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2013 WL 609176 (Mass.App.Ct.) Page

Appeals Court Of Massachusetts.COMMONWEALTH OF MASSACHUSETTS, Ap-

pellee,v.

Bonrad SOK, Appellant.No. 2011-P-2169.February 4, 2013.

Essex CountyOn 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, [email protected], For the Defendant, Bonrad Sok.

*i TABLE OF CONTENTS

ISSUES PRESENTED ... 1

STATEMENT OF THE CASE ... 1

STATEMENT OF FACTS ... 2

ARGUMENT ... 28

1. THE JUDGE'S JURY SEQUESTRATION OR-DER WAS AN ABUSE OF DISCRETION RE-QUIRING A NEW TRIAL, BECAUSE THE DECI-SION TO SEQUESTER WAS MADE WILLFULLY AND ARBITRARILY, CAUSED A RISK OF SUB-STANTIAL PREJUDICE TO THE DEFENDANT AND CAME AT THE EXPENSE OF HIS RIGHT TO A FAIR TRIAL. ... 28

2. A NEW TRIAL IS THE APPROPRIATE REM-EDY FOR THE STRUCTUAL ERRORS OF A

PARTIAL CLOSURE OF THE COURT ROOM DURING SENTENCING AND THE OCCUR-RENCE OF A HEARING DETERMINING THE BAIL STATUS OF TWO MATERIAL COMMON-WEALTH WITNESSES, HELD IN THE ABSENCE OF THE DEFENDANT AND WITHOUT HIS KNOWLEDGE, BECAUSE THE PARTIAL CLO-SURE AND THE BAIL HEARING VIOLATED THE DEFENDANT'S PUBLIC TRIAL RIGHTS AND A NEW TRIAL IS THE ONLY WAY TO AS-SURE 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

Cases

Commonwealth v. Abbott Engineering, Inc., 351 Mass. 568 (1967) ... 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

© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.


Commonwealth v. Demboski, 283 Mass. 32 (1933) ... 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

Commonwealth v. Reinstein, 381 Mass. 555 (1980) ... 29-30, 32

*iii Commonwealth v. Wolcott, 77 Mass. App. Ct. 457 (2010) ... 37

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

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 U.S. 39 (1984)TAUBConsti-tutional Provisions

Sixth Amendment, United States Constitution ... 33

Fourteenth Amendment, United States Constitution ... 33

Statutes

G. L. c. 265, § 1 ... 1

*iv Rules

Mass R. Crim P. 18 (a) (3) ... 38

Mass. R. Crim. P. 19 (b) ... 29

Mass. R. Crim. P. 20 (e) ... 28

*1 ISSUES PRESENTED

1. WHETHER THE JUDGE'S JURY SEQUES-TRATION ORDER WAS AN ABUSE OF DIS-CRETION REQUIRING AN NEW TRIAL, WHERE THE DECISION TO SEQUESTER WAS MADE WILLFULLY AND ARBITRAR-ILY, 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 APPROPRI-ATE REMEDY FOR THE STRUCTUAL ERRORS OF A PARTIAL CLOSURE OF THE COURT ROOM DURING SENTENCING AND THE OC-CURRENCE OF A HEARING DETERMINING THE BAIL STATUS OF TWO MATERIAL COM-MONWEALTH WITNESSES, HELD IN THE AB-SENCE OF THE DEFENDANT AND WITHOUT HIS KNOWLEDGE, WHERE THE PARTIAL CLO-SURE AND THE BAIL HEARING VIOLATED THE DEFENDANT'S PUBLIC TRIAL RIGHTS AND A NEW TRIAL IS THE ONLY WAY TO AS-SURE 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 sec-ond degree murder on a joint venture theory. [R. *2 11]. On May 13, 2009, the court imposed a life sen-tence 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 mo-tion. [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 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 wit-nesses 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 wit-nesses' expected testimony would be, the prosecutor stated that both of them had given recorded state-ments 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 war-rants had been issued due to her failure to appear. [Tr. 2/8]. Then, after discussion concerning the wit-nesses' 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 un-constitutional, ex parte nature of the bail hearing, 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 oc-curred, 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 ar-rested 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, Chris-tian 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 iden-tified 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 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 Mar-tinez, 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 mum-bled 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 some-one to call 911, and then returned to Martinez before the ambulance took him away. [Tr. 4/101-102]. Mar-tinez 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 ta-ble and Pen saw a male and a female at another table. [Tr. 5/31-36]. Later, Mr. Sok made a telephone call on Pen's cell phone, but she did not hear his conver-sation. [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 out-side, 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 fin-ished 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 Ben-nett Street, but he did not get a good look at 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 com-munity 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 Soy-anna, 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 some-one 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 state-ments, “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, Soy-anna 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 mem-ory. [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 deter-mine whether she was feigning a lack of memory. [Tr. 5/5-15, 217-263].]. On the next day of trial, find-

ing Leng's lack of memory feigned, the court ruled that it would admit her grand jury testimony substan-tively. [Tr. 6/14-18]. When Leng's testimony re-sumed, 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 Soy-anna, Mr. Sok, Keo and Saki. [Tr. 6/112-]. Leng heard Mr. Sok say, “I shot somebody, I shot some-body, 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 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 state-ment, “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 po-lice, 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 millime-ter 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 objec-tion, 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 investi-gate gang activities, had kept a record of him *13 be-ing 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 con-tained Keo's name. [Tr. 5/195-201].

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 attrib-

uted 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 blam-mer”; 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. 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 ap-proaching 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 very fearful for his wife. [Tr. 9/19-20]. Juror 13 said that he had told his wife the previ-ous 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 partici-pate 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 dis-cussed the matter with the other jurors, the court ex-cused him over a defense objection and trial contin-ued. [Tr. 9/74].

The antecedents for the second juror's dismissal be-gan on May 4, when, in response to the court's in-quiry regarding jury duty, juror 8 recounted an inci-dent 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]. Ju-ror 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 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 re-fusal. [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 be-cause he was afraid something would happen, know-ing 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 delibera-tions anew at a pace that was up to them, said that it would consider a request to stay late and order din-ner, if appropriate, and then sent the jury out to delib-erate. [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 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 ex-change occurred between the court and defense coun-sel:

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 circum-stances are. I note that the only thing that has hap-pened today is the jurors have asked some questions and one juror has expressed some kind of prior re-countance that resulted in our asking that he leave al-though 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?

THE COURT: It would be right outside the court-room, 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 ex-pressing 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 oc-casions, 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 sequestra-tion 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 de-liberations was up to them, they were being se-questered; was unnecessary and lacked foundation because the fears that jurors 8 and 13 expressed con-cerned only the notion of gangs, but had nothing to do with Mr. Sok, Keo or the trial, and nothing sug-gested 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 se-questration was necessary and if there was no verdict by 8:00 P.M., a hotel had been secured for them. [Tr. 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, ap-parently distressed. [Tr. 11/85]. Defense counsel also objected to the court's statement that sequestration was necessary, but the court replied that Rule 20 per-mitted it. [Tr. 11/85]. Then, the jury resumed deliber-ations. [Tr. 11/86].

Later, after the jury returned its guilty verdict, de-fense 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 re-marks 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 deliber-ations. [Tr. 12/4-5]. At about 2.20 P.M., the reconsti-tuted 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, delib-erating 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 de-



liberations 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 or-der. [Tr. 12/7].

Finally, before imposing sentence, the court asked the prosecutor to address the matter involving the arrest of 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 de-fendant's sister also was present in court sitting with several others. [Tr. 12/19]. While waiting to be rec-ognized, 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 wit-ness. [Tr. 12/19]. The prosecutor added that Mr. Sok's sister was currently in custody, facing prosecu-tion. [Tr. 12/19].

Facts Proposed In New Trial Motion.

Based on the affidavits accompanying his new trial motion, Mr. Sok proposed the following factual find-ings, which were unopposed by the Commonwealth. [R. 54-58]. Sakkounn Hem, Mr. Sok's cousin, at-tended *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 admis-sion to the court room. [R. 18-19].

One of Mr. Sok's sisters, Monica Sok, attended the 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 sec-ond court officer came out of the court room to ex-plain 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 de-tector, 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 per-son, 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 peo-ple near a desk, including a court officer and a uni-formed security person. The court officer told Ms. Mon that she needed to show a photographic identifi-cation *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].

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 uni-form 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 OR-DER WAS AN ABUSE OF DISCRETION RE-

QUIRING A NEW TRIAL, BECAUSE THE DE-

CISION TO SEQUESTER WAS MADE WILL-FULLY AND ARBITRARILY, CAUSED A RISK OF SUBSTANTIAL PREJUDICE TO THE DE-FENDANT 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. Cor-dle, 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 or-der sequestration without stating a reason. Common-wealth v. Abbott Engineering, Inc., 351 Mass. 568, 572 (1967). But, just like other discretionary exer-cises, 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 se-questration order. [Tr. 11/82-85]. But doubtless, the judge must have considered it necessary because, with no alternate jurors remaining, the loss *29 of an-other 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 re-main). 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 pub-licity 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 sequester-ing the jury. Reinstein, 381 Mass. at 561-562 . Ac-cord, Reinstein v. Superior Court Dept. of Trial Court of Commonwealth, 661 F.2d 255 (1st Cir. 1981)

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 seques-tration. [Tr. 1/39-50; 3/32-41]. Second, in all likeli-hood the jury would have been frustrated, even an-gered, 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 evi-dence, the appearance of gang members in the court-room (Keo, Tran and Chhay) and the unexplained dismissal of two jurors, considered in sequence, raised a palpable risk that the jury understood the se-questration 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 inher-ent contradiction of the order; the pace of delibera-tions 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 ver-dict by a time certain, 8:00 P.M., they would be re-quired 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 re-constituted jury began deliberations knowing only *32 that, if they so chose, they could stay late and dinner would be provided; by 3:50 P.M., the jury re-ported 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 min-utes and neither dinner nor a hotel would be neces-sary. [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 se-



questration 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 OC-CURRENCE 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 HEAR-

ING VIOLATED THE DEFENDANT'S PUBLIC TRIAL RIGHTS AND A NEW TRIAL IS THE ONLY WAY TO ASSURE THAT THE PRE-SUMED PREJUDICE CAUSED BY THE ER-

RORS IS RECTIFIED.

The Sixth Amendment to the United States Constitu-tion, made binding on the States by the Due Process Clause of the Fourteenth Amendment, assures a de-fendant 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) ; Common-wealth v. Cohen, 456 Mass. 94, 106-107 (2010) . In-suring 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); Co-hen, 456 Mass. at 107. Thus, the trial court must take every reasonable measure to accommodate public at-tendance at criminal trials. *34Presley, 130 S.Ct. at 725. Moreover, a failure to hold a public trial consti-

tutes structural error, where prejudice is presumed because the precise consequences are indeterminate and impossible to measure or prove. Waller v. Geor-gia, 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 clo-sure, each of four factors must be met: (1) an overrid-ing interest that is likely to be prejudiced; (2) the clo-sure 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 ad-equate 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 par-tial 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. Co-hen, 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 sentenc-ing, 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 ef-fectuate 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 specta-tors 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 cir-cumstances justify closure).

Second, the closure was broader than necessary be-cause, as designed, it excluded any peaceable specta-tor, 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 po-tentially troublesome spectator who showed identifi-cation. In short, the closure did nothing to advance the substantial 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 be-came 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 mo-tive to sponsor similar efforts at trial, and spectator screening was reasonably designed and so operated to have desired effect); Caldwell, 459 Mass. at 283 (clo-

sure not overbroad where only threatening spectators barred).

Third, the court did not consider reasonable alterna-tives to closure, such as continuing the routine secu-rity measures that had produced an orderly trial, cou-pled perhaps with a prophylactic warning from the bench at the outset of the sentencing hearing. Stand-ing alone, the failure to consider reasonable alterna-tives 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 (reason-able 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 rea-sonable 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 sen-tencing violated his public trial right. Cohen, 456 Mass. at 107.

In addition, the public trial right extends to the bail 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 stand-ing 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); Co-hen, 456 Mass. at 106 (same *39 constitutional anal-ysis 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. More-over, the record does not demonstrate sufficient sup-port for the closure. Furthermore, most significantly, the bail hearing closure kept Mr. Sok in the dark about the prosecutor's remarks concerning the mate-rial 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 for-ward 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 con-stituted structural error, prejudice is presumed and the only remaining question concerns an *40 appro-priate 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 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. Alcan-tara, 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 de-fendant, 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 par-tial court room closure which occurs only at sentenc-ing. Caldwell, 459 Mass. at 284, n.17 . In the Alcan-tara, Canady, and Waller cases, the reason for the re-mand was that, absent some material change in cir-cumstances, 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 origi-nal 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 know-ing 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, be-cause 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 cascad-ing effect that unfair selection may have on the rest 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 or-dered 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 fol-low 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, Ap-pellee, v. Bonrad SOK, Appellant.2013 WL 609176 (Mass.App.Ct. ) (Appellate Brief )

END OF DOCUMENT


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