Opinion
13-P-494
03-20-2017
COMMONWEALTH v. Oscar ROSA.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
This case comes before us for the second time. Our first review addressed the defendant's appeal from a conviction of murder in the second degree and an order denying his first motion for a new trial, both of which were affirmed in Commonwealth v. Rosa , 79 Mass. App. Ct. 1113 (2011). Subsequently, the defendant, pro se, filed two additional motions for a new trial, both of which were denied. In addition, the defendant's present appellate counsel filed a separate motion for a new trial, the basis of which was the defendant's claim, raised for the first time, that his right to a public trial was violated. That motion also was denied. The defendant's appeals from the orders denying the two pro se motions and the motion filed by counsel, which were consolidated for briefing and decision, are now before us. We affirm.
Background . We recite those details relevant to the defendant's public trial claim. On the day of jury empanelment, defense counsel requested that the defendant's family be allowed in the court room. The record does not indicate that defense counsel objected to the exclusion of any family members, two of whom were potential witnesses subject to sequestration. The record is unclear as to who, if anyone, from the defendant's family was absent from the court room, and if they were, the reason for their absence. The public trial issue was not raised on direct appeal, nor in the defendant's first motion, see Rosa , supra , or second motion for a new trial.
This issue first surfaced in November, 2013, when the defendant's appellate counsel filed the defendant's third motion for a new trial, accompanied by three affidavits and a letter from the defendant's trial counsel. Trial counsel's letter stated that he had "no memory ... at all" concerning whether the court room was closed during jury empanelment and "[did] not recall anything in particular about whether the courtroom was closed at any point during ... trial." The first affidavit, signed by the defendant's sister (who had been identified as a potential witness), claims that on the first day of trial a court officer told everyone in the court room, including the defendant's sister and mother, that they would need to leave. The second affidavit, signed by the defendant's cousin (who also had been identified as a potential witness) claims that on the first day of trial, members of the defendant's family waiting outside the court room had told him that he "was not allowed to enter the courtroom and that they had been told to wait outside." The last affidavit, signed by the defendant, stated that his mother, sister, and several friends, who had told him that they would attend the trial, were not in the court room on the first day of trial and that when he asked trial counsel where they were, he stated that the court officers had directed the defendant's family and other spectators to leave because their seats would be needed for the jurors.
Discussion . The Sixth Amendment to the United States Constitution guarantees the right to a public trial. That right extends to having the public present during jury selection. Commonwealth v. Wall , 469 Mass. 652, 672 (2014). Although the violation of a defendant's right to a public trial is structural error, it is subject to waiver. See Commonwealth v. Celester , 473 Mass. 553, 578 (2016). "Where defense counsel [does] not object to any alleged court room closure at trial, and the defendant fail[s] to raise the claim in his first motion for new trial, ... the defendant's right to a public trial during jury empanelment has been waived." Wall , supra at 673. See Commonwealth v. Deeran , 397 Mass. 136, 139 (1986) (waiver occurs when defendant fails to assert "reasonably available grounds for postconviction relief in his first rule 30 motion"). To overcome a waiver, the defendant must demonstrate prejudice. See Commonwealth v. LaChance , 469 Mass. 854, 857-858 (2014), cert. denied, 136 S. Ct. 317 (2015). Prejudice occurs when the closure of a court room would subject the defendant to a substantial risk of a miscarriage of justice. Id . at 856.
"The procedural waiver of a claim, as opposed to a defendant's express or implied consent to the loss of a substantive constitutional right, need not be ‘knowing’ and ‘intelligent.’ " Deeran , supra at 142.
Our jurisprudence offers numerous cases on the issue of a defendant's right to a public trial, as challenged either by way of a direct appeal or a collateral attack. See Wall , supra at 672-673. "[W]here the defendant has procedurally waived his Sixth Amendment public trial claim by not raising it at trial, and later raises the claim as one of ineffective assistance of counsel in a collateral attack on his conviction , 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" (emphasis supplied). LaChance , supra at 856. For challenges to the right to a public trial raised on collateral attack, we apply the procedural default rule. See, e.g., Commonwealth v. Alebord , 467 Mass. 106, cert. denied, 134 S. Ct. 2830 (2014) ; Commonwealth v. Morganti , 467 Mass. 96, cert. denied, 135 S. Ct. 356 (2014) ; LaChance , supra .
Prior to oral argument, the defendant moved to stay proceedings pending the United States Supreme Court's decision in Commonwealth v. Weaver , 474 Mass. 787 (2016), cert. granted, 85 U.S.L.W. 3340 (Jan. 19, 2017). That motion was denied. In Weaver , unlike the present case, the issue was raised on direct appeal, id . at 788, and the record indicated that the defendant's family members were excluded during empanelment, id . at 813.
This case is controlled by Alebord , Morganti , and LaChance . The defendant failed to raise the public trial issue in his direct appeal or first motion for a new trial, thus waiving the issue and requiring that he demonstrate prejudice. While it is far from clear on the present record if anyone in the defendant's family was wrongfully excluded from any portion of jury empanelment, we will assume, as did the motion judge, that some were excluded, at least for a brief period of time. However, the defendant has still failed to demonstrate that he suffered prejudice from any such exclusion. See LaChance , supra at 857-858. Despite the defendant's position that he should not be required to show prejudice when the waived issue is a structural error, our obligation is to apply existing precedent to cases before us until such time as that precedent is no longer binding. See Commonwealth v. Vasquez , 456 Mass. 350, 356-357 (2010) ("[S]o long as [the Supreme Judicial Court's] holding has not been abrogated, it is the law the judge must apply"). Therefore, we find no abuse of discretion in the judge's denial of the motions for a new trial.
The record does not clearly indicate who was excluded.
Our conclusion is buttressed by defense counsel's concession in oral argument that if the procedural default rule applies, the appeal does not succeed.
Conclusion . Because we find that the defendant waived his right to a public trial and failed to show prejudice from that waiver, we affirm the orders denying his motions for a new trial.
We find nothing in the other arguments raised by the defendant that requires discussion. See Commonwealth v. Domanski , 332 Mass. 66, 78 (1954).
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So ordered .
Affirmed .