State v. Klem

438 N.W.2d 798, 17 Media L. Rep. (BNA) 1241, 1989 N.D. LEXIS 62, 1989 WL 26046

• Court: North Dakota Supreme Court
• Decided: March 22, 1989
• Docket: Cr. 880148
• Status: Published

Opinions

LEVINE, Justice.

Ernest Klem (Klem) appeals from a jury verdict finding him guilty of two counts¹ of gross sexual imposition in violation of § 12.1-20-03, N.D.C.C., from the judgment of conviction, and from an order denying his motion for a new trial. We reverse and remand for a new trial.

The victim of the offenses was Klem’s adopted son. A general recitation of facts is unnecessary. Of several issues Klem has raised on appeal, we need consider only one:

“DID THE TRIAL COURT ERR WHEN IT EXCLUDED THE PUBLIC FROM THE COURTROOM DURING THE TESTIMONY OF THE ALLEGED VICTIM OF A SEXUAL CRIME WITHOUT MAKING ANY FINDINGS ADEQUATE TO SUPPORT CLOSURE AND WITHOUT ANY EVIDENCE TO SUPPORT CLOSURE HAVING BEEN ADVANCED?”

Just before the child victim testified, the State asked that the courtroom be cleared. The following colloquy occurred between the court and counsel at the bench:

“MR. TESSIER: Because this is of a sensitive nature may I ask that the Courtroom be cleared of all extraneous personnel? It may be very distracting and very embarrassing for him in front of all these people and the people in the Courtroom may inhibit the testimony.

“THE COURT: Any objections?

“[Klem’s attorney]:² As the Court has stated, it’s my client’s case and I would like to discuss that with him.

“THE COURT: Please do.

“[Klem’s attorney]: Excuse me, Your Honor. I’m sorry, he does object. I don’t have any grounds to object however.

“THE COURT: Very well. I think I will clear the Courtroom. Let’s go back and put it on the record.”

The court then cleared the courtroom of all persons except court personnel, parties, attorneys, jurors, and a “representative of the public media.”

Klem contends that the trial court’s exclusion of the public during the child’s testimony deprived him of his right to a public trial under the sixth amendment to the United States Constitution and Art. I, § 12, N.D. Const. The State contends that Klem did not preserve this issue for review, arguing that his “ ‘objection’ to the partial closure of the Courtroom was not a proper, valid objection” because “for there to be a valid objection giving rise to error, there must be grounds asserted therefor.” (See Explanatory Note, Rule 51, N.D.R.Crim.P.). We conclude that any articulated objection for the purpose of resisting an untimely, unsupported motion to close a trial to the public fulfills the evidentiary rule that the State argues is applicable. We also conclude that Klem was improperly deprived of his right to a public trial.

Historically, we have exhibited a strong preference for public trials and our state and federal constitutions presume open trials as the norm. See, e.g., Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979); Minot Daily News v. Holum, 380 N.W.2d 347 (N.D. 1986); Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72 (N.D.1983). The public-trial guarantee was created for the benefit of the accused. Waller v. Georgia, supra; State v. Nyhus, 19 N.D. 326, 124 N.W. 71 (1909). A public trial restrains possible abuses of judicial power, encourages participants to perform their duties conscientiously, brings forth witnesses who might be unknown to the parties and might not otherwise testify, and tends to assure testimonial trustworthiness. Douglas v. Wainwright, 739 F.2d 531 (11th Cir.1984); 3 W. LaFave & J. Israel, Criminal Procedure § 23.1(a) (1984). While the right to a public trial is not absolute and “may give way in certain cases to other rights or interests ... [s]uch circumstances will be rare, however, and the balance of interests must be struck with special care.” Waller v. Georgia, supra, 467 U.S. at 45, 104 S.Ct. at 2215, 81 L.Ed.2d at 38. Thus, a party moving to close a criminal proceeding must advance an overriding interest that is likely to be prejudiced. Waller v. Georgia, supra.

A movant must make a prima facie showing that he is entitled to the relief his motion seeks. See Northwestern Equipment, Inc. v. Badinger, 403 N.W.2d 8 (N.D.1987). In Badinger a movant for summary judgment did not make a threshold showing that it was entitled to judgment as a matter of law, with the result that the opponent was not required to respond to the motion with affidavits. Similarly, the burden is on a movant for closure of a trial to the public to make a threshold showing that there is an overriding interest that can be protected only by closure. The weight of that burden is substantial. Douglas v. Wainwright, 714 F.2d 1532, 1539 (11th Cir.1983), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985) (“one who seeks to justify closure of a criminal trial carries a heavy burden”). The “bare assertions of counsel” (Minot Daily News v. Holum, supra, 380 N.W.2d at 350) are insufficient to constitute a threshold showing justifying closure.

Further, a motion to close a trial to the public must ordinarily be made before trial. See Rule 17.1, N.D.R.Crim.P. The reason is obvious — to avoid unfair surprise and to give the trial court the benefit of the parties’ research and arguments.

In this case, the State did not make a pretrial motion. It framed its midtrial motion in only the most general terms and it failed to provide the trial court with specific facts sufficient to justify closure. Without warning, and as the child was seated in the witness stand ready to testify, the State requested closure of the trial during the child’s testimony. The impact of this last-minute “motion” was significant. This was the second trial.³ The entire first trial was open to the public. Therefore, the surprise to the defendant from the State’s untimely and unsupported motion to close the trial cannot be overestimated.

Under these circumstances, namely, an untimely, unsupported motion to close, we hold that Klem was not required to respond with any greater specificity than he did, and that his objection was sufficient to register his resistance to the motion.

In Waller v. Georgia, supra, the United States Supreme Court concluded that a defendant’s express sixth amendment right to a public trial enjoys at least equal footing with the implied first amendment right of the press and public. Sensitive to the fact that Waller involved closure of only a suppression hearing and not a trial, the Waller court reasoned that, because suppression hearings “often are as important as the trial itself,” they too must be open unless the tests for closure set out in Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), and its predecessors are met. Waller, supra, 467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 39. The applicable rules in Press-Enterprise are:

“The presumption of openness may be overcome only by an overriding interest based on findings that 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.” 464 U.S. at 510, 104 S.Ct. at 824, 78 L.Ed.2d at 638.

There is thus an absolute requirement that before the trial court may exclude the public, it must articulate its reasons on the record and those reasons must be expressed in findings that enable a reviewing court to exercise its function. The court summarized the requirements in Waller, supra, 467 U.S. at 48, 104 S.Ct. at 2216, 81 L.Ed.2d at 39:

“[T]he 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.”

The requirement of findings by the trial court is not merely to give the reviewing court something to review, but more importantly, to evidence that the trial court has in fact considered and weighed the competing interest of an accused to a public trial with the interest of a child sexual abuse victim to a stress-controlled environment. A hearing and findings encourage the careful consideration warranted by a motion to close a trial.

In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 (1982), the United States Supreme Court invalidated a state statute requiring exclusion of press and public during the testimony of minor sexual abuse victims. Globe recognizes a compelling interest in safeguarding the physical and psychological well-being of minor victims of sex crimes and does not prohibit closure. However, Globe does require that a trial court make a particularized determination that a child witness is in need of protection before closing a trial to protect the child. This the trial court did not do. There was no hearing, no weighing of competing interests, and no findings to support closure. While the trial court’s allowance of the presence of a media representative may have satisfied the public’s first amendment right, it did not address the defendant’s sixth amendment right to a public trial.

Where a defendant has objected to the exclusion of the public, compliance with the closure requirements enunciated in Waller v. Georgia, supra, is necessary and noncompliance is reversible error. See, e.g., State v. Hightower, 376 N.W.2d 648 (Iowa App.1985), where the trial court granted the prosecutor’s request that spectators be excluded while a ten-year-old child testified. The appellate court reversed and remanded for a new trial because “the prosecutor did not articulate for the record an ‘overriding interest’ that would likely be prejudiced, and the trial court failed to make adequate findings to support the closure.” Id., at 650. See also People v. Holveck, 171 Ill.App.3d 38, 121 Ill.Dec. 25, 524 N.E.2d 1073 (1988), where the trial court excluded the public from the trial during the testimony of 6-year-old sexual assault victims. The appellate court reversed and remanded for a new trial, stating at 121 Ill.Dec. 35, 524 N.E.2d 1083:

“The sole reason cited by the court for the closure was the ‘unnerving effect’ on the children if the courtroom were crowded and wanting to make the unpleasant experience of testifying as pleasant as possible for them. The record thus fails to establish that the trial court engaged in the careful balancing of interests and the individualized evaluation of factors required to override the defendant’s qualified Sixth Amendment right to a public trial. Accordingly we find that the court erred in closing portions of defendant’s trial to the general public.”

The State has pointed out that the trial court suggested after trial that the ruling would have been the same had Waller been followed. In denying Klem’s motion for a new trial, the trial court stated in part:

“The facts of the case were very clear and warranted closure of the trial during the testimony of the child witnesses....

******

“In this case, had there been a hearing and findings of fact, there was an abundance of evidence to show how sensitive the testimony of the children was....

“That children may be intimidated by the presence of unknown adults about them is common knowledge and a well known fact, that children are reluctant to talk in the presence of adult strangers is commonly accepted [f]act, common knowledge, which the Court could exercise, but of which there was specific proof in this ease, both during the preliminary hearing, during the first trial and through the testimony of Dr. Cook as to how reticent Landon, particularly, was on his initial examinations

An appellate court may not provide a post hoc rationale for why the trial court would have closed the trial had it held a hearing and made findings. The Waller court expressly invalidated such efforts by the Georgia Supreme Court:

“The post hoc assertion by the Georgia Supreme Court that the trial court balanced petitioners’ right to a public hearing against the privacy rights of others cannot satisfy the deficiencies in the trial court’s record. The assertion finds little or no support in the record, and is itself too broad to meet the Press-Enterprise standard.” 467 U.S. at 49 n. 8, 104 S.Ct. at 2217 n. 8, 81 L.Ed.2d at 40 n. 8.

The trial court’s post hoc rationalization is similarly unavailing here. While the child victim’s testimony was of a sensitive nature, it is apparent that the trial court’s post hoc rationale for why it would have closed the trial had it held a hearing is insufficient. Without an evidentiary hearing, the trial court’s rationale “finds little or no support in the record” (Waller, supra ). Without having weighed evidence as to such factors as the child victim’s psychological maturity and understanding, his desires, and the interests of his parents and other relatives, the trial court’s statements do not constitute the kind of “particularized determinations in individual cases” (Globe Newspaper Co., supra, 457 U.S. at 611 n. 27, 102 S.Ct. at 2622 n. 27, 73 L.Ed. 2d at 260 n. 27) required by Waller, Press-Enterprise and Globe.

Waller requires that a hearing be conducted and that findings be made before a trial is closed to the public. The trial court, therefore, erred in excluding the public, except for one media representative, from the courtroom during the child victim’s testimony without first conducting a hearing and making findings in accordance with the Waller requirements. A defendant need not “prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.” Waller, supra, 467 U.S. at 49, 104 S.Ct. at 2217, 81 L.Ed.2d at 40. Nor do we apply a harmless-error analysis to such errors, for “ ‘[t]he harmless error rule is no way to gauge the great, though intangible, societal loss that flows’ from closing courthouse doors.” Waller, supra, 467 U.S. at 49 n. 9, 104 S.Ct. at 2217 n. 9, 81 L.Ed.2d at 40 n. 9, quoting People v. Jones, 47 N.Y.2d 409, 418 N.Y.S.2d 359, 364, 391 N.E.2d 1335, 1340 (1979).

Our conclusion that the trial court erred in closing the trial during the child victim’s testimony without conducting a hearing and making findings requires us to determine a remedy. The court in Waller granted only qualified relief by ordering a public suppression hearing, but no new trial unless a new “public suppression hearing results in the suppression of material evidence not suppressed at the first trial, or in some other material change in the positions of the parties” (Waller, supra, 467 U.S. at 50, 104 S.Ct. at 2217, 81 L.Ed.2d at 41). The theory underlying the qualified relief granted in Waller is that if the public suppression hearing ordered did not result in a change in the evidence to be admitted, a new trial would be a windfall because the defendant had already been tried and convicted on the evidence that would be admissible in a new trial. Here, however, the public was excluded from the trial, not a suppression hearing.⁴ It is impossible to discern what effect the error had on the trial.⁵ We therefore believe that the appropriate relief is a new trial.

If, on remand, the State again wishes to have the general public excluded during the victim’s testimony, it may again seek closure. Before ordering closure, the trial court will be required to conduct a hearing and make findings in accordance with the Waller requirements. As in Waller, supra, 467 U.S. at 50, 104 S.Ct. at 2217, 81 L.Ed.2d at 41, the “decision should be made in light of conditions at the time of the new hearing, and only interests that still justify closure should be considered.”

Reversed and remanded for a new trial.

MESCHKE, GIERKE and VANDE WALLE, JJ„ concur.

1 . One count was for engaging in a sexual act with a person less than fifteen years old; the other count was for engaging in sexual contact with a person less than fifteen years old.

2 . Klem was represented by different counsel on appeal than at trial.

3 . The first trial resulted in a hung jury.

4 . It is significant that this was a trial that was closed, as distinguished from a pretrial proceeding, as in Waller. Until recently, pretrial proceedings "were never characterized by the same degree of openness as were actual trials.” Gannett Co., Inc. v. DePasquale, supra, 443 U.S. at 388, 99 S.Ct. at 2910, 61 L.Ed.2d at 626.

5 . On appeal, Klem has argued that he "was denied even the presence of his friends and relatives.” In denying Klem’s motion for a new trial, the court stated that it “would readily have granted” a request for the presence of relatives, such as the child victim’s grandparents. Without a hearing, there was no reasonable opportunity for Klem to make such a request. The presence of the child victim’s grandparents or other relatives could “provide moral support and comfort” [Aaron v. Capps, 507 F.2d 685, 688 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975)] as well as fulfill such objectives of a public trial as assuring testimonial trustworthiness.