Stackhouse v. People

2015 CO 48, 386 P.3d 440, 2015 WL 3946868

• Court: Supreme Court of Colorado
• Decided: June 29, 2015
• Docket: Supreme Court Case 12SC1029
• Status: Published

Opinions

CHIEF JUSTICE RICE

delivered the Opinion of the Court.

¶ 1 In this case, we granted certiorari to consider whether the court of appeals erred in concluding that the defendant waived his public trial claim by failing to object to the closure of the courtroom during jury selection. This question turns largely on whether our precedent in Anderson v. People, 176 Colo. 224, 490 P.2d 47, 48 (1971)—holding that a defendant affirmatively waives his public trial right by not objecting to a known closure of the courtroom—remains controlling precedent, or whether it has been abrogated by the more recent United States Supreme Court decisions in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam). Because Waller and Presley relate only to closures that elicit contemporaneous objections from defense counsel, and because the rationale supporting Anderson remains sound, Anderson is still controlling precedent and remains good law in Colorado. We therefore affirm the court of appeals’ judgment.

I. Facts and Procedural History

¶ 2 The People charged Petitioner James Robert Stackhouse with sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as a pattern of sexual abuse. At trial, the court required members of the public to leave the courtroom during jury selection because the large jury pool and limited courtroom space created a risk that family members and others would comingle with and potentially bias the jurors. After explaining his reasoning for the closure, the trial judge asked the attorneys if they had “anything further,” and Stackhouse did not object to the closure at that point or at any point during trial. Stackhouse was subsequently tried and was convicted of the first two counts, acquitted of the pattern count, and sentenced to ten years to life. He subsequently appealed his conviction.

¶ 3 Despite not objecting to the closure at trial, Stackhouse asserted on appeal that the court’s exclusion of the public during jury selection without satisfying the four elements established in Waller constituted structural error mandating automatic reversal under Presley. People v. Stackhouse, 2012 COA 202, ¶ 7, — P.3d -. The court of appeals disagreed, holding that although denial of public voir dire over a defendant’s objection constitutes structural error if the court does not satisfy the Waller test, even structural errors are subject to the doctrine of waiver, and Stackhouse waived his right to _a public voir dire by not objecting to the closure. Id. at ¶¶ 9-10 (citing Anderson,. 490 P.2d at 48). We granted Stackhouse’s petition for certio-rari to determine whether .the court of appeals erred by relying on our precedent in Anderson in light of the United States Supreme Court’s decisions in Waller and Presley.¹

II. Standard of Review

¶ 4 Whether Stackhouse waived his public trial claim by not objecting to the known closure is a question of law, and we review such questions de novo. Kazadi v. People, 2012 CO 73, ¶ 11, 291 P.3d 16, 20.

III. Analysis

¶ 5 We hold that the court of appeals did not err: Anderson has not been abrogated by more recent United States Supreme Court decisions and remains controlling precedent, Although the United States Supreme Court’s precedent on the right to a public trial has evolved since the case was decided, Anderson remains legally sound. Thus, we affirm the court of appeals’ holding that Stackhouse waived his right to public trial during voir dire by not objecting to the trial court’s known closure.

¶ 6 We begin by discussing the public trial right generally and Anderson specifically, and we then demonstrate that Anderson does not conflict with United States Supreme Court authority.

A. The Right to Public Trial and Anderson’s Waiver Principle

¶ 7 Both the United States and the Colorado Constitutions guarantee criminal defendants the right to a public trial. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. It is well settled that a criminal defendant’s constitutional right to a public trial extends to the jury selection process. Presley, 558 U.S. at 213, 130 S.Ct. 721. 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. 467 U.S. at 48, 104 S.Ct. 2210. Such a violation is structural error that requires automatic reversal without individualized prejudice analysis.² See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that “we have found an error to be ‘structural,” and thus subject to automatic reversal, only in a very limited class of cases,” and citing Waller as including denial of public trial within the class of structural errors (internal quotation marks omitted)); accord Hagos v. People, 2012 CO 63, ¶ 10, 288 P.3d 116, 119 (“[C]ertain errors are structural errors, which require automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction. Examples of these errors include ... denial of the right to a public trial.” (citations omitted)); People v. Hassen, 2016 CO 49, ¶ 18, 351 P.3d 418 (stating that “[w]hen the trial court closes the courtroom over a defendant’s objection, it must satisfy the four' Waller factors,” then determining that the factors were not satisfied and thus remanding for a new tidal). Nevertheless, the right to a public trial is not absolute, but rather “may give way ... to other rights or interests” even over a defendant’s objection. Waller, 467 U.S. at 45, 104 S.Ct 2210; id. at 48, 104 S.Ct. 2210 (describing four factors that must be met to close the courtroom over a defendant’s objection).

¶ 8 Furthermore, even fundamental rights can be waived, regardless of whether the deprivation thereof would otherwise constitute structural' error. See Peretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) (“The most basic rights of criminal defendants are ... subject to waiver.”). ‘Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, we examine the particularities of the public trial right.

¶ 9 Under Anderson, a defendant affirmatively waives his public trial right when he does not object to a known closure. 490 P.2d at 48. In that case, we considered a factual scenario almost identical to that before us now—the whole spectator area of the courtroom was needed to seat the jury pool, and the bailiff restricted access so as to “segregate prospective, jurors from witnesses, relatives, and other individuals whose proximity, conversation, or actions might cause the jury to be contaminated to the prejudice of the defendant or the prosecution.” Id. On these facts, we held that “any right the defendant may have had to object to the exclusion of the' public from the courtroom during the selection of the jury was waived” when defense counsel did not object despite being aware of the closure. Id. This has been the law in Colorado since we decided Anderson in 1971. See, e.g., People v. Dunlap, 124 P.3d 780, 818-19 (Colo.App.2004) (applying Anderson’s waiver principle).

¶ 10 Therefore, because Stackhouse was aware of the closure and did not object to it, Anderson would appear to resolve his appeal.³ Stackhouse argues, however, that Anderson is no longer valid in light of more recent Supreme Court authority. We now address this contention.

B. Anderson Remains Controlling Precedent

¶ 11 Anderson’s holding that a defendant waives his public trial right by not objecting to a known closure has not been abrogated by the United States Supreme Court’s more recent authority in Waller and Presley. Waller adopted a four-part test that courts must satisfy before closing a courtroom over a defendant’s objection, see 467 U.S. at 48, 104 S.Ct. 2210, and Presley explicitly confirmed that the public trial right extends to the jury selection process, see 558 U.S. at 213, 130 S.Ct. 721. Crucially, both cases addressed only closures that elicited contemporaneous objections, and so neither case affected Anderson’s longstanding waiver principle.

¶ 12 In Waller, the Court considered “the extent to which a hearing on a motion to suppress evidence may be closed to the public over the objection of the defendant consistently with the Sixth and Fourteenth Amendment right to a public trial.” 467 U.S. at 4Ó-41,104 S.Ct. 2210 (emphasis added). The Court held that “under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out” in the Court’s prior decisions. Id. at 47, 104 S.Ct. 2210 (emphasis added). .In reaching this conclusion, the Court specifically noted that “[o]ne of the reasons often advanced for closing a trial—avoiding tainting of the jury by pretrial publicity—is largely absent when a defendant makes an informed decision to object to the closing of the proceeding.” Id. at 47 n.6, 104 S.Ct. 2210 (citation omitted). Thus, although Waller holds .that a defendant’s public trial right is violated if the courtroom is closed over the defendant’s objection and the Waller test is not satisfied, the Court expressly and repeatedly limited its holding to closures that elicited a contemporaneous objection from the defendant.⁴ As such, Waller has no bearing on our public trial waiver jurisprudence as established in Anderson.

¶ 13 Subsequently, in Presley, the Court merely confirmed that the Sixth Amendment public trial right (and therefore Waller) extends to jury selection. Presley, 558 U.S. at 213, 130 S.Ct. 721. In that case, the Court specifically noted that “Presley’s counsel objected to ‘the exclusion of the public from the courtroom,’” and it further declared that “the accused does have a right to insist that the voir dire of the jurors be public.” Id. at 210, 213, 130 S.Ct, 721 (emphasis added). While this “insist” language may not affirmatively endorse Colorado’s public trial waiver doctrine, it certainly does not forbid it. Thus, although Presley definitively confirmed that the Supreme Court’s public trial jurisprudence applies to jury selection, it did not expand Waller’s mandated test beyond known closures that elicit contemporaneous objections.

•¶ 14 Indeed, the Supreme Court itself has recognized, albeit in dicta, that a defendant waives his right to a public trial by failing to object. See Peretz, 501 U.S. at 936, 111 S.Ct. 2661 (citing Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960), for the proposition that “failure to object to closing of [the] courtroom is waiver of [the] right to public trial” to support its conclusion that “[t]he most basic rights of criminal defendants are ... subject to waiver”). Therefore, because neither Waller nor Presley addressed waiving the public trial right by not objecting—and Peretz actually endorsed such a rule of waiver—Colorado “may determine” whether a defendant who does not object to a known closure “is procedurally barred from seeking relief as a matter of state law.” See Waller, 467 U.S. at 42 n.2, 104 S.Ct. 2210. In Anderson, we determined that such non-objecting defendants have affirmatively waived their public trial rights and are thus barred from seeking appellate relief in Colorado.⁵

¶ 15 Not only does Anderson remain viable in light of the Supreme Court’s more recent precedent, but the rationale buttressing its waiver policy still stands strong. First, only a select few rights are so important as to require knowing, voluntary, and intelligent waiver to be personally executed by the defendant. See, e.g., People v. Davis, 2015 CO 36, ¶ 15, 352 P.3d 950 (recognizing that only knowing, voluntary, and intelligent waiver is sufficient to waive the right to counsel). The right to a public trial is not among these; if it were, then a judge would be unable to close the courtroom over the defendant’s objection despite satisfying- the Waller test. See Robinson v. State, 410 Md. 91, 976 A.2d 1072, 1082 n.6 (2009) (noting that if it were true “that the right to a public trial cannot be waived by the defendant’s ‘inaction’ ” but rather required knowing, voluntary, and intelligent waiver, then a “defendant’s refusal to make an ‘intelligent and knowing' waiver of the right would preclude a trial judge from ever closing a courtroom, no matter the circumstances warranting closure”). Rather, the right to a public trial “falls into the class of rights that defense counsel can waive through strategic decisions.” Cf. Hinojos-Mendoza v. People, 169 P.3d 662, 669 (Colo.2007) (holding the same regarding the right to confrontation). This is so because there are sound strategic reasons to waive the right to a public trial, as is particularly apparent in the context of Stack-house’s jury selection for his trial on charges of sexual assault on a minor. For example, defense counsel may prefer closure to avoid “tainting of the jury by pretrial publicity,” Waller, 467 U.S. at 47 n.6, 104 S.Ct. 2210, or may believe that potentially biased jurors will be more frank and forthcoming regarding their biases if jury selection is closed to the public, see Commonwealth v. Alebord, 4 N.E.3d 248, 255, 467 Mass. 106 (2014) (noting that the defense attorney “acknowledged that he subscribed to the ‘theory’• that the privacy or secrecy of an individual voir dire is more conducive to obtaining candid answers from potential jurors, particularly in eases with racial or sexual undertones”), cert. denied sub nom. Alebord v. Massachusetts, — U.S. -, 134 S.Ct. 2830, 189 L.Ed.2d 793 (2014). Moreover, the trial court’s stated reason for closing a portion of Stackhouse’s jury selection—to prevent family members and those connected with the trial from intermingling with a large jury pool in. a small courtroom—could have inspired defense counsel here to consent to the closure out of concern that the victim’s family might communicate with the venire and potentially bias jurors against the defendant. See Anderson, 490 P.2d at 48 (closing the courtroom during voir dire to prevent family members from attempting to influence the jury); cf. Robinson, 976 A.2d at 1075 (same to prevent attempted influence of a witness). Therefore, because there are sound strategic reasons for a lawyer to waive a client’s right to a public trial, the right is among those where “[defense counsel stands as captain of the ship.” See Hinojos-Mendoza, 169 P.3d at 669 (alteration in original) (quoting People v. Curtis, 681 P.2d 504, 511 (Colo.1984)).

¶ 16 Second, “we presume that attorneys know the applicable rules- of procedure,” and we thus “can infer from the failure to comply with the procedural requirements that the attorney made a decision not to exercise the right at issue.” Id. at 670. By the same token, it has long been the rule in Colorado that defense counsel must object to a known closure to preserve appellate review on public trial grounds. Anderson, 490 P.2d at 48. Allowing a defense attorney who stands silent during a known closure to then seek invalidation of an adverse verdict on that basis would encourage gamesmanship, and any “new trial would be a ‘windfall’ for the defendant, a result that the Waller Court explicitly tried to prevent.” See State v. Pinno, 2014 WI 74, ¶ 61, 356 Wis.2d 106, 850 N.W.2d 207, 225; cf. Robinson, 976 A.2d at 1084 (treating the public trial claim as waived “given the possibility that Appellant’s lack of objection may have been the product of design, and the fact that the very analysis Appellant complains was not done by the trial court likely would have been done had he brought the matter to the court’s attention”). This concern—that attorneys could intentionally not object to a closure as a strategic parachute to preserve an avenue of attack on appeal—specifically motivated our decision in Anderson and remains relevant today. See Anderson, 490 P.2d at 48 (“It is apparent in this case that the defendant’s motion arose as the result of a guilty verdict and not because of the denial of a constitutional right. Only after the defendant was found guilty did hindsight cause defense counsel to decide that the defendant was denied a public trial.”). Therefore, because legitimate strategic considerations might motivate counsel to not object to a closure, and because such strategic decisions should not be permitted to provide an appellate parachute to non-objecting defense counsel if the defendant is convicted, Colorado has long treated defense counsel not objecting to a known closure as an affirmative waiver of the public trial right. We see no reason to deviate from Anderson now.⁶

IV. Conclusion

¶17 For the foregoing reasons, we conclude that our longstanding precedent in Anderson remains good law: Defendants in Coloratto affirmatively waive their right to public trial by not objecting to known closures, Thus, the court of appeals correctly held that Stackhouse waived his public trial right by not objecting to the court’s known closure during jury selection, and we therefore affirm its judgment.

JUSTICE MÁRQUEZ dissents.

1 . Specifically, we granted certiorari to review the following issue: "Whether the court of appeals erred in concluding that the defendant waived his public trial claim by failing to object to the closure of the courtroom during jury selection.”

2 . .We note that "automatic reversal” of the lower court’s decision does not necessarily mean that the defendant automatically receives a new trial; rather, such a determination depends .on the point at which the public was excluded. See Waller, 467 U.S. at 50, 104 S.Ct. 2210 (considering a public trial violation that occurred during a suppression hearing and remanding for a new suppression hearing that was open to the public because "the remedy should be appropriate to the violation” and "[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"),

3 . Stackhouse argues that even if he waived his public trial right, we should nevertheless review the closure of the courtroom for plain error. In essence, he contends that his failure to object constituted a forfeiture rather than a waiver. See infra ¶ 14 n.5 (discussing the difference between waiver and forfeiture as articulated in Olano, 507 U.S. at 733, 113 S.Ct. 1770). Our precedent, however, prohibits plain (or harmless) error review of alleged structural errors. See Bogdanov v. People, 941 P.2d 247, 252-53 (Colo. 1997) (“Structural errors are not amenable to either a harmless or a plain error -analysis because such errors affect the framework within which the trial proceeds,' and are not errors in the trial process itself.” (quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991))), amended, 955 P.2d 997 (Colo. 1997) (mem.), disapproved of on different grounds by Griego v. People, 19 P.3d 1 (Colo. 2001); Griego, 19 P.3d at 7 (quoting the Bogdanov language above as controlling precedent regarding structural error); Medina v. People, 163 P.3d 1136, 1141 (Colo.2007), as modified on denial of reh'g (Aug. 13, 2007) (noting that structural defects are not subject to harmless error analysis, but rather "require automatic reversal”). Since a violation of the public trial right is structural error, see supra ¶7, either Stackhouse affirmatively waived his public trial right by not objecting to a known closure, or the error requires automatic reversal. Under our precedent, affirmative waiver is the proper result.

4 . Waller's limited applicability is further evidenced by the procedural history of the case, which involved five different petitioners. As the Court noted, although four of the five petitioners’ attorneys objected to the closure, the fifth "concurred in the prosecution’s motion to close the suppression hearing.” Waller, 467 U.S. at 42 n.2, 104 S.Ct. 2210. Based on this distinction, the Court remanded that petitioner’s case so ”[t]he state courts may determine on remand whether [the petitioner who did not object] is procedurally barred from seeking relief as a matter of state law.” Id. Here in Colorado, a defendant who does not object to a closure is procedurally barred from seeking relief under Anderson. 490 P.2d at 48.

5 . Stackhouse further asserts that his attorney’s decision not to object to a known closure cannot properly be considered waiver under Piano, in which the Supreme Court stated that while "forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” -See 507 U.S. at 733, 113 S.Ct. 1770 (internal quotation marks omitted). But as the Olano Court recognized, "[w]hether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake.” ld. For the right to public trial, several policy considerations militate toward treating defense counsel’s decision not to object to a known closure as an affirmative waiver of the defendant's public trial right. See infra ¶¶ 15-16. Therefore, Olano does not alter Colorado's longstanding rule that not objecting to a known closure constitutes "intentional relinquishment or abandonment of a known right."

6 . We note that Colorado is not alone in deeming the public trial right to be waived when defense counsel does not object to a known closure. See Robinson, 976 A.2d at 108-10 (collecting an array of state and federal cases holding that defense counsel not objecting to a known closure constitutes waiver of the defendant’s public trial right, and holding that, "[Consistent with the vast majority of the courts that have spoken on the subject ... a claimed violation of the right to a public trial must be preserved for appellate review by a timely objection at trial, notwithstanding that the allegation implicates structural error”). Moreover, several cases supporting Anderson's waiver principle were decided after Waller, at least one was decided after Presley, and two were denied certiorari by the Supreme Court. See, e.g., United States v. Hitt, 473 F.3d 146, 155 (5th Cir.2006) ("Where a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial.”), cert. denied, 549 U.S. 1360, 127 S.Ct. 2083, 167 L.Ed.2d 802 (2007); Alvarez v. State, 827 So.2d 269, 274, 276 (Fla.Dist.Ct.App.2002) (stating that "[t]he majority view across the country is that a failure to object to a closure of the trial waives the right to a public trial,” and holding the same); Alebord, (decided after Robinson and Presley, and similarly holding that "the right to a public trial may be procedurally waived by a failure to lodge a timely objection to the offending error” and that "trial counsel may waive the right on his own as a tactical decision without informing his client”), cert. denied sub nom, Alebord v. Massachusetts, — U.S. ——, 134 S.Ct. 2830, 189 L.Ed.2d 793. Thus, Colorado remains in good company through our holding that Anderson’s waiver principle is still controlling precedent.