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12-P-1829                                                  Appeals Court

                       COMMONWEALTH   vs.   NARDO LOPES.


                               No. 12-P-1829.

            Suffolk.       February 3, 2016. - June 15, 2016.

              Present:    Kafker, C.J., Rubin, & Agnes, JJ.


Constitutional Law, Public trial, Jury.          Practice, Criminal,
     Public trial, Empanelment of jury.          Jury and Jurors.
     Evidence, Prior violent conduct.



     Indictment found and returned in the Superior Court
Department on June 1, 2001.

     The case was tried before Linda E. Giles, J., and motions
for a new trial, filed on September 30, 2010, and September 3,
2013, respectively, were heard by her.


     Derege B. Demissie for the defendant.
     Teresa K. Anderson, Assistant District Attorney, for the
Commonwealth.


    RUBIN, J.      This is the rare case in which a court room

closure was ordered over the defendant's objection during jury

empanelment, subsequent to the decision of the United States

Court of Appeals for the First Circuit in Owens v. United
                                                                   2


States, 483 F.3d 48 (1st Cir. 2007).   That case and the

subsequent cases from the Supreme Judicial Court, see, e.g.,

Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010), and from the

United States Supreme Court, see Presley v. Georgia, 558 U.S.

209 (2010), confirm that a defendant's right to a public trial

under the Sixth Amendment includes a right to have the public

present during jury empanelment.

    As our cases and those of the Supreme Judicial Court have

now made clear, prior to Owens, and notwithstanding Waller v.

Georgia, 467 U.S. 39 (1984), some court rooms around this

Commonwealth routinely were closed during jury empanelment.

See, e.g., Cohen (No. 1), supra at 102 (Superior Court in

Norfolk County); Commonwealth v. Lavoie, 464 Mass. 83, 84-85

(2013) (Superior Court in Middlesex County); Commonwealth v.

Morganti, 467 Mass. 96, 98 (2014) (Superior Court in Plymouth

County); Commonwealth v. Alebord, 467 Mass. 106, 109 (2014)

(Superior Court in Plymouth County).   In many such cases,

because of the longstanding culture of these court houses, no

contemporaneous objection was made to these closures.      In a wide

range of circumstances, under subsequent Supreme Judicial Court

case law, those objections have been held waived.   See, e.g.,

Lavoie, supra at 88-89; Morganti, supra at 101-102; Alebord,

supra at 112-113.
                                                                      3


     In this case, however, the jury venire was brought into the

court room and, over the defendant's objections, the court room

was closed.   In this direct appeal from his conviction of

voluntary manslaughter, the defendant argues that closure was

error, and that he is entitled to a new trial.1

     The jury venire comprised ninety individuals.    There were

approximately eighty seats in the court room.     The judge allowed

in the entire venire and required ten of its members to stand.

The defendant objected and asked to have his family seated but

the judge, who was familiar with Owens, found that "[t]here is

no possible seating for them.   For safety reasons, we really

don't want anybody to stand, but of necessity, we're making a

few of the venire people stand.   And, also, we cannot have them

within the venire for fear of jury contamination.     But if seats

become available, . . . we can bring in your family members."

     The court room was closed and the defendant's family

members were excluded.   They were not seated one at a time when

individual seats became open.   Nor were they seated as a group

as soon as there was sufficient space in the court room to seat


     1
       The defendant raised this issue below in his second motion
for a new trial (while his direct appeal was stayed), but
because he raised it in his direct appeal, i.e., his first
appellate opportunity, the claim was preserved. See
Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001).
See also, e.g., Commonwealth v. Wall, 469 Mass. 652, 673 (2014);
Commonwealth v. Celester, 473 Mass. 553, 578 (2016).
                                                                   4


all the members of the defendant's family, allowing some space

between those spectators and the prospective jurors.   Only after

the introduction of the attorneys, the judge's summary of the

case, the general questioning of the venire, and the individual

voir dire of thirty-seven prospective jurors,2 did the judge

instruct the court officer to seat the defendant's family

members.   Three more jurors3 were subject to individual voir dire

before the judge noted that the defendant's family members had

been seated.   They were then present for the individual voir

dire of twenty jurors.4   Thus, the defendant's family members

missed the individual voir dire of two-thirds of the potential

jurors.5   The trial transcript does not indicate whether or not


     2
       Eight of the thirty-seven were seated, five were subject
to peremptory challenge by the Commonwealth, and seven were
subject to peremptory challenge by the defendant.
     3
       One of the three was subject to peremptory challenge by
the Commonwealth.
     4
       Eight of the twenty were seated, three were subject to
peremptory challenge by the Commonwealth, and two were subject
to peremptory challenge by the defendant.
     5
       This portion of the voir dire spanned ninety-nine out of
the 133 transcript pages in the relevant volume that was devoted
to empanelment. The judge below found that empanelment lasted
two hours and ten minutes. If one were to use the fraction of
jurors questioned during the closure to estimate the fraction of
the total empanelment period the court room was closed, one
would estimate the closure lasted more than one hour and twenty-
five minutes. Using the fraction of transcript pages to make
the estimate, one would estimate the closure lasted more than
one hour and thirty-six minutes.
                                                                     5


the court officers subsequently allowed other members of the

public to enter and be seated.6

     In denying the defendant's second motion for a new trial,7

the judge concluded that the closure was de minimis.    Cases

decided by the Supreme Judicial Court and this court during the

pendency of this appeal make clear, though, that this was not a

de minimis closure.   See, e.g., Morganti, 467 Mass. at 101

(seventy-nine-minute closure, lasting entirety of empanelment,

not de minimis); Alebord, 467 Mass. at 111 (eighty-minute

closure, lasting entirety of empanelment, not de minimis);

Commonwealth v. White, 85 Mass. App. Ct. 491, 495-497 (2014)

(closure during general questioning of venire not de minimis),

vacated on other grounds, 87 Mass. App. Ct. 1132 (2015).

     Thus, as Cohen No. 1 and Presley make clear, the

determination that closure was necessary must satisfy the four

factors articulated in Waller.    Those factors are "[1] the party

seeking to close the hearing must advance an overriding interest

that is likely to be prejudiced, [2] the closure must be no

broader than necessary to protect that interest, [3] the trial

court must consider reasonable alternatives to closing the

     6
       The defendant challenges only the complete closure during
the time period when his family members were excluded from the
court room.
     7
       The defendant's direct appeal was consolidated with his
appeals from the orders denying his second and third motions for
a new trial.
                                                                     6


proceeding, and [4] it must make findings adequate to support

the closure."   Commonwealth v. Martin, 417 Mass. 187, 194

(1994), quoting from Waller, 467 U.S. at 48.

    Although the judge did make an effort to reach a reasonable

solution to the logistical problem created by the large venire,

given the size of the court room in which she was sitting, the

third factor was not met here.   If it was not clear at the time

of trial, the United States Supreme Court has made clear

subsequently that the public trial right is sufficiently

important that congestion alone cannot warrant closure of a

court room unless the judge has examined reasonable alternatives

that may be available, including dividing the jury venire in

order to reduce congestion or moving to a larger court room if

one is available.    Presley, 558 U.S. at 214 ("[T]rial courts are

required to consider alternatives to closure even when they are

not offered by the parties").    Indeed, the record must show that

the public could not have been accommodated at trial by the use

of such alternatives before a court room can be closed to the

public altogether:   "Trial courts are obligated to take every

reasonable measure to accommodate public attendance at criminal

trials.   Nothing in the record shows that the trial court could

not have accommodated the public at [the defendant's] trial.

Without knowing the precise circumstances, some possibilities

include . . . dividing the jury venire panel to reduce courtroom
                                                                      7


congestion."     Id. at 215.   See Owens, 483 F.3d at 62 ("[T]o our

knowledge, a trial closure has not yet been justified on the

basis of convenience to the court. . . .     Given the strong

interest that courts have in providing public access to trials,

the district court could have considered whether a larger

courtroom was available for jury selection.     If the closure

. . . did occur, the court was obligated to consider this

alternative").    Consequently, in the absence of any showing on

the record that such alternatives could not have been utilized,

the closure of the court room here violated the defendant's

Sixth Amendment right to a public trial.

       The claim of error in this case was preserved.   Under

longstanding case law court room closure is a structural error

in which, because of the difficulty of showing prejudice, it is

presumed as a matter of law.     Cohen (No. 1), 456 Mass. at 118-

119.    Consequently, the judgment must be vacated.

       One other issue raised by the defendant may recur in a

retrial.    At trial, the defendant filed a motion to disclose

evidence of the specific acts of violence of an individual who

was not the victim for the purposes of showing that the

individual was the first aggressor in the fight that led to the

charges against the defendant.     See Commonwealth v. Adjutant,

443 Mass. 649, 664 (2005).     The judge denied the motion.

Although the parties failed to bring it to the attention of the
                                                                    8


trial judge, prior to trial the Supreme Judicial Court had

decided Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007),

which allows Adjutant evidence to be admitted in some

circumstances with respect to an individual who was not the

defendant's victim.   Thus, although we express no opinion on the

admissibility of any evidence the defendant might present,

should the defendant again seek to introduce Adjutant evidence

with respect to a nonvictim, the judge will be required to

assess its admissibility under Pring-Wilson and any other

relevant case law in the first instance.

                                   Judgment reversed.

                                   Verdict set aside.
     AGNES, J. (concurring).   I write separately because

although I agree that a new trial is required, the able and

conscientious trial judge was needlessly placed in a difficult

situation due to the timing of the defendant's objection.

Although it is not our responsibility to write rules or standing

orders for the trial court, I respectfully suggest that

consideration be given to a rule or policy that imposes on

counsel in all cases involving trial by jury a duty, whenever

reasonably possible, to bring to the judge's attention prior to

trial any concern counsel may have regarding access to the court

room by family members or friends of a party or the alleged

victim, and any other members of the public, and that structures

the judge's discretion with a framework for assessing the

competing interests in a manner that will satisfy Federal and

State law.1


     1
       For example, under the current state of the law, there is
no clear-cut rule about the minimum number of seats, if any,
that must be available to members of the public during a trial
to differentiate a complete closure of the court room from a
partial closure. And there is no clear-cut rule about how to
accommodate the interests of family members or friends of a
party or an alleged victim, the media, or other members of the
public in being present in the court room during the trial when
sufficient seats for all are not available. This is not an
isolated problem. Furthermore, the Supreme Judicial Court has
acknowledged that "in court houses across the Commonwealth,
insufficient space may well provide a valid reason for the
exclusion of the public during at least some part of jury
empanelment proceedings, because the number of prospective
jurors in the venire are likely to fill all or almost all of the
available seats. . . . It is not required that every seat not
                                                                    2


    In this case, the record indicates that on the day the jury

were empaneled, the judge conducted a hearing, in open court and

before any jurors were brought to the court room, during which

she reviewed with defense counsel and the prosecutor the

schedule that would be followed, the list of witnesses, the

nature of the questions that prospective jurors would be asked,

and the manner in which challenges for cause and peremptory

challenges would be handled.   The judge informed counsel that

she planned to empanel sixteen jurors.    The judge concluded the

hearing by asking counsel if there were any other issues

regarding empanelment that needed to be addressed, and neither

counsel responded.   The record indicates that court recessed at

10:00 A.M. and reconvened at 10:25 A.M.    There is no indication

in the record that during this interval defense counsel informed

the judge that his client wished to have members of his family

seated in the court room during empanelment.

    When court convened, the court room was filled with

prospective jurors, and the defendant was placed at the bar for

trial.   See Commonwealth v. Elizondo, 428 Mass. 322, 325 (1998)

("The defendant's trial began when he was placed at the bar for


occupied by a prospective juror must be made available to the
public; as noted, the possibility that jurors may be influenced
or tainted by intermingling with spectators is a valid concern
that may justify excluding members of the public until space
permits them to sit apart from the prospective jurors."
Commonwealth v. Cohen (No. 1), 456 Mass. 94, 114 (2010).
                                                                   3


trial").   At this point, defense counsel informed the judge at

sidebar that the defendant's family had been excluded from the

court room and that he would like them to be present.2     The judge

explained that there were ninety jurors in the venire, and that

approximately eighty of them occupied every available seat in

the court room while ten others were standing because no other

seats were available.    The judge also indicated that "as seats

become available," the family members would be brought into the

court room.   The judge also noted that it would be necessary to

separate family members from prospective jurors.      Defense

counsel objected.    After the sixth juror was seated, the judge

inquired whether defense counsel wanted the defendant's family

in the court room.    When counsel responded in the affirmative,

the judge inquired of the court officer whether seats were

available.    The judge was informed that seats were not yet

available.3   Defense counsel did not object again.

     A short time later, a court officer informed the judge that

one of the court room benches was then available.      The judge


     2
       Defense counsel stated, "I know it's a logistical
nightmare, but my guy's family was excluded from the courtroom.
And I would like them present, if possible."
     3
       Although a number of prospective jurors had been excused
by this point, it appears that some members of the venire had
been seated in the jury box before empanelment began, and were
moved to benches in the court room so jurors who were seated
could be put in the box.
                                                                      4


responded, "For the record, the defendant's family members are

going to be seated in that bench right near the Court's bench."

After three more prospective jurors were questioned, the judge

noted, "[F]or the record, Mr. Lopes's family has all joined us

on this bench near the Court's bench."     The transcript indicates

that the empanelment continued until sixteen jurors were seated.

It was 12:35 P.M.     The entire empanelment took slightly longer

than two hours.     The record does not indicate how much time

elapsed from when empanelment commenced to when the defendant's

family was admitted to the courtroom.4

     In order to justify the complete closure of a court room at

any stage of the trial, the "judge must make a case-specific

determination that closure is necessary."     Commonwealth v. Cohen

(No. 1), 456 Mass. 94, 107 (2010).    The judge's determination

that closure is necessary must satisfy the four requirements set

forth in Waller v. Georgia, 467 U.S. 39, 47 (1984).     See Cohen


     4
       The record does not permit us to determine that the
closure was greater than the eighty-minute closure for the
entire empanelment procedure that was deemed unjustified in
Commonwealth v. Alebord, 467 Mass. 106, 111 (2014), and the
seventy-nine-minute closure for the entire empanelment procedure
that was deemed unjustified in Commonwealth v. Morganti, 467
Mass. 96, 101 (2014). The record before us indicates that
empanelment lasted from about 10:25 A.M. until 12:35 P.M.
Sixteen jurors in total were seated. The defendant's family was
seated in the court room after eight jurors had been seated and
an additional thirty-two had been excused. After the family
members were seated, another eight jurors were seated and an
additional twelve jurors were excused.
                                                                         5


(No. 1), supra.     Here, the judge acted promptly once the issue

was called to her attention.     The judge was mindful of the need

for the safety of all concerned and the importance of not

exposing prospective jurors to any extraneous influences.        While

the judge proceeded in a manner that showed regard for the

defendant's rights, the record does not indicate that she

explored whether reasonable alternatives to a complete closure

of the court room existed once the issue was brought to her

attention.   Unlike other issues where the burden of

demonstrating prejudice rests with the appealing party, when

there is an objection to a complete court room closure based on

insufficient space, as in this case, the judge has an

independent duty to consider reasonable alternatives to a

complete closure.     Waller, supra at 48.   See, e.g., United

States v. Cervantes, 706 F.3d 603, 612-613 (5th Cir. 2013)

(partial closure; magistrate judge properly limited access to

court room during empanelment to three members of each

defendant's family).     Furthermore, once space in the court room

becomes available, the judge must make a particularized

determination, supported by adequate subsidiary findings, that

those who seek access are not prevented from doing so absent an

overriding interest.     And any closure order must not be broader
                                                                   6


than is reasonably necessary to accomplish its purpose.   See

Cohen (No. 1), supra at 113-114.5

     In the present case, the record does not reveal that the

judge explored alternatives to a complete closure such as

returning some members of the venire to the jury pool in order

to free up space in the court room, or moving the proceedings to

another court room.   Neither of these options may have been

feasible in the circumstances, but no specific findings were

made by the judge during the empanelment process or in her order

denying the defendant's second motion for a new trial.




     5
       It should be noted that the trial judge in this case did
not have the benefit of the guidance set forth in Cohen (No. 1),
supra at 111-116, when these events occurred.
