the posting of a sign and (b) the statements of court officers to her; (ii) his sister's affidavit alleging the same facts as his mother; (iii) defense counsel Buso's allegations of receipt of that information from the defendant's mother and sister; (iv) Buso's report of discussions with court officers and the session clerk confirming a “common practice” to close the empanelment process to the public; (v) Buso's allegation of a specific memory of an objection; and (vi) Buso's allegation of the presence of a file note reading “objection/court closed.”
Affidavit factors supporting the waiver position of the Commonwealth include: (i) the absence from the record of any formal objection; (ii) Attorney O'Brien's statement that “[a]t no point did defense counsel object either on or off the record”; (iii) Attorney Fisher's assertion that no one, including defense counsel, in his [Fisher's] presence ever reported closure; (iv) the failure of defense counsel to attach a copy of the file note to his affidavit; (v) defense counsel's failure to specify the details of his objection, its form (written or oral), timing (during empanelment or afterward), and location (in open court or at side bar). Additionally, the reference to “policy” or “practice” of a court session or county custom will not be sufficiently probative in support of a specific allegation of a lapse in legal procedure. See Commonwealth v. Greineder, 458 Mass. 207, 230 (2010); Commonwealth v. Fleenor, 39 Mass.App.Ct. 25, 28 & n. 4 (1995).
Because the claim presents significant factual questions and the alleged deprivation of an important constitutional right, we vacate the denial of the motion for a new trial and remand the claim for an evidentiary hearing upon the questions (1) whether court officers closed the courtroom to members of the defendant's family and/or the public during empanelment, and (2) whether the defendant effectively made, or waived, an objection to any such closure or exclusion.
The order denying the motion for new trial is vacated, and the case is remanded for further proceedings consistent with this memorandum and order.
So ordered.