Opinion
No. 12–P–114.
2013-03-27
COMMONWEALTH v. Edward BROCKELBANK.
By the Court (KAFKER, GRAHAM & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Edward Brockelbank, appeals from the denial of his motion for a new trial without an evidentiary hearing. His motion alleges the full or partial closure of the court room during jury selection, in violation of his right to a public trial. See generally Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106–107 (2010). The motion judge, who was not the trial judge, found no closure. We conclude that “a substantial issue is raised and is supported by a substantial evidentiary showing,” and therefore “the judge should hold an evidentiary hearing.” Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). We accordingly vacate and remand for further proceedings. The contemporaneous record of the empanelment at the defendant's trial, consisting mainly of an incomplete transcript, is ambiguous as to whether any members of the public would have been, or actually were, excluded from either the general voir dire or the individual questioning of jurors in the judge's lobby. The defendant submitted in support of his motion an affidavit of trial counsel, which stated that “during jury empanelment, the individual voir dire was conducted in the judge's lobby, per the Court's order, and ... the public was not invited or permitted to attend.” The defendant also included an affidavit from his sister, who averred that trial counsel told her to wait outside the court room and that she and two other family members “were not permitted to attend any portion of the trial because we were potential witnesses.” Trial counsel, however, denies any memory of instructing a family member to wait outside the court room, but adds, “[i]f I did, it would have been at the direction of a court officer.” The Commonwealth filed an affidavit from an assistant district attorney, which denies that the court room was locked and indicates, upon information and belief, that a sequestration order had prevented any potential witnesses from attending “any portion of the trial (aside from their own testimonies) except for closing arguments.”
The trial judge is deceased. The trial took place ten years before the public trial issue was raised. The motion judge, we understand, was in an unenviable position and was understandably skeptical about what an evidentiary hearing would produce given the passage of time. Nonetheless, given the gaps in the record and the specific representations of defense counsel and the Commonwealth referenced within, we conclude that an evidentiary hearing is necessary, and, at a minimum, credibility determinations are required.
The motion judge found that the defendant had not met his burden of showing closure because the only three members of the public he identified as having been excluded (his family members) were potential witnesses and therefore subject to sequestration. However, it is uncertain from the record whether potential witnesses were subject to sequestration during jury selection or otherwise at trial; the prosecutor conceded in her affidavit that “no official motion for sequestration of witnesses was filed by either myself or trial counsel for the defendant.” She does not state the basis for her “information and belief” that a sequestration order or practice was in effect. See Commonwealth v.. Gordon, 82 Mass.App.Ct. 389, 401 (2012) (remanding for evidentiary hearing based on “ambiguities and gaps in the affidavits”). The motion judge also did not resolve the tension between the sister's statement that trial counsel told her to wait outside the court room and trial counsel's uncertainty whether that was the case. An evidentiary hearing is required to address whether the defendant's family members were subject to sequestration at the time, and whether any members of the public improperly were excluded from the general voir dire. See Commonwealth v. Buckman, 461 Mass. 24, 29 & n. 2 (2011), cert. denied, 132 S.Ct. 2781 (2012).
It is also unclear whether a sequestration order would have applied to jury empanelment. Compare Commonwealth v. Cohen (No. 1), 456 Mass. at 101 n. 10 (noting that potential witness “would not have been allowed in the court room for empanelment in any event because of a witness sequestration order”) with Commonwealth v. Buckman, 461 Mass. 24, 29 n. 2 (2011), cert. denied, 132 S.Ct. 2781 (2012) (indicating that sequestration order “ordinarily would not include the exclusion of [potential] witnesses from the jury empanelment portion of the trial proceedings”).
Moreover, the record is presently insufficient to determine whether a court room closure occurred during the individual voir dire in the judge's lobby. The affidavit from trial counsel asserts that the public was “not invited or permitted to attend” the individual voir dire. If this is true, that procedure “constituted a full closure in the constitutional sense.” Commonwealth v. Grant, 78 Mass.App.Ct. 450, 457 (2010). The Commonwealth should have “the opportunity to challenge the evidence presented in the affidavits” at an evidentiary hearing. Commonwealth v. Gordon, supra at 395. See Commonwealth v. Grant, supra at 456.
Without making credibility findings, the motion judge, however, concluded that “there is no showing that any member of the public—with the exception of the three potential witnesses—[was] excluded from the court room or lobby during jury selection.”
The motion judge also should make more detailed findings concerning whether the defendant waived his right to a public trial by his, and trial counsel's, failure to object. See Commonwealth v. Dyer, 460 Mass. 728, 736–737 & n. 8 (2011), cert. denied, 132 S.Ct. 2693 (2012); Commonwealth v. Lavoie, 464 Mass. 83, 88–89 (2013). Although trial counsel's affidavit denies that the defendant or trial counsel waived the right to a public voir dire, there is no affidavit from the defendant, and the transcript does not indicate any objection to the voir dire procedure. See Commonwealth v. Cohen (No. 1), 456 Mass. at 118 n. 35 (“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”). On the contrary, counsel indicated that the defendant was waiving his right to be present at sidebar during jury selection, which is not dispositive of waiver but may be relevant. See id. at 116–117. Cf. Commonwealth v. Dyer, supra at 735 n. 6.
Unlike in Lavoie, the defendant here makes no claim of ineffective assistance of counsel.
Due to these substantial and unresolved legal and factual issues, we vacate the order denying the defendant's motion for a new trial and remand for further proceedings consistent with this decision.
So ordered.