Opinion
No. 10–P–1159.
2013-03-13
COMMONWEALTH v. Adebola SOYOYE.
By the Court (KANTROWITZ, WOLOHOJIAN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, the defendant, Adebola Soyoye, was found guilty of falsification of a learner's permit, conspiracy to falsify a learner's permit, making a false written report by a public officer or employee, and conspiracy to make a false written report by a public officer or employee.
Nearly three years after her conviction, a judge of the Superior Court allowed her motion for a new trial, finding that her right to a public trial under the Sixth Amendment to the United States Constitution was violated when the court room was temporarily and partially closed. In that same order, the judge denied Soyoye's renewed motion for a required finding of not guilty with respect to making a false written report by a public officer or employee, finding that she was a “public employee” within the meaning of G.L. c. 268, § 6A. The Commonwealth appeals from that portion of the order allowing the motion for new trial. The defendant appeals from the trial judge's denial of her motion for a required finding of not guilty and from that portion of the motion judge's order denying her renewed motion for a required finding of not guilty. Background. Soyoye worked as a temporary employee at the registry of motor vehicles (RMV). She was arrested after supplying an undercover police officer with a learner's permit under a false name. At trial, the Commonwealth asked the judge to close the court room during the testimony of the undercover police officer to protect his identity. The Commonwealth and defense counsel identified two individuals in the court room, a Committee for Public Counsel Services (CPCS) lawyer and the defendant's sister, who were not participants in the trial. The Commonwealth stated, “[O]bviously the woman from CPCS ... should be able to stay. But to the extent that there is someone else, I would ask that she be asked to leave.” Defense counsel informed the judge that while she did not “take a position with respect to it,” she would “prefer that [Soyoye's] sister be able to sit through the principal witness against [the defendant] in the trial.” The court room was closed, and Soyoye's sister left the court room.
The motion judge (who was not the trial judge) noted that “[a] question remains ... as to whether [defense counsel] fully explained and the defendant fully appreciated the nature of the right at issue.” The Attorney General provided an affidavit from Marc Jones, the assistant attorney general who represented the Commonwealth at trial, which states that prior to discussing it with the judge, “I recall [defense counsel] entering the gallery area of the courtroom, where [the defendant's] sister was sitting, and speaking with [the defendant] and her sister. [Defense counsel] then told me that she assented to our request for the courtroom to be closed during [the witness's] testimony.” The motion judge concluded that Soyoye did not knowingly, intelligently, and voluntarily assent to waive her constitutional right to a public trial and allowed the motion for new trial.
The motion judge properly applied the law as it stood at the time. See Commonwealth v. Edward, 75 Mass.App.Ct. 162, 173 (2009).
The Commonwealth claims that the motion judge erred in granting Soyoye a new trial because she waived her right to a public trial and any ineffective assistance of counsel did not create a substantial risk of the miscarriage of justice. Soyoye claims that the motion judge erred by denying her motion for a required finding of not guilty because the Commonwealth failed to prove that she was a “public employee” under G.L.c. 268, § 6A.
Open court room. At issue is whether Soyoye waived her right to a public trial and whether defense counsel's failure to raise an objection to the court room closure constituted ineffective assistance of counsel.
Closing criminal proceedings to the public implicates the right to a public trial as guaranteed by the Sixth Amendment to the United States Constitution. Commonwealth v. Martin, 417 Mass. 187, 192 (1994). However, this right is not absolute, id. at 193, and may be waived. Commonwealth v. Burnett, 428 Mass. 469, 476 (1998). Counsel may waive a defendant's right to a public trial without the defendant's express consent. Commonwealth v. Lavoie, 464 Mass. 83, 88–89 (2013). Moreover, a defendant may waive this right when the defendant fails to object or raise any concern related to it. See Commonwealth v. Dyer, 460 Mass. 728, 736 (2011).
Here, the record discloses that the defendant, both herself and through counsel, waived that right. At trial, the prosecutor indicated that defense counsel did not object.
Pursuant to the hearing on the subsequent motion for a new trial, the motion judge indicated that
At one point counsel did indicate that she preferred that the defendant's sister remain in the court room. She did not, however, take issue with what the prosecutor indicated, nor did she object. Compare Commonwealth v. Cohen, 456 Mass. 94, 108–110 (2010) (defendant's friends and supporters wished to be present during jury empanelment and attorney repeatedly objected to their exclusion).
“I infer that [defense counsel] McGowan discussed the proposed courtroom closure with the defendant based on the following sequence of events: [the prosecutor] Jones broached the subject with McGowan; McGowan then spoke with the defendant; McGowan then returned to Jones and indicated she would not object to the closure; Jones informed the judge that he was seeking closure to protect the undercover officer's identity and stated that McGowan assented to the request; McGowan did not indicate any opposition, and later stated she took no position about the closure.”
The judge then wrote in an accompanying footnote that “I do not credit the defendant's statement in her affidavit that McGowan never discussed the courtroom closure with her.”
It appears thus that the prosecutor's request to temporarily and partially close the court room during a portion of the trial was discussed by the defense attorney and the defendant, who acquiesced to the request.
Given our decision, we need not address the ineffective assistance of counsel claim. Suffice it to say that defense counsel acted in conformity with her client's instructions.
Public employee. In her cross appeal, the defendant claims that the Commonwealth did not prove that she was a public employee within the meaning of G.L.c. 268, § 6A, and that the judges erred in denying her original and renewed motions for a required finding of not guilty.
Whether a person is a public employee or an independent contractor is a question of fact. See Kelley v. Rossi, 395 Mass. 659, 661 (1985); Rowe v. Arlington, 28 Mass.App.Ct. 389, 391 (1990). The analysis we employ is similar to principal-agent analysis in assigning tort liability and turns on whether the employer exercises control over the employee. Kelley v. Rossi, supra. In addition to the level of control, the court may look to other “indicia of the employment relationship,” including method of payment, level of skill required in the occupation, employer's provision of tools, instrumentalities, and place of work, “and the parties' understanding of the nature of the relationship created.” National Assn. of Govt. Employees v. Labor Relations Commn., 59 Mass.App.Ct. 471, 474 (2003). See Restatement (Second) of Agency § 220 (1958).
Here, the Commonwealth presented sufficient evidence for the trial judge to find beyond a reasonable doubt that Soyoye was a “public employee.” The Commonwealth offered testimony that Soyoye worked as a at the RMV during the undercover operation. The witness testified that one of his targets in the undercover operation told him that Soyoye “was gonna be doing license[s] after four o'clock, that they was gonna send them in to her.” The witness further testified that he went to Soyoye's booth and that she proceeded to type on a computer. The witness testified that shortly after he took the written test, Soyoye gave him a learner's permit with his picture on it and instructions on how to take the driving test. In addition, the Commonwealth produced a videotape containing footage of the witness interacting with Soyoye at the RMV. This evidence was sufficient to infer that at the time of the crime, Soyoye was under the direction and control of the RMV, a “public employer,” because she performed duties assigned to her by the RMV, she used RMV workspace and equipment, and this was not a highly skilled job sufficient to make her an independent contractor. The fact that she received a paycheck from elsewhere is not dispositive.
For these reasons, as well as substantially those in the brief of the Commonwealth, that portion of the motion judge's order allowing the defendant's motion for new trial is reversed. That order is otherwise affirmed. The judgments are affirmed.
So ordered.