Commonwealth v. LaChance (Lawyers Weekly No. 10-173-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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 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— filed a timely notice of appeal, and on August 5, 2003, a panel of the Appeals Court affirmed his conviction in an unpublished decision pursuant to that court’s rule 1:28.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 denial of his two motions for a new trial on May 10, 2005. Commonwealth v. LaChance, […]