Commonwealth v. Alebord

• Decision Date: 12 February 2014
• Docket Number: SJC–11354.
• Parties: COMMONWEALTH v. Glen S. ALEBORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 106

4 N.E.3d 248

COMMONWEALTH

v.Glen S. ALEBORD.

SJC–11354.

Supreme Judicial Court of Massachusetts,

Plymouth.

Submitted Oct. 8, 2013.

Decided Feb. 12, 2014.

Chauncey B. Wood, Boston, for the defendant.

Mary E. Lee, Assistant District Attorney, for the Commonwealth.

Edmund D. LaChance Jr., pro se, amicus curiae, submitted a brief.

Sharon Fray–Witzer for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, & DUFFLY, JJ.

CORDY, J.

On February 5, 2004, at the Superior Court in Brockton, the defendant was convicted by a jury of murder in the second degree for the shooting death of Benjamin Shiren. During jury empanelment the court officers closed the court room to all members of the public, as was the custom and practice at the time in that court. Among those excluded were Katrina Lawson, Lorraine Wilder, and William Wilder, the defendant's friend, sister, and brother-in-law, respectively.¹ The defendant did not object to the court room closure, nor did he raise any claim relating to its closure in his first motion for a new trial, which was denied in 2005, or in his direct appeal, which was decided in 2006. See Commonwealth v. Alebord, 68 Mass.App.Ct. 1, 859 N.E.2d 440 (2006).

In 2008, the defendant filed a second motion for new trial, claiming that the closure of the court room was structural error necessitating reversal. After an evidentiary hearing, the motion judge, who was also the trial judge, found that no closure had occurred and that, at any rate, the defendant had waived his claim by failing to raise it at trial or on appeal.

The Appeals Court vacated the decision and remanded the case for further proceedings consistent with its view that the right to a public trial under the Sixth Amendment to the United States Constitution may be waived only by a personal and knowing waiver by the defendant, either personally or through counsel. Commonwealth v. Alebord, 80 Mass.App.Ct. 432, 438–439, 953 N.E.2d 744 (2011).² On remand, the judge again denied the defendant's motion for new trial, finding that, although the defendant had not waived his right to a public trial, the eighty-minute closure of the court room for jury empanelment was de minimis. On appeal, the defendant argues that the exclusion of his family and friend from the court room constituted a violation of his right to a public trial pursuant to the Sixth Amendment to the United States Constitution. He avers that the eighty-minute closure could not have been de minimis, and that it instead constituted structural error, requiring an automatic reversal of his conviction.

Although we conclude that the closure of the court room for the entire empanelment process was not de minimis, we affirm the order denying the defendant's second motion for new trial on other grounds. The defendant waived his right to a public trial where his experienced trial counsel was aware that the court room was routinely closed to spectators during the jury empanelment process and did not object. Further, defense counsel's failure to raise such an objection did not fall “measurably below that which might be expected from an ordinary, fallible lawyer” at the time. See Commonwealth v. Morganti, 467 Mass. 96, 103–105 4 N.E.3d 241 (2014). Thus, the defendant's motion for new trial was properly denied.

1. The court room closure. Following the defendant's filing of his second motion for new trial, the judge held an extensive evidentiary hearing in order to determine whether the court room was closed during the jury empanelment in this case. The hearing also encompassed more broadly the practices of court officers and defense counsel at the Superior Court in Brockton (Brockton Superior Court) with regard to jury empanelments at the time of the trial in 2004.

The defendant first presented testimony from Lawson, Lorraine, and William. All three testified that they arrived at the court room on the morning of February 3, 2004, and waited outside the court room. They attempted to enter the court room with the jurors, but were prevented from doing so by a court officer stationed at the only public entrance to the room.

Lawson testified that she spoke to Attorney Jack Atwood, the defendant's trial counsel, before jury empanelment. She testified that, after jury empanelment concluded, “Jack Atwood came out and told us jury selection was picked and that we would be able to enter the court room.” She also testified that, when he asked her during the trial where she had been, she responded that she had not been allowed into the court room during jury empanelment. Lorraine essentially echoed Lawson's testimony regarding Atwood's knowledge that they were excluded. ³

With the court room cleared, seventy-two prospective jurors were brought in, leaving no seats available for any spectators.⁴ At defense counsel's request, the process of jury empanelment proceeded by way of individual juror questioning at sidebar. The empanelment process lasted approximately eighty minutes, during which fourteen jurors were empaneled.

Atwood testified that he saw Lorraine and Lawson on the first day of trial. ⁵ Although he could not recall specifically whether they were present in the court room for jury empanelment, he recalled that the public had been excluded from the court room during jury empanelment. He attributed this exclusion to the long-standing practice in Brockton Superior Court of closing the court room during jury empanelment.

Atwood went on to testify that, in thirty-six years of trying cases, he never had witnessed a trial in Brockton Superior Court in which the public was permitted to attend the jury empanelment process.⁶ He noted that, in his experience, “the court officers will clear the court room and say, ‘Everyone who's a witness or family, you have to leave, we'll let you back in after the jury selection has taken place.’ ” He never had objected to this exclusion. He also testified that he was aware of his client's Sixth Amendment right to a public trial, but that he was not cognizant at the time of trial that the right extended to the jury empanelment process.

Due to the fact that the case involved the killing of the African–American victim by the Caucasian defendant, Atwood was primarily concerned with excluding jurors who had heard of the case or might harbor racism. To that end, Atwood filed a motion for individual voir dire. Although he did not testify that his failure to object to the exclusion of the public from the empanelment process was a tactical decision, he acknowledged that he had requested individual voir dire largely to encourage candid answers outside public view. He further testified that, while focused on the process of jury empanelment, he “was hardly checking on the door [to the court room], frankly.” He also testified that the court room sometimes could not fit the entire venire.

The defendant also offered testimony from John Darrell, the attorney in charge of the Plymouth County office of the Committee for Public Counsel Services (CPCS).⁷ Darrell testified that, until 2007, the court officers at Brockton Superior Court, pursuant to their standard practice, invariably required all spectators to wait outside the court room during jury empanelment in order to fit all the members of the venire into the court room. ⁸

Darrell was similarly aware of his clients' right to a public trial. However, he did not object to the closure of the court room during jury empanelment in any of the hundreds of cases he had tried in the Brockton Superior Court. While unable to articulate a reason for his failure to object, Darrell testified that “[i]t seemed to work that way.”

Darrell also acknowledged that he subscribed to the “theory” that the privacy or secrecy of an individual voir dire is more conducive to obtaining candid answers from potential jurors, particularly in cases with racial or sexual undertones. Darrell also admitted that, while he had the ability to address the court room closure policy with the court, he never did so.⁹

At the conclusion of the evidentiary hearing, the Commonwealth argued that the defendant waived his claim of error by failing to object at trial. The Commonwealth further argued that the waiver did not constitute ineffective assistance of counsel because Atwood made the tactical decision to ask for an individual voir dire and to focus on the jury empanelment process rather than on the openness of the court room. Finally, the Commonwealth argued that even if the error were not waived, the closure did not violate the defendant's Sixth Amendment right because it was de minimis.

As noted, the motion judge initially denied the defendant's motion for new trial, in part because the defendant waived his objection, given counsel's failure to object to the exclusion of Lawson, Lorraine, and William.¹⁰ After her decision was vacated by the Appeals Court and the case remanded for further proceedings, the judge concluded that although the Commonwealth had failed to sustain its burden of establishing a waiver, because the defendant had not explicitly made a knowing, intelligent, and voluntary waiver, the defendant's Sixth Amendment rights were not violated because the closure was de minimis.¹¹

2. Discussion. The Sixth Amendment to the United States Constitution guarantees all criminal defendants “the right to a speedy and public trial.” See Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The right to a public trial extends to the jury selection process. Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). Owens v. United States, 483 F.3d 48, 66 (1st Cir.2007). Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106, 921 N.E.2d 906 (2010). “Conducting jury selection in open court permits members of the public to observe trial proceedings and promotes fairness in the judicial system.” Commonwealth v. Lavoie, 464 Mass....