Com. v. Hobbs

• Decision Date: 28 April 1982
• Citation: 385 Mass. 863,434 N.E.2d 633
• Parties: COMMONWEALTH v. Jackie J. HOBBS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 633

434 N.E.2d 633

385 Mass. 863

COMMONWEALTH v. Jackie J. HOBBS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Jan. 5, 1982.

Decided April 28, 1982.

Milly Whatley, Boston, for defendant.

Michael J. Traft, Asst. Dist. Atty. (Eugene M. Russell, Legal Asst. to the Dist. Atty., with him) for the Commonwealth.

Before HENNESSEY, C. J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted of several charges arising from an attack upon two children in their home. His principal argument on appeal is that he was denied a public trial. He also claims that the judge erred in refusing several requests concerning jury instructions, and in declining to question prospective jurors individually on the issue of racial bias. We find no error, and affirm the judgments of conviction.

The two victims, whom we shall refer to as Susan and Gary, are sister and brother. Susan, who was thirteen years old at the time of the crimes, testified that she had fallen asleep one evening at the foot of Gary's bed. She awoke to find the defendant, a stranger, removing her clothes. The defendant began to masturbate, and may have climbed onto the bed. When Susan tried to scream, the defendant grasped her throat. Susan could not recall whether he touched any other part of her body.

Gary, who was nine years old, gave a similar account. He awoke while the defendant was in the bedroom, and saw the defendant masturbating and assailing Susan. When Gary tried to push the defendant away from Susan, the defendant slapped Gary's leg and ordered him to lie down. Eventually, the defendant left, taking with him a bicycle kept in the front hall. Shortly thereafter police apprehended the defendant riding the bicycle. Both children identified him as their assailant.

The defendant was indicted by a grand jury for armed burglary, ¹ assault and battery with a dangerous weapon (upon Susan), indecent assault upon a child under fourteen (Susan), assault with intent to rape a child under sixteen (Susan), assault and battery (upon Gary), and larceny. On the first two of these charges, the jury found the defendant guilty of the lesser included offenses of unarmed burglary and assault and battery upon Susan. On the four remaining charges, they found him guilty as charged. The defendant appealed, and we transferred the case to this court on our own motion.

1. Exclusion of the Public.

The trial judge, at the request of the Commonwealth, and over the defendant's objection, excluded the general public from the courtroom during the testimony of both Gary and Susan at a pretrial hearing on a motion to suppress identification evidence, and during Susan's testimony at trial. Family of the defendant, members of the bar, and members of the press were allowed to remain. The defendant argues that closure during Gary's testimony was beyond the judge's authority under G.L. c. 278, § 16A, which governs public attendance at trials involving sexual offenses against children. He also contends that the closure violated his right to a public trial under the Sixth Amendment to the United States Constitution. ²

The Commonwealth raises a threshold question whether the concept of an open trial extends to a pretrial suppression hearing. ³ See Richmond Newspapers, Inc. v Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 2821, 65 L.Ed.2d 973 (1980); Gannett Co. v. DePasquale, 443 U.S. 368, 378-379, 387-388, 99 S.Ct. 2898, 2904-2905, 2909-2910, 61 L.Ed.2d 608 (1979). Cf. Globe Newspaper Co. v. Superior Court, 379 Mass. 846, --- - ---, Mass.Adv.Sh. (1980) 485, 490-491, 401 N.E.2d 360, vacated and remanded, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980), Id., --- Mass. ---, Mass.Adv.Sh. (1981) 1493, 423 N.E.2d 773 (hereinafter Globe I ). Certainly, the guarantee of a public trial does not apply to all aspects of the criminal process. See United States ex rel. Bennett v. Rundle, 419 F.2d 599, 605 (3d Cir. 1969), and cases cited. At a suppression hearing, closure may sometimes be necessary to protect the defendant's interests. See Commonwealth v. Jackson, 3 Mass.App. 288, 290, 327 N.E.2d 912 (1975); Gannett Co. v. DePasquale, supra 443 U.S. at 378-379, 99 S.Ct. at 2904-2905. The Supreme Court, however, has not taken a clear position with respect to a defendant's assertion of his Sixth Amendment right to a public trial at a suppression hearing, cf. id., and we prefer not to rest our decision on a possible distinction between trial and pretrial proceedings. See United States v. Clark, 475 F.2d 240, 246-247 (2d Cir. 1973); United States ex rel. Bennett v. Rundle, supra at 605-606. Therefore, we assume for purposes of this discussion that the same statutory and constitutional principles apply to Gary's pretrial testimony as would apply to his testimony at trial.

Both the Commonwealth, in requesting closure, and the judge, in granting it, relied exclusively on G.L. c. 278, § 16A. The Commonwealth gave no independent reasons for its request, stating simply that the statute required exclusion of the public during Susan's and Gary's testimony. The judge made no inquiry into the need to exclude the public in the circumstances at hand, and stated no findings. ⁴

General Laws c. 278, § 16A, provides that all persons except those directly interested in the case shall be excluded during trials at which defendants are charged with sexual offenses against children. In recognition of the essential role of public trials in our judicial process, and the interests of both the defendant and the public in open proceedings, we have read § 16A narrowly. Globe I, supra 379 Mass. at --- ---, at 492-496, Mass.Adv.Sh. (1980), 401 N.E.2d 360. See generally Globe Newspaper Co. v. Superior Court, --- Mass. ---, Mass.Adv.Sh. (1981) 1493, 423 N.E.2d 773, prob. juris. noted, --- U.S. ----, 102 S.Ct. 594, 70 L.Ed.2d 586 (1981) (hereinafter Globe II); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). In Globe I, supra 379 Mass. at ---, at 500, Mass.Adv.Sh. (1980), 401 N.E.2d 360, we held that the statute mandates closure only during the testimony of the child victim. Even then, friends and relatives of a defendant are considered to have a direct interest in the trial, and may stay. Commonwealth v. Blondin, 324 Mass. 564, 571, 87 N.E.2d 455 (1949), cert. denied, 339 U.S. 984, 70 S.Ct. 1004, 94 L.Ed. 1387 (1950).

In the present case, we believe that § 16A required exclusion of the public during the testimony of both Susan and Gary. Susan was clearly the victim of alleged sexual offenses. Although the indictments charged only simple assault and battery against Gary, he can also properly be considered a "victim," within § 16A. He was the child victim of a crime committed in connection with sexual offenses against another minor, and an eyewitness to the sex-related crimes. The sex offenses against Susan and the assault and battery against Gary were at issue in a single proceeding. In these special circumstances, Gary as well as Susan was protected by the statute.

Section 16A, as we have construed it, is consistent with the defendant's Sixth Amendment right to a public trial. ⁵ The right to an open trial is an important and time-honored right, basic to our system of justice, but it is not absolute. Commonwealth v. Stetson, --- Mass. ---, --- - ---, Mass.Adv.Sh. (1981) 2155, 2159-2161, 427 N.E.2d 926; Commonwealth v. Bohmer, 374 Mass. 368, 380, 372 N.E.2d 1381 (1978). See In re Oliver, 333 U.S. 257, 266-271, 68 S.Ct. 499, 504-506, 92 L.Ed. 682 (1948). See generally Note, The Right to a Public Trial in Criminal Cases, 41 N.Y.U.L.Rev. 1138, 1144-1146 (1966). Judges may exclude spectators from the courtroom when necessary to protect witnesses, shelter confidential information, or maintain order. See, e.g., Commonwealth v. Bohmer, supra 374 Mass. at 380-381, 372 N.E.2d 1381 (order); United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 693-696 (7th Cir. 1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978) (rape victim); United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274-1275 (2d Cir.), cert. denied, 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269 (1975) (informant); United States v. Bell, 464 F.2d 667, 669-670 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972) ("skyjacker" profile); United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2d Cir. 1965), cert. denied sub nom. Orlando v. Follette, 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021 (1966) (order); Geise v. United States, 262 F.2d 151, 156-157 (9th Cir. 1958), cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959) (child victim of sexual offenses). See generally Gannett Co. v. DePasquale, 443 U.S. 368, 388 n.19, 99 S.Ct. 2898, 2910 n.19, 61 L.Ed.2d 608 (1979). Additionally, we believe that the Legislature may require automatic closure in narrow situations, such as the testimony of child victims of sexual offenses, in which the need to protect witnesses is clear. Cf. Globe II, supra --- Mass. at --- - ---, at 1504-1505, Mass.Adv.Sh. (1981), 423 N.E.2d 773. Exclusion of the public protects witnesses' ability to testify by removing a source of fear, confusion, and distraction, and may encourage victims to report and prosecute crimes. Globe II, supra --- Mass. at ---, ---, Mass.Adv.Sh. (1981), at 1504, 1506, 423 N.E.2d 773; Globe I, supra 379 Mass. at ---, ---, Mass.Adv.Sh. (1980), at 485, 499, 401 N.E.2d 360. When the victim is a child who must testify about sexual incidents these interests justify a mandatory closure rule that is carefully tailored to the problems it is designed to alleviate, as is § 16A.

2. Variance Between Indictment and Instructions on Burglary Charge.

The defendant was indicted for armed burglary and convicted of unarmed burglary. The indictment charged that the defendant had broken and entered with intent "to commit a...