COMMONWEALTH vs. CRAIG S. MARTIN.

JACOBS, J. After a trial with a codefendant, [Note 1] the defendant was convicted by a Superior Court jury of breaking and entering in the daytime (G. L. c. 266, Section 18). A conviction for larceny in a building (G. L. c. 266, Section 20) was filed and is not

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before us. [Note 2] The charges arose from allegations that the defendant broke into the office of the Yarmouth town dump and stole a safe. Because the two issues raised in this appeal have a narrow focus, we will extract relevant facts from the record as needed.

1. Temporary closure of the courtroom. Before resuming the testimony of a prosecution witness [Note 3] on the second day of trial, the judge, referring to the provisions of Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982), and in the absence of the jury, stated that because of information before the court "relative to [that witness's] concerns about intimidation," and in order to conduct an "appropriate hearing," she would close the courtroom and that "all persons, unless they are employees of the office of the district attorney or employees of defense counsel, are to be removed from the courtroom and public entrances locked." Defense counsel stated "[t]he defendant wanted to know if his mother could remain," and the judge answered, "[n]ot at this time." Counsel made no objection. A voir dire examination of the witness by the prosecutor covering less than five pages of transcript then was conducted.

In a discussion with counsel and the prosecutor following the voir dire examination, the judge, before deciding to allow the Commonwealth to "reopen certain areas" of the witness's testimony, noted that James Martin, a brother of the defendant, apparently had pleaded guilty to witness intimidation,

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that a District Court determination of intimidation by the defendant had been appealed, and that both of these proceedings involved intimidation of the present witness along with others. Before asking the witness to wait outside, the judge indicated that defense counsel could make further inquiry of the "state of mind" of the witness. Neither defense counsel responded. The judge expressed her perception that the witness's "lack of ability to recollect facts" was based on fear related to the intimidation to which she testified at the voir dire hearing. [Note 4] The judge then announced she would allow the Commonwealth to "reopen and redirect on [the witness]" and further would exercise her discretion to continue the exclusion of all persons with the exception of any employees of the two defense counsel, employees of the district attorney, court employees, and "the press." [Note 5] She denied the request of defense counsel to allow the defendant's mother "to sit in the courtroom," notwithstanding his claim that there had been no evidence presented that the defendant's mother "intimidated" or otherwise made any remarks to the witness. No further request or any objection appears in the record. The witness then was recalled to testify before the jury.

The defendant argues that the exclusion of his mother from the voir dire and during the reopened testimony of the witness violated his constitutional right to a public trial whether or not the judge was justified in excluding others.

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Our courts have "always recognized the right of a criminal defendant to be tried in an open court." Commonwealth v. Stetson, 384 Mass. 545, 549 (1981). "Closing criminal proceedings from public attendance potentially implicates either of two rights guaranteed by the First and Sixth Amendments to the United States Constitution." Commonwealth v. Martin, 417 Mass. 187, 192 (1994). "These two constitutional rights, however invaluable, are not absolute." Id. at 193. See also Globe Newspaper Co. v. Superior Ct., 457 U.S. at 606; Commonwealth v. Bohmer, 374 Mass. 368, 380 (1978). While "the two rights . . . serve to protect two distinct classes -- the First Amendment right protects the public and the press, the Sixth Amendment protects criminal defendants -- the constitutional analysis as to each is the same. See Waller v. Georgia, 467 U.S. 39, 46-47 (1984). . . ." Commonwealth v. Martin, supra at 193 n.8. "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Waller v. Georgia, supra at 48.

As to the brief voir dire hearing, see Commonwealth v. Stetson, supra at 548-549, there was nothing improper in the judge's order excluding persons generally from the courtroom, including the defendant's family and supporters, in order to explore the sources and nature of the witness's concerns about intimidation. However, in order to justify continued closing of the courtroom, and in determining whether "the right to an open trial may give way in certain cases to other rights or interests," Waller v. Georgia, supra at 45, "[t]he presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

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Press-Enterprise Co. v. Superior Ct., 464 U.S. 501, 510 (1984). Waller v. Georgia, supra at 45.

The defendant does not argue error based upon the admission of the reopened testimony, [Note 6] the duration of the closure, or the exclusion of certain persons, but only that the exclusion of his mother was improper. While we think the judge should have expressly rather than implicitly determined whether the witness would have had difficulty testifying with the defendant's mother present, it was not constitutional error requiring a new trial not to do so in the particular circumstances of recent intimidation by other family members and persons sympathetic to the defendant. See Fayerweather v. Moran, 749 F. Supp. 43, 45 (D.R.I. 1990) ("The Sixth Amendment does not guarantee a defendant an audience. It merely guarantees that members of the public will have a right to attend a defendant's trial unless there are compelling reasons for excluding them."). We do not believe that Commonwealth v. Marshall, 356 Mass. 432 (1969), dictates that the defendant's convictions be reversed, as he argues, since that case involved the exclusion of all spectators, including the relatives of the defendant, from the entire trial. Compare Woods v. Kuhlmann, 977 F.2d 74, 77 (2d Cir. 1992) (affirming order excluding all members of the family of person who threatened witness during testimony of that witness).

In applying the Waller v. Georgia requirements, we first must determine whether there was an overriding interest which likely would have been prejudiced if the courtroom had remained open. The authority to exclude spectators whose presence intimidates a witness has been recognized as a corollary to a judge's power to maintain order in court proceedings to assure that criminal trials be fair and just. Commonwealth v. Bohmer, 374 Mass. at 380. Here, the evidence of intimidation constituted an overriding factor justifying, in the interests of a fair trial, the limited closure imposed by the judge. Moreover, where there was only a temporary and partial

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closure of the courtroom for the reopened testimony of a single witness, and where members of "the press" were not excluded, we agree with the reasoning in Woods v. Kuhlmann, supra at 76, in accord with three other Federal circuits, that a "substantial reason" rather than an overriding interest may justify such a closure. We believe this approach to be supported by the Supreme Judicial Court's recognition of the psychological well-being of a minor complainant as constituting "a compelling interest which may warrant closure." Commonwealth v. Martin, 417 Mass. at 194.

Given the previous courtroom intimidation of the witness by the defendant's brother and two female spectators (see note 4, supra) the exclusion of the defendant's mother during the remaining testimony of that witness, was a reasonable, and not overly broad, measure to protect the integrity of the proceedings. Also, by opting to exclude all family members but not "the press" as an alternative to full closure, the judge appears to have given adequate consideration to and did not violate the third Waller requirement. Lastly, the judge's articulation on the record of the relationship between the witness's ability to recollect and the evidence of intimidation meets the Waller requirement of findings supporting the partial closure sufficient to permit review.

2. Witness intimidation-consciousness of guilt instruction. The defendant characterizes certain of the witness's recall testimony, including her explanation that intimidation was the reason for some untruthfulness in her earlier testimony, as having a prominence which was highly dramatic and enhanced by the closing of the courtroom. He argues that since evidence of threats or intimidation is admissible to demonstrate consciousness of guilt, see Commonwealth v. Montecalvo, 367 Mass. 46, 52 (1975), the trial judge should have given, sua sponte, an instruction pursuant to Commonwealth v. Toney, 385 Mass. 575, 584-585 & nn. 4-6 (1982). See Commonwealth v. Cruz, 416 Mass. 27, 29-30 (1993). The present case was tried before the Cruz decision and at a time when the Toney charge "was usually left to the sound discretion

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of the judge." Commonwealth v. Simmons, 419 Mass. 426, 435 (1995). In view of a limiting instruction given during the witness's testimony at the request of counsel for the codefendant [Note 7] and the focus on the witness's truthfulness, we do not agree that any issue of consciousness of guilt remained in the case requiring a Toney instruction. See Commonwealth v. Simmons, supra at 434-435. In light of substantial circumstantial evidence of the defendant's guilt, the judge, by responding as she did, and in not giving a Toney instruction sua sponte, exercised her discretion in a manner consistent with the "better practice" later articulated in Commonwealth v. Simmons, supra at 436. Judgment affirmed.