Com. v. Martin

• Decision Date: 02 March 1994
• Citation: 417 Mass. 187,629 N.E.2d 297
• Parties: COMMONWEALTH v. Craig MARTIN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 297

629 N.E.2d 297

417 Mass. 187

COMMONWEALTH v. Craig MARTIN.

Supreme Judicial Court of Massachusetts Barnstable.

Argued Dec. 6, 1993.

Decided March 2, 1994.

Brownlow M. Speer, Committee for Public Counsel Services, Boston (Charles L. Johnson, Committee for Public Counsel Services, with him) for defendant.

Julia K. Holler, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

The defendant, Craig Martin, appeals from his convictions of indecent assault and battery on a child under the age of fourteen years, and of forcible rape of a child under the age of sixteen years. The defendant argues error in the closing of his trial to the public during the testimony of the minor complainant, in precluding the admission of certain evidence, and in allowing a witness to testify concerning her suspicion that the defendant had committed the crimes. We transferred the case to this court on our own motion. We reverse the convictions and remand for a new trial on the ground that testimony concerning a witness's suspicions that the defendant acted in a particular way was erroneously admitted and prejudicial. The facts follow.

On October 12, 1990, the complainant, then thirteen years old, accompanied by her girl friend, Beth Ashley, attended a party at the home of Christine Ashley, Beth's sister, who lived with the defendant and his younger sister in Hyannis. The complainant consumed beer and smoked marihuana at the party. She later became dizzy and physically ill and retired to the master bedroom, where she fell asleep on a couch.

At some point that night, the complainant awoke to find two males standing next to her in the bedroom. One of the men identified himself as "Craig." The other man was Carlos Lopez. ¹ The men removed the complainant's pants and undergarments, and she was led outside by the man who identified himself as Craig. He took her to a tent in the defendant's back yard, and there he raped her. Thereafter, he brought her to a neighboring yard and forced her to perform fellatio. He then instructed her to return to the house and get dressed.

Beth Ashley and Christine Ashley had noticed that the complainant was not in the bedroom, and that both the defendant and Lopez were absent from the party. They went outside with the defendant's sister and repeatedly called for the missing parties. After the defendant and Lopez returned, the women went back into the house. Christine then found the complainant on the bedroom floor. The complainant was dressed, but her pants were unzippered and she was not wearing shoes. Christine physically ousted the complainant from the house. Christine thereafter argued with the defendant.

1. Christine Ashley's testimony. Christine Ashley, the defendant's girl friend, testified for the Commonwealth. During direct examination, she testified that on discovering the complainant on her return to the bedroom, she had "instincts that something happened," so she forcibly removed the complainant from the house. Her instincts were "[t]hat [the defendant] had something to do with her." Defense counsel objected to further questions. The judge overruled the objection. The witness thereafter responded affirmatively to the following question: "And you had suspicion that Craig had something sexually to do with [the complainant]?" This testimony was allowed. ²

The defendant argues that the judge erred in overruling defense counsel's objection to questions concerning Christine's instincts and suspicions about the defendant's conduct. The defendant further argues that his objection was timely, and that admission of the testimony was prejudicial and warrants reversal. We agree.

Christine had no first-hand knowledge of any relation between the defendant and the complainant. Her instinct or suspicion that the defendant had "something [sexually] to do" with the complainant was not based in fact, and was therefore irrelevant. See Commonwealth v. Lennon, 399 Mass. 443, 445-446, 504 N.E.2d 1051 (1987), and cases cited. The testimony was thus erroneously admitted. We cannot say that the error was harmless, as the prosecutor repeatedly discussed the testimony and stressed its importance to the jury during closing argument. ³

The Commonwealth argues that defense counsel's objection to this testimony was untimely. We disagree. The witness first testified that she removed the complainant from the house because she had "instincts" that the defendant "had something to do with [the complainant]." Defense counsel objected when the Commonwealth asked what those instincts or suspicions were. It was then apparent that any response would be inadmissible. The objection was not untimely, and was sufficient to preserve the issue for appeal. See Commonwealth v. Cancel, 394 Mass. 567, 573, 476 N.E.2d 610 (1985).

Accordingly, we reverse the convictions and remand this case for a new trial.

2. G.L. c. 278, § 16A. Prior to the complainant's testimony, the Commonwealth requested that the judge close the proceedings while the minor complainant testified, pursuant to G.L. c. 278, § 16A (1992 ed.). The Commonwealth argued that, because of the complainant's age and the nature of the crimes, it would be "very difficult for [her] to testify." The Commonwealth further explained that it had been difficult for the complainant to talk about the crimes "in private." Over defense counsel's objection, the judge ordered that the courtroom be closed during the testimony of the complaining witness. ⁴

The defendant argues error. We discuss issues concerning closure of proceedings under G.L. c. 278, § 16A, as such issues are likely to arise subsequently in similar circumstances. Our examination is limited to § 16A as it applies to proceedings wherein minor complainants of sexual offenses are called to testify. ⁵

Closing criminal proceedings from public attendance potentially implicates either of two rights guaranteed by the First and Sixth Amendments to the United States Constitution. The public in general has a First Amendment ⁶ right of access to criminal trials. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 102 S.Ct. 2613, 2618, 73 L.Ed.2d 248 (1982), rev'g 383 Mass. 838, 423 N.E.2d 773 (1981) (Globe II). This implied right is grounded in history and tradition, and serves the valuable purpose of permitting public participation in and scrutiny of the judicial process. Id. at 604-606, 102 S.Ct. at 2618-20. Similarly, criminal defendants have a right, provided expressly in the Sixth Amendment, to a public trial. ⁷ This right ensures fairness in criminal proceedings, encourages individuals to come forward and testify, and discourages false testimony. See Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984).

These two constitutional rights, however invaluable, are not absolute. In limited circumstances, the press and public may be barred from criminal proceedings. See Globe II, supra 457 U.S. at 606-607, 102 S.Ct. at 2619-20. Because of the stature of the rights at stake, however, "it must be shown that [closure] is necessitated by a compelling governmental interest, and is narrowly tailored to serve that government interest." Id. at 607, 102 S.Ct. at 2620. ⁸

General Laws c. 278, § 16A, states in part that, "[a]t the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed ... the presiding justice shall exclude the general public from the court room." As written, § 16A mandates closure of proceedings during the testimony of minor complainants of sexual offenses. Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 861, 401 N.E.2d 360, rev'd, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980) (Globe I ). The purpose of this section "is to encourage young victims of sexual offenses to come forward; once they have come forward, the statute is designed to preserve their ability to testify by protecting them from undue psychological harm at trial." Id. at 860, 401 N.E.2d 360.

The United States Supreme Court has recognized as a compelling State interest the psychological well being of minor complainants of rape and other sexual offenses. Globe II, supra 457 U.S. at 607, 102 S.Ct. at 2620. However, "as compelling as that interest is, it does not justify a mandatory closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest." Globe II, supra at 607-608, 102 S.Ct. at 2620-21. Thus, the Supreme Court ruled that the requirement of mandatory closure in § 16A is unconstitutional. Id. at 610-611 & n. 27, 102 S.Ct. at 2622 & n. 27 ("We emphasize that our holding is a narrow one: that a rule of mandatory closure respecting the testimony of minor sex victims is constitutionally infirm"). Trial judges must therefore determine on a case-by-case basis "whether closure is necessary to protect the welfare of a minor victim." Id. at 608, 102 S.Ct. at 2621.

Accordingly, criminal proceedings in this Commonwealth may be closed to the public under G.L. c. 278, § 16A, only on a determination by a trial judge that closure is necessary to prevent psychological harm or trauma to the minor witness. In making this determination, the judge shall consider the age, maturity, and desires of the complainant, the nature of the alleged crime, and the interests of the complainant's parents and relatives. Id. at 608, 102 S.Ct. at 2621. Further, the determination must satisfy four requirements articulated by the Supreme Court: " the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the...