mslaw.edumslaw.edu/wp-content/uploads/2013/...sok-brief-for-th… · web viewvide grounds for...

2013 WL 3283448 (Mass.App.Ct.) Page

Appeals Court Of Massachusetts.COMMONWEALTH, Appellee,

v.Bonrad SOK, Appellant.

No. 2011-P-2169.June, 2013.

On Consolidated Appeal from a Judgment and an Or-der of the Superior Court

Brief and Supplemental Record Appendix for the Commonwealth

Jonathan W. Blodgett, District Attorney, For the Eastern District, Catherine Langevin Semel, Assistant District Attorney, Ten Federal Street, Salem, Massa-chusetts 01970, (978) 745-6610, BBO # 639596, catherine.semel @state.ma.us.

*i TABLE OF CONTENTS

Issues Presented ... 1

Statement of the Case ... 2

Statement of Facts ... 7

Argument

I. The trial judge properly exercised his discretion in determining to sequester the jury on day ten of trial, during deliberations, and after the last alternate juror had been seated. ... 22

II. Enhanced security procedures instituted on the day of sentencing and leading some persons to be ex-cluded from the courtroom did not violate the defen-dant's public trial rights, and, in any event, would not

provide grounds for vacating his conviction; a bail hearing held for two material witnesses, outside the defendant's presence, resulted in no deprivation of his rights. ... 30

Conclusion ... 45

Addendum ... 46

Supplemental Record Appendix

Rule 16(k) Certification

*ii TABLE OF AUTHORITIES

Cases

Arizona v. Washington, 434 U.S. 497 (1978) ... 26, 28

Commonwealth v. Abbott Engineering, Inc., 351 Mass. 568 (1967) ... 22

Commonwealth v. Barnoski, 418 Mass. 523 (1994) ... 42

Commonwealth v. Bartolini, 299 Mass. 503 , cert. de-nied, 304 U.S. 565 (1938) ... 42

Commonwealth v. Caldwell, 459 Mass. 271 (2011) ... 33

Commonwealth v. Clark, 432 Mass. 1 (2000) ... 22

Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010) ... 35, 38

Commonwealth v. Comita, 441 Mass. 86 (2004) ... 31

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.


Commonwealth v. Cordle, 412 Mass. 172 (1992) ... 26

Commonwealth v. Demboski, 283 Mass. 315 (1933) ... 22

Commonwealth v. Dyer, 460 Mass. 728 (2011) ... 38

Commonwealth v. Hampton, 82 Mass. App. Ct. 1111 (2012) ... 36

Commonwealth v. Haskell, 76 Mass. App. Ct. 284 (2010) ... 33, 36

Commonwealth v. Hobbs, 385 Mass. 863 (1982) ... 43

*iii Commonwealth v. Lopez, 426 Mass. 657 (1998) ... 31, 32

Commonwealth v. Marshall, 373 Mass. 65 (1977) ... 22

Commonwealth v. Martin, 424 Mass. 301 (1997) ... 37

Commonwealth v. McCowen, 458 Mass. 461 (2010) ... 26, 27

Commonwealth v. Moore, 408 Mass. 117 (1990) ... 31

Commonwealth v. Perkins, 450 Mass. 834 (2008) ... 31

Commonwealth v. Pingaro, 44 Mass. App. Ct. 41 (1997) ... 31

Commonwealth v. Reinstein, 381 Mass. 555 (1980) ... 25, 26, 27, 28

Commonwealth v. Va Meng Joe, 425 Mass. 99 (1997) ... 33, 36

Commonwealth v. Woodward, 427 Mass. 659 (1998) ... 33

People v. Hamilton, 708 N.Y.S.2d 136 (N.Y.A.D 2 Dept. 2000) ... 43

People v. McDonald, 322 Ill.App.3d 244; 749 N.E. 2d 1066 (Ill. App. Ct. 2001) ... 44

People v. Parker, 230 Mich. App. 677; 584 N.W. 2d 753 (Mich. App. 1998) ... 44

Robinson v. Commonwealth, 445 Mass. 280 (2005) ... 43

State v. Hamons, 248 Kan. 51; 805 P.2d 6 (Kan. 1991) ... 44

*iv United States v. Alcantara, 396 F.3d 189 (2nd Cir. 2005) ... 34

United States v. Childress, 58 F.3d 693 (D.C. Cir. 1995) ... 39

United States v. DeLuca, 137 F.3d 24 (1st Cir.) , cert. denied, 525 U.S. 874 (1998) ... 38

United States v. Rivera, 682 F.3d 1223 (9th Cir. 2012) ... 34

United States v. Shryock, 342 F.3d 948 (9th Cir. 2003) ... 38



United States v. Smith, 426 F.3d 567 (2d Cir. 2005) , cert. denied, 126 S.Ct. 1410 (2006) ... 39

Waller v. Georgia, 467 U.S. 39 (1984) ... 34, 35

Massachusetts General Laws

Chapter 265, Section 1 ... 3

Rules

Mass.R.Crim.P. 18(a)(3) ... 42, 43

Mass.R.Crim.P. 20(e)(1) ... 22

Mass.R.Crim.P. 30(b) ... 31

Other Authorities

30B Mass.Prac., Criminal Practice and Procedure§11.11 (3d ed. 2011) ... 33

*1 ISSUES PRESENTED

I. Whether the trial judge properly exercised his dis-cretion in determining to sequester the jury on day ten of trial, during deliberations, and after the last al-ternate juror had been seated.

II. Whether the defendant's new trial motion was properly denied where a new trial would not be the proper remedy for any public trial violation that oc-curred solely during sentencing, and further, whether any such violation occurred due to security identifica-tion procedures that were put in place; and whether a bail hearing held for two material witnesses, outside the defendant's presence, resulted in any deprivation of his rights.

*2 STATEMENT OF THE CASE[FN1]

FN1. References are as follows: the trial transcript (Tr. vol.); the defendant's brief (D.Br.); the Record Appendix (R.); and the Supplemental Record Appendix (S.R.A.). To avoid confusion, the Commonwealth fol-lows the defendant's lead in chronologically citing as trial transcript volumes 1-12 (re-spectively), the volumes from the following dates: April 27, April 28, April 29, April 30, May 1, May 4, May 5, May 6, May 7, May 11, May 12, May 13, 2009. The volume numbers so assigned do not always match those printed on the volume.

The defendant, Bonrad Sok, brings this consolidated appeal from his second degree murder conviction and the denial of his motion for new trial. His was con-victed in the 2007 murder of Christian Martinez, in what was believed to be a gang-related shooting out-side the Golden Lake Restaurant, in Lynn. A co-de-fendant, Kevin Keo, was subsequently convicted of first-degree murder in the case, ESCR2007-01986; SJC-10949; Keo's appeal raises an issue about juve-nile life without parole sentences, and will likely be argued this fall.

On appeal, the defendant raises two issues. First, he asserts that the judge abused his discretion when an-nouncing to jurors, during deliberations, his plan to sequester them if no decision was reached that day (Tr. 11: 82). See D.Br. 28-32. This announcement was made to the jury about two hours after the sec-ond *3 of two jurors was excused, and the only re-maining alternate was seated (Tr. 11: 68, 82-84). Sec-ond, the defendant renews his post-conviction claim that a new trial is warranted on public trial grounds, because a security identification procedure amounted to closure of the courtroom during sentencing, and because a bail hearing concerning material witnesses,



although open to the public, was held without the presence of him or his counsel. See D.Br. 33-42.

On December 28, 2007, an Essex County Grand Jury indicted the defendant for the murder of Christian Martinez, G.L. c. 265, § 1 (ESCR2007-01985) (R. 1, 7). A jury trial took place April 27 to May 13, 2009 (Lowy, J., presiding) (R. 10-11). On April 28, 2009 -- when no trial proceedings were scheduled -- a hear-ing was held at which bail was ordered for two mate-rial witnesses (Kathleen Am and Terry Leng) who had failed to appear for the first day of trial (Tr. 2: 2-3, 15). The next day, the Commonwealth reported that the defendant's sister had been charged with in-timidating a named prosecution witness in the case (Tr. 3: 121; Tr. 12: 19).[FN2]

FN2. The witness at issue, Kelly Chhoum (Tr. 12: 19), was not ultimately called to tes-tify.

*4 At the close of the Commonwealth's case, the de-fendant moved for a required finding of not guilty, which was denied (R. 10-11).[FN3] His renewed mo-tion at the close of evidence was also denied (Tr. 9: 120-122; R. 11). In the final charge, jurors were in-structed on alternate theories of joint venture and principal, on murder in the first degree (premedi-tated), and the lesser offenses of murder in the second degree, and voluntary manslaughter (over the Com-monwealth's objection) on a theory of reasonable provocation (Tr. 9: 123; Tr. 10: 69-97).

FN3. The motion is not reflected in the May 5, 2009 transcript, which appears to have omitted some preliminary matters. See Tr. 7: 3, which begins “Back on the record, Your Honor”). The motion is reflected in the docket on that date, however, and the Com-monwealth does not dispute that it was

brought (R. 10-11).

On May 12, 2009, jurors returned a verdict, finding the defendant guilty of the lesser offense of second degree murder (Tr. 11: 86-87, 94; Tr. 2: 6). On the verdict slip, the jury had added a handwritten nota-tion beside that verdict: “joint venture” (Tr. 11: 94; S.R.A. 3). At the defendant's request, the jurors were polled and affirmed their verdict (Tr. 11: 88-93)

*5 The defendant's motion to reduce the verdict was denied (Tr. 12: 11-18). The judge sentenced the de-fendant to the mandatory term of life imprisonment (Tr. 12: 29). That same day, a timely notice of appeal was filed (R. 11, 15).

The case was entered in this Court on December 29, 2011 (R. 62). On February 7, 2012, the Court allowed the defendant's motion to stay proceedings so that he could file a new trial motion in the trial court (R. 62). Through new counsel, the defendant filed his motion on April 27, 2012, asserting that he was entitled to a new trial because his “public trial rights were vio-lated by a partial closure of the courtroom during sen-tencing and by a bail hearing conducted in his ab-sence and without his knowledge, and from which members of the public were excluded” (R. 13, 16-39). The former claim, concerning sentencing, was supported by the affidavits of several individuals who stated they were denied access to the courtroom in connection with enhanced security procedures put in place that day (R. 20-22).

The Commonwealth opposed the motion, asserting that the appropriate remedy for any closure during sentencing would not be a new trial, as the defendant *6 requested, but re-sentencing (R. 57-58). In addi-tion, the bail hearing was open to the public, and the defendant had not been due in court that day and had no standing to object to the proceeding (R. 57).



A non-evidentiary hearing was held before the trial judge (Lowy, J.), on December 20, 2012 (R. 13). At that hearing, the defendant abandoned his claim that the bail hearing was not public (D.Br. 2, n.2). The judge subsequently denied the defendant's motion “[f]or the reasons stated on pages 3 & 4 of the Com-monwealth's opposition memorandum” (R. 59). The defendant filed a timely notice of appeal from that ruling on January 9, 2013 (R. 13, 61).

The defendant's appeal from the denial of his motion for new trial was thereafter consolidated with his di-rect appeal (R. 63). On February 27, 2013, the Supreme Judicial Court denied his application for di-rect appellate review, DAR-21348.

*7 STATEMENT OF FACTS

I. THE DEFENDANT AND THE VICTIM ARE MEMBERS OF RIVAL GANGS: THE BLOODS AND THE CRIPS

At the time of this shooting, both the defendant and Kevin Keo were members of a Blood gang in Lynn, the Insane Gangster Bloods (Tr. 6: 128; Tr. 9: 60-61, 65). The defendant had the numbers 9, 7 and 2 tat-tooed on his wrist (Tr. 5: 150-151). At trial, Lynn Po-lice Lieutenant Michael Vail[FN4] explained that num-bers are used by local gangs to signify words, based on the placement of the word's starting letter in the alphabet (Tr. 5: 149). For instance, the ninth letter of the alphabet is “I,” the seventh letter is “G,” and the second letter is “B,” thus the letters 9, 7, 2, as tat-tooed on the defendant's wrist, stands for “Insane Gangster Bloods,” which is a Blood gang in Lynn (Tr. 5: 150, 157).

FN4. Lieutenant Vail had been a member of the Lynn police department since 1995 (Tr.

5: 145). In November, 2007, he was a sergeant and the officer in charge of the gang unit. Id.

The victim was a member of a rival Lynn gang, the Asian Streetwalkers, which is affiliated with the Crips (Tr. 4: 85, 115).[FN5] The Crips and Bloods are enemies (Tr. 4: 214; Tr. 5: 148-149).

FN5. Although transcribed as “Crypts,” see, e.g., Tr. 4: 85, the Commonwealth uses the traditional spelling, “Crips.”

*8 II. A CHANCE MEETING LEADS TO VIO-LENCE, AND THEN THE VICTIM'S DEATH

Late in the afternoon, on November 1, 2007, Judy Choeun, aged seventeen, was at the Golden Lake Restaurant with her boyfriend, the victim (Tr. 4: 6771). They sat in a booth to the right (Tr. 4: 75). At some point, coming back from the rest room, she no-ticed a group of people at one table, including a “dark male” wearing a “do rag” tied around his head, who was staring at her (Tr. 4: 76, 78-79).

Seated at that table (which was across from the vic-tim's booth), were the defendant, Maverick Tran, Re-becca Pen and her brother, Moses Pen[FN6] (Tr. 5: 25-30, 32, 34-35). At some point, the defendant bor-rowed Rebecca's phone, ostensibly to call his girl-friend, and walked away from the table to make the call (Tr. 5: 35-37). The defendant actually placed a call to Kevin Keo and Vannarith (nicknamed “Tony”) Chhay (Tr. 9: 26-27).[FN7] The defendant told them that he had *9 recognized a Crip who “was there” when Keo “got chopped” (Tr. 9: 26), apparently re-ferring to an incident where Keo had been stabbed in the hand or arm with a machete, four to six weeks earlier (Tr. 5: 190, 195). After the call, Chhay saw Keo take a gun from a box in his room and put it in



his pocket, and they both went to the Golden Lake Restaurant (Tr. 9: 27).

FN6. The Pens had met up with the defen-dant and Tran on the street and invited them to come to dinner with them (Tr. 5: 25-27). Given the common surname, the Common-wealth refers to Rebecca and Moses Pen by their first names.

FN7. Information about this call was intro-duced in the defense case, through the testi-mony of a police officer who interviewed Chhay (Tr. 9: 26-30).

At the restaurant, Keo and Chhay joined the defen-dant and his companions at the same or an adjacent table (Tr. 5: 38-40).[FN8] There, Chhay heard the de-fendant say, “Yo, that's the dude, right there. Yeah, we're gonna get him,” referring to the victim (Tr. 9: 28). The defendant then leaned in closer to Keo, and Keo said to him, “Yo, I got the blammer” (Tr. 9: 29-30).

FN8. Like the defendant and Keo, Tran and Chhay were Blood members (Tr. 6: 128).

At some point, Choeun and the victim finished their meals; they walked out of the restaurant and three males followed them outside (Tr. 4: 80-82). One of the three was Chhay; Choeun knew him by the nick-name, “Tony”; he was “pretty big” and had his hair pulled back (Tr. 4: 83; Tr. 9: 80). A second male was *10 the defendant, although Choeun learned his iden-tity only later (Tr. 4: 82, 148). The third was the “dark male” with the “do rag” who had stared at her (Tr. 4: 84). According to Rebecca, the third person who went out after the couple was Tran (Tr. 5: 42). Keo, whose injured hand was bandaged, stayed at the table with Rebecca and her brother (Tr. 5: 42-44, 49).

Outside, in the parking lot, the defendant asked the victim “if he was a Cuz,” which means “Crip” (Tr. 4: 84). The victim asked “Why?” at which point Sok and the others “tried to jump him” (Tr. 4: 85). The victim moved around the car, parked directly in front of the restaurant, as they chased him and tried to hit him (Tr. 4: 88-89).

Attempting to elude the three, the victim ran back into the restaurant, and the others followed (Tr. 4: 90). According to Rebecca, Keo was walking toward the door as the others came back in (Tr. 5: 47). There was a “fight” and Rebecca saw Keo “on the floor” (Tr. 5: 46-47).

Choeun also ran back into the restaurant, where she saw Chhay holding the victim from behind, in a “bear hug,” as the defendant hit the victim in this face (Tr. 4: 91). The third person from outside *11 (Tran) was not doing anything (Tr. 4: 92). Choeun approached Chhay and told him to let the victim go; she repeated it, yelling, and he let go (Tr. 4: 92-93). According to Choeun, she and the victim walked out, followed by the same three males as previously (Tr. 4: 94-95). Re-becca, however, saw Keo also leave the restaurant with the others (Tr. 5: 50).

In the parking lot, the victim was arguing with the three, including the defendant, who was “mumbling something” (Tr. 4: 95). The defendant, Chhay and Tran walked past the victim's car, and continued some distance (more than twelve feet) (Tr. 4: 97; Tr.9: 96-98). Choeun and the victim were standing near the restaurant, facing Sok and his friends, whom Choeun could see head to foot (Tr. 4: 96-97, 182; Tr. 9: 92). She did not see a weapon in the defendant's hands (Tr. 4: 163). Choeun was tugging on the vic-tim's arm, to her left, as she urged him to leave, and was glancing over toward the three (Tr. 4: 98-99,



186-187). Choeun was looking at the victim, while he was still facing toward the three individuals, when she heard “[a] big ring in [her] ear” (Tr. 4: 99, 185).

Choeun checked herself, first, thinking she had been shot, then the victim said, “Babe, I got shot” *12 (Tr. 4: 99, 184-185). He touched his stomach and slid slowly to the ground (Tr. 4: 99). She looked over to where the three had been, and saw just the dark male (Tran) standing with his jaw open, as though he was “in shock”; then he ran away, down the street (Tr. 4: 100-101). The defendant and Chhay were already gone (Tr. 4: 100).

Choeun lifted the victim's shirt and saw a gunshot wound to his abdomen (Tr. 4: 101). She ran inside the restaurant and asked for someone to call 911, then ran back to the victim and waited, “holding him” (Tr. 4: 101-102). Police responded to the scene shortly thereafter, the first arriving in about two minutes, just past 5:00 p.m. (Tr. 4: 27-28). The victim was on the ground, near the restaurant with Choeun (Tr. 4: 28-30). A .22 caliber shell casing was recovered from the ground near him (Tr. 4: 46-47).

Choeun testified that she did not know from what di-rection the bullet came, and she never saw a gun or who fired the shot (Tr. 4: 144-145). She did not know Keo and did not remember seeing him that night (Tr. 4: 106, 180).

*13 III. THE DEFENDANT AND HIS GROUP FLEE THE SCENE

The Golden Lake Restaurant is located on Bennett Street, in Lynn (Tr. 4: 27-28). Around the time of the shooting, two individuals saw a group of males run-ning down Bennett Street, from the direction of the restaurant (Tr. 4: 85-90; Tr. 6: 45-47). Shortly before 5:00 p.m., Phillip Ragusa was getting into his car on

Bennett Street when he heard a noise and looked up to see three young, Asian males run past him; they were “probably in their 20's or maybe teenagers,” and all wearing “loose baggy clothes” (Tr. 6: 45-47). Af-ter they ran past, he saw one of the males pass a small black object to another, who placed it in his sweat-shirt pocket: the object was six to eight inches in length, around the size of a cell phone (Tr. 6: 4748). A few seconds later, a fourth male run past in the same direction; he was taller and possibly Mexican or Asian (Tr. 6: 55-56).

Donald Jaynes was in his yard at about 5:00 p.m. when he saw four people run through the yard from the direction of Bennett Street (Tr. 5: 85-86, 89). They were young men in their late teens or early twenties, one bigger than the others (Tr. 5: 86). He was not sure of their ethnicity, but they were neither white *14 nor African American (Tr. 5: 86). They disappeared behind a truck, and he walked over in time to see the last of the four jump over the fence (Tr. 5: 87, 90-91) .

IV. THE DEFENDANT'S INCULPATORY STATEMENTS

On the night of the shooting, Terry Leng was in her home at 83 Neptune Street, when the defendant, Keo, Tran and Chhay were also present (Tr. 6: 101-102). She was standing in the doorway to her cousin's bed-room, beside Keo and the defendant, when one of them -- she is not sure who -- said he had shot some-body (Tr. 6: 104-108).[FN9] Later that night, in the car, she heard the defendant say, “I shot somebody,” and “Put the blame on me” (Tr. 6: 114). Leng was sitting in the front passenger seat at the time, her friend Kathleena Am was driving, and she heard the defen-dant say this to one of the backseat passengers (Tr. 6: 112, 114).



FN9. Some of the testimony related here came in the form of Leng's grand jury testi-mony, which was admitted for substantive purposes upon the judge's conclusion that she was feigning a lack of memory about what took place and what she heard that night (Tr. 6: 14-18). Jurors were instructed accordingly (Tr. 6: 116).

Am testified regarding the same car ride (Tr. 4: 203-205). Four people were in the backseat: the *15 de-fendant and Keo in the middle, and a girl on either side of them (Tr. 4: 205-206). She heard the person who was seated behind her, say “a crab got shot” (which meant a “Crip”), “it's 25 to life” and “I think I shot him in the heart” (Tr. 4: 206-208). The defen-dant was seated behind her when she heard this (Tr. 4: 208-209, 254-255).[FN10]

FN10. Am acknowledged on cross-examina-tion that the defendant and Keo have similar voices, and she originally told police she did not know which one of them was speaking (Tr. 4: 211, 245-246).

V. THE POLICE INVESTIGATE

At 11:00 p.m., the night of the shooting, police went to Keo's residence (Tr. 5: 137, 158). Keo was not there, but they obtained his father's consent to search his bedroom (Tr. 5: 160). They found a box of .22 caliber ammunition under Keo's bed, and two loose .22 caliber rounds in the closet, and a loaded nine millimeter gun (Tr. 5: 162, 164, 176-177, 196).

The next evening, police executed a search warrant at the defendant's home (Tr. 5: 93). They located no firearms or ammunition, but did photograph a bed-room wall, which had three groups of numbers af-fixed to it (Tr. 5: 93-94): 9, 7, 2 (which stands for

“Insane Gangster Bloods”); 2, 6 (which stands for *16 “Blood Family”); and 3, 11 (which stands for “Crip Killer”) (Tr. 5: 156-158).

VI. THE MEDICAL / PHYSICAL EVIDENCE

The victim died of a single gunshot wound to the left torso, “with perforations of stomach, small intestine and iliac artery” (Tr. 6: 144, 147). The bullet trav-elled left to right, front to back, in a downward direc-tion (Tr. 6:146-147).

A .22 caliber shell casing was recovered from the scene, but the murder weapon was never found (Tr. 4: 46-47). A chemist from the Massachusetts State Police Crime Laboratory identified nitrate particles on the hole in the victim's sweatshirt, opining that this meant that the gun was fired from no more than four feet away (Tr. 5: 110-114).

VII. THE TRIAL

A. The parties' theories and cases

The Commonwealth produced sixteen witnesses who testified essentially as set forth above. Among those were Judy Choeun, Rebecca Pen, Kathleena Am and Terry Leng.

The defense theory was that Kevin Keo was responsi-ble for the victim's death (Tr. 6: 63, 74). Among testi-mony introduced by the defense was Chhay's *17 statement to police, to establish that Keo had brought the gun to the restaurant that night (Tr. 9: 26-27). Chhay also told police that he saw Keo pass the gun to the defendant later that night, after the shooting, at Terry Leng's house at 83 Neptune Street (Tr. 9: 33).

B. The material witness hearing



Jury empanelment began on April 27, 2009. The fol-lowing day, April 28, no trial proceedings were scheduled, but a hearing was held (Lowy, J), at which bail was set for two witnesses (Kathleena Am and Terry Leng) who were arrested after failing to appear for the first day of trial (Tr. 2: 2-4, 15; R. 10). The defendant was not present, and, the following day, objected to the hearing taking place ex parte (Tr. 3: 5-6). The judge ruled that: the defendant had no stand-ing to object, the issue of bail for a material witness needs to be dealt with as it arises, and the procedure in this case comported with typical practice (Tr. 3: 6-7). The judge requested a transcript for the defendant as expeditiously as possible, so he would know what transpired (Tr. 3: 7).[FN11]

FN11. There has been no complaint that the transcript was not produced.

*18 C. Excused jurors, proposed sequestration and enhanced security

Jury empanelment included the seating of two alter-nate jurors (Tr. 3: 150). During the defense case, a ju-ror was excused who stated that his deliberations would be impaired by concern that a guilty verdict might result in retribution against his wife, a school-teacher (Tr. 9: 70-71, 75).[FN12] This reduced the juror number to thirteen.

FN12. The remaining jurors were properly instructed in connection with his excusal, without objection (Tr. 9: 75, 78).

Deliberations began the afternoon of May 11, 2009 (Tr. 10: 110-111; Tr. 12: 4). The following day, May 12, a juror asked to address the Court (Tr. 11: 36). Deliberations were suspended, and the judge inquired of the juror, who expanded on matters he had previ-ously disclosed, concerning an incident outside his

house where Keo, and possibly Tran and the defen-dant were present, possibly seeing Keo more times in the neighborhood with a neighbor, and another inci-dent overheard outside by his ex-wife, involving un-known participants talking about killing someone (Tr. 11: 49-63). Although defense counsel initially took no position on the juror's removal, the *19 defendant, himself, advocated for removal because he was con-cerned the juror would believe he was one of the peo-ple overheard by the juror's ex-wife, and asserting that the juror gave him hostile looks (Tr. 11: 64-65). The Commonwealth did not object, and the juror was excused (Tr. 11: 66, 68).

At about 2:10, after lunch, the final alternate was seated, and jurors were instructed to begin delibera-tions anew (Tr. 11: 68-74). The judge advised jurors that, on their request, they could stay later that night, and order dinner, reiterating that the nature and pace of deliberations should be determined by them (Tr. 11: 73-74).

At some point after the jurors retired to deliberate, the judge informed counsel that, at 3:45 p.m., he would inform jurors that, if no verdict was received that afternoon or evening, they would remain and be housed in a hotel overnight, then renew deliberations the following day (Tr. 11: 75). The judge also noted that he intended to place a security desk outside the courtroom, and require persons other than attorneys and staff entering the courtroom to provide photo-graphic identification, and sign in and sign out (Tr. 11: 76). The defendant objected to both *20 proce-dures, asserting that they might prejudice the defen-dant (Tr. 11: 77-81).

At 3:50 p.m. -- before any communication about se-questration was made to the jury -- jurors sent a note stating they were “making progress,” and wished to continue deliberations past 4:00 (Tr. 12: 6, 8; Exh. J for identification; S.R.A. 1). At 4:05 p.m., the judge



brought in the jurors and informed them about his in-tent to sequester them overnight, explaining that they would be allowed to make arrangements for an overnight bag, and should bring any particular con-cerns, including child care, to the attention of the court officers; the judge again reiterated that they should not feel pressed at any point in their delibera-tions and dismissed them to continue deliberations (Tr. 11: 82-84; Tr. 12: 5-6). Shortly thereafter, at 4:13 p.m., jurors sent a note stating, “We are making sub-stantial progress and do not anticipate the need for dinner or hotel. We need 30 to 60 minutes” (Tr. 12: 6; Exhibit K for identification; S.R.A. 2).

Shortly after 5:00 p.m., the jurors returned a verdict, finding the defendant guilty of the lesser offense of second degree murder (Tr. 11: 86-87, 94; *21 Tr. 2:6). In a handwritten notation beside that verdict was added the words “joint venture” (Tr. 11: 94; S.R.A. 3). At the defendant's request, the jurors were polled (Tr. 11: 88-93).

The following day, May 13, 2009, at sentencing, the defendant renewed his objection to the judge's an-nounced intention to sequester the jury, reiterating that that it may have prompted a rush to judgment, made a record of events that had occurred since the jury retired to deliberate on May 11, and requested a new trial (Tr. 12: 4-7). He made no reference at that time to any security procedures put in place outside the courtroom. Id. The judge reiterated that the deci-sion to sequester the jury was made within his direc-tion, pursuant to Mass.R.Crim.P. 20(e) (Tr. 12: 8-10).

22ARGUMENT

I. THE TRIAL JUDGE PROPERLY EXER-CISED HIS DISCRETION IN DETERMINING TO SEQUESTER THE JURY ON DAY TEN OF TRIAL, DURING DELIBERATIONS, AND AF-

TER THE LAST ALTERNATE JUROR HAD BEEN SEATED

The defendant, here, challenges the judge's discretion to sequester the jury, after the second juror was ex-cused, and the final alternate was seated on the previ-ously-deliberating jury. “The decision whether to se-quester a jury lies within the sound discretion of the trial judge.” Commonwealth v. Clark, 432 Mass. 1, 10 (2000). See Mass.R.Crim.P. 20(e) (1) (“After the jurors have been sworn they shall hear the case as a body and, within the discretion of the trial judge, may be sequestered.”). No particular showing need be made or reason advanced in support of sequestration. Commonwealth v. Marshall, 373 Mass. 65, 68-69 (1977); Commonwealth v. Abbott Engineering, Inc., 351 Mass. 568, 572 (1967). It is sufficient if the order was not exercised willfully or arbitrarily “to the prej-udice of the defendant.” Commonwealth v. Demboski, 283 Mass. 315, 320 (1933). Here, no abuse of discre-tion has been shown.

This case began with the seating of fourteen jurors (Tr. 3: 150). Two jurors were subsequently *23 ex-cused -- one during the trial proper (Tr. 9: 70-75), and one during deliberations (Tr. 11: 65-66). Both were excused for reasons not challenged here, and the latter, in fact, on the defendant's explicit request (Tr. 9: 70-75; Tr. 11: 65-66).[FN13] Neither juror was re-leased for strictly personal reasons -- such as sched-ule conflicts or a home emergency -- but for reasons relating in some manner to the facts and circum-stances of this gang-related case, the defendant, or his cohorts.

FN13. The first juror was excused after ex-pressing concern that his deliberations would be impaired by fear of retribution against his wife, who was a schoolteacher (Tr. 9: 70-75). The second juror excused had, over the course of three discussions,



disclosed an incident occurring outside his home, at which the defendant, Keo and ran may have been present, and he was told by police that the defendant also was present (Tr. 6: 36-4; Tr. 9: 104-106; Tr. 11: 49-52). He also disclosed another incident where his ex-wife had overheard unidentified persons talking about killing someone (Tr. 2: 63). Although initially taking no position, de-fense counsel then explicitly asked that the juror be removed, relaying the defendant's concerns: 1) the juror might think the defen-dant was one of the people his ex-wife over-heard talking about killing someone; and 2) the juror was giving him “hostile” looks (Tr. 11: 64-66).

What may be difficult to discern from a cold record is the extent to which the specter of gang violence and culture permeated this case: from the *24 offense it-self and the likely precipitating attack on Keo (Tr. 5: 190, 195; Tr. 9: 26); to the reluctant witnesses: Leng and Am were arrested when they failed to appear for trial (Tr. 2: 3), and Leng was then found to be feign-ing a lack of memory (Tr. 6: 18);[FN14] to the defen-dant's sister, who was charged in the midst of trial with intimidating a prosecution witness (Tr. 3: 121; Tr. 12: 19).[FN15] By day ten of trial, when the final al-ternate was seated, and deliberations were set to be-gin anew, the judge was well within his discretion in determining to insulate the jury through sequestration (Tr. 11: 75-76). The judge did not explicitly articulate reasons for the planned sequestration, but they are ev-ident from the record, and from his explanation as to why he was, at the same time, instituting an identifi-cation protocol for those entering the courtroom: “we're down to [twelve] jurors in a .... murder case,” and two jurors were excused *25 after expressing “concerns as far as being a good juror,” or “fear or inability to deliberate” (Tr. 11: 78). The next day, the judge also asked the prosecutor, for the record, to ex-

pand upon his prior description of the intimidation charge brought against the defendant's sister (Tr. 12: 18-19).

FN14. Terry Leng agreed with the prosecu-tor's suggestion that it is not good to “snitch” on a gang member, even while as-serting that was not the reason for her claimed lack of memory (Tr. 6: 91).

FN15. At the parties' request, jurors were also questioned whether evidence as to the defendant's, alleged victim's, or other wit-nesses' gang affiliation would affect their ability to be fair and impartial (Tr. 1: 6-8, 69).

In support of his argument, now, the defendant cites no case in which a judge was found to have abused his discretion by ordering jury sequestration. To the contrary, the Supreme Judicial Court validated the trial judge's exercise of discretion in declaring a mis-trial in lieu of sequestration in Commonwealth v. Re-instein, 381 Mass. 555 (1980) , the case on which the defendant primarily relies. In Reinstein, on the sec-ond day of testimony in the trial of a former mayor of Revere, the judge declared a mistrial in response to a full page advertisement run by the defendant's sup-porters asserting the defendant had been framed, and the district attorney's office was engaged in a political vendetta. Id. at 556-557 . In determining whether manifest necessity existed for the mistrial, the Court ruled that the judge had considered but reasonably re-jected the option of sequestration (which the defen-dant had also opposed), on the bases that *26 jurors were not selected with sequestration in mind, that the trial, in only its second day of testimony, would be “protracted” lasting from the end of November into the Christmas holidays, and that jurors might well blame the defendant for the change.[FN16] Id. at 557- 559. In upholding the judge's ruling, the Court rea-



soned that the judge's “evaluation of the likelihood that the impartiality of one or more jurors might be affected by sequestration is entitled to the “highest degree of respect.”' Id. at 562 , quoting Arizona v. Washington, 434 U.S. 497, 511 (1978) .

FN16. Through voir dire questioning, jurors were aware that the defendant had engaged in pretrial publicity. Commonwealth v. Rein-stein, 381 Mass. 555, 561 (1980) .

Likewise, in Commonwealth v. McCowen, 458 Mass. 461, 476-477 (2010), the Supreme Judicial Court val-idated a trial judge's discretionary decisions, both when he declined to sequester jurors at the start of trial, and then, during deliberations, ordered seques-tration in response to “changed circumstances”: i.e., increased media coverage that might affect delibera-tions.[FN17] See also *27Commonwealth v. Cordle, 412 Mass. 172, 178-179 (1992) (no abuse of discretion in judge originally declining to sequester jury, although he then imposed sequestration on day four of trial, af-ter two jurors were dismissed because they had inad-vertently received outside information about the case). Case law thus validates the judge's broad dis-cretion to order sequestration in response to the par-ticular, and sometimes changing, circumstances of a case. That discretion was not abused here.

FN17. During a weekend recess from delib-erations, one of the jurors “became involved in a highly publicized police investigation unrelated to the defendant's case when the father of her child was arrested at her home in connection with a shooting.” Common-wealth v. McCowen, 458 Mass. 461, 486 (2010). At the close of proceedings on Mon-day, the judge ordered the jury sequestered for the remainder of their deliberations “in light of the increased media focus on the jury following the weekend arrest.” Id. at

487.

Moreover, the defendant's claim that he was preju-diced by the unexpected sequestration order is not compelling. In Reinstein, the judge was concerned about the potential impact of an unexpected seques-tration order on the particular facts of that case: i.e., jurors had specific reason to connect the sequestra-tion order with the defendant, and possibly blame him, see, supra, pp. 25-26 & n.16 of brief, and, be-cause sequestration would encompass weeks of trial remaining and leading up to the Christmas holidays, id. at 557, 559. Here, jurors were informed that two jurors had been excused for reasons personal to them *28 (Tr. 9: 78; Tr. 11: 72-73), and were given no in-formation that would lead them to blame the defen-dant for the sequestration. Moreover, that sequestra-tion could be expected to encompass not weeks, as in Reinstein, but days, or whatever shorter period of time it might take to reach a verdict. The judge's de-termination that jurors' impartiality would not be af-fected by the sequestration in these circumstances is “entitled to the ‘highest degree of respect, Reinstein, 381 Mass. at 562, quoting Arizona v. Washington, 434 U.S. at 511, and constituted no abuse of discre-tion.

Finally, and perhaps more pragmatically, the record certainly suggests that jurors were, and knew they were, close to a verdict when the issue of sequestra-tion was first broached to them. Although their re-newed deliberations had begun only an hour and a half before (Tr. 11: 68-69, 72-74; Tr. 12: 5), jurors sent a note at 3:50 p.m., stating they did not want to break at 4:00, and suggesting they were working to-ward a verdict: “The jury is making progress and wishes to continue deliberations today” (Tr. 12: 6; Exh. J; S.R.A. 1). After this note, at 4:05 p.m., the judge informed jurors of his intention *29 to se-quester them, reiterating that they should not feel pressed in their deliberations (Tr. 11: 81-82; Tr. 12:



6). At 4:13 p.m., the jury sent another note: “We are making substantial progress and do not anticipate the need to have dinner or hotel. We need 30-60 min-utes” (Tr. 12: 6;Exh. K; S.R.A. 2). About forty-five minutes later, they reached a verdict (Tr. 11: 86-87, 94; Tr. 12: 6-7). Under these facts, the defendant's ar-gument that jurors reached a verdict that day because they felt pressed, and to avoid sequestration, is not just speculative, but seems directly contradicted by evidence that jurors were approaching a verdict be-fore they were told anything about sequestration.

*30 II. ENHANCED SECURITY PROCEDURES INSTITUTED ON THE DAY OF SENTENCING AND LEADING SOME PERSONS TO BE EX-

CLUDED FROM THE COURTROOM DID NOT VIOLATE THE DEFENDANT'S PUBLIC TRIAL RIGHTS, AND, IN ANY EVENT,

WOULD NOT PROVIDE GROUNDS FOR VA-CATING HIS CONVICTION; A BAIL HEAR-

ING HELD FOR TWO MATERIAL WIT-NESSES, OUTSIDE THE DEFENDANT'S PRES-ENCE, RESULTED IN NO DEPRIVATION OF

HIS RIGHTS

In his motion, seeking a new trial, the defendant ar-gued that his public trial rights were violated when 1) a family member and two friends were excluded from his sentencing hearing due to their failure to comply with the identification procedure the judge had imple-mented; and 2) a bail hearing for two material wit-nesses was held outside his presence and without the public being permitted to attend (R. 31-38). At a sub-sequent hearing, the defendant abandoned his claim that members of the public were excluded from the bail proceeding (D.Br. 2, n.2). The trial judge prop-erly denied the defendant's remaining claims “[f]or the reasons stated on pages 3 & 4 of the Common-wealth's opposition memorandum” (R. 59); i.e., that 1) the bail hearing was open to the public and the de-fendant had no standing to be part of those proceed-

ings, and 2) a new trial is not the appropriate remedy for a claim of courtroom closure during sentencing (R. 56-57).

*31 A. Review of a Rule 30(b) denial

Motions for new trial are granted only in “extraordi-nary circumstances,” Commonwealth v. Comita, 441 Mass. 86, 93 (2004), upon a showing that “justice may not have been done.” Mass.R.Crim.P. 30(b); see Commonwealth v. Moore, 408 Mass. 117, 125 (1990). The motion is “addressed to the sound discre-tion of the judge,” and the judge's ruling “will not be reversed unless it is manifestly unjust, or unless the trial was infected with prejudicial constitutional er-ror.” Id. at 125 (internal citations omitted). This Court accepts the factual findings of the motion judge unless they are clearly erroneous. See Commonwealth v. Perkins, 450 Mass. 834, 854 (2008) .

A Rule 30(b) motion may be decided solely on the affidavits; “the judge need only proceed to eviden-tiary hearing where a substantial issue is raised by the motion or affidavits and is supported by a substantial evidentiary showing.” Commonwealth v. Lopez, 426 Mass. 657, 663 (1998) (internal citations omitted); see also Commonwealth v. Pingaro, 44 Mass. App. Ct. 41, 48 (1997). This strict standard promotes final-ity and judicial efficiency, reserving the expenditure of limited public resources for cases that *32 “truly warrant[] revisitation of a final criminal judgment in the interests of justice.” Lopez, 426 Mass. at 663 .

B. Even assuming that closure occurred due to se-curity procedures implemented during sentencing,

the remedy would not be a new trial, but resen-tencing

The defendant renews his post-conviction claim that his public trial rights were violated when the judge



instituted a security procedure that resulted in the ex-clusion of his sister, a friend, and co-defendant Keo's brother from sentencing because they did not produce any or acceptable identification. See , supra, p. 5 of brief. The judge, below, did not rule on the defen-dant's closure claim, per se, but rather, agreed with the prosecution's argument that, regardless, the defen-dant was not entitled to the only remedy he sought: i.e., a new trial (R. 57-59).

Judge Lowy's reasoning and ruling on this point was entirely correct, and provides ample grounds to af-firm his denial of the defendant's new trial motion. See, infra, pp. 33-35 of brief. In addition, the identifi-cation procedures implemented as a security measure in this case did not constitute even a partial closure, providing an independent basis to affirm his *33 rul-ing, see, infra, pp. 36-41 of brief. See Commonwealth v. Va Meng Joe, 425 Mass. 99, 102 (1997) (“An ap-pellate court is free to affirm a ruling on grounds dif-ferent from those relied on by the motion judge if the correct or preferred basis for affirmance is supported by the record and the findings.”); accord Common-wealth v. Haskell, 76 Mass. App. Ct. 284, 285 (2010) (affirming the denial of the defendant's motion to withdraw his guilty plea, “albeit on grounds different from those relied on by the motion judge”).

1. Any error in sentencing would not merit a new trial

“The proper remedy for an error in a sentence is to resentence the defendant, not to dismiss the indict-ment or complaint and not [to] grant a new trial.” See 30B Mass.Prac., Criminal Practice and Procedure § 11.11 (3d ed. 2011), citing, inter alia, Commonwealth v. Woodward, 427 Mass. 659, 683 (1998) . The defen-dant offers no authority supporting his assertion that the appropriate remedy for an alleged partial court-room closure during sentencing is to vacate the de-fendant's conviction and order a new trial. See D.Br.

40-41.[FN18] To the contrary, the United *34 States Supreme Court has made clear that, when a defen-dant's public trial right is violated, “the remedy should be appropriate to the violation.” Waller v. Georgia, 467 U.S. 39, 50 (1984) . Thus, in Waller, where a defendant's public trial right was violated during a suppression hearing, the Court remanded the case for a new suppression hearing, reasoning that granting a new trial “presumably would be a windfall for the defendant, and not in the public interest.” Id.

FN18. In Commonwealth v. Caldwell, 459 Mass. 271, 284 n. 17 (2011), the Supreme Judicial Court found no violation, thus did not address the defendant's argument that the remedy of a new trial applies where a partial closure of the courtroom occurs only during sentencing.

Similarly, courts in other jurisdictions, addressing public trial right violations during sentencing, have limited the remedy to resentencing. See United States v. Rivera, 682 F.3d 1223, 1236-1237 (9th Cir. 2012) (where the defendant's public trial right was violated by a sentencing hearing at which his family was ex-cluded, the appropriate remedy is for a new sentenc-ing hearing); United States v. Alcantara, 396 F.3d 189, 202-203 (2nd Cir. 2005) (remanding for resen-tencing, only, due to exclusion of the public from sentencing).

*35 The fact that a public trial right is “structural,” does not mean that any violation of that right -- re-gardless of scope -- will trigger the remedy of a new trial. This point is amply demonstrated in Waller. Waller, 467 U.S. at 50 (remanding only for a new suppression hearing). The designation “structural er-ror” means only, that if the Court finds some viola-tion occurred, prejudice emanating from that viola-tion will be presumed, and need not be affirmatively established. See Commonwealth v. Cohen (No. 1),



456 Mass. 94, 118-119 (2010) ( “Given the structural nature of this error, we do not inquire as to whether it prejudiced the defendant.”). Awarding a new trial for a public trial right violation during sentencing, would not be “appropriate to the violation,”' id. at 119 , quot-ing Waller, 467 U.S. at 50, and would create a “wind-fall for the defendant ... not in the public interest,” Waller, 467 U.S. at 50 .

*36 2. Regardless, security measures were reason-ably implemented during sentencing, in the

judge's discretion, and any exclusions, as a result, did not violate the defendant's public trial rights

While endorsing the judge's bottom-line reasoning as to remedy, below, the Commonwealth does not con-cede -- and Judge Lowy did not find -- that the secu-rity measures instituted at sentencing were unreason-able or resulted in any violation of the defendant's rights. See Va Meng Joe, 425 Mass. at 102 (an appel-late court is free to affirm a ruling on grounds differ-ent than those relied on by the judge below); accord Haskell, 76 Mass. App. Ct. at 285 (affirming the de-nial of the defendant's motion to withdraw his guilty plea, “albeit on grounds different from those relied on by the motion judge”). To the contrary, matters of courtroom security are vested in “the sound discre-tion of the presiding judge.” Commonwealth v. Hampton, 82 Mass. App. Ct. 1111, at *3 (2012) (un-published opinion per rule 1:28; copy in addendum). “A party claiming injury from the judge's security measures must establish both harm and abuse of dis-cretion.” Id. at *2-3 (finding no abuse of discretion in security measure requiring defendant to sit behind his counsel, *37 rather than at counsel table); accord Commonwealth v. Martin, 424 Mass. 301, 307-308 (1997).

Here, the judge instituted the security desk and iden-tification protocol only after two jurors had been ex-cused who expressed concerns about their ability to

deliberate given the subject matter and/or persons in-volved in this case. See Tr. 9: 70-75; Tr. 11: 78. In addition, the defendant's sister was arrested near the start of the trial for leaving a threatening message on the phone of a prosecution witness (Tr. 3: 121; Tr. 12: 18-19), and, as discussed previously, gang culture and violence were issues that permeated this case. See, supra, pp. 23-24 of brief. The judge's decision was reached after a hearing at which the defendant had an opportunity to and did object; the judge also addressed the defendant's concern about juror preju-dice, ordering that the desk not be in place when ju-rors entered the courtroom (Tr. 11: 76-78, 81).[FN19]

See Martin, 424 Mass. at 308 (the judge held the “recommended hearing” regarding enhanced security measures). If the defendant had any specific objec-tion to the protocol being continued into *38 sentenc-ing, he did not voice them during that hearing, or re-new his challenge on the day of sentencing. Contrast D.Br. 35 (suggesting that any need for increased se-curity ceased or was diminished once the verdict was reached).

FN19. It appears that the procedures were not actually put into effect until the next day, when sentencing occurred.

Assuming the defendant's public trial rights are impli-cated by the identification procedure put in place here, it resulted in at most in a partial closure, which was justified by “substantial reason,” as is readily gleaned from the record. Cohen, 456 Mass. at 111, 115-116.[FN20] “Requiring members of the public to proceed through a metal detector, show identifica-tion, and sign a log-in form are similar to the security methods used in many government and private office buildings in this country.” United States v. Shryock, 342 F.3d 948, 975 (9th Cir. 2003); accord *39United States v. DeLuca, 137 F.3d 24, 32-35 (1st Cir.) , cert. denied, 525 U.S. 874 (1998) (requiring spectators to present written identification before entering the



courtroom did not violate the defendant's right to a public trial, where defendants were associated with past efforts to obstruct fact finding, and where mem-bers of the public actually attended). Appellate courts “should be hesitant to displace a trial court's judg-ment call” in matters relating to the level of court-room security warranted under particular circum-stances. Id. at 34 . Such decision “requires a subtle reading of the immediate atmosphere and a prediction of potential risks judgments nearly impossible for ap-pellate courts to second-guess after the fact.” Id. at 34, quoting United States v. Childress, 58 F.3d 693, 705 (D.C. Cir. 1995)

FN20. A closure is considered “partial,” rather than “full,” where closure is only for one segment of the trial and/or limited to particular members of the public. Common-wealth v. Cohen (No. 1), 456 Mass. 94, 110 n.23 (2010). A partial closure can be justi-fied by a substantial reason for closure, clo-sure no broader than necessary to protect the interest likely to be prejudiced, and consid-eration of reasonable alternatives. Common-wealth v. Dyer, 460 Mass. 728, 736 (2011) , cert. denied, 132 S.Ct. 2963 (2012). Find-ings necessary to justify a partial closure need not be made contemporaneously, but can be gleaned from the record. Cohen, 456 Mass. at 115-116.

Here, Judge Lowy's exercise of discretion was sup-ported by “substantial reason,” and warranted by the circumstances of this case referenced above and with regard to jury sequestration. See, supra, pp. 23-25 of brief. The provision that spectators identify them-selves provides a level of accountability to deter those who may cause disturbance. See United States v. Smith, 426 F.3d 567, 573 (2d Cir. 2005) , *40 cert. denied, 126 S.Ct. 1410 (2006) (validating, as “sub-stantial reason” the district court's reasoning that

“[s]omeone who is forced to identify themselves is less likely to pose a threat than someone who is al-lowed to walk into the building without any at all”). Any closure was narrow, affecting only those who had no acceptable form of identification or chose not to display it.[FN21] Id. at 573 . The procedures were im-plemented, here, in a reasonable manner: announced the day before sentencing, in open court, providing ample opportunity for individuals to be informed and comply. The judge was responsive to the defendant's concern about jurors viewing the security measures (Tr. 11: 78), and certainly the defendant did not sug-gest at trial, and still has not suggested, any “reason-able alternatives” to the identification procedure set-tled on by the judge (other than imposing no security procedures at all). Id. at 573-574 .

FN21. It is clear from the affidavits submit-ted by the defense that some supporters of the defendant were admitted (R. 23-24), and one of the three allegedly barred -- the de-fendant's sister -- had identification avail-able, but simply did not “hear the [court of-ficer's] explanation” as to why she could not enter the courtroom (R. 20).

Finally, the judge's determination in this instance warrants particular deference where it is *41 clear that he was cognizant of the defendant's public trial rights throughout this proceeding and vigilant in pro-tecting those rights: the judge declined to conduct in-dividual voir dire of prospective jurors in his lobby (Tr. 1: 57); agreed, during empanelment that “[i]t's an open courtroom,” where the defendant's family had every right to be present (Tr. 1: 126); and stated he would take the matter up, himself, with a court offi-cer and the chief court officer, if family members were turned away during empanelment (Tr. 3: 120-121). Under all the circumstances, Judge Lowy prop-erly instituted the identification procedure within his broad discretion and supported by “substantial rea-



son”; it was implemented in a fair and equitable man-ner that did not undermine the defendant's rights.

B. The defendant had no right to be present at a bail hearing involving material witnesses

The defendant cites to no relevant authority for his assertion that he was entitled to be present at the hearing in which bail was set for two material wit-nesses in this case. See Tr. 2: 2-15; D.Br. 38-39. Even while abandoning his claim that the public was actu-ally excluded, the defendant tries to piggy-back *42 his own lack of presence onto a public trial claim, without addressing the judge's threshold and correct finding that the defendant has no standing to advance any claim regarding the bail hearing involving two witnesses (Tr. 3: 6-7; R. 57, 59).

A hearing on bail for material witnesses is not a criti-cal stage of a proceeding at which a defendant is or-dinarily entitled to be present. “The act of a judge in ordering a person to recognize as a witness to appear and testify nears no resemblance to an adjudication [] that the person named in the complaint or indictment is guilty. Commonwealth v. Bartolini, 299 Mass. 503, 510, cert. denied, 304 U.S. 565 (1938). Evidence is not taken relevant to the defendant's case. See Mass. R. Crim. P. 18(a)(3) (“A defendant need not be present ... at any proceeding where evidence is not to be taken.”); accord Commonwealth v. Barnoski, 418 Mass. 523, 531 (1994) (defendant had no constitu-tional right to be present when judge conducted hard-ship colloquies of the jury pool that preceded the in-dividual substantive voir dire). This proceeding dif-fers significantly from pretrial proceedings at which the defendant's rights are adjudicated or evidence rel-evant to his guilt or *43 innocence is adduced. See Robinson v. Commonwealth, 445 Mass. 280, 285-286 (2005) (suppression hearing is a critical stage); ac-cord Commonwealth v. Hobbs, 385 Mass. 863, 866 (1982) (the Court assuming that public trial right ex-

tended to pretrial suppression hearing, where testi-mony was received).

While fairness might sometimes demand that the de-fendant be present because “his substantial rights are at stake,” the defendant fails to adequately explain why that was the case here. See Reporters' Notes to Mass.R.Crim.P. 18(a). His claim that he was “kept in the dark” about matters relating to this proceeding is belied by the record, where the judge ordered that a transcript of the proceeding be completed as “expedi-tious[ly]” as possible. See Tr. 3: 7 (the judge validat-ing the defendant's interest in knowing what tran-spired at the hearing). The defendant has never claimed, and does not now claim, that this order was not complied with.

While the Commonwealth has located no case law addressing this issue in Massachusetts, case law from other jurisdictions is entirely consistent with Judge Lowy's ruling. See People v. Hamilton, 708 N.Y.S.2d 136, 137 (N.Y.A.D. 2 Dept. 2000) (“Neither the *44 defendant nor the prosecution is entitled to notice of an application for a material witness hearing, and nei-ther party has standing to contest or to participate in a hearing on an application made by the other.”' (inter-nal citations omitted).); see also People v. McDonald, 322 Ill.App.3d 244; 749 N.E.2d 1066, 1069-1070 (Ill. App. Ct. 2001) (material witness hearing is not ordi-narily a critical stage at which the defendant is enti-tled to be present, and here the defendant failed to demonstrate that either fairness or his substantial rights were compromised); State v. Hamons, 248 Kan. 51; 805 P.2d 6, 14 (Kan. 1991) (neither the de-fendant's right to be present at all critical stages nor his right of confrontation was violated by ex parte material witness hearing); People v. Parker, 230 Mich. App. 677; 584 N.W.2d 753, 759 (Mich. App. 1998) (no due process or confrontation clause viola-tion where material witness hearing was held without the defendant present).



The defendant having failed to identify either a gen-eral, legal right to be present at a bail hearing for ma-terial witnesses, or a particular, factual need for his presence in this case or prejudice from his *45 ab-sence, the judge's ruling on the subject should be up-held.

CONCLUSION

For the reasons stated, the Court should affirm the defendant's conviction for second degree murder.

COMMONWEALTH, Appellee, v. Bonrad SOK, Appellant.2013 WL 3283448 (Mass.App.Ct. ) (Appellate Brief )

END OF DOCUMENT


mslaw.edumslaw.edu/wp-content/uploads/2013/...sok-brief-for-th… · web viewvide grounds for...

Documents