structural error in Massachusetts

2018"A structural error is one that so infringes on a defendant's right to basic components of a fair trial that it can never be considered harmless." Commonwealth v. Villanueva , 47 Mass. App. Ct. 905 , 906 (1999), citing Arizona v. Fulminante , 499 U.S. 279 , 309 (1991). "[C]onstructive denials of counsel rising to a level of structural error occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system." Commonwealth v. Valentin , 470 Mass. 186 , 197 (2014).

2010A structural error is an error that “so infringes on a defendant’s right to the basic components of a fair trial that it can never be considered harmless.” Commonwealth v. Bynoe, 49 Mass.App.Ct. 687, 693 (2000), quoting Arizona v. Fulimante, 499 U.S. 279, 309 (1991).

2017See Commonwealth v. Figueroa, 468 Mass. 204, 220 (2014). 31 "A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards." Commonwealth v. Russell, 470 Mass. 464, 468 (2015), quoting Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995).

2017“A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards.” Commonwealth v. Russell, 470 Mass. 464, 468 (2015), quoting Commonwealth v. Pinckney, 419 Mass. 341, 342 (1995).

2011A violation of the right to a public trial “is a structural error and not susceptible to harmless error analysis.” Commonwealth v. Cohen (No. 1), supra at 105, quoting Commonwealth v. Baran, 74 Mass. App. Ct. 256, 296 (2009).

2011“Denial of a defendant’s Sixth Amendment right to a public trial is a structural error that is not susceptible to harmless error analysis. [Cohen, 456 Mass.] at 105, citing Commonwealth v. Baran, 74 Mass. App. Ct. 256, 296 (2009).

2023See LaChance, 469 Mass. at 857 .

2023As the court explained, "[t]o presume prejudice in this context would ignore the distinction, one long recognized by [the] court, between properly preserved and waived claims." Id., quoting Commonwealth v. LaChance, 469 Mass. 854, 857 (2014), cert. denied, 577 U.S. 922 (2015).

2011Even so, we must determine whether the defendant raised the issue in a timely manner because “the right to a public trial, like other structural rights, can be waived.” Commonwealth v. Cohen (No. 1), 456 Mass. 94, 105-106 (2010), quoting Commonwealth v. Edward, 75 Mass. App. Ct. 162, 173 (2009).

2011However, the court considers “whether the defendant raised this issue in a timely manner because ‘the right to a public trial, like other structural rights, can be waived.’ ” Commonwealth v. Cohen (No. 1), supra at 105-106, quoting Commonwealth v. Edward, 75 Mass. App. Ct. 162, 173 (2009). 7 Unlike waiver of the right to counsel, see Commonwealth v. Means, 454 Mass. 81, 89-90 (2009), this court has not required that waiver of public trial rights be memorialized in a colloquy.

2009Accord Sullivan v. Louisiana, 508 U.S. 275, 280 (1993).

2000See Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993).” Commonwealth v. Pinckney, supra at 342 . 3 The defendant argues that he did not have a “genuine opportunity,” DeJoinville v. Commonwealth, 381 Mass. 246, 251 (1980), to raise a moral certainty claim until after the United States Supreme Court’s 1990 decision in Cage v. Louisiana, supra, and its 1994 decision in Victor v. Nebraska, supra. Thus, he asserts he did not waive this claim.

2011We derive the template for analysis from Commonwealth v. Cohen (No. 1), 456 Mass. 94, 106-119 (2010) (Cohen), which held in the context of a direct appeal that a partial closure of the courtroom during jury selection had violated the defendant’s Sixth Amendment right to a public trial, that he had not waived that right, and that this structural error mandated reversal and remand for a new trial.

2010The violation of a right to a public trial “is a structural error and not susceptible to harmless error analysis.” Commonwealth v. Cohen, 456 Mass. at 105 , quoting from Commonwealth v. Baran, 74 Mass. App. Ct. 256, 296 (2009).

2015Waller, 467 U.S. at 49-50 .

2015Waller, 467 U.S. at 49-50 .

2014In Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007), the United States Court of Appeals for the First Circuit presumed prejudice where a defendant advanced a claim of ineffective assistance of counsel based on counsel’s failure to object to a public trial structural error.

2014In Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007), the United States Court of Appeals for the First Circuit presumed prejudice where a defendant advanced a claim of ineffective assistance of counsel based on counsel's failure to object to a public trial structural error.

2018"A structural error is one that so infringes on a defendant's right to basic components of a fair trial that it can never be considered harmless." Commonwealth v. Villanueva , 47 Mass. App. Ct. 905 , 906 (1999), citing Arizona v. Fulminante , 499 U.S. 279 , 309 (1991). "[C]onstructive denials of counsel rising to a level of structural error occur only where the defendant essentially is denied the assistance of any qualified attorney who could theoretically represent him in a way that does not undermine our trust in the adversary system." Commonwealth v. Valentin , 470 Mass. 186 , 197 (2014).

2014In Dancy , we indicated that a sleeping juror was “a structural error . . . that so infringes on a defendant’s right to the basic components of a fair trial that it can never be considered harmless.” 75 Mass. App. Ct. at 182 , quoting from Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 906 (1999).

2025See Commonwealth v. Monroe, 472 Mass. 461, 472 (2015); Commonwealth v. Durand, 457 Mass. 574, 592 (2010). 4 was like wrapped around his left leg, not letting go, and [Moore] was just trying to like slowly get himself off the train." Moeller did not arrive on the scene until the couple were already on the platform.

2015See Durand, supra (reserving for another day whether structural error applies).

2021The doctrine of structural error, however, "does not control civil issues." Adoption of Gabe, 84 Mass. App. Ct. 286, 293 (2013).

2021The doctrine of structural error, however, "does not control civil issues." Adoption of Gabe, 84 Mass. App. Ct. 286, 293 (2013).

2015“A constitutionally deficient reasonable doubt instruction amounts to a structural error which defies analysis by harmless error standards.” Pinckney, supra. 4 “[T]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Pinckney, 419 Mass. at 342 , quoting Victor v. Nebraska, 511 U.S. 1, 5 (1994).

2000See Sullivan v. Louisiana, 508 U.S. 275, 281-282 (1993).” Commonwealth v. Pinckney, supra at 342 . 3 The defendant argues that he did not have a “genuine opportunity,” DeJoinville v. Commonwealth, 381 Mass. 246, 251 (1980), to raise a moral certainty claim until after the United States Supreme Court’s 1990 decision in Cage v. Louisiana, supra, and its 1994 decision in Victor v. Nebraska, supra. Thus, he asserts he did not waive this claim.

2019The defendant claims that striking the prospective juror for cause resulted in structural error, 10 warranting automatic reversal for two different reasons: (1) it effectively resulted in an extra peremptory challenge for the Commonwealth; and (2) it infringed on the defendant's constitutional right to a jury comprised of a representative cross section of the community. 11 Structural error is "[g]enerally ... error that 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Commonwealth v. Hampton , 457 Mass. 152 , 163, 928

2019The defendant claims that striking the prospective juror for cause resulted in structural error, 10 warranting automatic reversal for two different reasons: (1) it effectively resulted in an extra peremptory challenge for the Commonwealth; and (2) it infringed on the defendant's constitutional right to a jury comprised of a representative cross section of the community. 11 Structural error is "[g]enerally ... error that 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Commonwealth v. Hampton , 457 Mass. 152 , 163, 928

2024Where a judge observes a sleeping juror, or where a judge becomes aware of reliable information indicating that a juror is asleep, the judge is required to act promptly "to protect the 1 The defendant contends that this constitutes structural error, thereby relieving him of the obligation to demonstrate prejudice, but "[s]tructural errors can be procedurally waived just like any other constitutional error." Ralph R., 490 Mass. at 785, quoting Commonwealth v. Francis, 485 Mass. 86 , 108 (2020). 2 rights of the defendant and the rights of the public." Commonwealth v. Dancy, 75 Mass. App. Ct. 175

2014In Dancy , we indicated that a sleeping juror was “a structural error . . . that so infringes on a defendant’s right to the basic components of a fair trial that it can never be considered harmless.” 75 Mass. App. Ct. at 182 , quoting from Commonwealth v. Villanueva, 47 Mass. App. Ct. 905, 906 (1999).

2019The defendant claims that striking the prospective juror for cause resulted in structural error, 10 warranting automatic reversal for two different reasons: (1) it effectively resulted in an extra peremptory challenge for the Commonwealth; and (2) it infringed on the defendant's constitutional right to a jury comprised of a representative cross section of the community. 11 Structural error is "[g]enerally ... error that 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Commonwealth v. Hampton , 457 Mass. 152 , 163, 928

2019The defendant claims that striking the prospective juror for cause resulted in structural error, 10 warranting automatic reversal for two different reasons: (1) it effectively resulted in an extra peremptory challenge for the Commonwealth; and (2) it infringed on the defendant's constitutional right to a jury comprised of a representative cross section of the community. 11 Structural error is "[g]enerally ... error that 'necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.' " Commonwealth v. Hampton , 457 Mass. 152 , 163, 928

2013In support of his argument, the defendant cites Deck v. Missouri, 544 U.S. 622, 628-629 (2005) (Deck) (Fifth and Fourteenth Amendments prohibit use of physical restraints visible to jury absent discretionary decision by trial judge that they are justified by State interest specific to particular trial).

2011The defendant cites to Deck v. Missouri, 544 U.S. 622 (2005) (Deck), in support of his argument that this was structural error.

2025See Commonwealth v. Monroe, 472 Mass. 461, 472 (2015); Commonwealth v. Durand, 457 Mass. 574, 592 (2010). 4 was like wrapped around his left leg, not letting go, and [Moore] was just trying to like slowly get himself off the train." Moeller did not arrive on the scene until the couple were already on the platform.

2025Assuming arguendo that the defendant's appellate counsel on direct appeal was ineffective for failing to fully investigate the defendant's mental illness, we agree with the motion judge that the record raises no bona fide doubt as to the defendant's competency to waive the right to counsel such that the failure to investigate "deprived the defendant of an otherwise available, substantial 11 ground of defense." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). 6 6 Although we reject the defendant's structural error argument and his ineffective assistance of appellate counsel argument, we do no

2024However, "[j]udges have substantial discretion in this area," Commonwealth v. McGhee, 470 Mass. 638, 644 (2015), and "not every instance of juror inattentiveness calls for a voir dire," Ralph R., 490 Mass. at 778.

2024The defendant argues that this violated the rule established by Commonwealth v. Flebotte, 417 Mass. 348, 355 (1994), requiring trial judges on request in future cases "to question each potential juror individually as to whether the juror had been a victim of a childhood sexual offense." According to the defendant, this amounted to structural error, and his first appellate counsel provided ineffective assistance by failing to raise the error in the direct appeal.

2023"Although the Sixth Amendment to the United States Constitution and art. 12 of the Declaration of Rights of the Massachusetts Constitution guarantee the right to be tried by an impartial jury, there is no Federal or State constitutional right to exercise peremptory challenges." Commonwealth v. Mello, 420 Mass. 375, 396 (1995).

2023See, e.g., Commonwealth v. Oberle, 476 Mass. 539, 545 (2017) ("An erroneous denial of a peremptory challenge is a structural error, requiring reversal without a showing of prejudice").

2023"Rule 18 (a) [of the Massachusetts Rules of Criminal Procedure, 378 Mass. 887 (1979),] provides that criminal defendants have the right to be present at all critical stages of a court proceeding." Vazquez Diaz v. Commonwealth, 487 Mass. 336 , 343 (2021). "[A] defendant's right 'to be personally present at every step of the proceedings against him . . . is of ancient origin.'" Id., quoting Commonwealth v. Bergstrom, 402 Mass. 534, 543 (1988).

2021Although it may provide a "useful analogy" where constitutional rights are at issue, id., the grandparents had no constitutional rights at stake in the proceedings. 16Although we have commented favorably on the action of a judge presiding over a concurrent termination and guardianship case to give the guardianship petitioner "full access to the proceedings and the evidence" in the termination case, see Guardianship of Phelan, 72 Mass. App. Ct. at 749, quoting Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 333-334 (2008), these allusions to the discretionary decision of a single trial judge

2021Although it may provide a "useful analogy" where constitutional rights are at issue, id., the grandparents had no constitutional rights at stake in the proceedings. 16Although we have commented favorably on the action of a judge presiding over a concurrent termination and guardianship case to give the guardianship petitioner "full access to the proceedings and the evidence" in the termination case, see Guardianship of Phelan, 72 Mass. App. Ct. at 749, quoting Adoption of Yvette (No. 1), 71 Mass. App. Ct. 327, 333-334 (2008), these allusions to the discretionary decision of a single trial judge

2019See Williams, 481 Mass. at 456-457 (distinguishing cases such as this, in which error is structural).

2017But "[t]he Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Russell, supra, quoting Pinckney, supra. It suffices that the words used "impress[] upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused." Russell, supra, quoting Pinckney, supra at 344 .11 The phrase "moral certainty" if used "in isolation, without further explanation, might amount to an erroneous instruction on reasonable doubt." Pinckney, supra at 345 , citing Commonwealth v. Gagliardi, 418 Mass. 562,

2017But “[t]he Constitution does not require that any particular form of words be used in advising the jury of the government’s burden of proof.” Russell, supra, quoting Pinckney, supra. It suffices that the words used “impress[ ] upon the factfinder the need to reach a subjective state of near certitude of the guilt of the accused.” Russell, supra, quoting Pinckney, supra at 344 . 11 The phrase “moral certainty” if used “in isolation, without further explanation, might amount to an erroneous instruction on reasonable doubt.” Pinckney, supra at 345 , citing Commonwealth v. Gagliardi, 418 Mass. 562