Opinion
14-P-435
04-27-2015
COMMONWEALTH v. CHRISTOPHER ELLEN.
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
After a jury trial in Superior Court, the defendant was convicted of burglary with assault upon an occupant, assault and battery by means of a dangerous weapon, and assault with intent to murder. Eleven years later, the defendant appeals from the denial of his pro se motion for a new trial alleging a courtroom closure.
The convictions were affirmed on direct appeal. See Commonwealth v. Ellen, 59 Mass. App. Ct. 1109 (2003).
Specifically, the defendant claims that voir dire of individual jurors in the judge's lobby, along with the exclusion of the press during that jury voir dire, constituted a courtroom closure. The defendant also claims that the judge committed error in excluding his wife, who as a trial witness was subject to a sequestration order, from the jury selection.
Not only did the defendant fail to object to the individual voir dire at trial or raise the issue on direct appeal, but, as the motion judge found after an evidentiary hearing, the defendant requested the procedure now complained of in an effort to secure an impartial jury. The defendant has waived the public trial claim. See Commonwealth v. Morganti, 467 Mass. 96, 102 (2014).
The trial judge's individual voir dire of potential jurors was limited to the issue of the defendant's defense that he lacked criminal responsibility.
The defendant finds no aid by raising an ineffective assistance of counsel claim. In Commonwealth v. LaChance, 469 Mass. 854, 858 (2014), the Supreme Judicial Court held that "[t]o prevail on a claim of ineffective assistance of counsel, . . . a defendant also must show that counsel's deficiency resulted in prejudice, . . . which, in the circumstances of counsel's failure to object to an error at trial, is essentially the same as the substantial risk standard we apply to unpreserved errors." According to an affidavit submitted by trial counsel in connection with the defendant's new trial motion, the defendant sought to have the entire trial closed to the press and public due to concerns about negative pretrial publicity. Not only was there no prejudice in this case, but, as noted supra, the defendant made a tactical choice to seek the exclusion of the public. Thus, the trial judge's decision to conduct an individual voir dire in her lobby, and to exclude members of the press from this procedure, inured to the defendant's benefit.
The defendant pursued this strategy with the counsel of a highly seasoned defense attorney, whom the motion judge characterized as "a lawyer of nearly legendary experience and ability."
Order denying motion for new trial affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: April 27, 2015.