COMMONWEALTH vs. GEORGE M. MARSHALL (and sixteen companion cases between the same parties).

COMMONWEALTH vs. GEORGE M. MARSHALL (and sixteen companion cases between the same parties).

356 Mass. 432

October 7, 1969 - December 1, 1969

Suffolk County

Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, SPIEGEL, & REARDON, JJ.

At a trial upon an indictment for a crime involving sex committed against a minor under eighteen years of age, it was error under G. L. c. 278, Section 16A, and the Sixth Amendment of the Constitution of the United States, made applicable by the Fourteenth Amendment, for the judge, upon the prosecutor's recommendation before the taking of any evidence, to allow only witnesses in the court room and to exclude therefrom the defendant's mother, sister, brother, and a friend; and the defendant's conviction must be reversed even though he showed no prejudice from the exclusion.

INDICTMENTS found and returned in the Superior Court on October 28, 1966.

The cases were tried before or heard by Sullivan, J.

Israel Bernstein for the defendant.

Robert N. Gross, Assistant District Attorney, for the Commonwealth.

WILKINS, C.J. The defendant was indicted for the crimes of sodomy, G. L. c. 272, Section 34; unnatural and lascivious acts with boys under sixteen, second offences, G. L. c. 272, Section 35A; indecent assault and battery upon boys under fourteen, G. L. c. 265, Section 13B; and being a lewd, wanton, and lascivious person in speech and behavior, G. L. c. 272, Section 53. There are seventeen indictments which were tried subject to G. L. c. 278, Sections 33A-33G, and are here on the defendant's appeal with many assignments of error. On so much of the indictments as did not charge second offences, he was tried to a jury, and found guilty on each. On the

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remaining portions of the indictments which charged second offences, he was tried jury waived and found guilty on each.

The evidence is extremely sordid. Beyond stating that it was ample to convict, [Note 1] we shall not defile our reports by repeating any of it.

The third assignment is that there was error in accepting the recommendations of the district attorney that the trial be conducted in a private hearing, allowing only the witnesses to be present in the court room, and denying the request of the defendant that his mother, sister, brother, and a friend be allowed in the court room. The reasons assigned are that the judge (1) violated the constitutional right of the defendant to a public hearing and (2) misconstrued the provisions of G. L. c. 278, Section 16A, which reads: "At the trial of a complaint or indictment for rape, incest, carnal abuse or other crime involving sex, where a minor under eighteen years of age is the person upon, with or against whom the crime is alleged to have been committed . . . the presiding justice shall exclude the general public from the court room, admitting only such persons as may have a direct interest in the case."

Both reasons are valid, and we need not consider any other assignments to determine the case.

Before any evidence was taken the judge allowed the district attorney's motion that "because of the age of the victims" the trial be in private hearing, allowing only the witnesses in the court room. Counsel for the defendant stated that the only spectators present were the defendant's mother, sister, brother, and a friend. The district attorney interjected, "I would object to that very strongly, Your Honor. That is precisely why I don't want them in the courtroom." Counsel for the defendant continued, "I would respectfully request that these people be allowed to remain in the courtroom." The judge ruled, "No. We will

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accept the recommendation and suggestion of the District Attorney." The defendant excepted.

In Commonwealth v. Blondin, 324 Mass. 564 , 570-571, it was stated by Chief Justice Qua, "There is nothing in the Constitution of this Commonwealth corresponding to the right to a `public trial' expressly granted by the Sixth Amendment to the Constitution of the United States, and there is nothing to prevent the enactment of such a statute as Section 16A." The Legislature, in enacting this (p. 571), "could reasonably determine that the public interest would be better served by exclusion. . . . It calls only for exclusion of `the general public' as distinguished from `such persons as may have a direct interest in the case.' It is to be strictly construed in favor of the general principle of publicity. The expression `such persons as may have a direct interest in the case' must be interpreted broadly. It was certainly not intended to be limited to the parties. . . . The intent was to distinguish between persons having a legitimate reason for being present and mere idle spectators who are often attracted in large numbers to sensational trials involving sex issues, not only to the detriment of the community but sometimes to the degradation of justice itself. We do not construe the statute as excluding a parent, husband, wife, or guardian of a defendant or even a friend whose presence he desires and who might give him legitimate assistance or comfort without interfering with the trial."

We are of opinion that there was error in excluding the mother, brother, sister, and friend of the defendant. Such a ruling was beyond the authorization in Section 16A. It was not a strict construction in favor of the general principle of publicity. We might wonder why the defendant would wish his mother or sister to hear evidence establishing his character as of the very lowest. Likewise it was not because the defendant wished assistance and comfort in testifying, as he did not take the stand. It is also improbable that the defendant could have been acquitted by any jury with the evidence so overwhelming and uncontradicted.

Such considerations cannot contravene the right of the

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defendant not only to a proper construction of Section 16A but to his rights under the Sixth Amendment to the Constitution of the United States. These rights outweigh also the district attorney's argument that the purpose of the exclusion was to spare the young witnesses the embarrassment of relating in public unusually degrading experiences.

The exclusion of the defendant's relatives and friend was in violation of the Sixth Amendment to the Constitution of the United States, which requires that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . .." "[W]ithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." In re Oliver, 333 U.S. 257, 271-272, n. 29. Even if we might be of opinion that violation of Section 16A was harmless error, we cannot reach that result under the Sixth Amendment. This is because we must assume that the court empowered to declare the supreme law of the land would assert that the Sixth Amendment was applicable to this trial under the Fourteenth Amendment. See Gideon v. Wainwright, 372 U.S. 335; Pointer v. Texas, 380 U.S. 400; Klopfer v. North Carolina, 386 U.S. 213. A showing of prejudice is not necessary for reversal of a conviction which is not the result of public proceedings. See Davis v. United States, 247 Fed. 394, 398-399 (8th Cir.); Tanksley v. United States, 145 F.2d 58, 59 (9th Cir.); United States v. Kobli, 172 F.2d 919, 921 (3d Cir.); Levine v. United States, 362 U.S. 610, 627n (dissenting opinion); annotation, 156 A. L. R. 265, 296; annotation, 48 A. L. R. 2d 1436, 1454.

Judgments reversed.

FOOTNOTES

[Note 1] The only exception to this statement is that with respect to one boy there were three indictments for unnatural acts (26,199, 26,200, 26,201) but evidence of but two offences.