STATE of Wisconsin, Plaintiff-Appellant, v. Dhosi J. NDINA, Defendant-Respondent-Petitioner.
No. 2007AP5-CR
Supreme Court of Wisconsin
February 26, 2009
2009 WI 21 | 761 N.W.2d 612
Oral argument October 8, 2008.
For the plaintiff-appellant the cause was argued by Daniel J. O‘Brien, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.
¶ 1. SHIRLEY S. ABRAHAMSON, C.J. The defendant, Dhosi J. Ndina, seeks review of a published decision of the court of appeals reversing an order of the Circuit Court for Milwaukee County, Dennis P. Moroney, Judge.1 At the hearing on the defendant‘s postconviction motion for a new trial, the circuit court reversed a judgment of conviction against the defendant and granted the defendant‘s postconviction motion for a new trial.2 The circuit court (Judge Moroney) concluded that the circuit court (Mary M. Kuhnmuench, Circuit Court Judge for Milwaukee County), had violated the defendant‘s right to a public trial under the Sixth Amendment to the United States Constitution by excluding the defendant‘s family from three days of the trial proceedings.
¶ 2. Three issues are presented on review to determine whether the circuit court erred in granting the defendant‘s postconviction motion for a new trial:
I. Did the defendant waive or forfeit his right to argue in an appellate court that the circuit court violated his Sixth Amendment right to a public trial? Did the State waive or forfeit its right to argue in an appellate court that the defendant waived or forfeited his right to argue that the circuit court violated his Sixth Amendment right to a public trial?
II. Did the circuit court‘s order excluding family members from three days of trial proceedings violate the defendant‘s Sixth Amendment right to a public trial?
III. If the circuit court did not violate the defendant‘s Sixth Amendment right to a public trial, what remedy, if any, does the defendant have?
¶ 4. Because both parties failed to bring arguments to the circuit court in a timely manner and have briefed the substantive issue whether the circuit court‘s order excluding family members violated the defendant‘s Sixth Amendment right to a public trial, this court has decided to reach the merits of the issue presented, rather than to assess comparative blame and address the effect of the defendant‘s failure at trial to raise the Sixth Amendment issue and the State‘s failure at the postconviction hearing to raise the defendant‘s waiver/forfeiture at trial of the Sixth Amendment issue. We conclude that the exclusion of family members from three days of the trial implicated the defendant‘s Sixth Amendment right to a public trial but did not, under the circumstances of the instant case, violate the defendant‘s Sixth Amendment constitutional right.
¶ 6. Accordingly, we affirm the court of appeals decision, although on different grounds, reversing the postconviction order granting the defendant a new trial, reinstating the judgment rendered by the jury, and remanding the matter to the circuit court for any additional postconviction remedies required by law. We remand the matter, as did the court of appeals, to the circuit court for additional postconviction proceedings required by law.
I
¶ 7. We briefly summarize the facts relating to the circuit court‘s order excluding members of the defendant‘s family from the courtroom for parts of the trial.
¶ 8. The State charged the defendant with attempted first-degree intentional homicide while using a dangerous weapon. The victim, the nephew of the
¶ 9. Because the victim is related to the defendant and was injured during a family gathering, many witnesses for both the State and the defendant were members of the defendant‘s family. Defense counsel‘s initial witness list included the names of 13 individuals whom the record shows either to be related to the defendant or at least to bear the same surname as a confirmed relative of the defendant. The State included seven of the defendant‘s relatives on its initial witness list, including three individuals who also appeared on defense counsel‘s witness list. Nine family members eventually testified either for or against the defendant.
¶ 10. The defendant and his family are fairly recent immigrants from Albania. The defendant relied upon an Albanian-English interpreter during the course of his trial. The record also shows that many, and possibly all, members of the defendant‘s family who served as witnesses testified in Albanian with an Albanian-English interpreter. Four police officers testified in English.
¶ 11. Early in the trial, the circuit court issued a sequestration order applying to all potential witnesses except the defendant and a law enforcement officer testifying for the State. The circuit court ordered all persons subject to the order to “remain outside the courtroom until called in to testify.” The circuit court further ordered such persons “not to discuss their testimony with each other or with anyone until directed to do so or unless directed to do so by [the] Court.”
¶ 12. The circuit court specifically instructed both the prosecutor and defense counsel to communicate its sequestration order to potential witnesses. The circuit court also reminded defense counsel that he would need
¶ 13. On the trial‘s third day, the circuit court received testimony from the victim‘s father, who told the jury that he had witnessed the defendant stab his son. A disturbance occurred in the courtroom during this testimony. The circuit court observed that “individual family members in the gallery... were engaging in a level of conversation that not only the Court could hear” but that the circuit court “feared... the jury could hear as well.” The circuit court stopped the proceedings and directed the bailiff and the court interpreter “to communicate to... those family members in the gallery that they must remain silent and not talk among each other while they are in the courtroom.” The circuit court later observed that it had “not seen or heard anything from those family members in the gallery since that directive was made.”
¶ 14. Near the end of the following day, the fourth day of trial, a second disturbance occurred as the victim‘s father continued to testify. The circuit court observed that there were people entering and leaving the courtroom and expressed concern about the sanctity of the circuit court‘s sequestration order. The prosecutor informed the circuit court that the victim‘s family had expressed concern that the persons entering and leaving the courtroom had been violating the order by conveying information to prospective witnesses. The circuit court asked defense counsel to identify three particular individuals in the gallery. Defense counsel identified these individuals as the defendant‘s mother and two of the defendant‘s sisters-in-law, at least one of whom was married to a person on defense counsel‘s witness list.
¶ 16. As an exception to its order, the circuit court permitted the defendant‘s mother to remain in the courtroom. The defendant swore in an affidavit that he filed with the circuit court that his mother does not speak English and therefore was unable to understand any of the witnesses who testified in English during his trial. The affidavit was not contradicted.
¶ 17. In excluding family members from the trial proceedings, the circuit court did not attempt to distinguish between those members of the defendant‘s family who were more closely related to the defendant and those who were more closely related to the victim. The circuit court expressly stated that its order would apply to family members on “both sides,” with the single exception made for the defendant‘s mother. The circuit court also did not distinguish between those members of the defendant‘s family who were in the courtroom when the disturbances occurred and those members of the defendant‘s family who were not present. The order apparently applied as it was literally worded, that is, to “all family members.”
¶ 18. The circuit court recounted the circumstances that led the circuit court to issue its order excluding family members from the courtroom. The circuit court observed that the defendant‘s mother “had already demonstrated a willingness to talk about the case to someone sitting next to her while she was in [the]
¶ 19. The next day, the circuit court again explained the basis of its order excluding family members from the courtroom. The circuit court stated that it could not “allow what [it] believe[d] to be a violation of [its] earlier ruling [imposing the sequestration order] to go unchecked.” The circuit court stated that it had observed “the mother of the defendant, as well as other family members, both male and female... discussing matters as witnesses were on the stand, oftentimes in a very animated and elevated fashion.” The circuit court further stated that family members in the audience had been “nodding in approval or disapproval of witnesses’ testimony, in full view of the jury” and were “loud, loud enough such that other members of my staff, as well as the parties, could hear it.”
¶ 20. Defense counsel did not object to the circuit court‘s order excluding family members from the courtroom. Neither the circuit court nor counsel for either side explicitly raised the possibility that the circuit court‘s order might implicate the Sixth Amendment right to a public trial.
¶ 21. The circuit court permitted family members to return to the courtroom at the beginning of the trial‘s eighth day to hear the jury instructions and the closing arguments of counsel. Altogether, family members were excluded from the courtroom for approximately three
¶ 22. After his conviction, the defendant moved the circuit court to order a new trial. The defendant argued in principal part that the circuit court violated the defendant‘s Sixth Amendment right to a public trial when it excluded family members from the courtroom. The State did not argue at the postconviction hearing that the defendant had waived (or forfeited) his right to assert a violation of his Sixth Amendment right to a public trial.
¶ 23. The defendant also asserted in his postconviction motion that the circuit court had erred in
¶ 24. The court of appeals reinstated the judgment of conviction against the defendant and remanded the cause to the circuit court for any additional postconviction proceedings required by law.
II
¶ 25. The first issue presented is waiver, that is, waiver by both the defendant and the State with regard to the claim that the defendant‘s Sixth Amendment right to a public trial was violated.
¶ 26. It is undisputed that defense counsel failed to object when the circuit court excluded family members from the courtroom. The State argues that because
¶ 27. It is also undisputed that the State failed to argue in the postconviction hearing that the defendant had waived or forfeited the Sixth Amendment public trial issue. For his part, the defendant argues that because the State never raised in the postconviction hearing the issue of the defendant‘s waiver or forfeiture of his right to argue the violation of his Sixth Amendment right to a public trial, the State waived or forfeited its right to assert in this court that the defendant waived or forfeited his right to argue that the circuit court violated his Sixth Amendment right to a public trial. As might be expected, the State vehemently disagrees with the defendant‘s argument.
¶ 28. The case law is rife with confusion about the words “waiver” and “forfeiture.” Indeed, this court repeatedly has acknowledged its own imprecise use of these words. See Rao v. WMA Securities, Inc., 2008 WI 73, ¶ 24, 310 Wis. 2d 623, 752 N.W.2d 220 (acknowledging that “waiver” of the right of trial by jury under Article I, Section 5 of the Wisconsin Constitution sometimes “is more akin to ‘forfeiture’ than to ‘waiver’ in its strictest sense as an intentional relinquishment of a known right“); State v. Kelty, 2006 WI 101, ¶ 18 n.11, 294 Wis. 2d 62, 716 N.W.2d 886 (acknowledging that the “guilty-plea-waiver” rule could more accurately be called “the ‘guilty-plea-forfeiture’ rule, or something to that effect“); State v. Huebner, 2000 WI 59, ¶ 11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (acknowledging that the rule of judicial administration known as the
¶ 29. Although cases sometimes use the words “forfeiture” and “waiver” interchangeably, the two words embody very different legal concepts. “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks and citation omitted).
¶ 30. In other words, some rights are forfeited when they are not claimed at trial; a mere failure to object constitutes a forfeiture of the right on appellate review. The purpose of the “forfeiture” rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal.5 The forfeiture rule also gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection; encourages attorneys to diligently prepare for and conduct trials; and prevents attorneys from “sandbagging” opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.6
¶ 31. In contrast, some rights are not lost by a counsel‘s or a litigant‘s mere failure to register an
¶ 32. Similarly, the United States Supreme Court warned that “[a] strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial.” Schneckloth v. Bustamonte, 412 U.S. 218, 241, 242 (1973) (footnote omitted).
¶ 33. The court of appeals decision can be interpreted as concluding either that the defendant “waived” or that he “forfeited” his right to raise the merits of the alleged violation of his Sixth Amendment right to a public trial because he failed to object when the circuit court ordered his family members excluded.7 Counsel
for the State astutely pointed out during oral argument to this court, however, that the substance of the court of appeals’ holding was that the defendant had “forfeited” rather than “waived” his Sixth Amendment right to a public trial. Consistent with the definition of “forfeiture,” the court of appeals concluded that the defendant had no right to assert his Sixth Amendment right to a public trial in his postconviction motion or on appeal because the defendant had failed to assert this right timely at trial.8
¶ 34. Thus the court of appeals decision leaves open the question whether the defendant‘s failure to
object at trial to closure on the ground of a violation of the
¶ 35. The defendant and State dispute whether a “waiver” or “forfeiture” standard applies to a defendant‘s assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant‘s failure to object timely to a trial court‘s alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the
¶ 36. The defendant and State also dispute whether the State may assert, as a matter of right, that the defendant has waived or forfeited his right to claim a violation of the
¶ 37. The parties’ statements of the deleterious effects of each other‘s alleged errors make sense. The State‘s brief explains that had the defendant objected timely before the circuit court to the exclusion of family members, the circuit court could have made a better record explaining its decision, could have narrowed its order, and could have considered alternative orders. The defendant‘s brief explains that had the State objected timely at the postconviction hearing that the defendant waived or forfeited his right to argue the violation of his right to a public trial, a better record would have been made in the circuit court, and multiple trips (as is now happening) between the circuit court, the court of appeals, and the supreme court could have been avoided.
¶ 38. Although two wrongs do not make a right, the circumstances in the present case make clear that this court should not spend time deciding this case
¶ 39. We therefore turn to the second issue, namely whether the circuit court‘s order excluding family members from several days of the trial violated the defendant‘s
III
¶ 40. The
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense (emphasis added).
¶ 42. The
¶ 43. If a defendant‘s right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors.15
¶ 45. The parties’ briefs do not clearly and directly set forth the standard of review an appellate court should use in reviewing a circuit court‘s decision regarding whether the defendant is entitled to a new trial
¶ 46. An appellate court applies a two-step analysis to determine the question of law whether a defendant‘s
¶ 47. In performing these two analytical steps in resolving the present case, we conclude (A) that the circuit court‘s order excluding family members from the courtroom implicates the
A
¶ 48. Although the “exclusion of any spectator runs the risk of violating the
¶ 49. These courts conclude that a closure is trivial and does not implicate the
¶ 50. The State contends that the circuit court‘s order excluding family members from the courtroom for three days of witness testimony does not implicate the values served by the
¶ 51. Although the United States Supreme Court has stated that pursuant to the
¶ 53. The facts of the instant case contrast sharply with the facts of cases in which courts have concluded that a closure was so trivial as not to implicate the
¶ 55. For the reasons set forth, we conclude that the
B
¶ 56. Closure of a criminal trial is justified when four conditions are met: “(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure.”32 The case law typically refers to this four-part test as the “Waller test,” referring to the United States Supreme Court‘s decision in Waller v. Georgia, 467 U.S. 39 (1984).33
¶ 57. We consider each of the four applicable requirements separately in determining whether the defendant‘s
(1)
¶ 58. The circuit court justified its order as necessary to ensure that family members attending the trial were not contributing to violations of the court‘s sequestration order. Although disruptions within the courtroom may be viewed as a justification for a trial court‘s order excluding family members from the trial, the circuit court in the instant case did not justify its order as necessary to prevent such disruptions or to maintain the dignity, order, and decorum of the courtroom.
¶ 59. The circuit court stated that it issued its order to “protect[] the integrity of [the] proceedings” and that the circuit court could not “allow what [it] believe[d] to be a violation of [its] earlier ruling [imposing the sequestration order] to go unchecked.” The circuit court was persuaded that family members in the courtroom gallery were violating the “spirit” of the court‘s sequestration order by conveying the contents of witness testimony to potential witnesses outside the courtroom.
¶ 60. Sequestration orders serve the important interest of promoting truthfulness in witness testimony. A sequestration order “exercises a restraint on witnesses ‘tailoring’ their testimony to that of earlier witnesses“; “aids in detecting testimony that is less than candid“; and, when testimony is interrupted by a recess, also may “prevent[] improper attempts to influence [pro
¶ 61. The circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant‘s family members. The circuit court‘s determination that family members were contributing to violations of the sequestration order is supported by the following information that appears in the record: (1) the circuit court witnessed family members entering and leaving the courtroom; (2) members of the victim‘s family went to the prosecutor with concerns that the persons entering and leaving the courtroom had been conveying information to potential witnesses; and (3) the circuit court witnessed family members in the courtroom gallery talking loudly as witnesses were testifying and even “nodding in approval or disapproval of witnesses’ testimony, in full view of the jury.”
¶ 62. The defendant contends that the circuit court‘s findings are insufficient to show that the interests served by the circuit court‘s sequestration order
¶ 63. We agree with Professor LaFave that “[g]enerally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure” when an order of the trial court implicates the
¶ 64. We do not agree, however, with the defendant‘s characterization of the record. The record shows that the overriding truth-seeking interests served by the circuit court‘s sequestration order would
(2)
¶ 65. The defendant contends that the circuit court‘s order was overbroad because it applied to the defendant‘s entire family (except the defendant‘s mother), even to family members not then present in the courtroom, and not to specific individuals shown to pose a threat to the circuit court‘s sequestration order.
¶ 67. Moreover, the circuit court lifted its exclusion order once all the witnesses had finished testifying and any threat to the circuit court‘s sequestration order had been extinguished. Family members were permitted to return to the courtroom to hear the jury instructions and the closing arguments of counsel.
¶ 68. We acknowledge again that the better course of action for the circuit court would have been to determine with more certainty how individual family members may have been contributing to violations of the court‘s sequestration order and to make more specific findings about the likelihood of violations. Under the circumstances of the present case, however, we cannot say that the circuit court‘s procedure rendered the circuit court‘s order broader than necessary to protect the overriding interests served by the circuit court‘s sequestration order.
¶ 70. In English v. Artuz, 164 F.3d 105 (2d Cir. 1998), English was accused of committing murder at the request of a drug dealer. The circuit court closed the courtroom to all members of the public, including English‘s family, in the interest of protecting a prosecution witness from the threat of harm.
¶ 71. The United States Court of Appeals for the Second Circuit held that the district court had erred in excluding English‘s family from the courtroom.38 The court of appeals stated that the prosecution‘s witness had testified unequivocally that he did not fear English‘s family and that the district court easily could have identified the members of English‘s family.39 The court of appeals therefore concluded that the closure was not narrowly tailored to protect the prosecution‘s witness against threat of harm.40
¶ 72. English is not instructive in the present case. The circuit court in the present case, unlike the district court in English, reasonably concluded that the defendant‘s family members posed a threat to the overriding interests served by the circuit court‘s sequestration order. The circuit court determined that members of the defendant‘s family, not other persons, were acting in a manner contrary to the circuit court‘s sequestration order forbidding communication between
¶ 73. The present case is additionally distinguishable from English because the district court in English could have fulfilled the request to narrow the court‘s closure order much more easily than the circuit court could have narrowed its order in the instant case. As we have already stated, it would have been difficult if not impossible for the circuit court in the instant case to determine which of the defendant‘s family members were likely to convey the contents of witness testimony to any of the numerous family members listed as potential witnesses in the trial. The district court in English, however, could have reasonably narrowed its closure order by making the simple determination of which persons were related to English and which were not.
¶ 74. In State v. Ortiz, 981 P.2d 1127 (Haw. 1999), the prosecutor moved to exclude Ortiz‘s family from the courtroom on the basis of “an ongoing investigation, involving at least some of Ortiz‘s family members, into jury tampering, witness tampering, intimidating a witness, and possible retaliation against a witness.”41 The prosecutor made allegations against Ortiz‘s sister, mother, and brother-in-law but not against any other member of Ortiz‘s family.42 The trial court granted the prosecutor‘s motion over defense counsel‘s objection. The trial court also kept its exclusionary order in place after it had questioned members of the jury about
¶ 75. The Supreme Court of Hawaii held that the trial court‘s order was broader than necessary to protect the prosecutor‘s interest in preventing jury tampering, witness tampering, or the intimidation of or retaliation against witnesses.44 The Hawaii supreme court first determined that the trial court had erred in excluding Ortiz‘s entire family when the prosecution had limited its allegations to Ortiz‘s sister, mother, and brother-in-law.45 The Hawaii supreme court also concluded that the trial court had further erred in leaving its exclusion order in place even after conducting a voir dire of all the jurors and satisfying itself that no jury tampering had taken place.46
¶ 76. The present case is distinguishable from Ortiz in each critical respect. The circuit court in the instant case reasonably concluded that the defendant‘s family members posed a threat to the court‘s sequestration order given that family members dominated the witness lists. The trial court in Ortiz had no basis on which to conclude that members of Ortiz‘s family other than Ortiz‘s sister, mother, and brother-in-law were contributing to any risk of jury tampering, witness tampering, or the intimidation of or retaliation against witnesses. In addition, the circuit court in the instant case narrowly tailored the temporal scope of its order by permitting the defendant‘s family members back in the courtroom once witness testimony had come to an end. The Ortiz trial court, in contrast, left its order in place even after questioning the jury and discovering no
¶ 77. In State v. Clifford, 733 N.E.2d 621 (Ohio Ct. App. 1999), the trial court cleared one part of the courtroom of all spectators, apparently due to a disturbance that the record did not explain or describe.47 The trial court also rejected defense counsel‘s request to permit Clifford‘s mother and grandmother to remain in the courtroom.
¶ 78. The Ohio Court of Appeals concluded that the trial court had erred, in part because the trial court‘s order was broader than necessary.48 The court of appeals determined that the trial court was unjustified in removing Clifford‘s mother and grandmother because “there was no evidence concerning their involvement in any disturbance” in the courtroom.49
¶ 79. Clifford is distinguishable because in that case, the audience members’ misconduct and threatened future misconduct all were within the view and control of the trial court. It would have been a simple matter for the trial court to determine who among the audience had been involved in a disturbance and to
¶ 80. In the present case, however, the defendant‘s family members posed a threat to the circuit court‘s sequestration order that the circuit court could not observe or control. It would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous other family members listed as potential witnesses. The present case thus is unlike Clifford, in which the trial court easily could have distinguished between individual members of Clifford‘s family in excluding disruptive persons from Clifford‘s trial.
(3)
¶ 81. The defendant asserts that the circuit court failed to consider any reasonable alternatives to its order excluding the defendant‘s family members from the courtroom. The defendant suggests that the circuit court should have considered the alternatives of “limit[ing] its exclusionary rule to those members of the public married to or living with anticipated witnesses” or of making inquiries “prior to the testimony of the various family members to determine whether they had received any information concerning courtroom proceedings in violation of the [sequestration] order.”50
¶ 83. Under the circumstances of the present case, where the circuit court‘s order was not overbroad and where the circuit court attempted to get compliance with the sequestration order, we conclude that in ordering the defendant‘s family members to remain outside the courtroom during the witnesses’ testimony, the circuit court implicitly determined that no less restrictive alternative would protect its interest in ensuring the sanctity of its sequestration order.53 Accordingly, we
(4)
¶ 84. The defendant correctly notes that the fourth requirement of the Waller test is closely interrelated with the other three requirements.54 The gist of the fourth requirement is that the trial court‘s compliance with the first three requirements must be apparent from the trial court‘s findings in the record. In other words, the purpose of the fourth requirement “is simply to allow a reviewing court to determine whether the closure order was properly entered.”55
¶ 85. We have stated that the circuit court could have done a better job in the instant case of explaining and justifying its order on the record. When the State or the circuit court seeks a nontrivial closure of the courtroom implicating the defendant‘s
¶ 86. Although we acknowledge that the circuit court‘s findings on the record are limited and no hearing was held, we nevertheless conclude that the record is sufficient to support the closure order. The closure was narrowly tailored to serve an overriding interest likely to be prejudiced unless the family members were excluded.
¶ 87. For the reasons set forth, we conclude that the circuit court did not violate the defendant‘s
IV
¶ 88. The defendant asserted in his postconviction motion that he is entitled to a new trial on several bases unrelated to the
¶ 89. At the hearing on the defendant‘s postconviction motion, the circuit court did not reach these other issues raised in the defendant‘s motion. We also do not address these issues but instead remand the cause to the circuit court for any additional postconviction proceedings required by law.
****
¶ 91. Because both parties failed to bring arguments to the circuit court in a timely manner and have briefed the substantive issue whether the circuit court‘s order excluding family members violated the defendant‘s
¶ 92. We do not address whether the defendant is entitled to a new trial on any basis unrelated to the
¶ 94. By the Court.—The decision of the Court of Appeals is affirmed and the cause remanded to the circuit court.
¶ 95. DAVID T. PROSSER, J. (concurring). The majority opinion is scholarly, but it fails to recite a number of key facts that provide context and perspective to the constitutional issues before the court. This concurrence will set out those additional facts and then explain why the defendant forfeited the right to assert a violation of his public trial right long after his conviction and sentence.
I
¶ 96. On Saturday, November 23, 2002, approximately 50 persons of Albanian descent gathered at the Albanian Community Center in South Milwaukee to celebrate the birthday of a young child. Most, if not all, of the persons in attendance were related to each other by blood or marriage. The child‘s birthday presented the opportunity for a family party. The party was held several days before the annual celebration of Albania‘s independence (November 28) and shortly before the defendant, Dhosi Ndina—one of the five sons of Stefani Ndina (the family matriarch)—was scheduled to fly
¶ 97. Sometime after midnight, a dispute broke out among the children of Ilia Ndina and Robert Janko. This skirmish prompted an argument between the two fathers.
¶ 98. Erjon Dhembi, then 22, knew the two men well. One, Ilia Ndina, was his uncle. Ilia was the brother of Erjon‘s mother, Konstandina. She, in turn, was a daughter of Stefani Ndina. The other father, Robert Janko, was Erjon‘s cousin. As the argument proceeded, Erjon got up from the table where he had been seated for dinner and urged the two men to calm down and respect the atmosphere of the family gathering. With peace apparently restored, the three men returned to their seats.
¶ 99. Ilia Ndina was seated at a table on one side of the community center near his brother Dhosi, who was visiting from Albania. Moments later, the two men approached Erjon Dhembi from behind. Ilia Ndina “tapped” Erjon on the right shoulder and threatened to kill him. Immediately thereafter, Dhosi Ndina stabbed
¶ 100. Erjon‘s father, Spiro, was incensed by the attack on his son. He and Eglantina went to the South Milwaukee Police Department to report the incident before they learned that Erjon‘s condition required that he be transferred to another hospital.
¶ 101. Acting on the information the Dhembis had supplied to the South Milwaukee police, the Milwaukee County District Attorney‘s office issued a criminal complaint against Dhosi Ndina and obtained a warrant for his arrest. The complaint was filed and the warrant obtained on Sunday, the 24th of November. Authorities acted quickly in an effort to arrest Dhosi before he could catch a scheduled flight to Albania.
¶ 102. Although he spoke little or no English, Dhosi was somehow able to elude capture and fly home. He was apprehended in Albania months later, on August 13, 2003, and remained in custody there until he was extradited to the United States on April 21, 2004.
¶ 104. The fact that the defendant was confined to the home of the victim‘s grandmother undermined the court‘s release condition that the defendant have no contact with the victim‘s family. In effect, the victim‘s family and the defendant‘s family so overlapped that they were not readily distinguishable.
¶ 105. On April 29, 2005, Attorney Kachelski filed the defendant‘s witness list for trial. It contained the names of 13 family members. The State‘s witness list included four additional family members.
¶ 106. On May 5, Kachelski filed motions on sequestration of witnesses and introduction of witnesses. The sequestration motion asked that “all witnesses for the prosecution or the defense be excluded from the courtroom, including during voir dire, and that all witnesses be admonished not to discuss their proposed testimony or completed testimony with any other witness during the pendency of this trial.” Another motion requested that “no distinction be drawn during voir dire between possible prosecution and defense witnesses, and that the court introduce all witnesses as possible witnesses, and not as prosecution or defense witnesses.” The court ultimately entered a sequestration order that
¶ 107. In his opening statement, Attorney Kachelski told the jury that “there‘s going to be quite a few witnesses, and these witnesses have different vantage points, different biases, different family alliances.... I think it would be unnatural if family members didn‘t talk about this incident. And memories can start to fade over time....” (Emphasis added.) Attorney Kachelski continued, “[T]hings will become important when you analyze what the witnesses say, analyze their vantage point, their motives, consider what they‘re saying, their biases, their family allegiances.” (Emphasis added.)
¶ 108. Kachelski‘s statements, whatever their intent, revealed the divisions and conflicting loyalties that had developed in the family as a result of Erjon‘s stabbing and Dhosi‘s prosecution. These divisions were frequently confirmed in subsequent testimony.
¶ 109. Dhosi‘s trial began on May 9, 2005, with voir dire and the selection of a jury. On May 11, during testimony of the State‘s third witness, Spiro Dhembi, the court briefly stopped the proceeding. The transcript reads as follows:
Q So let me be clear. You‘re saying that Ilia got up, walked over and punched Erjon?
A Yes.
Q And then it was minutes later that Dhosi came up and stabbed him?
A Yes.
Q And—
THE COURT: One moment. One moment.
BY MR. ZIER:
Q How was it you were able to see—
THE COURT: One moment. Tim?
THE BAILIFF: I hope they speak English.
THE COURT: Ms. Hysi, I‘m going to have you go out with my deputy.
(Discussion off the record.)
THE COURT: You may continue.
¶ 110. After the jury was released for the evening, the court made the following record of what had transpired:
I was also, from my point of observation up here on the bench which is higher than all of the other places in the courtroom, able to see individual family members in the gallery who were also engaging in a level of conversation that not only the Court could hear, but I feared that the jury could hear as well.
We stopped the proceedings or I stopped the proceedings and directed my deputy along with interpreter Vera Hysi to communicate to those members in the gallery—those family members in the gallery that they must remain silent and not talk among each other while they are in the courtroom.
I observed my deputy and Miss Hysi go into the gallery and communicate that order and directive from the Court. Thereafter it appears that the—my order has been followed. I have not seen or heard anything from those family members in the gallery since that directive was made.
In addition, however, the Court noted that as Mr. Spiro Dhembi was becoming more emotional, agitated on the witness stand, the Court also observed the defendant begin to respond. Both of them were speaking in their native tongue, Albanian. The Court did not
know what they were saying although they were speaking, and it was clear to the Court that it wasn‘t in response to any particular question that had been put to the witness. I directed both the witness, Mr. Dhembi, and the defendant, Mr. Ndina[,] that they are not to talk or converse unless a question has been put to them directly.
¶ 111. The facts above were known to the court and to counsel before the incident the following day in which the court excluded family members (except Stefani Ndina) from the courtroom. See majority op., ¶¶ 13-14. These facts presented extraordinary circumstances to the circuit court—circumstances that cannot be separated from the legal issues now under review.
II
¶ 112. Dhosi Ndina‘s trial lasted 10 days. The jury returned its verdict at 10:15 a.m. on May 20, the tenth day.
¶ 113. The majority opinion describes, in ¶¶ 14-17, the events near the end of the fourth day of trial when the court issued its order excluding all family members from the courtroom.
¶ 114. “As an exception to its order, the circuit court permitted the defendant‘s mother to remain in the courtroom.” Majority op., ¶ 16. The defendant attacks the significance of this exception, contending that his mother did not speak English at the time of the trial. This may be true, but the record reveals that Stefani Ndina was a naturalized U.S. citizen whose father had been a U.S. citizen.
¶ 115. In any event, the courtroom was closed to other members of the family on Friday, May 13; Monday, May 16; and Tuesday, May 17. Excluded persons missed
¶ 116. In sum, a few persons not otherwise excluded because of their status as listed potential witnesses missed three days of the trial because of the court‘s order. They missed the testimony of four police officers, none of whom witnessed the crime; six defense witnesses; some testimony from Spiro Dhembi; and rebuttal testimony from Spiro and Eglantina Dhembi, most of whose testimony had been fully open, and Francis Rotter.
¶ 117. Attorney Richard Kaiser, who skillfully represented Dhosi Ndina in post-sentencing proceedings, produced sworn affidavits from Vladimir Ndina, Lola Ndina, and Femi Ikonomi, indicating that they would have attended the trial, or more of the trial, had they not been excluded by the court‘s order. In his own affidavit, Attorney Kaiser added that three other persons, Bule Spathiu, Mosko Proko, and Maksut Spathiu, had wanted to attend the trial and that Enkeleda Ndina had been removed from the courtroom.
¶ 118. These seven persons require analysis. First, the defendant filed three affidavits, not seven.3
¶ 119. In addition, the court did not prohibit friends of the defendant who were not family members from attending the trial. Moreover, the court never closed the courtroom to news media or the public at large,4 and it acted explicitly to protect a sequestration order requested by the defendant.
¶ 120. Thus, it is beyond belief to suppose that the circuit court‘s decision on May 12, 2005, to temporarily exclude family members from the courtroom, amounted to the kind of “structural error” in the judicial process
III
¶ 121. Although I agree with the majority‘s affirmation of the court of appeals’ decision, I am troubled by the majority‘s unwillingness to make a forfeiture determination one way or the other, thereby necessitating an elaborate, not always persuasive analysis of whether the circuit court‘s order excluding family members from three days of trial violated the defendant‘s
¶ 122. As a general rule, a constitutional error does not automatically require reversal of a conviction. Arizona v. Fulminante, 499 U.S. 279, 306 (1991) (opinion of Chief Justice Rehnquist) (citing Chapman v. California, 386 U.S. 18 (1967)). However, “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman, 386 U.S. at 23, n.8 (citing Gideon v. Wainwright, 372 U.S. 335 (1963) (right to counsel); Payne v. Arkansas, 356 U.S. 560 (1958) (coerced confessions); and Tumey v. Ohio, 273 U.S. 510 (1927) (right to an impartial judge)).
¶ 123. In Fulminante, the Supreme Court explained that the “common thread” connecting cases in which a harmless error analysis may be applied is that “each involved a ‘trial error‘—error which occurred
¶ 124. The Court then noted that “other cases [since Chapman] have added to the category of constitutional errors which are not subject to harmless error.” Id. at 310 (citing Vasquez v. Hillery, 474 U.S. 254 (1986) (the unlawful exclusion of members of the defendant‘s race from a grand jury); Waller v. Georgia, 467 U.S. 39 (1984) (the “right to public trial“); and McKaskle v. Wiggins, 465 U.S. 168 (1984) (the right to self-representation at trial)). “Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. (emphasis added).5
¶ 126. The Court has said that structural errors “infect the entire trial process,” Brecht v. Abrahamson, 507 U.S. 619, 630 (1993), and “necessarily render a trial fundamentally unfair,” Rose v. Clark, 478 U.S. 570, 577 (1986). These errors deprive defendants of basic protections without which “a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence.” Id. at 577-78.
¶ 127. The Court also has said, however, that the determination of a structural error may rest “upon the difficulty of assessing the effect of the error.” United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006). Writing for a majority of the Court, Justice Scalia said that fundamental fairness is not the sole criterion of structural error. Id. He pointed to Waller as an example of a case in which “difficulty of assessment” heavily influenced the “structural error” categorization by the Court. Id.
¶ 128. The Gonzalez-Lopez decision appears to signal a shift in the Court‘s rationale for structural error, from an error that is so clear and fundamental
¶ 129. In any event, the inclusion of Waller in the list of cases exposing “structural error” is problematic. It is true that “the benefits of the public trial are frequently intangible, difficult to prove, or a matter of chance.” Waller, 467 U.S. at 49 n.9. Hence, violation of the right satisfies some of the rationale for setting aside the harmless error standard.
¶ 130. However, Waller itself stated that “the Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant‘s right to a fair trial or the government‘s interest in inhibiting disclosure of sensitive information.” Id. at 45. In other words, there are certain cases in which a court is able to justify closing a trial to the public. Cf. Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) (“[W]hile criminal trials that are not open to the public are strongly disfavored, they are not forbidden.“).
¶ 131. The indefinite nature of the public trial right is further complicated by the broad array of situations in which a criminal trial may be temporarily closed, or closed to some people but not all people.
¶ 132. The difficulty in assessing whether a defendant‘s public trial right has been violated counters the difficulty in assessing the effect of a violation upon the defendant. This is surely one reason why Waller indicated that violation of the right to a public trial is not subject to “automatic reversal” in the same way as violation of certain other rights. Waller‘s case was remanded to the trial court for a suppression hearing after the Court determined that a violation had occurred. Waller, 467 U.S. at 49-50.
¶ 134. To sum up, Waller does not fit well into the structural error category if “structural defects always lead to automatic reversal.” Gonzalez-Lopez, 548 U.S. at 159 (Alito, J., dissenting) (citing Fulminante, 499 U.S. at 306-10); cf. Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (“Some [constitutional errors] will always invalidate the conviction.“).
¶ 135. Categorizing the violation of the
¶ 136. Normally, a defendant asserting violation of a constitutional right must object at the time of the violation or forfeit the right to raise the issue later. In United States v. Olano, 507 U.S. 725 (1993), the Court declared that “‘No procedural principle is more familiar to this Court than that a constitutional right... may be forfeited in criminal as well as civil cases by the failure
¶ 137. The court of appeals relied upon this principle to avoid a full-blown analysis of Dhosi Ndina‘s constitutional right to a public trial, and it turned instead to the question of whether the defendant had been denied effective assistance of counsel. Our challenge is to determine whether the court of appeals made the correct call.
¶ 138. It must be noted that defendant Waller objected to closing the suppression hearing that was held prior to his trial. Waller, 467 U.S. at 40. This objection unquestionably helped his case. The Court said: “[W]e hold that under the
Counsel for petitioners Waller, Thompson, Eula Burke, and W.B. Burke lodged an objection to closing the hearing. Counsel for petitioner Cole concurred in the prosecutor‘s motion to close the suppression hearing.
Id. at 42 n.2 (citations omitted) (emphasis added).Respondent argues that Cole is [now] precluded from challenging the closure.... Cole‘s claims in this Court are identical to those of the others. Since the cases must be remanded, we remand Cole‘s case as well. The state courts may determine on remand whether Cole is procedurally barred from seeking relief as a matter of state law.
¶ 139. The “matter of state law” to which the Court referred is the state law on forfeiture.
¶ 140. No doubt there are situations in which the forfeiture rule does not apply because the defendant is not in a position to make a timely objection. For instance, in Walton, the prosecution‘s entire case against Walton was held in the late evening hours after the courthouse had been closed and locked for the night. Walton, 361 F.3d at 432. Walton did not object, but he may not have realized at the time that the courthouse had been locked. Id. Likewise, in State v. Vanness, 2007 WI App 195, 304 Wis. 2d 692, 738 N.W.2d 154, the defendant did not object to closing the courthouse during his trial because the doors were locked before he realized what had happened. Id., ¶¶ 2-3. Vanness did promptly move for a mistrial when he learned what had happened. Id., ¶ 3.
¶ 141. The line of cases in which a defendant is not in a position to make an objection to a closed or partially closed trial does not apply here. To my mind, it would be difficult to concoct a clearer example of forfeiture than this defendant‘s failure to register a timely objection to the court‘s order. The defendant was fully aware of the circumstances: he was forewarned of the court‘s concerns on May 11; he observed first-hand the court‘s decision to exclude family members on May 12; and he was present when the court revisited the
¶ 142. In most of the Supreme Court cases identifying or discussing structural error, the defendant, like Waller, timely asserted his rights or timely lodged an objection. See Gonzalez-Lopez, 548 U.S. at 140; Neder, 527 U.S. at 6; Brecht, 507 U.S. at 625; Fulminante, 499 U.S. at 283; Vasquez, 474 U.S. at 256; McKaskle, 465 U.S. at 168; Gideon, 372 U.S. at 337; Payne, 356 U.S. at 561. In some cases, the presence or absence of a timely objection was not discussed. See Sullivan, 508 U.S. at 275; Rose, 478 U.S. at 570. The Supreme Court has not become indifferent to the importance of making timely objections.
IV
¶ 143. This case presents the challenge of reconciling the protection of an important
¶ 144. This defendant was required to object to the exclusion of family members from the courtroom at the time they were excluded inasmuch as he (and his experienced counsel) knew exactly what was happening and why. He was not entitled to remain silent in the
¶ 145. A defendant who fails to object still may argue that his counsel provided ineffective assistance. A defendant also may invoke the plain error doctrine that was discussed last term in State v. Jorgensen, 2008 WI 60, ¶ 23, 310 Wis. 2d 138, 754 N.W.2d 77 (“If the defendant shows that his unobjected to error is fundamental, obvious, and substantial, the burden then shifts to the State to show the error was harmless.“). Cf. Johnson, 520 U.S. at 461; Olano, 507 U.S. at 725; State v. Mayo, 2007 WI 78, 301 Wis. 2d 642, 734 N.W.2d 115. Both options put the initial burden on the defendant so that he is not rewarded for failing to make a timely objection.
¶ 146. For the reasons stated, I respectfully concur.
¶ 147. I am authorized to state that Justice ANNETTE KINGSLAND ZIEGLER and Justice MICHAEL J. GABLEMAN join this concurrence.
Notes
Albanian family bonds are especially strong. It is not uncommon for generations of a family to work together in a family-run business. Many extended families live together and care for each other. Often adult children live with their parents, or several generations live under the same roof....
Family events, such as engagement parties and weddings, are important social events in the Albanian community....
Preparing and sharing food are central to Albanian family life.
Megan Brody, Albania and Albanians in the United States (2003), http://www2.bc.edu/~brisk/albania.htm (last visited Feb. 23, 2009) (emphasis added).The defendant‘s postconviction counsel filed an affidavit stating that four additional members of the defendant‘s family indicated to counsel that the circuit court‘s order had prevented them from attending portions of the defendant‘s trial. Counsel listed an additional sister-in-law of the defendant, a father-in-law of one of the defendant‘s sisters, a person “related to the defendant by marriage,” and an individual whose relation to the defendant was not specified in counsel‘s affidavit. Counsel did not state whether these family members were in the courtroom when the disturbances occurred that prompted the circuit court to exclude family members from the courtroom. The fact is that Attorney Kaiser prepared eight affidavits to support his motion, but only three of them were filed.
Although the court of appeals addressed the defendant‘s argument that his defense counsel was ineffective for failing to object to the exclusion of family members from the trial, the court of appeals did not address the other issues and remanded them to the circuit court.
The court of appeals concluded that trial counsel was not ineffective because the defendant had failed to show prejudice. In light of our holding that the defendant was not denied his Sixth Amendment right to a public trial, trial counsel‘s failure to object to the exclusion of witnesses does not constitute ineffective assistance of counsel. The court noted the presence of a school group in the courtroom early in the trial.
Levine involved criminal contempt proceedings. See Levine, 362 U.S. at 611. The Levine Court stated that “[p]rocedural safeguards for criminal contempts do not derive from the Sixth Amendment” because “[c]riminal contempt proceedings are not within ‘all criminal prosecutions’ to which [the Sixth] Amendment applies.” Id. at 616. The Levine Court construed and applied the Fifth Amendment Due Process Clause, concluding that “[t]he continuing exclusion of the public in this case is not to be deemed contrary to the requirements of the Due Process Clause without a request having been made to the trial judge to open the courtroom at the final stage of the proceeding....” Id. at 619. Neither “waive” nor “forfeit” (or any derivative of these words) appears in the Levine Court‘s opinion, although the concept of “waiver” is addressed in the dissent. See id. at 626 (Brennan, J., dissenting).
[The Prosecutor]: Judge before we go any further, a couple of times there are people in the back and I could—
The Court: All right. All you folks in the back, get out of the courtroom now. Everybody out of the back there. Everybody out of the courtroom and wait outside and don‘t laugh or I will have you arrested.
[Defense Counsel]: Could the grandfather and mother stay in?
The Court: Everybody on that side, get out. All of you. Get out. Everybody out. Take the children with you please.
State v. Clifford, 733 N.E.2d 621, 624 (Ohio Ct. App. 1999).