Commonwealth v. Watkins

• Decision Date: 09 April 2018
• Docket Number: 16–P–1082
• Citation: 103 N.E.3d 770 (Table),93 Mass.App.Ct. 1105
• Parties: COMMONWEALTH v. Kevin WATKINS.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 1105
103 N.E.3d 770 (Table)

COMMONWEALTH
v.
Kevin WATKINS.

16–P–1082

Appeals Court of Massachusetts.

Entered: April 9, 2018.

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

On May 9, 1990, a Superior Court jury convicted the defendant on one of two counts of rape, acquitting him on the other, G. L. c. 265, § 22(b ). The defendant filed a timely notice of appeal, and on July 14, 1992, this court affirmed his conviction. See Commonwealth v. Watkins, 33 Mass. App. Ct. 7 (1992). Twenty-three years later, the defendant—represented by new appellate counsel—filed a motion for postconviction relief, which a judge denied on June 13, 2016. The defendant again filed a timely notice of appeal, which appeal is now before us.

The defendant claims that he was denied his constitutional right to a public trial when court officers excluded his mother and appellate co-counsel during jury selection. He further claims that trial counsel's failure to object to the closure was constitutionally ineffective. In support of his motion, the defendant presented his own affidavit and affidavits from his mother; Willie J. Davis, his trial counsel and initial appellate counsel; and Maria E. Saccoccio, who assisted with the brief in the initial appeal. Saccoccio, then a new attorney, states in her affidavit that Davis asked her to come to the trial to observe. Saccoccio watched the trial with the defendant's mother, and claims that at times during jury empanelment court officers either asked them to leave the court room, or prevented them from entering altogether.

Davis avers in his affidavit that, consistent with then existing practice in the Middlesex County Superior Court, court officers closed the court room during jury empanelment. Based on that court's practice, Davis did not object. Davis further avers that he did not discuss the court room closure with the defendant because he then did not know that a criminal defendant's Sixth Amendment to the United States Constitution right to a public trial extended to jury empanelment. In addition, Davis, acting as the defendant's initial appellate counsel, believed it "unlikely that [he] received" a transcript of the jury selection portion of the trial, but if he did, there existed "no strategic or tactical reason" for him not to review it or provide Saccoccio with a copy.

The motion judge denied without a hearing the defendant's motion for postconviction relief, reasoning that because the defendant did not object to any court room closures during jury empanelment, he waived his public trial claim. The motion judge further determined that excluding Saccoccio from the court room did not create a substantial risk of a miscarriage of justice because the docket did not reflect her appearance as the defendant's co-counsel.

Discussion. 1. Court room closure. While violation of the public trial right is structural error, "even structural error is subject to the doctrine of waiver." Commonwealth v. Morganti, 467 Mass. 96, 101–102, cert. denied, 135 S. Ct. 356 (2014) (quotation omitted). See Commonwealth v. Alebord, 467 Mass. 106, 113, cert. denied, 134 S. Ct. 2380 (2014) (extending waiver doctrine to public trial right). Thus, where counsel fails to raise an objection to the closure of a court room, the defendant's claim of error is deemed to be procedurally waived. See Morganti, supra at 102. We review such an unpreserved claim of error to determine whether a substantial risk of a miscarriage of justice occurred. Commonwealth v. Lavoie, 464 Mass. 83, 89, cert. denied, 569 U.S. 981 (2013).

"[W]here the defendant has procedurally waived his Sixth Amendment public trial claim by not raising it at trial, and later raises the claim as one of ineffective assistance of counsel in a collateral attack on his conviction, the defendant is required to show prejudice from counsel's inadequate performance (that is, a substantial risk of a miscarriage of justice) and the presumption of prejudice that would otherwise apply to a preserved claim of structural error does not apply." Commonwealth v. LaChance, 469 Mass. 854, 856 (2014), cert. denied, 136 S. Ct. 317 (2015). "[I]n circumstances where ineffectiveness is based on '[a]n error of counsel, even if professionally unreasonable, [it will] not warrant setting aside the judgment ... if the error had no effect on the judgment.'" Id. at 859, quoting from Strickland v. Washington, 466 U.S. 668, 691 (1984). While a closed jury empanelment may constitute a...