State of North Dakota, Plaintiff and Appellee v. Bradley Joe Morales, Defendant and Appellant
No. 20180366
IN THE SUPREME COURT STATE OF NORTH DAKOTA
Filed 7/30/19 by Clerk of Supreme Court
2019 ND 206
Tufte, Justice.
Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.
REVERSED AND REMANDED.
Opinion of the Court by Tufte, Justice.
Rozanna C. Larson, State‘s Attorney, Minot, N.D., for plaintiff and appellee.
Bradley J. Morales, self-represented, Bismarck, N.D., defendant and appellant; submitted on brief.
[¶1] Bradley Joe Morales appeals a district court criminal judgment following a jury verdict finding him guilty of murdering his ex-girlfriend. Morales argues a motion hearing, evidentiary hearing, and parts of his trial were closed to the public without the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48 (1984), thus violating his right to a public trial guaranteed by the
I
[¶2] During an argument with his ex-girlfriend, Morales stabbed her in the neck. Morales was initially charged with Criminal Attempt - Murder. After the victim died from her injuries, the district court dismissed the Criminal Attempt charge on the State‘s motion. The State then charged Morales with Murder. On appeal Morales argues his public trial right was violated by the district court‘s closures of a motion hearing on March 27, 2018; an evidentiary hearing on April 16, 2018; and parts of the jury trial on May 17-24, 2018. He also argues he was denied his right to represent himself at trial and the State‘s decision to dismiss the initial charge and file new charges a week later was made in bad faith in an effort to have a new judge assigned to the case.
[¶3] These court proceedings attracted significant public interest and media attention. Because of news media coverage, the trial judge expressed concern about tainting the jury and impairing Morales‘s right to a fair and impartial trial. In an attempt to mitigate the risk of tainting potential jurors, the court issued an expansive order on March 15, 2018, advising that “all participants, including potential witnesse[s], are to refrain from making or authorizing extrajudicial comments to the media and the public” encompassing all “out-of-court comments” and subject to “sanctions against the offending individual, including contempt of court.”
[¶4] Morales argues the district court improperly closed the courtroom on eight separate occasions during the trial or pretrial hearings. Seven of the closures were initiated by the court, and one was requested by Morales. Before several of the closures, the court failed to conduct any of the analysis required by Waller. For some, the court discussed the Waller factors after the courtroom had already been closed. Before three of the closures, the court acknowledged the Waller factors but failed to articulate findings on all of the factors. In each of the eight closures, the public was excluded without the court giving consideration to whether the public could remain while the jury was excluded.
[¶6] The second closure was of an April 16, 2018, pretrial evidentiary hearing relating to admissibility of evidence under
I will have a new order clarifying on the pretrial being the first part of the April 16th and then we will clear the press out and we will go and deal with the 404(b). That will be a closed hearing for obvious reasons.
Just before the court excluded the public from the courtroom, the State objected to the closure and reminded the court of the Waller requirements. Morales‘s trial counsel then expressed concern that Morales‘s right to a fair trial with an impartial jury would be diminished if the media reported on any inadmissible evidence that would be discussed in open court. The State suggested that by making this argument, Morales was waiving his right to a public trial. The State asked the court to make specific findings and adequately tailor the closure, reasserting that the State did not join in the requested closure. When asked whether Morales concurred with the requested closure, his attorney responded: “Mr. Morales and I are apparently taking a different position, Judge. Mr. Morales will not waive his right to appeal on this issue should an appeal become necessary.” Faced with objections from both the State and the defendant, the court then reflected on the level of media coverage:
There [have] been reports, I don‘t know if all the excessive details that have been reported are going to be admissible or not. And I don‘t want a jury to be needlessly tainted because somebody perceives that‘s the public‘s absolute right to know. The public does have a right to know, and that. It‘s just a question of balancing the matters of how soon they have a right to know if we are going to be able to have a justice system that works. Both sides are entitled to a fair and impartial jury, and that‘s what I want us to have here.
After stating that “I will follow this up with an additional written order,” the court closed the courtroom without further pre-closure discussion of alternatives to closing the courtroom or whether the closure might be more narrowly tailored to protect the interest in an untainted jury pool without unnecessarily burdening the public trial right.
[¶7] The first trial closure occurred just before the jury was given preliminary instructions. The bailiff gave the trial judge a note from a juror who wanted to alert the court he had family working at the hospital where the victim was treated. The district court closed the proceedings, stating: “So if you are part of the public or the media I do ask that you leave temporarily. And just shut down your recording equipment.” After closing the courtroom, the court found “no alternatives to closing the courtroom” and characterized the closure as “what we would normally call a conference at the bench.” The court then called in the juror who had written the note and questioned him in the presence of Morales and the State about an incident in which people unrelated to the trial had initiated conversation with the juror about the case. The court was satisfied that the juror had
[¶8] The second closure occurred on the first day of trial after the jury had been escorted out for a lunch recess. After a brief discussion with counsel about whether and in what form certain video clips would be played, the court closed the courtroom to the public. After the closure, the court reviewed graphic video clips of the crime scene for analysis under
[¶9] At the beginning of the second day of the trial, the court closed the trial for a third time to have “a full and candid conversation with the attorneys” about a limiting instruction. The court stated it did not “view that there is an alternative to” the closure. During several closed sessions of court throughout the morning, the court discussed limiting instructions with Morales and the attorneys and also Morales‘s dissatisfaction with his trial attorney and desire to represent himself. The courtroom was reopened to the public when the jury returned at 1:00 p.m.
[¶10] The fourth closure was initiated by Morales when his trial attorney advised the court, “Mr. Morales wishes to make a record. Can we close the court?” At the time, the court had just returned from recess and the jury had not yet returned to the courtroom. Without making Waller findings or asking for a response from the State, the courtroom was closed to everyone other than Morales, the attorneys, and the court staff. After the courtroom was closed, Morales‘s attorney explained to the court that Morales “wishes to make a record in regard to evidence that he wishes to offer that I am not going to.” Morales explained his intent to take the stand and the reasons he had for doing so. The court explained its requirements for maintaining decorum and discussed whether Morales would testify in narrative form or would be questioned by his attorney.
[¶11] Just before closing arguments, and before the jury was brought in, the district court closed the courtroom to the public for a fifth time to discuss a report that two jurors might have seen Morales brought into the courthouse in shackles. Again, there was no analysis or findings under the Waller factors. While the courtroom was closed to the public, the court and counsel discussed procedures for questioning the jurors to determine whether any juror had seen Morales in shackles and, if so, whether any impression made would affect the juror‘s ability to be fair and impartial. The court discussed with counsel whether such questioning should be in open court.
[¶12] The courtroom was reopened to the public, and the jury panel was questioned as a group. After one juror raised her hand to indicate she had seen Morales outside the courtroom, the court closed the courtroom to the public for a sixth time to question the juror. The court explained that questioning an individual juror at this point into the trial would require “a lot of sensitivity.”
[¶13] At oral argument, the State confirmed that there were members of the public in attendance who were excluded from the courtroom during these courtroom closures.
II
[¶14] Morales argues that each of these closures violated his constitutional right to a public trial and requires reversal. A de novo standard of review applies to whether facts rise to the level of a constitutional violation. State v. Rogers, 2018 ND 244, ¶ 3, 919 N.W.2d 193. “In criminal cases, errors not raised in the district court may fall into one of three categories: forfeited error, waived error, and structural error.” Id. “Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right.” State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442. We review forfeited errors under
[¶15] Violation of the right to a public trial is a structural error. Rogers, 2018 ND 244, ¶ 5, 919 N.W.2d 193. We have said that structural errors are constitutional errors “so intrinsically harmful as to require automatic reversal” regardless of whether they were forfeited or waived. Id. at ¶ 3 (reversing and remanding for new pretrial competency hearing); State v. Pittenger, 2019 ND 22, ¶ 8, 921 N.W.2d 439; State v. Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378; State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442; State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642.
A
[¶16] To review a claimed violation of the constitutional right to a public trial, we must first consider whether there was a closure implicating the right. State v. Taylor, 869 N.W.2d 1, 11 (Minn. 2015) (“[B]efore we can apply the Waller test to determine if a closure is justified, we must determine whether a closure even occurred.“). This Court has said some courtroom closures may be “errors . . . ‘not significant enough to rise to the level of a constitutional violation.‘” State v. Decker, 2018 ND 43, ¶ 13, 907 N.W.2d 378 (quoting Carson v. Fischer, 421 F.3d 83, 94 (2d Cir. 2005)); see also Decker, at ¶ 35 (Tufte, J., dissenting) (“Whether called ‘trivial’ or not, such partial or temporary restrictions on public access are not properly considered the sort of ‘closure’ within the meaning of the Sixth Amendment or N.D. Const. art. I, § 12.“). Like the Sixth Amendment right to counsel, the Sixth Amendment public trial right attaches from the beginning of adversarial proceedings through sentencing. Rogers, 2018 ND 244, ¶¶ 11-12, 919 N.W.2d 193. Closures of pretrial hearings implicate the public trial right, although they do not always require reversal of a subsequent conviction. Rogers, at ¶¶ 19-21.
[¶17] Brief sidebars or bench conferences ordinarily will not implicate the public trial right where they are conducted during trial to address routine evidentiary
[¶18] In Rovinsky v. McKaskle, the Fifth Circuit held that the defendant‘s Sixth Amendment right to a public trial was violated when the trial court conducted in-chambers conferences to decide motions to limit the cross examination of two witnesses. 722 F.2d 197 (5th Cir.1984). Without pre-closure findings to review, the court explained it had no ability to evaluate the propriety of holding the conferences behind closed doors. Id. at 201. “Any necessity that the motions be heard outside the jury‘s presence did not require that they be heard behind closed doors. Prejudice could readily have been prevented without excluding the press and public by, for example, sequestering the jury.” Id.
[¶19] Ultimately, the district court must take “every reasonable measure to accommodate public attendance at criminal trials.” Presley v. Georgia, 558 U.S. 209, 215 (2010) (per curiam). We conclude a bench conference concerning an evidentiary objection seeking to exclude evidence during trial is not a closure implicating the public trial right. In that situation, the public remains present and is able to see and hear everything the jury is able to see and hear. However, a court proceeding concerning a motion in limine or motion to suppress evidence that is held either before
B
[¶20] The Sixth Amendment guarantees the right to a public trial: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”
[¶21] “The right to a public trial ‘must give way in rare instances to other interests essential to the fair administration of justice.‘” Rogers, 2018 ND 244, ¶ 14, 919 N.W.2d 193 (quoting State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d 599). An example of one such overriding interest is “the defendant‘s right to a fair trial.” Rogers, at ¶ 14 (quoting Presley, 558 U.S. at 213). Preserving a fair trial against the risk of a tainted jury pool was the trial judge‘s stated concern here. However, for the right to a public trial to yield to an overriding interest, the party seeking closure must assert an overriding interest to the court, and that interest must be the standard against which the court tailors any closure.
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.
State v. Klem, 438 N.W.2d 798, 801 (N.D. 1989) (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984)). We review the district court‘s application of the Waller factors “when evaluating claimed violations of the public trial right,” Rogers, at ¶ 15, and therefore “strictly requir[e] the trial court to make findings before closure.” Decker, 2018 ND 43, ¶ 9, 907 N.W.2d 378. This analysis consists of:
- the claiming party 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.
Rogers, at ¶ 15 (quoting Waller, 467 U.S. at 48). If these requirements are satisfied, “the public trial right is not violated and the proceedings may be closed.” Rogers, at ¶ 18. But if a closure during trial was not ordered consistent with Waller, the remedy is a new trial. Id. at ¶ 3.
[¶22] “Public trials are ‘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.‘” Rogers, 2018 ND 244, ¶ 8, 919 N.W.2d 193 (quoting Waller, 467 U.S. at 46); State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d 599 (“Although the guarantee of a public trial was created for the benefit of criminal defendants, the right is also shared with the public; the common concern is to assure fairness.” (internal citation
[¶23] Waller requires that any closure be no broader than necessary. To comply with Waller, before closing a trial the district court must consider and make findings on reasonable alternatives to closure and must tailor any closure to be no broader than necessary to protect the interest asserted by the party requesting the closure. We have held the Waller findings must be made before a closure. Decker, 2018 ND 43, ¶ 9, 907 N.W.2d 378. It is “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.” State v. Klem, 438 N.W.2d 798, 801 (N.D. 1989). Neither we nor the trial court can satisfy the constitutional command with post-closure rationale for why the closure would have been justified if the court had made the required findings. Id. at 802.
III
[¶24] The second closure of the trial was ordered by the court to consider whether graphic video of the crime scene was admissible under
[¶25] Under Waller and this Court‘s public trial decisions, the second trial closure without pre-closure findings was a clear deviation from an applicable legal rule; thus it was an error that was plain. When the district court ordered the second closure, the jury was at its lunch recess and was not in the courtroom. Naturally, the court must consider whether the probative value of evidence is outweighed by unfair prejudice without the jury observing the evidence or hearing the arguments. The court‘s reason to exclude the public is less clear. We could speculate that the court‘s reason was the same as its reason
[¶26] We now consider the third element of obvious error, whether the error “affects substantial rights.”
[¶27] The third closure was initiated by the court to discuss a limiting instruction with counsel. Neither party objected to the closure. The jury was not present when the court announced it would close the courtroom to the public so that it could have a “full and candid” conversation with counsel. Before closing the hearing, the court simply said, “I don‘t view that there is an alternative to that.” After closing the hearing, the court discussed proposed jury instructions limiting the jury‘s consideration of prior bad acts evidence to uses consistent with
[¶28] Discussion of a limiting instruction must of course be held outside the presence of the jury. Yet closing the
[¶29] The fourth closure was not simply forfeited by a failure to object but instead was expressly requested by Morales. The transcript recounts the following exchange before the courtroom was closed:
MR. MOTTINGER: Your Honor, Mr. Morales wishes to make a record. Can we close the court?
THE COURT: Is there anything else that we have in open court to bring about?
MR. MOTTINGER: No, Your Honor.
THE COURT: So I am going to be closing the courtroom. Before the Defendant presents their case. Record reflect both counsel are present, the Defendant is present, the courtroom has been closed. The court staff are present. It is my understanding that the Defendant wants to say something in closed court.
[¶30] The defendant‘s direct request for the closure invited the error he now argues on appeal. The invited error doctrine ordinarily does not permit a defendant to appeal an invited error. White Bird, 2015 ND 41, ¶ 23, 858 N.W.2d 642 (“It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party.“); U.S. v. Solis, 299 F.3d 420, 452 (5th Cir. 2002) (“Under this doctrine, a defendant cannot complain on appeal of alleged errors which he invited or induced . . . . We ‘will not reverse . . . absent manifest injustice.‘“); but see Rogers, 2018 ND 244, ¶ 9, 919 N.W.2d 193 (quoting Presley, 558 U.S. at 214 (“The public has a right to be present whether or not any party has asserted the right.“)); Press-Enterprise Co., 464 U.S. at 503-05, 508, 513 (concluding public trial right was violated despite both parties having sought confidentiality of transcript of closed voir dire proceedings); Singer v. United States, 380 U.S. 24, 34-35 (1965) (citing United States v. Kobli, 172 F.2d 919, 923-24 (3d. Cir. 1949) (concluding under Sixth Amendment that “members of the general public should be admitted to every criminal trial even though it might appear that, in a case such as the one before us, most of them come only out of morbid curiosity“)). Because we have concluded that the second and third trial closures were obvious error, we need not decide here whether the district court‘s failure to articulate Waller findings prior to closing proceedings at the specific request of the defendant is an error that may support reversal of a criminal judgment on appeal.
[¶31] To guide the district court regarding issues that may recur on remand, we briefly address the other
[¶32] The district court‘s two closures of pretrial hearings were also ordered without Waller findings justifying the closures. This is also error, although improper closure of a pretrial hearing does not necessarily require a new trial. Rogers, 2018 ND 244, ¶ 21, 919 N.W.2d 193. Because there was no objection to the first pretrial closure, we review it as a forfeited error subject to obvious error review. In contrast, both Morales and the State objected to the second pretrial closure, preserving it for review on appeal. The district court‘s March 15th order restricting all participants in the trial from making “extrajudicial comments” on penalty of contempt is clear indication of the court‘s appropriate concern that Morales receive a fair trial by an impartial jury not tainted by media coverage. That concern, to the extent it expressed the district court‘s motivation in closing pretrial hearings in March and April, is not by itself sufficient. The U.S. Supreme Court addressed precisely this point in Presley v. Georgia:
There are no doubt circumstances where a judge could conclude that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire. But in those cases, the particular interest, and threat to that interest, must “be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”
558 U.S. at 215-16. Under Waller and Presley, the first pretrial closure is error that is plain and thus satisfies the first two requirements for obvious error. And as a structural error immune to harmless error analysis, we also conclude it affects substantial rights. Accordingly, the first closure was also obvious error.
[¶33] The second pretrial closure, which we review de novo, was also a violation of the public trial right. At the prior hearing the district court stated that at the pretrial evidentiary hearing it would “clear the press out . . . and deal with the 404(b). That will be a closed hearing for obvious reasons.” On the record prior to closing the evidentiary hearing, the court stated, “I don‘t know if all the excessive details that have been reported are going to be admissible or not.” Waller would permit a closure even over the objection of both parties, but the court must articulate adequate findings supporting a closure. Compare Waller, which remanded for a new hearing on a motion to suppress, a hearing which necessarily includes discussion of evidence that may not be admissible.
IV
[¶34] We do not lightly reverse a criminal conviction in the absence of any apparent prejudice to the defendant flowing from erroneous trial closures. It may appear that reversing a conviction for a public trial violation elevates form over function. Further, we acknowledge the trial court‘s motivation to preserve the defendant‘s right to a fair trial by limiting distribution of case information that may not be admitted at trial. The second pretrial error was preserved by objection and would require only a remand for a new pretrial hearing and a new trial contingent on the outcome of that hearing. The other pretrial error and the two trial closures that we conclude were forfeited obvious error are subject to correction at our discretion. Olander, 1998 ND 50, ¶ 16, 575 N.W.2d 658. Here, we conclude that the repeated exclusion of the public without findings articulated on the record before the closures negatively affects the fairness, integrity, and public reputation of our criminal justice system. Id. at ¶ 28 (exercising discretion to notice obvious error and remanding for new trial because “an accused‘s guilt or innocence is not the determinative factor; rather, the fairness and integrity of the proceeding is paramount“). We exercise our discretion and notice these obvious errors. We reverse the judgment and remand for a new trial.
[¶35] We have considered Morales‘s remaining issues and arguments and conclude they are either without merit or unnecessary to our decision. We reverse the judgment and remand for a new trial.
[¶36]
Jerod E. Tufte
Daniel J. Crothers
Jon J. Jensen
Lisa Fair McEvers
Gerald W. VandeWalle, C.J.