The Commonwealth applied to the Supreme Judicial Court of Massachusetts ("SJC") for leave to obtain further appellate review and the SJC granted the application on November 30, 2011. S.A. 320; Commonwealth v. Lavoie, 958 N.E.2d 529 (Mass. 2011) (table). The SJC affirmed the trial court's order denying a new trial on January 11, 2013. S.A. 578; Commonwealth v. Lavoie, 981 N.E.2d 192 (Mass. 2013). The SJC explained that, although the Appeals Court had previously held that a knowing waiver from the defendant was required to waive a Sixth Amendment right to a public trial, that issue had never been before the SJC. S.A. 582; Lavoie, 981 N.E.2d at 197-98.
The judge further determined that removal of the defendant's family from the court room during jury empanelment did not create a substantial risk of a miscarriage of justice entitling the defendant to a new trial. On April 4, 2013, following the release of our decisions in Commonwealth v. Lavoie, 464 Mass. 83, 981 N.E.2d 192, cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013), and Commonwealth v. Hardy, 464 Mass. 660, 984 N.E.2d 727, cert. denied, ––– U.S. ––––, 134 S.Ct. 248, 187 L.Ed.2d 184 (2013), the defendant sought reconsideration of the denial of his motion for a new trial, arguing that prejudice under the second prong of the standard regarding ineffective assistance of counsel set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), must be presumed due to the structural nature of the right to a public trial. In denying the defendant's motion, the judge assumed both that a closure during jury empanelment had occurred and that trial counsel's performance in failing to object to the closure fell below that of an ordinary fallible lawyer.
When a defendant attributes the failure to preserve a claim to the ineffective assistance of counsel, however, “we use the ineffectiveness of counsel standard set forth in Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), because, ‘whether we view the unpreserved claim of error ... [by] utilizing the substantial risk of a miscarriage of justice standard, or ... by focusing on counsel's ineffectiveness in failing to object to the error, our approach is essentially the same, and ... the result would be the same.’ ” Commonwealth v. Lavoie, 464 Mass. 83, 89, 981 N.E.2d 192 (2013), quoting Commonwealth v. Azar, 435 Mass. 675, 686–687, 760 N.E.2d 1224 (2002). “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.’ ”
On appeal, the defendant argues that the exclusion of his family and friend from the court room constituted a violation of his right to a public trial pursuant to the Sixth Amendment to the United States Constitution. He avers that the eighty-minute closure could not have been de minimis, and that it instead constituted structural error, requiring an automatic reversal of his conviction. In Commonwealth v. Lavoie, 464 Mass. 83, 88–89, 981 N.E.2d 192, cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013), this court concluded that defense counsel by his or her actions can waive the right to a public trial during jury empanelment without the defendant's express consent, effectively overruling Commonwealth v. Alebord, 80 Mass.App.Ct. 432, 953 N.E.2d 744 (2011).Although we conclude that the closure of the court room for the entire empanelment process was not de minimis, we affirm the order denying the defendant's second motion for new trial on other grounds.
In so ruling, she relied on Commonwealth v. Alebord, 80 Mass.App.Ct. 432, 438–439, 953 N.E.2d 744 (2011) (Commonwealth must establish defendant knowingly waived right; silence not sufficient to establish knowing waiver). This court has since held, in Commonwealth v. Lavoie, 464 Mass. 83, 88–89, 981 N.E.2d 192, cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013), that defense counsel by his or her actions may waive the right to a public trial during jury empanelment without the defendant's express consent.Regardless of the lack of waiver, the judge concluded that the defendant's Sixth Amendment rights were not violated because the closure was de minimis.
Id. at 118 n.35, 921 N.E.2d 906, citing Commonwealth v. McDuffee, 379 Mass. 353, 359, 398 N.E.2d 463 (1979) (noting that "rationale behind the requirement of a specific exception is to enable the judge to make any necessary correction"). See Commonwealth v. Lavoie, 464 Mass. 83, 89 n.11, 981 N.E.2d 192, cert. denied, 569 U.S. 981, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013) (noting that defendant's claim was factually different from claim in Cohen (No. 1)"in at least one important respect: Cohen's defense counsel objected to the court room closure at his trial").Conversely, where a defendant fails to contemporaneously object to an improper court room closure at trial, we have steadfastly held that the defendant's claim is procedurally waived.
Id. at 118 n.35, citing Commonwealth v. McDuffee, 379 Mass. 353, 359 (1979) (noting that "rationale behind the requirement of a specific exception is to enable the judge to make any necessary correction"). See Commonwealth v. Lavoie, 464 Mass. 83, 89 n.11, cert. denied, 569 U.S. 981 (2013) (noting that defendant's claim was factually different from claim in Cohen (No. 1) "in at least one important respect: Cohen's defense counsel objected to the court room closure at his trial"). Conversely, where a defendant fails to contemporaneously object to an improper court room closure at trial, we have steadfastly held that the defendant's claim is procedurally waived.
See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106, 921 N.E.2d 906 (2010), citing Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). Consistent with our recent decisions in Commonwealth v. Morganti, 467 Mass. 96, 102–103, 4 N.E.3d 241 (2014); Commonwealth v. Hardy, 464 Mass. 660, 663, 984 N.E.2d 727, cert. denied, ––– U.S. ––––, 134 S.Ct. 248, 187 L.Ed.2d 184 (2013); and Commonwealth v. Lavoie, 464 Mass. 83, 84, 981 N.E.2d 192, cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013), we reject the defendant's argument. It is undisputed that the court room was closed during the jury selection process after the trial judge suggested clearing the court room for individual juror questioning. Counsel for the Commonwealth and the defendant affirmatively agreed to the procedure.
Commonwealth v. Lavoie, 464 Mass. 83, 86, 981 N.E.2d 192 (2013).
At the end of the selection process, the judge inquired whether counsel had any objections, and he had none. See Commonwealth v. Lavoie, 464 Mass. 83, 89–90 & n. 12, 981 N.E.2d 192 (2013), cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013), and cases cited. 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.