Opinion
13-P-1238
02-23-2015
COMMONWEALTH v. KAREEN DERRELL BROWN.
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 March of 1998, the defendant, Kareen Derrell Brown, was convicted in a Superior Court of murder in the second degree. A prior trial had resulted in a mistrial. The conviction was affirmed on appeal. Commonwealth v. Brown, 48 Mass. App. Ct. 1116 (2000). He now appeals from the denial of his third motion for new trial, claiming that he was denied the right to a public trial. We affirm.
The prior trial occurred before a different judge of the Superior Court; the defendant was also represented by different counsel.
Neither of the defendant's two previous motions for a new trial raised this issue, and both of those motions were denied.
Discussion. "The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error." Commonwealth v. Medina, 430 Mass. 800, 802 (2000). "[T]he burden is on the defendant to prove facts that are 'neither agreed upon nor apparent on the face of the record.'" Commonwealth v. Comita, 441 Mass. 86, 93 (2004), quoting from Commonwealth v. Bernier, 359 Mass. 13, 15 (1971). As is the case here, "[a] reviewing court extends special deference to the action of a motion judge who was also the trial judge." Commonwealth v. Grace, 397 Mass. 303, 307 (1986).
1. Closed courtroom. The defendant claims that his Sixth Amendment to the United States Constitution right to a public trial was violated when, during jury empanelment at his second trial, five members of his family were excluded from the courtroom. See Commonwealth v. Cohen (No.1), 456 Mass. 94, 106 (2010). We disagree.
The defendant references the First Amendment to the United States Constitution in his brief. It is unnecessary to reach that argument as the defendant does not have standing to raise such a claim on behalf of members of the public. Commonwealth v. Horton, 434 Mass. 823, 833 (2001).
In support of his claim, the defendant filed his own affidavit, as well as five additional affidavits from the family members who claim they were excluded from the courtroom. Collectively, the affidavits allege that a court officer told the affiants that jury selection had begun in the first session and that they would not be allowed in the courtroom. They further aver that they "believed" there was a sign on the courtroom door that read "jury selection" and, while seated near this door, court officers told them that they were not allowed in the courtroom before or after the lunch break. They further contend that they were not granted access to the courtroom until the next day. The defendant avers that he was unaware his family members had been excluded from the courtroom. The defendant did not provide an affidavit from trial counsel. This omission alone allows an inference that closure did not occur. See Commonwealth v. Goodreau, 442 Mass. 341, 348, 354 (2004) ("the suspicious failure to provide pertinent information from an expected and available source" "speaks volumes").
The motion judge did not credit the affidavits filed by the defendant and his family members. Commonwealth v. Lopez, 426 Mass. 657, 661 (1998). Commonwealth v. Morales, 453 Mass. 40, 49 (2009). Indeed, the record supports a conclusion that the majority of the allegations were demonstrably untrue. In response to the affidavits, the motion judge found that the jurors entered and exited through unlocked courtroom doors throughout the empanelment process; jury selection was not conducted in the first session, as this was not the practice of the court; jury selection had concluded prior to the lunch break, followed by preliminary instructions and opening statements, contrary to the affiants' claims that empanelment occurred for the entirety of the first day of trial; the defendant had personal knowledge that his family member were permitted in the courtroom; and neither the defendant nor his counsel raised any concerns that family members were not present during empanelment. All of these findings are amply supported by the record and are not clearly erroneous.
The record does not indicate that anyone was denied entrance or asked to leave the courtroom during any aspect of the trial.
As part of the Commonwealth's submissions to the motion judge in opposition to the motion for new trial, twenty-two pages of the trial transcript from the defendant's first trial were submitted. The transcripts reveal a detailed discussion between the first trial judge and first defense counsel about a family member of the defendant being present in the courtroom. Specifically, the first trial judge explained: "This is an open courtroom," and stated that there was no "problem if somebody wants to be here and watch this trial."
During empanelment, the defendant was asked to stand and turn to face the jury venire, who were seated in the spectator section of the courtroom. The motion judge found that the defendant would certainly have been aware at this time if any of his family members were not present.
2. Waiver. The defendant further contends that neither he nor his counsel waived the right to a public trial, that right having been recognized both at the time of the defendant's first and second trial. While the closing of a courtroom during jury voir dire could constitute structural error, "even structural error is subject to the doctrine of waiver." Commonwealth v. Cohen (No.1), supra at 106 (citation omitted). See Commonwealth v. Morganti, 467 Mass. 96, 101-102 (2014); Commonwealth v. Alebord, 467 Mass. 106, 112 (2014). As discussed supra, the record amply supports the trial judge's finding that the defendant was uniquely aware of his rights to an open courtroom, supported, in large part, by the transcript of his first trial. Further, experienced counsel failed to object to any perceived closure at the second trial. Commonwealth v. Alebord, supra at 113. In any event, the findings of the motion judge support his conclusion that the defendant waived his right to a public trial.
3. Ineffective assistance of counsel. The defendant has failed to establish that his counsel was ineffective under the familiar standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Experienced trial counsel did not object to any perceived closure and the defendant has not offered any evidence to establish that counsel's failure to object fell below the conduct of an ordinary fallible lawyer. However, even if counsel had objected, the defendant fails to demonstrate that he was deprived of an otherwise available, substantial ground of defense, or that any prejudice ensued. Commonwealth v. Alebord, supra at 114. Moreover, the failure to raise an objection at trial may have been a reasonable tactical decision and accordingly does not meet the Saferian standard for ineffectiveness. There was no error, much less a substantial risk of a miscarriage of justice. See Commonwealth v. LaChance, 469 Mass. 854, 856-858 (2014).
Order denying motion for new trial affirmed
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
--------
Clerk Entered: February 23, 2015.