Longus v. State

KRAUSER, Chief Judge. Convicted of robbery and second-degree assault by a jury sitting in the Circuit Court for Washington County, appellant Kenneth Longus presents two questions for our review: 1. Did the circuit court err in granting the prosecutor’s motion to exclude two spectators from the courtroom during the testimony of a key prosecution witness? 2. Did the circuit court err in denying appellant’s request for a continuance to obtain a defense witness? ⁶⁸³ For the reasons that follow, we hold that the circuit court did not abuse its discretion in either excluding two spectators from the courtroom during the testimony of a key prosecution witness or in denying appellant’s motion for continuance.

Accordingly, we shall affirm the judgments below. Facts On the evening of September 28, 2006, appellant and two teenage male friends went to the home of Lindsay Wise and asked to borrow a hammer. After obtaining a hammer from Ms. Wise’s roommate, the three left. Later that evening three men entered a gun shop around the corner from Ms. Wise’s home.

Upon entering the shop, one of the men leapt over a gated half-door, separating the office area from the rest of the shop, and engaged in a tussle with the owner of the shop, striking him several times with a “silver object.” While they were struggling, one of the other men picked up three handguns from the display area and laid them on the counter, where they were retrieved by the third man. The three men then left the shop with the guns. The entire incident lasted less than a minute. Unfortunately, because the men wore dark, hooded sweatshirts, and the shop owner was held from behind during his scuffle with one of the three intruders, he was unable to provide the police with a detailed description of any of them.

He did inform the police, however, that his assailant wore a baseball hat and that he was black. When Sergeant Johnny Murray of the Hagerstown Police Department arrived at the gun shop that night to investigate the robbery, he was informed by the shop’s owner that several guns had been stolen. The next day, the owner turned over to police a baseball cap, which he had found in his shop. At trial, appellant admitted the cap was his.

The day after the robbery, appellant was at Ms. Wise’s house. At that time, Ms. Wise saw appellant show her roommate guns that he had in his backpack. She then overheard him tell her roommate that he had gotten the guns ⁶⁸⁴ from the gun shop the night before, that he had been in an altercation with the shop’s owner, and that he had lost his hat but was not sure whether he had lost it in the shop or on the street. Appellant was ultimately convicted of robbery and second-degree assault and sentenced to a term of fifteen years imprisonment.

Discussion I. On the day of trial, the prosecutor asked the court to remove three spectators from the courtroom during Ms. Wise’s testimony: appellant’s father, Glenn Goode; Ms. Wise’s next door neighbor, Millie Myers; and a Donald Norris. 1 In support of that request, the prosecutor advised the court: There has been a significant amount of almost witness intimidation going on between the uh from the defendant to Miss Wise and including the defendant’s family, specifically his father [Glenn Goode] and Miss Wise’s next door neighbor, Millie Myers. As a matter of fact there was even contact with Miss Wise last night. Miss Wise, I — my concern is that she is going to further feel intimidated. Those people are here in the courtroom.

I would ask the court to exclude them from the courtroom when she testifies only so that she can, she can tell the truth, that she can speak freely and not be further intimidated. The intimidation has been going on for quite some time your Honor. Appellant’s counsel opposed the request, stating in part: “I don’t think there is any indication other than displeasure at her [Ms. Wise’s] appearance here today that she has been intimidated. I’d ask that the persons who are here on behalf of my client, his family, not be excluded from this proceeding.” The court took the matter under advisement and the prosecutor called the responding police officer, Sergeant Murray, and ⁶⁸⁵ the shop’s owner to testify.

After their testimony was taken the prosecutor called Ms. Wise to the stand. Following a delay, noted by the court and counsel, she entered the courtroom. The prosecutor then renewed her request to exclude certain spectators from the courtroom: [PROSECUTOR]: ... the State renews its motion to exclude certain persons from the courtroom. THE COURT: Specifically? [PROSECUTOR]: I apologize, I don’t know the defendant’s father’s name, but the— [DEFENSE COUNSEL]: Mr. Glenn Goode is Mr. Longus’ father.

THE COURT: Glenn Goode, okay. [PROSECUTOR]: Miss Millie Myers. THE COURT: Okay. [PROSECUTOR]: Mr. Don-Don Norris. THE COURT: Okay. Basis? [PROSECUTOR]: They have been threatening Ms. Wise over a period of time.

THE COURT: [Defense Counsel]? [DEFENSE COUNSEL]: Your Honor, with respect to the State’s motion, I will not argue with respect to Mr. Goode because I know that Mr. Goode is concerned for his son and may have had some involvement with communications with this witness. With respect to the other persons, I believe they are known to this community who know everyone involved. I don’t believe there is any evidence they threatened anyone and I believe it is improper to exclude members of the public from a trial. Trials are supposed to be open to the public.

THE COURT: The uh — Glenn Goode, the father of the defendant — (Defendant enters the courtroom.) The defendant has now joined us. There is a motion pending, Mr. Longus, to exclude Glenn Goode, Millie Myers and Donald Norris from the testimony of Lindsay Wise. The uh — Mr. ⁶⁸⁶ Goode is the defendant’s father. I don’t believe that there is a particular objection from the defendant as to that individual.

It’s my understanding that Millie Myers has made certain allegations regarding the defendant or regarding this witness? [PROSECUTOR]: Your Honor, I can tell the court that she has facilitated phone calls from the defendant to Miss Wise so that when Miss Wise sees her phone and sees her caller I.D. she believes it’s Millie Myers, she answers the phone and it’s the defendant. We’ve had that happening. We’ve also had communications where the defendant would tell Ms. Myers something and Ms. Myers would then pass that message along to uh this witness, specifically comments about needing to leave town and not to testify. THE COURT: And as to Donald Norris? [PROSECUTOR]: Your Honor, just last night there was a communication between the defendant and Ms. Wise that was actually a four-way conversation facilitated by Don-Don Norris as well as Millie Myers and her daughter, Amy.

The court then ruled as follows: THE COURT: Okay. All right. Trials are public in nature, however, in order to move things along it is sometimes necessary to restrict movement into the courtroom and the presence of certain people under the circumstances. I find that there is extraordinary cause to grant the request of the State and for the testimony of Lindsay Wise, both direct, cross and redirect.

The uh — Glenn Goode, Millie Myers and Donald Norris are removed from the courtroom, although other people are allowed back in. All right Deputy? Thank you. Bring the jury in please.

I will also note for the record that there was approximately about seven to eight minutes when the State was attempting to get the witness in the courtroom and apparently she was having some difficulty entering the courtroom as a result of all of this. Ms. Wise then took the stand and testified in part as follows: ⁶⁸⁷ [PROSECUTOR]: The — Have you ever testified before? WISE: No. [PROSECUTOR]: When your name was called a little bit earlier, you seemed to have some difficulty coming into the courtroom, why is that? WISE: Because I was scared. [PROSECUTOR]: Sorry?

WISE: I was scared. [PROSECUTOR]: What are you scared of? WISE: Testifying. [PROSECUTOR]: Why? WISE: I’m scared what will happen afterwards, if anything. After the prosecutor examined Ms. Wise about the events of September 25 and 26, 2006, her testimony concluded with the following exchange: [PROSECUTOR]: And Ms. Wise — After this trial here today, do you intend to return home to 106 Buena Vista?

WISE: No ma’am. [PROSECUTOR]: Why? WISE: Scared. [PROSECUTOR]: Do you recall meeting with Detective Brandt in a green Chevy Lumina? WISE: Yes. Yes. [PROSECUTOR]: And were you, were you inclined to testify as [sic] that time?

WISE: No. No. [PROSECUTOR]: Okay. Why have you had a change of heart? Why are you here today? WISE: Because I have been able to work out plans.

I don’t have to go home. I don’t have to go back to the previous address. [PROSECUTOR]: And part of those plans that you have made, you expect to be assisted by the State to help you relocate, is that right? ⁶⁸⁸ WISE: Yes. Appellant contends that the circuit court erred in granting the State’s request to exclude Millie Myers and Donald Norris (but not Glenn Goode) from the courtroom during Ms. Wise’s testimony and thereby violating his Sixth Amendment right to a public trial. Specifically, appellant claims that the trial court “failed to follow the requirements” of Waller v. Georgia, 467 U.S. 39, 48 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984), which instructs when, under the Sixth Amendment, a criminal trial may be closed to the public.

The Sixth Amendment to the United States Constitution guarantees the right to a public trial. It provides in part: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial____” 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.’ ” Walker v. State, 125 Md.App. 48, 68 , 723 A.2d 922 (1999) (quoting Waller, supra, 467 U.S. at 46 , 104 S.Ct. 2210 ). 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.” In re Oliver, 333 U.S. 257, 270 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948). It thus is “a safeguard against any attempt to employ our courts as instruments of persecution.” Id.

And, finally, it “ ‘encourages witnesses to come forward and discourages perjury.’ ” Walker, supra, 125 Md.App. at 69 , 723 A.2d 922 (quoting Waller, supra, 467 U.S. at 46 , 104 S.Ct. 2210 ). But “the right to a public trial is not absolute.” Carter v. State, 356 Md. 207, 214 , 738 A.2d 871 (1999). Accord Walker v. State, 121 Md.App. 364, 370 , 709 A.2d 177 , cert. denied, 351 Md. 5 , 715 A.2d 964 (1998) (“The privilege of the public to attend trials is not [ ] unrestricted.”) The trial court is accorded some discretion in determining whether any or all of the public should be excluded from a criminal trial. Id.

(citing Dutton v. State, 123 Md. 373, 387 , 91 A. 417 (1914)). See also Bell v. Evatt, 72 F.3d 421, 433 (4th Cir.1995) (“The ⁶⁸⁹ trial judge may impose reasonable restrictions on access to a trial in the interest of the fair administration of justice.”). This discretion, however, must be exercised sparingly and only after applying the following four-part test: (1) the party seeking closure of the courtroom advances an overriding interest that is likely to be prejudiced; (2) the closure is no broader than necessary to protect that interest; (3) reasonable alternatives to closing the proceedings are considered by the trial court; and (4) findings adequate to support the closure are made by the trial court. Waller, supra, 467 U.S. at 48 , 104 S.Ct. 2210 .

See also Watters v. State, 328 Md. 38, 44-45 , 612 A.2d 1288 (1992) (applying four-part test set forth in Waller). In reviewing whether the trial court abused its discretion in denying or limiting access to a criminal trial, an appellate court looks to whether the trial court, in so doing, applied these factors. Although Waller addressed a total closure of the courtroom during a suppression hearing, (leaving only court personnel, witnesses, the parties, and their lawyers in the courtroom), the factors set forth above are applicable to partial closures, that is, where only certain persons are barred from the courtroom during a particular witness’s testimony, as occurred in this case. See, e.g., Walker, supra, 125 Md.App. at 69-70 , 723 A.2d 922 .

In partial, temporary closures cases, however, many federal 2 and state 3 courts have modified the first factor by holding ⁶⁹⁰ that a closure will be upheld if the trial court finds a “substantial reason” for doing so, a less demanding requirement than Waller’s “overriding interest.” Those courts have adopted the less stringent “substantial reason” test for partial closures in recognition that a partial courtroom closure does not “implicate the same secrecy and fairness concerns that a total closure does.” Woods v. Kuhlmann, 977 F.2d 74, 76 (2nd Cir.1992). We agree and, for the same reason, shall adopt the position of a majority of state and federal courts that, when closure is partial, the substantial reason test provides adequate protection of the defendant’s right to a public trial. Relying on Holt v. State, 129 Md.App. 194 , 741 A.2d 519 (1999), and Guzman v. Scully, 80 F.3d 772 (2nd Cir.1996), appellant claims that the State did not satisfy the first prong of the Waller test for three reasons: First, the prosecutor proffered that Myers and Norris had merely facilitated conversations between appellant and Ms. Wise and there was no claim that they had actually threatened her. In appellant’s precise words, “the worst that the prosecutor proffered was that [ ] Myers had passed along [his] 'comments [to Ms. Wise] ⁶⁹¹ about having to leave town and not to testify.’ ” Second, the trial court erred in relying on the prosecutor’s proffer of witness intimidation rather than on evidence to that effect.

And third, the presence of Myers and Norris in the courtroom would not have prevented Ms. Wise from testifying because, although she was slow in entering the courtroom, when first called to the stand, “she was present and ready to testify before the judge ruled on the exclusion of the spectators.” We are satisfied that the State demonstrated a substantial reason for excluding Myers and Norris from the courtroom during Ms. Wise’s testimony. The interest or reason was to secure testimony, uninfluenced by intimidation, from a witness who was fearful of testifying in the presence of both of them. State v. Mahkuk, 736 N.W.2d 675, 685 (Minn.2007) (recognizing the protection of witnesses from intimidation or retaliation is an “overriding state interest” which may justify a partial courtroom closure); People v. Frost, 100 N.Y.2d 129 , 760 N.Y.S.2d 753 , 790 N.E.2d 1182, 1188 (2003) (holding that the state advanced an “overriding interest” justifying partial courtroom closure based on witness’s “legitimate fear” of testifying in open court); Feazell v. State, 111 Nev. 1446 , 906 P.2d 727, 729 (1995) (holding an eyewitness’s “personal safety qualifies as both a ‘substantial reason’ and an ‘overriding interest’ sufficient to justify partially closing the trial” during the witness’s testimony where witness received two telephone calls telling her not to testify and found a dead bird in a plastic bag on her patio); State v. Drummond, 111 Ohio St.3d 14 , 2006-Ohio-5084 , 854 N.E.2d 1038 ,1054 (2006) (holding that witnesses’ “fear of retaliation” provided a “substantial reason” for partial closure of courtroom during their testimony). In the instant case, the State identified three individuals by name, Goode, Myers, and Norris, and asserted that threats had been communicated to Ms. Wise by them, or with their help.

Defense counsel did not oppose the exclusion of Glenn Goode (appellant’s father) from the courtroom, stating, “I know that Mr. Goode is concerned for his son and may have had some involvement with communications with this witness.” Thus, the State’s proffer that Ms. Wise had been threatened ⁶⁹² was essentially confirmed, at least as to Goode, by defense counsel. With respect to Myers and Norris, however, defense counsel asserted: “I don’t believe there is any evidence they threatened anyone and I believe it is improper to exclude members of the public from a trial.” In response, the State proffered: Your Honor, I can tell the court that [Myers] has facilitated phone calls from the defendant to Miss Wise so that when Miss Wise sees her phone and sees her caller I.D. she believes its Millie Myers, she answers the phone and it’s the defendant. We’ve had that happening. We’ve also had communications where the defendant would tell Ms. Myers something and Ms. Myers would then pass that message along to uh this witness, specifically comments about needing to leave town and not to testify.

The circuit court then inquired as to Norris, and the State replied: Your Honor, just last night there was a communication between the defendant and Ms. Wise that was actually a four-way conversation facilitated by Don-Don Norris as well as Millie Myers and her daughter, Amy. Defense counsel did not dispute this proffer nor request a voir dire of Ms. Wise. Although it would have been preferable for the trial court to interview Ms. Wise on the record to ascertain the accuracy and extent of her fears, the trial court did note for the record that, when Ms. Wise was called to the stand “there was approximately about seven to eight minutes when the State was attempting to get the witness in the courtroom and apparently she was having some difficulty entering the courtroom as a result of all of this.” Thus, the record is clear that the trial court observed Ms. Wise’s demeanor and saw for itself that she was reluctant to enter the courtroom when first called to testify, apparently due to the presence of Goode, Myers, and Norris. Of greater moment to the resolution of this issue than Ms. Wise’s reluctance to enter the courtroom was Ms. Wise’s testimony following her delayed entrance.

This testimony ⁶⁹³ substantiated the prosecutor’s representations that she was “scared” to testify and fearful her testimony would provoke some form of retaliation. We may consider this testimony even though it was given after Myers and Norris were excluded from the courtroom, because it was given when she first took the stand and before she gave any substantiative testimony concerning the case itself. Hence, her initial testimony, in effect, comprised a pre-testimonial examination, out of the presence of those whom she was fearful of, as to why she was reluctant to testify in their presence. Had the court found her testimony unconvincing, it was then free to allow Myers and Norris to re-enter the courtroom to hear what she had to say about the case itself and thereby eliminate the partial closure without any prejudice to appellant’s right to a public trial.

Lest any doubt remained as to the depth of her fears or to the genuineness of the prosecutor’s concerns as to her safety, we note that Ms. Wise agreed to give her testimony only in return for relocation assistance, which the State agreed, under the circumstances, to provide. Moreover, appellant’s reliance on Holt, supra, and Guzman, supra, for the proposition that the State failed to advance an adequate reason for the closure is misplaced. Holt and his brother were charged with murder and conspiracy to distribute heroin and cocaine. During the trial, the State requested that the courtroom be cleared of all spectators while a key witness, in protective custody, testified.

Holt, supra, 129 Md.App. at 200 , 741 A.2d 519 . The prosecutor advised the court that the witness, Clifton Gee, was present when two unknown men threatened another witness (who could not be located) about her potential testimony. The prosecutor was concerned that, if certain spectators remained in the courtroom during Gee’s testimony, Gee, out of fear, would not testify truthfully. Id. at 200-01 , 741 A.2d 519 .

She explained that Gee was afraid because the defendants “had people out on the street that he is being viewed and carefully, with an eye of what he looks like and to what is being said.” Id. 199-200 , 741 A.2d 519 . She further claimed that “there are people in the audience who belong to the [defendants’] family and [Gee] ⁶⁹⁴ would be afraid to testify,” pointing out that those same people “were not here yesterday.” Id. at 201 , 741 A.2d 519 . Holt’s counsel opposed the request and challenged the prosecutor’s assertion that the four spectators in the courtroom were not present the day before. Holt’s counsel also noted that Gee was in protective custody and that no one (including defense counsel) knew Gee would be testifying that afternoon and, therefore, Gee could not have been threatened when no one knew he was a potential witness.

Id. at 201-02 , 741 A.2d 519 . The trial court granted the