Opinion
14-P-705
04-17-2015
COMMONWEALTH v. MARLIS D. CINTRON.
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
The Commonwealth appeals from an order of the District Court allowing the defendant's second motion for a new trial. We reverse.
Background. The motion judge made the following findings of fact. The defendant was convicted in 2001 of two narcotics offenses after a jury trial in the Brockton District Court. As the court was closing for the day and after the jury had returned their verdicts and the defendant had been sentenced, defense counsel noticed two "Jury Trial Do Not Enter" signs on the doors to the court room. The defendant does not assert that the "Do not enter" signs were placed on the doors prior to the reading of the final instructions to the jury. Defense counsel removed the signs and submitted them to the court with a motion for a new trial, asserting that the defendant was deprived of her constitutional right to a public trial. The trial judge denied the motion after a hearing. The defendant filed a notice of appeal and requested appointment of appellate counsel. We affirmed in a rescript opinion. Commonwealth v. Cintron, 59 Mass. App. Ct. 905 (2003). Importantly, however, appellate counsel did not present the public trial issue to the Appeals Court and does not appear to have appealed from the order denying the motion for new trial.
The motion judge incorporated his findings from the first decision on the defendant's motion for a new trial into his decision on the defendant's second motion for a new trial.
Defense counsel did not leave the court room while the jury were deliberating and so did not notice the signs until after the jury had returned their verdicts and the defendant had been sentenced.
Approximately eight years later, trial counsel brought a second motion for a new trial, again asserting that the defendant's right to a public trial had been denied. The motion judge, who was the trial judge, allowed the motion, finding first, that the defendant did not waive the claim because the failure to raise the issue on direct appeal was the result of ineffective assistance of appellate counsel and second, that the "Do not enter" signs remained on the doors of the court room for an "indeterminate period of time" after the reading of the final jury instructions, which resulted in a partial court room closure. The Commonwealth appeals.
Preventing the public from entering and exiting the court room once the trial judge begins to read the final instructions to the jury is an approved practice in the Commonwealth and did not deprive the defendant of her right to a public trial. Commonwealth v. Patry, 48 Mass. App. Ct. 470, 476 n.5 (2000).
Discussion. The right to a public trial under the Sixth Amendment to the United States Constitution applies to the reading of the verdict. Commonwealth v. Edward, 75 Mass. App. Ct. 162, 172 & n.12 (2009). While the right to a public trial is constitutionally based, it may be waived, including by failing to object to the closure at the time or on appeal. See Commonwealth v. Wall, 469 Mass. 652, 672-673 (2012). When the defendant has waived the claim to a public trial, he may still press it in a related context if the failure to raise the issue was based on ineffective assistance of counsel. Commonwealth v. LaChance, 469 Mass. 854, 858 (2014). In that event, this court uses the familiar analysis pursuant to Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), to determine whether the claim is meritorious. LaChance, supra.
Here, the claim was waived because appellate counsel failed to raise this issue before this court on direct appeal or to appeal from the order denying the first motion for new trial on that ground. Commonwealth v. Cintron, supra. We accept the findings of the motion judge that the failure to raise the claim was due to the oversight of counsel. However, the defendant must still show he was prejudiced by demonstrating that any closure of the court room impacted the jury verdict. LaChance, 469 Mass. at 860. The motion judge found that the court room may have been closed during the reading of the final instructions and for some "indeterminate period of time after the conclusion of those final instructions," but remained open throughout all other stages of the trial, including jury empanelment. Given those findings, we cannot say that appellate counsel's failure to raise the court room closure issue "undermine[s] our 'reliance on the outcome of the proceeding.'" Id. at 859, quoting from Strickland v. Washington, 466 U.S. 668, 692 (1984). See Commonwealth v. Wall, supra.
The motion judge's decision was made before the Supreme Judicial Court decided LaChance. Therefore, having found that appellate counsel was ineffective for failing to raise the claim, the motion judge presumed that the defendant was prejudiced and allowed the second motion for a new trial. We are now instructed otherwise by LaChance.
Importantly, the motion judge did not find that anyone was actually excluded from the court room. The defendant provided an affidavit from trial counsel merely stating that he found the defendant's brother in the hallway after sentencing. He does not allege that he did not enter the court room because of the "Do not enter" signs and has not provided an affidavit from the brother alleging the same.
Indeed, we are unsure how counsel could possibly prove prejudice under the second prong of Saferian in these circumstances.
The order allowing the second motion for new trial is reversed, and a new order shall enter denying the motion.
So ordered.
By the Court (Green, Grainger & Massing, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 17, 2015.