Commonwealth v. Jones ( 2015 )

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SJC-11775
COMMONWEALTH vs. CLAUZELL JONES.
Worcester. March 2, 2015. - September 21, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.
Rape. Rape-Shield Statute. Deoxyribonucleic Acid.
Constitutional Law, Confrontation of witnesses, Public
trial. Evidence, Expert opinion, Scientific test, Hearsay,
Chain of custody, Sexual conduct. Witness, Expert.
Practice, Criminal, Confrontation of witnesses, Public
trial, Instructions to jury.
Indictments found and returned in the Superior Court
Department on March 17, 2009.
The cases were tried before David Ricciardone, J., and a
motion for a new trial, filed on July 5, 2013, was heard by him.
The Supreme Judicial Court granted an application for
direct appellate review.
Kathleen M. O'Connell for the defendant.
Ellyn H. Lazar-Moore, Assistant District Attorney, for the
Commonwealth.
Brad A. Compston, for Massachusetts Association of Criminal
Defense Lawyers, amicus curiae, submitted a brief.
LENK, J. The defendant was indicted on charges of rape, in
2
violation of G. L. c. 265, § 22 (b), and furnishing alcohol to a
minor, in violation of G. L. c. 138, § 34. At trial, the
defendant testified both that his sexual contact with the victim
did not involve penetration and that it was consensual. To
establish the element of penetration necessary to sustain a
conviction of rape, the Commonwealth offered, in addition to the
victim's testimony, results of deoxyribonucleic acid (DNA)
testing that purportedly identified the defendant's saliva on
"intimate" swabs taken from the victim's vagina. To prove that
the sexual contact was nonconsensual, the Commonwealth offered,
among other evidence, testimony concerning the victim's conduct
shortly after the alleged rape occurred. The defendant was
convicted by a Superior Court jury in May, 2011, on both
indictments.
On appeal, the defendant argues that the judge erred in
allowing the Commonwealth to introduce, through the testimony of
an expert witness who was not present when the victim's "rape
kit" examination was performed, evidence concerning how the
various swabs that the expert tested were collected. The
defendant further contends that the judge violated his right to
a public trial by holding, pursuant to G. L. c. 233, § 21B (rape
shield law), an in camera hearing to determine the admissibility
of evidence relating to the victim's prior sexual contact with
the individual to whom the victim first reported the alleged
3
rape (first complaint witness). Finally, the defendant
challenges the judge's decision, also based on the rape shield
law, to prohibit defense counsel from introducing evidence
regarding the victim's prior sexual relationship with the first
complaint witness, and challenges the jury instructions as
inconsistent with a decision issued by this court after the
defendant's trial.
We hold that the judge erred in permitting the expert to
testify about how the various swabs she tested had been
collected, and that the preserved error was prejudicial. We
therefore vacate the defendant's convictions and remand for a
new trial. We further conclude that the judge erred in closing
the rape shield hearing without conducting the four-prong
analysis required for court room closures under Waller v.
Georgia, 467 U.S. 39, 48 (1984) (Waller). Because we are
ordering a new trial based on the erroneously admitted expert
testimony, we address only briefly the defendant's two remaining
arguments.
1. Background. We summarize the evidence presented at
trial, with particular focus on the evidence relevant to the
defendant's arguments on appeal. We reserve certain substantive
and procedural facts for later discussion.
4
On October 17, 2008, the victim, P.B.,1 then a high school
senior, attended a party at the defendant's house in Gardner.
Also in attendance were several other high school age friends of
the victim: Rachel, Tim, and the defendant's son, Chris.2 The
victim and Rachel testified that, shortly after they arrived,
they drank some beer, followed by "nips," small containers of
flavored alcoholic beverages. The group then played a game of
"strip poker," although the victim testified that she only took
off her sweatshirt and possibly her socks. The defendant
provided marijuana, which everyone smoked.
The defendant then offered P.B. and Rachel shots of rum,
which they accepted. He served the rum out of wine glasses.
Both P.B. and Rachel testified that they saw some type of pink
substance in the glasses before they drank.
After drinking the rum, both the victim and Rachel became
violently ill. Although the victim had consumed alcohol before,
she testified that she had never felt as sick as she did that
night. She vomited in the bathroom for approximately ten
minutes, and then went limp. The other attendees picked the
victim up from the bathroom floor and placed her on a couch in
the defendant's bedroom. While she was being carried, her head
struck the doorframe.
1
A pseudonym.
2
A pseudonym.
5
When the victim awoke, she was lying naked on her stomach
on the bed with the defendant behind her. She felt the
defendant's fingers in her vagina; she then felt the defendant's
penis in her vagina. When she turned over, he jumped out of the
bed and announced that he had to go to the bathroom. After the
victim put her clothes on, the defendant emerged from the
bathroom wearing a robe. The victim said, "I don't want to be
here. I'm leaving."
The victim entered the living room and climbed onto the
couch where Tim was sleeping, placing herself between the couch
and Tim's legs. Tim said, "Nah," pushed the victim away, and
moved to another seat. At that point, the victim said,
"[Chris]'s dad just fucked me," and began to cry. The victim
then spent forty-five minutes to one hour making telephone calls
and sending text messages, trying to contact someone to pick her
up from the defendant's house.
Sometime between 4 and 4:30 A.M., the victim finally
reached a school friend, Alexis. The victim left the
defendant's house and went to a nearby twenty-four hour
pharmacy. Alexis, in a vehicle driven by her mother, arrived to
pick up the victim. They found her sitting on the curb outside
the pharmacy, crying.
Alexis's mother urged the victim to go to the hospital.
The victim initially declined. Instead, she went into Alexis's
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room, and the two talked for a while. Another school friend,
Ellen, along with Ellen's boy friend, then came to get the
victim and drove her to Ellen's house. There, the victim was
picked up by her boy friend, Chad, and taken to her house.
That afternoon, Chad took the victim to the hospital. They
first went to a hospital in Fitchburg. From there, they were
directed to a hospital in Leominster, where a sexual assault
nurse examiner (SANE) performed a "rape kit" examination on the
victim.
At trial, the defendant, testifying in his own defense,
offered a different account of the events of the evening.
According to the defendant's testimony, after the victim was
laid on his bed (rather than on the couch in his bedroom, as
other witnesses testified), the group continued drinking. The
defendant then went into his room to watch television. He sat
down on the bed next to the victim, who was sleeping and was
still fully clothed. After the defendant watched television for
fifteen or twenty minutes, the victim woke up. She rolled over
and said, "Hey, what's up?" The pair watched television
together for about twenty minutes. The victim then invited the
defendant to rub her back. He began rubbing her back, and then
began touching her buttocks. The victim pressed her buttocks
against the defendant's genitals, and removed her pants. The
defendant licked his finger, reached around, and "touched her
7
vagina." The defendant testified that he touched the "top part"
of her vagina, that the touch was very brief, that he "felt
mostly hair," and that he did not feel either "the lips of her
vagina" or "a wet part of her vagina."
The defendant then announced that he had to go to the
bathroom. When he returned from the bathroom, the victim was on
the couch in the living room with Tim. The defendant testified
that he believed that the victim was interested in having sex,
and that he too wanted to have sex. He claimed, however, that
he never penetrated her vagina, either with his penis or with
his finger.
The Commonwealth offered the testimony of two experts that
contradicted the defendant's account. The first expert, a
chemist at the State police crime laboratory, testified that she
performed testing on three swabs purportedly collected from the
victim during the "rape kit" examination at the hospital in
Leominster: a genital swab, which the expert testified was
taken from "the outside of the genital area"; a vaginal swab,
which the expert described as "an intimate swab of the vagina";
and a peri-anal swab, which the expert testified was taken "from
the outside of the anal area." The expert indicated that all of
the swabs tested negative for semen agellin. The vaginal and
genital swabs, however, tested positive for human alpha-amylase,
commonly known as saliva.
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The second expert was also a chemist at the State police
crime laboratory. She testified that she performed DNA analysis
on the saliva recovered from the vaginal and genital swabs. She
indicated that the DNA profile obtained from the vaginal swab
matched a DNA sample acquired from the defendant. She testified
that, based on currently available databases, the DNA profile
obtained was "not expected to occur more frequently than 1 in
1,065 Caucasian males, 1 in 936 African-American males, 1 in 561
Hispanic males, and 1 in 198 Asian males."
After the defendant's convictions on both indictments, he
moved for a new trial on the basis of the court room closure
during the rape shield hearing. Following an evidentiary
hearing, the motion judge, who was also the trial judge, denied
the defendant's motion. The defendant appealed from his
convictions and from the denial of his motion for a new trial.
We granted the defendant's petition for direct appellate review.
2. Discussion. a. Confrontation clause and common-law
evidentiary rules. The Commonwealth did not offer at trial the
testimony of the nurse at the hospital in Leominster who
conducted the "rape kit" examination. Instead, the judge
permitted the Commonwealth's first expert witness, who was not
present during the examination and had no apparent connection to
the hospital at which the swabs were taken, to testify to her
"understanding" of how the three swabs had been collected. That
9
understanding was apparently based, in part, on information the
expert learned from the "evidence collection inventory list"
purportedly completed by the nurse who conducted the "rape kit"
examination.
The defendant objected to the admission of the expert's
testimony "identify[ing] what swab came from where." Defense
counsel argued that it was "improper" for the first expert "to
testify to facts for which [she] [was not] present," that
defense counsel had "no ability to cross examine" the expert as
to "how that swab was taken, or whether it was taken with the
correct procedure," and that the admission of the testimony
would violate the defendant's right to be confronted with
witnesses against him under the Sixth Amendment to the United
States Constitution. In response, the prosecutor did not assert
that the nurse was unavailable to testify. Indeed, she
indicated that the defense had the nurse on the witness list.
She further indicated that she would request a continuance to
secure the nurse's presence if the judge deemed the nurse's
testimony necessary, but urged the judge to reject the
defendant's confrontation clause argument. The judge overruled
the defendant's objections and allowed the testimony.
The Sixth Amendment provides that, "[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . ." Article 12
10
of the Massachusetts Declaration of Rights similarly protects a
criminal defendant's right "to meet the witnesses against him
face to face." Although art. 12 "has been interpreted to
provide a criminal defendant more protection than the Sixth
Amendment in certain respects, . . . when the question involves
the relationship between the hearsay rule and its exceptions, on
the one hand, and the right to confrontation, on the other hand,
the protection provided by art. 12 is coextensive with the
guarantees of the Sixth Amendment" (citation and quotation
omitted). Commonwealth v. Nardi, 452 Mass. 379, 388 (2008).
In Crawford v. Washington, 541 U.S. 36 (2004) (Crawford),
the United States Supreme Court swept aside its prior approach
to the confrontation clause, under which the admission of
hearsay statements against a criminal defendant did not violate
the confrontation clause so long as the statements "f[ell]
within a firmly rooted hearsay exception" or showed
"particularized guarantees of trustworthiness." Ohio v.
Roberts, 448 U.S. 56, 66 (1980). See id. at 65 n.7. Instead,
the Court held in Crawford, supra at 68, that, "[w]here
testimonial evidence is at issue, . . . the Sixth Amendment
demands what the common law required: unavailability and a
prior opportunity for cross-examination."
Although the hearsay evidence at issue in Crawford, supra
at 38-42, involved statements to police officers, the rule
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articulated in the case called into question the admissibility
at criminal trials of the results of scientific or forensic
testing. See Williams v. Illinois, 132 S. Ct. 2221 (2012);
Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Melendez-Diaz
v. Massachusetts, 557 U.S. 305 (2009). During the Ohio v.
Roberts era of confrontation clause jurisprudence, such results
had been admitted routinely, even without the opportunity to
cross-examine the analyst who actually conducted the testing, on
the theory that the results showed particularized guarantees of
trustworthiness. The Court's holding in Crawford eliminated
that rationale, potentially suggesting that any person who
played a role in the forensic or scientific testing of evidence
must be called to testify before the prosecution may present
expert opinion testimony regarding the evidence. See Melendez-
Diaz v. Massachusetts, supra at 332 (Kennedy, J., dissenting).
This court responded to the difficulty posed by forensic or
scientific opinion testimony in Commonwealth v. Greineder, 464
Mass. 580, 593 (Greineder), cert. denied, 134 S. Ct. 166 (2013).
There we held that, under our common-law evidentiary rules,
"[e]xpert opinion testimony, even if based on facts and data not
in evidence, does not violate the right of confrontation,"
provided that the facts and data "are independently admissible
and are a permissible basis for an expert to consider in
formulating an opinion," and that two further conditions are met
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(citation omitted). Id. at 583, 584. See Department of Youth
Servs. v. A Juvenile, 398 Mass. 516, 527-528 (1986). First, the
expert must "not present on direct examination the specific
information on which he or she relied"; second, the expert
witness must have the capacity to "be meaningfully cross-
examined about the reliability of the underlying data."
Greineder, supra at 583, 595. We characterized this evidentiary
rule as "more protective . . . than the [United States] Supreme
Court would require," and observed that, by fashioning such a
rule, we "necessarily satisfy the mandates of the Sixth
Amendment." Id. at 593.
Our common-law evidentiary rules, therefore, afford the
defendant a choice. If the defendant challenges the reliability
of the expert's underlying data on cross-examination, then
"basis evidence that is hearsay may become available to the jury
to evaluate a witness's credibility." Id. at 600. By contrast,
"[i]f a defendant does not open the door on cross-examination to
the hearsay basis of an expert's opinion, then the jury may
properly accord less weight to the expert's opinion" due to the
absence of any testimony providing the basis for the expert's
opinion. Id.
Our common-law evidentiary rules decisively resolve this
case. In labeling the various swabs and completing the "rape
kit" "inventory list," the nurse essentially made a series of
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factual statements concerning how the various swabs were
collected. The purpose of a "rape kit" is to gather forensic
evidence for use in a criminal prosecution. See What is a Rape
Kit?, Rape, Abuse & Incest National Network,
https://rainn.org/get-information/sexual-assault-recovery/rape-
kit [http://perma.cc/R7AN-NJM5]. Therefore, these statements
were plainly testimonial. See Commonwealth v. Nardi, 452 Mass.
379, 394 (2008) (evidence is testimonial where "a reasonable
person in [the speaker's] position would anticipate his
[findings and conclusions] being used against the accused in
investigating and prosecuting a crime" [citation omitted]). See
also Ohio v. Clark, 135 S. Ct. 2173, 2181 (2015) (rejecting
confrontation clause claim where hearsay statements at issue
"clearly were not made with the primary purpose of creating
evidence for [the defendant's] prosecution"); Davis v.
Washington, 547 U.S. 813, 822 (2006) (statements to police
officers are "testimonial when the circumstances objectively
indicate that there is no . . . ongoing emergency, and that the
primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal
prosecution"). And because the Commonwealth's first expert then
recited these testimonial statements to the jury, they also were
plainly hearsay. Although the prosecutor suggested at trial
that the first expert's recitation was permissible because the
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expert merely was "identif[ying] . . . the hearsay material on
which . . . she relied," Commonwealth v. Bizanowicz, 459 Mass.
400, 411 (2011), the expert obviously was "testifying to, and
asserting the truth of, [the] statements recorded by" the nurse.
Commonwealth v. Nardi, supra at 392. Indeed, the very relevancy
of both experts' testimony was dependent upon the jury accepting
the nurse's assertions about how and from where the various
swabs had been collected, relayed through the first expert, for
the truth of the matter asserted. Without the nurse's
statements linking the swabs to the examination performed on the
victim, the Commonwealth merely would have presented two experts
who performed various tests on three swabs -- origin unknown --
and identified on two of them saliva containing DNA that matched
the defendant's DNA.
Because the challenged parts of the first expert's
testimony constituted testimonial hearsay, their admission was
permissible only if it complied with the rule articulated in
Greineder. It did not.
First, the Greineder rule only allows an expert, on cross-
examination, to present the specific underlying facts, derived
from hearsay statements, on which the expert relied. The
challenged testimony at issue here, however, came in on direct
examination. Indeed, the expert's statements concerning how the
various swabs had been collected were made near the beginning of
15
her testimony, because the import of the test results that she
later described hinged on those statements.
Second, the Greineder rule demands that "the expert
witness . . . can be meaningfully cross-examined about the
reliability of the underlying data." Greineder, supra at 595.
See Commonwealth v. Tassone, 468 Mass. 391, 392 (2014)
(Tassone); Commonwealth v. Barbosa, 457 Mass. 773, 790-791
(2010), cert. denied, 131 S. Ct. 2441 (2011). Greineder
responded to a recurrent situation involving forensic and
scientific evidence whereby the testifying analyst, in
formulating her expert opinion, draws upon testing conducted and
results reached by other analysts, who do not testify. See
Greineder, supra at 582. We held that such testimony is
permissible provided that the testifying analyst "reviewed the
nontestifying analyst's work, . . . conducted an independent
evaluation of the data," and "then expressed her own opinion,
and did not merely act as a conduit for the opinions of others"
(quotation and citation omitted). Id. at 595.
This case presents a significantly different scenario from
that involved in Greineder or in the United States Supreme
Court's confrontation clause decisions involving forensic or
scientific testimony. The case does not involve a situation
where a testifying analyst reviewed and then built on the
findings of a nontestifying analyst in reaching his or her
16
expert opinion. See Department of Youth Servs. v. A Juvenile,
398 Mass. at 527-528. Instead, the hearsay testimony at issue
here involved the circumstances under which the evidence that
the testifying expert tested was collected in the first place.
For the Commonwealth's expert to testify to how the swabs were
collected from the victim would be akin to allowing a chemist to
testify to the chemist's "understanding," based on information
relayed to the chemist in a report drafted by nontestifying
police officers, that a substance later determined to be cocaine
had been found in the defendant's trouser pocket.
Furthermore, the Commonwealth's expert did not "review" or
make an "independent evaluation" of the nurse's representations
indicating that a given swab was collected from a particular
part of the victim's body. Having no personal knowledge of the
process by which the swabs were collected, the expert lacked any
capacity to do so. Under these circumstances, the expert could
not be "meaningfully cross-examined about the reliability" of
the nurse's representations concerning the origins of the swabs.
Greineder, 464 Mass. at 595.
The expert also lacked any capacity to address the chain of
custody and evidence-handling protocols relevant to the process
by which the swabs were collected. See Tassone, 468 Mass. at
401. In Tassone, supra at 394, the Commonwealth's expert
purportedly had conducted an "independent review" of a DNA
17
profile generated by a nontestifying analyst from a swab taken
from eyeglasses found at the scene of a crime, before concluding
that that profile matched the defendant's DNA profile. We
nevertheless held that, because the testifying expert was "a
chemist at the State police laboratory," while the DNA profile
had been generated by Cellmark, an outside laboratory, the
defendant was deprived of a "meaningful opportunity to cross-
examine the expert as to the reliability of the underlying facts
or data." Id. at 400, 401. The expert, we observed, "was not
in a position to confirm that the DNA profile was from the
eyeglasses swab; she knew only that Cellmark said that it was."
Id.
Here, similarly, the expert, by her own account, had "no
idea how [the swabs] were collected." Consequently, the
defendant was deprived of any opportunity to question the expert
about the protocols in place to ensure that the swabs were
properly collected and labeled. Simply put, the expert took it
as given that the swabs were collected as the nurse said they
were, and then relayed these statements to the jury. Where the
only answer that the expert can give to questions concerning the
chain of custody and evidence-handling protocols is "I don't
know," a defendant has been deprived of the opportunity for
meaningful cross-examination.
We have observed that a meaningful opportunity to cross-
18
examine an expert witness regarding chain of custody and
evidence-handling protocols is especially crucial in relation to
DNA evidence. "[W]ith DNA analysis, the testing techniques are
so reliable and the science so sound that fraud and errors in
labeling or handling may be the only reasons why an opinion is
flawed." Commonwealth v. Barbosa, 457 Mass. at 790. By
introducing the critical facts concerning how the swabs were
collected from the victim through the testimony of an expert
witness who played no role in the collection process whatsoever,
therefore, the Commonwealth sidestepped the one aspect of the
forensic evidence presented in this case that was likely most
"meet for cross-examination." Bullcoming v. New Mexico, 131
S. Ct. 2705, 2714 (2011).3
Because defense counsel objected to the first expert's
testimony, we must determine "whether the error was
nonprejudicial, that is whether the error did not influence the
jury, or had but very slight effect" (quotation and citation
3
As a general rule, information concerning how such swabs
were collected should be admitted through the testimony of a
person, such as, without limitation, the nurse or the victim,
who has personal knowledge of the specific "rape kit"
examination at issue. We leave for another day the question
whether evidence concerning the collection of the swabs could be
admitted through the testimony of a person who lacks personal
knowledge of the specific "rape kit" examination, but who is
familiar with the general procedures and protocols ordinarily
employed at a given facility in connection with the conduct of a
"rape kit" examination.
19
omitted). Tassone, 468 Mass. at 403. We conclude that the
error was prejudicial. The defendant testified that he licked
his finger and touched the outside of the victim's vagina, but
did not penetrate her or come into contact with her vulva or
labia, as required for a conviction of rape. See Commonwealth
v. Donlan, 436 Mass. 329, 336 (2002). The victim, by contrast,
testified that the defendant penetrated her vagina with his
finger and penis. Because the expert testified that the
defendant's saliva was found on "an intimate swab" taken from
the victim's vagina, the expert's testimony supported the
victim's account and undermined the defendant's account on a key
aspect of the Commonwealth's case.4 During closing argument, the
4
Because the testimonial hearsay related to a key factual
dispute, this case differs from those decisions in which we have
determined that testimonial hearsay was improperly admitted, but
did not necessitate a new trial. In a few of these cases, the
defendant objected, but this court concluded that the error was
harmless beyond a reasonable doubt. See Commonwealth v.
Whitaker, 460 Mass. 409, 421-422 (2011); Commonwealth v. Rogers,
459 Mass. 249, 264-266, cert. denied, 132 S. Ct. 813 (2011). In
most, however, the defendant failed to object, causing us to
review only for a substantial likelihood of a miscarriage of
justice. Furthermore, in most of these cases, the hearsay
evidence at issue was an autopsy report, and the cause of death
was not a contested issue at trial, leading us to affirm despite
the error. See Commonwealth v. Emeny, 463 Mass. 138, 144-146
(2012); Commonwealth v. Phim, 462 Mass. 470, 479-480 (2012);
Commonwealth v. Walker, 460 Mass. 590, 594 n.6 (2011);
Commonwealth v. Housen, 458 Mass. 702, 710 (2011); Commonwealth
v. Mercado, 456 Mass. 198, 211 (2010); Commonwealth v. Taylor,
455 Mass. 372, 377-378 (2009); Commonwealth v. Pena, 455 Mass.
1, 15 (2009); Commonwealth v. Hensley, 454 Mass. 721, 732-734
(2009). Compare Commonwealth v. Durand, 457 Mass. 574, 582-588
(2010) (reversing where medical examiner's testimony was
20
prosecutor argued that the defendant's testimony reflected an
effort "to come up with an explanation that's short of
penetration to get the saliva there," and attacked that
explanation as inconsistent with the DNA test results, asking,
"if he just touched her, then how did the saliva get inside her
vagina?"
Had the nurse or some other individual with knowledge of
the process by which the swabs were collected testified, a
skillful defense attorney could have asked questions aimed at
challenging the integrity of the evidence-gathering process.
Defense counsel might have questioned, for instance, whether the
purportedly "intimate" swab taken from within the victim's
vagina could have come into contact with the "external" genital
swab, thereby creating the false impression that the defendant's
saliva was contained within the victim's vagina. In responding
to such questions, the nurse or other individual would have made
"representations . . . relating to past events and human
actions" that are "not revealed in raw, machine-produced data."
See Bullcoming v. New Mexico, 131 S. Ct. at 2714. Such
questioning has prompted expert witnesses to realize that they
had made labeling or handling errors, thereby preventing
convictions based on incorrect or misleading DNA test results.
improperly admitted, issue was preserved, and "[t]he cause of
death was very much a disputed issue").
21
See Williams v. Illinois, 132 S. Ct. 2221, 2264 (2012) (Kagan,
J., dissenting).
Of course, faced with these questions, the nurse or other
individual might have provided answers that convinced the jury
of the reliability and integrity of the evidence-collection
process. But that is precisely why our evidentiary rules demand
an opportunity meaningfully to cross-examine the expert
regarding chain of custody and evidence-handling protocols. By
requiring that opportunity, our common-law evidentiary rules,
like the confrontation clause itself, "command[] . . . that
reliability be assessed in a particular manner: by testing in
the crucible of cross-examination." See Crawford, 541 U.S. at
61. Because the process by which the swabs were collected was
crucial to the Commonwealth's case, and because, as a result of
the trial judge's error, the defendant was deprived of the
opportunity for cross-examination regarding that process, we
conclude that the error was prejudicial and requires a new
trial. See Tassone, 468 Mass. at 402-404.
Finally, we do not agree with the Commonwealth's suggestion
that the defendant waived his confrontation clause claim by
agreeing to the admission of the unredacted inventory list from
the defendant's "rape kit" examination. It is true that, before
the expert testified, the judge allowed the victim's medical
records to be marked as exhibits, and these records included the
22
inventory list purportedly completed by the nurse who examined
the victim. At that time, however, defense counsel observed
that the medical records had "to be redacted significantly."
The Commonwealth agreed "there are redactions," and indicated
that "they won't go to the jury until counsel and I have agreed
on the redactions."
Later, when the Commonwealth's expert testified, defense
counsel made clear that she believed that it would violate the
confrontation clause for the expert to testify to facts that
were based in part on information learned from the inventory
list. Defense counsel stated that, "if [the prosecutor] wanted
to put on a case which wouldn't raise questions about
confrontation, she would have put on the SANE [i.e., the
nurse] . . . as her witness. She didn't." Defense counsel
further objected that "[t]he only way it's coming in is through
this expert." The judge acknowledged that "there could be
testimony from the person who did the swabbing that 'I took this
swab from the defendant and the vaginal area of the complaining
witness,'" but rejected defense counsel's confrontation clause
argument. The judge noted defense counsel's continuing
objection to the evidence.
Defense counsel later apparently agreed to the admission of
the medical records, including the inventory list. Counsel's
apparent agreement to allow the inventory list to be presented
23
to the jury, however, occurred long after the expert had already
testified -- over defense counsel's strenuous objection -- to
her "understanding" regarding how the swabs had been collected.
While the better practice would have been for defense counsel to
renew her objection to the information concerning the collection
of the swabs, we do not regard the subsequent admission of the
unredacted inventory list as a retroactive waiver of the
objection that defense counsel clearly voiced earlier.
The inventory list, moreover, did not include the actual
content regarding how the swabs were collected. The list, for
instance, simply indicates "Vaginal Swabs and Smear" with a
check mark next to it, without describing the swab as an
"intimate swab of the vagina." By testifying to her
"understanding" concerning how the swabs were collected,
therefore, the Commonwealth's expert testified to underlying
facts of which she had no personal knowledge, and that went
beyond the facts later admitted in evidence via the inventory
list. For both of these reasons, we reject the Commonwealth's
waiver argument.
b. Public trial right. At trial, the defendant sought to
offer evidence of the victim's prior sexual relationship with
Tim, the first complaint witness. Defense counsel argued that
this prior sexual relationship was "directly related to [the
victim's] motivation to lie." Defense counsel contended that
24
the victim's conduct, in climbing onto the couch where Tim was
sleeping, constituted a sexual advance. Tim's apparent
rejection of that sexual advance, defense counsel claimed, gave
the victim an incentive to fabricate her rape allegation against
the defendant. The Commonwealth countered that the proposed
testimony was inadmissible under the rape shield law.
The judge held an evidentiary hearing on the proposed
testimony. Before the hearing began, the prosecutor asked that
the court room be closed, contending that the rape shield
statute required that the hearing "be done in camera." The
judge agreed, and "ask[ed] the court officers, for the purposes
of this rape shield hearing, to make sure that no member of the
public comes in for a short period of time." Defense counsel
requested "that Mr. Jones's family be allowed to be with him
during this stage of the trial." The judge asked, "They would
be members of the public, no?" Defense counsel argued that, as
"with any trial proceeding, [the defendant] should have the
right to have the support of his family there." The parties
then disputed the purpose of the rape shield statute, with the
defendant contending that its purpose is to guard against
evidence introduced for the "improper purpose" of arguing that
the victim's lack of chastity established consent, rather than
for the more general purpose of "protecting the privacy of the
alleged victim." The judge, after noting that the statute
25
specifically provides for an "in camera hearing," denied the
defendant's request and closed the court room.
Following his conviction, the defendant moved for a new
trial on the basis of the court room closure during the rape
shield hearing. In support of his motion, the defendant
submitted affidavits from various individuals who indicated that
they were excluded from the court room during the hearing. The
Commonwealth stipulated that potential observers were excluded
from the hearing, and did not argue that the public trial issue
was unpreserved. The motion judge denied the motion, concluding
that the court room was closed properly during the rape shield
hearing in accordance with the requirements of G. L. c. 233,
§ 21B, the rape shield law.
The rape shield law provides:
"Evidence of the reputation of a victim's sexual
conduct shall not be admissible in an investigation or
proceeding before a grand jury or a court of the
commonwealth for a violation of [certain sexual offense
statutes]. Evidence of specific instances of a victim's
sexual conduct in such an investigation or proceeding shall
not be admissible except evidence of the victim's sexual
conduct with the defendant or evidence of recent conduct of
the victim alleged to be the cause of any physical feature,
characteristic, or condition of the victim; provided,
however, that such evidence shall be admissible only after
an in camera hearing on a written motion for admission of
same and an offer of proof. If, after said hearing, the
court finds that the weight and relevancy of said evidence
is sufficient to outweigh its prejudicial effect to the
victim, the evidence shall be admitted; otherwise not. If
the proceeding is a trial with jury, said hearing shall be
held in the absence of the jury. The finding of the court
shall be in writing and filed but shall not be made
26
available to the jury."
G. L. c. 233, § 21B. In addition to the express exceptions to
inadmissibility articulated in the statute, this court has
determined "that other exceptions may arise under the United
States Constitution and the Massachusetts Declaration of
Rights." Commonwealth v. Mountry, 463 Mass. 80, 86 (2012). One
of these exceptions applies where evidence that otherwise would
be barred by the statute "is relevant to the question of a
victim's bias or motive to fabricate." Id.
The motion judge, who was also the trial judge, rejected
the defendant's contention "that G. L. c. 233, § 21B[,] allows
for public attendance at its required 'in camera hearing,'" and
concluded that this mandatory closure rule was permissible. We
agree with the motion judge that the requirement of G. L.
c. 233, § 21B, for "an in camera hearing" indicates that the
court room must be closed during the proceeding. The term "in
camera" derives from the Latin meaning "in a chamber," and may
denote a proceeding taken either "[i]n the judge's private
chambers" or "[i]n the court room with all spectators excluded."
Black's Law Dictionary 878 (10th ed. 2010). Under either
definition, therefore, an "in camera hearing" denotes one from
which the public is excluded.
While we agree with the motion judge that the statute
provides for mandatory closure of the rape shield hearing, we
27
conclude that the mandatory closure rule is impermissible. In
reaching that conclusion, we emphasize at the outset that we do
not question the compelling interest underlying the rape shield
statute. That statute, like similar statutes in other States,
was enacted in response to the pervasive practice of attacking a
victim's testimony that she did not consent to sex with evidence
of the victim's "lack of chastity." Commonwealth v. Joyce, 382
Mass. 222, 227-228, 231 (1981) ("The major innovative thrust of
the rape-shield statute is found in the first sentence, which
reverses the common law rule under which evidence of the
complainant's general reputation for unchastity was
admissible"). See Berger, Man's Trial, Woman's Tribulation:
Rape Cases in the Courtroom, 77 Colum. L. Rev. 1, 17 (1977)
(Berger). And although "[t]he primary purpose of the statute is
to prevent a general credibility attack of a victim with
evidence of his or her promiscuity," Commonwealth v. Mountry,
463 Mass. at 86, the statute's requirement for an "in camera
hearing" on the admissibility of evidence of sexual conduct
reflects a legitimate interest in guarding against the public
"revelation of facts that can only smear" a rape victim, and in
"protecting complainants and encouraging victim cooperation in
bringing suspected assailants to trial." See Berger, supra at
96.
We also stress the narrowness of our holding: we do not
28
determine that this particular rape shield hearing should have
been open to the public, much less that all rape shield hearings
must be open to the public. Instead, we merely conclude that,
before a judge may order the court room closed for a rape shield
hearing, the judge must make a case-by-case determination in
accordance with the four-prong framework articulated by the
United States Supreme Court in Waller, 467 U.S. at 48, decided
after the enactment of the rape shield law at issue here.
The Sixth Amendment, which applies in State court
proceedings, guarantees to the accused "in all criminal
proceedings . . . the right to a speedy and public trial." See
In re Oliver, 333 U.S. 257, 267 (1948). The closing of a
criminal proceeding to the public also may implicate rights
guaranteed by the First Amendment to the United States
Constitution. See Commonwealth v. Cohen (No. 1), 456 Mass. 94,
106 (2010). "[T]he explicit Sixth Amendment right of the
accused," however, "is no less protective of a public trial than
the implicit First Amendment right of the press and public."
Waller, supra at 46. Because the public trial right is
constitutionally based, in reviewing an asserted violation of
the right, the court "exercise[s] its own judgment on the
ultimate factual as well as legal conclusions" (citation
omitted). Commonwealth v. Cohen (No. 1), supra at 105.
The Sixth Amendment right to a public trial "covers the
29
entire trial, including the impaneling of the jury and the
return of the verdict" (footnote omitted). 6 W.R. LaFave, J.H.
Israel, N.J. King, & O.S. Kerr, Criminal Procedure § 24.1(a) (3d
ed. 2007). See United States v. Sorrentino, 175 F.2d 721, 722
(3d Cir. 1949). Even where the public trial right attaches to a
given proceeding, however, the right is "not absolute." Globe
Newspaper Co. v. Superior Court for the County of Norfolk, 457
U.S. 596, 606 (1982) (Globe Newspaper Co.). A court room
closure may be permissible, provided the party seeking the
closure satisfies the four-part test articulated in Waller, 467
U.S. at 48: "[1] the party seeking to close the hearing must
advance an overriding interest that is likely to be prejudiced;
[2] the closure must be no broader than necessary to protect
that interest; [3] the trial court must consider reasonable
alternatives to closing the proceeding; and [4] it must make
findings adequate to support the closure."
Neither the United States Supreme Court nor this court has
articulated a clear test for determining the threshold question
whether a given proceeding constitutes part of the "trial" for
purposes of the public trial right. In Waller, supra, the
United States Supreme Court determined that the public trial
right attaches to a pretrial suppression hearing. In reaching
that conclusion, the Court identified several values that the
public trial right serves. Id. at 46-47. Various United States
30
Circuit Courts of Appeals have enumerated these values, and
turned to them to determine whether the public trial right
attaches to a given proceeding.
These courts have determined that the public trial right
attaches to a given proceeding where recognition of the right
would serve "1) to ensure a fair trial; 2) to remind the
prosecutor and judge of their responsibility to the accused and
the importance of their functions; 3) to encourage witnesses to
come forward; and 4) to discourage perjury." Peterson v.
Williams, 85 F.3d 39, 43 (2d Cir. 1996). See United States v.
Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012); United States v.
Perry, 479 F.3d 885, 890-891 (D.C. Cir. 2007); Braun v. Powell,
227 F.3d 908, 918-919 (7th Cir. 2000). Based on these factors,
these courts have found violations of the public trial right
where the court room was closed "during [a] hearing" at which
"matters of vital importance were discussed and decided."
United States v. Rivera, supra at 1232 (finding violation of
public trial right where defendant's family members were
excluded from sentencing proceedings). By contrast, courts have
rejected Sixth Amendment challenges based on court room closures
during "routine jury administrative matters," United States v.
Ivester, 316 F.3d 955, 960 (9th Cir. 2003) (finding no violation
of public trial right where judge closed court room to address
jurors' concerns about their safety), or where the closure was
31
"so trivial as not to implicate the right to a public trial."
Carson v. Fischer, 421 F.3d 83, 92 (2d Cir. 2005) (no violation
of public trial right where judge excluded defendant's ex-
mother-in-law from court room during testimony of single
witness). See Braun v. Powell, supra at 919 (no violation where
judge excluded former member of venire from trial); Peterson v.
Williams, supra at 41 (no violation where judge inadvertently
closed court room during defendant's testimony, which lasted
approximately fifteen to twenty minutes).
A rape shield hearing is neither a routine administrative
matter nor is it "trivial" to the trial. On the contrary, a
rape shield hearing has a far closer kinship to pretrial
suppression hearings, to which the United States Supreme Court
decided in Waller that the Sixth Amendment public trial right
attaches, than to any of the routine administrative matters that
courts have subsequently determined may be conducted in a closed
court room. Like a pretrial suppression hearing, the
determination emerging from a rape shield hearing often will
have a critical impact on the trial itself, particularly in
cases that hinge on the issue of consent. Additionally, the
admissibility of evidence otherwise barred under the rape shield
law hinges on a showing that the evidence fits into one of the
exceptions to the statute, and that its "weight and
relevancy . . . is sufficient to outweigh its prejudicial effect
32
to the victim." G. L. c. 233, § 21B. The outcome of a rape
shield hearing, then, like that of a pretrial suppression
hearing, "frequently depends on a resolution of factual
matters." Waller, 467 U.S. at 47.
Citing a decision of the United States Court of Appeals for
the First Circuit in United States v. Vazquez-Botet, 532 F.3d
37, 51-52 (1st Cir. 2008), the Commonwealth contends that the
rape shield hearing is "more akin to 'question-and-answer' offer
of proof hearings . . . than to potentially dispositive
suppression hearings to which the public trial right applies."
In that decision, however, the United States Court of Appeals
for the First Circuit expressly "le[ft] open the possibility
that the public-trial right may apply to some offer-of-proof
hearings," only "declin[ing] to recognize such a right on facts
as uncompelling as these." Id. at 52. In concluding that the
public trial right did not attach to the particular offer of
proof hearing at issue in that case, moreover, the court
emphasized that the hearing "differed in at least two
fundamental respects from the categories of non-trial hearings
to which the Sixth Amendment public-trial right has been held to
apply in the past . . . . First, the evidence elicited at the
hearing had already . . . been ruled irrelevant. . . . Second,
the district court was under no obligation to hold the hearing
in the first place, but chose to do so for our and the
33
defendants' benefit . . . ." Id.
Here, by contrast, the judge did not hold the rape shield
hearing solely "in order to create a record" of a relevancy
decision that it had already made for appellate review. Id. at
45. On the contrary, it was only after the rape shield hearing,
and on the basis of the testimony presented and the arguments
offered by the attorneys at that hearing, that the judge here
made his decision regarding the admissibility of the evidence of
the victim's prior sexual conduct. Furthermore, the judge had
no choice whether to hold the hearing. Rather, the judge was
obligated, under the rape shield statute, to hold the hearing
before reaching a decision on the admissibility of evidence
purportedly barred by the statute.
In determining that the public trial right attaches to a
rape shield hearing, we acknowledge that courts of other States
have reached differing conclusions. On the one hand, the
Connecticut Supreme Court has held that a trial judge erred in
justifying the closure of the court room for a rape shield
hearing on the basis of a "general reference to the rape shield
statute," as also occurred here. State v. Kelly, 208 Conn. 365,
374 (1988). Instead, the court held that, before closing the
court room, the trial judge should have made the case-specific
"findings as required by Waller." Id. See Kelly v. Meachum,
950 F. Supp. 461, 468 (D. Conn. 1996) (on collateral challenge
34
to defendant's conviction, "concur[ring] with the [Connecticut]
Supreme Court's finding that the trial court improperly closed
the courtroom at the petitioner's trial in that the trial court
failed to make any findings adequate to support the closure,"
but rejecting Connecticut Supreme Court's requirement that
petitioner prove prejudice to obtain relief for Sixth Amendment
violation).
On the other hand, courts in Oregon and North Carolina have
rejected public trial challenges to statutes mandating the
closure of court rooms during rape shield hearings. See State
v. McNeil, 99 N.C. App. 235, 242 (1990); State v. MacBale, 353
Or. 789, 813-815 (2013); State v. Blake, 53 Or. App. 906, 909-
920 (1981). The crux of the reasoning in these decisions is
that, because a "rape shield" hearing "is a preliminary one and
is conducted only to exclude from the trial that which is
irrelevant to the proceeding," and because "[u]nder the rules of
evidence, that which is irrelevant should not be heard at all,"
the closure of the court room for the hearing does not violate
the defendant's Sixth Amendment right to a public trial. State
v. Blake, supra at 919. See State v. MacBale, supra at 814;
State v. McNeil, supra.
We are not persuaded by the analysis in these decisions.
First, evidence barred under the rape shield statute does not
necessarily fail to meet the "minimal standard" of
35
"[r]elevancy." State v. Blake, 53 Or. App. at 919. On the
contrary, Massachusetts's rape shield statute precludes the
admission of evidence concerning a victim's past sexual conduct
unless the evidence fits within the exceptions to the statute
and the judge finds "that the weight and relevancy of said
evidence is sufficient to outweigh its prejudicial effect to the
victim." G. L. c. 233, § 21B. The statute, then, contemplates
situations in which evidence is relevant, but its relevance is
outweighed by its prejudicial effect to the victim. Second, the
rape shield hearing may result in a finding that the weight and
relevancy of the evidence does outweigh its prejudicial effect,
and that the evidence consequently may be presented at trial.
In Waller, 467 U.S. at 43, the United States Supreme Court
observed that, following the petitioners' trial, "the transcript
of the suppression hearing was released to the public," yet the
public release of the transcript had no impact on the Court's
determination that the closure of the court room during the
hearing violated the petitioners' right to a public trial.
Similarly, the fact that a defendant "will ultimately have the
use of all . . . evidence" deemed relevant at the rape shield
hearing has no bearing on the constitutionality of the court
room closure during the hearing. State v. Blake, 53 Or. App. at
919. The subsequent presentation of certain evidence at trial
cannot "cure" the problem resulting from the mandatory closure
36
rule any more than the subsequent release of a pretrial
suppression hearing transcript could "cure" the closure of the
hearing. The notion that the ultimate presentation of evidence
at trial somehow may retroactively remedy the closure of the
hearing is particularly misguided because it was the improperly
closed hearing itself that determined the scope of the evidence
that could be presented at trial.
Finally, we discern no support for the assumption that the
public trial right attaches only to proceedings at which
relevant evidence is presented. On the contrary, the United
States Supreme Court has made clear that the public right
"extends beyond the actual proof at trial." Waller, 467 U.S.
at 44. The right, for instance, encompasses the pretrial jury
selection process, Presley v. Georgia, 558 U.S. at 213; opening
statements by counsel, Commonwealth v. Patry, 48 Mass. App.
Ct. 470, 474 (2000); instructions to the jury, id.; the return
of the verdict, id.; and posttrial sentencing proceedings,
United States v. Rivera, 682 F.3d at 1228. At none of these
proceedings is relevant evidence presented, yet the public trial
right attaches to all of them because of the values that the
right serves. As the United States Supreme Court has explained,
"the right of access to criminal trials plays a particularly
significant role in the functioning of the judicial process and
the government as a whole. . . . [I]n the broadest terms,
37
public access to criminal trials permits the public to
participate in and serve as a check upon the judicial process --
an essential component in our structure of self-government."
Globe Newspaper Co., 457 U.S. at 606.
Courts that have determined that the public trial right
does not attach to a rape shield proceeding have further
observed that "a rape victim who is examined about the details
of her personal sexual background may be less likely to be
forthcoming if forced to discuss the matter in open court."
State v. MacBale, 353 Or. at 814. See State v. Blake, 53 Or.
App. at 920. That analysis confuses the threshold inquiry into
whether the public trial right attaches to a rape shield hearing
at all with the ultimate validity of a decision to close the
court room during the hearing. The "public trial guarantee" is
"one created for the benefit of the defendant," Gannett Co. v.
DePasquale, 443 U.S. 368, 380 (1979); it is built on the premise
that "[t]he knowledge that every criminal trial is subject to
contemporaneous review in the forum of public opinion is an
effective restraint on possible abuse of judicial power." In re
Oliver, 333 U.S. 257, 270 (1948). In light of the important
role that the public trial guarantee provides in protecting the
rights of criminal defendants, we decline to conclude that a
crucial hearing, whose outcome has a significant impact on a
prosecution, falls outside of the public trial right altogether.
38
That conclusion does not mean, however, that we cannot
consider other interests, including the interest in guarding
against "harassment and further humiliation of the victim"
(citation omitted). Commonwealth v. Joyce, 382 Mass. at 228.
As noted, the public trial right is not absolute, but may give
way in the face of "an overriding interest." Waller, 467 U.S.
at 48. Accordingly, the judge is free to consider, among other
things, the complainant's privacy interests and the potential
impact that the public disclosure of intimate details concerning
a rape victim's sexual history may have on a complainant's
willingness to come forward.
Indeed, this court and others have upheld court room
closures in a variety of contexts where trial judges complied
with these constitutional requirements. In Commonwealth v.
Caldwell, 459 Mass. 271, 283-284 (2011), for instance, we
concluded that the trial judge, after making the findings
required by Waller, properly excluded from the court room
spectators who threatened a court officer with bodily harm.
Other courts have concluded that a trial judge, again after
making the findings required by Waller, properly closed the
court room during an undercover police officer's testimony
during a drug trial. See, e.g., Brown v. Kuhlmann, 142 F.3d
529, 537-539 (2d Cir. 1998); People v. Jones, 96 N.Y.2d 213, 220
(2001). Similarly, this court has found that, generally, "the
39
judge's verification of the validity of" an assertion of the
privilege against self-incrimination must "be based on
information provided in open court." Pixley v. Commonwealth,
453 Mass. 827, 833 (2009). A judge may hold an in camera
hearing (called a "Martin hearing," see Commonwealth v. Martin,
423 Mass. 496 [1996]) on the validity of an assertion of the
right against self-incrimination only after holding an open
hearing at which the parties are "invite[d] . . . to provide the
court with information that may shed light on whether the
witness's testimony . . . could possibly tend to incriminate
him." Pixley v. Commonwealth, supra. "Only in those rare
circumstances where this information is inadequate to allow the
judge to make an informed determination should the judge conduct
an in camera Martin hearing with the witness to verify the claim
of privilege." Id. ("a Martin hearing should be conducted only
as an exception to the general rule that the judge's
verification of the validity of the privilege be based on
information provided in open court"). See Commonwealth v.
Sanders, 451 Mass. 290, 295–296 (2008).
Our conclusion that the public trial right attaches to rape
shield hearings, therefore, does not mean that such hearings
must be open to the public. It does not contemplate a major
change in the practice of court room closures during rape shield
hearings; the State's overriding interest in protecting the
40
privacy rights of rape victims and the absence of any other more
narrowly tailored means of accommodating that interest may well
mean that the majority of rape shield proceedings properly are
closed. Our conclusion simply means that, in view of the
importance of the public trial right, before the court room
properly may be closed during a rape shield procedure, the trial
judge must conduct an individualized analysis consistent with
the constitutional requirements set forth in Waller, supra.
The United States Supreme Court's decision in
Globe Newspaper Co., 457 U.S. at 598, is instructive. That case
concerned a statute that required the closure of a court room
during the testimony of child victims of sexual assault. The
Commonwealth contended that the statute sought to protect "minor
victims of sex crimes from further trauma and embarrassment."
Id. at 607. The Court agreed that the Commonwealth's asserted
interest was "a compelling one." Id. The Court concluded,
however, that, "as compelling as that interest is, it does not
justify a mandatory closure rule," noting that "[a] trial court
can determine on a case-by-case basis whether closure is
necessary to protect the welfare of a minor victim." Id. at
607-608. The Court further concluded that, because the statute
"requires closure even if the victim does not seek the exclusion
of the press and general public," and because the statute did
not take into account whether "the names of the minor victims
41
were already in the public record" or whether the victims would
"have been willing to testify despite the presence of the
press," the statute could not "be viewed as a narrowly tailored
means of accommodating the State's asserted interest." Id. at
608-609. See G. L. c. 278, § 16D (b) (1) (requiring judicial
determination before child witness's testimony may be offered in
closed court room).
The same reasoning applies to the rape shield law. The
public undoubtedly does have a compelling interest in protecting
the privacy rights of rape victims and guarding against
retraumatization through the public disclosure of intimate
details regarding their past sexual conduct. Like the similarly
compelling interest in protecting minor victims of sexual abuse,
however, the interest in protecting rape victims does not
require a mandatory closure rule, which commands that the
proceeding be conducted in camera regardless of the wishes of
the victim or any other factors that might argue against
closure. In sum, the mandatory closure rule cannot be regarded
as narrowly tailored to the State's compelling interest in
protecting rape victims against retraumatization and smear
tactics, because that interest could be served equally well by a
case-by-case assessment, in accordance with the constitutional
framework articulated in Waller. On remand for a new trial,
therefore, the trial judge may close the rape shield hearing
42
only after making the findings as required by Waller.
Finally, we make a few remarks to clarify the implications
of our determination regarding the public trial issue for other
cases. Here, we are ordering a new trial on the basis of the
impermissible admission of the first expert's testimony
concerning how the swabs she tested were collected. Because the
trial must be conducted anew, so must the rape shield hearing,
if the defendant again seeks to offer evidence of the
complainant's prior sexual interactions with the first complaint
witness. In doing so, the judge must conduct the individualized
analysis required by Waller before ordering a court room
closure. While a violation of the public trial right is a
structural error, the failure to comply with the Waller
requirements before ordering a court room closure does not,
standing alone, require a new trial. Waller, 467 U.S. at 49-50.
See Commonwealth v. Cohen (No. 1), 456 Mass. 94, 118-119 (2010).
Rather, in Waller itself, the United States Supreme Court, after
concluding that the suppression hearing was closed improperly,
held that "the remedy should be appropriate to the violation."
Waller, 467 U.S. at 50. Consequently, the Court required only a
new suppression hearing, observing that, "[i]f, after a new
suppression hearing, essentially the same evidence is
suppressed, a new trial presumably would be a windfall for the
defendant, and not in the public interest." Id. Based on the
43
Waller Court's observations, various courts have concluded that,
where a court room closure could have been justified, but the
judge failed to comply with the requirement for individualized
findings under Waller, the proper course is "to remand the
case . . . for a hearing to reconstruct the circumstances that
existed at the time of the trial and to determine whether the
application to close the courtroom was well justified."
Gonzalez v. Quinones, 211 F.3d 735, 738 (2d Cir. 2000). See
United States v. Galloway, 937 F.2d 542, 547 (10th Cir. 1991);
State v. Weber, 137 N.H. 193, 197 (1993).
We believe that the same approach is appropriate where a
trial judge improperly closed a rape shield hearing without
making the case-specific findings required in Waller. In such
cases, assuming the objection to the closure of the hearing was
properly preserved, and the case is still on direct appeal, the
proper remedy will be to remand to the trial judge to determine
whether the circumstances that existed at the time of the trial
would have warranted the closure of the court room for the rape
shield hearing. Even if the judge concludes that the
circumstances did not warrant the closure of the hearing, the
result will not necessarily be a new trial. Rather, the judge
should then conduct the rape shield hearing anew. If the new
rape shield hearing results in a determination regarding the
admissibility of evidence of prior sexual conduct by the victim
44
that is "essentially the same" as the determination that emerged
from the original hearing, then no new trial is required. See
Waller, 467 U.S. at 50. A new trial will be necessary as a
result of our holding, therefore, only if the circumstances that
existed at the time of the trial did not justify the court room
closure during the rape shield hearing, and only if the judge's
decision in the wake of the new rape shield hearing is not
"essentially the same" as the decision that emerged from the
original rape shield hearing.
c. Remaining arguments. The defendant offers two
additional arguments. Because we have granted a new trial on
the basis of the expert's improper testimony, we address these
issues only briefly.
First, the defendant argues that his rights to a fair
trial, to confront witnesses against him, and to present a
defense were violated by the judge's decision to prohibit
defense counsel from questioning either the victim or Tim about
their prior sexual contact. Because this decision was based on
the testimony and argument presented at the closed rape shield
hearing, and our remand may result in a new rape shield hearing,
we do not address the defendant's argument at this time.
Second, the defendant argues that the judge erred in
instructing the jury regarding the impact of the defendant's
voluntary intoxication on whether he "reasonably should have
45
known" of the victim's capacity to consent. In response to a
jury question regarding the meaning of "reasonably should have
known," the judge indicated that the phrase denotes "an
objective rather than subjective standard" that "requires you to
consider all of the believable evidence in determining
whether . . . an ordinary, prudent person would have considered
the complainant too impaired to give consent." In its brief,
the Commonwealth acknowledges that the jury instruction was
inconsistent with this court's subsequent decision in
Commonwealth v. Mountry, 463 Mass. at 92, where we held that the
"element of knowledge is not purely objective," and that the
Commonwealth must "prove what the defendant reasonably should
have known, not what the average reasonable unintoxicated person
would have known" (quotation omitted). Because that case was
decided after the defendant's trial, however, and because the
new standard it articulates is a common-law rule and is not
constitutionally compelled, the Commonwealth argues that it
should be applied only prospectively. Since we are remanding
for a new trial, we need not address this question. At the
defendant's new trial, the judge should instruct the jury in
accordance with the new standard articulated in Commonwealth v.
Mountry, supra.
3. Conclusion. The defendant's convictions are vacated
and set aside. The matter is remanded to the Superior Court for
46
a new trial and for other proceedings consistent with this
opinion.
So ordered.
GANTS, C.J. (concurring, with whom Spina, J., joins). I
agree with the court that making a determination in accordance
with Waller v. Georgia, 467 U.S. 39, 48-50 (1984), is
constitutionally required before closing a court room to conduct
a rape shield hearing under G. L. c. 233, § 21B. Ante at .
I also recognize that, because § 21B requires the hearing to be
conducted "in camera," the public has been excluded from the
court room without a Waller determination for most, if not all,
rape shield hearings conducted prior to the issuance of this
opinion. Consequently, some may fear that this opinion will
generate a plethora of motions for a new trial claiming
structural error as a result of the violation of the public
trial right. I write separately to provide some perspective.
A motion for new trial (or a claim on direct appeal) based
on the absence of a Waller determination will almost certainly
be futile unless, as in this case, the defendant objected to the
closing of the court room at the time of the rape shield
hearing. Ante at . I doubt that many defendants timely made
such an objection. Without doing so, a defendant will be deemed
to have waived his or her claim of error regarding the closure
of the court room for such a hearing, and may only claim that
defense counsel was ineffective for having failed to object.
See Commonwealth v. Morganti, 467 Mass. 96, 102-103, cert.
denied, 135 S. Ct. 356 (2014) ("the right to a public trial may
2
be procedurally waived by a failure to lodge a timely objection
to the offending error," and if waived, "we still may have
occasion to review that error in the postconviction context of a
challenge to trial counsel's effectiveness in failing to raise
the objection"). To prevail, a claim of ineffective assistance
of counsel would require a finding that a substantial risk of a
miscarriage of justice arose from the absence of such an
objection, and under these circumstances it is difficult to
imagine a case where such a finding would be warranted. See
Commonwealth v. LaChance, 469 Mass. 854, 857-858 (2014).
In the rare case where a defendant has preserved his or her
claim of error by objecting to the closure of the court room
during a rape shield hearing, the remedy the court provides is a
remand for a posttrial Waller hearing, where the trial judge (or
another judge, if the trial judge is no longer on the bench)
will determine whether the closure of the court room would have
satisfied the constitutional requirements of Waller had the
judge made a Waller determination at the time of trial. Ante
at . The court states in its opinion that "the State's
overriding interest in protecting the privacy rights of rape
victims and the absence of any other more narrowly tailored
means of accommodating that interest may well mean that the
majority of rape shield proceedings properly are closed." Ante
at . Thus, I expect that few, if any, posttrial Waller
3
hearings will lead to a finding that the court room would not
have been closed had the judge made a Waller determination at
the time of trial.
Where there is such a finding, the court makes clear that
the remedy is a new rape shield hearing with an open court room,
not a new trial. Ante at . A new trial will be required
only if the judge determines at the new rape shield hearing that
significant evidence of prior sexual conduct by the victim,
which was found inadmissible at the earlier rape shield hearing,
would be admissible at a new trial. Id. I can understand why a
judge, upon revisiting a rape shield issue, may come to a
different conclusion regarding the admissibility of evidence of
the victim's prior sexual conduct, but it is hard to imagine
that this determination would be materially affected by whether
the court room was open or closed.
Consequently, I foresee that very few, if any, defendants
will receive a new trial as a result of this opinion. As with
Waller, the opinion here is not limited to prospective
application, but its practical impact will be.