Commonwealth v. Andrade (Lawyers Weekly No. 10-113-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11388 COMMONWEALTH vs. SETH ANDRADE. Bristol. May 9, 2014. ‑ June 25, 2014. Present: Ireland, C.J., Spina, Cordy, Duffly, & Lenk, JJ. Homicide. Practice, Criminal, Capital case, Jury and jurors, Voir dire, Examination of jurors, Argument by prosecutor. Witness, Credibility. Indictments found and returned in the Superior Court Department on April 1, 2010. The cases were tried before Barbara A. Dortch-Okara, J. Cathryn A. Neaves for the defendant. Tara L. Blackman, Assistant District Attorney, for the Commonwealth. IRELAND, C.J. In April, 2012, a jury convicted the defendant, Seth Andrade, of murder in the first degree on the theory of deliberate premeditation, and of unlawful possession of a firearm. Represented by new counsel on appeal, the defendant argues error in: (1) the judge’s questioning of members of the jury venire concerning the effect, if any, of the absence of eyewitness testimony to the murder in the Commonwealth’s case; (2) the redirect examination of an immunized witness; and (3) the prosecutor’s closing argument. We affirm the defendant’s convictions and discern no basis to exercise our authority pursuant to G. L. c. 278, § 33E. 1. Background. Based on the Commonwealth’s evidence, the jury could have found the following facts. Shortly after 8:30 P.M., on January 20, 2010, the victim was shot and killed in the backyard at 192 Purchase Street in New Bedford. The victim died as a result of two gunshot wounds to the head, with injuries to his skull and brain. One bullet entered the right side of the victim’s face about one-half inch to midline on his nose and traveled upwards, front to back and lodging underneath the parietal scalp of the right side of his head. The presence of stippling at the site of the entrance to that wound indicated that the victim had been shot at from an intermediate range, specifically, from a distance of eighteen to twenty-four inches. The second bullet entered the back of the victim’s head on the right side, traveled down through his skull, and exited on the left side of his face, just below his earlobe. The medical examiner could not determine which wound was first inflicted, but both wounds were fatal and would have caused a loss of consciousness within seconds. At the time of the shooting, nearby […]
Commonwealth v. Higgins (Lawyers Weekly No. 11-073-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑924 Appeals Court COMMONWEALTH vs. JEROME HIGGINS. No. 13‑P‑924. Suffolk. March 26, 2014. ‑ June 25, 2014. Present: Milkey, Brown, & Maldonado, JJ. Dangerous Weapon. Evidence, Knife. Indictment found and returned in the Superior Court Department on October 27, 2009. The case was tried before Thomas E. Connolly, J. Jon R. Maddox for the defendant. Zachary Hillman, Assistant District Attorney, for the Commonwealth. MILKEY, J. Following a jury trial in Superior Court, the defendant was convicted of violating G. L. c. 269, § 10(b), by carrying a dangerous weapon (a knife).[1] Because we agree with the defendant that the evidence was insufficient to prove that his knife was of the type prohibited by the statute, we reverse the judgment and set aside the verdict. Background. On September 5, 2009, Boston police officers, who were investigating a stabbing that had occurred earlier that day, arrested the defendant at his residence. After the arrest, the defendant acknowledged that he owned a knife, while denying that he had used the knife in any stabbing. The police “froze[]” the scene, obtained a search warrant, and retrieved the knife from the defendant’s bedroom. The knife, which was admitted in evidence, is a folding knife that has a blade that locks into place. Further characteristics of the knife are reserved for later discussion. For the stabbing, the defendant was charged with aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A(c). That charge was the centerpiece of the trial. Thus, for example, both closing arguments focused exclusively on whether it was the defendant who had stabbed the victim. The defendant was also charged with violating G. L. c. 269, § 10(b), for carrying the knife on his person. The jury acquitted the defendant of the aggravated assault and battery charge, but convicted him of carrying a dangerous weapon. Discussion. Section 10(b) of G. L. c. 269 makes it illegal for anyone to carry certain kinds of knives. See Commonwealth v. Miller, 22 Mass. App. Ct. 694 (1986); Commonwealth v. Garcia, 82 Mass. App. Ct. 239, 242-249 (2012). The question before us is whether there was sufficient evidence that the defendant’s knife fell within one of the designated categories outlawed by the statute. In determining the sufficiency of the evidence, we must of course consider “whether, after viewing the evidence in the light most […]
Hassey v. Hassey (Lawyers Weekly No. 11-074-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑864 Appeals Court MARYELLEN S. HASSEY vs. EDWARD P. HASSEY. No. 13‑P‑864. Essex. March 5, 2014. ‑ June 25, 2014. Present: Kafker, Fecteau, & Agnes, JJ. Alimony Reform Act. Divorce and Separation, Alimony, Division of property, Modification of judgment. Complaint for divorce filed in the Essex Division of the Probate and Family Court Department on October 28, 2009. The case was heard by Jeffrey A. Abber, J. John A. Macoul for Edward P. Hassey. Joseph L. Doherty, Jr., for Maryellen S. Hassey. AGNES, J. The Alimony Reform Act of 2011 (Act)[1] is “a comprehensive effort to address numerous issues in alimony law,” including the elimination of “any historical connection to gender status or outdated gender stereotypes,” clarification of various types of alimony, and recognition of durational limits on alimony awards. Kindregan, Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal Support, 46 Suffolk U. L. Rev. 13, 16, 18 (2013). In this case, we review the application of key provisions of the Act, which has received only limited appellate consideration. The husband appeals from an amended judgment of divorce nisi entered August 30, 2012, by the Probate and Family Court, excluding the wife’s interest in certain real property from the marital estate, and establishing a “self-modifying” alimony order. The husband contends that the alimony order does not comport with the guidelines of the Act, and that the exclusion of the wife’s property from the divisible estate was plainly wrong. For the reasons that follow, we conclude it is necessary to vacate the amended judgment in part and remand for further proceedings. Background. a. Evidence. The parties married on September 18, 1988, and lived together until December 28, 2009. Two sons, both in college at the time of trial, were born of the over twenty-year marriage. In 1982, the husband graduated from dental school and joined his father’s practice, becoming an equal partner pursuant to a “buy-in” agreement prior to the marriage. The wife was a homemaker and primary caretaker of the children, while the husband was the sole wage earner. Although she earned a bachelor’s degree and was briefly employed outside the home, the wife was laid off in early 1989 and has not been otherwise employed since before her first son was born. During the marriage, […]
Deadrick, et al. v. Zoning Board of Appeals of Chatham, et al. (Lawyers Weekly No. 11-075-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑1264 Appeals Court Sara Deadrick[1], & others[2] vs. Zoning Board of Appeals of Chatham, & others[3] No. 13‑P‑1264. Suffolk. April 2, 2014. ‑ June 25, 2014. Present: Grasso, Green, & Fecteau, JJ. Zoning, Nonconforming use or structure, Special permit, Variance, By‑law, Appeal, Board of appeals: decision. Practice, Civil, Variance, Zoning appeal. Statute, Construction. Civil action commenced in the Land Court Department on December 31, 2007. Following review by this court, 80 Mass. App. Ct. 1104 (2011), the case was heard by Alexander H. Sands, III, J., on motions for summary judgment and a motion for reconsideration was heard by him. Daniel P. Dain for the Robert Jeffrey Chandler & another. Peter S. Farber for the plaintiffs. FECTEAU, J. The defendants, Robert Jeffrey Chandler and Jayne Kerry Chandler (collectively the Chandlers), appeal from the entry of summary judgment by a judge of the Land Court that reversed a decision of the Chatham zoning board of appeals (board). The board had granted the Chandlers a special permit allowing them to reconstruct a pre-existing nonconforming structure on their nonconforming lot. In reversing the board’s decision, the judge determined that because the proposed new structure’s increased height created a new, additional nonconformity, distinct from the pre-existing dimensional and coverage nonconformities, a variance was required. We agree with the judge’s decision that a variance would be required if the proposed increase in height constitutes an additional nonconformity not otherwise exempted by the town by-law. However, we also conclude that the judge erroneously concluded that the board had determined that the Chandlers’ project is ineligible for the exemption from certain height limits created by § IV.A.3 of the Chatham bylaw. Consequently, we vacate the entry of summary judgment and remand the matter for further proceedings before the board. 1. Facts. The following undisputed facts are taken from the summary judgment record. On July 1, 2005, the Chandlers purchased property located at 24 Windmill Lane in Chatham, Massachusetts containing a single-family home (old structure). The old structure was built in approximately 1929 and is located within a residential R-40 district and in a coastal conservancy district. The old structure is 19.2 feet high above grade, and contains 2,161 square feet of living space. The Chandlers’ property is nonconforming as to lot size and building coverage, […]
GPH Cohasset, LLC, et al. v. Trustees of Reservations, et al. (Lawyers Weekly No. 11-076-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑1304 Appeals Court GPH COHASSET, LLC, & another[1] vs. TRUSTEES OF RESERVATIONS & others.[2] No. 13‑P‑1304. Suffolk. April 2, 2014. ‑ June 25, 2014. Present: Grainger, Rubin, & Hanlon, JJ. Zoning, Special permit, Conditions, By‑law. Real Property, Conservation restriction. Environment, Noise. Evidence, Disclosure of evidence, Expert opinion. Witness, Expert. Practice, Civil, Discovery. Civil action commenced in the Land Court Department on March 25, 2011. The case was heard by Alexander H. Sands, III, J. Damon M. Seligson for the plaintiffs. Michael K. Murray for Trustees of Reservations & another. Kimberly M. Saillant for planning board of Cohasset. GRAINGER, J. The plaintiffs, GPH Cohasset, LLC; and GGNSC Cohasset, LLC (collectively, Golden Living), appeal from a judgment of the Land Court affirming a decision of the defendant planning board of Cohasset (board) to grant defendant Conservation Wind Partners, LP (Conservation Wind), a special permit to erect a wind turbine on property owned by defendant Trustees of Reservation (trustees). On appeal, Golden Living asserts that (1) the trustees and Conservation Wind did not satisfy their burden of proof to obtain approval of the special permit and site plan, (2) the wind turbine creates public safety concerns, (3) the judge erred by precluding Golden Living’s expert witnesses from testifying, and (4) the judge erred by declining to compel the production of the wind turbine’s operating manual. Background. We recite the facts as found by the judge following a bench trial, reserving certain details for our discussion of specific issues. On October 28, 2010, Conservation Wind filed an application for a special permit and site plan approval to erect a wind turbine on certain property (locus) owned by the trustees. The locus consists of two large parcels of land, which together comprise approximately 314 acres within two adjacent reservations known as Whitney and Thayer Woods (WTW) and Turkey Hill Reservation (Turkey Hill). The towns of Cohasset and Hingham (collectively, towns) own much of the land surrounding the locus, which, along with the locus, is open to the public for recreational use. The towns granted conservation restrictions to the trustees, limiting the use of the town-owned land in Turkey Hill (the municipal restrictions). The municipal restrictions each contain several prohibited uses, including the construction of any permanent structure, cutting or removing trees, and any surface […]
Commonwealth v. Gelfgatt (Lawyers Weekly No. 10-112-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11358 COMMONWEALTH vs. LEON I. GELFGATT. Suffolk. November 5, 2013. ‑ June 25, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Forgery. Uttering Forged Instrument. Larceny. False Pretenses. Witness, Compelling giving of evidence, Self-incrimination. Evidence, Information stored on computer, Testimonial statement. Search and Seizure, Computer. Constitutional Law, Self-incrimination. Indictments found and returned in the Superior Court Department on May 7, 2010. A pretrial motion to compel evidence was heard by Raymond J. Brassard, J., and a question of law was reported by him. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Randall E. Ravitz, Assistant Attorney General (Thomas D. Ralph, Assistant Attorney General, with him) for the Commonwealth. Paul Joseph Davenport (Stanley D. Helinski with him) for the defendant. The following submitted briefs for amici curiae: Daniel B. Garrie, of Washington, & Daniel K. Gelb, for Daniel K. Gelb & others. David H. Margolis, of Florida, for Florida Department of Law Enforcement & others. Mark R. Gage & Christian J. Desilets, of West Virginia, for National White Collar Crime Center. David W. Opderbeck, of New Jersey, for David W. Opderbeck & others. Nathan F. Wessler, of New York, Hanni M. Fakhoury, of California, & Matthew R. Segal, Jessie J. Rossman, & Kit Walsh, for American Civil Liberties Union Foundation of Massachusetts & others. Victoria L. Nadel, for Massachusetts Association of Criminal Defense Lawyers. SPINA, J. On May 5, 2010, a State grand jury returned indictments charging the defendant with seventeen counts of forgery of a document, G. L. c. 267, § 1; seventeen counts of uttering a forged instrument, G. L. c. 267, § 5; and three counts of attempting to commit the crime of larceny by false pretenses of the property of another, G. L. c. 274, § 6. The charges arose from allegations that the defendant, through his use of computers, conducted a sophisticated scheme of diverting to himself funds that were intended to be used to pay off large mortgage loans on residential properties. On November 21, 2011, the Commonwealth filed in the Superior Court a “Motion to Compel the Defendant to Enter His Password into Encryption Software He Placed on Various Digital Media Storage Devices that Are Now in the Custody of the Commonwealth” (motion to compel decryption). The […]
The Bank of New York Mellon Corp. v. Wain, et al. (Lawyers Weekly No. 11-072-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑101 Appeals Court THE BANK OF NEW YORK MELLON CORP., trustee,[1] vs. DAVID WAIN & another.[2] No. 13‑P‑101. Suffolk. November 1, 2013. ‑ June 24, 2014. Present: Kafker, Milkey, & Hines, JJ. Mortgage, Assignment, Foreclosure. Notice, Foreclosure of mortgage. Real Property, Mortgage. Practice, Civil, Summary judgment, Standing. Assignment. Land Court, Jurisdiction. Jurisdiction, Land Court. Civil action commenced in the Land Court Department on February 6, 2012. The case was heard by Alexander H. Sands, III, J., on motions for summary judgment. Jamie Ranney for the defendants. David W. Merritt for the plaintiff. MILKEY, J. David Wain and Donovan Kerr (collectively, the homeowners) owned property in Nantucket that was subject to a mortgage. The Bank of New York Mellon Corp. (bank) acquired that mortgage through an assignment from the original mortgagee. After the homeowners defaulted, the bank foreclosed and purchased the property at the foreclosure sale. The bank then filed an action to quiet title, and the homeowners filed counterclaims seeking to challenge the validity of the foreclosure on various grounds. In a detailed and thoughtful decision, a Land Court judge ruled in the bank’s favor on summary judgment. We affirm, albeit on different grounds. Background. Except as otherwise noted, the facts are undisputed. At a closing for the property held on November 15, 2006, the homeowners executed a note and mortgage for $ 707,000. The mortgage was recorded at the local registry of deeds the following day. The original mortgagee was Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for the Union Capital Mortgage Business Trust. After the homeowners apparently were unable to keep up with their payments, a mortgage servicing entity known as American Home Mortgage Servicing, Inc. (American Home), sent the homeowners a “notice to cure letter” dated April 5, 2010. See G. L. c. 244, § 35A. That letter informed the homeowners that they were in default, it explained how the default could be cured, and it stated that if they failed to cure by July 4, 2010, a foreclosure would follow. The letter stated that American Home was acting on behalf of “Tbw Mortgage-backed Trust 2007-1,” identified as “the Mortgagee of the Note and Deed of Trust associated with your real estate loan.” On or about July 14, 2010, a vice president of MERS executed a formal assignment […]
Commonwealth v. Bigley (Lawyers Weekly No. 11-071-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 13‑P‑539 Appeals Court COMMONWEALTH vs. RONNIE R. BIGLEY. No. 13‑P‑539. Plymouth. April 7, 2014. ‑ June 24, 2014. Present: Kantrowitz, Agnes, & Hines, JJ. Motor Vehicle, Operating under the influence. Practice, Criminal, Motion to suppress, Findings by judge, Waiver, Voluntariness of statement, Confrontation of witnesses. Constitutional Law, Waiver of constitutional rights, Voluntariness of statement, Confrontation of witnesses. Evidence, Voluntariness of statement, Business record, Intoxication. Intoxication. Waiver. Complaint received and sworn to in the Brockton Division of the District Court Department on September 27, 2010. A pretrial motion to suppress evidence was heard by Mary L. Amrhein, J., and the case was tried before Paul J. McCallum, J. Maurice A. Reidy, III, for the defendant. Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth. AGNES, J. The defendant, Ronnie R. Bigley, after a trial by jury, was found guilty of operating a motor vehicle while under the influence of alcohol, and, following a second jury-waived trial pursuant to G. L. c. 278, § 11A, was found guilty on the second or subsequent offense portion of the complaint charging that he was a fourth offender in violation of G. L. c. 90, § 24(1)(a)(1). The defendant also was convicted on a count charging him with burning a motor vehicle, in violation of G. L. c. 266, § 5. The principal issue on appeal is the admissibility of statements made by the defendant to Bridgewater police officers and a Bridgewater fire department arson investigator. The defendant maintains that he was so intoxicated and highly emotional that he was incapable of waiving his Miranda rights as a matter of law based on the reasoning in Commonwealth v. Hosey, 368 Mass. 571 (1975) (Hosey), and that the judge erred in not suppressing his statements. As we explain below, this argument is based on a misreading of Hosey. Regrettably, the judge did not make subsidiary findings of fact. However, the facts necessary to decide the legal questions involved appear with sufficient clarity to permit review without the need to remand the case for preparation of findings of fact. Accordingly, we affirm. Background. These facts are drawn from the testimony of Bridgewater police Officers Silvia and Gray, and Bridgewater fire department Deputy Chief Levy, the three witnesses who testified at the hearing on the pretrial motion to suppress. In the early morning hours of September […]
Abdow, et al. v. Attorney General, et al. (Lawyers Weekly No. 10-111-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC‑11641 STEPHEN P. ABDOW & others[1] vs. ATTORNEY GENERAL & others.[2] Suffolk. May 5, 2014. ‑ June 24, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ. Initiative. Gaming. Pari Mutuel Wagering. Attorney General. Constitutional Law, Initiative petition, Taking of property, Police power. Due Process of Law, Taking of property. Elections, Ballot, Validity of petition. Contract, Implied. License. Civil action commenced in the Supreme Judicial Court for the county of Suffolk on September 10, 2013. The case was reported by Spina, J. Thomas O. Bean (H. Reed Witherby with him) for the plaintiffs. Carl Valvo for George Ducharme & others. Peter Sacks, State Solicitor, for the defendants. Mary Katherine Geraghty, Timothy J. Fazio, & Jennifer L. Morse, for Daniel Rizzo & others, were present but did not argue. Edward M. Pikula, City Solicitor, & Frank E. Antonucci, for Dominic J. Sarno & others, were present but did not argue. The following submitted briefs for amici curiae: Daniel O’Connell for Massachusetts Competitive Partnership. Brian D. Tobin for Massachusetts Council of Churches & others. Ellen Weiss Freyman & William J. Smith for Affiliated Chambers of Commerce of Greater Springfield & another. Thomas R. Landry for New England Regional Council of Carpenters. Jonathan M. Silverstein & Janelle M. Austin for town of Plainville. Donald J. Siegel & Jasper Groner for Massachusetts Building Trades Council. Melinda M. Phelps & Jennifer K. Cannon for Greater Springfield Convention and Visitors Bureau, Inc. Edward L. Sweda, Jr., for Public Health Advocacy Institute. Nicole Micheroni for Coalition of Citizens and Community Leaders. Brian T. Corrigan for Stop Predatory Gambling. GANTS, J. The issue presented on appeal is whether an initiative petition meant to prohibit casino and slots gambling and abolish parimutuel wagering on simulcast greyhound races meets the requirements set forth in art. 48 of the Amendments to the Massachusetts Constitution and, therefore, may be considered by voters at the November Statewide election. The Attorney General concluded that it did not and, accordingly, declined to certify it for inclusion on the ballot. The plaintiffs, ten Massachusetts voters who submitted the proposed initiative for certification, filed a complaint challenging the Attorney General’s decision and sought an order requiring the Attorney General to certify the petition. We conclude that the Attorney General erred in declining to […]
Commonwealth v. White (Lawyers Weekly No. 11-070-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 12‑P‑1463 Appeals Court COMMONWEALTH vs. TIMOTHY WHITE. No. 12‑P‑1463. Norfolk. October 9, 2013. ‑ June 23, 2014. Present: Fecteau, Brown, & Hines, JJ. Constitutional Law, Public trial, Jury. Practice, Criminal, Public trial, Empanelment of jury, New trial. Jury and Jurors. Indictments found and returned in the Superior Court Department on April 15, 2003. The cases were tried before Barbara A. Dortch-Okara, J., and a motion for a new trial, filed on September 28, 2010, was heard by her. Anne M. Thomas, Assistant Attorney General (Dean A. Mazzone, Assistant Attorney General, with her) for the Commonwealth. Rosemary Curran Scapicchio (Dennis Toomey with her) for the defendant. HINES, J. The defendant, Timothy White, was convicted after a jury trial in the Superior Court of trafficking in cocaine, G. L. c. 94C. § 32E(b); larceny over $ 250, G. L. c. 266, § 30(1); and conspiracy to traffic in cocaine, G. L. c. 94C, § 40.[1] He filed a motion for new trial claiming a violation of his right to a public trial under the Sixth Amendment to the United States Constitution and other alleged errors. After an evidentiary hearing, the motion judge, who was also the trial judge, allowed the motion. The judge ruled that the closure of the court room for the general questioning of the venire violated the defendant’s Sixth Amendment right to a public trial and that the waiver doctrine did not apply to excuse the violation. The Commonwealth filed this appeal, conceding the closure during the general questioning of the venire but arguing that it was de minimis and that, as such, it did not violate the defendant’s right to a public trial. For the reasons explained below, we affirm. Background. We summarize the facts as found by the motion judge, supplemented with uncontested evidence from the motion hearing to provide context. See Commonwealth v. Moreau, 30 Mass. App. Ct. 677, 679 (1991), cert. denied, 502 U.S. 1049 (1992); Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 337 (2012). The defendant, a former sergeant in the State police, was represented by Attorney Robert George, an experienced criminal defense attorney. The indictments charged that the defendant stole drugs from the State police evidence room and sold them for profit. Asserting that the indictments had attracted media attention, the defendant’s counsel requested individual voir dire of the prospective […]