Opinion
No. 11–P–297.
2013-05-21
COMMONWEALTH v. Robert THOMAS.
By the Court (KANTROWITZ, KATZMANN & HANLON, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from convictions on three indictments charging rape of a child between the dates of January 1, 1994, and December 31, 2000, and three indictments charging indecent assault and battery on a child under fourteen between the dates of January 1, 1994, and December 31, 1998. He argues that his convictions should be reversed because he was deprived of his constitutional right to a public trial and because the judge's instruction to the jury on the role of the foreperson was “coercive.” The defendant also appeals from the denial of his motion for a new trial on the grounds that his attorney was ineffective for failing to object to the exclusion of the public from jury selection and for failing to raise a statute of limitations defense on the indecent assault and battery charges. We affirm in part and reverse in part.
Background. As part of the empanelment process, the trial judge explained to the jury pool that additional individual questions would be presented at sidebar “because even though the courtroom is closed, it's a little more intimate.” In response to the judge's inquiry—“Counsel, obviously it's a closed courtroom, but it's up to you. Do you want, does the defendant want [ ] to be up at sidebar with us or not?”—defense counsel responded affirmatively, and it appears that the defendant was present at sidebar during the entire voir dire process. The jury were empaneled, the trial proceeded over several days, and the defendant was found guilty on all charges on July 15, 2008. Almost three years later, on May 27, 2011, the defendant filed a motion for a new trial; on November 28, 2011, the trial judge denied the motion without a hearing. The judge's written findings (endorsed on the front page of the Commonwealth's opposition) stated explicitly that the courtroom had not been closed.
Specifically, the judge wrote, “For clarification for any reviewing Court, the expression ‘Court room is closed,’ was not accurate and this judge did not order the Court room closed. In the context of the impanelment, this judge meant that everyone has cleared out so the individual voir dire could begin. This judge has never, in fifteen years, ordered the Courtroom closed. Therefore, it is with the highest level of confidence, that I state that the court room was not ordered closed by me. It was empty not closed in a way which blocked or prevented anyone from entering.”
Discussion. a. Right to public trial. On appeal, the defendant first argues that he was deprived of his right to a public trial under the Sixth Amendment to the United States Constitution; he maintains that the trial judge committed structural error by excluding the public from individual voir dire questioning during the jury selection process; the judge failed to consider reasonable alternatives to closing the courtroom; and the defendant did not make a knowing or intelligent waiver of his right to a public trial. He also asks that, if this court finds the record insufficient to consider his argument, the case be remanded for an evidentiary hearing.
It is undisputed that “[t]he public trial right applies to jury selection proceedings” because they are “a crucial part of any criminal case.” Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010). “In claiming that his Sixth Amendment right to a public trial was violated, ‘[t]he burden is clearly on the defendant to demonstrate that the public was excluded from his trial.’ “ Commonwealth v. Downey, 78 Mass.App.Ct. 224, 229 (2010), quoting from id. at 107–108.
In this case, the defendant relies solely on the trial transcript to argue that the judge's statements prior to individual voir dire (the “courtroom is closed” and “it's a closed courtroom”) sufficiently demonstrate that the courtroom was closed. However, in her written findings denying the defendant's motion for new trial, the trial judge emphatically stated “with the highest level of confidence” that she did not order the courtroom closed; the courtroom “was empty not closed in a way which blocked or prevented anyone from entering” (emphasis original).
In his motion for a new trial, the defendant does not allege that there is any evidence to the contrary; that is, he does not state, either by affidavit or otherwise, that any person in fact was excluded from the courtroom. Nor is there any allegation that a sign warning the public away was placed on the door of the courtroom or that the judge or any member of the court staff took any action whatsoever to exclude the public from the proceeding. The defendant's affidavit, stating that “[n]o one other than myself, the judge, the clerk, the attorneys, the court reporter and the court officers was present at the time the judge asked the questions at the side of her bench,” is not helpful to him. See Commonwealth v. Greineder, 458 Mass. 207, 226 (2010) (“Whether the public was present is a subsidiary question of fact. Neither the presence nor the absence of members of the public during jury voir dire is determinative of the question before us. The Sixth Amendment does not require members of the public to attend the trial. It prohibits their exclusion by the State, except in limited circumstances”). We credit the judge's assertion that the courtroom was not closed to the public during the jury empanelment, and conclude that “[t]he defendant has not met his burden of showing either that the trial judge did anything to close the court room or that the court room was closed without the judge's knowledge .” Commonwealth v. Rogers, 459 Mass. 249, 263 (2011).
Because we have concluded that the courtroom was not closed and that the defendant was not deprived of a public trial, we need not address his remaining arguments relating to closure.
b. Motion for a new trial. The defendant next argues that his trial counsel was ineffective because (1) he failed to object to the courtroom closure, and (2) failed to raise a statute of limitations defense with regard to the indecent assault and battery charges. On the public trial issue, as noted above, the defendant has not met his burden of showing that the courtroom was closed during the jury empanelment.
Second, the defendant also claims that trial counsel was ineffective for failing to raise a statute of limitations defense as to the three charges of indecent assault and battery on a child under fourteen.
The Commonwealth concedes, as it must, that the acts charged in the indecent assault and battery indictments took place outside of the limitations period. That is, the six-year statute of limitations for those charges began to run in May, 1999, when the victim turned sixteen years old; the defendant was not indicted until November 29, 2006, more than six years after the statute of limitations began to run on the victim's sixteenth birthday.
Indictments 11152–004, 005, and 006 charged that the defendant “on diverse dates between January 1, 1994 through December 31, 1998, did commit an indecent assault and battery on [the victim], a child under the age of fourteen years.”
See G.L. c. 277, § 63, as amended through St.1996, c. 26. This case is therefore distinguishable from Commonwealth v.. Purinton, 32 Mass.App.Ct. 640 (1992), on which the Commonwealth relies. In Purinton, this court agreed with the trial judge “that the jury could have found from the evidence that at least one incident of forcible rape occurred within the period of limitations.” Here, as to the three charges of indecent assault and battery that occurred before the victim was fourteen, there was no such evidence, nor could there be, because more than seven years had elapsed between the victim's sixteenth birthday and the date of the indictments.
At trial, the victim testified that she was born in May, 1983; she was twenty-three years old when the defendant was indicted.
“[T]he statute of limitations defense [is] an affirmative defense,” Commonwealth v. Shanley, 455 Mass. 752, 780 (2010), citing Commonwealth v. Steinberg, 404 Mass. 602, 606 (1989), and the defendant bears the burden of producing evidence to support the defense at trial. Here, as noted, it is agreed that the charged acts on the indecent assault and battery indictments were beyond the limitations period, and a motion for directed verdicts or for judgments notwithstanding the verdicts properly would have been allowed. On the other hand, an affirmative defense can be waived, and a strategic or tactical decision by counsel will not be considered ineffective assistance unless the decision was “manifestly unreasonable” when made. Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting from Commonwealth v. Martin, 427 Mass. 816, 822 (1998).
The question for us is whether, on this record,
we can conclude that failure to raise a statute of limitations defense was a reasonable strategy in this case, or whether the defendant has met his burden of showing “serious incompetency, inefficiency, or inattention of counsel,” Commonwealth v. Watson, 455 Mass. 246, 256 (2009), quoting from Commonwealth v. Saferian, 366 Mass 89, 96 (1974), and if so “whether it has likely deprived the defendant of an otherwise available, substantial ground of defence.” Saferian, supra.
The defendant did not offer testimony or an affidavit from trial counsel.
The Commonwealth argues that there was a tactical reason for the defendant not to raise a statute of limitations defense that would have removed these three indictments from the jury's consideration, suggesting that the defendant might have hoped that he would be convicted only of the lesser charge of indecent assault and battery, for which the evidence was stronger
, and acquitted of the more serious rape charges. However, evidence of the earlier allegations would have been admissible in any event to show the ongoing relationship between the victim and the defendant. See Commonwealth v. Barrett, 418 Mass. 788, 794 (1994) (“Evidence of similar [sexual] misconduct may also be used to show the relationship between the defendant and the victim”). See also Commonwealth v. Frank, 51 Mass.App.Ct. 19, 24 (2001) (uncharged sexual misconduct admissible to show nature of relationship between defendant and victim); Mass. G. Evid. § 404(b) (2012). It would still have been open to counsel, therefore, to argue, as he did, that it was not reasonable to believe that the victim, having complained immediately about the first incident, did not complain about the repeated instances that followed “until twelve years later.”
In the first instance of sexual contact, the victim testified that the defendant touched her breast when she was twelve; afterwards, the defendant spoke to her mother, apparently admitting what he had done and she remembered him “apologizing and apologizing to [her] mother, and telling her that it wasn't going to happen again.” The mother corroborated this testimony.
Because there is no affidavit or other information from trial counsel, we cannot say whether he, in fact, pursued the strategy the Commonwealth suggests or whether he missed the issue altogether.
In either event, leaving the defendant exposed to three felony convictions on which the statute of limitations clearly had run fell “measurably below that which might be expected from an ordinary and fallible lawyer.” Saferian, 366 Mass. at 96. It is equally clear that better work would have accomplished for the defendant at least an acquittal on those charges. For this reason, the defendant's motion for a new trial on those charges only should have been allowed.
The trial judge's findings, issued without a hearing, state only, “Stat. of limit. argument is denied as well.”
c. Instruction as to role of foreperson. The defendant finally argues that the judge's instruction regarding the role of the foreperson was coercive and violated his due process rights. In describing the role of the foreperson, the judge spoke at some length. The defendant focuses on a small portion of the instruction, contending that, by directing the foreperson to ensure that no juror “tak[e] up the—the cause of one side or the other,” the judge was improperly instructing the jurors not to advocate for their own opinions during deliberations. He also contends that the judge should have followed the pattern instruction suggested in Commonwealth v. O'Brien, 65 Mass.App.Ct. 291, 297 (2005).
We see no error. The instructions given were comparable to the O'Brien instructions, and no reasonable jury would have understood them to mean anything other than that they were the judges of the facts and must apply the law as given under the guidance of the foreperson. See Commonwealth v. Housen, 458 Mass. 702, 714 (2011).
Disposition. On the indictments charging rape of a child (SUCR 11152–001, 002, and 003), the judgments are affirmed, and the portion of the order denying the motion for new trial as to these indictments is affirmed.
On the indictments charging indecent assault and battery on a child under fourteen years of age (SUCR 11152–004, 005, and 006), the portion of the order denying the motion for new trial as to these indictments is reversed, the judgments are reversed, the verdicts are set aside, and the indictments shall be dismissed.
So ordered.