Opinion
14-P-1162
04-04-2016
COMMONWEALTH v. DENNIS WINBORN.
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
In 2006, after a jury trial in Superior Court, the defendant, Dennis Winborn, was convicted of armed assault with intent to murder, armed assault with intent to rob, kidnapping, and two firearms-related offenses. In 2011, we affirmed the defendant's convictions and the denial of his first motion for a new trial. The defendant filed a second motion for a new trial in 2012, alleging that trial counsel was ineffective for failing to object to a court room closure in violation of his constitutional right to a public trial. A Superior Court judge denied the defendant's motion without a hearing. We affirm.
In the defendant's first motion for a new trial he made numerous claims of error, including ineffective assistance of counsel. Commonwealth v. Winborn, 78 Mass. App. Ct. 1129 (2011).
Discussion. The defendant argues that during jury empanelment the court officers erroneously barred the public, including the defendant's family, from the court room. "The Sixth Amendment to the United States Constitution guarantees all criminal defendants 'the right to a speedy and public trial.'" Commonwealth v. Morganti, 467 Mass. 96, 100-101 (2014), cert. denied, 135 S. Ct. 356 (2014), citing Waller v. Georgia, 467 U.S. 39, 46 (1984). "The public trial right applies to jury selection proceedings, which are 'a crucial part of any criminal case.'" Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010) (citations omitted). "Conducting jury selection in open court permits members of the public to observe trial proceedings and promotes fairness in the judicial system." Commonwealth v. Lavoie, 464 Mass. 83, 86, cert. denied, 133 S. Ct. 2356 (2013).
Although the violation of a defendant's Sixth Amendment right to a public trial is considered structural error, "even structural error 'is subject to the doctrine of waiver.'" Morganti, supra at 101-102, quoting from Cohen, supra. Accordingly, the defendant also contends that defense counsel's waiver of the defendant's right to public jury selection constituted ineffective assistance of counsel.
Waiver. "When defense counsel did not object to any alleged court room closure at trial, and the defendant failed to raise the claim in his first motion for new trial, we conclude the defendant's right to a public trial during jury empanelment has been waived." Commonwealth v. Wall, 469 Mass. 652, 673 (2014). See Commonwealth v. Jackson, 471 Mass. 262, 268-269 (2015). Here, the defendant raised numerous claims of error in his first motion for a new trial, including five grounds of ineffective assistance of counsel, but did not raise any court room closure claims. As "a defendant must raise a claim of error at the first available opportunity," Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), the defendant's failure to do so here constitutes waiver. See Wall, supra; Jackson, supra.
The defendant's counsel also waived the defendant's right by failing to object to the closure prior to or during jury selection. See Lavoie, supra at 88-89; Morganti, supra; Wall, supra. "A defendant need not consent personally to the waiver of his right to a public trial; trial counsel may waive the right to a public trial as a tactical decision without the defendant's express consent." Wall, supra at 672. Indeed, even counsel's failure to object without a tactical reason amounts to a procedural waiver of the right to a public trial. Id. at 672-673. Thus, the defendant has repeatedly waived his claim of right to a public trial during jury empanelment.
Ineffective assistance. Despite the waivers, we may still review the error in the context of a claim of ineffective assistance of counsel. See Morganti, supra at 103; Commonwealth v. Celester, 473 Mass. 553, 579 (2016). In his second motion for new trial, the defendant submitted affidavits from several persons who were denied entry into the court room during jury empanelment, as well as an affidavit from his trial counsel indicating that he did not object because "it was normal and a common practice for the judge to exclude spectators and family during the [jury] selection process." The defendant also submitted excerpts from the trial transcript in which the judge refers to potential jurors standing due to a lack of chairs, and counsel refers to there being "jurors everywhere." Despite trial counsel's assertion that he was unaware that closing the court room during jury selection violated his client's constitutional rights, we are doubtful that counsel's failure to object under these circumstances amounts to ineffective assistance. See Morganti, supra at 104 (where well-known practice was to close court room to facilitate jury empanelment, and counsel was aware of this practice, "his decision not to object was well within the range of reasonable professional judgments applicable to his conduct").
Even assuming the counsel's failure to object was not a reasonable professional judgment, "[w]here a defendant procedurally waives his Sixth Amendment public trial claim, and later raises the claim as one of ineffective assistance of counsel, as is the case here, 'the defendant is required to show prejudice from counsel's inadequate performance' -- that is, a substantial [risk] of a miscarriage of justice -- and 'the presumption of prejudice that would otherwise apply to a preserved claim of structural error does not apply.'" Celester, supra, quoting from Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct. 317 (2015). Neither has the defendant presented, nor do we find, any evidence of prejudice, "that is, evidence tending to show that closure of the court room during empanelment may have had 'an "effect on the judgment," or undermine[d] our "reliance on the outcome of the proceeding."'" Celester, supra, quoting from LaChance, supra at 859. In the absence of any showing of prejudice, the motion judge properly denied the defendant's second motion for a new trial.
The judge did not abuse his discretion in denying the defendant's motion without an evidentiary hearing; a judge may rule on a motion for new trial "on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised by the motion or affidavits." Mass.R.Crim.P. 30(c)(3), as appearing in 435 Mass. 1501 (2001). See Commonwealth v. Goodreau, 442 Mass. 341, 348, 355 (2004).
Order denying second motion for new trial affirmed.
By the Court (Vuono, Grainger & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: April 4, 2016.