Commonwealth v. LaChance , 469 Mass. 854 ( 2014 )

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SJC-11494
COMMONWEALTH vs. EDMUND D. LaCHANCE, JR.
Middlesex. April 7, 2014. - October 21, 2014.
Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.
Constitutional Law, Public trial, Jury, Waiver of constitutional
rights, Assistance of counsel. Practice, Criminal, Public
trial, Empanelment of jury, Waiver, Assistance of counsel.
Jury and Jurors. Waiver.
Indictments found and returned in the Superior Court
Department on December 16, 1999.
Following review by the Appeals Court, 58 Mass. 1111
(2003), a motion for a new trial was considered by Raymond J.
Brassard, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Alba Doto Baccari for the defendant.
Michael A. Kaneb, Assistant District Attorney, for the
Commonwealth.
Richard C. Felton, pro se, amicus curiae, submitted a
brief.
CORDY, J. This court is again faced with a defendant's
postconviction claim of ineffective assistance of counsel
2
predicated on the failure of trial counsel to object to a court
room closure during jury empanelment. See Commonwealth v.
Alebord, 467 Mass. 106, 111-114, cert. denied, 134 S. Ct. 2830
(2014); Commonwealth v. Morganti, 467 Mass. 96, 100-105 (2014).
This time we are required to address a question not previously
reached, that is, whether prejudice from the deficiency of trial
counsel in this respect must be affirmatively established as
part of the claim or is to be presumed because of the structural
nature of the underlying public trial right that trial counsel
failed to raise.
1. Background. On April 20, 2001, a Superior Court jury
convicted the defendant of aggravated rape, kidnapping, indecent
assault and battery, and assault by means of a dangerous weapon.
The defendant -- represented by new counsel -- filed a timely
notice of appeal, and on August 5, 2003, a panel of the Appeals
Court affirmed his conviction in an unpublished decision
pursuant to that court's rule 1:28. Commonwealth v. LaChance,
58 Mass. App. Ct. 1111 (2003), cert. denied, 540 U.S. 1202
(2004). The defendant filed two motions for a new trial in 2003
and 2004, which were denied by the trial judge in a single order
on April 15, 2004. The defendant again timely filed a notice of
appeal, and a panel of the Appeals Court affirmed the judge's
3
denial of his two motions for a new trial on May 10, 2005.
Commonwealth v. LaChance, 63 Mass. App. Ct. 1114 (2005).1
In September, 2011, represented by new appellate counsel,
the defendant filed his third postaffirmance motion for a new
trial, raising, for the first time, a claim that his right to a
public trial pursuant to the Sixth Amendment to the United
States Constitution was violated when his family members were
excluded from the court room during jury empanelment, and that
trial counsel was ineffective for failing to object to the
closure. In support of his motion, the defendant presented his
own affidavit and affidavits from his mother, his uncle, and his
trial and former appellate attorneys. In her affidavit, the
defendant's mother stated that she, her late husband, and her
brother were in attendance in the Middlesex County Superior
Court on April 10, 2001, the date of jury selection. At
approximately 9:15 A.M., a court officer informed them that they
would have to leave the court room. They left the court room,
and waited in the lobby. According to the affidavits of the
defendant's mother and uncle, the family members attempted to
1
The defendant also filed two motions to revise and revoke
his sentence, which were denied by the trial judge and affirmed
by a panel of the Appeals Court in an unpublished decision
pursuant to that court's rule 1:28. Commonwealth v. LaChance,
63 Mass. App. Ct. 1108 (2005).
4
reenter the court room at approximately 1 P.M. but were
prevented from doing so by a court officer.
Trial counsel averred that he believed that the court room
was closed during jury empanelment, as was the practice in the
Middlesex County Superior Court at the time, and that he did not
object to the alleged closure. Trial counsel further averred
that he did not discuss the matter with the defendant and was
not aware at the time of the trial that the Sixth Amendment
right to a public trial extended to jury empanelment. The
defendant's former appellate counsel averred that he had no
tactical or strategic reason not to raise the issue of court
room closure in any of the defendant's appeals or prior motions
for a new trial, noting that it did not occur to him that
closure was an issue in the case.
The motion judge, who was also the trial judge, denied the
defendant's third motion for a new trial without a hearing,
reasoning that because the defendant had not objected to any
closure during jury empanelment, he had waived his public trial
claim. The judge further determined that removal of the
defendant's family from the court room during jury empanelment
did not create a substantial risk of a miscarriage of justice
entitling the defendant to a new trial.
On April 4, 2013, following the release of our decisions in
Commonwealth v. Lavoie, 464 Mass. 83, cert. denied, 133 S. Ct.
5
2356 (2013), and Commonwealth v. Hardy, 464 Mass. 660, cert.
denied, 134 S. Ct. 248 (2013), the defendant sought
reconsideration of the denial of his motion for a new trial,
arguing that prejudice under the second prong of the standard
regarding ineffective assistance of counsel set forth in
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), must be
presumed due to the structural nature of the right to a public
trial. In denying the defendant's motion, the judge assumed
both that a closure during jury empanelment had occurred and
that trial counsel's performance in failing to object to the
closure fell below that of an ordinary fallible lawyer.
However, the judge rejected the defendant's argument that
prejudice must be presumed because of the structural nature of
the underlying public trial right. Accordingly, the judge
denied the motion, determining both that the defendant was
unable to show prejudice resulting from the court room closure
and that there was no substantial risk of a miscarriage of
justice.
2. Discussion. We conclude that where 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
6
a miscarriage of justice) and the presumption of prejudice that
would otherwise apply to a preserved claim of structural error
does not apply. See Purvis v. Crosby, 451 F.3d 734, 740-743
(11th Cir.), cert. denied sub nom. Purvis v. McDonough, 549 U.S.
1035 (2006); Virgil v. Dretke, 446 F.3d 598, 612 (5th Cir.
2006); Reid v. State, 690 S.E.2d 177, 180-181 (Ga. 2010); People
v. Vaughn, 821 N.W.2d 288, 297-299 (Mich. 2012) (all concluding
that structural error alone is not sufficient to warrant
presumption of prejudice in context of claim of ineffective
assistance of counsel).
a. Right to a public trial. It is well settled that the
violation of a defendant's right to a public trial is structural
error. See United States v. Marcus, 560 U.S. 258, 263 (2010);
Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105 (2010). Where
a defendant raises a properly preserved claim of structural
error, this court will presume prejudice and reversal is
automatic. See Cohen (No. 1), supra at 118-119 (properly
preserved claim where counsel objected to court room closure at
trial).
Where counsel fails to lodge a timely objection to the
closure of the court room, the defendant's claim of error is
deemed to be procedurally waived. See Morganti, 467 Mass. at
102; Lavoie, 464 Mass. at 87-88 & n.8. Our case law provides
that unpreserved claims of error be reviewed to determine if a
7
substantial risk of a miscarriage of justice occurred. See
Lavoie, 464 Mass. at 89, citing Commonwealth v. Freeman, 352
Mass. 556, 564 (1967). While violation of the right to a public
trial is structural error, even structural error "is subject to
the doctrine of waiver." Morganti, supra at 101-102, quoting
Cohen (No. 1), supra at 105-106. See Commonwealth v. Amirault,
424 Mass. 618, 641 (1997) (stating doctrine of waiver applies
equally to constitutional claims). This includes structural
error arising through an improper court room closure. See
Alebord, 467 Mass. at 113; Morganti, supra at 101-102.
To presume prejudice in this context would ignore the
distinction, one long recognized by this court, between properly
preserved and waived claims. See Commonwealth v. Dyer, 460
Mass. 728, 735-737 & n.7 (2011), cert. denied, 132 S. Ct. 2693
(2012) (applying waiver analysis in first-degree murder case to
unobjected to closure during jury voir dire and finding
substantial likelihood of miscarriage of justice not shown);
Commonwealth v. Horton, 434 Mass. 823, 832 (2001) (applying
waiver analysis, in effect, to unpreserved claim of Sixth
Amendment right to public trial). The structural nature of the
underlying error does not automatically excuse the defendant
from showing prejudice when advancing an unpreserved claim. See
Francis v. Henderson, 425 U.S. 536, 542 (1976) (holding that
showing of actual prejudice necessary to overcome procedural
8
waiver arising from failure to object to structural error at
trial). "The presumption of prejudice which supports the
existence of the right is not inconsistent with a holding that
actual prejudice must be shown in order to obtain relief from a
statutorily provided waiver for failure to assert it in a timely
manner." Davis v. United States, 411 U.S. 233, 245 (1973)
(presumption of prejudice associated with claim of racial
discrimination in grand jury composition not available when
claim first raised in postconviction motion). "To conclude
otherwise would tear the fabric of our well-established waiver
jurisprudence that 'a defendant must raise a claim of error at
the first available opportunity,'" Morganti, 467 Mass. at 102,
quoting Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), and
would defeat the core purposes of the waiver doctrine: to
protect society's interest in the finality of its judicial
decisions, and to promote judicial efficiency. Randolph, supra.
b. Right to effective assistance of counsel. If an error
is waived due to the failure of trial counsel to object, we
still may have occasion to review the error in the
postconviction context of a claim of ineffective assistance of
counsel. See Alebord, 467 Mass. at 113; Morganti, 467 Mass. at
103. To prevail on a claim of ineffective assistance of
counsel, however, a defendant also must show that counsel's
deficiency resulted in prejudice, see Saferian, 366 Mass. at 96,
9
which, in the circumstances of counsel's failure to object to an
error at trial, is essentially the same as the substantial risk
standard we apply to unpreserved errors. See Commonwealth v.
Azar, 435 Mass. 675, 686-687 (2002).
Because of the structural nature of the defendant's waived
Sixth Amendment right to a public trial, the dissent would
presume prejudice, even in the context of a collateral attack
based on a claim of a counsel's ineffectiveness. But a claim of
ineffective assistance of counsel is not a public trial claim.
As discussed above, the defendant's public trial claim has been
procedurally waived. Presuming prejudice in this context
ignores the distinct and well-established jurisprudence which
governs claims of ineffective assistance of counsel.2
With respect to claims of ineffective assistance of
counsel, in violation of the Sixth Amendment, the United States
Supreme Court has recognized a presumption of prejudice only in
limited circumstances where the essential right to the
assistance of counsel itself has been denied. See Strickland v.
Washington, 466 U.S. 668, 692 (1984) ("Actual or constructive
denial of the assistance of counsel altogether is legally
presumed to result in prejudice," as is "state interference with
2
Indeed, it would be anomalous if a waived claim reviewed
on direct appeal under a substantial risk standard could be
recast as a claim of ineffective assistance of counsel in which
prejudice would be presumed.
10
counsel's assistance"); United States v. Cronic, 466 U.S. 648,
659 & n.25 (1984). In Strickland, supra at 692, the United
States Supreme Court went on to identify one additional
circumstance where "a similar, though more limited, presumption
of prejudice" would apply: where "counsel is burdened by an
actual conflict of interest." "Even so, the rule is not quite
the per se rule of prejudice that exists for the Sixth Amendment
claims mentioned above [denial altogether and State interference
with counsel]. Prejudice is presumed only if the defendant
demonstrates that counsel 'actively represented conflicting
interests' and that 'an actual conflict of interest adversely
affected [the] lawyer's performance.'" Strickland, supra,
quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980).
In contrast, in circumstances where ineffectiveness is
based on "[a]n error by counsel, even if professionally
unreasonable, [it will] not warrant setting aside the judgment
of a criminal proceeding if the error had no effect on the
judgment." Strickland, supra at 691. "The purpose of the Sixth
Amendment guarantee of counsel is to ensure that a defendant has
the assistance to justify reliance on the outcome of the
proceeding." Id. at 691-692. While a jury empanelment closed
to spectators (other than jurors) and the defendant's family may
be a structural error, it will rarely have an "effect on the
11
judgment," or undermine our "reliance on the outcome of the
proceeding." Id. at 691, 692.
In Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007),
the United States Court of Appeals for the First Circuit
presumed prejudice where a defendant advanced a claim of
ineffective assistance of counsel based on counsel's failure to
object to a public trial structural error. The court reasoned
that it would "not ask defendants to do what the Supreme Court
has said is impossible." Id. at 65.3 However, to say that
requiring a showing of prejudice forecloses the possibility of a
remedy "ignore[s] -- at great cost to the public interest in the
finality of verdicts -- the established rule that public trial
rights may be waived," Dyer, 460 Mass. at 735 n.7, and that
claims of ineffective assistance of counsel merit a new trial
only where the error may have affected the verdict. See
Strickland, 466 U.S. at 691. We do not agree with the reasoning
of Owens in this context, and are more aligned with that of the
United States Court of Appeals for the Eleventh Circuit in
Purvis v. Crosby, 451 F.3d at 740-741, which has concluded that
aside from the three exceptions noted in Strickland and Cronic,
3
Although it may be difficult to demonstrate prejudice in
the context of a closed jury empanelment process, we do not rule
out that possibility, although we recognize that the possibility
is greater with respect to trial closures after jury
empanelment.
12
none of which is present here, the United States Supreme Court
has instructed that prejudice must be shown in a claim for
ineffective assistance of counsel. See People v. Vaughn, 821
N.W.2d at 308 (rejecting reasoning of Owens and adopting
reasoning of Purvis, further nothing that, "[w]ithout
distinguishing a properly preserved structural error for which
reversal is required from an error claimed as ineffective
assistance of counsel, counsel can harbor error as an appellate
parachute by failing to object to the closure of trial, thereby
depriving the trial court of the opportunity to correct the
error at the time it occurs").
3. Conclusion. For the above reasons, the order denying
the defendant's motion for a new trial is affirmed.
So ordered.
DUFFLY, J. (dissenting, with whom Lenk, J., joins). It is,
as the court notes, "well settled that the violation of a
defendant's right to a public trial is structural," and that the
public trial right under the Sixth Amendment to the United
States Constitution applies as much to jury empanelment as to
"the actual proof at trial." Presley v. Georgia, 558 U.S. 209,
212 (2010). Today's decision effectively forecloses vindication
of this constitutional right on collateral review, even in cases
where trial counsel has rendered constitutionally deficient
performance in failing to object when the court room was closed,
and neither the defendant nor his counsel knowingly waived his
right to a public trial.1 See Commonwealth v. Lavoie, 464 Mass.
83, 88-89, cert. denied, 133 S. Ct. 2356 (2013).
Notwithstanding the absence of a waiver of the public trial
right in this case, the court holds that the defendant is
foreclosed from seeking relief because he procedurally waived
his claim of error when his trial attorney failed to object, and
his appellate counsel did not raise the claim on direct appeal.
See id. at 87 n.8 (distinguishing between waiver of right and
1
When a court room is closed but a defendant has waived his
right to a public trial, there is no violation of the right.
See Commonwealth v. Amirault, 424 Mass. 618, 649-650 (1997).
The waiver of a right occurs only where a litigant intentionally
relinquishes that right. See Commonwealth v. Lavoie, 464 Mass.
83, 87, n.8, cert. denied, 133 S. Ct. 2356 (2013); Commonwealth
v. Deeran, 397 Mass. 136, 140-142 (1986); Commonwealth v.
Downey, 78 Mass. App. Ct. 224, 229-230 (2010).
2
waiver of claim of error); Commonwealth v. Deeran, 397 Mass.
136, 140-142 (1986) (noting distinction between "a procedural
waiver of [defendant's] right to assert a constitutional claim"
in postconviction motion, and the knowing and intelligent
"relinquishment of the constitutional right" [emphasis in
original]).
As the court notes, the defendant did not raise the claim
that his public trial right was violated until his third
postconviction motion. The court recognizes that counsel's
failure to object was constitutionally deficient performance,
but nonetheless affirms the denial of the defendant's claim of
structural error by invoking concepts of finality and judicial
efficiency to support what it describes to be "our well-
established waiver jurisprudence that 'a defendant must raise a
claim of error at the first available opportunity.'"
Commonwealth v. Morganti, 467 Mass. 96, 102 (2014), quoting
Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). I
respectfully disagree that the principles of finality and
judicial efficiency must be invoked. Where, as here, the court
room was closed without a determination that such closure was
justified according to Waller v. Georgia, 467 U.S. 39, 46 (1984)
(Waller), a defendant has not waived his constitutional right to
a public trial, and defense counsel provided ineffective
3
assistance by failing to object,2 I would invoke the principle
that "every right, when withheld, must have a remedy." Marbury
v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
Under the court's analysis, henceforth, in any case in
which trial counsel fails to object to a court room closure,
either because of a lack of experience or knowledge, or other
"serious incompetency, inefficiency, or inattention,"
Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), a defendant
will have no meaningful opportunity to raise such a claim on
collateral review.3 This is necessarily so because, in order to
obtain relief, a defendant would need to show either (1) that
his procedurally waived claim of error resulted in a substantial
risk of a miscarriage of justice, which requires a showing of
2
There is no suggestion that either the defendant or his
counsel intended to relinquish the public trial right because
both the defendant and his counsel were unaware that the public
trial right applied during jury empanelment. In such
circumstances, where it is not consistent with the prevailing
professional norms at the time of trial, the failure to object
may constitute deficient performance falling below what is to be
expected of an ordinary fallible lawyer. See Commonwealth v.
Morganti, 467 Mass. 96, 103 (2014), quoting Commonwealth v.
Drew, 447 Mass. 635, 641 (2006), cert. denied, 550 U.S. 943
(2007).
3
The court's decision to foreclose relief for unpreserved
claims of error regarding the public trial right is limited to
the context of collateral review in which this case arises. The
decision rests on an interest in promoting finality, an interest
which arises only after a conviction has been affirmed on direct
appeal, see Commonwealth v. Amirault, 424 Mass. 618, 637 (1997),
and does not address the question of possible remedies on direct
appeal.
4
prejudice, see Commonwealth v. Randolph, 438 Mass. 290, 298
(2002), or (2) that his counsel's representation was
constitutionally ineffective, which also requires a showing of
prejudice.4 But the very nature of a right to which presumptive
prejudice attaches -– such as the right to an open court –- is
4
In circumstances such as those present here, the standard
of review for ineffective assistance claims is not "essentially
the same" as the standard of review for claims of unpreserved
trial error. Compare Commonwealth v. Saferian, 366 Mass. 89, 96
(1974) (new trial where counsel's deficient performance deprives
defendant of otherwise available substantial ground of defense),
with Commonwealth v. Amirault, supra at 646 (new trial where
waived claim of error results in substantial risk of miscarriage
of justice). In most circumstances, however, because
application of either standard will lead to the same result, we
review under the substantial risk of a miscarriage of justice
standard and, in so doing, obviate the need to conduct a
separate review under the Saferian standard. See, e.g.,
Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002);
Commonwealth v. Peters, 429 Mass. 22, 31 & n.12 (1999);
Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).
Here, by contrast, the circumstances are precisely those in
which the substantial risk standard and the Saferian standard
diverge. I agree that where a defendant raises a waived claim
of error regarding the public trial right without asserting a
claim of ineffective assistance of counsel, the defendant must
establish a substantial risk of a miscarriage of justice, and
will not be entitled to a presumption of prejudice. But I would
hold that a defendant is entitled to a presumption of prejudice
where a defendant raises an ineffective assistance of counsel
claim and has established that, in failing to object to a court
room closure, counsel's performance fell below that of an
ordinary, fallible attorney. The distinction between preserved
and waived claims of error is therefore maintained: a defendant
who has preserved a claim that his public trial right was
violated is entitled to reversal, whereas a defendant who has
waived the claim of error is not entitled to reversal unless he
establishes that, in failing to object, his trial counsel's
performance fell below the standard of an ordinary, fallible
lawyer.
5
that a showing of prejudice is not possible. See Waller, supra
at 49 n.9, quoting United States ex rel. Bennett v. Rundle, 419
F.2d 599, 608 (3d Cir. 1969) ("a requirement that prejudice be
shown would 'in most cases deprive [the defendant] of the
[public-trial] guarantee, for it would be difficult to envisage
a case in which he would have evidence available of specific
injury'"). It is nonsensical to impose upon a defendant the
requirement to establish that trial counsel's failure deprived
him of an otherwise available substantial line of defense where
the structural nature of the public trial right makes such a
showing impossible in practice.5
Requiring that prejudice be shown in these circumstances
disregards the fundamental purpose of the right to a public
trial. The violation of the public trial right is structural
error that "require[s] automatic reversal without a showing of
5
The court states that it does not rule out the possibility
that a defendant could show prejudice resulting from violation
of the right to a public trial, ante at n.3, but a showing of
prejudice is inconsistent with classification of the public
trial right as structural. Moreover, the court does not suggest
how a defendant might show such prejudice, and the effect of its
holding is that there will be no "occasion to review"
unpreserved claims of error predicated on the public trial right
on collateral review. No other court to have considered this
issue appears to have suggested that a showing of prejudice
resulting from a court room closure would be possible. See,
e.g., Purvis v. Crosby, 451 F.3d 734, 741 (11th Cir.), cert.
denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006); Reid
v. State, 286 Ga. 484, 488 (2010); People v. Vaughn, 491 Mich.
642 (2012); State v. Butterfield, 784 P.2d 153, 157 (Utah 1989).
6
actual harm," because it "necessarily render[s] a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence." Commonwealth v. Petetabella, 459 Mass.
177, 183 (2011), quoting Commonwealth v. Hampton, 457 Mass. 152,
163 (2010). See Commonwealth v. Cohen, 456 Mass. 94, 118-119
(2010) (where jury selection procedure violated public trial
right, error was structural and therefore no inquiry conducted
"as to whether it prejudiced the defendant"); Commonwealth v.
Marshall, 356 Mass. 432, 435 (1969) (reversing conviction based
on violation of right to public trial, and holding "showing of
prejudice is not necessary"). This is because the benefits of a
public trial, while significant, are nonetheless "frequently
intangible, difficult to prove, or a matter of chance, [but] the
Framers plainly thought them nonetheless real." Waller, supra
at 49 n.9. See Commonwealth v. White, 85 Mass. App. Ct. 491,
496 (2014) ("A closure during jury selection undermines the
values of openness because the public loses the opportunity for
assurance that those chosen to decide the defendant's guilt or
innocence will do so fairly"); Commonwealth v. Downey, 78 Mass.
App. Ct. 224, 229 (2010) ("Because we place such value on the
right to public trial and because it is virtually impossible to
demonstrate concrete harm flowing from a violation of that
right, a violation relieves the defendant of the need to show
prejudice in order to obtain a new trial").
7
As structural error, the violation of the right to a public
trial is in a category distinct from trial errors, such as the
improper admission of evidence, from which specific harm may be
seen to flow. Structural errors stand apart from trial errors
because structural errors "affect[] the framework within which
the trial proceeds" and thereby "defy analysis by 'harmless-
error' standards," whereas trial errors "occur during the
presentation of the case to the jury," and "may therefore be
quantitatively assessed in the context of other evidence
presented." Arizona v. Fulminante, 499 U.S. 279, 291, 307-308,
309-310 (1991). Because a structural defect affects the
framework in which a trial proceeds, looking for prejudice
flowing from structural error is "a speculative inquiry into
what might have occurred in an alternate universe." United
States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). See State
v. Lamere, 327 Mont. 115, 124 (2005) (structural defects are
presumptively prejudicial because they "cannot be qualitatively
or quantitatively weighed against the admissible evidence
introduced at trial").
The majority decision diminishes the significance of the
public trial right when it concludes that finality trumps a
defendant's right to seek a postaffirmance remedy for an
unpreserved public trial claim, a conclusion we have not reached
for other unpreserved claims of error. Notably, we have granted
8
a new trial on collateral review without requiring a showing of
prejudice, twenty years after the conviction, where a defendant
raised an unpreserved claim of error implicating a structural
defect in jury instructions. See Commonwealth v. Pinckney, 419
Mass. 341, 342, 349 (1995).6 And, although a defendant who
raises an unpreserved claim of error implicating his public
trial right is now effectively foreclosed from collateral
review, a defendant who raises an unpreserved trial error
retains the possibility of reversal if he can show that the
error resulted in a substantial risk of a miscarriage of
justice. See, e.g., Commonwealth v. Gilbert, 447 Mass. 161, 163
(2006); Commonwealth v. Thomas, 401 Mass. 109, 119 (1987);
Commonwealth v. Callahan, 380 Mass. 821, 826 (1980);
Commonwealth v. Palmarin, 378 Mass. 474, 477 (1979). Permitting
relief for unpreserved trial errors and some unpreserved
6
In the context of direct appeal, we have reversed
convictions on the basis of unpreserved claims of error where we
have recognized that a showing of prejudice would be impossible.
See Commonwealth v. Sheehy, 412 Mass. 235, 238 (1992);
Commonwealth v. Jones, 405 Mass. 661, 662 (1989); Commonwealth
v. Smith, 403 Mass. 489, 493, 496-497 (1988). Although the
error in these cases -- alternate jurors sitting in on jury
deliberations, without objection by trial counsel -- was not
labeled as "structural," our decision in Commonwealth v. Smith,
supra, preceded Arizona v. Fulminante, 499 U.S. 279, 291, 307-
308, 309-310 (1991), apparently the first United States Supreme
Court case to have categorized and labeled as "structural" those
errors which "defy harmless-error analysis." See Burns,
Insurmountable Obstacles: Structural Errors, Procedural
Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 732
(2012).
9
structural errors, but not for errors implicating the public
trial right, introduces unjustified disparity into our
jurisprudence. See Commonwealth v. Dyer, 460 Mass. 728, 735 n.7
(2011), cert. denied, 132 S. Ct. 2693 (2012) (rejecting option
that "would give less protection to waived constitutional rights
than to ordinary claims of unpreserved errors"). Cf. Burns,
Insurmountable Obstacles: Structural Errors, Procedural
Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 749-
750 (2012) (allowing relief for unpreserved trial errors but
foreclosing relief for unpreserved structural errors "would be
absurd if the Court were to come right out and say that this is
the rule, given the general agreement . . . that most structural
errors are quite serious").
The court looks to Francis v. Henderson, 425 U.S. 536, 542
(1976)7, and Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir.),
7
The court relies on Francis v. Henderson, 425 U.S. 536,
542 (1976) (Francis), to support its statement that "[t]he
structural nature of the underlying error does not automatically
excuse the defendant from showing prejudice when advancing an
unpreserved claim." In Francis, supra at 537-538, 542, the
United States Supreme Court considered a State prisoner's
petition for Federal habeas corpus relief based on a claim of
error for which prejudice was presumed; the Court denied relief
because the State court had deemed the claim waived pursuant to
its own procedural rules. The claim did not concern the public
trial right, but, rather, concerned racial bias in the
composition of the grand jury. The Francis opinion does not
discuss the possibility of ineffective assistance of counsel
(indeed the opinion predated Strickland v. Washington, 466 U.S.
668 [1984]), nor did it grapple with the issue that for certain
types of error, it will be impossible for a defendant to show
10
cert. denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006),
for support, but these cases rely on comity concerns in the
context of conducting Federal habeas review of a State
conviction.8 Concerns of comity are wholly inapplicable here.9
prejudice. See Francis, supra at 552 (Brennan, J., dissenting)
(Francis Court's imposition of requirement to show actual
prejudice "without the slightest veneer of reasoning" shields
the obvious); Owens v. United States, 483 F.3d 48, 64 n.14 (1st
Cir. 2007) (explaining limited persuasive value of Francis).
8
The court also cites Virgil v. Dretke, 446 F.3d 598 (5th
Cir. 2006), which likewise arose in the context of Federal
habeas review of a State conviction. I disagree with the
court's view that the United States Court of Appeals for the
Fifth Circuit concluded in that case that structural error is
insufficient to warrant a presumption of prejudice in the
context of an ineffective assistance of counsel claim. The
circuit court determined that trial counsel rendered deficient
performance in failing to object to the seating of two jurors
who stated they would not be fair and impartial, and that the
seating of such jurors sufficed to establish prejudice under the
Strickland standard. Id. at 613-614. Having determined that
counsel's errors resulted in prejudice, the circuit court did
not conduct a determinative analysis as to whether prejudice may
be presumed for a claim of ineffective assistance of counsel
predicated on structural error. The circuit court simply
stated, "we do not hold that a structural error alone is
sufficient to warrant a presumption of prejudice in the
ineffective assistance of counsel context" (emphasis added).
Id. at 607.
9
Even where comity concerns are applicable, some circuit
courts of the United States Court of Appeals have presumed
prejudice on a claim of ineffective assistance of counsel
predicated on counsel's failure to raise structural error at
trial. See Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.
2011), cert. denied sub nom. Winston v. Tegels, 132 S. Ct. 2101
(2012) (prejudice presumed for ineffective assistance of counsel
claim predicated on failure to object to structural error in
jury selection); McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.
1998) (presuming prejudice for ineffective assistance claim
11
See Commonwealth v. Sylvain, 466 Mass. 422, 433 n.16 (2013)
("Comity refers to the [United States] Supreme Court's policy
against excessive interference by Federal habeas courts in State
criminal convictions that had become final," and has "little
application to collateral review by State courts themselves").
Where comity concerns are inapplicable, this court, the United
States Court of Appeals for the First Circuit, and some courts
in other jurisdictions have not required a showing of prejudice
to reverse a conviction on collateral review based on an
unpreserved claim of structural error. See Owens v. United
States, 483 F.3d 48, 64 (1st Cir. 2007); Littlejohn v. United
States, 73 A.3d 1034, 1043 (D.C. 2013);10 Commonwealth v.
Pinckney, supra at 342, 349.
I agree with the analysis in Owens v. United States, supra;
Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir. 2009), cert.
denied, 131 S. Ct. 87 (2010); and Littlejohn v. United States,
predicated on failure to inform defendant of right to jury
trial).
10
With respect to consideration of other structural errors
where comity concerns were inapplicable, courts have presumed
prejudice on a claim of ineffective assistance of counsel
predicated on counsel's failure to raise such error at trial.
See Savoy v. State, 420 Md. 232, 255-256 (2011) (prejudice
presumed for structural error in instructions concerning
reasonable doubt where defendant did not object at trial); State
v. Lamere, 327 Mont. 115, 125 (2005) (prejudice presumed for
ineffective assistance claim predicated on structural error in
jury selection).
12
73 A.3d at 1043. Each of these cases rejects the proposition
that Strickland requires that a defendant must establish
prejudice in order to prevail on an ineffective assistance claim
in all but the three circumstances listed in Strickland. As the
Court of Appeals for the District of Columbia stated in
Littlejohn v. United States, supra at 1043:
"The Supreme Court's discussion of three instances in which
the violation of the Sixth Amendment right to counsel is
presumptively prejudicial —- (1) actual or constructive
denial of counsel; (2) state interference with counsel's
assistance; and (3) counsel operating under a conflict of
interest, Strickland, [supra at 692] -- is not necessarily
an exclusive list of the rare occasions when prejudice may
be presumed. Requiring [a defendant] to prove actual
prejudice as a result of trial counsel's waiver of his
public trial right would be inconsistent with the [United
States] Supreme Court's holdings that prejudice is presumed
when the constitutional error is a structural defect, one
that 'infect[s] the entire trial process.' Brecht v.
Abrahamson, [507 U.S. 619, 630 (1993)]; see also Gonzalez–
Lopez, [548 U.S. at 148–149]; Sullivan [v. Louisiana, 508
U.S. 275, 281 (1993)]; Arizona v. Fulminante, [499 U.S. at
309-310]. If it is impossible to identify the prejudice
resulting from a structural defect, it is likewise
impossible to determine whether counsel's waiver of such a
'basic protection,' like the public trial guarantee, 'had
no effect on the judgment.' Strickland, [supra at 691]."
(Footnote omitted.)
The court also cites with approval a concern articulated by
another State appellate court that "counsel can harbor error as
an appellate parachute by failing to object to the closure of
trial, thereby depriving the trial court of the opportunity to
correct the error at the time it occurs." People v. Vaughn, 821
13
N.W.2d 288, 308 (Mich. 2012). I do not accept the court's
assumption that a defendant's trial counsel, who was aware of
the removal of the defendant's family members from the court
room, would engage in conduct that fails to respect the duty of
zealous representation owed to a client. See Mass. R. Prof.
C. 1.3 & comment 1A, 426 Mass. 1313 (1998). Cf. Littlejohn v.
United States, supra at 1046 & n.2 (Pryor, J., dissenting),
citing D.C. R. Prof. C. 1.3 comment 1 (2007). The court's view
rests on the assumption that appellate counsel could establish
that trial counsel's failure to object was not a tactical
decision. Cf. Davis v. United States, 411 U.S. 233, 250 (1973)
(Marshall, J., dissenting) ("a prisoner would properly be held
to have intentionally relinquished his right to raise the
constitutional claim if he failed to raise it for tactical
reasons").
For the foregoing reasons, I would conclude that prejudice
should be presumed where there is a claim of ineffective
assistance of counsel predicated on counsel's failure to object
to a court room closure, and respectfully dissent.