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12-P-1829 Appeals Court

COMMONWEALTH vs. NARDO LOPES.

No. 12-P-1829.

Suffolk. February 3, 2016. - June 15, 2016.

Present: Kafker, C.J., Rubin, & Agnes, JJ.

Constitutional Law, Public trial, Jury. Practice, Criminal, 

Public trial, Empanelment of jury. Jury and Jurors.

Evidence, Prior violent conduct.

Indictment found and returned in the Superior Court 

Department on June 1, 2001. 

The case was tried before Linda E. Giles, J., and motions 

for a new trial, filed on September 30, 2010, and September 3, 

2013, respectively, were heard by her.

Derege B. Demissie for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the 

Commonwealth.

RUBIN, J. This is the rare case in which a court room 

closure was ordered over the defendant's objection during jury 

empanelment, subsequent to the decision of the United States 

Court of Appeals for the First Circuit in Owens v. United 
2

States, 483 F.3d 48 (1st Cir. 2007). That case and the 

subsequent cases from the Supreme Judicial Court, see, e.g.,

Commonwealth v. Cohen (No. 1), 456 Mass. 94 (2010), and from the 

United States Supreme Court, see Presley v. Georgia, 558 U.S. 

209 (2010), confirm that a defendant's right to a public trial 

under the Sixth Amendment includes a right to have the public 

present during jury empanelment. 

As our cases and those of the Supreme Judicial Court have 

now made clear, prior to Owens, and notwithstanding Waller v. 

Georgia, 467 U.S. 39 (1984), some court rooms around this 

Commonwealth routinely were closed during jury empanelment. 

See, e.g., Cohen (No. 1), supra at 102 (Superior Court in 

Norfolk County); Commonwealth v. Lavoie, 464 Mass. 83, 84-85 

(2013) (Superior Court in Middlesex County); Commonwealth v. 

Morganti, 467 Mass. 96, 98 (2014) (Superior Court in Plymouth 

County); Commonwealth v. Alebord, 467 Mass. 106, 109 (2014) 

(Superior Court in Plymouth County). In many such cases, 

because of the longstanding culture of these court houses, no 

contemporaneous objection was made to these closures. In a wide 

range of circumstances, under subsequent Supreme Judicial Court 

case law, those objections have been held waived. See, e.g., 

Lavoie, supra at 88-89; Morganti, supra at 101-102; Alebord, 

supra at 112-113. 
3

In this case, however, the jury venire was brought into the 

court room and, over the defendant's objections, the court room 

was closed. In this direct appeal from his conviction of

voluntary manslaughter, the defendant argues that closure was 

error, and that he is entitled to a new trial.1 

The jury venire comprised ninety individuals. There were 

approximately eighty seats in the court room. The judge allowed 

in the entire venire and required ten of its members to stand. 

The defendant objected and asked to have his family seated but 

the judge, who was familiar with Owens, found that "[t]here is 

no possible seating for them. For safety reasons, we really 

don't want anybody to stand, but of necessity, we're making a 

few of the venire people stand. And, also, we cannot have them 

within the venire for fear of jury contamination. But if seats 

become available, . . . we can bring in your family members." 

The court room was closed and the defendant's family 

members were excluded. They were not seated one at a time when 

individual seats became open. Nor were they seated as a group 

as soon as there was sufficient space in the court room to seat 

 

1 The defendant raised this issue below in his second motion 

for a new trial (while his direct appeal was stayed), but 

because he raised it in his direct appeal, i.e., his first 

appellate opportunity, the claim was preserved. See 

Mass.R.Crim.P. 30(c)(2), as appearing in 435 Mass. 1501 (2001). 

See also, e.g., Commonwealth v. Wall, 469 Mass. 652, 673 (2014); 

Commonwealth v. Celester, 473 Mass. 553, 578 (2016).
4

all the members of the defendant's family, allowing some space 

between those spectators and the prospective jurors. Only after

the introduction of the attorneys, the judge's summary of the 

case, the general questioning of the venire, and the individual 

voir dire of thirty-seven prospective jurors,

2 did the judge

instruct the court officer to seat the defendant's family 

members. Three more jurors3 were subject to individual voir dire 

before the judge noted that the defendant's family members had 

been seated. They were then present for the individual voir 

dire of twenty jurors.4 Thus, the defendant's family members

missed the individual voir dire of two-thirds of the potential 

jurors.5 The trial transcript does not indicate whether or not 

 

2 Eight of the thirty-seven were seated, five were subject 

to peremptory challenge by the Commonwealth, and seven were 

subject to peremptory challenge by the defendant.

3 One of the three was subject to peremptory challenge by 

the Commonwealth.

4 Eight of the twenty were seated, three were subject to 

peremptory challenge by the Commonwealth, and two were subject 

to peremptory challenge by the defendant.

5 This portion of the voir dire spanned ninety-nine out of 

the 133 transcript pages in the relevant volume that was devoted 

to empanelment. The judge below found that empanelment lasted

two hours and ten minutes. If one were to use the fraction of 

jurors questioned during the closure to estimate the fraction of 

the total empanelment period the court room was closed, one 

would estimate the closure lasted more than one hour and twentyfive minutes. Using the fraction of transcript pages to make 

the estimate, one would estimate the closure lasted more than 

one hour and thirty-six minutes.
5

the court officers subsequently allowed other members of the 

public to enter and be seated.6

In denying the defendant's second motion for a new trial,

7

the judge concluded that the closure was de minimis. Cases 

decided by the Supreme Judicial Court and this court during the 

pendency of this appeal make clear, though, that this was not a 

de minimis closure. See, e.g., Morganti, 467 Mass. at 101 

(seventy-nine-minute closure, lasting entirety of empanelment, 

not de minimis); Alebord, 467 Mass. at 111 (eighty-minute 

closure, lasting entirety of empanelment, not de minimis); 

Commonwealth v. White, 85 Mass. App. Ct. 491, 495-497 (2014) 

(closure during general questioning of venire not de minimis), 

vacated on other grounds, 87 Mass. App. Ct. 1132 (2015).

Thus, as Cohen No. 1 and Presley make clear, the 

determination that closure was necessary must satisfy the four

factors articulated in Waller. Those factors are "[1] the party 

seeking to close the hearing must advance an overriding interest 

that is likely to be prejudiced, [2] the closure must be no

broader than necessary to protect that interest, [3] the trial 

court must consider reasonable alternatives to closing the 

 

6 The defendant challenges only the complete closure during 

the time period when his family members were excluded from the 

court room.

7 The defendant's direct appeal was consolidated with his 

appeals from the orders denying his second and third motions for 

a new trial.
6

proceeding, and [4] it must make findings adequate to support 

the closure." Commonwealth v. Martin, 417 Mass. 187, 194 

(1994), quoting from Waller, 467 U.S. at 48.

Although the judge did make an effort to reach a reasonable 

solution to the logistical problem created by the large venire,

given the size of the court room in which she was sitting, the 

third factor was not met here. If it was not clear at the time 

of trial, the United States Supreme Court has made clear 

subsequently that the public trial right is sufficiently 

important that congestion alone cannot warrant closure of a 

court room unless the judge has examined reasonable alternatives 

that may be available, including dividing the jury venire in 

order to reduce congestion or moving to a larger court room if

one is available. Presley, 558 U.S. at 214 ("[T]rial courts are 

required to consider alternatives to closure even when they are 

not offered by the parties"). Indeed, the record must show that 

the public could not have been accommodated at trial by the use 

of such alternatives before a court room can be closed to the 

public altogether: "Trial courts are obligated to take every 

reasonable measure to accommodate public attendance at criminal 

trials. Nothing in the record shows that the trial court could 

not have accommodated the public at [the defendant's] trial. 

Without knowing the precise circumstances, some possibilities 

include . . . dividing the jury venire panel to reduce courtroom 
7

congestion." Id. at 215. See Owens, 483 F.3d at 62 ("[T]o our 

knowledge, a trial closure has not yet been justified on the 

basis of convenience to the court. . . . Given the strong 

interest that courts have in providing public access to trials,

the district court could have considered whether a larger 

courtroom was available for jury selection. If the closure 

. . . did occur, the court was obligated to consider this 

alternative"). Consequently, in the absence of any showing on 

the record that such alternatives could not have been utilized, 

the closure of the court room here violated the defendant's 

Sixth Amendment right to a public trial. 

The claim of error in this case was preserved. Under 

longstanding case law court room closure is a structural error 

in which, because of the difficulty of showing prejudice, it is 

presumed as a matter of law. Cohen (No. 1), 456 Mass. at 118-

119. Consequently, the judgment must be vacated. 

One other issue raised by the defendant may recur in a 

retrial. At trial, the defendant filed a motion to disclose 

evidence of the specific acts of violence of an individual who 

was not the victim for the purposes of showing that the 

individual was the first aggressor in the fight that led to the 

charges against the defendant. See Commonwealth v. Adjutant, 

443 Mass. 649, 664 (2005). The judge denied the motion. 

Although the parties failed to bring it to the attention of the 
8

trial judge, prior to trial the Supreme Judicial Court had 

decided Commonwealth v. Pring-Wilson, 448 Mass. 718, 737 (2007), 

which allows Adjutant evidence to be admitted in some 

circumstances with respect to an individual who was not the 

defendant's victim. Thus, although we express no opinion on the 

admissibility of any evidence the defendant might present, 

should the defendant again seek to introduce Adjutant evidence 

with respect to a nonvictim, the judge will be required to 

assess its admissibility under Pring-Wilson and any other

relevant case law in the first instance.

Judgment reversed.

Verdict set aside.
AGNES, J. (concurring). I write separately because 

although I agree that a new trial is required, the able and 

conscientious trial judge was needlessly placed in a difficult 

situation due to the timing of the defendant's objection. 

Although it is not our responsibility to write rules or standing 

orders for the trial court, I respectfully suggest that 

consideration be given to a rule or policy that imposes on 

counsel in all cases involving trial by jury a duty, whenever 

reasonably possible, to bring to the judge's attention prior to 

trial any concern counsel may have regarding access to the court

room by family members or friends of a party or the alleged 

victim, and any other members of the public, and that structures 

the judge's discretion with a framework for assessing the 

competing interests in a manner that will satisfy Federal and 

State law.1 

 

1 For example, under the current state of the law, there is 

no clear-cut rule about the minimum number of seats, if any, 

that must be available to members of the public during a trial 

to differentiate a complete closure of the court room from a 

partial closure. And there is no clear-cut rule about how to 

accommodate the interests of family members or friends of a 

party or an alleged victim, the media, or other members of the 

public in being present in the court room during the trial when 

sufficient seats for all are not available. This is not an 

isolated problem. Furthermore, the Supreme Judicial Court has 

acknowledged that "in court houses across the Commonwealth, 

insufficient space may well provide a valid reason for the 

exclusion of the public during at least some part of jury 

empanelment proceedings, because the number of prospective 

jurors in the venire are likely to fill all or almost all of the 

available seats. . . . It is not required that every seat not 
2

In this case, the record indicates that on the day the jury 

were empaneled, the judge conducted a hearing, in open court and 

before any jurors were brought to the court room, during which 

she reviewed with defense counsel and the prosecutor the 

schedule that would be followed, the list of witnesses, the 

nature of the questions that prospective jurors would be asked, 

and the manner in which challenges for cause and peremptory 

challenges would be handled. The judge informed counsel that 

she planned to empanel sixteen jurors. The judge concluded the 

hearing by asking counsel if there were any other issues 

regarding empanelment that needed to be addressed, and neither 

counsel responded. The record indicates that court recessed at 

10:00 A.M. and reconvened at 10:25 A.M. There is no indication 

in the record that during this interval defense counsel informed 

the judge that his client wished to have members of his family 

seated in the court room during empanelment. 

When court convened, the court room was filled with 

prospective jurors, and the defendant was placed at the bar for 

trial. See Commonwealth v. Elizondo, 428 Mass. 322, 325 (1998) 

("The defendant's trial began when he was placed at the bar for 

 

occupied by a prospective juror must be made available to the 

public; as noted, the possibility that jurors may be influenced 

or tainted by intermingling with spectators is a valid concern 

that may justify excluding members of the public until space 

permits them to sit apart from the prospective jurors." 

Commonwealth v. Cohen (No. 1), 456 Mass. 94, 114 (2010).
3

trial"). At this point, defense counsel informed the judge at 

sidebar that the defendant's family had been excluded from the 

court room and that he would like them to be present.2 The judge 

explained that there were ninety jurors in the venire, and that 

approximately eighty of them occupied every available seat in 

the court room while ten others were standing because no other 

seats were available. The judge also indicated that "as seats 

become available," the family members would be brought into the 

court room. The judge also noted that it would be necessary to 

separate family members from prospective jurors. Defense 

counsel objected. After the sixth juror was seated, the judge 

inquired whether defense counsel wanted the defendant's family 

in the court room. When counsel responded in the affirmative, 

the judge inquired of the court officer whether seats were 

available. The judge was informed that seats were not yet 

available.3 Defense counsel did not object again. 

A short time later, a court officer informed the judge that 

one of the court room benches was then available. The judge 

 

2 Defense counsel stated, "I know it's a logistical 

nightmare, but my guy's family was excluded from the courtroom. 

And I would like them present, if possible."

3 Although a number of prospective jurors had been excused 

by this point, it appears that some members of the venire had 

been seated in the jury box before empanelment began, and were 

moved to benches in the court room so jurors who were seated 

could be put in the box.
4

responded, "For the record, the defendant's family members are 

going to be seated in that bench right near the Court's bench." 

After three more prospective jurors were questioned, the judge 

noted, "[F]or the record, Mr. Lopes's family has all joined us 

on this bench near the Court's bench." The transcript indicates 

that the empanelment continued until sixteen jurors were seated. 

It was 12:35 P.M. The entire empanelment took slightly longer 

than two hours. The record does not indicate how much time 

elapsed from when empanelment commenced to when the defendant's 

family was admitted to the courtroom.4

In order to justify the complete closure of a court room at 

any stage of the trial, the "judge must make a case-specific 

determination that closure is necessary." Commonwealth v. Cohen

(No. 1), 456 Mass. 94, 107 (2010). The judge's determination 

that closure is necessary must satisfy the four requirements set 

forth in Waller v. Georgia, 467 U.S. 39, 47 (1984). See Cohen

 

4 The record does not permit us to determine that the 

closure was greater than the eighty-minute closure for the 

entire empanelment procedure that was deemed unjustified in 

Commonwealth v. Alebord, 467 Mass. 106, 111 (2014), and the 

seventy-nine-minute closure for the entire empanelment procedure 

that was deemed unjustified in Commonwealth v. Morganti, 467 

Mass. 96, 101 (2014). The record before us indicates that 

empanelment lasted from about 10:25 A.M. until 12:35 P.M. 

Sixteen jurors in total were seated. The defendant's family was 

seated in the court room after eight jurors had been seated and 

an additional thirty-two had been excused. After the family 

members were seated, another eight jurors were seated and an 

additional twelve jurors were excused.
5

(No. 1), supra. Here, the judge acted promptly once the issue 

was called to her attention. The judge was mindful of the need 

for the safety of all concerned and the importance of not 

exposing prospective jurors to any extraneous influences. While 

the judge proceeded in a manner that showed regard for the 

defendant's rights, the record does not indicate that she 

explored whether reasonable alternatives to a complete closure 

of the court room existed once the issue was brought to her 

attention. Unlike other issues where the burden of 

demonstrating prejudice rests with the appealing party, when 

there is an objection to a complete court room closure based on 

insufficient space, as in this case, the judge has an 

independent duty to consider reasonable alternatives to a 

complete closure. Waller, supra at 48. See, e.g., United 

States v. Cervantes, 706 F.3d 603, 612-613 (5th Cir. 2013) 

(partial closure; magistrate judge properly limited access to 

court room during empanelment to three members of each 

defendant's family). Furthermore, once space in the court room 

becomes available, the judge must make a particularized 

determination, supported by adequate subsidiary findings, that 

those who seek access are not prevented from doing so absent an 

overriding interest. And any closure order must not be broader 
6

than is reasonably necessary to accomplish its purpose. See 

Cohen (No. 1), supra at 113-114.5

In the present case, the record does not reveal that the 

judge explored alternatives to a complete closure such as 

returning some members of the venire to the jury pool in order 

to free up space in the court room, or moving the proceedings to 

another court room. Neither of these options may have been 

feasible in the circumstances, but no specific findings were 

made by the judge during the empanelment process or in her order 

denying the defendant's second motion for a new trial. 

 

5 It should be noted that the trial judge in this case did 

not have the benefit of the guidance set forth in Cohen (No. 1), 

supra at 111-116, when these events occurred.