Opinion
No. 14–P–384.
10-24-2016
COMMONWEALTH v. Timothy GLENN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Timothy Glenn, appeals from the denial of his motion for a new trial, claiming that his right to a public trial was violated. The defendant argues that the trial judge made several errors that require his convictions to be vacated and the matter remanded to allow for a new trial. We disagree.
We also refer to this motion as a motion for postconviction relief as that is its caption.
At trial, the defendant was convicted of indecent assault and battery on a child under the age of fourteen, in violation of G.L. c. 265, § 13B, and open and gross lewdness and lascivious behavior, in violation of G.L. c. 272, § 16. We affirmed the defendant's convictions in his direct appeal. See Commonwealth v. Glenn, 74 Mass.App.Ct. 1123.
Discussion. A judge “may grant a new trial at any time if it appears that justice may not have been done.” Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). “A decision whether to allow a new trial ‘is addressed to the sound discretion of the [motion] judge.’ “ Commonwealth v. Cadet, 473 Mass. 173, 179 (2015), quoting from Commonwealth v. Perkins, 450 Mass. 834, 845 (2008). Because the defendant's challenges were raised for the first time in a motion for new trial, our review is whether there was a “substantial risk of a miscarriage of justice.” Commonwealth v. Hardy, 464 Mass. 660, 662 (2013).
The defendant filed a motion for a new trial three years after his direct appeal. He claimed, for the first time, that his right to a public trial was violated.
1. Evidentiary hearing. The defendant maintains that the judge abused her discretion by failing to conduct an evidentiary hearing on the motion for postconviction relief. We sustain an appellate claim that a judge committed an abuse of discretion when it is “demonstrated that ‘no conscientious judge, acting intelligently, could honestly have taken the view expressed by [her] .’ “ Commonwealth v. Goodreau, 442 Mass. 341, 348 (2004), quoting from Commonwealth v. Ira I., 439 Mass. 805, 809 (2003). An evidentiary hearing is not necessary “if no substantial issue is raised by the [defendant's] motion [for new trial] or affidavits.” Commonwealth v. Cavitt, 460 Mass. 617, 625 (2011). In determining whether to conduct an evidentiary hearing, a judge considers the “seriousness of the issue” and the “adequacy of the defendant's showing with respect to the issue.” Commonwealth v. Candelario, 446 Mass. 847, 858 (2006). We give “special deference to the decisions of a judge who was, as here, the trial judge.” Commonwealth v. Murphy, 442 Mass. 485, 499 (2004).
“A judge is not required to credit assertions in affidavits submitted in support of a motion for a new trial, but may evaluate such affidavits in light of factors pertinent to credibility, including bias, self-interest, and delay.” Commonwealth v. Buckman, 461 Mass. 24, 43 (2011). Here, the motion judge declined to hold an evidentiary hearing and ruled on the defendant's motion for a new trial based on the affidavits submitted by the defendant. See Commonwealth v. Smith, 459 Mass. 538, 556 (2011) (“There is no constitutional error in deciding the motion for a new trial on affidavits”). The judge determined that the defendant's affidavits “did not provide sufficient credible information to raise a substantial issue,” which is entirely in her discretion even if not contested. See Candelario, supra at 859, quoting from Goodreau, supra at 348–349 (“If, on the papers presented, the basis of the motion is not ‘credible’ or ‘persuasive,’ an evidentiary hearing accomplishes nothing”); Commonwealth v. Thurston, 53 Mass.App.Ct. 548, 551 (2002). Accordingly, we discern no abuse of discretion.
2. Closure of the court room. The defendant argues that the judge abused her discretion in denying the defendant's motion for a new trial by finding that there was insufficient evidence to support a conclusion that the court room was closed during jury empanelment. Under the Sixth Amendment to the United States Constitution, a defendant's right to a public trial extends to jury selection proceedings. See Commonwealth v. Morganti, 467 Mass. 96, 101 (2014), citing Presley v. Georgia, 558 U.S. 209, 213 (2010).
“A defendant asserting a claim of violation of the right to a public trial bears the burden of showing that the court room was closed to the public during the trial.” Cadet, 473 Mass. at 179. The motion judge found that the defendant submitted “little evidence” that the court room was closed during jury selection at the defendant's trial. The motion judge, who was also the trial judge, stated that “to this court's recollection of the trial, no one notified the court that they had been excluded from jury selection.” The motion judge also found that there was no evidence of signage on the door denying public entry or that the door was locked. See id. at 179–180 (noting motion judge discredited witnesses' testimony, remembered clearly how jury selection process was conducted, and stated there had been no sign on door prohibiting public from entering). In reviewing the defendant's affidavits from his father, sister, and trial counsel, stating that the defendant's father was asked to leave the court room by a court officer during jury selection and that his father and sister were not permitted inside the court room until after jury empanelment was over, the judge noted that these affidavits were created more than four years after the defendant's trial. Therefore, the motion judge properly discredited the defendant's affidavits, as was within her discretion, applied her recollection of the proceedings, and found that the defendant had not satisfied his burden to show that the court room was closed to the public during jury selection. See Commonwealth v. Garuti, 454 Mass. 48, 56–57 (2009) (motion judge properly applied her knowledge as trial judge in deciding motion).
3. Waiver of defendant's right to public trial by counsel. The defendant argues that the motion judge improperly concluded that “even if the court room closure occurred, the claim has been waived” because defense counsel failed to object at trial. In particular, the defendant argues that the judge erred by presuming that the defendant's trial attorney was aware that the right to a public trial extended to jury selection.
“[Trial] counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection where the waiver is a tactical decision.” Commonwealth v. Lavoie, 464 Mass. 83, 88–89 (2013). The defendant supported his motion for a new trial with an affidavit from his trial counsel averring that (1) a court officer asked the defendant's father to leave the court room during jury selection, (2) that the defendant's father and sister were not permitted back in the court room until after jury empanelment, and (3) that “clearing the court room for jury selection was the standard procedure in the Cambridge court house of the Middlesex Superior Court” at the time of the defendant's trial. The motion judge found that “at the very least, [trial counsel's] affidavit indicates an awareness by counsel of the circumstances of the defendant's father leaving the court room,” and that “counsel made no objection” at trial. Despite the defendant's contentions that his counsel's failure to object was due to his lack of awareness that the public trial right extended to jury selection, the motion judge, who notably was the trial judge, found that defense counsel was “experienced,” “competent,” and “presumably aware of his client's rights.” Therefore, the judge did not abuse her discretion in finding that the defendant's right to a public trial was waived by trial counsel. See Commonwealth v. Cohen (Cohen 1), 456 Mass. 94, 118 n. 35 (2010) (“Failure of a defendant or his counsel to raise an objection when first made aware of an alleged public trial right violation is, at the very least, a strong indication of waiver”).
4. Defendant's waiver of the claim. The defendant contends that the judge erred by concluding that the defendant procedurally waived his public trial claim. However, a defendant waives his claim that his right to a public trial has been violated where defense counsel is aware that the court room was closed to the public during jury selection, and fails to object. See Morganti, 467 Mass. at 102. The defendant contends that although he procedurally waived the public trial claim by not objecting, he may still be entitled to relief depending on the resolution of petitions for writs of habeas corpus filed in the Federal District Court in Morganti, supra, and Commonwealth v. Alebord, 467 Mass. 106, 112–113 (2014). However, at this time, the United States Supreme Court has denied petitions for writs of certiorari in both Alebord and Morganti. Therefore, we are bound by the interpretation of Federal constitutional law therein. See Commonwealth v. Vasquez, 456 Mass. 350, 357 (2010).
5. Ineffective assistance of counsel. Concluding that the defendant's open court room right has been waived does not end our review. “If an error is waived due to a failure of defense counsel to object, we still may have occasion to review that error in the postconviction context of a challenge to trial counsel's effectiveness in failing to raise the objection.” Alebord, supra at 113. The defendant argues that the judge improperly denied his claim of ineffective assistance of counsel. “Where a defendant attributes the failure to preserve a claim to the ineffective assistance of counsel, ‘we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).’ “ Morganti, supra at 103, quoting from Lavoie, supra at 89.
“Counsel is ineffective where his conduct falls ‘below that which might be expected from an ordinary fallible lawyer’ and prejudices the defendant by depriving him ‘of an otherwise available, substantial ground of defence.’ “ Lavoie, supra, quoting from Saferian, supra. Specifically, the defendant asserts that his counsel's failure to lodge an objection to the closure of the court room during jury selection was a serious incompetency, inattention, or inefficiency that fell measurably below that of an average fallible lawyer. Even assuming, arguendo, that the defendant's assertion is correct, he cannot prevail on this ineffective assistance claim where he has failed to make any showing of prejudice. See Commonwealth v. LaChance, 469 Mass. 854, 856 (2014). As the judge found, the defendant's motion for a new trial and supporting affidavits provide no evidence that he suffered any prejudice as a result of the alleged removal of his family from the court room. The judge further noted that the defendant received a “fair and impartial trial,” he was represented by “competent counsel,” he was found guilty, and that the court was not left “with uncertainty that the defendant's guilt ha[d] been fairly adjudicated.”
We are not persuaded by the defendant's argument that prejudice should be presumed. “Presuming prejudice in this context ignores the distinct and well-established jurisprudence which governs claims of ineffective assistance of counsel.” Ibid. We therefore conclude that the judge properly found that there was no evidence that the defendant suffered from any prejudice in an alleged unfair jury selection process. See id. at 859, quoting from Strickland v. Washington, 466 U.S. 668, 692 (1984) (“While a jury empanelment closed to spectators ... and the defendant's family may be a structural error, it will rarely have an ‘effect on the judgment,’ or undermine our ‘reliance on the outcome of the proceeding’ ”).
In asserting this contention, the defendant cites to Justice Duffly's dissent in Lachance, supra at 868.
The lack of prejudice to the defendant also precludes any substantial risk of a miscarriage of justice in defense counsel's failure to object to an error at trial. See Lachance, supra at 858.