Commonwealth v. Lopes (Lawyers Weekly No. 11-070-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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-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 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. 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 […]