Commonwealth v. Lavoie

• Citation: 981 N.E.2d 192,464 Mass. 83
• Decision Date: 11 January 2013
• Docket Number: SJC–11106.
• Parties: COMMONWEALTH v. Matthew G. LAVOIE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

464 Mass. 83

981 N.E.2d 192

COMMONWEALTH

v.Matthew G. LAVOIE.

SJC–11106.

Supreme Judicial Court of Massachusetts, Middlesex.

Submitted Sept. 5, 2012.

Decided Jan. 11, 2013.

Hallie White Speight, Assistant District Attorney, for the Commonwealth.

Leslie W. O'Brien for the defendant.

The following submitted briefs for amici curiae:

Edmund D. LaChance, Jr., pro se.

Richard C. Felton, pro se.

Timothy J. Cruz, District Attorney, & Mary Lee, Assistant District Attorney, for District Attorney for the Plymouth District.

Donald A. Harwood for Committee for Public Counsel Services.

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

IRELAND, C.J.

We granted the Commonwealth's application for further appellate review to consider whether a Superior Court judge properly denied the defendant's motion for a new trial, in which he claimed that his right to a public trial was violated when his counsel failed to object to the exclusion of family members from the court room during jury selection. The Appeals Court concluded that the defendant's right to a public trial was violated, reversed the denial of the defendant's motion, and vacated the judgment. Commonwealth v. Lavoie, 80 Mass.App.Ct. 546, 547, 954 N.E.2d 547 (2011). Because we conclude that counsel may waive a defendant's right to a public trial during jury selection without express consent and, in the circumstances here, that counsel's decision was a reasonable tactical decision, we affirm the denial of the defendant's motion for a new trial.

Facts and procedure. In 2003, the defendant was convicted of murder in the second degree, and the Appeals Court affirmed the conviction in an unpublished memorandum and order issued pursuant to its rule 1:28. Commonwealth v. Lavoie, 67 Mass.App.Ct. 1114, 2006 WL 3247243 (2006).

In 2007, in light of a decision by a Federal court, the defendant moved for a new trial, arguing that his right to a public trial under the Sixth and Fourteenth Amendments to the United States Constitutionwas violated when court officers excluded his family from the court room during jury selection and his counsel failed to object.¹ The trial judge conducted an evidentiary hearing on the defendant's motion on August 28 and September 11, 2008. In his written findings of fact, rulings of law, and order, the judge found the following facts.

Jury selection for the 2003 trial was conducted in court room 12B in the Cambridge court house of the Middlesex division of the Superior Court Department. On the first day of jury selection, the defendant, who had requested an individual voir dire of prospective jurors, waived his right to be present at sidebar where voir dire was conducted. Before the venire was brought in, court officers instructed the defendant's father, mother, and sister to leave the court room. The judge was not aware that this had happened. It appears that court officers in the Cambridge court house cleared the public from court rooms during jury selection in situations where the size of the venire would leave insufficient room for family members to sit separately from the potential jurors. The defendant knew that his relatives were leaving the court room; he was a “little upset” but did not discuss the issue with his attorney. The family had a “very good” relationship with the court officers, who “updated them about how the process was proceeding.” Jury selection lasted two days.²

At the motion hearing, defense counsel testified to his reasons for not objecting, which the judge implicitly credited. Defense counsel stated that it was not his usual practice to object when court officers cleared the court for jury selection because he was aware that space was often insufficient, and he did not want to interfere with “court officers who he perceived engaged in a difficult job” or to have family members sitting near potential jurors. Defense counsel also expressed his belief that family members could present a distraction and, specific to this case, stated his concern that the defendant's mother “was an emotional individual [who would] be a distraction.” Although defense counsel had no specific recollection of court officers excluding the defendant's family during jury selection and did not discuss this issue with the defendant, “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.”

The judge determined that the court officers' exclusion of the defendant's family, where the jury venire was so large as to “occup[y] the entirety of the public seating area of the courtroom,” constituted structural error. The judge stated that even though he conducted the “vast majority of the [jury selection] process outside the public's hearing” (i.e., through individual voir dire), the two-day closure of the court room violated the defendant's Sixth Amendment rights, which were not waived. ³ The judge also noted that, in accordance with Owens v. United States, 483 F.3d 48 (1st Cir.2007), he would have allowed family members in the court room “once prospective jurors began to leave” and the need for the exclusion “dissipated.”

However, the judge also reasoned that because the defendant had not raised any issue concerning the denial of his right to a public trial until this new trial motion, the issue to be decided was whether justice had been done. See Mass. R. Crim. P. 30(b), as appearing in 435 Mass. 1501 (2001). The judge concluded that there was no miscarriage of justice because closing court room 12B during jury selection did not materially impact the case or verdict and that defense counsel's failure to object to the closure was a reasonable tactical decision.⁴ He denied the defendant's motion for a new trial. The defendant appealed. A divided Appeals Court concluded that the defendant's right to a public trial had been violated. Commonwealth v. Lavoie, supra at 547, 954 N.E.2d 547.

Discussion. A defendant has a constitutional right to a public trial, which includes the jury selection process. Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106, 921 N.E.2d 906 (2010), citing Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 723–724, 175 L.Ed.2d 675 (2010) (right to public trial granted by First and Sixth Amendments to United States Constitution). The right to an open court in criminal proceedings is “an effective restraint on possible abuse of judicial power,” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948), which functions for “the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned.” Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

Conducting jury selection in open court permits members of the public to observe trial proceedings and promotes fairness in the judicial system. Commonwealth v. Cohen (No. 1), supra at 106, 921 N.E.2d 906, citing Press–Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). However, the right to a public trial is not absolute; a judge may permit closure of a court room if the closure satisfies the necessary requirements. Waller v. Georgia, supra at 44–45, 104 S.Ct. 2210, citing Globe Newspaper Co.v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982).⁵

The parties do not dispute the judge's findings that court room 12B of the Superior Court was closed for two days during jury selection,⁶ or his determination that defense counsel's lack of objection during jury selection was a tactical decision.⁷ Instead, they argue whether counsel effectively waived the defendant's right to a public trial.⁸

As the United States Supreme Court has noted, “[f]or certain fundamental rights, the defendant must personally make an informed waiver. For other rights, however, waiver may be effected by action of counsel.” (Citations omitted.) Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008), quoting New York v. Hill, 528 U.S. 110, 113–114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000). A requirement of the defendant's express personal and knowing waiver preserves the basic rights of the accused and raises considerations of the trial process, such as counsel's “full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 418, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). See United States v. Gonzalez–Lopez, 548 U.S. 140, 152, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (trial court has latitude to balance Sixth Amendment right to counsel with needs of fairness and efficiency of trial process). Counsel is best equipped to make “[n]umerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance.” Gonzalez v. United States, supra at 249, 128 S.Ct. 1765. These choices, which depend “upon tactical considerations of the moment and the larger strategic plan for the trial,” promote a fair trial process. Id. (where counsel gives express consent, magistrate judge may preside over jury selection process in felony criminal trial).

The defendant argues that the judge was correct to conclude that the defendant had not waived his right to a public trial because “there was no explicit waiver by the defendant or his attorney, and ... defense counsel could not waive his client's rights without ever discussing the issue of his right to a public trial with him.” The defendant further states that a waiver of this right could not have occurred where he did not know he had such a right or understand that his counsel made a decision concerning that right. The Commonwealth argues that counsel may waive the defendant's right to a public trial without the defendant's personal consent, and asserts that where a defendant has waived a right, no constitutional violation has occurred.

Although the Appeals Court has stated that the right to a public trial can be waived only with a defendant's consent, this is a...