The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 25, 2024
2024COA9
No. 21CA0309, People v. Roper — Constitutional Law — Sixth Amendment — Right to Public Trial — Partial Courtroom Closure — Waller Test — Findings
A division of the court of appeals resolves an open issue,
concluding that when a trial court’s findings under Waller v.
Georgia, 467 U.S. 39 (1984), are not sufficient to support a partial
courtroom closure, but a remand for further findings does not
appear to be futile, a limited remand is an appropriate remedy. COLORADO COURT OF APPEALS 2024COA9
Court of Appeals No. 21CA0309 Boulder County District Court No. 19CR447 Honorable Thomas F. Mulvahill, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Zachary Orion Roper,
Defendant-Appellant.
ORDER OF LIMITED REMAND
Division VII Opinion by JUDGE TOW Brown and Schock, JJ., concur
Announced January 25, 2024
Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 The COVID-19 pandemic had far-reaching effects on every
aspect of life, and the criminal justice system was certainly no
exception. Courts had to grapple with the difficult question of how
to conduct a jury trial in a manner that simultaneously protected
the defendant’s rights to a speedy and fair trial, while safeguarding
the health of the participants and the public. In particular, the
virus necessitated certain social distancing requirements, making
the task of providing a public trial even more challenging.
¶2 One common method adopted by courts was to provide an
audio and video livestream of the proceedings to the public. In
many cases, this included permitting the public to view the
proceedings while sitting, socially distanced, in a different
courtroom in the courthouse.
¶3 The trial court invoked this procedure when defendant,
Zachary Orion Roper, was tried for and convicted of sexual
assault (victim helpless) and sexual assault (victim incapable of
appraising the nature of their conduct). On appeal of his
conviction, Roper contends, among other things, that this
arrangement was a partial courtroom closure that was not
supported by sufficient findings. See Waller v. Georgia, 467 U.S.
1 39, 48 (1984) (holding that a trial court “must make findings
adequate to support the closure”). He further contends that the
failure to make adequate findings to justify the partial courtroom
closure constitutes structural error requiring automatic reversal of
his convictions.
¶4 Roper’s challenge requires us to resolve a question that has
often been mentioned but never conclusively resolved by a Colorado
appellate court: Does the trial court’s failure to make sufficient
findings at the time of the court closure amount to structural error
or can that insufficiency be remedied by remanding to the trial
court for further findings? We conclude that, where the trial court’s
findings are incomplete, but it appears that a remand would not be
futile, an appellate court is not precluded from remanding to the
trial court for more findings. We further conclude that such a
remand is appropriate here.
I. Background
¶5 Roper’s trial was originally scheduled for April 2020, but he
requested a continuance due to the COVID-19 pandemic. The
People agreed, and the case was continued. After a second
continuance, Roper’s trial was rescheduled for October 2020.
2 Roper asked for a third continuance because of the pandemic,
stating that he would waive his speedy trial right. Roper also
requested that four family members and four friends be permitted
to attend his trial in person. He asserted that not allowing these
people to be present in the courtroom during his trial would violate
his right to a public trial.
¶6 At the pretrial hearing, the trial court denied Roper’s request
for a third continuance. The trial court and parties then discussed
the modified trial procedures in place as a result of the pandemic.
The trial court noted that these procedures were “formulated with
the input of the district attorney, the office of the public defender,
probation, [and] security, and [were] ultimately vetted and approved
by Boulder County Public Health.”
¶7 The trial court also mentioned Waller and stated that “[w]e are
not going to be able to accommodate family members or friends in
the actual courtroom during the trial.” Instead, the trial court
advised the parties that, due to current COVID-19 health and safety
regulations, jury selection would be done in one of two essentially
identical courtrooms that could hold twenty-two potential jurors
with appropriate social distancing, and the jury assembly room
3 could hold twenty-eight additional potential jurors who would
observe the jury selection via Webex. The court informed the
parties that the trial would be in a smaller courtroom, and that the
public could observe the trial proceedings via Webex, either online
or from the public viewing area located in another courtroom in the
courthouse. The court said that during the trial, the twelve jurors
would be seated in the gallery bench seats. The court also agreed
— at Roper’s request — to advise each witness that the trial was
being observed via Webex.1
¶8 Both during the pretrial hearing and at the start of trial, Roper
objected to restricting the public’s access to the courtroom. In
response to the latter objection, the trial court said, “With respect to
your position about the public in the courtroom, the court facilities
aren’t sufficiently large to allow the public to be in the physical
courtroom where the trial is taking place. So public access to the
courtroom is being provided through Webex.” The court also stated
1 The trial court denied Roper’s request to notify the jury that his
friends and family were watching the trial and to have a screen in the courtroom showing the participants who were watching. The court also denied Roper’s suggestion to display pictures of his family and supporters in the courtroom as a way of informing the jurors and witnesses of their presence on the livestream.
4 that Roper’s family could watch the livestream in the adjacent
courtroom and could have contact with Roper during breaks.
¶9 After the trial, in a written and signed minute order describing
the trial proceedings, the trial court noted that the trial
“proceedings were held pursuant to the health and safety provisions
of the 20th Judicial District Court’s Administrative Order 20-110 –
Resumption of Jury Trials.” The trial court also noted the
applicability of “the 20th Judicial District Court’s Plan for Resuming
Jury Trials Safely During Covid-19 Health Emergency.” Neither of
those documents is in the record.
II. Courtroom Closure
¶ 10 Roper contends that the trial court’s exclusion of all members
of the public from the courtroom, despite their being able to view
the trial in a separate courtroom via a live audio and video stream,
constituted a complete closure of the courtroom. Further, Roper
contends that the closure, whether complete or partial, was not
justified under Waller and thus violated his right to a public trial
under the Sixth Amendment to the United States Constitution and
article II, section 16 of the Colorado Constitution, resulting in
structural error requiring automatic reversal. We conclude —
5 consistent with other divisions of this court — that the separate
courtroom livestream arrangement constituted a partial closure and
further agree that the trial court’s findings were insufficient to
support that partial closure. But we disagree that the mere
inadequacy of the court’s findings rises to structural error.
A. The Right to a Public Trial
¶ 11 The United States and Colorado Constitutions guarantee
criminal defendants the right to a public trial. See U.S. Const.
amends. VI, XIV; Colo. Const. art. II, § 16. “This right ‘is for the
benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned, and that the presence of interested
spectators may keep his triers keenly alive to a sense of their
responsibility and to the importance of their functions.’” People v.
Jones, 2020 CO 45, ¶ 16 (quoting Waller, 467 U.S. at 46).
¶ 12 Courtroom closures, whether total or partial, can violate a
defendant’s right to a public trial. Id. at ¶ 27. But a defendant’s
right to a public trial is not absolute, and at times it must yield to
competing interests. People v. Lujan, 2020 CO 26, ¶ 15 (citing
Waller, 467 U.S. at 45). As the United States Supreme Court
articulated in Waller, for a courtroom closure to be justified,
6 the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.
467 U.S. at 48.
¶ 13 In some circumstances, even if the trial court fails to make the
necessary Waller findings, “some closures are simply so trivial that
they do not rise to the level of a constitutional violation.” Lujan,
¶ 16. In determining whether a closure was trivial, we “consider
whether it implicated the protections and values of the public trial
right.” Id. at ¶ 28. These values include ensuring a fair trial,
reminding the prosecutor and judge of their responsibility to the
accused and the importance of their functions, encouraging
witnesses to come forward, and discouraging perjury. Id. at ¶ 14.
In analyzing whether a closure implicates the public trial right, the
court must consider the duration of the closure, the substance of
the proceedings that occurred during the closure, whether the
proceedings were later memorialized in open court or placed on the
record, whether the closure was intentional, and whether the
7 closure was total or partial. Id. at ¶ 19. This inquiry considers the
totality of the circumstances, and no single factor is dispositive. Id.
B. Standard of Review
¶ 14 “Because a trial court’s decision to close the courtroom
presents a mixed question of law and fact, we review the court’s
legal conclusions de novo and its findings of fact for clear error.”
People v. Turner, 2022 CO 50, ¶ 19 (citation omitted).
C. Closure
¶ 15 The People argue that the livestream arrangement constitutes
a fully public trial and, thus, is not a closure at all. Initially, we
note that it is not clear that the People should be permitted to
advance this argument, given that the prosecutor at trial
characterized the arrangement as a partial closure. Regardless, we
find no merit in the contention. If the livestreaming of a trial were
not at least a partial closure, all future trials could be conducted in
this fashion for any reason — or, indeed, for no reason whatsoever.
While advancements in technology allow what is essentially a
televised trial to serve — under proper circumstances — as an
alternative to a complete closure, we do not believe the Sixth
8 Amendment permits an unfettered shift to televised, but otherwise
closed, trial proceedings.
¶ 16 After briefing in this matter closed, a division of this court held
that the exclusion “of the entire public . . . from the physical
courtroom constituted a partial closure — despite the availability of
a live video and audio stream of the proceedings.” People v. Bialas,
2023 COA 50, ¶ 15.2 We acknowledge that in Bialas, some
members of the public were permitted in the courtroom at the
beginning of the trial but were later removed, id. at ¶¶ 3-4, where,
here, the livestream arrangement was the only way any member of
the public was permitted to view the proceedings from the outset.
Thus, one might argue — as Roper does — that the closure here
was a complete, not a partial, closure. We need not decide — and
indeed express no opinion on — that issue, however, because we
agree that, consistent with Bialas, there was at least a partial
closure, and whether that closure was partial or complete does not
alter our analysis.
2 Roper referenced this opinion in a notice of supplemental
authority filed pursuant to C.A.R. 28(i).
9 ¶ 17 Further, to the extent the People refer to this closure as trivial,
we disagree. The closure was for the entire duration of the trial. It
was also intentional and precluded in-person attendance by Roper’s
family. As our supreme court held in Jones, ¶ 41, such an
exclusion weighs against deeming a closure trivial because
excluding the defendant’s family from the courtroom removes a
reminder to the judge, the prosecutor, and the jury of their
collective responsibility for treating the defendant fairly. Thus, even
if we assume the closure was partial, and noting that the closure
was placed on the record, every other factor points toward a
nontrivial closure. See Bialas, ¶¶ 18-20. Therefore, we conclude
that a closure occurred sufficient to implicate Roper’s right to a
public trial.
D. Waller Findings
¶ 18 We turn next to whether the trial court properly applied and
made adequate findings on the Waller factors.
¶ 19 Regarding the first factor, although Roper contends that he
does not know what the overriding interest for the closure was, the
trial court found, with record support, that it was the protection of
all trial participants and spectators from contracting or spreading
10 COVID-19. The court and both counsel referred to COVID-19 and
the global pandemic while discussing the trial procedures. The
court explained that the jury trial procedures had been adopted by
the judicial district after input from all stakeholders and had been
approved by county health officials. The court found that following
these procedures was a reasonable plan that “provide[d] for a
reasonable degree of safety for all of the trial participants, including
the jurors.” Therefore, we conclude that the court made adequate
findings on the first Waller factor. See Turner, ¶ 41 & n.4 (exclusion
“to ensure . . . the safety of all trial participants” satisfied first
Waller factor).
¶ 20 At least under the circumstances presented here, the second
and third Waller factors — addressing, respectively, whether the
closure was broader than necessary and whether the court
considered reasonable alternatives to closure — overlap. For
example, could the jury have been arranged in such a way as to
permit a small number of spectators to sit in the back row of the
courtroom, like in Bialas?3 Or, if not, could the trial have been
3 We acknowledge that Bialas’s trial took place in a different judicial
district.
11 moved to a courtroom large enough to accommodate some members
of the public once the jury was selected — perhaps one of the two
courtrooms that were large enough to accommodate the jury
selection process? If the answer to either question is yes, then it
could be said either that the closure was too broad or that there
were reasonable alternatives that were not considered. Similarly, if
a continuance of the trial, which Roper requested, would have
removed the impediments to conducting a trial with the public’s
attendance, that might also have been a reasonable alternative.
¶ 21 True, the trial court considered at least some of these issues.
The trial court began by considering and rejecting Roper’s request
for another continuance. The court noted that the offense was a
sex offense (and thus the victim had the right to object to further
delay) and that the case was “getting on to be two years old.” Thus,
the court found that another continuance was not appropriate.
Under the circumstances, based on the court’s specific findings, we
agree with the trial court in this regard.
¶ 22 The court then acknowledged Roper’s request to have four
family members and four friends attend the trial, but said, “We are
not going to be able to accommodate family members or friends in
12 the actual courtroom during the trial.” The court also stated that
“the court facilities aren’t sufficiently large to allow the public to be
in the physical courtroom where the trial is taking place.” To the
extent these statements could be construed as findings, they are
conclusory and the record lacks sufficient detail for us to review
them. For example, we do not know if using a different seating
arrangement within the courtroom or using a different courtroom
with a higher seating capacity could have safely accommodated
some spectators.
¶ 23 Indeed, though there was a mention that one of the two larger
courtrooms the court had referenced when discussing where jury
selection would be conducted might be unavailable because of a
homicide trial going on at the same time, there is no explanation for
why Roper’s trial could not have been conducted in the other such
courtroom. As noted, those larger courtrooms could accommodate
twenty-two prospective jurors, with some seated in the jury box and
others seated in the gallery; thus, once a twelve-person jury was
seated, and even assuming two alternates, there would still have
been room for eight spectators. While the record shows that the
trial court gave a reason for using the smaller courtroom —
13 permitting the jurors to be “in much closer proximity to the witness
stand” — the court did not explain, for instance, whether a different
seating arrangement in the larger courtroom could have allowed the
jurors to sit similarly close to the witness stand while also allowing
some spectators to be seated toward the back of the room.
¶ 24 In short, the court’s statements do not provide us with an
adequate picture of whether the closure could have been narrower
or whether other reasonable alternatives existed. And the record is
devoid of other evidence describing the physical layout of the trial
courtroom or availability of other courtrooms.
¶ 25 The People’s arguments to the contrary are unpersuasive. The
People assert that the second Waller factor was satisfied: due to the
public health interest, courtroom size, and need to reduce the risk
of transmission, limiting access to the courtroom was required,
even for Roper’s family. But the portions of the record to which the
People cite do not provide support for this claim. Nor do the People
cite record support for their conclusory assertion that “allowing
Roper’s family members to be in the courtroom was not a
reasonable alternative.”
14 ¶ 26 As to the fourth Waller factor — whether the court made
adequate findings — our review of the record suggests that,
although the trial court mentioned Waller, it ultimately deferred to
the jury trial procedures adopted for the judicial district, without
articulating how the Waller factors applied to the specific trial it was
about to conduct. As a result, the court did not make adequate
findings that the closure was no broader than necessary and that
there were no reasonable alternatives to the steps taken. See
Waller, 467 U.S. at 48.
E. Remedy
¶ 27 The question then arises what the proper remedy is. Roper
contends that the insufficiency of the trial court’s findings
constitutes structural error and that a remand would be an exercise
in futility because the trial court did not make contemporaneous
Waller findings. The People contend that we should not reverse
Roper’s conviction but, rather, remand to the trial court to make
additional Waller findings. We agree with the People.
¶ 28 We begin, however, by acknowledging that the guidance from
our supreme court on this point is not entirely clear. In its first
opportunity to directly apply Waller, our supreme court
15 characterized the opinion’s holding as creating a four-part test: “In
Waller, the Court articulated four requirements that a trial court
must meet in order to validly close the courtroom.” People v. Hassen,
2015 CO 49, ¶ 9 (emphasis added). The fourth requirement was
that the trial court “must make findings adequate to support the
closure.” Id. (quoting Waller, 467 U.S. at 48).
¶ 29 In the Colorado Supreme Court’s next opportunity to address
a Waller issue, the court said, in relatively sweeping fashion, “Under
Waller, the public trial right is violated when a defendant objects to
a closure and the court does not satisfy the four factors of the Waller
test.” Stackhouse v. People, 2015 CO 48, ¶ 7 (emphasis added).
The supreme court went on to unequivocally say that “[s]uch a
violation is structural error that requires automatic reversal without
individualized prejudice analysis.” Id.
¶ 30 These early authorities appear to establish a hard and fast
rule: because the requirement of sufficient supporting findings is a
prong of the Waller test, inadequate findings mean the test is failed
— and a failed test results in automatic reversal.
¶ 31 But more recent case law suggests that the supreme court did
not intend such a strict reading of its earlier pronouncements.
16 ¶ 32 In Jones, ¶ 36, the supreme court concluded that the trial
court’s exclusion of the defendant’s parents from the courtroom
“without first making any Waller findings” was an unjustified partial
closure. But rather than immediately concluding that reversal was
required, the supreme court acknowledged that “some courts have
chosen to remand cases where the trial court violated the
defendant’s right to a public trial to allow the trial court to make the
required findings.” Id. at ¶ 45. The court declined to do so in that
case, however, because remand would have been futile — both
because the judge who had presided over the trial could not make
further findings because he had died and because the information
from a related dependency and neglect case the People argued
would support the closure would not satisfy the second and third
Waller factors. Id. at ¶ 46.
¶ 33 Most recently, in Turner, ¶ 1, the trial court excluded the
defendant’s friend (who was also his codefendant’s wife) from the
courtroom for the remainder of the trial after the friend had a
confrontation with the victim advocate and a prosecution witness
just outside the courtroom. In doing so, the trial court did not
apply the Waller test at all. The supreme court reiterated the Waller
17 test as it had been stated in Jones and Hassen. Id. at ¶ 19. The
court further concluded that excluding the individual was a
nontrivial partial courtroom closure. Id. at ¶ 32. And it
acknowledged that an unjustified closure is structural error. Id. at
¶ 34.
¶ 34 But the supreme court went on to say that “structural error
doesn’t flow simply from the trial court’s failure to employ the
precise language found in Waller.” Id. at ¶ 35. It explained that
nothing in Waller requires a reviewing court “to evaluate the trial
judge’s closure order solely on the basis of the explicit factual
findings.” Id. at ¶ 36 (quoting Bell v. Jarvis, 236 F.3d 149, 172 (4th
Cir. 2000)). And it cited cases concluding that the Waller test was
satisfied where the record supported the closure despite the lack of
comprehensive findings on each factor. Id. (first citing Tinsley v.
United States, 868 A.2d 867, 877-80 (D.C. 2005); and then citing
State v. Ndina, 2009 WI 21, ¶ 86). Ultimately, the court concluded
that the findings the trial court had made — albeit not specifically
in reference to Waller — combined with what could be gleaned from
the record as a whole justified the closure. Id. at ¶ 47. The court
expressly referenced the possibility of remanding for further
18 findings, but because the existing findings and record justified the
closure, it determined that a remand was unnecessary. Id. at ¶ 40.
¶ 35 In the wake of Jones and Turner, then, it is less clear that the
mere fact that the findings were inadequate necessitates reversal.4
And a deeper analysis of the development of the Waller test, along
with reference to how other jurisdictions have resolved the question,
strongly suggests that a remand for further findings is not
categorically prohibited.
¶ 36 First, we note that we are aware of no other multi-prong test
that includes as a prong of the test the requirement that there be
adequate findings. Rather, adequate findings are usually required
for an appellate court to properly review a claim of error. See
Turner, ¶ 36 (“Ultimately, a trial court need only make ‘findings
specific enough that a reviewing court can determine whether the
4 Interestingly, in one case, the Colorado Supreme Court granted
certiorari on the question of “[w]hether a remand is an appropriate remedy when the trial court fails to make findings consistent with Waller v. Georgia, 467 U.S. 39 (1984).” People v. Lujan, No. 18SC582, 2019 WL 189366 (Colo. Jan. 19, 2019) (unpublished order). But the court never actually resolved the question, concluding instead that the closure in that case was trivial and thus the Waller test did not need to be satisfied. People v. Lujan, 2020 CO 26, ¶ 37 & n.4.
19 closure order was properly entered.’” (quoting Davis v. Reynolds,
890 F.2d 1105, 1109 (10th Cir. 1989), in turn quoting Waller, 467
U.S. at 45)).
¶ 37 For example, in challenges involving suspected racial
motivation in the exercise of peremptory challenges, a trial court is
required to conduct a three-part inquiry that culminates in the trial
court making a finding of fact regarding the prosecutor’s motivation
in exercising the strike. Batson v. Kentucky, 476 U.S. 79, 98 &
n.21 (1986). Yet, with fair regularity, appellate courts remedy a
trial court’s insufficient findings during a Batson analysis by
remanding for further findings. See, e.g., People v. Rodriguez, 2015
CO 55, ¶ 21. The mere inadequacy of the finding does not, by itself,
establish the constitutional violation.
¶ 38 Second, although the United States Supreme Court in Waller
included the adequate findings requirement in a single sentence
that also included the other three components of what has become
known as the Waller test, see Turner, ¶ 9, it is noteworthy that
Waller did not explicitly refer to a “four-prong” test. Indeed, the
language in Waller was presented as a reiteration of the test from
Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). See
20 Waller, 467 U.S. at 45, 48. In Press-Enterprise, the Supreme Court
had held,
The presumption of openness [of criminal proceedings] may be overcome only by an overriding interest based on findings that a closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.
Press-Enterprise, 464 U.S. at 510. It does not appear, then, that
the Waller Court intended for the adequacy of the findings to be a
prong of the test itself.5 Indeed, our supreme court’s reiteration of
this language in Turner, ¶ 36, suggests a recognition of this.
5 True, in Waller, the Supreme Court rejected what it called the
Georgia Supreme Court’s “post hoc assertion” that the trial court had conducted the proper balancing. 467 U.S. at 48-49, 49 n.8. Some have suggested that this is an admonition against remedying inadequate findings. See People v. Turner, 2022 CO 50, ¶ 69 (Gabriel, J., dissenting). But in context, the Supreme Court at least arguably only rejected that post hoc rationalization because it found no support in the record and was insufficient in any case. Waller, 467 U.S. at 48-49, 49 n.8. We do not read this language as proscribing any effort to remedy inadequate findings, particularly where that remedy would come not from an appellate court reviewing a cold record but, rather, from the judicial officer who has direct knowledge of all of the circumstances leading to the closure.
21 ¶ 39 And we note that several jurisdictions have concluded that a
remand for further findings may be an appropriate remedy.6 For
example, the Tenth Circuit has opined that
[t]he lack of findings prevents us from determining whether the defendant’s right to a public trial was outweighed by the interest asserted by the government in protecting the complaining witness. But to grant appellant a new trial under these circumstances without making that determination would constitute a windfall and would not be in the public interest.
United States v. Galloway, 937 F.2d 542, 547 (10th Cir. 1991); see
also State v. Rolfe, 2013 SD 2, ¶ 26 (remanding for the trial court to
“supplement the record with specific findings and reasoning”); State
v. Rollins, 729 S.E.2d 73, 79 (N.C. Ct. App. 2012) (“Given the
limited closure in the present case and the fact that the trial court
did not utilize the Waller four-part test, we hold that the proper
6 We acknowledge that the remedy in Waller was itself a remand.
But that is a red herring. In Waller, the proceeding that was closed was not the trial but, rather, a hearing on a motion to suppress. Thus, the remedy — which the United States Supreme Court said “should be appropriate to the violation,” Waller, 467 U.S. at 50 — was a remand not to supplement the findings justifying the closure but, rather, to redo the hearing that was improperly closed. Thus, the remand in Waller provides no support for the People’s request for remand here.
22 remedy is to remand this case for a hearing on the propriety of the
closure.”); State v. Cote, 725 A.2d 652, 660 (N.H. 1999) (remanding
for findings to determine whether the defendant’s right to a public
trial was violated); Kendrick v. State, 661 N.E.2d 1242, 1244-45
(Ind. Ct. App. 1996) (remanding for findings to determine whether
defendant’s right to a public trial was violated). But see State v.
Cox, 304 P.3d 327, 335 (Kan. 2013) (declining to consider remand
for further findings).
¶ 40 Most recently, in State v. Bell, 993 N.W.2d 418 (Minn. 2023),
the Minnesota Supreme Court addressed a very similar fact pattern
to the one before us. To permit proper social distancing during the
pandemic, the trial court “excluded all spectators from the
courtroom but included a one-way video feed that would broadcast
[the] trial in an adjacent courtroom.” Id. at 420. The Minnesota
Supreme Court concluded that the trial court’s findings were
insufficient to show that it considered reasonable alternatives. Id.
at 427. But instead of reversing the conviction, the Minnesota
Supreme Court held that a remand for the trial court to remedy the
inadequate findings was the appropriate remedy under Waller. Id.
at 428.
23 ¶ 41 As noted, in Jones our supreme court at least suggested that a
remand would be appropriate if it would not be futile. See Jones,
¶ 48. There, the court concluded that a remand would not be
helpful because the judicial officer had subsequently died. Id. at
¶ 46. Moreover, the court concluded that, as to the second and
third factors, it was clear from the record that other options had not
been “explored contemporaneously.” Id. at ¶¶ 48-49. Finally, the
court concluded that “even if findings by another judge based on
records from the dependency and neglect case and other
reconstruction methods were an option, supplemental findings
would still fail to adequately address the second and third factors.”
Id. at ¶ 50.
¶ 42 In contrast, the trial court judge in this case is still a district
court judge, and it would be possible for the same judge to make
more detailed findings about his reasoning at the time he closed the
courtroom. Cf. Jones, ¶¶ 46, 50. Further, although the local policy
regarding the conduct of trials during the pandemic is absent from
our record, the record does reflect that the policy was developed
with the input of stakeholders such as the offices of both the
district attorney and the public defender. Thus, it is entirely likely
24 that a record could be made about what options were considered
contemporaneously when developing the policy. See id. at ¶¶ 48-
50. Moreover, other necessary supplemental findings — such as
the size, shape, configuration (e.g., the number of rows and number
of seats per row in the gallery), and availability of the courtrooms at
the time of Roper’s trial — involve objective, easily verifiable
information that is largely not subject to shifting recollections or
interpretation. These supplemental findings could satisfy the
second and third factors.
¶ 43 In sum, the trial court’s findings supporting the closure are
insufficient. But this defect alone does not amount to structural
error. And because a remand for further findings would not be
futile, we conclude such a remand is appropriate in this case.7
III. Order for Remand
¶ 44 The case is remanded to the trial court for the limited purpose
of making supplemental Waller findings, including, without
limitation, what alternatives to excluding all members of the public
from the courtroom were considered, the basis for its determination
7 We do not address the merits of Roper’s remaining contentions at
this time.
25 that no members of the public could be accommodated in the
courtroom, and whether any larger courtroom was available at the
time of Roper’s trial.
¶ 45 Within seven days of the entry of the trial court’s order making
further findings, Roper must forward a copy of the court’s order to
this court, and the case shall be recertified. Upon recertification, a
supplemental record consisting of the trial court’s order, any
pleadings filed on remand, and transcripts of any hearing held on
remand shall be ordered.
¶ 46 The court further orders Roper to notify this court in writing of
the status of the court proceedings in the event this matter is not
concluded within twenty-eight days from the date of this order, and
that Roper must do so every twenty-eight days thereafter until the
trial court issues its order on remand.
JUDGE BROWN and JUDGE SCHOCK concur.