Commonwealth v. LaChance

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SJC-11494
COMMONWEALTH vs. EDMUND D. LaCHANCE, JR.

Middlesex. April 7, 2014. - October 21, 2014.

Present: Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.

Constitutional Law, Public trial, Jury, Waiver of constitutional
rights, Assistance of counsel. Practice, Criminal, Public
trial, Empanelment of jury, Waiver, Assistance of counsel.
Jury and Jurors. Waiver.

Indictments found and returned in the Superior Court
Department on December 16, 1999.

Following review by the Appeals Court, 58 Mass. 1111
(2003), a motion for a new trial was considered by Raymond J.
Brassard, J.

The Supreme Judicial Court granted an application for
direct appellate review.

Alba Doto Baccari for the defendant.
Michael A. Kaneb, Assistant District Attorney, for the
Commonwealth.
Richard C. Felton, pro se, amicus curiae, submitted a
brief.

CORDY, J. This court is again faced with a defendant's

postconviction claim of ineffective assistance of counsel
 2

predicated on the failure of trial counsel to object to a court

room closure during jury empanelment. See Commonwealth v.

Alebord, 467 Mass. 106, 111-114, cert. denied, 134 S. Ct. 2830

(2014); Commonwealth v. Morganti, 467 Mass. 96, 100-105 (2014).

This time we are required to address a question not previously

reached, that is, whether prejudice from the deficiency of trial

counsel in this respect must be affirmatively established as

part of the claim or is to be presumed because of the structural

nature of the underlying public trial right that trial counsel

failed to raise.

1. Background. On April 20, 2001, a Superior Court jury

convicted the defendant of aggravated rape, kidnapping, indecent

assault and battery, and assault by means of a dangerous weapon.

The defendant -- represented by new counsel -- filed a timely

notice of appeal, and on August 5, 2003, a panel of the Appeals

Court affirmed his conviction in an unpublished decision

pursuant to that court's rule 1:28. Commonwealth v. LaChance,

58 Mass. App. Ct. 1111 (2003), cert. denied, 540 U.S. 1202

(2004). The defendant filed two motions for a new trial in 2003

and 2004, which were denied by the trial judge in a single order

on April 15, 2004. The defendant again timely filed a notice of

appeal, and a panel of the Appeals Court affirmed the judge's
 3

denial of his two motions for a new trial on May 10, 2005.

Commonwealth v. LaChance, 63 Mass. App. Ct. 1114 (2005).1

In September, 2011, represented by new appellate counsel,

the defendant filed his third postaffirmance motion for a new

trial, raising, for the first time, a claim that his right to a

public trial pursuant to the Sixth Amendment to the United

States Constitution was violated when his family members were

excluded from the court room during jury empanelment, and that

trial counsel was ineffective for failing to object to the

closure. In support of his motion, the defendant presented his

own affidavit and affidavits from his mother, his uncle, and his

trial and former appellate attorneys. In her affidavit, the

defendant's mother stated that she, her late husband, and her

brother were in attendance in the Middlesex County Superior

Court on April 10, 2001, the date of jury selection. At

approximately 9:15 A.M., a court officer informed them that they

would have to leave the court room. They left the court room,

and waited in the lobby. According to the affidavits of the

defendant's mother and uncle, the family members attempted to

1
The defendant also filed two motions to revise and revoke
his sentence, which were denied by the trial judge and affirmed
by a panel of the Appeals Court in an unpublished decision
pursuant to that court's rule 1:28. Commonwealth v. LaChance,
63 Mass. App. Ct. 1108 (2005).
 4

reenter the court room at approximately 1 P.M. but were

prevented from doing so by a court officer.

Trial counsel averred that he believed that the court room

was closed during jury empanelment, as was the practice in the

Middlesex County Superior Court at the time, and that he did not

object to the alleged closure. Trial counsel further averred

that he did not discuss the matter with the defendant and was

not aware at the time of the trial that the Sixth Amendment

right to a public trial extended to jury empanelment. The

defendant's former appellate counsel averred that he had no

tactical or strategic reason not to raise the issue of court

room closure in any of the defendant's appeals or prior motions

for a new trial, noting that it did not occur to him that

closure was an issue in the case.

The motion judge, who was also the trial judge, denied the

defendant's third motion for a new trial without a hearing,

reasoning that because the defendant had not objected to any

closure during jury empanelment, he had waived his public trial

claim. The judge further determined that removal of the

defendant's family from the court room during jury empanelment

did not create a substantial risk of a miscarriage of justice

entitling the defendant to a new trial.

On April 4, 2013, following the release of our decisions in

Commonwealth v. Lavoie, 464 Mass. 83, cert. denied, 133 S. Ct.
 5

2356 (2013), and Commonwealth v. Hardy, 464 Mass. 660, cert.

denied, 134 S. Ct. 248 (2013), the defendant sought

reconsideration of the denial of his motion for a new trial,

arguing that prejudice under the second prong of the standard

regarding ineffective assistance of counsel set forth in

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), must be

presumed due to the structural nature of the right to a public

trial. In denying the defendant's motion, the judge assumed

both that a closure during jury empanelment had occurred and

that trial counsel's performance in failing to object to the

closure fell below that of an ordinary fallible lawyer.

However, the judge rejected the defendant's argument that

prejudice must be presumed because of the structural nature of

the underlying public trial right. Accordingly, the judge

denied the motion, determining both that the defendant was

unable to show prejudice resulting from the court room closure

and that there was no substantial risk of a miscarriage of

justice.

2. Discussion. We conclude that where the defendant has

procedurally waived his Sixth Amendment public trial claim by

not raising it at trial, and later raises the claim as one of

ineffective assistance of counsel in a collateral attack on his

conviction, the defendant is required to show prejudice from

counsel's inadequate performance (that is, a substantial risk of
 6

a miscarriage of justice) and the presumption of prejudice that

would otherwise apply to a preserved claim of structural error

does not apply. See Purvis v. Crosby, 451 F.3d 734, 740-743

(11th Cir.), cert. denied sub nom. Purvis v. McDonough, 549 U.S.

1035 (2006); Virgil v. Dretke, 446 F.3d 598, 612 (5th Cir.

2006); Reid v. State, 690 S.E.2d 177, 180-181 (Ga. 2010); People

v. Vaughn, 821 N.W.2d 288, 297-299 (Mich. 2012) (all concluding

that structural error alone is not sufficient to warrant

presumption of prejudice in context of claim of ineffective

assistance of counsel).

a. Right to a public trial. It is well settled that the

violation of a defendant's right to a public trial is structural

error. See United States v. Marcus, 560 U.S. 258, 263 (2010);

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105 (2010). Where

a defendant raises a properly preserved claim of structural

error, this court will presume prejudice and reversal is

automatic. See Cohen (No. 1), supra at 118-119 (properly

preserved claim where counsel objected to court room closure at

trial).

Where counsel fails to lodge a timely objection to the

closure of the court room, the defendant's claim of error is

deemed to be procedurally waived. See Morganti, 467 Mass. at

102; Lavoie, 464 Mass. at 87-88 & n.8. Our case law provides

that unpreserved claims of error be reviewed to determine if a
 7

substantial risk of a miscarriage of justice occurred. See

Lavoie, 464 Mass. at 89, citing Commonwealth v. Freeman, 352

Mass. 556, 564 (1967). While violation of the right to a public

trial is structural error, even structural error "is subject to

the doctrine of waiver." Morganti, supra at 101-102, quoting

Cohen (No. 1), supra at 105-106. See Commonwealth v. Amirault,

424 Mass. 618, 641 (1997) (stating doctrine of waiver applies

equally to constitutional claims). This includes structural

error arising through an improper court room closure. See

Alebord, 467 Mass. at 113; Morganti, supra at 101-102.

To presume prejudice in this context would ignore the

distinction, one long recognized by this court, between properly

preserved and waived claims. See Commonwealth v. Dyer, 460

Mass. 728, 735-737 & n.7 (2011), cert. denied, 132 S. Ct. 2693

(2012) (applying waiver analysis in first-degree murder case to

unobjected to closure during jury voir dire and finding

substantial likelihood of miscarriage of justice not shown);

Commonwealth v. Horton, 434 Mass. 823, 832 (2001) (applying

waiver analysis, in effect, to unpreserved claim of Sixth

Amendment right to public trial). The structural nature of the

underlying error does not automatically excuse the defendant

from showing prejudice when advancing an unpreserved claim. See

Francis v. Henderson, 425 U.S. 536, 542 (1976) (holding that

showing of actual prejudice necessary to overcome procedural
 8

waiver arising from failure to object to structural error at

trial). "The presumption of prejudice which supports the

existence of the right is not inconsistent with a holding that

actual prejudice must be shown in order to obtain relief from a

statutorily provided waiver for failure to assert it in a timely

manner." Davis v. United States, 411 U.S. 233, 245 (1973)

(presumption of prejudice associated with claim of racial

discrimination in grand jury composition not available when

claim first raised in postconviction motion). "To conclude

otherwise would tear the fabric of our well-established waiver

jurisprudence that 'a defendant must raise a claim of error at

the first available opportunity,'" Morganti, 467 Mass. at 102,

quoting Commonwealth v. Randolph, 438 Mass. 290, 294 (2002), and

would defeat the core purposes of the waiver doctrine: to

protect society's interest in the finality of its judicial

decisions, and to promote judicial efficiency. Randolph, supra.

b. Right to effective assistance of counsel. If an error

is waived due to the failure of trial counsel to object, we

still may have occasion to review the error in the

postconviction context of a claim of ineffective assistance of

counsel. See Alebord, 467 Mass. at 113; Morganti, 467 Mass. at

103. To prevail on a claim of ineffective assistance of

counsel, however, a defendant also must show that counsel's

deficiency resulted in prejudice, see Saferian, 366 Mass. at 96,
 9

which, in the circumstances of counsel's failure to object to an

error at trial, is essentially the same as the substantial risk

standard we apply to unpreserved errors. See Commonwealth v.

Azar, 435 Mass. 675, 686-687 (2002).

Because of the structural nature of the defendant's waived

Sixth Amendment right to a public trial, the dissent would

presume prejudice, even in the context of a collateral attack

based on a claim of a counsel's ineffectiveness. But a claim of

ineffective assistance of counsel is not a public trial claim.

As discussed above, the defendant's public trial claim has been

procedurally waived. Presuming prejudice in this context

ignores the distinct and well-established jurisprudence which

governs claims of ineffective assistance of counsel.2

With respect to claims of ineffective assistance of

counsel, in violation of the Sixth Amendment, the United States

Supreme Court has recognized a presumption of prejudice only in

limited circumstances where the essential right to the

assistance of counsel itself has been denied. See Strickland v.

Washington, 466 U.S. 668, 692 (1984) ("Actual or constructive

denial of the assistance of counsel altogether is legally

presumed to result in prejudice," as is "state interference with

2
Indeed, it would be anomalous if a waived claim reviewed
on direct appeal under a substantial risk standard could be
recast as a claim of ineffective assistance of counsel in which
prejudice would be presumed.
 10

counsel's assistance"); United States v. Cronic, 466 U.S. 648,

659 & n.25 (1984). In Strickland, supra at 692, the United

States Supreme Court went on to identify one additional

circumstance where "a similar, though more limited, presumption

of prejudice" would apply: where "counsel is burdened by an

actual conflict of interest." "Even so, the rule is not quite

the per se rule of prejudice that exists for the Sixth Amendment

claims mentioned above [denial altogether and State interference

with counsel]. Prejudice is presumed only if the defendant

demonstrates that counsel 'actively represented conflicting

interests' and that 'an actual conflict of interest adversely

affected [the] lawyer's performance.'" Strickland, supra,

quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350 (1980).

In contrast, in circumstances where ineffectiveness is

based on "[a]n error by counsel, even if professionally

unreasonable, [it will] not warrant setting aside the judgment

of a criminal proceeding if the error had no effect on the

judgment." Strickland, supra at 691. "The purpose of the Sixth

Amendment guarantee of counsel is to ensure that a defendant has

the assistance to justify reliance on the outcome of the

proceeding." Id. at 691-692. While a jury empanelment closed

to spectators (other than jurors) and the defendant's family may

be a structural error, it will rarely have an "effect on the
 11

judgment," or undermine our "reliance on the outcome of the

proceeding." Id. at 691, 692.

In Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007),

the United States Court of Appeals for the First Circuit

presumed prejudice where a defendant advanced a claim of

ineffective assistance of counsel based on counsel's failure to

object to a public trial structural error. The court reasoned

that it would "not ask defendants to do what the Supreme Court

has said is impossible." Id. at 65.3 However, to say that

requiring a showing of prejudice forecloses the possibility of a

remedy "ignore[s] -- at great cost to the public interest in the

finality of verdicts -- the established rule that public trial

rights may be waived," Dyer, 460 Mass. at 735 n.7, and that

claims of ineffective assistance of counsel merit a new trial

only where the error may have affected the verdict. See

Strickland, 466 U.S. at 691. We do not agree with the reasoning

of Owens in this context, and are more aligned with that of the

United States Court of Appeals for the Eleventh Circuit in

Purvis v. Crosby, 451 F.3d at 740-741, which has concluded that

aside from the three exceptions noted in Strickland and Cronic,

3
Although it may be difficult to demonstrate prejudice in
the context of a closed jury empanelment process, we do not rule
out that possibility, although we recognize that the possibility
is greater with respect to trial closures after jury
empanelment.
 12

none of which is present here, the United States Supreme Court

has instructed that prejudice must be shown in a claim for

ineffective assistance of counsel. See People v. Vaughn, 821

N.W.2d at 308 (rejecting reasoning of Owens and adopting

reasoning of Purvis, further nothing that, "[w]ithout

distinguishing a properly preserved structural error for which

reversal is required from an error claimed as ineffective

assistance of counsel, counsel can harbor error as an appellate

parachute by failing to object to the closure of trial, thereby

depriving the trial court of the opportunity to correct the

error at the time it occurs").

3. Conclusion. For the above reasons, the order denying

the defendant's motion for a new trial is affirmed.

So ordered.
 DUFFLY, J. (dissenting, with whom Lenk, J., joins). It is,

as the court notes, "well settled that the violation of a

defendant's right to a public trial is structural," and that the

public trial right under the Sixth Amendment to the United

States Constitution applies as much to jury empanelment as to

"the actual proof at trial." Presley v. Georgia, 558 U.S. 209,

212 (2010). Today's decision effectively forecloses vindication

of this constitutional right on collateral review, even in cases

where trial counsel has rendered constitutionally deficient

performance in failing to object when the court room was closed,

and neither the defendant nor his counsel knowingly waived his

right to a public trial.1 See Commonwealth v. Lavoie, 464 Mass.

83, 88-89, cert. denied, 133 S. Ct. 2356 (2013).

Notwithstanding the absence of a waiver of the public trial

right in this case, the court holds that the defendant is

foreclosed from seeking relief because he procedurally waived

his claim of error when his trial attorney failed to object, and

his appellate counsel did not raise the claim on direct appeal.

See id. at 87 n.8 (distinguishing between waiver of right and

1
When a court room is closed but a defendant has waived his
right to a public trial, there is no violation of the right.
See Commonwealth v. Amirault, 424 Mass. 618, 649-650 (1997).
The waiver of a right occurs only where a litigant intentionally
relinquishes that right. See Commonwealth v. Lavoie, 464 Mass.
83, 87, n.8, cert. denied, 133 S. Ct. 2356 (2013); Commonwealth
v. Deeran, 397 Mass. 136, 140-142 (1986); Commonwealth v.
Downey, 78 Mass. App. Ct. 224, 229-230 (2010).
 2

waiver of claim of error); Commonwealth v. Deeran, 397 Mass.

136, 140-142 (1986) (noting distinction between "a procedural

waiver of [defendant's] right to assert a constitutional claim"

in postconviction motion, and the knowing and intelligent

"relinquishment of the constitutional right" [emphasis in

original]).

As the court notes, the defendant did not raise the claim

that his public trial right was violated until his third

postconviction motion. The court recognizes that counsel's

failure to object was constitutionally deficient performance,

but nonetheless affirms the denial of the defendant's claim of

structural error by invoking concepts of finality and judicial

efficiency to support what it describes to be "our well-

established waiver jurisprudence that 'a defendant must raise a

claim of error at the first available opportunity.'"

Commonwealth v. Morganti, 467 Mass. 96, 102 (2014), quoting

Commonwealth v. Randolph, 438 Mass. 290, 294 (2002). I

respectfully disagree that the principles of finality and

judicial efficiency must be invoked. Where, as here, the court

room was closed without a determination that such closure was

justified according to Waller v. Georgia, 467 U.S. 39, 46 (1984)

(Waller), a defendant has not waived his constitutional right to

a public trial, and defense counsel provided ineffective
 3

assistance by failing to object,2 I would invoke the principle

that "every right, when withheld, must have a remedy." Marbury

v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

Under the court's analysis, henceforth, in any case in

which trial counsel fails to object to a court room closure,

either because of a lack of experience or knowledge, or other

"serious incompetency, inefficiency, or inattention,"

Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), a defendant

will have no meaningful opportunity to raise such a claim on

collateral review.3 This is necessarily so because, in order to

obtain relief, a defendant would need to show either (1) that

his procedurally waived claim of error resulted in a substantial

risk of a miscarriage of justice, which requires a showing of

2
There is no suggestion that either the defendant or his
counsel intended to relinquish the public trial right because
both the defendant and his counsel were unaware that the public
trial right applied during jury empanelment. In such
circumstances, where it is not consistent with the prevailing
professional norms at the time of trial, the failure to object
may constitute deficient performance falling below what is to be
expected of an ordinary fallible lawyer. See Commonwealth v.
Morganti, 467 Mass. 96, 103 (2014), quoting Commonwealth v.
Drew, 447 Mass. 635, 641 (2006), cert. denied, 550 U.S. 943
(2007).
3
The court's decision to foreclose relief for unpreserved
claims of error regarding the public trial right is limited to
the context of collateral review in which this case arises. The
decision rests on an interest in promoting finality, an interest
which arises only after a conviction has been affirmed on direct
appeal, see Commonwealth v. Amirault, 424 Mass. 618, 637 (1997),
and does not address the question of possible remedies on direct
appeal.
 4

prejudice, see Commonwealth v. Randolph, 438 Mass. 290, 298

(2002), or (2) that his counsel's representation was

constitutionally ineffective, which also requires a showing of

prejudice.4 But the very nature of a right to which presumptive

prejudice attaches -– such as the right to an open court –- is

4
In circumstances such as those present here, the standard
of review for ineffective assistance claims is not "essentially
the same" as the standard of review for claims of unpreserved
trial error. Compare Commonwealth v. Saferian, 366 Mass. 89, 96
(1974) (new trial where counsel's deficient performance deprives
defendant of otherwise available substantial ground of defense),
with Commonwealth v. Amirault, supra at 646 (new trial where
waived claim of error results in substantial risk of miscarriage
of justice). In most circumstances, however, because
application of either standard will lead to the same result, we
review under the substantial risk of a miscarriage of justice
standard and, in so doing, obviate the need to conduct a
separate review under the Saferian standard. See, e.g.,
Commonwealth v. Azar, 435 Mass. 675, 686-687 (2002);
Commonwealth v. Peters, 429 Mass. 22, 31 & n.12 (1999);
Commonwealth v. Curtis, 417 Mass. 619, 624 n.4 (1994).

Here, by contrast, the circumstances are precisely those in
which the substantial risk standard and the Saferian standard
diverge. I agree that where a defendant raises a waived claim
of error regarding the public trial right without asserting a
claim of ineffective assistance of counsel, the defendant must
establish a substantial risk of a miscarriage of justice, and
will not be entitled to a presumption of prejudice. But I would
hold that a defendant is entitled to a presumption of prejudice
where a defendant raises an ineffective assistance of counsel
claim and has established that, in failing to object to a court
room closure, counsel's performance fell below that of an
ordinary, fallible attorney. The distinction between preserved
and waived claims of error is therefore maintained: a defendant
who has preserved a claim that his public trial right was
violated is entitled to reversal, whereas a defendant who has
waived the claim of error is not entitled to reversal unless he
establishes that, in failing to object, his trial counsel's
performance fell below the standard of an ordinary, fallible
lawyer.
 5

that a showing of prejudice is not possible. See Waller, supra

at 49 n.9, quoting United States ex rel. Bennett v. Rundle, 419

F.2d 599, 608 (3d Cir. 1969) ("a requirement that prejudice be

shown would 'in most cases deprive [the defendant] of the

[public-trial] guarantee, for it would be difficult to envisage

a case in which he would have evidence available of specific

injury'"). It is nonsensical to impose upon a defendant the

requirement to establish that trial counsel's failure deprived

him of an otherwise available substantial line of defense where

the structural nature of the public trial right makes such a

showing impossible in practice.5

Requiring that prejudice be shown in these circumstances

disregards the fundamental purpose of the right to a public

trial. The violation of the public trial right is structural

error that "require[s] automatic reversal without a showing of

5
The court states that it does not rule out the possibility
that a defendant could show prejudice resulting from violation
of the right to a public trial, ante at n.3, but a showing of
prejudice is inconsistent with classification of the public
trial right as structural. Moreover, the court does not suggest
how a defendant might show such prejudice, and the effect of its
holding is that there will be no "occasion to review"
unpreserved claims of error predicated on the public trial right
on collateral review. No other court to have considered this
issue appears to have suggested that a showing of prejudice
resulting from a court room closure would be possible. See,
e.g., Purvis v. Crosby, 451 F.3d 734, 741 (11th Cir.), cert.
denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006); Reid
v. State, 286 Ga. 484, 488 (2010); People v. Vaughn, 491 Mich.
642 (2012); State v. Butterfield, 784 P.2d 153, 157 (Utah 1989).
 6

actual harm," because it "necessarily render[s] a criminal trial

fundamentally unfair or an unreliable vehicle for determining

guilt or innocence." Commonwealth v. Petetabella, 459 Mass.

177, 183 (2011), quoting Commonwealth v. Hampton, 457 Mass. 152,

163 (2010). See Commonwealth v. Cohen, 456 Mass. 94, 118-119

(2010) (where jury selection procedure violated public trial

right, error was structural and therefore no inquiry conducted

"as to whether it prejudiced the defendant"); Commonwealth v.

Marshall, 356 Mass. 432, 435 (1969) (reversing conviction based

on violation of right to public trial, and holding "showing of

prejudice is not necessary"). This is because the benefits of a

public trial, while significant, are nonetheless "frequently

intangible, difficult to prove, or a matter of chance, [but] the

Framers plainly thought them nonetheless real." Waller, supra

at 49 n.9. See Commonwealth v. White, 85 Mass. App. Ct. 491,

496 (2014) ("A closure during jury selection undermines the

values of openness because the public loses the opportunity for

assurance that those chosen to decide the defendant's guilt or

innocence will do so fairly"); Commonwealth v. Downey, 78 Mass.

App. Ct. 224, 229 (2010) ("Because we place such value on the

right to public trial and because it is virtually impossible to

demonstrate concrete harm flowing from a violation of that

right, a violation relieves the defendant of the need to show

prejudice in order to obtain a new trial").
 7

As structural error, the violation of the right to a public

trial is in a category distinct from trial errors, such as the

improper admission of evidence, from which specific harm may be

seen to flow. Structural errors stand apart from trial errors

because structural errors "affect[] the framework within which

the trial proceeds" and thereby "defy analysis by 'harmless-

error' standards," whereas trial errors "occur during the

presentation of the case to the jury," and "may therefore be

quantitatively assessed in the context of other evidence

presented." Arizona v. Fulminante, 499 U.S. 279, 291, 307-308,

309-310 (1991). Because a structural defect affects the

framework in which a trial proceeds, looking for prejudice

flowing from structural error is "a speculative inquiry into

what might have occurred in an alternate universe." United

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). See State

v. Lamere, 327 Mont. 115, 124 (2005) (structural defects are

presumptively prejudicial because they "cannot be qualitatively

or quantitatively weighed against the admissible evidence

introduced at trial").

The majority decision diminishes the significance of the

public trial right when it concludes that finality trumps a

defendant's right to seek a postaffirmance remedy for an

unpreserved public trial claim, a conclusion we have not reached

for other unpreserved claims of error. Notably, we have granted
 8

a new trial on collateral review without requiring a showing of

prejudice, twenty years after the conviction, where a defendant

raised an unpreserved claim of error implicating a structural

defect in jury instructions. See Commonwealth v. Pinckney, 419

Mass. 341, 342, 349 (1995).6 And, although a defendant who

raises an unpreserved claim of error implicating his public

trial right is now effectively foreclosed from collateral

review, a defendant who raises an unpreserved trial error

retains the possibility of reversal if he can show that the

error resulted in a substantial risk of a miscarriage of

justice. See, e.g., Commonwealth v. Gilbert, 447 Mass. 161, 163

(2006); Commonwealth v. Thomas, 401 Mass. 109, 119 (1987);

Commonwealth v. Callahan, 380 Mass. 821, 826 (1980);

Commonwealth v. Palmarin, 378 Mass. 474, 477 (1979). Permitting

relief for unpreserved trial errors and some unpreserved

6
In the context of direct appeal, we have reversed
convictions on the basis of unpreserved claims of error where we
have recognized that a showing of prejudice would be impossible.
See Commonwealth v. Sheehy, 412 Mass. 235, 238 (1992);
Commonwealth v. Jones, 405 Mass. 661, 662 (1989); Commonwealth
v. Smith, 403 Mass. 489, 493, 496-497 (1988). Although the
error in these cases -- alternate jurors sitting in on jury
deliberations, without objection by trial counsel -- was not
labeled as "structural," our decision in Commonwealth v. Smith,
supra, preceded Arizona v. Fulminante, 499 U.S. 279, 291, 307-
308, 309-310 (1991), apparently the first United States Supreme
Court case to have categorized and labeled as "structural" those
errors which "defy harmless-error analysis." See Burns,
Insurmountable Obstacles: Structural Errors, Procedural
Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 732
(2012).
 9

structural errors, but not for errors implicating the public

trial right, introduces unjustified disparity into our

jurisprudence. See Commonwealth v. Dyer, 460 Mass. 728, 735 n.7

(2011), cert. denied, 132 S. Ct. 2693 (2012) (rejecting option

that "would give less protection to waived constitutional rights

than to ordinary claims of unpreserved errors"). Cf. Burns,

Insurmountable Obstacles: Structural Errors, Procedural

Default, and Ineffective Assistance, 64 Stan. L. Rev. 727, 749-

750 (2012) (allowing relief for unpreserved trial errors but

foreclosing relief for unpreserved structural errors "would be

absurd if the Court were to come right out and say that this is

the rule, given the general agreement . . . that most structural

errors are quite serious").

The court looks to Francis v. Henderson, 425 U.S. 536, 542

(1976)7, and Purvis v. Crosby, 451 F.3d 734, 743 (11th Cir.),

7
The court relies on Francis v. Henderson, 425 U.S. 536,
542 (1976) (Francis), to support its statement that "[t]he
structural nature of the underlying error does not automatically
excuse the defendant from showing prejudice when advancing an
unpreserved claim." In Francis, supra at 537-538, 542, the
United States Supreme Court considered a State prisoner's
petition for Federal habeas corpus relief based on a claim of
error for which prejudice was presumed; the Court denied relief
because the State court had deemed the claim waived pursuant to
its own procedural rules. The claim did not concern the public
trial right, but, rather, concerned racial bias in the
composition of the grand jury. The Francis opinion does not
discuss the possibility of ineffective assistance of counsel
(indeed the opinion predated Strickland v. Washington, 466 U.S.
668 [1984]), nor did it grapple with the issue that for certain
types of error, it will be impossible for a defendant to show
 10

cert. denied sub nom. Purvis v. McDonough, 549 U.S. 1035 (2006),

for support, but these cases rely on comity concerns in the

context of conducting Federal habeas review of a State

conviction.8 Concerns of comity are wholly inapplicable here.9

prejudice. See Francis, supra at 552 (Brennan, J., dissenting)
(Francis Court's imposition of requirement to show actual
prejudice "without the slightest veneer of reasoning" shields
the obvious); Owens v. United States, 483 F.3d 48, 64 n.14 (1st
Cir. 2007) (explaining limited persuasive value of Francis).
8
The court also cites Virgil v. Dretke, 446 F.3d 598 (5th
Cir. 2006), which likewise arose in the context of Federal
habeas review of a State conviction. I disagree with the
court's view that the United States Court of Appeals for the
Fifth Circuit concluded in that case that structural error is
insufficient to warrant a presumption of prejudice in the
context of an ineffective assistance of counsel claim. The
circuit court determined that trial counsel rendered deficient
performance in failing to object to the seating of two jurors
who stated they would not be fair and impartial, and that the
seating of such jurors sufficed to establish prejudice under the
Strickland standard. Id. at 613-614. Having determined that
counsel's errors resulted in prejudice, the circuit court did
not conduct a determinative analysis as to whether prejudice may
be presumed for a claim of ineffective assistance of counsel
predicated on structural error. The circuit court simply
stated, "we do not hold that a structural error alone is
sufficient to warrant a presumption of prejudice in the
ineffective assistance of counsel context" (emphasis added).
Id. at 607.
9
Even where comity concerns are applicable, some circuit
courts of the United States Court of Appeals have presumed
prejudice on a claim of ineffective assistance of counsel
predicated on counsel's failure to raise structural error at
trial. See Winston v. Boatwright, 649 F.3d 618, 632 (7th Cir.
2011), cert. denied sub nom. Winston v. Tegels, 132 S. Ct. 2101
(2012) (prejudice presumed for ineffective assistance of counsel
claim predicated on failure to object to structural error in
jury selection); McGurk v. Stenberg, 163 F.3d 470, 474 (8th Cir.
1998) (presuming prejudice for ineffective assistance claim
 11

See Commonwealth v. Sylvain, 466 Mass. 422, 433 n.16 (2013)

("Comity refers to the [United States] Supreme Court's policy

against excessive interference by Federal habeas courts in State

criminal convictions that had become final," and has "little

application to collateral review by State courts themselves").

Where comity concerns are inapplicable, this court, the United

States Court of Appeals for the First Circuit, and some courts

in other jurisdictions have not required a showing of prejudice

to reverse a conviction on collateral review based on an

unpreserved claim of structural error. See Owens v. United

States, 483 F.3d 48, 64 (1st Cir. 2007); Littlejohn v. United

States, 73 A.3d 1034, 1043 (D.C. 2013);10 Commonwealth v.

Pinckney, supra at 342, 349.

I agree with the analysis in Owens v. United States, supra;

Johnson v. Sherry, 586 F.3d 439, 447 (6th Cir. 2009), cert.

denied, 131 S. Ct. 87 (2010); and Littlejohn v. United States,

predicated on failure to inform defendant of right to jury
trial).
10
With respect to consideration of other structural errors
where comity concerns were inapplicable, courts have presumed
prejudice on a claim of ineffective assistance of counsel
predicated on counsel's failure to raise such error at trial.
See Savoy v. State, 420 Md. 232, 255-256 (2011) (prejudice
presumed for structural error in instructions concerning
reasonable doubt where defendant did not object at trial); State
v. Lamere, 327 Mont. 115, 125 (2005) (prejudice presumed for
ineffective assistance claim predicated on structural error in
jury selection).
 12

73 A.3d at 1043. Each of these cases rejects the proposition

that Strickland requires that a defendant must establish

prejudice in order to prevail on an ineffective assistance claim

in all but the three circumstances listed in Strickland. As the

Court of Appeals for the District of Columbia stated in

Littlejohn v. United States, supra at 1043:

"The Supreme Court's discussion of three instances in which
the violation of the Sixth Amendment right to counsel is
presumptively prejudicial —- (1) actual or constructive
denial of counsel; (2) state interference with counsel's
assistance; and (3) counsel operating under a conflict of
interest, Strickland, [supra at 692] -- is not necessarily
an exclusive list of the rare occasions when prejudice may
be presumed. Requiring [a defendant] to prove actual
prejudice as a result of trial counsel's waiver of his
public trial right would be inconsistent with the [United
States] Supreme Court's holdings that prejudice is presumed
when the constitutional error is a structural defect, one
that 'infect[s] the entire trial process.' Brecht v.
Abrahamson, [507 U.S. 619, 630 (1993)]; see also Gonzalez–
Lopez, [548 U.S. at 148–149]; Sullivan [v. Louisiana, 508
U.S. 275, 281 (1993)]; Arizona v. Fulminante, [499 U.S. at
309-310]. If it is impossible to identify the prejudice
resulting from a structural defect, it is likewise
impossible to determine whether counsel's waiver of such a
'basic protection,' like the public trial guarantee, 'had
no effect on the judgment.' Strickland, [supra at 691]."
(Footnote omitted.)

The court also cites with approval a concern articulated by

another State appellate court that "counsel can harbor error as

an appellate parachute by failing to object to the closure of

trial, thereby depriving the trial court of the opportunity to

correct the error at the time it occurs." People v. Vaughn, 821
 13

N.W. 2d 288, 308 (Mich. 2012). I do not accept the court's

assumption that a defendant's trial counsel, who was aware of

the removal of the defendant's family members from the court

room, would engage in conduct that fails to respect the duty of

zealous representation owed to a client. See Mass. R. Prof.

C. 1.3 & comment 1A, 426 Mass. 1313 (1998). Cf. Littlejohn v.

United States, supra at 1046 & n.2 (Pryor, J., dissenting),

citing D.C. R. Prof. C. 1.3 comment 1 (2007). The court's view

rests on the assumption that appellate counsel could establish

that trial counsel's failure to object was not a tactical

decision. Cf. Davis v. United States, 411 U.S. 233, 250 (1973)

(Marshall, J., dissenting) ("a prisoner would properly be held

to have intentionally relinquished his right to raise the

constitutional claim if he failed to raise it for tactical

reasons").

For the foregoing reasons, I would conclude that prejudice

should be presumed where there is a claim of ineffective

assistance of counsel predicated on counsel's failure to object

to a court room closure, and respectfully dissent.