Commonwealth v. Alebord (Lawyers Weekly No. 10-021-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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‑11354 COMMONWEALTH vs. GLEN S. ALEBORD. Plymouth. October 8, 2013. ‑ February 12, 2014. Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, & Duffly, 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. Indictment found and returned in the Superior Court Department on December 29, 2000. Following review by the Appeals Court, 80 Mass. App. Ct. 432 (2011), a motion for a new trial was heard by Linda E. Giles, J. The Supreme Judicial Court granted an application for direct appellate review. Chauncey B. Wood for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. Edmund D. LaChance Jr., pro se, amicus curiae, submitted a brief. Sharon Fray-Witzer for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief. CORDY, J. On February 5, 2004, at the Superior Court in Brockton, the defendant was convicted by a jury of murder in the second degree for the shooting death of Benjamin Shiren. During jury empanelment the court officers closed the court room to all members of the public, as was the custom and practice at the time in that court. Among those excluded were Katrina Lawson, Lorraine Wilder, and William Wilder, the defendant’s friend, sister, and brother-in-law, respectively.[1] The defendant did not object to the court room closure, nor did he raise any claim relating to its closure in his first motion for a new trial, which was denied in 2005, or in his direct appeal, which was decided in 2006. See Commonwealth v. Alebord, 68 Mass. App. Ct. 1 (2006). In 2008, the defendant filed a second motion for new trial, claiming that the closure of the court room was structural error necessitating reversal. After an evidentiary hearing, the motion judge, who was also the trial judge, found that no closure had occurred and that, at any rate, the defendant had waived his claim by failing to raise it at trial or on appeal. The Appeals Court vacated the decision and remanded the case for further proceedings consistent with its view that the right to a public trial under the Sixth Amendment to the United States Constitution may be waived only by a personal and knowing […]