Commonwealth v. Wolcott

• Decision Date: 25 August 2010
• Docket Number: No. 08-P-1047.,08-P-1047.
• Parties: COMMONWEALTH v. Donna WOLCOTT.
• Court: Appeals Court of Massachusetts

COMMONWEALTH

v. Donna WOLCOTT.

No. 08-P-1047.

Appeals Court of Massachusetts

December 10, 2009.

August 25, 2010.

Michael J. Fellows for the defendant.

Marcia B. Julian, Assistant District Attorney, for the Commonwealth.

Homicide. Solicitation to Commit Felony. Practice, Criminal, Public trial, Instructions to jury, New trial. Constitutional Law, Public trial. Accessory and Principal. Evidence, Prior misconduct, Admissions and confessions, Voluntariness of statement.

INDICTMENTS found and returned in the Superior Court Department on June 21, 2006.

The cases were tried before C. Jeffrey Kinder, J., and a motion for a new trial, filed on August 14, 2008, was heard by him.

Present: Mills, Katzmann, & Fecteau, JJ.

KATZMANN, J.

The defendant, Donna Wolcott, appeals her convictions by a Superior Court jury for solicitation to commit a felony (murder), and two violations of abuse prevention orders. Informed by recent United States Supreme Court and Supreme Judicial Court decisions not available to the careful Superior Court judge, we reverse the order denying the motion for new trial on the grounds that an unconstitutional closure of the court room took place. In light of the remand to Superior Court, we address and uphold the judge's solicitation instruction, and various evidentiary rulings.

Background.

We summarize the facts that the jury could have found as follows, and reserve the recitation of certain facts relevant to the discussion below. In March, 2006, Donna Wolcott told a number of people that she had grown unhappy in her marriage. Beyond that, she also asked a coworker, Jill Scibelli, whether her husband had contacts with the "Scibelli" crime family and said that she was "nervous" but "had money" and needed to get rid of a "problem."

On a Saturday in March, 2006, the defendant confided in her cousin, John Jamroz, that she wanted her husband to "just disappear" and asked him if he knew of anyone who could help her with the situation. After she called him again that Sunday, Jamroz contacted the defendant's sister, Holly Woods, and eventually, the State police.

On Monday, March 13, 2006, Jamroz spoke to the police and provided a written statement concerning the conversation. In the presence of the police, Jamroz called the defendant. She did not answer and Jamroz left a message. Later, the defendant returned Jamroz's call and left a message on his voice mail, stating that everything was "okay." Jamroz then called the defendant later that evening and she reiterated that things were "okay."

At some point between March 13, 2006, and March 20, 2006, Carol Sherman, a cousin of both the defendant and Jamroz, requested that Jamroz call the defendant so that she could tell him what to say to the police. Jamroz again contacted the State police on March 20, 2006. After speaking to the troopers, he drove to the barracks and gave another written statement. Jamroz then agreed to make another call to the defendant to see if she still wanted to go ahead with the plan to get rid of her husband. The troopers accompanied Jamroz to his home and Jamroz called the defendant. When the defendant did not answer, Jamroz left a message regarding the subject. Trooper Fitzgerald gave Jamroz his cellular telephone number and instructed Jamroz to call him when the defendant returned his call.

The next day, March 21, 2006, Trooper Fitzgerald received a call from Jamroz stating that the defendant had said she was working out her problems. In response, the troopers visited the home of the defendant and her husband. The defendant was asked by the police to accompany them to the station, where she was questioned and eventually arrested and indicted. ¹

Soon thereafter, the defendant's husband obtained a restraining order forbidding the defendant from calling the house except to speak about the children. The husband testified that she called the house twice from prison, but only to ask him to drop the restraining order.

On June 29, 2007, after a four-day jury trial, the defendant was convicted of one count of solicitation to commit murder and two counts of violating a restraining order.

Discussion.

On appeal, the defendant seeks review of (1) the denial of her motion for a new trial for deprivation of her right to a public trial, (2) whether the trial judge's jury instruction improperly altered the common law crime of solicitation to commit murder, (3) whether a prior incriminating statement should have been excluded as improper prior bad act evidence, and (4) whether the defendant's signed statement should have been excluded because there were gaps in the recording of the three-hour interview that formed the basis for the statement.

1. Public trial.

A. Background.

Jury selection began on June 25, 2007. The venire were brought into the court room and the public was asked to step outside. During the jury selection process, after twenty-four jurors had been interviewed at sidebar, this exchange took place:

DEFENSE COUNSEL: "Judge, there were people, family members and members of the public, I think, who would like to be able to be in the court room only there wasn't enough room, but now there is enough room and this is supposed to be a public proceeding, so if they could come in."

THE COURT: "Have they been ordered excluded?"

DEFENSE COUNSEL: "Well, there was no place for them. It is not that they were ordered excluded, there is no place to sit."

THE COURT: "As soon as we have room."

THE CLERK: "We need to move people out of the jury box."

THE COURT: "When we have moved, when we have room, we'll allow them to come in."

The jury voir dire then continued until the lunch recess.

After the lunch recess, defense counsel orally moved for a mistrial on the grounds that the defendant was denied a public trial as provided under the Sixth Amendment to the United States Constitution. The oral motion was denied by the trial judge without any findings.

The next day, the second day of trial, the judge sua sponte raised the defendant's prior motion for a mistrial. The judge stated that the court room was small and could not accommodate the family members, and "[i]t was for that reason, and that reason alone, that some members of the defendant's family, perhaps, were asked to remain outside because there was simply not room for them."

After the trial, the defendant filed a motion for new trial and submitted the affidavits of Carol Sturm, Ruth Farnsworth, and Michael J. Fellows. ² At a hearing on the motion, Sturm testified for the defendant that after being asked to leave, she sought reentry but was denied access. Court Officer Antonio Pires, who was in charge of the jury selection process, testified that "consistent with his usual policy, he asked the spectators if they would mind leaving the court[]room during jury selection, so that there would be sufficient room for all of the prospective jurors to sit. He denied that he ordered any spectators to exit the court room."

The judge credited the testimony of Officer Pires and discredited Sturm's. He denied the motion for new trial, concluding that there was no "closure" of the court room because "spectators agreed to leave the court[]room during jury selection, after having been asked by Officer Pires. They were not forced from the court room. Nor did members of the public make an effort to enter during the jury selection process. Had they done so, entry would have been permitted."

B. Sixth Amendment right to public trial.

I. Closure.

As provided in the Sixth Amendment to the United States Constitution, "[i]n all criminal prosecutions, 'the accused shall enjoy the right to a speedy and public trial....' '[W]ithout exception, all courts have held that an accused is at the very least entitled to have [her] friends, relatives and counsel present....' " Commonwealth v. Marshall, 356 Mass. 432, 435 (1969), quoting from In re Oliver, 333 U.S. 257, 271-272 (1948). See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106 (2010) (partial closure of court room contravened defendant's right to a public trial). "The guarantees of open public proceedings in criminal trials cover proceedings for the voir dire examination of potential jurors concerning their qualifications to serve." Commonwealth v. Gordon, 422 Mass. 816, 823 (1996). See Presley v. Georgia, 130 S.Ct. 721, 723-724 (2010); Commonwealth v. Cohen, supra at 106. ³ See generally ABC, Inc. v. Stewart, 360 F.3d 90 (2d Cir.2004).

A Sixth Amendment claim for denial of a public trial requires, as a preliminary matter, that the court room is closed to the public. See Commonwealth v. Dykens, 438 Mass. 827, 835-836 (2003). Although "a court room may be closed in the constitutional sense without an express judicial order," Commonwealth v. Cohen, supra at 108, at a minimum, "some affirmative act by the trial court meant to exclude persons from the court[]room" is required. Ibid., quoting from United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir.1994). See Walton v. Briley, 361 F.3d 431, 433 (7th Cir.2004) ("Whether the closure was intentional or inadvertent is constitutionally irrelevant").

Here, while the judge made an after-the-fact finding that no closure occurred because nobody sought reentry into the court room, we conclude otherwise. The transcript reflects that defense counsel sought entry for the public by requesting that the judge allow members of the public to enter the court room for jury selection. The judge denied that request, stating that as seats became available, the public could take those seats. Defense counsel then moved for a mistrial, which the judge denied. While "the judge or court officers need not undertake an affirmative effort to seek out spectators when the departure of prospective jurors frees up seats[,...] if space in the court room is or becomes available, the judge must make sure that members of the public who wish to observe the proceedings are not prevented from doing so." Commonwealth v. Cohen, supra at 114. Compare id. ...