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13-P-560                                                 Appeals Court

                   COMMONWEALTH   vs.   MICHAEL RILEY.


                             No. 13-P-560.

        Norfolk.        April 4, 2014. - September 19, 2014.

           Present:     Graham, Wolohojian, & Milkey, JJ.


Constitutional Law, Public trial.       Practice, Criminal, Public
     trial, New trial.



     Indictments found and returned in the Superior Court
Department on September 7, 2005.

     The case was tried before Barbara A. Dortch-Okara, J., and
a motion for a new trial was considered by her.

     Following review by this court, 77 Mass. App. Ct. 1102
(2010), a motion for a new trial was heard by Kenneth J.
Fishman, J.


     Joanne T. Petito for the defendant.
     Tracey A. Cusick, Assistant District Attorney, for the
Commonwealth.


    WOLOHOJIAN, J.     The defendant appeals from the denial of

his motion for new trial, contending that his right to a public

trial under the Sixth Amendment to the United States
                                                                     2


Constitution was violated when a court officer prevented the

defendant's sister from entering the courtroom because "the

lawyers were talking to the judge."   This occurred on the

morning of the first day of trial -- but before the trial began.

The motion judge found that the sister was turned away when the

court was not in session.    Although the parties have asked us to

determine whether the defendant's Sixth Amendment right was

violated in the circumstances presented, we need not reach that

question because we determine that, even were we to assume the

defendant's right was infringed, he has not shown that he is

entitled to a new trial.    We accordingly affirm.

    The motion judge, after an evidentiary hearing,1 made the

following written findings.

         "The defendant's case was called for trial on November
    13, 2007. The defendant's sister Ayges, arrived at Dedham
    Superior Court at around 9:00 a.m. on the first day of her
    brother's trial. Ayges went through court security and was
    directed to the courtroom where her brother's trial was to
    take place. When she approached the courtroom, Ayges
    observed that the courtroom door was open. She saw many
    people waiting outside of the courtroom, including one
    person she recognized as the victim's grandmother. When

    1
       This is the second time that the defendant's motion for
new trial has come before us. The first time, we vacated the
order denying the motion and remanded the case for
reconsideration in light of Commonwealth v. Cohen (No. 1), 456
Mass. 94 (2010). See Commonwealth v. Riley, 77 Mass. App. Ct.
1102 (2010). On remand, the motion was denied a second time,
after a different judge conducted an evidentiary hearing, made
detailed findings, and undertook a close analysis of the law.
It is from this second denial of his motion that the defendant
appeals.
                                                                  3


    Ayges peered into the courtroom, she saw her brother, the
    defendant, and lawyers standing next to the bench, talking
    to the judge. She did not see anyone else in the
    courtroom; it was otherwise empty.[2] Accordingly, the
    defendant's sister did not see a court reporter, any court
    officers, any witnesses, or the defendant's parents in the
    courtroom.

         "Moreover, the record reflects that the defendant was
    in custody during the trial. This Court finds based on a
    review of the transcript of proceedings on the morning of
    November 13, 2007, and based on its knowledge of Courtroom
    25 at the Norfolk Superior Courthouse where these
    proceedings were held, as well as its experience with and
    knowledge of the process of hearings in criminal cases,
    that it is highly unlikely that the defendant would be
    standing next to the bench with counsel and the judge
    during the hearing on pretrial motions, and particularly
    without the presence of security officers.

         "When Ayges attempted to gain entry into the
    courtroom, she was stopped by a court officer. He asked
    her whether she was a potential juror or witness, to which
    she responded that she was the defendant's sister. The
    court officer told her that she could not enter the
    courtroom because 'the lawyers were talking to the judge.'
    The court officer did not tell Ayges that she would be
    allowed in the courtroom at another time. The defendant
    maintains that the court officer was Larry Sullivan based
    on the description provided by Ayges and Sullivan's general
    assignment to Judge Dortch-Okara. The transcript of
    proceedings reveals that Sullivan was in the courtroom
    during the initial proceedings, and accordingly, could not
    have been the officer with whom Ayges spoke if the court

    2
       In a footnote, the judge stated: "Ayges did not specify
how many lawyers she observed in the courtroom in either her
affidavit or her testimony at the evidentiary hearing. Attorney
Hernon's affidavit states that Ayges told her that she saw a
lawyer standing at the bench. In addition, although Ayges
stated that, when she sought entry into the courtroom, the
courtroom door was open, Chief Court Officer Bellotti testified
that the courtroom door is typically closed when court is in
session. This Court credits Ayges' testimony that she made
observations through an open door, but, for the reasons stated
herein, [finds] that the court was not in session at the time."
                                                                   4


    were in session. Ayges left the courthouse after the court
    officer denied her entry into the courtroom. She estimated
    spending roughly thirty minutes at the courthouse that
    morning. Once she left, Ayges did not return to the
    courthouse at any point during her brother's trial.

         "Attorney Hernon represented the defendant at trial.
    She testified that she did not learn of Ayges' exclusion
    from the courtroom on the morning of November 13, 2007,
    until after the trial concluded. Attorney Hernon first
    learned that Ayges attempted to attend her brother's trial
    during a phone conversation with Ayges on November 28,
    2007. During that conversation, Ayges told Attorney Hernon
    that she went to the courtroom where her brother's trial
    was scheduled to take place, and saw a lawyer standing at
    the judge's bench, whom, based on Ayges' description,
    Attorney Hernon recognized as Assistant District Attorney
    Courtney Linnehan.

         "The trial transcript reveals that the first order of
    business on the morning of November 13, 2007, was several
    pretrial motions, including motions in limine. Jury
    empanelment did not begin until later that afternoon, after
    the luncheon recess. Although Ayges states that she did
    not see any spectators in the courtroom when she attempted
    to enter, the trial transcript indicates that the victim's
    parents were present in the courtroom at the onset of the
    Court's consideration of pretrial motions. Indeed, defense
    counsel moved to sequester witnesses before the Court
    addressed the parties' motions in limine, stating on the
    record that witnesses were currently present in the
    courtroom. The Court, however, did not order the witnesses
    to leave the courtroom during the hearing on these non-
    evidentiary motions. Accordingly, this Court finds that at
    the time the defendant's sister made her observations
    inside Courtroom 25, the court was not in session."

    The defendant challenges as clearly erroneous the judge's

finding that court was not in session when his sister was turned

away.   Essentially, he argues that the court must have been in

session given the finding that the trial judge was on the bench

and was speaking to the lawyers with the defendant present.
                                                                     5


Because it is clear that the motion judge credited the sister's

testimony that the judge was on the bench and talking to the

lawyers, there would be some tension if one were to read the

phrase "not in session" to mean that nothing at all was

occurring in court.     However, looking at the findings as a

whole, as well as the evidence upon which they are based, we

think it unreasonable to conclude that the judge meant the

phrase in that way.   Instead, consistent with his other

findings, it is apparent that the judge used the phrase "not in

session" to mean that the discussion with counsel took place

before the pretrial motion hearing began and was administrative

in nature, with no transcript or reporter being required.3

     Where, as here, a judge's findings of fact are made after

an evidentiary hearing on a motion for new trial, they "will be

accepted if supported by the record."     Commonwealth v. Rosario,

460 Mass. 181, 195 (2011), quoting from Commonwealth v. Walker,

443 Mass. 213, 224 (2005).     See Commonwealth v. Buckman, 461

Mass. 24, 29 (2011), citing Commonwealth v. Cohen (No. 1), 456

Mass. 94, 105 (2010) (Cohen [No. 1]).     The judge's finding is

fully supported here.    The sister testified that no one was


     3
       Although there is no indication in the record as to what
the discussion might have concerned, it is certainly not unusual
for a judge to discuss a matter of timing (for example, the
timing of the arrival of the clerk or the reporter) without the
court being in session.
                                                                   6


present in the courtroom other than the two lawyers, the

defendant, and the judge.   The lawyers were standing at sidebar

with the defendant standing behind them to the side.   By

contrast, the transcript of the hearing on the motions in limine

reveals that witnesses and court personnel were present in the

courtroom and that the argument took place in open court, not at

sidebar.

     Regardless of whether the defendant's sister was turned

away during the pretrial motion hearing (as the defendant

contends) or during a sidebar conference before the motion

hearing began (as the judge found), the defendant has not shown

that the proceeding was of a nature to which the Sixth Amendment

public trial right attaches.   Although the United States Supreme

Court has held that the Sixth Amendment right extends to certain

pretrial proceedings, see Waller v. Georgia, 467 U.S. 39, 43

(1984) (Waller) (suppression hearings), and Presley v. Georgia,

558 U.S. 209, 213 (2010) (jury voir dire), it has not held that

it attaches to all pretrial proceedings.4   To determine whether a


     4
       Only a few Federal appellate decisions have considered the
issue. See Rovinsky v. McKaskle, 722 F.2d 197, 199-201 (5th
Cir. 1984) (Sixth Amendment right attaches to hearings on
motions in limine heard during course of trial); United States
v. Norris, 780 F.2d 1207, 1209-1211 (5th Cir. 1986) (Sixth
Amendment right does not attach to bench and lobby conferences
concerning administrative matters); United States v. Vazquez-
Botet, 532 F.3d 37, 51-52 (1st Cir. 2008) (looking to its
purpose and function, no Sixth Amendment public trial right to
pretrial offer-of-proof hearing at issue); United States v.
                                                                   7


particular pretrial proceeding is one to which the Sixth

Amendment public trial right attaches, the inquiry "cannot be

resolved solely on the label we give the event" but rather must

be based on "considerations of experience and logic."     Press-

Enterprise Co. v. Superior Ct., 478 U.S. 1, 7, 9 (1986).

"First, because a 'tradition of accessibility implies the

favorable judgment of experience,' we [are to consider] whether

the place and process have historically been open to the press

and general public. . . . Second, [we are to consider] whether

public access plays a significant positive role in the

functioning of the particular process in question."     Id. at 8

(citations omitted).5

     Even were we to assume that the Sixth Amendment public

trial right attached in the circumstances presented and that the

partial closure did not satisfy the four-part Waller test,6 the



Waters, 627 F.3d 345, 359-361 (9th Cir. 2010) (public trial
right attaches to hearing on motions in limine).
     5
       Press-Enterprise Co. v. Superior Ct., supra, is a public
access case based on the First Amendment to the United States
Constitution. However, the United States Supreme Court has
stated that "there can be little doubt that the explicit Sixth
Amendment right of the accused is no less protective of a public
trial than the implicit First Amendment right of the press and
public," Waller, supra at 46, and has held that under the Sixth
Amendment any closure must meet the tests set out in Press-
Enterprise Co. Id. at 47.
     6
       "[T]he right to an open trial may give way in certain
cases to other rights or interests, such as the defendant's
right to a fair trial or the government's interest in inhibiting
                                                                    8


defendant's motion for new trial was nonetheless properly denied

because he has not shown that the appropriate remedy would be a

new trial.   "The relief for a breach of the public trial right

'should be appropriate to the violation.'"   Cohen (No. 1), 456

Mass. at 119, quoting from Waller, 467 U.S. at 50.

     We have found no case where a new trial has been ordered

where the unconstitutional closure occurred solely during a

pretrial motion hearing.7   Instead, possible remedies are either

to conduct a new public hearing on the motion or to publicly

release the transcript of the hearing.   See Waller, supra at 49-

50 (remanding for public suppression hearing on those portions

of hearing that need not be closed); United States v. Waters,

627 F.3d 345, 361 (9th Cir. 2010) (noting public trial right may


disclosure of sensitive information. Such circumstances will be
rare, however, and the balance of interests must be struck with
special care." Waller, 467 U.S. at 45. "That 'determination
must satisfy four requirements articulated by the Supreme Court:
"[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 proceeding, and [4] it must make
findings adequate to support the closure."'" Cohen (No. 1), 456
Mass. at 107, quoting from Commonwealth v. Martin, 417 Mass.
187, 194 (1994).
     7
       In Washington v. Heath, 150 Wash. App. 121, 128-129
(2009), the court reversed the defendant's convictions because
the courtroom was closed for certain motions in limine as well
portions of jury voir dire. In Rovinsky v. McKaskle, 722 F.2d
197, 199 (5th Cir. 1984), convictions were reversed where
motions in limine, although filed pretrial, were heard in
chambers during trial.
                                                                    9


have been vindicated by public availability of transcript).      See

also Robinson v. Commonwealth, 445 Mass. 280,290 (2005) (if

defendant had good cause to be absent from suppression hearing

and did not waive right to be present, remedy may be to hold

another suppression hearing).    Although relief need not

necessarily be limited to those two options, it must be tailored

to remedy the harm.    A new trial should not be ordered where it

"would be a windfall for the defendant, and not in the public

interest."   Waller, supra at 50.

    Here, the defendant expressly disclaims any relief other

than a new trial.     Even if -- as he contends -- the closure

occurred during the hearing on the motions in limine, he has

made no effort to show why a new trial would be the appropriate

form of relief.   For these reasons, we affirm the denial of the

defendant's motion for new trial.

                                     So ordered.
