Opinion
15-P-168
03-23-2016
COMMONWEALTH v. TIESON GONZALEZ.
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 defendant, Tieson Gonzalez, was convicted of murder in the second degree, G. L. c. 265, § 1, and armed assault with intent to murder, G. L. c. 265, § 18(b). He appeals from the denial of his second motion for new trial. The defendant contends that the motion judge erred in denying his motion because the closure of the court room during trial violated his right under the Sixth Amendment to the United States Constitution to a public trial, and trial and appellate counsel were ineffective for failing to object to or appeal from the closure. We affirm the denial of the motion.
In Commonwealth v. Gonzalez, 68 Mass. App. Ct. 620 (2007), this court affirmed the defendant's convictions on direct appeal. In Commonwealth v. Gonzalez, 78 Mass. App. Ct. 1129 (2011), a rule 1:28 decision, this court affirmed the denial of the defendant's first motion for new trial, which had been filed pro se.
Waiver. The defendant argues that his right to a public trial was violated when members of his family and his friends were excluded from the court room during trial. For purposes of this appeal, we assume this partial closure occurred as detailed in the affidavits attached to the defendant's motion. See Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014). However, defense counsel did not object to the closure at trial. Nor was the fact of the closure raised in the defendant's direct appeal or in his first motion for new trial, which he filed pro se.
A defendant is barred from pressing a claim of his own ineffective assistance of counsel where he has refused appointed counsel. See Commonwealth v. Jackson, 419 Mass. 716, 721 (1995). It is unclear on this record whether he refused appointed counsel or was denied appointed counsel on his first motion for new trial. We consider his ineffective assistance claim with respect to the conduct of trial counsel and appellate counsel. Where, as here, there was a waiver at trial, and no prejudice has been shown, we need not address the ineffective assistance claim with respect to the first motion for new trial.
"It is well settled that the violation of a defendant's right to a public trial is structural error requiring reversal." Commonwealth v. Celester, 473 Mass. 553, 578 (2016), quoting from Wall, supra at 672. "Nevertheless, even structural error is subject to waiver." Celester, supra. Therefore, "where defense counsel did not object to any alleged court room closure at trial, . . . the defendant's right to a public trial . . . has been waived." Ibid., quoting from Wall, supra at 673. See Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert. denied, 135 S. Ct. 356 (2014); Commonwealth v. Alebord, 467 Mass. 106, 112-113, cert. denied, 134 S. Ct. 2830 (2014).
Prejudice. "Where 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 at 579, quoting from Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct. 317 (2015). See Commonwealth v. Jackson, 471 Mass. 262, 268-269 (2015), cert. denied, ___ S. Ct. ___ (February 29, 2016).
The defendant asserts that he was prejudiced because the witnesses were not required to testify in front of the defendant's family members. There is no factual record or factual findings upon which an appellate court may assess this claim. In his second motion for new trial, the defendant did not present 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 (quotation omitted). Any claim that the presence of family members would have made a difference in the outcome of the proceeding is purely speculative. In the absence of a showing of prejudice, the motion was properly denied. See ibid.
Order denying second motion for new trial affirmed.
By the Court (Hanlon, Sullivan & Massing, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.