Commonwealth v. Lavoie, 09–P–838.

• Decision Date: 30 November 2011
• Docket Number: No. 09–P–838.,09–P–838.
• Citation: 954 N.E.2d 547,80 Mass.App.Ct. 546
• Parties: COMMONWEALTHv.Matthew G. LAVOIE.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 546
954 N.E.2d 547

COMMONWEALTH
v.
Matthew G. LAVOIE.

No. 09–P–838.

Appeals Court of Massachusetts, Middlesex.

Argued Dec. 6, 2010.Decided Oct. 3, 2011.Further Appellate Review Granted Nov. 30, 2011.

[954 N.E.2d 548]

Leslie W. O'Brien, Boston, for the defendant.Hallie White Speight, Assistant District Attorney, for the Commonwealth.Present: COHEN, GRAHAM, & WOLOHOJIAN, JJ.COHEN, J.

[80 Mass.App.Ct. 546] Four years after he was convicted of murder in the second degree, the defendant filed a motion for a new trial, claiming that his trial counsel had provided constitutionally ineffective assistance by failing to object to the closure of the courtroom during jury selection. The trial judge carefully considered the motion, conducting an evidentiary hearing that [80 Mass.App.Ct. 547] spanned two days and involved testimony from six witnesses.¹ On April 2, 2009,the

[954 N.E.2d 549]

judge denied the motion in a detailed decision that did not have the benefit of significant appellate opinions that soon followed.² As it turned out, the judge's reasoning was prescient in some respects, but not in others. After independently applying current law to the judge's findings, we conclude that the courtroom closure violated the defendant's right to a public trial under the Sixth Amendment to the United States Constitution,³ and, because the defendant did not waive that right, the denial of the defendant's motion for a new trial must be reversed.

Background. The judge's findings, supplemented by uncontested facts contained in the docket and other court records, may be summarized as follows. On December 16, 2003, a Superior Court jury found the defendant guilty of murder in the second degree in the shooting death of Westley Vaananen. Shortly thereafter, the defendant moved to set aside the verdict pursuant to Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979), seeking the entry of a finding of not guilty or an order for a new trial. That motion was denied on June 21, 2004. On November 9, 2006, this court affirmed the defendant's conviction in an unpublished memorandum and order pursuant to our Rule 1:28. Commonwealth v. Lavoie, 67 Mass.App.Ct. 1114, 856 N.E.2d 917 (2006). The Supreme Judicial Court denied further appellate review on February 1, 2007. Commonwealth v. Lavoie, 448 Mass. 1103, 861 N.E.2d 28 (2007).

In the fall of 2007, the defendant became aware of a new [80 Mass.App.Ct. 548] Federal court decision addressing the constitutional implications of the exclusion of a defendant's family from the courtroom during jury selection.⁴ After speaking to his own family and being reminded that they had been asked to leave the courtroom during jury selection, the defendant contacted his appellate counsel, who proceeded to file the motion for a new trial, pursuant to Mass.R.Crim.P. 30(b), as appearing in 435 Mass. 1501 (2001). Until this point, the defendant had never raised any issue concerning the exclusion of his family from the courtroom. It was not the subject of objection at trial; nor was it argued in his rule 25(b)(2) motion or in his direct appeal.

The defendant's trial was held over four weeks in November and December, 2003, in courtroom 12B in the East Cambridge courthouse of the Middlesex division of the Superior Court Department. Jury selection occurred over two days: Thursday,

[954 N.E.2d 550]

November 20, and Monday, November 24.⁵ On Thursday, before the jury venire were brought in, court officers instructed the defendant's father, mother, and sister to leave the courtroom where they had been seated in the gallery, informing them that they would be permitted to return once the jury had been selected. As instructed, the family remained outside the courtroom for the entire day. When jury selection continued on Monday, the family members again were excluded by court officers. The selection process continued into Monday afternoon, when sixteen jurors (including alternates) finally were seated.

Courtroom security personnel excluded the defendant's family pursuant to a procedure they employed when the number of prospective jurors left no room for family members or other spectators to be seated at the beginning of the selection process. The judge had not been requested to issue an order removing the public from the courtroom during jury selection and was not made aware that this procedure was being used. In courtroom 12B, only eighty people could be seated in the gallery. Additional jurors sometimes were placed in one of the two jury [80 Mass.App.Ct. 549] boxes; but the other jury box was too close to the sidebar to permit the seating there of either prospective jurors or members of the public. Approximately eighty-two jurors were brought in on Thursday. There is no finding as to the number who were brought in on Monday.

As previously requested by the defendant and allowed by the judge, voir dire of prospective jurors included individual questioning at sidebar, as well as general questioning addressed to the venire as a whole. The defendant had waived his right to be present at sidebar during individual voir dire, and this waiver was confirmed by defense counsel at the inception of jury selection. However, as to the exclusion of the defendant's family from the courtroom, nothing was stated on the trial record; there was neither objection nor explicit waiver by the defendant or his attorney.

Of particular relevance are the following findings which we recite verbatim from the judge's decision.

“It is likely that, although [defense counsel] was acutely aware of the right to a public trial, he did not discuss that right with his client. The defendant did not discuss the fact that his family was asked to leave with his attorney, but claims to have been a little upset because he enjoyed the support that he received when his parents were in the courtroom. Although [defense counsel] does not have a specific recollection of the exclusion of the defendant's family during the course of the jury selection process in this case, he testified that, as a matter of practice, he does not object to family members and supporters being asked to leave the courtroom. He understood that courtroom 12B was crowded and that there was effectively no place for the family to sit other than among the potential jurors and he did not want supporters intermixed with the jurors. He did not want the court officers who he perceived engaged in a difficult job, to be interfered with during the selection process, and he did not feel that the removal of a family or supporters was worthy of an objection. Indeed, he preferred the family and supporters not to be in the courtroom during the selection process because, among other reasons, he viewed it to be a distraction when a lot of other things were ongoing. In this particular case, he knew [80 Mass.App.Ct. 550] that [the defendant's mother] was an emotional

[954 N.E.2d 551]

individual and thought that it would be a distraction for her to be in the courtroom. Moreover, the defendant's mother had been listed as [a] prospective witness and, therefore, would likely have been excluded pursuant to a sequestration order in any event. There is nothing in the record to indicate that at any time were any family members disruptive when they were inside the courtroom. Despite the fact that [defense counsel] had no specific recollection of the circumstances surrounding this case and courtroom closure, he had consciously decided prior to this trial not to object to the removal of family members or supporters during the jury selection process in courtroom 12B.”

On the basis of the foregoing facts, the judge determined that there had been an impermissible courtroom closure; that, although no contemporaneous objection had been made, there was no waiver, because the defendant, personally, had not knowingly, intelligently, and voluntarily waived his right to a public trial; and that prejudice would be presumed because the error was structural. However, the judge ultimately concluded that the defendant was not entitled to relief for two reasons: first, because the public would have made no meaningful observations of the voir dire process, which was done largely at sidebar, and thus the closure made no material difference to the case; and second, because trial counsel's failure to object was a tactical decision that was not “manifestly unreasonable.” As we explain below, these two reasons for denying relief are inconsistent with subsequently decided case law.

Discussion. Neither the defendant nor the Commonwealth challenges any of the judge's factual findings. At issue is the application of the law to the facts found. We derive the template for analysis from Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106–119, 921 N.E.2d 906 (2010) ( Cohen ), which held in the context of a direct appeal that a partial closure of the courtroom during jury selection had violated the defendant's Sixth Amendment right to a public trial, that he had not waived that right, and that this structural error mandated reversal and remand for a new trial. Cohen followed closely on the heels of the United States Supreme Court decision in Presley v. Georgia, –––U.S. ––––, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), a [80 Mass.App.Ct. 551] per curiam opinion holding that, under well-settled law, the Sixth Amendment right to a public trial extends to jury voir dire and that closure during this phase of the trial must meet the standards provided in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Waller sets out a four-factor test for determining whether a courtroom closure comports with constitutional requirements: closure must be justified by an overriding interest that is likely to be prejudiced; 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 closure. Id. at 48, 104 S.Ct. 2210.

As...