COMMONWEALTH vs. MICHAEL RILEY

WOLOHOJIAN, J. The defendant appeals from the denial of his motion for new trial, contending that his right to a public trial under the Sixth Amendment to the United States Constitution was violated when a court officer prevented the defendant's sister from entering the courtroom because "the lawyers were talking to the judge." This occurred on the morning of the first day of trial — but before the trial began. The motion judge found that the sister was turned away when the court was not in session. Although the parties have asked us to determine whether the defendant's Sixth Amendment right was violated in the circum-

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stances presented, we need not reach that question because we determine that, even were we to assume the defendant's right was infringed, he has not shown that he is entitled to a new trial. We accordingly affirm.

The motion judge, after an evidentiary hearing, [Note 1] made the following written findings.

"The defendant's case was called for trial on November 13, 2007. The defendant's sister, [Colleen] Ayges, arrived at Dedham Superior Court at around 9:00 a.m. on the first day of her brother's trial. Ayges went through court security and was directed to the courtroom where her brother's trial was to take place. When she approached the courtroom, Ayges observed that the courtroom door was open. She saw many people waiting outside of the courtroom, including one person she recognized as the victim's grandmother. When Ayges peered into the courtroom, she saw her brother, the defendant, and lawyers standing next to the bench, talking to the judge. She did not see anyone else in the courtroom; it was otherwise empty. [Note 2] Accordingly, the defendant's sister did not see a court reporter, any court officers, any witnesses, or the defendant's parents in the courtroom.

"Moreover, the record reflects that the defendant was in custody during the trial. This Court finds based on a review of the transcript of proceedings on the morning of November 13, 2007, and based on its knowledge of Courtroom 25 at the Norfolk Superior Courthouse where these proceedings were

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held, as well as its experience with and knowledge of the process of hearings in criminal cases, that it is highly unlikely that the defendant would be standing next to the bench with counsel and the judge during the hearing on pretrial motions, and particularly without the presence of security officers.

"When Ayges attempted to gain entry into the courtroom, she was stopped by a court officer. He asked her whether she was a potential juror or witness, to which she responded that she was the defendant's sister. The court officer told her that she could not enter the courtroom because 'the lawyers were talking to the judge.' The court officer did not tell Ayges that she would be allowed in the courtroom at another time. The defendant maintains that the court officer was Larry Sullivan based on the description provided by Ayges and Sullivan's general assignment to Judge Dortch-Okara. The transcript of proceedings reveals that Sullivan was in the courtroom during the initial proceedings, and accordingly, could not have been the officer with whom Ayges spoke if the court were in session. Ayges left the courthouse after the court officer denied her entry into the courtroom. She estimated spending roughly thirty minutes at the courthouse that morning. Once she left, Ayges did not return to the courthouse at any point during her brother's trial.

"Attorney Hernon represented the defendant at trial. She testified that she did not learn of Ayges' exclusion from the courtroom on the morning of November 13, 2007, until after the trial concluded. Attorney Hernon first learned that Ayges attempted to attend her brother's trial during a phone conversation with Ayges on November 28, 2007. During that conversation, Ayges told Attorney Hernon that she went to the courtroom where her brother's trial was scheduled to take place, and saw a lawyer standing at the judge's bench, whom, based on Ayges' description, Attorney Hernon recognized as Assistant District Attorney Courtney Linnehan.

"The trial transcript reveals that the first order of business on the morning of November 13, 2007, was several pretrial motions, including motions in limine. Jury empanelment did not begin until later that afternoon, after the luncheon recess. Although Ayges states that she did not see any spectators in

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the courtroom when she attempted to enter, the trial transcript indicates that the victim's parents were present in the courtroom at the onset of the Court's consideration of pretrial motions. Indeed, defense counsel moved to sequester witnesses before the Court addressed the parties' motions in limine, stating on the record that witnesses were currently present in the courtroom. The Court, however, did not order the witnesses to leave the courtroom during the hearing on these non-evidentiary motions. Accordingly, this Court finds that at the time the defendant's sister made her observations inside Courtroom 25, the court was not in session."

The defendant challenges as clearly erroneous the judge's finding that court was not in session when his sister was turned away. Essentially, he argues that the court must have been in session given the finding that the trial judge was on the bench and was speaking to the lawyers with the defendant present. Because it is clear that the motion judge credited the sister's testimony that the judge was on the bench and talking to the lawyers, there would be some tension if one were to read the phrase "not in session" to mean that nothing at all was occurring in court. However, looking at the findings as a whole, as well as the evidence upon which they are based, we think it unreasonable to conclude that the judge meant the phrase in that way. Instead, consistent with his other findings, it is apparent that the judge used the phrase "not in session" to mean that the discussion with counsel took place before the pretrial motion hearing began and was administrative in nature, with no transcript or reporter being required. [Note 3]

Where, as here, a judge's findings of fact are made after an evidentiary hearing on a motion for new trial, they "will be accepted if supported by the record." Commonwealth v. Rosario, 460 Mass. 181 , 195 (2011), quoting from Commonwealth v. Walker, 443 Mass. 213 , 224 (2005). See Commonwealth v. Buckman, 461 Mass. 24 , 29 (2011), citing Commonwealth v. Cohen (No. 1), 456 Mass. 94 , 105 (2010) (Cohen [No. 1]). The judge's finding is fully supported here. The sister testified that no one was present in the courtroom other than the two lawyers, the

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defendant, and the judge. The lawyers were standing at sidebar with the defendant standing behind them to the side. By contrast, the transcript of the hearing on the motions in limine reveals that witnesses and court personnel were present in the courtroom and that the argument took place in open court, not at sidebar.

Regardless of whether the defendant's sister was turned away during the pretrial motion hearing (as the defendant contends) or during a sidebar conference before the motion hearing began (as the judge found), the defendant has not shown that the proceeding was of a nature to which the Sixth Amendment public trial right attaches. Although the United States Supreme Court has held that the Sixth Amendment right extends to certain pretrial proceedings, see Waller v. Georgia, 467 U.S. 39, 43 (1984) (Waller) (suppression hearings), and Presley v. Georgia, 558 U.S. 209, 213 (2010) (jury voir dire), it has not held that it attaches to all pretrial proceedings. [Note 4] To determine whether a particular pretrial proceeding is one to which the Sixth Amendment public trial right attaches, the inquiry "cannot be resolved solely on the label we give the event" but rather must be based on "considerations of experience and logic." Press-Enterprise Co. v. Superior Ct., 478 U.S. 1, 7, 9 (1986). "First, because a 'tradition of accessibility implies the favorable judgment of experience,' we [are to consider] whether the place and process have historically been open to the press and general public. . . . Second, [we are to consider] whether public access plays a significant positive role in the functioning of the particular process in question." Id. at 8 (citations omitted). [Note 5]

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Even were we to assume that the Sixth Amendment public trial right attached in the circumstances presented and that the partial closure did not satisfy the four-part Waller test, [Note 6] the defendant's motion for new trial was nonetheless properly denied because he has not shown that the appropriate remedy would be a new trial. "The relief for a breach of the public trial right 'should be appropriate to the violation.' " Cohen (No. 1), 456 Mass. at 119, quoting from Waller, 467 U.S. at 50.

We have found no case where a new trial has been ordered where the unconstitutional closure occurred solely during a pretrial motion hearing. [Note 7] Instead, possible remedies are either to conduct a new public hearing on the motion or to publicly release the transcript of the hearing. See Waller, supra at 49-50 (remanding for public suppression hearing on those portions of hearing that need not be closed); United States v. Waters, 627 E3d 345, 361 (9th Cir. 2010) (noting public trial right may have been vindicated by public availability of transcript). See also Robinson v. Commonwealth, 445 Mass. 280 , 290 (2005) (if defendant had good cause to be absent from suppression hearing and did not waive right to be present, remedy may be to hold another suppression hearing). Although relief need not necessarily be limited to those two options, it must be tailored to remedy the harm. A new trial should not be ordered where it "would be a windfall for the defendant, and not in the public interest." Waller, supra at 50.

Here, the defendant expressly disclaims any relief other than a new trial. Even if — as he contends — the closure occurred during the hearing on the motions in limine, he has made no effort

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to show why a new trial would be the appropriate form of relief. For these reasons, we affirm the denial of the defendant's motion for new trial.

So ordered.