Carter v. State

BELL, Chief Judge. The sole question presented by this case is whether a trial court’s closure of a courtroom during the testimony of a 14-year-old victim of sexual abuse, without making a case-specific finding of fact on the record demonstrating a sufficient basis for the action, violates the accused’s Sixth Amendment right to a public trial. In an unreported opinion, the Court of Special Appeals concluded that, under the facts of this case, the trial court’s actions did not violate the accused’s right to a public trial. We shall reverse.

I. The petitioner, Robert Ciana Carter, was charged in a nine count indictment with rape, second and third degree sexual offenses, attempted sodomy, and child abuse. The child complainant, the daughter of the petitioner’s wife, was three years-old when the alleged abuse began and 14-years-old at the time of trial. The case was tried to the court, sitting without a jury. Immediately following opening statements, intending to call the victim as its first witness, the State requested the trial court to clear the courtroom of spectators during the child’s testimony.

The colloquy on the point was as follows: ²¹¹ “THE COURT: All right, let’s call your first witness, then, and we’ll deal with the suppression hearing later. [State’s Attorney]: Thank you, Your Honor. Your Honor, the State’s first witness would be the child — The State would ask that during the child’s testimony the courtroom be cleared of spectators. THE COURT: All right, all spectators should leave the courtroom at this point, please. And if there are any witnesses present, there’s been a motion to sequester anyway, so they’re going to have to leave in any event. [Defense counsel]: Your Honor, these are not witnesses in the case, just possibly character witnesses for any mitigation at the penalty phase.

THE COURT: Well, they’re excused from the courtroom. [Defense Counsel]: Well, for the record, Your Honor, and for the defendant, I would object to that. THE COURT: And what’s the basis of your objection to that? [Defense counsel]: Your Honor, the basis of my objection is that he has the right to a public trial, it’s a Constitutional right to a public trial, and this deprives him of that. ^ í í [State’s Attorney]: Your Honor, in child abuse cases I would proffer that the court has a certain amount of discretion in protection of the child and in sensitivity to the child. In this case the child, who is now is 14, will be talking about her first sexual experiences, which began at age three, so I think it’s within your Honor’s discretion to allow the courtroom to be cleared simply for the child’s testimony, not for anyone else’s. THE COURT: Yeah, I think that the child’s privacy and tender age in this instance certainly outweighs any significance attaching to the public trial, so I’ll stand by my decision. ²¹² [Defense counsel]: For the record, although the child was extremely young when these allegations occurred, the child is now 14 or 15. [State’s Attorney]: She’ll be 15 on April 8th.

THE COURT: Right, she’s 14 years old. [Defense counsel]: I just wanted you to understand that. THE COURT: I knew that. I know she’s not three or four years old, I know she’s 14. Quite frankly, I would be more inclined to grant the motion when the child is 14 than when the child is three, so it doesn’t change my thinking at all.

I knew she was 14. All right, [State’s Attorney], call your first witness.” The court cleared the courtroom, after which the child testified. After her testimony, the court called a brief recess to allow the petitioner’s family to return to the courtroom and the State’s case continued with the testimony of the child’s mother and an investigating officer from the Harford County Sheriffs Office. The petitioner was convicted of three counts of second degree sexual offense, three counts of third degree sexual offense, and child abuse.

He was sentenced to 105 years imprisonment, with all but twenty years suspended and five years probation upon release. The petitioner appealed to the Court of Special Appeals, arguing that the trial court’s exclusion of all spectators from the courtroom violated his right to a public trial. As we have seen, the Court of Special Appeals affirmed the judgment of the circuit court. It held “that the State’s proffer satisfied the court’s mandate to find a specific compelling need to justify clearing the courtroom.” Alternatively, the intermediate appellate court determined that “the victim’s trial testimony ultimately bore out the appropriateness of the court’s decision to clear the courtroom.” We granted the petitioner’s Petition for Writ of Certiorari to consider this important issue.

For the reasons that follow, we shall reverse the judgment of the intermediate appellate court and remand for a new trial. ²¹³ II. The petitioner contends that the trial court violated his Constitutional right to a public trial by clearing the courtroom during the testimony of the 14-year-old complainant. Arguing that this Court as well as the United States Supreme Court has recognized the significance and value of public trials, see Baltimore Sun v. Colbert, 323 Md. 290, 297-98 , 593 A.2d 224 (1991)(citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 , 100 S.Ct. 2814, 2825 , 65 L.Ed.2d 973 (1980)), he urges this Court to reverse the judgment of the Court of Special Appeals. The petitioner also contends that the intermediate appellate court’s decision in this case is inconsistent with its own, subsequent precedent.

See Walker v. State, 121 Md.App. 364 , 709 A.2d 177 cert. denied, 351 Md. 5 , 715 A.2d 964 (1998). Finally, the petitioner proffers in support of his argument, decisions of other courts that have found a violation of the right to a public trial where trial courts have excluded spectators under similar circumstances. See e.g., Guzman v. Scully, 80 F.3d 772 (2d Cir.1996); Davis v. Reynolds, 890 F.2d 1105 (10th Cir.1989). The respondent, the State of Maryland, maintains that the Court of Special Appeals reached the correct result.

It asserts that, when considering and weighing the accused’s right to a public trial against the State’s interest in protecting a young victim from the embarrassment and anxiety of testifying in public, the trial court properly struck a balance in favor of courtroom closure. Further, citing Watters v. State, 328 Md. 38 , 612 A.2d 1288 (1992), cert. denied, 507 U.S. 1024 , 113 S.Ct. 1832 , 123 L.Ed.2d 460 (1993), with which, it asserts, this case differs factually, the State claims that, because the closure of the petitioner’s trial was to protect a child sex offense victim, was of limited duration, and was supported by adequate findings, the trial court’s ruling did not violate the Sixth Amendment. The State also contends that the trial court’s conduct satisfied the four-part test enunciated by the United States Supreme Court in Waller v. Georgia, 467 U.S. 39 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984). There, the Court stated: “[T]he party seeking to close the hearing must advance an ²¹⁴ 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.” Id. at 48 , 104 S.Ct. at 2216 , 81 L.Ed.2d at 39 .

Accordingly, the State urges this Court to affirm the judgment of the Court of Special Appeals.

III

We begin our analysis with the fundamental rale that criminal proceedings are presumptively public. U.S. Const, amend.

VI

(“[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial....”); Waller v. Georgia, supra, 467 U.S. at 44-45 , 104 S.Ct. at 2214 , 81 L.Ed.2d at 37 (1984); Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 514 , 104 S.Ct. 819, 826 , 78 L.Ed.2d 629, 635 (1984); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 , 102 S.Ct. 2613, 2619 , 73 L.Ed.2d 248, 256 (1982); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 584 , 100 S.Ct. 2814, 2831 , 65 L.Ed.2d 973, 994 (1980); Baltimore Sun v. Colbert, 323 Md. 290, 299 , 593 A.2d 224, 227 (1991). The right to a public trial, likely a response to the threat posed by secret trials conducted by the Spanish Inquisition and the English Court of Star Chamber, is deeply rooted in the English common law tradition to promote fairness and public confidence in criminal proceedings, upon which our system of justice is based. The Supreme Court, in In re Oliver, 333 U.S. 257, 268-70 , 68 S.Ct. 499, 505-06 , 92 L.Ed. 682, 691-92 (1948), has observed, and commented upon, the historical significance of a public trial: The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy’s abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty.

In the hands of despotic groups each of them had become an instrument for ²¹⁵ the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. That Court has also recognized that, “a public trial 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.” In re Oliver, 333 U.S. at 271 , 68 S.Ct. at 506 , 92 L.Ed. at 693 (1948). The Court described another value of public trials as follows: “Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Id. at 270 , 68 S.Ct. at 506 , 92 L.Ed. at 692 .

This Court too has acknowledged the historical significance, and critical function, that a public trial serves in the administration of justice. Dutton v. State, 123 Md. 373 , 91 A. 417 (1914). In that case, we emphasized that “[ujnder no circumstances should a trial be so conducted as to have the appearance of a Star Chamber proceeding....” Id. at 389 , 91 A. at 422-23 . We then quoted Cooley’s Constitutional Limitations 312 for the general rule: “ ‘It is also requisite that the trial be public.

By this is not meant that every person who sees fit shall in all cases be permitted to attend criminal trials, because there are many cases where, from the character of the charge, and the nature of the evidence by which it is to be supported, the motives to attend the trial on the part of portions of the community, would be of the worst character, and where a regard to public morals and public decency would require that at least the young be excluded from hearing and witnessing the evidence of human depravity which the trial ²¹⁶ must necessarily bring to light. The requirement of a public trial 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; and the requirement is fairly met with, if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether.’ ” Id. at 388 , 91 A. at 423 . See also Hughes v. State, 288 Md. 216, 222 , 421 A.2d 69, 73 (1980). We have recognized, however, that the right to a public trial is not absolute.

Baltimore Sun Co. v. Colbert, supra, 323 Md. at 300 , 593 A.2d at 228 . In Colbert , the Sun challenged a trial court order to close the courtroom to the media and the public during pretrial criminal proceedings. We reversed the order of the trial court, holding that it had failed to make the required findings prior to ordering closure. Id. at 305 , 593 A.2d at 231 .

While Colbert was based upon First Amendment principles, this Court’s discussion of the presumption of openness in criminal proceedings, the burden placed upon the party moving for closure, and the appropriate balance to be struck between the defendant’s rights and exclusion of the public is instructive. On these points, the Court stated: “The presumption that pretrial proceedings are open to the public can be overcome only by an “overriding interest,” such as an accused’s right to a fair trial. Press-Enterprise I, supra, 464 U.S. at 510 , 104 S.Ct. at 824.[ 1 ] The party moving for closure has the burden of proving that “higher values” will be infringed by publicity; that closure of the courtroom will prevent such prejudice; and that reasonable alternatives to closure cannot protect the asserted values. ²¹⁷ Press-Enterprise II, supra, 478 U.S. at 13-14, 106 S.Ct. at 2742-43.[ 2 ] Where, as in this case, the right asserted in support of closure is a defendant’s Sixth Amendment right to a fair trial, a hearing may be closed only if specific findings are made on the record.” 323 Md. at 302 , 593 A.2d at 229-30 . In the case sub judice, an accused asserts his Sixth Amendment right to a public trial in opposition to closure.

We believe, and so hold, that the same analysis applies. In Watters v. State, supra, recognizing current Supreme Court jurisprudence, we expounded on the test for determining whether courtroom closure was permitted in light of the Sixth Amendment right to a public trial. There we stated: “The Supreme Court has ardently protected a criminal defendant’s right to a public trial and has addressed the circumstances which may justify infringement of this right and the standard by which these factors must be balanced. See Waller v. Georgia, supra, and Press-Enterprise Co. v. Superior Court of Cal., supra.

The Court in Press-Enterprise held that under the First Amendment, a trial could be closed only to protect an overriding governmental interest through a narrowly tailored order. 464 U.S. at 510 , 104 S.Ct. at 824. The Waller Court noted that the express rights of a defendant under the Sixth Amendment were at least as extensive as the implied rights of the public and press under the First Amendment, and thus applied the same test to a Sixth Amendment challenge to closure. 467 U.S. at 46 , 104 S.Ct. at 2215. Under present law, therefore, whether objection to closure is made by the defendant or the press, the public may only be constitutionally excluded from a. trial ... pursuant to a narrowly tailored order necessary to protect an overriding stale interest.” ²¹⁸ 328 Md. at 45 , 612 A.2d at 1291 (emphasis added). In that case, without the knowledge and consent of the trial judge or parties, a deputy sheriff excluded the public, including members of the defendant’s family and possibly representatives of the press, from the courtroom during voir dire and jury selection in a highly publicized murder trial.

Id. The Court held that the defendant’s Sixth Amendment right to a public trial was violated. The Supreme Court has required a similar analysis when balancing the State’s interest in protecting child sex abuse victims against the accused’s Sixth Amendment right of confrontation. 3 Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). In that case, the United States Supreme Court reviewed a Maryland statutory procedure 4 under which the testimony of an alleged victim of child sexual abuse may be taken outside of the courtroom, away from the accused, and displayed via closed circuit television to the court.

Examining the constitutionality of this statutory procedure in light of the accused’s Sixth Amendment right of confrontation, the Court recognized that, under limited circumstances, the right to a public trial may give way to a State’s interest in the “physical and psychological well-being of a minor victim.” Id. at 853 , 110 S.Ct. at 3167 , 111 L.Ed.2d at 683 . 5 The Court, however, held that, before setting aside the defendant’s Sixth Amendment right of confrontation, the State ²¹⁹ must make a case-specific showing, after “hearing evidence and determining whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify.” Id. at 855 , 110 S.Ct. at 3169 , 111 L.Ed.2d at 685 . The Court also mandated that the trial court find that “the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant,” and that “the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than ‘mere nervousness or excitement or some reluctance to testify.’ ” Id. at 856 , 110 S.Ct. at 3169 , 111 L.Ed.2d at 685 (citations omitted). On remand, while setting forth guidelines with more specificity than the Supreme Court had opted to do, Craig v. State, 322 Md. 418, 432-33 , 588 A.2d