2013 WL 609176 (Mass.App.Ct.)
Appeals Court Of Massachusetts.
COMMONWEALTH OF MASSACHUSETTS, Appellee,
v.
Bonrad SOK, Appellant.
No. 2011-P-2169.
February 4, 2013.
Essex County
On Appeal from Judgments of the Superior Court
Brief and Appendix for the Appellant
David Keighley, Esq., BBO # 632855, P.O. Box 783,
Fairhaven, MA 02719, (508) 992-7111, keighleyd@yahoo.com, For the Defendant, Bonrad Sok.
*i TABLE OF CONTENTS
ISSUES PRESENTED ... 1
Page 1
PARTIAL CLOSURE OF THE COURT ROOM
DURING SENTENCING AND THE OCCURRENCE OF A HEARING DETERMINING THE
BAIL STATUS OF TWO MATERIAL COMMONWEALTH WITNESSES, HELD IN THE ABSENCE OF THE DEFENDANT AND WITHOUT
HIS KNOWLEDGE, BECAUSE THE PARTIAL
CLOSURE AND THE BAIL HEARING VIOLATED
THE DEFENDANT'S PUBLIC TRIAL RIGHTS
AND A NEW TRIAL IS THE ONLY WAY TO
ASSURE THAT THE PRESUMED PREJUDICE
CAUSED BY THE ERRORS IS RECTIFIED. ... 33
CONCLUSION ... 42
CERTIFICATION OF COMPLIANCE ... 43
ADDENDUM ... 44
APPENDIX ... 63
*ii TABLE OF AUTHORITIES
STATEMENT OF THE CASE ... 1
STATEMENT OF FACTS ... 2
Cases
ARGUMENT ... 28
Commonwealth v. Abbott Engineering, Inc., 351
Mass. 568 (1967) ... 28
1. THE JUDGE'S JURY SEQUESTRATION ORDER WAS AN ABUSE OF DISCRETION REQUIRING A NEW TRIAL, BECAUSE THE DECISION TO SEQUESTER WAS MADE WILLFULLY
AND ARBITRARILY, CAUSED A RISK OF
SUBSTANTIAL PREJUDICE TO THE DEFENDANT AND CAME AT THE EXPENSE OF HIS
RIGHT TO A FAIR TRIAL. ... 28
Commonwealth v. Caldwell, 459 Mass. 271 (2011) ...
36-37, 40
Commonwealth v. Clark, 432 Mass. 1 (2000) ... 28
Commonwealth v. Cohen, 456 Mass. 94 (2010)
Commonwealth v. Cordle, 412 Mass. 172 (1992) ... 28
2. A NEW TRIAL IS THE APPROPRIATE REMEDY FOR THE STRUCTUAL ERRORS OF A
Commonwealth v. Demboski, 283 Mass. 32 (1933) ...
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2013 WL 609176 (Mass.App.Ct.)
Page 2
28, 32
Commonwealth v. Earltrop, 3727 Mass. 199 (1977) ...
29
Commonwealth v. Edward, 75 Mass. App. Ct. 162
(2009) ... 34, 37-38
Commonwealth v. Hobbs, 385 Mass. 863 (1982) ... 38
Commonwealth v. Lavoie, 80 Mass. App. Ct. 546
(2011) S.C. 464 Mass. 83 (2013) ... 36, 37 37
Commonwealth v. Marshall 373 Mass. 65 (1977) ... 28
Commonwealth v. McCaster, 46 Mass. App. Ct. 752
(1999) ... 29
United States v. Canady, 126 F.3d 352 (2nd Cir 1997)
... 40, 42
United States v. DeLuca, 137 F.3d 24 (1st Cir 1998) ...
34-35
Waller
v.
Georgia,
467
(1984)TAUBConstitutional Provisions
U.S.
39
Sixth Amendment, United States Constitution ... 33
Fourteenth Amendment, United States Constitution ...
33
Statutes
G. L. c. 265, § 1 ... 1
Commonwealth v. Reinstein, 381 Mass. 555 (1980) ...
29-30, 32
*iii Commonwealth v. Wolcott, 77 Mass. App. Ct. 457
(2010) ... 37
*iv Rules
Mass R. Crim P. 18 (a) (3) ... 38
Mass. R. Crim. P. 19 (b) ... 29
Owens v. United States, 517 F.Supp. 2d 570 (D. Mass.
2007) ... 41
Owens v. United States, 483 F.3d 48 (1st Cir 2007) ...
34, 36
Presley v. Georgia, 130 S.Ct. 721 (2010) ... 33, 36-38
Press-Enterprise v. Superior Court, 464 U.S. 501
(1984) ... 33, 37-38
Reinstein v. Superior Court Dept. of Trial Court of
Commonwealth, 661 F.2d 255 (1st Cir 1981) ... 30
United States v. Alcantara, 396 F.3d 189 (2nd Cir
2005) ... 40-42
Mass. R. Crim. P. 20 (e) ... 28
*1 ISSUES PRESENTED
1. WHETHER THE JUDGE'S JURY SEQUESTRATION ORDER WAS AN ABUSE OF DISCRETION REQUIRING AN NEW TRIAL,
WHERE THE DECISION TO SEQUESTER
WAS MADE WILLFULLY AND ARBITRARILY, CAUSED A RISK OF SUBSTANTIAL
PREJUDICE TO THE DEFENDANT AND
CAME AT THE EXPENSE OF HIS RIGHT TO A
FAIR TRIAL?
2. WHETHER A NEW TRIAL IS THE APPRO-
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 609176 (Mass.App.Ct.)
PRIATE REMEDY FOR THE STRUCTUAL ERRORS OF A PARTIAL CLOSURE OF THE COURT
ROOM DURING SENTENCING AND THE OCCURRENCE OF A HEARING DETERMINING
THE BAIL STATUS OF TWO MATERIAL
COMMONWEALTH WITNESSES, HELD IN THE
ABSENCE OF THE DEFENDANT AND WITHOUT HIS KNOWLEDGE, WHERE THE PARTIAL
CLOSURE AND THE BAIL HEARING VIOLATED
THE DEFENDANT'S PUBLIC TRIAL RIGHTS
AND A NEW TRIAL IS THE ONLY WAY TO
ASSURE THAT THE PRESUMED PREJUDICE
CAUSED BY THE ERRORS IS RECTIFIED?
STATEMENT OF THE CASE
On December 28, 2007, an Essex County grand jury
indicted Bonrad Sok for murder, in violation of G. L. c
265, § 1.[FN1] [R. 1, 7]. On April 27, 2009, Mr. Sok's
trial began before Lowy, J. [R. 10]. On April 28, 2009,
the court conducted a bail hearing regarding two material Commonwealth witnesses. [R. 10; Tr. 2/2-5].
FN1. Record references are as follows: Tr.
refers to the trial transcript by volume and
page number; R. refers to Mr. Sok's record
appendix.
On May 12, 2009, the jury convicted Mr. Sok of
second degree murder on a joint venture theory. [R. *2
11]. On May 13, 2009, the court imposed a life sentence and Mr. Sok noticed an appeal. [R. 11, 15].
On December 29, 2011, Mr. Sok's appeal entered the
Appeals Court. [R. 62]. On February 7, 2012, the court
granted Mr. Sok leave to file a new trial motion. [R.
62].
On April 27, 2012, Mr. Sok filed a new trial motion
with supporting memorandum and a motion for an
evidentiary hearing. [R. 13, 16-53]. On December 20,
2012, the trial judge held a non evidentiary hearing on
Page 3
the motion and afterward denied it.[FN2] [R. 13, 59-60].
FN2. At the December 20, 2012, hearing, Mr.
Sok abandoned the claim that members of the
public were excluded from the bail hearing.
On January 9, 2013, Mr. Sok appealed the denial of his
new trial motion. [R. 61]. On January 15, 2013, Mr.
Sok's appeals were consolidated without further record assembly. [R. 63].
STATEMENT OF FACTS
The Bail Hearing
On April 28, 2009, the day after jury selection began,
Mr. Sok, his trial counsel and prospective jurors were
not present in court. [Tr. 2/2]. However, the trial judge
conducted a bail hearing involving Terry Leng and
Kathleena Am, two material prosecution *3 witnesses
taken into custody after failing to appear under summons the prior day. [Tr. 2/3-5].
Responding to the court's inquiry as to what the witnesses' expected testimony would be, the prosecutor
stated that both of them had given recorded statements
to the police and testimony before the grand jury in
which they stated that they had heard Mr. Sok say, “I
shot someone, I think I shot him in the heart.” [Tr.
2/6]. Regarding Leng, the prosecutor said that Leng
had told the police that she would not testify and
would not come to court until arrested. [Tr. 2/7-8].
Regarding Am, the prosecutor said that two warrants
had been issued due to her failure to appear. [Tr. 2/8].
Then, after discussion concerning the witnesses'
backgrounds and alternatives to setting bail, the court
granted the prosecutor's request to hold each witness
on $10,000 cash. [Tr. 2/9-15].
The next day, before jury selection resumed, defense
counsel objected to what he considered to be the unconstitutional, ex parte nature of the bail hearing,
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2013 WL 609176 (Mass.App.Ct.)
stating that both Mr. Sok and his counsel had the right
to be present. [Tr. 3/6]. Defense counsel said he did
not know which witnesses were being held *4 and was
not privy to the bail hearing when it occurred, directly
impacting Mr. Sok's case. [Tr. 3/6].
In response, the court stated that Mr. Sok had no
standing on the issue and that something has to be
done when a material witness is picked up on bail. [Tr.
3/6-7]. Later that day, the prosecutor told the court that
one of the defendant's sisters had been arrested that
morning for leaving a recorded message on the telephone of one of the witnesses. [Tr. 3/121].
The Commonwealth's Case
Shortly after 4:00 P.M. on November 1, 2007, Christian Martinez and his girlfriend, Judy Choeun, went
for Asian food at the Golden Lake restaurant, located
on 38 Bennett Street in Lynn. [Tr. 4/28, 70-71].
Choeun testified that Martinez parked his car in front
and they went inside, sat at a table and ordered. [Tr.
4/73-75]. Later, Choeun saw a dark male (later identified as Maverick Tran) staring at her from a nearby
table where he sat with several others, including a girl.
[Tr. 4/76-79, 109, 129; 9/80], That table had been
empty when Choeun and Martinez arrived. [Tr.
4/110].
At that point, Choeun wanted to leave and on going
out with Martinez, heard someone say, “Yo” from *5
right behind. [Tr. 4/80-81]. Choeun and Martinez
continued out, followed by three males: Mr. Sok; one
with long hair (later identified as Vannarith Chhay);
and Tran. [Tr. 4/81-84; 9/80]. Outside, Mr. Sok asked
Martinez if he was a “Cuz,” meaning a Crypt[FN3] gang
member. [Tr. 4/84, 115]. When Martinez asked why,
Mr. Sok said nothing, but the three males tried to hit
Martinez. [Tr. 4/85-89].
FN3. There was testimony that Martinez was
a member of the Asian Streetwalkers, a Crypt
Page 4
gang, and that the Insane Gangster Bloods
were rivals. [Tr. 3/186-187; 4/115; 5/148,
150].
Then, Martinez ran inside, followed by the three males
and Choeun. [Tr. 4/90, 162]. Inside, Chhay held Martinez while Mr. Sok hit him and Tran just stood there.
[Tr. 4/90-92]. When Chhay let go of Martinez,
Choeun got between Mr. Sok and Martinez, preventing more hitting. [Tr. 4/92-93].
Martinez and Choeun went outside, followed by Mr.
Sok, Chhay and Tran. [Tr.4/94-95]. Everyone argued
and as Choeun stood next to Martinez, Mr. Sok
mumbled and nodded his head. [Tr. 4/95-96]. The
three males then walked away, stopped and talked
back and forth. [Tr. 4/97-98]. Choeun could not hear
what they were saying to Martinez, who spoke back.
[Tr. 4/98]. Then, *6 Choeun heard a big ring in her ear
and, as Martinez fell to the ground, he said that he had
been shot. [Tr. 4/98-99].
Afterward, Tran had his jaw open, as if in shock, while
Mr. Sok and Chhay ran, but Choeun never saw a gun
or who fired it, did not know what direction the shot
came from, never saw any weapon in Mr. Sok's hands
and never saw a fourth male with the other three that
night. [Tr. 4/100, 106, 144-145, 150, 163, 182].
Lifting Martinez's shirt, Choeun saw an abdominal
bullet wound, ran into the Golden Lake, asked
someone to call 911, and then returned to Martinez
before the ambulance took him away. [Tr. 4/101-102].
Martinez later died from the gunshot wound. [Tr.
6/141-147].
At around supper time that day, Rebecca Pen and her
brother went to eat at the Golden Lake. [Tr. 5/24-27].
Pen testified that, along the way, they encountered Mr.
Sok, a close friend, and Tran, who Pen did not know.
[Tr. 5/28-29]. All four went inside, sat at a table and
Pen saw a male and a female at another table. [Tr.
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2013 WL 609176 (Mass.App.Ct.)
5/31-36]. Later, Mr. Sok made a telephone call on
Pen's cell phone, but she did not hear his conversation.
[Tr. 5/34-36, 55].
*7 Afterward, Kevin Keo and Chhay arrived and sat at
an adjacent table; later, Keo, but not Chhay, joined
Pen at her table. [Tr. 5/38-43, 71-72]. Keo's right hand
was bandaged due to a recent, severe stabbing injury.
[Tr. 5/43-45, 76]. Later, the male and female at the
other table went outside, followed by Mr. Sok, Chhay
and Tran, but Keo remained inside. [Tr. 41-42, 73].
Mr. Sok, Chhay and Tran were outside briefly, but
they came back inside, bringing a fight with them. [Tr.
5/46, 48, 64]. Pen saw no punches thrown, but Keo fell
to the floor and everyone was ordered out. [Tr.
5/46-49, 60, 64]. Everyone in the fight went outside,
including Mr. Sok, Chhay, Tran and Keo. [Tr. 5/50,
60]. Next, Pen heard a female scream, but did not go
outside and Mr. Sok, Chhay, Tran or Keo did not come
back inside. [Tr. 5/50-52, 60]. Pen recalled no conversation between Mr. Sok, Chhay, Tran or Keo, none
between Mr. Sok and Keo at her table, and heard none
from outside. [Tr. 5/49, 74]. Pen saw no weapons and
recalled no reference to them. [Tr. 5/77].
At about 5:00 P.M. that day, as he worked on his truck
in his 69 Bennett Street yard close by the Golden
Lake, Donald Jaynes saw four people in their *8 late
teens or early twenties, running from Bennett Street.
[Tr. 5/83-86]. Jaynes testified that the four ran through
his yard and jumped a back fence. [Tr. 5/87-91].
At about the same time that day, as Philip Ragusa
finished work at his 47 Bennett Street auto repair
shop, three Asian males in their teens or early twenties
ran by him and through the next door yard. [Tr.
6/45-47]. Ragusa testified that he saw one of them
pass a black object to another in a hooded sweat shirt,
who put it in his back pocket. [Tr. 6/47-48]. Afterward, Ragusa saw another male running on the other
side of Bennett Street, but he did not get a good look at
Page 5
anyone's face. [Tr. 6/55, 57].
Late in the afternoon that day, Kathleena Am and her
friend, Terry Leng, were planning on going to a
community center known as Roca. [Tr. 4/190-193,
225]. But before going, Am drove to Leng's home,
located on the second floor of 80-82 Neptune Street in
Lynn. [Tr. 4/192-195]. There, Mr. Sok, Keo, Chhay,
Tran, Leng's aunt, Saki, and a girl, Soyanna, were
present. [Tr. 4/192-196-198, 204].
At some point, before going to Roca, Am gave Chhay
and Tran a ride home. [Tr. 4/203-204]. *9 Returning
to Neptune Street, Am invited Mr. Sok and Keo along
and then drove to Roca. [Tr. 4/204-205]. Leng rode up
front; in the back, from left to right, sat Soyanna, Mr.
Sok, Keo and Saki. [Tr. 4/205].
On the way, Am heard a male voice say that a crab (a
derogatory gang term for a Crypt) got shot and then,
from where Mr. Sok and Keo sat behind her, heard
someone say a Crypt had been shot and “Its 25 to life.”
[Tr. 4/206-208, 239, 242]. Later, everyone made the
return trip except Keo, who stayed behind. [Tr.
4/209-210]. Returning to Lynn, Am dropped Mr. Sok
off, later learning that Martinez had been shot. [Tr.
4/210-211].
Noting that Mr. Sok and Keo had similar voices, Am
admitted that when she first spoke to the police, she
said nothing attributable to anyone in the back seat.
[Tr. 4/211- 216]. Moreover, Am never saw a gun in
her car or on Neptune Street, did not know if someone
in the back seat said, “I shot him”, told that to the
police, and at no time that night did she know who
shot Martinez. [Tr. 4/238-240, 253]. However, due to
sustained police pressure, Am attributed the statements, “Its 25 to life” and “Put it on me” to Mr. Sok.
[Tr. 4/245-252].
*10 Leng testified that when she returned home with
Am on the evening of the shooting, her friend,
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2013 WL 609176 (Mass.App.Ct.)
Soyanna was present, as well as Mr. Sok, Keo, Tran,
who were also present, talking in Cambodian. [Tr.
4/264-274]. Leng recalled that she went to Roca with
Am, but did not remember anyone else being in the
car, otherwise had no memory of November 1, 2007,
or of her grand jury testimony, and the transcript of it,
when shown to her at trial, did not refresh her
memory. [Tr. 4/268-280]. At this juncture, the prosecutor told the court that he wished to read Leng's
grand jury testimony to the jury and the court marked
it for identification. [Tr. 4/289].
The next day, after discussion with the parties, the
court marked the transcript of Leng's police interview
for identification and conducted a voir dire to determine whether she was feigning a lack of memory. [Tr.
5/5-15, 217-263].]. On the next day of trial, finding
Leng's lack of memory feigned, the court ruled that it
would admit her grand jury testimony substantively.
[Tr. 6/14-18]. When Leng's testimony resumed, over
Mr. Sok's objection, the prosecutor read her grand jury
testimony to the jury. [Tr. 6/95].
*11 Leng told the grand jury that when she came home
at about 5:00 P.M. on November 1, 2007, Mr. Sok,
Keo, Chhay and Tran were in a room, all talking at
once. [Tr. 6/102-107]. One of them, not Chhay or
Tran, said he shot someone. [Tr. 6/105-108]. Leng
also told the grand jury that, after giving Chhay and
Tran a ride home, Mr. Sok and Keo accompanied them
to Roca in Am's car. [Tr. 6/108-112]. Am drove and
Leng rode up front; in back, left to right, sat Soyanna,
Mr. Sok, Keo and Saki. [Tr. 6/112-]. Leng heard Mr.
Sok say, “I shot somebody, I shot somebody, put the
blame on me.” [Tr. 6/114]. Leng told the grand jury
that Keo stayed behind at Roca, but Mr. Sok came
with them and got dropped off in Lynn. [Tr. 6/116].
Leng recalled at trial that Mr. Sok, Chhay, Tan and
Keo were gang members, but did not know if Mr. Sok
or Keo said, “I shot him” and did not remember her
grand jury testimony. [Tr. 6/128-132]. Moreover, the
police had threatened Leng with prosecution, she did
Page 6
not know why she named Mr. Sok as the shooter and,
as between Mr. Sok and Keo, who had similar voices,
did not care to whom she attributed the statement, “I
shot him.” [Tr. 6/134-135, 166-167, 176]. When Leng
named Mr. Sok, the police said, “You're there” which
she *12 understood to mean that the police, who had
gotten nasty, would stop bothering her. [Tr.
6/169-170].
The police found a .22 caliber shell casing at the
scene, but a search of the immediate area and of the
area leading to and including the second floor of 83
Neptune Street produced no gun. [Tr. 4/27-59;
5/128-131; 9/33]. Additionally, the police found
gunshot residue on Martinez's shirt, but no forensic
evidence linked Mr. Sok or any other suspect (Chhay,
Tran and Keo) to the shooting. [Tr. 5/99-113; 6/65-.
75]. A search of Mr. Sok's home produced no weapons
or ammunition, but, in searching Keo's bedroom at his
home, the police found gang related papers, a box of
.22 caliber ammunition and a loaded nine millimeter
hand gun. [Tr. 5/92-97, 136-137, 158-176, 208].
Lynn police lieutenant Michael Vail testified that he
knew Mr. Sok and that the number 972 was tattooed
on his right inner wrist. [Tr. 5/144-151]. Over objection, Lieutenant Vail testified that 972 denoted Insane
Gangster Bloods or IGB, explaining that the letter I is
the ninth letter of the alphabet, G is letter seven and B
is letter two. [Tr. 5/157].
Lieutenant Vail had been to Keo's home to investigate
gang activities, had kept a record of him *13 being
stabbed by a machete about six weeks before Martinez's death and had spoken to him about the stabbing. [Tr. 5/190-196]. However, over Mr. Sok's objection, Lieutenant Vail was not permitted to opine
about what group attacked Keo or say whether Keo
identified the group, or if the lieutenant's personal
records of gang related stabbings and shootings contained Keo's name. [Tr. 5/195-201].
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2013 WL 609176 (Mass.App.Ct.)
The Defendant's Case
Called as a defense witness, state trooper Anthony
Schena testified that he conducted two interviews with
Chhay. [Tr. 7/3-5; 8/50]. During the interviews,
Chhay wrote notes, in the first one writing, “Kevin
Keo” and “Bonrad Sok.” [Tr. 7/8-10]. In addition,
Chhay wrote: “There was a fourth person with us”;
“Maverick”; and “The dude that was there when they
jumped Kevin is here”. [Tr. 8/41-43]. Chhay also drew
a picture of a small pistol and later wrote: “His room”;
“Want to keep it low”; and words he attributed to
“KK”, “BS”, and “M.” [Tr. 8/43-45].
To “KK”, Chhay attributed, “Yo, keep it on the low”
and “He was crying for his babe. He was bleeding”;
To “BS”, Chhay attributed, “Yo, we got him good,
yeah and crying on the floor. Got in hits”; to *14
Maverick, Chhay attributed, “Yo, we got him good”;
and to himself, Chhay attributed, “Yo, try to get me a
ride home”. [Tr. 8/45]. Moreover, Chhay said that Keo
had the gun on Neptune Street and there handed it to
Mr. Sok. [Tr. 8/46; 9/32]. Chhay then wrote, “He
didn't know he would.” [Tr. 8/47].
During the second interview, Chhay attributed to Mr.
Sok, “Yo, that's the dude right there” and “Yeah, we're
gonna get him”; To Keo, Chhay attributed, “Do it
outside, not inside” and “Yo, I've got the blammer”;
and to himself attributed, “All right.” [Tr. 8/54-56].
Chhay said that Keo claimed to be the only one with
the balls to do what he did, that Keo brought the gun to
the Golden Lake and that he saw Keo hand it to Mr.
Sok on Neptune Street. [Tr. 8/61-63]. Also, Chhay
spoke of a telephone call from Mr. Sok, in which Mr.
Sok said he recognized a Crypt who was present when
Keo got chopped. [Tr. 9/26].
Chhay told Trooper Schena that, sitting at the table
inside the Golden Lake, Mr. Sok said, “Yo, that's the
dude, right there. Yeah, we're gonna get him.” [Tr.
Page 7
9/27-28]. Chhay said that he, Mr. Sok and Maverick
followed Martinez and Choeun out, while Keo *15
stayed inside; after being spit on by Martinez outside,
Mr. Sok hit him and the fight went inside. [Tr. 9/30].
Later, everyone but Chhay went back out and, after he
heard a shot, he went out and saw Martinez on the
ground. [Tr. 9/31-32]. Then, Chhay followed Mr. Sok,
Keo and Tran as they ran and all four ended up at 83
Neptune Street. [Tr. 9/32]. There, Keo gave the gun to
Mr. Sok, who left. [Tr. 9/33].
Lynn police officer Peter Panacopoulous testified that
in 2005, he investigated an assault upon a Crypt. [Tr.
9/55-58]. According to Officer Panacopoulous, Keo
said that he had problems with that Crypt and, on
approaching a car, saw the Crypt inside, got scared,
pulled out a box cutter, and then kicked out the car
window. [Tr. 9/57-58].
Called as a defense witness, Lieutenant Vail testified
that he had been to Keo's home for broken windows
and bullets shot into it. [Tr. 9/60-65]. Keo believed the
Crypts were responsible. [Tr. 9/64-65]. However, over
a defense objection, the court would not allow Lieutenant Vail to detail the nature of Keo's activities
against the Crypts. [Tr. 9/65].
Lastly, Choeun testified that Mr. Sok and a dark, unidentified male were with Chhay outside the Golden
*16 Lake. [Tr. 9/84, 98]. Choeun did not see Keo that
-night and could not recall if Tran was present, but the
same three males were outside both times. [Tr.
9/83-84, 95].
The Excusal of Two Jurors
Out of fourteen seated jurors, two were dismissed. [Tr.
3/150; 9/74; 11/68]. Regarding the first juror's dismissal, on May 7, when the court asked the jury if they
had any problems following its instructions overnight,
juror 13 raised his hand and on inquiry said that he was
© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
2013 WL 609176 (Mass.App.Ct.)
very fearful for his wife. [Tr. 9/19-20]. Juror 13 said
that he had told his wife the previous evening that he
was seated on this case and that, in addition to her
being fearful of his involvement, as a school teacher,
she was scared by the prevalence of gangs in the
school neighborhood. [Tr. 9/20-21]. The court deferred further inquiry. [Tr. 9/21].
Later that same day, responding to the court's inquiry,
juror 13 said that he could not be fair and impartial
because his wife's fear made him unwilling to participate in a decision that could hurt her well-being. [Tr.
9/69-71]. Juror 13 said that concern for his wife and
for any retribution resulting from a *17 guilty verdict
would affect his ability to fairly decide the case. [Tr.
9/71]. After ascertaining that juror 13 had not discussed the matter with the other jurors, the court excused him over a defense objection and trial continued. [Tr. 9/74].
The antecedents for the second juror's dismissal began
on May 4, when, in response to the court's inquiry
regarding jury duty, juror 8 recounted an incident that
had occurred 3-4 years before trial. [Tr. 6/32-35].
Juror 8 said that he had told a group of Asians males
gathered in front of his home that they would have to
move and afterward a police officer told him that Mr.
Sok, a blood gang member, was one of the males. [Tr.
6/36-37]. Shortly after, juror 8 had felt uneasy when a
group of Asians in a car honked the horn and made
gestures at him. [Tr. 6/37-38]. Juror 8 told the court
that he did not know who the Asians were, but did not
wonder about whether the name of a person he saw
that night had come up at trial or that he could remain
fair and impartial. [Tr. 6/41]. The court deferred further inquiry. [Tr. 6/39-43; 7/12; 8/81-101].
On May 7, after Keo, Chhay and Tran were brought
into the courtroom for Choeun to identify, the court
*18 asked juror 8 if he recognized Mr. Sok or any of
the men brought in. [Tr. 9/104]. Juror 8 could not say
that any of the four were present, but said the incident
would not influence how he judged the evidence. At
Page 8
that point, juror 8 remained. [Tr. 9/104-109].
On May 11, jury deliberations began. [Tr. 10/111].
But, when the jury returned for deliberations the next
day, juror 8 refused to deliberate. [Tr. 11/36-43]. At
once, the court stopped deliberations, sent the jury out
and instructed juror 8 to say nothing about his refusal.
[Tr. 11/38-39].
Later, responding to the court's inquiry, juror 8 said
that he felt uneasy, had seen Keo more than once in
front of his house and may have seen Tran, but was not
sure about Mr. Sok. [Tr. 11/47-52]. Juror 8 said that
incidents happen frequently and he was now worried
that they would effect his impartiality because he was
afraid something would happen, knowing that there
were more people around. [Tr. 11/52-55].
Then, juror 8 said he could be impartial, but admitted
telling the court officer that he felt uneasy about repercussions and said that people know him. *19 [Tr.
11/56-59]. Continuing, juror 8 referred to his wife
calling the police for scuffles outside and to her
overhearing “them” talking about killing someone.
[Tr. 11/59-61]. Juror 8 said he was bothered by what
his wife heard, but said that he could decide the case
on the evidence. [Tr. 11/62-63]. Nevertheless, after
directing juror 8 not to discuss the matter with the
other jurors, at the request of the defense and with no
Commonwealth objection, the court excused him. [Tr.
11/65-68].
Sequestration Order And Security Desk
After the excusal of juror 8, the court seated the last
alternate juror, instructed the jury to begin deliberations anew at a pace that was up to them, said that it
would consider a request to stay late and order dinner,
if appropriate, and then sent the jury out to deliberate.
[Tr. 11/72-74]. During recess, the court told the parties
that if the jury had not reached a verdict by 3:45 P.M,
the court would order dinner for the jury so that they
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2013 WL 609176 (Mass.App.Ct.)
would be there until about 6:00 P.M. and that, if the
jury did not reach a verdict by 8:00 P.M., the court
would sequester them. [Tr. 11/75].
*20 Also, the court announced that, if necessary, a
desk would be placed outside the courtroom the next
day and anyone except staff or bar members coming in
would have to provide identification and sign in and
out. [Tr. 11/76]. At this point, the following exchange
occurred between the court and defense counsel:
DEFENSE COUNSEL: I don't understand why you
would have the desk. It suggests, ah, some kind of
chilling effect on those who want to attend. This is a
public trial. It wasn't done during the days when we
started this trial up to now. I don't know why it should
be done now, or what the change in circumstances are.
I note that the only thing that has happened today is the
jurors have asked some questions and one juror has
expressed some kind of prior recountance that resulted
in our asking that he leave although he felt he could be
fair and impartial.
I know of nothing else that has happened that would
cause that and I certainly object to it.
On the contrary, I think it works adversely to the client. It suggests that there is something special about
him. The juror will see the desk and note that it's different.
THE COURT: They won't see the desk.
DEFENSE COUNSEL: Well, when you say “out
front,” do you mean out front -.
THE COURT: It wouldn't be there when they came in
and out.
DEFENSE COUNSEL: I'm sorry?
Page 9
THE COURT: It would be right outside the courtroom, staffed by a staff member. They, they *21 won't,
the jurors wouldn't see it when, see it when they came
down.
DEFENSE COUNSEL: Well, I don't know of any
reason for it and I don't know of any reason for the
special treatment.
I also THE COURT: Well, the reason, the reasons are that
the first juror who - we're down to 12 jurors in this
murder case and one juror was released when expressing fear or inability to deliberate. And the other
juror today - although that was not the reason for the
juror being excused - expressed, on a number of occasions, concerns, if not for himself, concerns as far as
being a good juror.
So, those are the reasons, but your objection is noted.
That's what we're doing, and your objection is noted.”
[Tr. 11/77-78].
Moreover, defense counsel objected to the sequestration order, arguing that it: suggested that Mr. Sok was
a dangerous person; pressured the jury, causing them
to feel rushed and to wonder why, if the pace of deliberations was up to them, they were being sequestered; was unnecessary and lacked foundation because
the fears that jurors 8 and 13 expressed concerned only
the notion of gangs, but had nothing to do with Mr.
Sok, Keo or the trial, and nothing suggested that any
juror feared anyone in the courtroom. [Tr. 11/79-81].
When the jury returned, the court told them that there
was no time limit on deliberations, the pace of *22
which was entirely up to them and that they should not
feel pressed at any point in time or deliberations. [Tr.
11/82]. But then the court told the jury that sequestration was necessary and if there was no verdict by 8:00
P.M., a hotel had been secured for them. [Tr.
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2013 WL 609176 (Mass.App.Ct.)
11/82-83]. At sidebar, defense counsel stated that
when the court told the jury they might stay overnight,
juror 9 shook her head in the negative, apparently
distressed. [Tr. 11/85]. Defense counsel also objected
to the court's statement that sequestration was necessary, but the court replied that Rule 20 permitted it.
[Tr. 11/85]. Then, the jury resumed deliberations. [Tr.
11/86].
Later, after the jury returned its guilty verdict, defense
counsel asked to put on the record exactly what happened from the moment the court told the jury that
they would be sequestered for the night. [Tr. 11/87,
93-94]. Noting that it was then 5:05 P.M., the court
deferred defense counsel's requested record remarks to
sentencing the next day. [Tr. 11/94].
On May 13, the sentencing day, defense counsel stated
for the record that the jury began deliberations on May
11 at 12.22 P. M. and were sent home for the day at
about 4:00 P.M. [Tr. 12/4]. At *23 about 12:00 P.M.
on May 12, the court ordered the jury to cease deliberations due to the juror 8 matter, giving the originally
constituted jury about five hours of deliberations. [Tr.
12/4-5]. At about 2.20 P.M., the reconstituted jury
began deliberations anew, which continued until 3:00
P.M., when court reconvened, and then, at 4:05 P.M.,
the court told the jury about dinner, deliberating until
at least 8:00 P.M. and the hotel. [Tr. 12/5]. Moreover,
defense counsel referred to the 3:50 P.M. jury note
(“J” for identification) stating that they were making
progress and the 4:13 P.M., second jury note (“K” for
identification) which read, “We are making substantial progress and do not anticipate the need for dinner
or hotel. We need 30 to 60 minutes.” [Tr. 12/6].
Pointing out the disparity in length of deliberations
between the originally constituted jury (about 5 hours)
and the reconstituted jury (about 2 hours, 20 minutes),
defense counsel asserted a rush to judgment and objected again to the sequestration order. [Tr. 12/7].
Finally, before imposing sentence, the court asked the
prosecutor to address the matter involving the arrest of
Page 10
one of Mr. Sok's sisters, even thought the court noted
that it had not come up during the *24 trial other than
as an aside. [Tr. 12/18-19]. The prosecutor stated that
one of the Commonwealth's witnesses, who did not
testify, did not show up for day one of trial because
she had received a telephone call from Mr. Sok's sister, telling her not to go to court. [Tr. 12/19]. After
being contacted by the prosecution, the witness came
to court and on that occasion, the defendant's sister
also was present in court sitting with several others.
[Tr. 12/19]. While waiting to be recognized, the witness received a message on her cell phone from the
defendant's sister stating essentially, “I know you're in
court. I know where you live. I'm going to catch you.”
[Tr. 12/19]. Concerned for her safety, the witness
alerted the prosecution, Mr. Sok's sister was arrested,
and when spoken to, supposedly admitted to making
the calls to intimidate the witness. [Tr. 12/19]. The
prosecutor added that Mr. Sok's sister was currently in
custody, facing prosecution. [Tr. 12/19].
Facts Proposed In New Trial Motion.
Based on the affidavits accompanying his new trial
motion, Mr. Sok proposed the following factual
findings, which were unopposed by the Commonwealth. [R. 54-58]. Sakkounn Hem, Mr. Sok's cousin,
attended *25 Mr. Sok's trial every day. On May 13,
2009, the day of sentencing, Ms. Hem was present
outside the courthouse, but did not enter the building.
[R. 25].
On May 13, 2009, the day of Mr. Sok's sentencing,
trial defense counsel saw a security desk manned by a
court officer located at the entrance to the court room
where Mr. Sok's trial was held. Counsel saw a person
showing something to the court officer in front of the
desk and counsel spoke to the officer about the kinds
of identification he sought before permitting admission to the court room. [R. 18-19].
One of Mr. Sok's sisters, Monica Sok, attended the
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2013 WL 609176 (Mass.App.Ct.)
trial nearly every day, sitting in the back of the court
room in the middle of the row. On May 13, 2009, Ms.
Sok arrived at the courthouse around 8:00 A.M. and,
on approaching the court room where the trial was
being held, a thin, white, male court officer, who had
been inside the court room during the trial, told her
that she could not go inside. At that moment, a second
court officer came out of the court room to explain
why Ms. Sok could not enter, but Ms. Sok did not hear
the explanation. Ms. Sok possessed a MA identification card that day, but the court officer did not ask her
to show it in order to enter the court *26 room. After
being refused entry, Ms. Sok waited out in the hallway
with other family members until the sentencing hearing ended. [R. 20].
Kenneth Keo, a brother of codefendant Kevin Keo,
attended Mr. Sok's trial every day, sitting in the back
and to the left in the downstairs court room. On May
13, 2009, Mr. Keo arrived at the courthouse at about
9:00 A.M and entered the building. At the metal detector, a security person wearing black pants and a
white shirt told Mr. Keo that he could not enter the
court room without first showing a MA photographic
identification. Possessing his photographic school
identification, Mr. Keo showed it to the security person, but it was not accepted and he was not allowed
into the court room. [R. 21].
As a friend of Mr. Sok, Malina Mon attended his trial
on a few days. On May 13, 2009, Ms. Mon arrived at
the courthouse around 8:30 A.M. and after entering
passed through the metal detector and approached the
door of the court room where the trial was being held.
At the court room entrance, Ms. Mon saw some people
near a desk, including a court officer and a uniformed
security person. The court officer told Ms. Mon that
she needed to show a photographic identification *27
before entering the court room and that if she did not
have one, she would not be allowed in. That day, Ms.
Mon did not possess a photographic identification and
thus was not allowed into the court room. [R. 22].
Page 11
Phalna Heang, another friend of Mr. Sok, attended the
trial on a few days. On May 13, 2009, Ms. Heang
attended the trial and on entering the courthouse,
passed through the metal detector without being asked
to show a MA driver's license. However, on approaching the door of the court room in which Mr.
Sok's trial was ongoing, a security person or police
officer told Ms. Heang that she needed to show a
driver's license before she would be allowed into the
court room. After showing her MA license, Ms. Heang
was allowed into the courtroom. [R. 23].
Rebecca Pen testified as a prosecution witness at Mr.
Sok's trial. On May 13, 2009, Ms. Pen attended the
trial and on approaching the door of the court room in
which the trial was ongoing, a person wearing a uniform told her that she needed to show a photographic
identification before she would be allowed into the
court room. After showing the person in uniform her
photographic identification, Ms. Pen was allowed into
the court room. [R. 24].
28ARGUMENT
1. THE JUDGE'S JURY SEQUESTRATION
ORDER WAS AN ABUSE OF DISCRETION
REQUIRING A NEW TRIAL, BECAUSE THE
DECISION TO SEQUESTER WAS MADE
WILLFULLY AND ARBITRARILY, CAUSED A
RISK OF SUBSTANTIAL PREJUDICE TO THE
DEFENDANT AND CAME AT THE EXPENSE
OF HIS RIGHT TO A FAIR TRIAL.
The decision to sequester a jury is left to the trial
judge's sound discretion. Commonwealth v. Clark, 432
Mass. 1, 10 (2000) citing Commonwealth v. Cordle,
412 Mass. 172, 179 (1992); Mass R. Crim. P. 20 (e).
Moreover, the judge may consider but is not obliged to
accept or require proof of any reason a party offers for
sequestration, Commonwealth v. Marshall, 373 Mass.
65, 69 (1977), and also may order sequestration
without stating a reason. Commonwealth v. Abbott
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2013 WL 609176 (Mass.App.Ct.)
Engineering, Inc., 351 Mass. 568, 572 (1967). But,
just like other discretionary exercises, the judge's
decision to sequester the jury may not be made willfully or arbitrarily to the prejudice of a party. Commonwealth v. Demboski, 283 Mass. 315, 320 (1933).
In this case, other than to say that it was necessary and
permissible, the judge gave no reason for the sequestration order. [Tr. 11/82-85]. But doubtless, the judge
must have considered it necessary because, with no
alternate jurors remaining, the loss *29 of another
juror may have triggered a mistrial. [Tr. 6/32-41;
9/19-21, 69-74; 11/47-68, 72-85]. See Mass. R. Crim.
P. 19 (b) (once jeopardy attaches, trial by less than full
jury may only occur with defendant's signed consent);
Commonwealth v. McCaster, 46 Mass. App. Ct. 752
(1999) (defendant's valid waiver of full jury obviates
mistrial where less than twelve juror remain). Nevertheless, the specter of a mistrial may never trump the
fundamental right to a fair trial. Commonwealth v.
Earltrop, 372 Mass. 199, 206 (1977).
The case of Commonwealth v. Reinstein, 381 Mass.
555 (1980) best illustrates the problem with the
judge's sequestration order. There, during the trial, the
judge became aware of certain case related publicity
that, in the judge's view, could potentially come to the
jury's attention if they were not sequestered. Reinstein,
381 Mass. at 557-558. Electing to declare a mistrial
rather than sequester the jury at that point in the trial,
the judge reasoned that: the jury had been seated
without a mention of possible sequestration; most
important, the jury would have been angry at the party
they held responsible; certain voir dire questions and
other case related circumstances made it highly likely
the *30 jury would hold the defendant responsible;
and sequestration presented a substantial risk of
prejudice to the defendant. Reinstein, 381 Mass. at
559. Upholding the mistrial judgment, the court validated the judge's reasons for not sequestering the jury.
Reinstein, 381 Mass. at 561-562. Accord, Reinstein v.
Superior Court Dept. of Trial Court of Commonwealth, 661 F.2d 255 (1st Cir. 1981)
Page 12
Here, the reasons militating against jury sequestration
are essentially no different than those addressed in
Reinstein. First, until the judge suddenly broached it,
there was no mention of even a possibility of sequestration. [Tr. 1/39-50; 3/32-41]. Second, in all likelihood the jury would have been frustrated, even angered, over being forced to stay overnight in a hotel, as
a group sharing juror No. 9's displeasure or disdain
over the sudden prospect of it. [Tr. 11/85].
Third, the voir dire question concerning gang evidence, the appearance of gang members in the courtroom (Keo, Tran and Chhay) and the unexplained
dismissal of two jurors, considered in sequence, raised
a palpable risk that the jury understood the sequestration order as a culminating measure designed *31 to
protect them from Mr. Sok, an undisputed gang
member. [Tr. 1/62-64; 5/144-151, 157; 9/74, 102-104;
11/65-68]. Indeed, defense counsel objected to sequestration on the specific ground that it branded Mr.
Sok as dangerous and even the judge recognized that
gang related fear had impacted the jury. [Tr.
11/77-78]. In short, the jury could not help but blame
Mr. Sok for the sequestration order.
Fourth, the sequestration order caused a substantial
risk of prejudice to Mr. Sok. As noted above, it
branded him as dangerous and likely made him the
focal point of any preexisting or nascent gang related
fears felt by any of the remaining, original jurors.
Also, the jury must have been confused by the inherent contradiction of the order; the pace of deliberations
supposedly was up to them and they should not feel
pressed at any point in time or deliberations; yet, they
were immediately told that if there was no verdict by a
time certain, 8:00 P.M., they would be required to
spend the night in a hotel. [Tr. 11/82-83].
Furthermore, the sequestration order pressured the
jury to return a verdict: At about 2:20 P.M., the reconstituted jury began deliberations knowing only *32
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2013 WL 609176 (Mass.App.Ct.)
that, if they so chose, they could stay late and dinner
would be provided; by 3:50 P.M., the jury reported
progress; despite that progress, at 4:05 P.M., the court
introduced the specter of sequestration; at 4:13 P.M.,
the jury reported they needed 30-60 minutes and neither dinner nor a hotel would be necessary. [Tr.
11/73-74; 12/5-6].
The foregoing time line shows that when the court told
the reconstituted jury about dinner and the hotel, they
were already working toward a verdict. Less than ten
minutes later, the jury reported that they would reach a
verdict within the hour and that dinner and the hotel
were not necessary. [Tr. 12/6]. In these circumstances,
by ordering sequestration at a time when there was no
real need to do so, the judge acted willfully and arbitrarily, substantially prejudicing Mr. Sok. Demboski,
283 Mass. at 320.
In short, the risk is just too great to ignore that the
sequestration order goaded or spurred the jury on to a
verdict, one not returned at their pace, but at a pace
dictated by the judge. Stated differently, the danger is
great that the threat of sequestration operated as a
deadline for deliberations. Based on the authority of
the Reinstein case, this *33 court should consider the
sequestration order in this case reversible error and
award Mr. Sok a new trial.
2. A NEW TRIAL IS THE APPROPRIATE
REMEDY FOR THE STRUCTUAL ERRORS OF
A PARTIAL CLOSURE OF THE COURT
ROOM DURING SENTENCING AND THE
OCCURRENCE OF A HEARING DETERMINING THE BAIL STATUS OF TWO MATERIAL
COMMONWEALTH WITNESSES, HELD IN
THE ABSENCE OF THE DEFENDANT AND
WITHOUT HIS KNOWLEDGE, BECAUSE THE
PARTIAL CLOSURE AND THE BAIL HEARING VIOLATED THE DEFENDANT'S PUBLIC
TRIAL RIGHTS AND A NEW TRIAL IS THE
ONLY WAY TO ASSURE THAT THE PRESUMED PREJUDICE CAUSED BY THE ER-
Page 13
RORS IS RECTIFIED.
The Sixth Amendment to the United States Constitution, made binding on the States by the Due Process
Clause of the Fourteenth Amendment, assures a defendant that the public will have access to the court
room during every stage of a criminal trial. Presley v.
Georgia, 130 S.Ct. 721, 722-725 (2010); Commonwealth v. Cohen, 456 Mass. 94, 106-107 (2010). Insuring that established procedures are followed and
deviations will become known, a presumptively open
court room enhances the basic fairness of a trial and
public confidence in its fairness. Press-Enterprise v.
Superior Court, 464 U.S. 501, 503-513 (1984); Cohen,
456 Mass. at 107. Thus, the trial court must take every
reasonable measure to accommodate public attendance at criminal trials. *34Presley, 130 S.Ct. at 725.
Moreover, a failure to hold a public trial constitutes
structural error, where prejudice is presumed because
the precise consequences are indeterminate and impossible to measure or prove. Waller v. Georgia, 467
U.S. 39, 49 & n. 9 (1984); Owen v. United States, 483
F.3d 48, 64-66 (1st Cir. 2007); Cohen, 456 Mass. at
105; Commonwealth v. Edward, 75 Mass. App. Ct.
162, 173 (2009).
The public trial right, however, is not absolute and in
limited circumstances a court may bar the public from
certain portions of a trial. Waller, 467 U.S. at 45;
Cohen, 456 Mass. at 107. To justify a full closure,
each of four factors must be met: (1) 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; and (4) the court must make findings
adequate to support the closure. Waller, 467 U.S. at
48; Cohen, 456 Mass. at 107.
In a partial closure case, the first Waller factor is less
stringent, so that a substantial reason, rather than an
overriding interest, must justify the closure. Cohen,
456 Mass. at 111; United States v. DeLuca, 137 F.3d
24, 33-34 (1st Cir. 1998). Moreover, *35 in the partial
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2013 WL 609176 (Mass.App.Ct.)
closure context, if the trial judge makes no formal or
express finding, the reviewing court may examine the
record for sufficient support for the closure. Cohen,
456 Mass. at 115-116. The defendant has the burden to
show that the public was excluded from the trial.
Cohen, 456 Mass. at 107.
Here, the partial closure at sentencing met none of the
four Waller factors. First, on the day of sentencing, the
jury had already concluded its service and thus, the
closure could not possibly advance the court's expressed interest in keeping it intact. [Tr. 11/77-78].
Compare Waller, 467 U.S. at 48 (whose privacy interests and how they might be protected by closure not
specified). Contrast DeLuca, 137 F.3d at 32-36 (substantial reason existed to screen spectators for court
room entry, advancing legitimate security interest);
Cohen, 456 Mass. at 111-112 (substantial reason for
partial closure could exist due to lack of space to accommodate public in view of number of prospective
jurors in court room). Moreover, if the security desk
was actually intended to keep the court room orderly
on the sentencing day, rather than to effectuate the
court's concern for the departed jury, no substantial
reason exists on the record to justify *36 it. Contrast
Commonwealth v. Caldwell, 459 Mass. 271, 283
(2011) (substantial reason to remove spectators from
court room where they threatened bodily harm to court
officer). On this point, the arrest of one of Mr. Sok's
sisters had proved a mere footnote to the trial and the
court implicitly considered her arrest as having no
impact on it. [Tr. 12/18-19]. Cf. Presley, 130 S.Ct. at
725 (safety concerns could in some circumstances
justify closure).
Second, the closure was broader than necessary because, as designed, it excluded any peaceable spectator, including family members and friends of both the
victim and Mr. Sok who attended the trial daily, but
were not carrying identification on the sentencing day.
In addition, the closure did not restrict any potentially
troublesome spectator who showed identification. In
short, the closure did nothing to advance the substan-
Page 14
tial interest in an orderly court room. Compare Waller,
467 U.S. at 48-49 (closure far more extensive than
necessary); Owen, 483 F. 3d at 62 (once prospective
jurors left court room, the reason for closure dissipated); Cohen, 456 Mass. at 113-115 (spectators
turned away even as court room' seats became available); *37Commonwealth v. Lavoie, 80 Mass. App.
Ct. 546, 552 (2011), S.C., 464 Mass. 83 (2013)
(same). Contrast DeLuca, 137 F.3d at 32-35 (defendants directly associated with prior efforts to undermine fair factfinding, possessed means and motive
to sponsor similar efforts at trial, and spectator
screening was reasonably designed and so operated to
have desired effect); Caldwell, 459 Mass. at 283
(closure not overbroad where only threatening spectators barred).
Third, the court did not consider reasonable alternatives to closure, such as continuing the routine security
measures that had produced an orderly trial, coupled
perhaps with a prophylactic warning from the bench at
the outset of the sentencing hearing. Standing alone,
the failure to consider reasonable alternatives violated
the public trial right. Presley, 130 S.Ct. at 725;
Commonwealth v. Wolcott, 77 Mass. App. Ct. 457,
465 (2010). See Waller, 467 U.S. at 48 (reasonable
alternatives not considered); Press-Enterprise, 464
U.S. at 513 (same); Edward, 75 Mass. App. Ct. at 173
(same); Cohen, 456 Mass. at 115 (further reasonable
alternatives not considered).
Fourth, the court made no express or formal closure
findings and nothing in the record *38 demonstrates
sufficient support for the closure. Press-Enterprise,
446 U.S. at 513. See Cohen, 456 Mass. at 116 (the
record does not provide sufficient support to justify
closure); Edward, 75 Mass. App. Ct. at 172 (interests
protected by closure not addressed or obvious from
record). Mr. Sok shows that the partial closure at
sentencing violated his public trial right. Cohen, 456
Mass. at 107.
In addition, the public trial right extends to the bail
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2013 WL 609176 (Mass.App.Ct.)
hearing held in Mr. Sok's absence. See Presley, 130 S.
Ct. at 723-724 (Waller applies to any stage of a
criminal trial and extends beyond the actual proof). Cf.
Commonwealth v. Hobbs, 385 Mass. 863, 865-866
(1982) (court assumed the public trial protection applied to pretrial and trial proceedings). But see Mass.
R. Crim. P. 18 (a) (3). Thus, it would be an anomaly to
conclude that Mr. Sok did not have standing to challenge his absence from a hearing to which the public
had a right to attend. See Presley, 130 S. Ct. at 724 (no
reason to give one who asserts public trial right under
First Amendment greater protection than one who
asserts it under Sixth Amendment); Cohen, 456 Mass.
at 106 (same *39 constitutional analysis applies to
public trial claim under First and Sixth Amendments).
Moreover, based on the record and on the cases cited
in the sentencing closure discussed above, the bail
hearing closure met none of the four Waller factors.
Indeed, the trial judge should have considered the
reasonable alternative of attempting to give notice to
Mr. Sok or seeking his same day attendance. Moreover, the record does not demonstrate sufficient support
for the closure. Furthermore, most significantly, the
bail hearing closure kept Mr. Sok in the dark about the
prosecutor's remarks concerning the material witnesses' expected testimony, their reluctance to testify
and how that reluctance may have reflected on their
credibility. [Tr. 2/3-15]. See Waller, 467 U.S. at 46
(public trial ensures that judge and prosecutor work
responsibly, encourages witnesses to come forward
and discourages perjury); Cohen, 456 Mass. at
106-107 (open court room enhances basic fairness of
trial and appearance of fairness essential to public
confidence).
Because the sentencing and bail hearing closures
constituted structural error, prejudice is presumed and
the only remaining question concerns an *40 appropriate remedy. Cohen, 456 Mass. at 119 citing Waller,
467 U.S. at 50. In Waller, the Supreme Court ordered
a new suppression hearing with the proviso that, if the
new hearing resulted in the same evidence being
Page 15
suppressed, a new trial would not be necessary. Waller, 467 U.S at 50. For an improper closure at sentencing, other federal courts have remanded for resentencing in open court. United States v. Alcantara,
396 F.3d 189 (2nd Cir. 2005). Compare, United States
v. Canady, 126 F.3d 352 (2nd Cir. 1997) (where guilty
verdict after bench trial mailed to defendant, conviction vacated and case remanded for announcement of
verdict in open court).
In Massachusetts, it is an open question whether a new
trial is required for the structural error of a partial
court room closure which occurs only at sentencing.
Caldwell, 459 Mass. at 284, n.17. In the Alcantara,
Canady, and Waller cases, the reason for the remand
was that, absent some material change in circumstances, a new trial would provide a windfall for the
defendant and not be in the public interest. Waller, 467
U.S. at 50; Alcantara, 396 F.3d at 203-204; Canady,
126 F. 3d at 364.
*41 But, for the reasons stated below, Massachusetts
should not follow the path of resentencing when the
structural error of a partial closure occurs at the original sentencing. Sentencing in open court is a solemn,
powerfully visceral and penultimate stage of the trial,
where the public can not only see for themselves that
serious criminal acts have serious consequences, but
also experience the catharsis that results from knowing firsthand that the law will be enforced and the
criminal justice system functions according to the law.
Alcantara, 396 F.3d at 198-199.
In every trial stage context, including sentencing,
structural error analysis does not attempt to gauge the
presumed damage done to the public trial system or
confine it to the trial stage in which it occurred, because the precise consequences are indeterminate and
impossible to measure or prove. Waller, 467 U.S. at 49
& n. 9. See Owen v. United States, 517 F.Supp. 2d
570, 572-573 (D. Mass 2007); (prejudice flowing
from closure during jury selection stems from cascading effect that unfair selection may have on the rest
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2013 WL 609176 (Mass.App.Ct.)
of the trial); Cohen, 456 Mass. at 116 (partial closure
violated defendant's Sixth Amendment right to public
trial). For that reason, *42 there is no assurance or any
way of even knowing whether the remedies ordered in
the Waller, Alcantara and Canady decisions actually
remedied the damage done to the public trial right in
those cases.
Thus, as the only effective remedy for the structural
errors that occurred in this case, this court should
follow the example of the Cohen decision, which did
not attempt to qualify or quantify the prejudice caused
by the court room closure. Cohen, 456 Mass. at
106-120. A new trial should be required.
CONCLUSION
For the foregoing reasons, the court should reverse
Mr. Sok's conviction and order a new trial.
COMMONWEALTH OF MASSACHUSETTS, Appellee, v. Bonrad SOK, Appellant.
2013 WL 609176 (Mass.App.Ct. ) (Appellate Brief )
END OF DOCUMENT
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