The defendant was convicted of aggravated felonious sexual assault, RSA 632-A:2, XI, and felonious sexual assault, RSA 632-A:3, and sentenced by the Superior Court {Goode, J.) to serve seven and one half to fifteen years. He appeals, arguing that the trial court violated his constitutional right to a public trial by requiring him to show good cause why the courtroom should not be closed during the victim’s testimony. We agree with the defendant and remand to the trial court to apply the proper legal standard to the existing record.
The defendant was charged with two counts of sexual assault on a six-year-old girl. Prior to trial, the defendant filed a motion for the victim’s testimony to be heard in open court based on RSA 632-A:8 (1986), which provides:
“In the cases where the victim is under 16 years of age, the victim’s testimony shall be heard in camera unless good cause is shown by the defendant. The record of the victim’s testimony shall not be sealed and all other testimony and evidence introduced during the proceeding shall be public.”
In his motion and during the closure hearing held on October 7,1991, the defendant argued that placing the burden of proof on him to show good cause why the courtroom should be open violated his right to a fair and public trial under part I, article 15 of the New Hamp
In response to the defendant’s arguments, the prosecutor stated that the defendant “needs to meet a burden set forth by a statute .... [T]he intent of the statute is if the defendant can show you good cause why his interest in a public trial outweighs the interests protected by that statute,” then the courtroom would be open during the victim’s testimony. The prosecutor explained that the victim was extremely embarrassed about what had happened to her and that it was traumatic for the girl to talk about it; whenever the victim was interviewed, the prosecutor would ensure that only she and the victim were present in the room before asking the victim about the assault. After describing the victim’s embarrassment, the prosecutor again referred to the statute and argued that “no good cause has been shown through the defendant’s argument.”
The prosecutor next discussed federal precedent placing the burden on the State to demonstrate an overriding interest in closing courtrooms, and concluded by saying that “in this case we have met our burden of showing you that there is an interest here to be protected.” The court then heard from the guardian ad litem who stated that “[t]his is a very painful situation for” the victim and that the presence of any nonessential court personnel in the courtroom during the victim’s testimony would “make an excruciating situation even more so for a child.”
At the end of the hearing on the defendant’s motion to have an open courtroom during the victim’s testimony, the court ruled:
“Having considered counsels’ arguments, I am persuaded by, and hereby adopt the arguments of the State and the Guardian.
I find that the defendant has failed to establish the required good cause provided for in RSA 632-A:8. The defendant’s motion is accordingly denied.”
The defendant contends that this ruling violated his right to a public trial under both the State and Federal Constitutions. In a case decided after the defendant’s conviction, we described the analysis that should be followed by the trial court when it is faced with a request to close the courtroom during a minor victim’s testimony in a sexual assault case. See State v. Guajardo,
In enacting RSA 632-A:8, the New Hampshire Legislature recognized that a defendant’s right to a public trial is not the only consideration to be weighed by a trial court faced with a request to close the courtroom during a criminal trial. In a case of sexual assault against a minor, the State has an interest in protecting the victim’s physical and psychological well-being. Guajardo,
In Waller v. Georgia, the United States Supreme Court addressed a defendant’s right to a public trial under the sixth amendment and stated that “there can be little doubt that the explicit Sixth Amendment right of the accused is no less protective of a public trial than the implicit First Amendment right of the press and public.” Waller,
In Guajardo, we applied Waller’s four-prong test and noted that RSA 632-A:8 should be construed in light of the sixth amendment. Guajardo,
In the case before us, the State made repeated references to the defendant’s burden to show why the victim’s testimony should not be heard in cam,era. The trial court ruled on the defendant’s motion for an open courtroom by concluding that “the defendant has failed to establish the required good cause provided for in RSA 632-A:8.” By requiring the defendant to bear the burden of proof when the State was the party seeking closure, the trial court erred and violated the defendant’s right to a public trial.
Having concluded that the defendant’s right to a public trial was violated, we must address the remedy to be afforded for such a violation. While the defendant need not show prejudice as a result of a violation of his constitutional right, he is not entitled to an automatic reversal of his conviction and a new trial. Waller,
We interpret the State Constitution to afford the same remedy for this constitutional violation as for a violation of the Federal Constitution. The appropriate remedy in this case is to remand to the trial court for a hearing in which the court should apply the four-prong test applied in Guajardo to the existing record. The State takes the position that a new trial is required if the trial court determines that the courtroom should not have been closed during the victim’s testimony.
Remanded.