DANIEL P. ROBERTS v. STATE OF MAINE
And-13-398
MAINE SUPREME JUDICIAL COURT
November 6, 2014
2014 ME 125
Decision: 2014 ME 125
Argued: September 10, 2014
Reporter of Decisions
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, JABAR, and HJELM, JJ.
[¶1] Daniel P. Roberts appeals from an order of the Superior Court (Androscoggin County, Wheeler, J.) denying his petition for post-conviction review. Because we conclude that Roberts‘s Sixth Amendment right to a public trial was not violated during any stage of his 2007 murder trial, we affirm.
I. FACTUAL BACKGROUND
[¶2] In December 2005, Roberts was indicted for the murder of Melissa Mendoza, the mother of his child.1 Roberts pleaded not guilty, and the case
[¶3] Roberts filed a pro se petition for post-conviction review on July 2, 2009, alleging that he received ineffective assistance from trial counsel. He submitted an amended petition through counsel in December 2010, and he filed a supplemental amended petition in March 2011. An evidentiary hearing was held in the Superior Court in December 2011.
A. Jury Selection
[¶4] Prior to jury selection, Roberts‘s defense counsel filed a motion in limine requesting that questioning of individual jurors take place outside of the
[¶5] The court addressed the process for conducting voir dire during a motion hearing on January 30, 2007, at which Roberts was present and represented by counsel. The court explained that general voir dire would be conducted in open court and that jurors who had been exposed to information about the case or expressed a possible bias would then be questioned individually. Topics to be explored during individual voir dire included, among other things, jurors’ views regarding drugs and alcohol, whether they had any personal experience with domestic violence, and whether they had previous experience in the court system as a party, witness, complaining witness, or victim.
[¶6] The court indicated, “[T]he question is whether [the individual voir dire is] done at sidebar or whether it‘s done in chambers,” to which defense counsel responded, “I would prefer that it be done in chambers, Your Honor.” Defense counsel further stated that Roberts was entitled to be present in chambers during the individual voir dire and said, “I would also ask for other people to be present as well.” The court acknowledged that defense counsel had previously requested that “a number of people” be present during individual voir dire but
[¶7] Consequently, during jury selection, individual voir dire was conducted in chambers with no members of the public present; defense counsel was accompanied by co-counsel and one jury-selection consultant. The court advised each of the forty-nine prospective jurors questioned in chambers that everyone present had an obligation to keep confidential any information that was divulged during the individual voir dire. At no time did Roberts object to this procedure.
B. Courthouse Screening
[¶8] During the trial, a sign was posted at the front entrance of the courthouse indicating that anyone wearing colors, logos, or insignia associated with any fraternal organization would not be allowed inside. The purpose of this screening policy was to prevent the jury from being exposed to any suggestion that Roberts was affiliated with the Hell‘s Angels. Roberts did not object to this procedure; on the contrary, it was implemented with his knowledge and consent. The court informed counsel that it was implementing the process in order to
[¶9] One day while the trial was in session a judicial marshal asked a Roberts supporter to remove his T-shirt before entering the courthouse because the shirt displayed a Harley Davidson logo. The supporter removed the shirt, turned it inside out, and put it back on; he was then permitted to enter the courthouse. No members of the public were excluded as a result of the screening policy.
C. Limitations on Entry to the Courtroom During Trial
[¶10] Defense counsel requested during a conference in chambers that the victim‘s family be removed from the courtroom during the presentation of certain evidence—specifically, the playing of a recording of a phone call between the victim and Roberts—because they were holding each other and visibly crying into handkerchiefs, which defense counsel feared could unfairly prejudice Roberts. The court declined to ask them to leave the courtroom but did consider various options, including having a victim advocate ask them to be more aware of their behavior and possibly asking them to move to a less visible location in the courtroom. The court concluded, however, that the best option would be to simply adjourn for the day, noting that Roberts‘s family and friends had engaged in distracting behavior as well, including tapping other spectators on the shoulder as
I would like everyone to stay in the courtroom just for a minute so I can give some general instructions about courtroom demeanor, both during sessions and in between sessions. So I‘m going to ask that people remember they‘re in a courtroom, they‘re in a courthouse. Their behavior should be in accordance with ... the solemnity that should be attached to a courthouse. ... I‘m asking all of you here who are attending the trial on a daily basis that you treat each other civilly, and I do not want any eruptions or anything else to happen. If that does happen I will have to remove people from the courtroom. ... I treat the court with utmost respect, and I expect anyone who is here to do the same.
[¶11] Later in the trial, the court again discussed with counsel the problem of distracting activity occurring in the audience during the presentation of evidence. The court addressed both defense counsel and the State at sidebar, saying,
I am concerned, and I could speak to the attorneys or I could speak to the whole audience after the jury leaves, but I would ask each of you to talk to your sort of fan clubs back there. During the tape recording [of the phone call between the victim and Roberts] your victim advocate was not there ... and the [victim‘s] mother was having a difficult time. . . . On your side a young blond woman came in and acted sort of like this was a wedding or something. . . . [S]he gave [Roberts‘s father] a big hug and then she gave a woman across the front of the bench a big hug and she turned and waved to other people. I think you just need to talk to the principal people who are here and make sure they reign in their behavior. . . . I‘ll ask each of you to talk to the people ... about the right of the jury to make a decision ... independent of being affected by what members of the audience are doing.
D. The Return of the Verdict
[¶13] On its first day of deliberations, the jury asked for read-backs of several portions of testimony and reviewed videos and recordings that had been offered during the trial. After rehearing certain evidence, the jury resumed deliberations at 4:26 p.m. The record does not reflect at what time the jury notified
[¶14] Several of Roberts‘s supporters, upon being informed that the jury had reached a verdict, went to the courthouse and tried to get in. They believed that the court would allow thirty minutes for spectators to arrive before having the jury announce the verdict. When they arrived, however, the doors to the courthouse were locked. A court officer explained at the post-conviction hearing that a county employee typically locks the courthouse doors at 5:00 p.m., and that he recalled seeing an employee lock the door around that time on the day of the verdict. The Roberts supporters who testified that they were unable to get in were unsure of what time they arrived at the courthouse. They observed members of the victim‘s family being escorted out of the courthouse after the verdict had been announced.
II. PROCEDURAL BACKGROUND
[¶15] On August 17, 2012, the court issued a forty-six-page order denying Roberts‘s petition. With regard to jury selection, the court concluded that defense counsel had waived any objection to the closure on Roberts‘s behalf. The court found that this was a tactical decision by defense counsel that did not constitute ineffective assistance of counsel. The court concluded that Roberts had failed to show cause for failing to object at trial and for failing to raise the issue on direct
[¶16] The court further concluded that the exclusion of late arrivals from the courtroom did not amount to even a partial closure. The court went on to explain that, even assuming that the restrictions on entry during testimony did amount to a partial closure, such a closure was too trivial to implicate Roberts‘s Sixth Amendment rights. Finally, the court found as fact that the courthouse doors were not locked before the verdict was announced at 4:54 p.m. and that those spectators who were unable to enter must have arrived shortly after 5:00 p.m.
[¶17] On August 12, 2013, the court issued a supplemental order to address arguments it had overlooked in its previous order, and again denied Roberts‘s petition. Roberts appealed, and we issued an order granting a certificate of probable cause and permitting full review on two issues: whether the post-conviction court erred in determining that the trial court did not violate Roberts‘s right to a public trial when it closed portions of voir dire, and whether
III. DISCUSSION
[¶18] Decisions whether to close court proceedings to the public frequently involve the balancing of three important interests: the First Amendment rights of the press and members of the public, the defendant‘s right to a public trial, and the interest of both the State and the defendant in ensuring an impartial jury and a fair trial. See In re Maine Today Media, Inc., 2013 ME 12, ¶ 3, 59 A.3d 499. This appeal requires us to weigh Roberts‘s personal right to a fair and public trial with the trial court‘s responsibility to manage the proceedings and maintain order. As this case demonstrates, these interests are not necessarily incompatible. On the contrary, the trial court‘s management of the courtroom is undertaken with the goal of ensuring the fairness and impartiality of the trial.
[¶19] The Sixth Amendment to the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial” by an impartial jury. The Sixth Amendment‘s public trial guarantee “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.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quotation marks omitted);
A. Conducting Voir Dire in Chambers
[¶20] We must first determine whether Roberts is procedurally defaulted from raising this issue on post-conviction review. The post-conviction court concluded that defense counsel effectively waived Roberts‘s Sixth Amendment rights relating to the voir dire of individual jurors, and that doing so did not constitute ineffective assistance of counsel. Roberts argues that no waiver occurred, that trial counsel‘s failure to object constituted ineffective assistance of counsel, and that appellate counsel‘s performance was similarly deficient for failing to raise the issue on appeal.
[¶21] We review questions of law de novo, Alexandre v. State, 2007 ME 106, ¶ 14, 927 A.2d 1155, and “apply a deferential standard of review to the findings of a post-conviction court.” Francis v. State, 2007 ME 148, ¶ 5, 938 A.2d 10. Generally, errors at trial that could have been raised on direct appeal
[¶22] Typically, a habeas petitioner is entitled to collateral relief on a Sixth Amendment claim only if he can show both (1) cause for having procedurally defaulted his claim, and (2) actual prejudice resulting from the alleged error. Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). Because a total closure of the courtroom during jury selection is a structural error,3 however, a petitioner is not required to demonstrate actual prejudice resulting from such a closure. Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007). Thus, we will consider
[¶23] A showing that counsel was constitutionally ineffective is sufficient to show cause for failure to raise an issue at trial and may allow a petitioner for post-conviction review to avoid a procedural default. See Owens, 483 F.3d at 63. “To prove ineffective assistance of counsel, a defendant must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 57 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)) (quotation marks omitted). “The question is whether the counsel‘s performance fell within the wide range of reasonable professional assistance that a competent criminal defense counsel could provide under prevailing professional norms.” Bucci, 662 F.3d at 29-30 (quotation marks omitted). The Strickland test “compels us to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Morales v. United States, 635 F.3d 39, 44 (2d Cir. 2011) (quotation marks omitted). “We will not overturn a post-conviction court‘s determination as to the effectiveness of trial counsel unless it is clearly erroneous and there is no competent evidence in the record to support it.” Gauthier v. State, 2011 ME 75, ¶ 13, 23 A.3d 185 (quotation marks omitted).
[¶24] “[T]he right to an open trial may give way in certain cases to other rights or interests. . . . Such circumstances [are] rare, however, and the balance of
[¶25] For purposes of the Sixth Amendment, jury selection is an essential part of “the trial.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (“[T]he Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.“); State v. Pullen, 266 A.2d 222, 228 (Me. 1970), overruled on other grounds by State v. Brewer, 505 A.2d 774 (Me. 1985); see also Owens, 483 F.3d at 63 (“Jury selection is, of course, a crucial part of any criminal case.“). A trial court is constitutionally required to consider alternatives to closure before it may exclude members of the public from voir dire. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511 (1984).
[¶26] We are nevertheless unpersuaded by Roberts‘s contention that trial counsel acted incompetently by requesting that individual voir dire be conducted in chambers. This appeal concerns only Roberts‘s right to a fair and public trial; it
[¶27] As the post-conviction court found, trial counsel‘s approach was entirely consistent with the prevailing professional norms in Maine‘s criminal defense bar and trial courts at the time. See, e.g., State v. Moody, 486 A.2d 122, 126 (Me. 1984) (concluding that the trial court “abused [its] discretion in declining
[¶28] Because we conclude that trial counsel‘s performance was not ineffective, we likewise conclude that appellate counsel did not provide ineffective assistance by failing to raise Roberts‘s Sixth Amendment claim on direct appeal. See Morales, 635 F.3d at 45. Roberts has failed to show cause for failing to raise this issue on appeal; therefore, he cannot raise it now on post-conviction review.
B. The Courthouse Screening Procedure
[¶29] Roberts next contends that the prohibition on apparel displaying certain logos implicated his Sixth Amendment rights to such an extent that a new trial is constitutionally required. Roberts argues that the screening process constituted at least a partial closure of the courtroom, which is only permissible if the trial court makes appropriate factual findings on the record. The State argues that no closure occurred because no members of the public were excluded and that the restriction was a reasonable measure designed to protect Roberts‘s right to a fair trial. We agree with the State.
[¶30] In discussing the public‘s right to attend criminal trials, the United States Supreme Court has indicated that a trial judge may, “in the interest of the fair administration of justice, impose reasonable limitations on access to a trial,” and that “[t]he question in a particular case is whether that control is exerted so as
[¶32] Roberts further argues that the trial court‘s decision to prohibit members of the public from entering the courtroom during witness testimony constituted a partial closure unsupported by any appropriate findings. Again, we conclude that no closure—and thus, no constitutional violation—occurred.
[¶33] We reiterate that the Sixth Amendment does not prohibit a trial court from imposing reasonable limitations on the public‘s access to the courtroom. See Richmond Newspapers, Inc., 448 U.S. at 581 n.18; Maldonado, 2 N.E.3d at 151-52. Here, although certain members of the public were barred from entering the courtroom at certain times, they were not permanently excluded. Moreover, the public at large was not excluded; anyone who was inside the courtroom, including family members and members of the press, was permitted to remain.5 That some members of the public were unable or unwilling to arrive on time does
D. The Return of the Verdict
[¶34] Finally, Roberts contends that the doors to the courthouse were locked before the jury returned its verdict, constituting a closure in violation of the Sixth Amendment. The post-conviction court found as fact that the doors were not
[¶35] Contrary to Roberts‘s assertions, ample evidence supports the post-conviction court‘s finding that the courthouse doors were not locked until after the verdict had been announced. The record reveals that the jury returned to the courtroom at 4:54 p.m. after it had completed its deliberations. The record also contains evidence that the courthouse doors were typically locked at 5:00 p.m., and the evidence did not compel a finding that they were locked any earlier than usual on the day the verdict was reached. Although several witnesses testified that they were unable to enter the courthouse when they arrived to hear the verdict, none of them could recall what time it was when they arrived. The post-conviction court acted well within its prerogative as a fact-finder by concluding that the doors were locked at the usual time of 5:00 p.m. and that the public was not excluded from the announcement of the verdict.6 The post-conviction court properly concluded that Roberts‘s Sixth Amendment right to a public trial was not violated.
The entry is:
Judgment affirmed.
On the briefs:
Rosemary Curran Scapicchio, Esq., Boston, Massachusetts, and Verne E. Paradie, Jr., Esq., Paradie Sherman Walker & Worden, Lewiston, for appellant Daniel Roberts
Janet T. Mills, Attorney General, and William R. Stokes, Dep. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine
At oral argument:
Rosemary Curran Scapicchio, Esq., for appellant Daniel Roberts
Donald W. Macomber, Asst. Atty. Gen., Office of the Attorney General, Augusta, for appellee State of Maine
Androscoggin County Superior Court docket number CR-2009-685
FOR CLERK REFERENCE ONLY