Kelly v. State

GRAEFF, J. A jury sitting in the Circuit Court for Baltimore City convicted appellant, Kenneth Kelly, of robbery and conspiracy to commit robbery. The court imposed consecutive sentences of 15 years for each conviction. Appellant presents four questions for our review, which we quote: 1. Did the trial court err by denying a motion for mistrial after it was discovered that a sheriffs officer had closed the courtroom to the public, including members of Appellant’s family, during jury selection? 2.

Did the trial court err by asking the jury on voir dire whether they could convict the defendants in the absence of “scientific” evidence? 3. Did the trial court err by denying defense counsel’s request to continue sentencing? 4. Were separate sentences for robbery and conspiracy to commit robbery illegal under the circumstances in this case? For the reasons that follow, we shall affirm the judgments of the circuit court. ⁴⁰⁹ FACTUAL AND PROCEDURAL BACKGROUND On September 4, 2008, at approximately 11:30 p.m., two men robbed Ronald Bennett as he walked home from work.

Appellant was charged with the following crimes: (1) robbery with a dangerous weapon; (2) robbery; (3) first degree assault; (4) second degree assault; (5) theft of property under $500; (6) wear, carry, and transport a handgun; (7) use of a handgun in a crime of violence; and (8) conspiracy to commit armed robbery. 1 On April 27, 2009, trial commenced against appellant and his co-defendant, Donald Bland. Mr. Bennett testified that, as he walked home from work, two men yelled “Tommy” and told him to stop. Mr. Bennett began walking faster, away from the two men. One of the men pointed a gun at Mr. Bennett, advising him not to run.

The men caught up with him, and the other man searched Mr. Bennett and took his identification, cell phone, and duffel bag. The gunman continued to call Mr. Bennett “Tommy,” but the other man corrected him, stating that Mr. Bennett “wasn’t the guy.” Mr. Bennett testified that the gunman indicated that, if Mr. Bennett had been Tommy, he would have “cut my dreads and then he was going to shoot me.” The men let Mr. Bennett go, and when he was a block away from them, they asked Mr. Bennett if he wanted his bag back, but Mr. Bennett continued walking. Mr. Bennett testified that the robbery occurred by a street light, and he could see both of the perpetrators’ faces. Both men were wearing white t-shirts and “denim shorts, like capris.” Mr. Bennett identified appellant as the person who “went in my pockets” and Mr. Bland as the gunman. ⁴¹⁰ When Mr. Bennett arrived at his brother’s home, he called 911.

An officer responded and took Mr. Bennett to the police precinct. At the precinct, the police advised him that they had located two suspects. They transported Mr. Bennett to the place where the suspects were being held, and Mr. Bennett identified both suspects as the men who had robbed him earlier that night. Mr. Bennett subsequently identified appellant and Mr. Bland in photo arrays presented to him.

In the first array, Mr. Bennett identified appellant, writing that he “was the guy that went through my pockets, took my w;allet and cell phone.” In the second photo array, Mr. Bennett identified Mr. Bland as the one “with the gun.” Officer Carmine Vignola testified that, in the early morning hours of September 5, 2008, he responded to a report of a robbery. He transported Mr. Bennett to the police station and then to the location where the suspects had been detained. Mr. Bennett identified the suspects as “the individuals that had robbed him.” Officer James Howard saw appellant while on patrol on September 5, 2008. Appellant, who matched the description of one of the suspects, was “trotting” out of an alley.

Officer Howard made eye contact with appellant, who “took off in a full-fled[ge] run.” Appellant tossed “a sack” over a fence and continued running. Officer Howard stopped appellant, handcuffed him, and called for backup. When other officers arrived, Officer Howard canvassed the area and recovered a gray backpack. When Officer Howard returned to the area where he had detained the suspect, he observed a second suspect, but he did not know how the police located the other man. 2 Officer Howard transported appellant to the police station.

Afterward, he checked the backseat of his vehicle and ⁴¹¹ discovered a cell phone, which he turned over to the detectives. Detective Arnold Pitman interviewed Mr. Bennett in the early morning hours of September 5, 2008. Mr. Bennett advised him that the assailants robbed him of his wallet, cell phone, and backpack, and he provided a description of both men. Detective Pitman instructed Officer Vignola to broadcast a description of the two suspects via radio to other police officers.

When Detective Pitman learned that the police had located two suspects, he prepared two photo arrays, one for each of the suspects. Mr. Bennett viewed the photo arrays and positively identified appellant and Mr. Bland as the men who committed the robbery. Detective Pitman returned Mr. Bennett’s property, including a gray backpack, a cell phone, and an earnings statement. At the conclusion of the State’s case, counsel for appellant moved for judgment of acquittal on all counts.

The court denied the motion. The defense rested without introducing any additional evidence. As indicated, the jury convicted appellant of robbery and conspiracy to commit robbery. 3 This timely appeal followed. DISCUSSION I. Right to a Public Trial Appellant’s first contention is that “the trial court erred by denying a motion for a mistrial after it was discovered that a sheriffs officer had closed the courtroom to the public, including members of appellant’s family, during jury selection.” He ⁴¹² argues that, “[w]hile the court had a legitimate interest in maintaining order in the courtroom and looking after the comfort of its occupants, it did not adequately balance those interests with [appellant’s] constitutional right to a public trial.” Appellant asserts that, “because the officer’s actions were not brought to light until after the fact, [he] never had the opportunity to suggest, and the court never had the opportunity to consider,” whether there were other alternatives to excluding his family from the courtroom, “such as breaking the group of prospective jurors into smaller groups” or “directing [appellant’s] family to remain silent during jury selection.” The State contends that “the trial court properly refused to declare a mistrial after learning that, without the knowledge of the court or the parties, [appellant’s] family members had been excluded from the courtroom for a limited part of the jury selection proceedings, during which there were not enough seats for all of the prospective jurors.” The State argues that “the temporary, limited, and inadvertent exclusion of [appellant’s] family during a portion of jury selection” was “de minimus ” and “too trivial to implicate [appellant’s] Sixth Amendment right to a public trial.” It further contends that, “even if a Sixth Amendment analysis is appropriate, there were compelling, or at least substantial, interests justifying the exclusion and ... it was narrowly tailored to those interests.” A. Proceedings Below On the morning of the first day of trial, at 10:12 a.m., a large number of prospective jurors entered the courtroom. 4 The court stated: “Fill in every available seat, please folks.

We’ve got a full house.” ⁴¹³ The voir dire process then began. After the court clerk completed roll call, the court asked the venire panel a series of questions. The court then called to the bench the prospective jurors who had indicated an affirmative response to a question and asked further questions. Prior to completing the voir dire process, the court took a break for lunch, instructing the prospective jurors to return at 2:00 p.m.

When proceedings resumed in the afternoon, at 2:05 p.m., the clerk read off the numbers of the prospective jurors remaining, and the court prepared to continue with the individual questioning of the jurors. Prior to doing so, however, counsel approached the bench. Although not entirely clear, the record indicates that counsel approached to discuss the issue of the court closure, an issue to which it appears the court previously had been alerted, and counsel then handed the court a case, presumably 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). 5 After counsel gave the judge the case, the court commented about the small size of the courtroom and the security problems, stating that every seat was filled and jurors were standing. Counsel for Mr. Bland then stated that he wanted to wait to discuss the issue until his client arrived.

The court and counsel then appeared to discuss other issues, 6 and they then proceeded with the questioning of the individual jurors. ⁴¹⁴ After completing the strikes of prospective jurors for cause, counsel for appellant returned to the issue of the right to a public trial. Counsel moved for a mistrial, stating: [COUNSEL FOR APPELLANT]: Your Honor, if we could just very briefly deal with that mistrial issue because I want to put that on the record now that Mr. Kelly is here. And I don’t know if we need the Sheriffs input or not, but when I spoke to Mr. Kelly’s father, he was here this morning. He was in the courtroom before we started the proceedings.

And when I spoke to him over lunch, he indicated to me that he was asked by the Sheriffs office to leave, that there was — he was simply told that he couldn’t be in here during the proceedings. I assume it’s a space issue but, certain-iy- THE COURT: As far as I know. What I did note was that we didn’t have enough seats for all of the jurors. We had jurors standing during voir dire until we sent some out of here.

So if he was excluded on that basis, nobody brought it to my attention. I didn’t know. [COUNSEL FOR APPELLANT]: I understand, Your Honor. And, certainly, I didn’t know either until I stepped in the hall. I do want to make sure, certainly, that Mr. Kelly’s family, and I’m sure Mr. Bland feels the same way, can be here.

THE COURT: They’re actually going to be here. [COUNSEL FOR APPELLANT]: Mr. Kelly has a Sixth Amendment right. It’s clear to a public trial. THE COURT: Right. [COUNSEL FOR APPELLANT]: To an open trial. Certainly, he wishes to exercise that [right].

And in keeping with that, Your Honor, just to protect the record, I would move for a mistrial at this point. I would simply make the proffer that, again, and I don’t know if there is any factual exception to this on the State’s part, that Mr. Kelly’s family was asked to — Mr. Kelly’s father, in particular, and— ⁴¹⁵ The court then asked the sheriff what occurred. The sheriff acknowledged that she asked appellant’s father to leave, stating: [OFFICER]: Yeah I did. I didn’t just ask his father to leave.

I told everybody that was sitting in here that they had to leave because there’s not enough room for their family to sit in here while we picked jurors. THE COURT: Right. They were sitting amongst the jurors and I’ve got to tell you even eight of them weren’t able to sit (unintelligible). [OFFICER]: I think the problem was his father, he didn’t understand why I asked him to leave and, once I explained it to him, he stood in agreement with it. The court denied appellant’s motion “at this point.” It indicated, however, that it would review the case defense counsel had provided.

The parties proceeded to select the jury. Following jury selection, the court made its final ruling denying the motion for a mistrial. The Court initially stated that “this matter was never brought to my attention,” noting that, “if it’s not brought to us, there’s just not much we can do.” Although acknowledging that the exclusion in Watters also took place without the court’s knowledge, the court distinguished Watters as follows: [I]n Wat[t]ers, the public was excluded in addition to the Defendant’s family and the press. And, apparently, this was a hot case on the Eastern Shore.

To my knowledge, there’s been no press here and the public was not excluded in general. The big distinction, though, here in this case is we did not have enough seating. During the entire voir dire, we did not have enough seats for all of the jurors. We had a couple of jurors who were standing throughout the whole thing so we had no place for anybody else in the courtroom.

And if we had shoe horned in — I guess you can always say, you know, we’ve got ten people at the bench. I guess you could squeeze in 11. ⁴¹⁶ But if we’d done that, the problem is putting in the family members in the middle of the voir dire of the array could cause terrible problems. Family members want to talk. What a wonderful guy the Defendant is, let’s say.

What a terrible guy the alleged victim is. And the jurors hear it. So in addition to not having any space at all, we don’t have any space where we can keep them separate. The court then inquired regarding the amount of time that appellant’s family members were excluded from the courtroom: [THE COURT]: [A]s I understand this, this was a morning problem, kind of a.m. problem.

Did they try to come in for the afternoon session, do you know? [COUNSEL FOR APPELLANT]: I don’t know, Your Hon- or, with respect to Mr. Kelly’s family. I can tell the Court that Mr. Bland’s family is here. I spoke with them after we spoke initially about this issue— THE COURT: Right. [COUNSEL FOR APPELLANT]: — about them coming in. THE COURT: But, I mean, there would have — I don’t think they were excluded or were, you know, from the afternoon session.

But maybe they took the exclusion this morning as being permanent. I don’t know. I do know that they’ve been here since we picked the jury. The court then concluded: I just think, under the circumstances, I have to deny the Motion for Mistrial.

We just didn’t have any room. The jurors were standing. If we’d squeezed a couple in, they would have been smack dab in the middle of the array. I hope the Court of Appeals will keep in mind that we labor in this venue with inadequate physical planning.

This is not utopia. It’s not Lake Wobegon. It’s not Howard County. It’s not Montgomery County.

It’s Baltimore City and we just don’t have the plan to do everything we might like to do. I think it’s regrettable, but I think it’s distinguishable under Wat[t]ers. So you have my ruling. ⁴¹⁷ B. Closing of Courtroom during Voir Dire The Sixth Amendment to the United States Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial.” U.S. Const, amend.

VI

This Court has explained the purpose of the Sixth Amendment right to a public trial as follows: A public trial furnishes the public with the opportunity to observe the judicial process, and thus ensures that the judge and prosecutor carry out their duties responsibly. Indeed, [t]he 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. It thus is a safeguard against any attempt to employ our courts as instruments of persecution. And, finally, it encourages witnesses to come forward and discourages perjury.

Markham v. State, 189 Md.App. 140, 152 , 984 A.2d 262 (2009) (citations and quotations omitted). Accord Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.1996) (values furthered by the public trial guarantee are: “(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury”) (citing Waller v. Georgia, 467 U.S. 39, 46-47 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984)), cert, denied, 519 U.S. 878 , 117 S.Ct. 202 , 136 L.Ed.2d 138 (1996). A criminal defendant’s right to a public trial, however, is not absolute. Robinson v. State, 410 Md. 91, 102 , 976 A.2d 1072 (2009). “In some circumstances, the trial court can close the courtroom ‘in order to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality.’ ” Markham, 189 Md.App. at 152 , 984 A.2d 262 (quoting Robinson, 410 Md. at 103 , 976 A.2d 1072 ). “Such circumstances will be rare, however, and the balance of interests must be struck with special care.” Waller, 467 U.S. at 45 , 104 S.Ct. 2210 . ⁴¹⁸ The Supreme Court has identified four factors that the trial court must consider before closing a courtroom: (1) “ ‘the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced’ (2) “ ‘the closure must be no broader than necessary to protect that interest’ (3) “ ‘the trial court must consider reasonable alternatives to closing the proceeding’ and (4) the trial court “ ‘must make findings adequate to support the closure.’ ” Presley v. Georgia, — U.S.-, 130 S.Ct. 721, 724 , — L.Ed.2d-(2010) (per curiam) (quoting Waller, 467 U.S. at 48 , 104 S.Ct. 2210 ). 7 It is clear that “the Sixth Amendment right to a public trial extends to the voir dire of prospective jurors.” Id.

Accord Watters, 328 Md. at 45 n. 3, 612 A.2d 1288 . In Presley , the Supreme Court held that the trial court violated Presley’s right to a public trial when it excluded his uncle from the courtroom during voir dire due to space limitations and a concern that jurors might be exposed to “inherently prejudicial remarks from observers during voir dire.” 130 S.Ct. at 722-23 . The Georgia Supreme Court had found no error, stating that the trial court had an overriding interest in ensuring that the potential jurors were not exposed to prejudicial remarks, and rejecting the argument that the court had a duty, sua sponte, to consider alternatives to closure when Presley had not offered such alternatives. Presley v. State, 285 Ga. 270 , 674 S.E.2d 909, 911 (2009).

The Supreme Court, in its summary per curiam opinion, disagreed, pointing to the “explicit” direction from Waller that “the trial court must ⁴¹⁹ consider reasonable alternatives to closing” the courtroom. Presley, 130 S.Ct. at 724 (citing Waller, 468 U.S. at 48, 104 S.Ct. 2924 ). The Court stated: Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial.

Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members. Id. at 725. 8 As the trial court noted, the Court of Appeals also has addressed the right to a public trial in the context of voir dire. In Watters, 328 Md. at 41-42, 49 , 612 A.2d 1288 , similar to this case, a deputy sheriff excluded people from the courtroom “[w]ithout the knowledge or consent of the trial judge or the parties.” Id. at 42 , 612 A.2d 1288 . The sheriff “excluded the public, including members of defendant’s family and possibly representatives of the press, from the courtroom during voir dire and jury selection — a process that consumed the entire first morning of trial.” Id. 9 The deputy sheriff testified that he closed the courtroom because of “ ‘the number of people involved in the case and the courtroom would not handle all the persons who wanted to get into the courtroom.’ ” Id.

The ⁴²⁰ Court of Appeals held that, because the courtroom was not full, and there were “ ‘some seats’ available,” the circumstances “did not present a compelling need for excluding members of the defendant’s family as well as the press and the public.” Id. at 42, 45 , 612 A.2d 1288 . Moreover, it held that, “even if the State could show that under the circumstances then prevailing the government had a legitimate interest in preventing overcrowding, it could not show that the exclusion of all persons was a narrowly tailored means of protecting that interest,” noting that “empty seats were left vacant.” Id. at 45 , 612 A.2d 1288 . C. De minimus Closure The State’s initial contention here is that the closure “was so trivial or de minimus that it did not implicate [appellant’s] public-trial rights.” A triviality standard is different from a harmless error standard; it looks to whether the closure implicated the protections and values of the Sixth Amendment. State v. Vanness, 304 Wis.2d 692 , 738 N.W.2d 154, 157 (App.2007) (citing Peterson, 85 F.3d at 42 ).

Appellant’s sole response to this argument in his reply brief was to rely on Presley. He contends that Presley disposes of the State’s argument that the closure of the courtroom for only a few hours of jury selection can be dismissed as a de minimus violation of his right to a public trial. Appellant’s reliance on Presley is misplaced. The summary per curiam opinion in Presley does not reflect that any argument was made, or considered by the Court, regarding whether the closure was so trivial or de minimus that it did not implicate the right to a public trial.

Presley is not dispositive on this issue. The Court of Appeals, however, has addressed the concept of a de minimus closure that would not implicate a defendant’s public trial rights. In Watters, 328 Md. at 46 , 612 A.2d 1288 , the Court expressed agreement with the proposition that ⁴²¹ “not every closure is of constitutional dimension.” Id. Although noting that “the deprivation of the constitutional right to a public trial cannot be harmless error,” Id. at 48 , 612 A.2d 1288 , the Court agreed that a violation could be “classified as de minimus and undeserving of constitutional protection.” Id. at 46 , 612 A.2d 1288 .

The Court, however, rejected the State’s argument in that case that the closure was “de minimus. ” Id. at 49 , 612 A.2d 1288 . It explained: The scope of the closure in this case was substantial. The courtroom was open only to court personnel, the venireper-sons, and witnesses. All other members of the public, including members of the defendant’s family and the press, were barred.

The closure extended over a significant period of time — an entire morning of trial during which the voir dire and selection and swearing of the jury were accomplished. Although we agree with the State that not every technical violation of the Sixth Amendment right of open trial requires a new proceeding or trial, we would be hard pressed to declare a violation of this magnitude de mini-mus, or otherwise not of constitutional significance. We conclude that this violation of the defendant’s Sixth Amendment right carries with it the presumption of specific prejudice mandated by Waller, and thus requires the granting of appropriate relief. Under the particular facts of this case, that relief is necessarily the granting of a new trial.

Id. The facts in Watters are similar to the present case in that both cases involve a sheriff excluding persons from voir dire without the knowledge of the parties or the court. As discussed, infra, however, there are significant factual differences between the two cases that persuade us to reach a conclusion different from that reached in Watters . In determining whether a courtroom closure is so de minimus or trivial that it does not implicate a defendant’s Sixth Amendment right to a public trial, courts look to various factors.

These factors include the length of the closure, the ⁴²² significance of the proceedings that took place while the courtroom was closed, and the scope of the closure, i.e., whether it was a total or partial closure. 10 With respect to the length of time that the courtroom was closed, a closure for a shorter duration obviously is more likely to be held to be trivial or de minimus and not deserving of constitutional protection. For example, in Wilson v. State, 148 Md.App. 601, 619, 626-27 , 814 A.2d 1 (2002), cert, denied, 374 Md. 84 , 821 A.2d 371 (2003), although this Court did not use the language “de minimus ” or “trivial,” we held that a closure for “only a very limited period of time-the rendering of the verdict,” when other members of the public were present, did not violate “[t]he guarantees of an open and public trial.” Although the length of time, by itself, is not dispositive, courts have found that a courtroom closure of less than an hour was de minimus. See Peterson, 85 F.3d at 41, 42, 44 (20 minute closure while defendant testified was “extremely short” and “too trivial” to constitute Sixth Amendment violation); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir.1994) (rejecting public trial violation, in part, because 20 minute closure was “brief’); People v. Bui, 183 Cal.App.4th 675, 686-87, 689 , 107 Cal.Rptr.3d 585 (Cal.Ct.App.) (exclusion ⁴²³ of three people for 40 minutes during voir dire was de minimis and did not violate defendant’s constitutional right to a public trial). When the closure is for an entire day or longer, by contrast, courts have declined to classify the closure as de minimus.

See Owens v. United States, 483 F.3d 48, 63 (1st Cir.2007) (rejecting the argument that closure to family was trivial because “this was not a mere fifteen or twenty-minute closure; rather, Owens’ trial was allegedly closed to the public for an entire day while jury selection proceeded”); Commonwealth v. Cohen, 456 Mass. 94 , 921 N.E.2d 906, 919 (2010) (finding that courtroom closure for three days during voir dire could not be classified as “trivial” or “de minimus ”) When, as here, the closure is for a period over an hour, but less than an entire day, courts have reached conflicting results. In Watters , as indicated, the Court of Appeals considered this amount of time to be a factor weighing against a finding that the closure was de minimus. Watters, 328 Md. at 49 , 612 A.2d 1288 (closure of courtroom during voir dire for “an entire morning” was “substantial”). There are decisions in other states supporting this conclusion.

See State v. Torres, 844 A.2d 155, 162 (R.I.2004) (exclusion of defendant’s two sisters for “an entire morning” during voir dire “cannot be considered de minimus”); Vanness, 738 N.W.2d at 158 (in contrast to 20 minute closures in other cases, “closure of over an hour while the court was in session of a one day trial was not ‘extremely short’ ”). Other courts, however, have found a closure for this time period to be de minimus. See Gibbons v. Savage, 555 F.3d 112, 121 (2d Cir.) (judge’s exclusion of defendant’s mother from courtroom during afternoon of first day of jury selection was too trivial to violate right to public trial), cert, denied, — U.S. -, 130 S.Ct. 61 , 175 L.Ed.2d 233 (2009); People v. Woodward, 4 Cal.4th 376 , 14 Cal.Rptr.2d 434 , 841 P.2d 954, 959 (1992) (90 minute closure of courtroom during closing argument during trial that lasted “over a period of one month, and required 28 actual court hours to complete” did not violate ⁴²⁴ Sixth Amendment right to a public trial), cert, denied, 507 U.S. 1053 , 113 S.Ct. 1950 , 123 L.Ed.2d 655 (1993). As indicated, although the length of time the courtroom is closed is a significant factor, it is not, by itself, dispositive.

In addition to the duration of the closure, the significance of the proceedings that took place while the courtroom was closed is an important factor. In both Watters and Torres , where closures for half a day were found not to be de minimus, the courts emphasized that the courtroom was closed during the entire process of voir dire and jury selection. Watters, 328 Md. at 49 , 612 A.2d 1288 (closure during time when the “voir dire and selection and swearing of the jury were accomplished”); Torres, 844 A.2d at 162 (closure “through the entire jury selection and voir dire ”). By contrast, in Bui, 183 Cal.App.4th at 677, 688 , 107 Cal.Rptr.3d 585 , the Court of Appeal of California found that the closure during 40 minutes of voir dire was de minimus because the closure occurred “for a very limited period, during only a small part of the voir dire of prospective jurors, and not during the evidentiary phase of the trial.” In this regard, we find instructive the analysis of the United States Court of Appeals for the Second Circuit in Gibbons, 555 F.3d at 114, 119-21 .

In that case, as indicated, the court held that the exclusion of the defendant’s mother during the first afternoon of several days of voir dire and jury selection was “too trivial” to warrant reversal of Gibbons’ convictions. The court noted that, although the denial of a public trial was a structural error to which the harmless error analysis did not apply, id. at 119 , “it does not follow that every temporary instance of unjustified exclusion of the public — no matter how brief or trivial, and no matter how inconsequential the proceedings that occurred during an unjustified closure — would require that a conviction be overturned.” Id. at 120 . The court explained that, in making the determination whether a closure is trivial, it looks to several factors: [W]e look to the values the Supreme Court explained were furthered by the public trial guarantee, focusing on (1) ⁴²⁵ ensuring a fair trial, (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions, (3) encouraging witnesses to come forward, and (4) discouraging perjury. Essentially, our analysis turns on whether the conduct at issue “subverts the values the drafters of the Sixth Amendment sought to protect.” Id. at 121 (citations omitted).

In finding that the closure in that case was “too trivial” to justify vacating Gibbons’ conviction, the court explained that the “third and fourth values derived from Waller and articulated in Peterson, are not implicated by voir dire because no witnesses testified,” and therefore, these factors “do not weigh either in favor or against a triviality finding.” Id. The court then stated that the first and second values were not subverted by “limiting presence at the voir dire proceedings to only the attorneys, judge, defendant, and prospective jurors” because the jurors were interviewed in an adjacent room, and “nothing of significance” occurred in the courtroom while the defendant’s mother was excluded. Id. The court explained: Even if the trial judge had not excluded Gibbons’s mother from the courtroom, she would not have been able to watch a significant portion of what occurred during that afternoon session because the private interviews of individual jurors as to their reasons for inability to serve were justifiably conducted in an adjacent room out of the hearing and sight of the other jurors.

Further, nothing of significance happened during the part of the session that took place in the courtroom. The judge read the indictment, asked questions of a few jurors, and provided administrative details on what the jurors should expect if chosen. No prospective jurors were excused except with the consent of both parties. No peremptory challenges were made, and no objections were asserted by either party to anything that occurred.

The next morning, when voir dire resumed, Gibbons’s mother was allowed to watch the proceedings. Id. Accordingly, the court held: “Although the closure was not justified, we conclude upon examination of all details of what ⁴²⁶ occurred, that event was too trivial to warrant the remedy of nullifying an otherwise properly conducted state court criminal trial.” Id. Here, as in Gibbons, the exclusion was not for the entire voir dire proceedings.

Moreover, as in Gibbons, and as discussed, infra, even if appellant’s family had not been excluded from the courtroom during the morning portion of voir dire, they would not have been privy to much of what occurred; a significant portion of the proceedings involved questioning of individual jurors at the bench, a procedure that typically cannot be heard by spectators in the courtroom. With respect to the final factor, the scope of the closure, some courts have considered whether the closure was a partial, as opposed to a total, closure. In Woodward, 14 Cal.Rptr.2d 434 , 841 P.2d at 955 , during a portion of the prosecution’s closing argument, the bailiff had posted a “do not enter” sign on the door and locked the courtroom doors. The courtroom remained closed for one and one-half hours, until defense counsel alerted the court to the situation.

Id. In determining whether Woodward was denied the right to a public trial, the California Supreme Court found significant that “the courtroom was never cleared to remove all spectators for a significant period.” Id. at 958. The court found persuasive the argument that the closing was too trivial to amount to a denial of the public trial right, noting that “the closure did not exclude preexisting spectators, did not include any of the evidentiary phase of the trial and lasted only one and one-half hours.” Id. at 959 (citing Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir.1975)). See also State v. Venable, 411 N.J.Super. 458 , 986 A.2d 743, 748 (2010) (in finding that court’s announcement that family members would not be allowed in the courtroom during jury selection was too trivial to warrant a finding of a violation of the right to a public trial, court noted that closure was partial, limited to family members as opposed to all spectators). 11 ⁴²⁷ Applying the above factors to the present case, we hold that the closure here was de minimus and does not justify reversal of appellant’s convictions.

With respect to the length of the closure, the parties agree that the exclusion was limited to the morning and lasted approximately two to three hours. 12 This amount of time is not extensive, but it clearly is not inconsequential, and it falls within the time frame in which courts have reached conflicting results. Thus, it is necessary to look at the other two factors, i.e., the significance of the proceedings that took place and the scope of the closure. With respect to the nature of the proceedings that occurred during the closure, the proceedings here involved, as they did in Watters , voir dire. In contrast to Watters , however, appellant’s family was not excluded for the entire voir dire and jury selection process, but only for a portion of it.

As indicated, appellant acknowledges that the exclusion by the sheriff only encompassed the morning session, and voir dire and jury selection had not been completed at that time. Indeed, the court made explicitly clear prior to the selection of the jury that appellant’s family was entitled to be in the courtroom. In Gibbons, 555 F.3d at 121 , the Second Circuit, in finding that the closure was de minimus, noted that the mother was excluded from only part of the voir dire process, and it found as a significant factor that much of the voir dire proceeding from which Gibbons’ mother was excluded was conducted in a ⁴²⁸ manner that could not be viewed by spectators. Similarly, here, a significant portion of the voir dire from which the family members were excluded involved questioning of the prospective jurors at the bench, a process that typically is not audible to spectators in the courtroom.

When court resumed in the afternoon, the voir dire process continued, and it is clear that the family was permitted in the courtroom during jury selection. Thus, the concern expressed in Watters, 328 Md. at 48 , 612 A.2d 1288 , that family members were prevented from contributing “their knowledge or insight to the jury selection” process, and that the prospective jurors were prevented from seeing “the interested individuals,” is not implicated here. The closure in this case, unlike in Watters , did not extend to the actual selection of the jury. With respect to the final factor, the scope of the closure, the exclusion in this case was partial; it was not a total closure of the courtroom.

The record reflects that only appellant’s family members were excluded. 13 In Watters , by contrast, the exclusion involved “the defendant’s family as well as the