Commonwealth v. Morganti

• Decision Date: 12 February 2014
• Docket Number: SJC–11281.
• Citation: 467 Mass. 96,4 N.E.3d 241
• Parties: COMMONWEALTH v. Robert J. MORGANTI, JR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

467 Mass. 96

4 N.E.3d 241

COMMONWEALTH

v.Robert J. MORGANTI, JR.

SJC–11281.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Oct. 8, 2013.

Decided Feb. 12, 2014.

Donald A. Harwood for the defendant.

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

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

CORDY, J.

On June 13, 2003, at the Superior Court in Brockton, the defendant was convicted by a jury of murder in the first degree for the shooting death of Anthony LoConte. 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 Beverly Cocomile, Theresa Andrade, and Richard Cocomile, the defendant's mother, sister, and stepfather,respectively.¹ The defendant did not object to the court room closure, nor did he raise any claim relating to its closure in his direct appeal, which was decided in 2009. Commonwealth v. Morganti, 455 Mass. 388, 917 N.E.2d 191 (2009).

On November 19, 2010, after this court's ruling in Commonwealth v. Cohen (No. 1), 456 Mass. 94, 921 N.E.2d 906 (2010), that the right to a public trial under the Sixth Amendment to the United States Constitution extended to jury empanelment, the defendant filed a motion for a 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 the court room had been closed for the seventy-nine minutes that it took to empanel the jury, but she denied the defendant's motion on the grounds that the brevity of the closure made it de minimis.

On appeal, the defendant avers that the seventy-nine minute closure could not have been de minimis, and that it instead constituted structural error, requiring an automatic reversal of his conviction. Although we agree that the closure of a court room for the entire empanelment process is not de minimis, we affirm on other grounds. We conclude that the defendant waived his right to a public trial where his experienced trial counsel was aware of the closure and did not object. We further conclude that defense counsel's failure to raise such an objection did not fall “measurably below that which might be expected from an ordinary, fallible lawyer,” Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974), at the time, given the legal culture and practice in the Superior Court in Brockton (Brockton Superior Court) of acquiescence to the closure of the court room to facilitate jury empanelment. Thus, counsel was not ineffective, and the defendant's motion for new trial was properly denied.

1. The court room closure. Pursuant to the defendant's motion for new trial, the trial 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 general practices of Brockton Superior Court court officers and defense counsel with regard to jury empanelments at around the time of the defendant's trial in 2003.

The defendant first presented testimony from Beverly, Andrade, and Richard. All three testified that they were present in the court room on the morning of June 3, 2003, while the judge acted on the parties' motions in limine. Unbeknownst to the judge, at 11:02 a.m., before the jury venire was brought into the court room, the three were asked by the court officers to leave the court room during the empanelment process.

With the court room cleared, the prospective jurors were brought in, where, ordinarily, they took up all the available seats. The process of jury empanelment continued by way of individual jury questioning at sidebar. Sixteen jurors were empanelled and the court room was reopened seventy-nine minutes after it was closed.

Attorney Kevin Reddington, the defendant's trial counsel, testified that he was aware that Beverly and Andrade were not present in the court room during the jury empanelment process, despite the fact that they had been present for every court hearing up until that point.² He attributed their absence to the long-standing practice in Brockton Superior Court of closing the court room during jury empanelment.

Reddington, an established and respected trial attorney, went on to testify that he was aware of this practice, as, at the time of trial, he had seen it repeatedly during his twenty-eight years of practicing criminal law in the Brockton Superior Court.³ According to Reddington, “[t]he practice, custom and procedure on a routine basis was that when jurors were brought into the court room, due to the size and configuration of the court room, anyone that was not directly connected with the case, in other words, the defendant, obviously, and trial counsel for the government or for the defense, were told to leave and stand in the hallway during the jury selection process. Once the jurors were selected, the individuals were, of course, invited back in.”

Although Reddington was aware of this practice, he had not objected to it at any point during his years of trying cases in the Brockton Superior Court.⁴ Although he similarly was aware of his clients' Sixth Amendment right to a public trial, he had never considered that the right might extend to jury empanelment. He understood that the court room was small, and that all of the seating was taken by the jury venire. Although he testified that he had no tactical reasons not to object, he explained that in acquiescing to closing the court room during jury empanelment, “we all, in our efforts to have an orderly empanelment process, and due again to the small configuration of the courtrooms, just went with the flow.”

The defendant also offered testimony from two other experienced criminal defense attorneys who practiced extensively in the Brockton Superior Court but never had objected to the closures: Attorney John Darrell and Attorney Joseph Krowski. Darrell, the attorney in charge of the Plymouth County office of the Committee for Public Counsel Services (CPCS) during the time in question, testified that the closure of the court room during empanelment was a “culture,” ⁵ and that he and other defense attorneys were a part of the “culture.” He routinely told family members of his clients that they could not stay in the court room during empanelment, never objected to their exclusion in any trial, and made no effort to change the practice.

Krowski agreed that there was an established practice of closures during jury empanelment at the Brockton Superior Court throughout his extensive legal career.⁶ He reiterated that the closures were due to the small size of the court room, and the need to fill all available seats with prospective jurors. While he was fully aware of the Sixth Amendment right to a public trial, he too testified that he was not aware that the right extended to jury empanelment until 2007, when he spoke with counsel from the Cohen trial, at which objections to court room closure during jury empanelment were raised. See Cohen (No. 1), 456 Mass. at 118, 921 N.E.2d 906. Krowski testified that he never had objected to the closure of the court room in the Brockton Superior Court prior to 2007, and stated, “I just thought that [closure during empanelment] was protocol. I had seen it for so many years, exclusion of the public from jury selection, that it just didn't occur to me that it presented a problem.”

At the conclusion of the evidentiary hearing, the Commonwealth argued that the defendant waived his claim of error by failing to object to it at trial. The Commonwealth further 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.

The judge concluded that the Commonwealth could not meet its burden of establishing a waiver, because the defendant had not been advised of his right to a public trial, and thus could not have waived that right knowingly. In so ruling, she relied on Commonwealth v. Alebord, 80 Mass.App.Ct. 432, 438–439, 953 N.E.2d 744 (2011) (Commonwealth must establish defendant knowingly waived right; silence not sufficient to establish knowing waiver).⁷

Regardless of the lack of waiver, the judge concluded that the defendant's Sixth Amendment rights were not violated because the closure was de minimis. In so concluding, she noted that the court room was closed for only seventy-nine minutes of a ten-day trial, that the voir dire activity at sidebar would have been inaudible to spectators, and that the defendant's lack of objection suggested that he deemed the proceedings to be inconsequential. His motion for a new trial was thus denied.

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). Cohen (No. 1), 456 Mass. at 106, 921 N.E.2d 906. “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. 83, 86, 981 N.E.2d 192, cert. denied, ––– U.S. ––––, 133 S.Ct. 2356, 185 L.Ed.2d 1080 (2013).

There is no doubt, and indeed no dispute between the parties, that the seventy-nine minute exclusion of the public during jury voir dire constituted a closure.⁸We do not agree that the closure of the court room for the entirety of the jury empanelment was “de minimis,” even if lasting for only seventy-nine minutes. See United States v. Gupta, 699 F.3d 682, 689 (2012) (excluding public for all of voir dire without justification grounded in record is not...