Opinion
18-P-1639
12-12-2019
COMMONWEALTH v. Jeffrey J. MEDINA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Jeffrey J. Medina, appeals from the order denying his second motion for new trial brought on the basis of a procedurally waived public trial claim. We affirm.
Background. Following a 1999 trial in the Worcester Superior Court, a jury convicted the defendant on a total of eight indictments: three charging him with rape of a child ( G. L. c. 265, § 23 ), and five charging him with indecent assault and battery of a child under the age of fourteen ( G. L. c. 265, § 13B ). Commonwealth v. Medina, 64 Mass. App. Ct. 708, 709 (2005). The defendant's convictions were affirmed in a consolidated appeal from the convictions and the order denying the defendant's first motion for new trial, which alleged, among other things, judicial bias of the trial judge. Id. at 709-710.
A judge subsequently found that the assault and battery convictions were second and subsequent offenses. Commonwealth v. Medina, 64 Mass. App. Ct. 708, 710 (2005).
On the defendant's motion, the trial judge allowed a motion for recusal in 2001. The motion for recusal is not in the record before us, but the motion judge's memorandum of decision on the defendant's second motion for new trial states that the trial judge recused herself because the defendant raised issues of judicial misconduct.
In 2011, the defendant filed his second motion for new trial on the basis that his right to a public trial was violated when the court room was closed during jury empanelment. A motion judge, who was not the trial judge, held an evidentiary hearing on the defendant's motion, at which the defendant, the defendant's trial attorney, and the trial prosecutor testified. The motion judge also considered the trial transcript of the jury empanelment proceedings. The motion judge found that, consistent with an established practice at the time in the Worcester Superior Court, members of the public were excluded from the court room on May 19 and 20, 1999, during the jury empanelment portion of the defendant's trial. The trial judge provided no findings to explain the closure. The defendant's attorney, who was not aware that the right to a public trial included keeping the court room open to the public during jury empanelment, did not object to the closure or otherwise litigate the issue.
Jury empanelment in the defendant's case consisted both of group questioning and individual voir dire. During the group questioning portion of the empanelment, there was no specific evidence that the court room was closed, but the motion judge found that it was reasonable to assume that the court room was closed during group questioning (presumably based on the general practice). With respect to the individual voir dire portion of jury empanelment, the trial judge made multiple statements on the record indicating the court room was closed, and the motion judge found the court room was closed during individual voir dire. We understand the motion judge's factual findings to mean the court room was closed during the entirety of the jury empanelment proceedings.
Discussion. "Where a procedurally waived Sixth Amendment public trial claim is raised in a motion for a new trial, a reviewing court analyzes the claimed error to determine whether the error, if any, created a ‘substantial risk of a miscarriage of justice.’ " Commonwealth v. Robinson, 480 Mass. 146, 154 (2018), quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert. denied, 136 S. Ct. 317 (2015). A substantial risk of a miscarriage of justice exists when we have "a serious doubt whether the result of the trial might have been different had the error not been made." Commonwealth v. Randolph, 438 Mass. 290, 297 (2002), quoting Commonwealth v. Azar, 435 Mass. 675, 687 (2002). See Commonwealth v. Santos, 95 Mass. App. Ct. 791, 795 n.7 (2019), quoting Commonwealth v. Freeman, 352 Mass. 556, 563 (1967) ("The substantial risk of a miscarriage of justice standard is distinctly different from the standard of review we apply in the case of preserved error. Relief under the substantial risk of a miscarriage of justice standard is rare, and it is reserved for those cases where ‘the error was patent and prejudicial’ ").
In the related context of a procedurally waived public trial claim advanced as a claim of ineffective assistance of counsel, the United States Supreme Court has explained that "the burden is on the defendant to show either a reasonable probability of a different outcome in his or her case or ... to show that the particular public-trial violation was so serious as to render his or her trial fundamentally unfair." Weaver v. Massachusetts, 137 S. Ct. 1899, 1911 (2017). Although no ineffective assistance of counsel claim is advanced here, the Supreme Judicial Court has "interpreted the substantial risk of a miscarriage of justice standard as being essentially the same as the prejudice requirement where the defendant raises an ineffective assistance of counsel claim due to counsel's failure to object to the court room closure." Robinson, 480 Mass. at 154 n.8. See Commonwealth v. Celester, 473 Mass. 553, 579 (2016) ; LaChance, 469 Mass. at 858.
The Supreme Judicial Court has not, however, "had the occasion to analyze whether the standard articulated in Weaver, [137 S. Ct. at 1911 ], is more or less protective than the substantial risk of a miscarriage of justice standard." Robinson, 480 Mass. at 154 n.8.
On appeal, the defendant argues that there was a substantial risk of a miscarriage of justice on the basis that the motion judge's finding that no friends or family had been excluded during jury empanelment was clearly erroneous. We disagree. The motion judge based her findings on the credible evidence that was presented at the evidentiary hearing. The motion judge's finding that the defendant had no memory of his friends or family attending the trial or attempting to enter the court room during jury empanelment, implies that she did not credit the defendant to the extent that he provided equivocal testimony to the contrary. Where the question is one of credibility, we will not substitute our judgment for that of the judge who hears the evidence. See Commonwealth v. Bousquet, 407 Mass. 854, 861-862 (1990).
Although we hold that the finding was not clearly erroneous, we also note discussion in Commonwealth v. Wall, 469 Mass. 652, 672-673 (2014), where the Supreme Judicial Court commented that even if the defendant's uncle was barred from the court room during the jury empanelment process "the closure would not have caused the defendant to suffer a substantial likelihood of a miscarriage of justice." There, the Supreme Judicial Court was applying the substantial likelihood of a miscarriage of justice standard under G. L. c. 278, § 33E, which is more favorable to the defendant. See Commonwealth v. Rhodes, 482 Mass. 823, 826 (2019).
The defendant also argues that a substantial risk of a miscarriage of justice existed because the trial judge was recused and therefore he was deprived of the opportunity to inquire into the specific reasons the trial judge had for closing the court room. He contends that the trial judge's "behavior was so prejudicial to the defendant that it would have been impossible to call her to establish why she ordered the court room closed." We assume for the purposes of this decision that the defendant is correct that he would have been unable to obtain testimony from the recused trial judge. But see Rule 1 of the Uniform Rules on Subpoenas to Court Officials, Mass. Rules of Court, at 581 (Thomson Reuters 2019). Trial judges, for a variety of reasons, become unable to continue to participate in collateral criminal proceedings. See Robinson, 480 Mass. at 148 (motion for new trial based on public trial claim heard by different judge where brought approximately thirteen years after convictions and trial judge had since retired). See generally Mass. R. A. P. 7, 365 Mass. 849 (1974) (titled "Disability of a Member of the Lower Court"). This is especially true where, as here, a motion for new trial is not brought until over a decade after the trial. The defendant offers nothing other than speculation that the trial judge, if she participated, would have had any recollection of substance to materially aid the defendant's case for a new trial.
We cite to the Massachusetts Rules of Appellate Procedure in effect during the relevant time period. The rules were wholly revised, effective March 1, 2019. See Reporter's Notes to Rule 1, Mass. Ann. Laws Court Rules, Rules of Appellate Procedure, at 446 (LexisNexis 2019).
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Last, the defendant generally alleges he suffered prejudice because of the importance of an impartial jury in a case involving child sexual abuse and where there were allegations of judicial bias. The defendant already adjudicated his claim of judicial bias, which this court determined was not supported by the record. Medina, 64 Mass. App. Ct. at 719. While we agree with the defendant that Weaver, 137 S. Ct. at 1911, instructs that the prejudice inquiry should not be applied in these circumstances in a "mechanical" fashion, the defendant has not carried his burden of demonstrating the court room closure had any effect on the outcome of his trial or otherwise deprived him of a fundamentally fair proceeding.
Order denying motion for new trial affirmed.