COMMONWEALTH vs. DANIEL GRANT.

KATZMANN, J. Having been convicted by a Superior Court jury of three counts of rape in violation of G. L. c. 265, § 22, the defendant appeals, contending that various trial errors warrant reversal. He also claims that his right to a public trial was violated during the general questioning and individual voir dire stages of jury empanelment, and that the motion judge (who was also the trial judge) erred in denying his motion for a new trial without an evidentiary hearing. We agree that there was a closure, in the constitutional sense, during the individual voir dire and that the judge did not make the findings required for closure. However, we remand for a determination whether the courtroom was closed during general questioning and, if so, whether it was de minimis. We also remand for a determination of whether the defendant waived his right to a public trial. We conclude that the defendant's other claims are not meritorious and do not constitute grounds for reversal.

I. Public trial. In his motion for new trial, which was filed nearly two years after his conviction, the defendant claims that his right to a public trial was violated when members of his family were excluded from the courtroom during general questioning of the venire and during individual questioning of potential jurors in the judge's chambers.

Jury selection took place on April 3 and 4, 2007, and two panels of jurors were necessary to achieve a jury of fourteen jurors. In the courtroom, after the venire was sworn and the indictments were read, the judge asked the general statutory voir dire questions: whether the jurors had any bias against or knowledge of the parties or the case, and whether jury service would pose a hardship. He instructed the jurors to raise their juror cards if they answered any of the questions affirmatively. There were only affirmative responses to the questions about knowing witnesses and jury service causing a hardship. The defendant was present in the courtroom throughout the general questioning.

After the judge completed the general questioning of the first

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panel of potential jurors, he called counsel to sidebar, where the following exchange took place:

THE COURT: "For the individual voir dire, does your client waive his right to be present?"

DEFENSE COUNSEL: "He does, your Honor. I've spoken to him about it at the office and again just before you came out."

THE COURT: "Okay. We'll do it in the lobby as we proceed."

The judge then conducted individual questioning of the potential jurors in his chambers -- only the judge, prosecutor, and defense counsel participated in the proceedings. The proceedings were transcribed. During his individual questioning, the judge asked each of the jurors who indicated affirmative responses to the general voir dire questions in the courtroom to explain his or her answers and, at counsel's request, asked questions about his or her answer(s) on the jury questionnaires. Questions included inquiries of a nonsensitive nature, [Note 1] as well as inquiries as to whether the potential jurors had been or knew someone, including family members or friends, who had been a

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victim of a violent or sexual crime, or had been accused of a violent or sexual crime. The judge also considered any motions from counsel to challenge a juror for cause. No objections were made to this procedure.

After conducting the individual voir dires of the first panel of jurors, the judge found that forty-one jurors were indifferent, one shy of the forty-two jurors he was seeking. In order to identify the forty-second juror, the judge questioned a second panel under the same two-part procedure of general questions in the courtroom followed by individual voir dire of a few potential jurors in chambers. Once the judge had found the forty-two jurors indifferent, the parties' counsel and the judge returned to the courtroom where counsel, in the presence of the defendant, exercised their peremptory challenges at sidebar until both parties were content.

A. General questioning of potential jurors. The defendant alleged in his motion for new trial that his wife and brother had been excluded from the courtroom during jury selection. [Note 2] He attached affidavits from his wife [Note 3] and brother. [Note 4] His trial counsel also signed an affidavit that the defendant's wife and brother

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had told him that they had been asked by court officers to leave the courtroom. [Note 5] The judge denied the motion without any written findings and without holding an evidentiary hearing.

"The decision to deny a motion for a new trial lies within the sound discretion of the judge and will not be reversed unless it is manifestly unjust or the trial was infected with prejudicial constitutional error." Commonwealth v. Medina, 430 Mass. 800 , 802 (2000). See Commonwealth v. Greineder, 458 Mass. 207 , 225 (2010). "A judge's subsidiary findings of fact will not be disturbed on appeal unless they are shown to be the result of a 'clear abuse of discretion or . . . were clearly erroneous.' " Ibid., quoting from Commonwealth v. Torres, 437 Mass. 460 , 469 (2002). Furthermore, we will give deference to the decisions of a motion judge who also served as trial judge. Ibid. "A defendant's submissions in support of a motion for a new trial need not prove the factual premise of that motion, but they must contain sufficient credible information to cast doubt on the issue. A judge may also consider whether holding a hearing will add anything to the information that has been presented in the motion and affidavits." Commonwealth v. Goodreau, 442 Mass. 341 , 348 (2004) (citations & quotations omitted). "Where, as in this case, the new trial claim is constitutionally based we exercise our own judgment on the ultimate factual and legal conclusions." Commonwealth v. Greineder, supra at 225-226.

The Supreme Judicial Court has observed:

"The public trial right applies to jury selection proceedings, Presley v. Georgia, 130 S. Ct. 721, [725] (2010),

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which are 'a crucial part of any criminal case.' Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007). . . . See Commonwealth v. Gordon, 422 Mass. 816 , 823 (1996). At that stage, 'the primacy of the accused's right [to a public trial] is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.' Press-Enterprise v. Superior Court, 464 U.S. 501, 508 (1984). . . . The 'sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known' (emphasis in original). Id. Throughout a trial, an open court room 'enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.' Id. Thus, courts recognize a 'strong presumption in favor of a public trial,' Commonwealth v. Baran, 74 Mass. App. Ct. [256,] 294 [2009], '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.' Press-Enterprise, supra at 510."

Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 106-107 (2010). [Note 6] "The Sixth Amendment does not require members of the public to attend the trial. It prohibits their exclusion by the State, except in limited circumstances." Commonwealth v. Greineder, supra at 226. "In claiming that his Sixth Amendment [to the United States Constitution] right to a public trial was violated, '[t]he burden is clearly on the defendant to demonstrate that the public was excluded from his trial.' " Commonwealth v. Cohen, supra at 107, quoting from Commonwealth v. Williams, 379 Mass. 874 , 875 (1980).

In Commonwealth v. Edward, 75 Mass. App. Ct. 162 , 174 (2009), where the trial judge made a short statement at sidebar that the courtroom would be closed during direct and cross-examination of a child witness, we remanded for a hearing on

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the defendant's motion for new trial, noting that "[a]lthough the defendant's affidavits suggest that the courtroom was closed, the contemporaneous record is silent on the subject and the affiants have not been examined." See Commonwealth v. Greineder, supra at 219 ("After oral argument . . . [the Supreme Judicial Court] . . . remanded the case to the trial judge for specific findings because 'the trial record does not otherwise present a sufficient factual record for meaningful consideration of the defendant's claim' [that a portion of the jury selection proceeding was closed to the public]"). Here, unlike in Edward, there is no indication in the record that the judge ordered the courtroom closed. As in Edward, the record is silent as to whether the public was actually excluded. The judge did not examine the affiants and made no factual findings as to whether members of the public had been excluded. The judge, moreover, made no finding regarding the allegation that a court officer had asked the affiants to leave. See Commonwealth v. Cohen, supra at 109 (where, "pursuant to an established policy, court officers told a number of individuals that they would not be permitted in the court room during the jury selection process[,] [t]he exclusion of members of the public and the press for at least three days of jury selection . . . cannot qualify as inadvertent . . . [or] so trivial . . . [that it falls] entirely outside the range of 'closure' in the constitutional sense"); Commonwealth v. Greineder, supra at 226 ("The ultimate question of fact before us is whether there was a court order or other official action that excluded the public . . . from [the court room]"). All in all, we conclude that the judge should have made a factual determination and held a hearing, if necessary, as to whether the courtroom was closed and the extent of such closure. [Note 7] See Commonwealth v. Williams, supra at 876. See also Commonwealth v. Greineder,

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supra at 219. Accordingly, we remand the case to the judge for specific findings as to whether there was any closure of the general voir dire and, if so, whether such closure was de minimis. Ibid.

B. Individual questioning of potential jurors. As has been noted, after general questioning of the venire, without objection and with the agreement of the defendant's attorney, the judge conducted individual questioning of the venire in the judge's chambers -- only the judge, prosecutor, and defense counsel participated in the proceedings. Conducting the individual questioning in the judge's chambers constituted a full closure in the constitutional sense. See Commonwealth v. Cohen, supra at 110-111. The judge was thus required to make specific findings on the record justifying the closure, and to consider any alternatives before conducting the individual voir dire in his chambers. See Presley v. Georgia, 130 S. Ct. at 724-725. [Note 8] See also Commonwealth v. Cohen, supra at 115. See generally Commonwealth v. Baran, 74 Mass. App. Ct. at 295-296; Commonwealth v. Wolcott, 77 Mass. App. Ct. 457 , 463-465 (2010). The judge did not

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make the required findings. Even if the judge could properly seek to protect the jurors' privacy because of the sensitive nature of the questions, conducting the individual voir dire in camera had the effect of concealing from the public the answers not only to sensitive questions, but also to nonsensitive questions, and was thus overly broad. Contrast Commonwealth v. Jaynes, 55 Mass. App. Ct. 301 , 311 (2002) (no violation of right to public trial where "[t]he judge closed the courtroom only when a potential juror requested closure, and only during the discussion of the private matter"). "[A] closure may be 'no broader than necessary to protect [the] interest [likely to be prejudiced].' " Commonwealth v. Cohen, supra at 113, quoting from Waller v. Georgia, 467 U.S. 39, 48 (1984). See ABC, Inc. v. Stewart, 360 F.3d 90, 104-105 (2d Cir. 2004).

C. Waiver. Even where closure is effected in a manner that fails to satisfy the requirements of Waller, supra, and Presley, supra, that does not end the inquiry. "[A] defendant may waive [his] Sixth Amendment right." Commonwealth v. Cohen, supra at 116. "[W]e do look to whether the defendant raised this issue in a timely manner because 'the right to a public trial, like other structural rights, can be waived.' " Id. at 105-106, quoting from Commonwealth v. Edward, 75 Mass. App. Ct. at 173. See Commonwealth v. Downey, ante 224, 228-229 (2010). "Waiver requires a sound rationale for closure and the defendant's knowing agreement." Commonwealth v. Edward, 75 Mass. App. Ct. at 173. However, "the defendant's assent need not necessarily appear on the record." Id. at 173- 174. See Commonwealth v. Adamides, 37 Mass. App. Ct. 339 , 340 n.1 (1994).

Here, as in Commonwealth v. Edward, supra, the defendant's knowledge of his right to a public trial is unclear. First, the defendant claims that he "did not know that the closure of the courtroom could have been a violation of my Sixth Amendment right to a public trial." [Note 9] Second, as mentioned, the judge did not ask the defendant on the record whether he knowingly and

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voluntarily waived his right to a public trial; it was the defendant's attorney who indicated, with respect to the individual questioning in chambers, that his client waived his right to be "present." Third, trial counsel's affidavit does not state whether he advised the defendant about the right to a public trial. [Note 10]

Because the judge did not inform the defendant of his right to a public trial and the record is unclear whether the defendant's trial counsel so informed the defendant, "the component of the new trial motion dealing with closure presented a substantial question that required a hearing." Commonwealth v. Edward, supra at 174. See Commonwealth v. Williams, 379 Mass. at 876 (remanding for determination of waiver including "[a] the extent to which, if at all, the defendant's constitutional right to a public trial was waived by what may have been a trial tactic of counsel in this case, and [b] the extent, if any, of the defendant's understanding of his right to a public trial or of his waiver of that right"). See also Commonwealth v. Downey, 58 Mass. App. Ct. 591 , 599-600 (2003) (remanding for hearing into whether there was a knowing and voluntary waiver of attorney-client privilege where defendant's assent "possible" and "record is silent on the topic").

We note that the defendant first raised the public trial issue in his motion for new trial, filed by appellate counsel nearly two years after the conviction. [Note 11] "Failure of a defendant or his counsel to raise an objection when first made aware of an alleged public

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trial right violation is, at the very least, a strong indication of waiver." Commonwealth v. Cohen, supra at 118 n.35. [Note 12] Here, trial counsel acknowledges in his affidavit that it was a strategic decision not to have the defendant present during the individual voir dire, but he does not address the question of the exclusion of the public in the judge's chambers during that portion of the jury selection. [Note 13] If at jury selection the defendant were aware of his public trial right and that the empanelment procedure -- with respect to both the general questioning (assuming there was closure) and the individual questioning -- was in derogation of that right, the lapse of time before he raised the issue must be considered in determining waiver. Our conclusion that the defendant's knowledge at the time of trial may be determined on remand is consistent with the holding of Commonwealth v. Wells, 360 Mass. 846 (1971), also cited in Commonwealth v. Cohen, supra at 106, 118 n.35, that a defendant was not entitled to a new trial based on a violation of the public trial right where his lawyer testified at a hearing to facts showing that the defendant knowingly waived that right. [Note 14] Accordingly, we remand the

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case for factual findings and a determination whether the defendant waived his right to a public trial.

II. Other issues. In the interests of judicial economy, we consider the other claimed errors raised by the defendant, all unpreserved, none of which gave rise to a substantial risk of a miscarriage of justice requiring reversal. If on remand the judge denies the motion for a new trial, and that ruling is either not challenged or upheld after any further appeal, the convictions will not be disturbed.

A. Background. We recount the trial evidence. Around 11:00 P.M. on January 20, 2006, the defendant, a uniformed State trooper driving a Massachusetts State police vehicle, flashed his overhead lights and approached a blue sedan parked near a hotel in Cambridge. The defendant observed that the occupants of the car -- a man (Kenneth Lewis) and a woman (the victim) -- were having sex. After knocking on the window, the defendant obtained identification from both individuals. He returned to his cruiser and had the Registry of Motor Vehicles run a check on the vehicle at 11:12 P.M. The vehicle was registered to the victim's husband. At 11:13 P.M., the defendant initiated a board of probation inquiry of the criminal history of Lewis. The inquiry revealed an outstanding warrant for Lewis's arrest.

Upon learning this information, the defendant, instead of arresting Lewis, returned to the vehicle and ordered him to leave the scene, giving him five dollars for public transportation. [Note 15] The defendant then entered the victim's car, pulled out an ounce of cocaine from the belt area at the top of his pants, and threatened to arrest her if she did not do what he instructed. The victim, who had just been caught cheating on her husband and had struggled with drug problems for many years, knew that her family would not believe her if the defendant followed through on his threat. She obeyed his order to follow him in his police cruiser. [Note 16] After

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they arrived at a nearby building, [Note 17] the defendant ordered the victim into an office and raped her. [Note 18]

The attack ended at around midnight. After the attack, the victim was terrified. She drove to her home in Stoneham and told her father that she had been raped by a police officer. She told him that two additional people were in the car, not just one, because she did not want to reveal her infidelity. She ran down the street to a friend's house in the middle of the night.

Eventually, in the early morning hours of January 21, 2006, the victim went to Winchester Hospital. A nurse told her about a rape kit and that police would be involved. The victim fled the hospital before any physical evidence could be collected. Next, the victim went to the Stoneham police station, where she asked for two specific police officers she knew and trusted. The Stoneham police told her she had to contact the Cambridge police, and her father came to the station to pick her up. By then, it was 3:20 A.M. and she went home instead.

Although the victim did not go to the Cambridge police, the Stoneham police reached out to them, and a Cambridge detective contacted the victim. The detective scheduled an interview with the victim alone for January 24, 2006, but the victim failed to appear because she believed she "couldn't go into a police station alone and feel safe after what just happened."

On January 27, 2006, one week after the attack, the victim was interviewed by the police. Subsequent investigation revealed no latent prints at the crime scene or the interior of the victim's vehicle. The defendant was arrested and on March 30, 2006, was charged with three counts of rape.

B. Discussion. 1. First complaint issues. On appeal, the defendant claims violations of the first complaint doctrine. See Commonwealth

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v. McCoy, 456 Mass. 838 , 845 (2010). Because the defendant failed at trial to object to the claimed erroneous admission of evidence when it was admitted, we review for a substantial risk of a miscarriage of justice. [Note 19] See Commonwealth v. Whelton, 428 Mass. 24 , 27 (1998). See generally Smith, Criminal Practice & Procedure § 33.9 (3d ed. 2007).

First, the defendant now contends that the victim's testimony on direct examination that she told several people other than her first complaint witness about the rape was reversible error. Even assuming that the testimony should not have been admitted on direct examination, because the defendant pursued throughout the trial a strategy (announced in his opening statement) of discrediting the victim's testimony and impugning her motives by highlighting her prior inconsistent statements, there was no substantial risk of a miscarriage of justice. See Commonwealth v. McCoy, 456 Mass. at 851.

Second, the defendant now objects to the admission of the testimony of the victim's statements to the nurse. This did not give rise to a substantial risk of a miscarriage of justice where it was on cross-examination, not direct, that the substance of the victim's statement to the nurse was elicited, and where it was only after this questioning that the Commonwealth elicited on redirect that the victim had told the nurse that she had been raped by the trooper. See Commonwealth v. Kebreau, 454 Mass. 287 , 298-299 (2009); Commonwealth v. Saunders, 75 Mass. App. Ct. 505 , 510 (2009).

Third, after defense counsel cross-examined the victim about her motivations in making allegations of rape, including that she considered filing a lawsuit, the introduction of testimony from police officers about the investigation did not give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Arana, 453 Mass. 214 , 227 (2009). [Note 20]

2. Jury instruction. After the defendant's closing argument, in

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which he argued that the victim was motivated by a lawsuit, the judge did not abuse his discretion in instructing the jury that the victim had a right "to be informed that [she has] a right to pursue a civil action." See G. L. c. 258B, § 3(u). The instruction did not remove from the jury's consideration the defendant's argument that the victim had a financial motive to fabricate, and did not invade the jury's province to assess credibility. Contrast Commonwealth v. Bowden, 379 Mass. 472 , 485-486 (1980). There was no prejudicial error.

Conclusion. We remand the case for (1) specific factual findings and determination whether there was any closure of the general voir dire and, if so, whether such closure was de minimis; and (2) specific factual findings and determination whether the defendant waived his right to a public trial.

So ordered.