Markham v. State

GRAEFF, J. A jury sitting in the Circuit Court for Prince George’s County convicted Davon Nathan Markham, appellant, of two counts of first degree murder, one count of attempted murder, and three counts of use of a handgun in the commission of a felony. The court imposed consecutive sentences of life without the possibility of parole for each of the first-degree murder convictions, life for the attempted murder conviction, and 20 years for each of the three convictions for use of handgun in the commission of a felony. Appellant presents the following four issues on appeal, which we quote: 1. Did the trial court err by granting the State’s motion to close the courtroom during the testimony of a witness based on the State’s proffer that the witness had been threatened by a member of Appellant’s family who was not even present during trial? 2.

Did the trial court err by denying Appellant’s motion to exclude the testimony of the State’s fingerprint expert as a result of a discovery violation or, in the alternative, Appellant’s motions to compel discovery and to hold a Frye-Reed hearing? 3. Was Appellant tried in violation of Criminal Procedure Article § 6-103 and Maryland Rule 4-271? 4. Was the evidence sufficient to convict Appellant of the murder of Duane Nichols and the use of a handgun in the commission of that crime? For the reasons set forth below, we shall reverse the judgments of the circuit court and remand for a new trial. ¹⁴⁴ FACTUAL AND PROCEDURAL BACKGROUND On June 28, 2007, appellant was indicted, in the Circuit Court for Prince George’s County, for the murder of Michael Lamont Stewart and Duane Edward Nichols, attempted murder of Daryl Fitzgerald, and three counts of use of a handgun in the commission of a felony.

Trial was initially scheduled for December 11, 2007. Appellant filed a motion for continuance to allow for an evaluation regarding his competency and his plea of not criminally responsible by reason of insanity. Trial was reset for Monday, January 28, 2008. On January 25, 2008, the State was advised, and then informed appellant, that fingerprints on the vehicle in which Michael Stewart was shot had been identified as appellant’s fingerprints.

Appellant promptly moved to exclude the recently-obtained fingerprint evidence. The court denied the motion. Appellant then moved to continue the trial. Counsel for appellant explained that, due to the late disclosure of the fingerprint evidence, he was not prepared to proceed with trial on the following Monday.

He requested that the trial be moved to February 4, 2008, and he informed the judge that he could be ready to try the case on that day. On January 30, 2008, appellant filed three motions. First, appellant “renewed” his motion to exclude the “last-minute fingerprint evidence,” arguing that “[t]he continuance of the trial by a single week is an inadequate remedy for the extraordinarily late revelation of such important and complex evidence in a case involving first degree murder allegations as well as a charge of attempted first degree murder.” Second, in the event that the court again denied the motion to exclude the evidence, appellant filed a motion requesting a Frye-Reed hearing, arguing that there “is no scientific basis for fingerprint examiners to opine as to ‘individualization’ or ‘matches.’ ” Third, appellant filed a Motion to Produce Records Regarding Fingerprint Analysis. On February 1, 2008, appellant filed a Motion to Compel Discovery “in light of the State’s belated revelation of fingerprint evidence.... ” On February 4, 2008, the trial date, the State filed an opposition to defendant’s motion to exclude the testimony of ¹⁴⁵ the fingerprint examiner and his request for a Frye-Reed hearing.

The court held a hearing on appellant’s pretrial motions concerning the newly-discovered fingerprint evidence. With respect to his request for the exclusion of the evidence, appellant argued that the late disclosure prevented him from securing an expert witness and adequately preparing for cross-examination of the fingerprint examiner. He further argued that it forced him to “choose between his right to a speedy trial within [Hicks] and his right to a fair trial.... ” The State responded that it had arranged for counsel for appellant and her expert witness to meet with and question the fingerprint examiner, Merina Davis. It further argued that it had consented to all requests for a continuance.

With respect to the delay in notifying appellant of the fingerprint evidence, the State advised that it asked for appellant’s prints to be examined in August 2007. On December 28, 2007, however, Ms. Davis notified the State that she was never given the known fingerprints of appellant. Thereafter, on January 15, 2008, Corporal Shawn Jones, an employee at the Prince George’s County Department of Corrections, captured appellant’s finger and palm prints. That same day, Sergeant Ted Jones, an employee of the State’s Attorney’s Investigative Unit, picked up and delivered the prints to the Fingerprint Examination Unit for Prince George’s County.

At no point, the State argued, was there any act of intentional deception or of actual negligence. The court denied the motion to exclude the testimony of the fingerprint examiner and the motion to compel discovery, stating that it was “satisfied that the State has provided the documentation and information in the discovery pursuant to [Maryland Rule 4-263.]” The court noted that appellant “had an opportunity to go and interview and examine the expert.” It also found significant that appellant had access to this information, and a similar motive to uncover it, because he was planning on calling the same expert in his case-in-chief. 1 ¹⁴⁶ Appellant then asked the court to “grant leave for a Frye-Reed hearing,” arguing that this hearing was necessary to “force the State to meet it’s [sic] burden to show that the methodology used by this latent print examiner in this case ... is the methodology generally accepted in the community.” The State responded that the ACE-V method 2 “clearly is generally accepted within the field,” and “[therefore, it would literally be a waste of the Court’s time [ ] to hold a Frye-Reed hearing----” The court denied appellant’s motion for a Frye-Reed hearing, finding that the ACE-V methodology “is a generally accepted method of fingerprint analysis that is in the scientific community.” After the court ruled on the pre-trial motions, the court conducted voir dire and the jury was chosen. The next day, February 5, 2008, before opening statements, appellant moved to dismiss the proceedings for a violation of Hicks, 3 arguing that the Hicks deadline had expired the day before. Appellant maintained that the Hicks date is the swearing in of the jury or the first submission of evidence.

He argued that, because the proceedings the previous day ended before the jury was sworn, and there had been no attempt by the State to seek or obtain a good cause postponement by which the Hicks date could be exceeded, his charges must be dismissed. The court denied the motion to dismiss. Daryl Fitzgerald was called as a witness for the State. He testified that, on the evening of April 29, 2007, he and his brother, Jeremiah, were driving around the Fairmont Heights Section of Capitol Heights, Maryland, looking for their crack-addicted uncle.

The men stopped at a house, 1307 Early Oaks Lane, a known “drug area” where his uncle previously had “hung out.” ¹⁴⁷ While Jeremiah knocked on the door, Mr. Fitzgerald walked across the street to say hello to Michael Stewart, a man whom Mr. Fitzgerald had “dealings with,” but did not know by name, who was sitting in his Black Cadillac. Mr. Fitzgerald then walked back toward his car and leaned on the hood of his trunk. Jeremiah walked over to Mr. Fitzgerald, handed Mr. Fitzgerald a cell phone, and said that their cousin was calling. While on the phone with his cousin, Mr. Fitzgerald heard “about five or more” gunshots from behind him, and he turned around to see a person firing into Mr. Stewart’s car.

Mr. Fitzgerald was shot once in the back of his head and three times in his left arm. Despite his injuries, Mr. Fitzgerald drove himself to the hospital. At the time of the trial, Mr. Fitzgerald could not recollect if the police had visited him while he was at the hospital. He did recall that he spoke to a police officer on May 3, 2007, the day he was released from the hospital, and he signed a written statement that the police transcribed for him. 4 At that time, he told the police that “a guy by the name of Fat Man shot me.” He also identified a photograph of “Fat Man” as the person who shot him, and he identified a photograph of appellant’s twin brother, who Mr. Fitzgerald described as a friend.

At trial, Mr. Fitzgerald identified appellant, “Fat Man,” as the person who shot him and Mr. Stewart. Officer Robert Turner, a 15-year-member of the Prince George’s County Police Department and the lead investigator on the case, testified that he met with Mr. Fitzgerald on April 30, 2007, at the hospital, and on May 3, 2007, after Mr. Fitzgerald was released from the hospital. On the second occasion, Officer Turner showed Mr. Fitzgerald a picture of appellant’s twin brother, Dawon Markham, who Mr. Fitzgerald identified as “the guy who pushed the brother who was shooting.” Officer Turner also showed Mr. Fitzgerald a photograph of appellant. Mr. Fitzgerald stated: “That’s who shot ¹⁴⁸ me and he shot the guy in the car.” Officer Turner wrote Mr. Fitzgerald’s statements on the photographs, which Mr. Fitzgerald signed.

Mr. Fitzgerald stated that he had known appellant and his brother “since childhood from the neighborhood.” Corporal Tyrone Brown, a 10-year member of the Prince George’s County Police Department, who was assigned to the Forensic Services Division evidence unit, processed Mr. Fitzgerald’s vehicle. Corporal Brown photographed the vehicle, and he lifted latent fingerprints off of the vehicle. Tina Perruzzi, an evidence technician in the Prince George’s County Forensic Services Division, testified that on April 29, 2007, she responded to a call for a homicide at the 1300 block of Early Oaks Lane. She arrived at approximately 10:00 p.m. and processed the scene.

She took photographs, completed a diagram, and collected items of evidence, including cartridge casings. On the following day, April 30, 2007, Ms. Perruzzi processed Mr. Stewart’s black Cadillac. She photographed the interior and exterior of the vehicle, recovered one cartridge casing from the driver’s seat of the vehicle and one from the rear of the vehicle, and collected six latent prints from the vehicle. Ms. Perruzzi sent the latent prints to the Fingerprint Identification Unit and the shell casings from the scene and from the car to the Firearms Examination Unit.

Beverly Lancaster, appellant’s aunt, also testified for the State. Pursuant to the State’s request, and over appellant’s objection, the court closed the courtroom and ordered all nonessential court personnel to leave the courtroom during Ms. Lancaster’s testimony. Ms. Lancaster stated that, on the evening of April 29, 2007, she heard “three or four” gunshots while sitting in the basement of her residence, 1307 Early Oaks Lane. She was unable to ascertain if the shots were fired from inside or outside the residence.

After hearing the shots, she observed approximately eight “friends and family,” some of them with weapons, running down the steps and out through the back door. Included among these people were appellant, his twin brother ¹⁴⁹ Dawon, and appellant’s mother, Tara Lancaster, who is Ms. Lancaster’s sister. Although the day before trial Ms. Lancaster told the State that she saw appellant with a gun in his hand as he ran down the steps, at trial she testified that she was mistaken. She testified that the people she observed with guns were appellant’s brother and another individual, “Fats,” who also happened to be a twin.

In response to this change in testimony, the State asked Ms. Lancaster if she had been threatened. Ms. Lancaster explained that she had received a threat the previous day, stating “that somebody was going to kill [her]” if she showed up in court. She acknowledged that, prior to receiving the threat, she never had mentioned that there were two sets of twins in the residence on April 29, 2007. Ms. Lancaster testified that she left the residence through the back door, and she took a walk to “clear [her] mind.” Ms. Lancaster returned to the residence approximately seven to eight hours later with her boyfriend, Michael Mackesy.

Mr. Mackesy discovered Duane Edward Nichols lying dead on the floor of the bathroom. Mr. Mackesy then called the police. Evidence technician Corporal Anthony Ratcliff arrived at 2:56 a.m. to process the scene of 1307 Early Oaks Lane. Corporal Ratcliff observed a black male victim, later identified as Mr. Nichols, lying in blood on the bathroom floor.

After the victim was moved, Corporal Ratcliff recovered a bullet from the bathroom floor. He also collected two bullet fragments from the steps in front of the house. Prince George’s County Police Officer Kenneth Hartmann responded to “a priority one call” on April 29, 2007, for a shooting on the 1300 block of Early Oaks Lane. When he arrived, he observed a body inside a vehicle, later determined to be Mr. Stewart, “slumped over on the side over the center console.” He conducted a canvass of the area, but he did not find any witnesses.

At approximately 2:00 a.m. on April 30, 2007, Officer Hartmann responded to a call indicating that a body, later determined to be Mr. Nichols, was found in the residence at 1307 Early Oaks Lane. ¹⁵⁰ Assistant Medical Examiner James Locke conducted autopsies on the bodies of Mr. Stewart and Mr. Nichols. Dr. Locke noted in the autopsy report that Mr. Stewart suffered five gunshot wounds to his body, that there was evidence of close range firing near one of the gunshot wounds, and that Mr. Stewart died of multiple gunshot wounds. Three bullets were recovered from Mr. Stewart’s body. Dr. Locke testified that Mr. Nichols’ body arrived at his office at 9:00 a.m. on April 30, 2007, and he had been dead for approximately 12 hours.

Dr. Locke concluded that Mr. Nichols died of a single gunshot wound to the head, and that the “bullet passed through his skelp [sic] and skull, did extensive damage to his brain, [and] exited through the right temple region of his head.” Officer Jeremy Webb attended the autopsies of both victims. He collected items of clothing, blood samples, and fingernail clippings. He also collected the three bullets recovered from Mr. Stewart’s body. Terry Eaton, forensic firearms and toolmark examiner with the Prince George’s County Police Department, was admitted as an expert in the field of firearms identification.

On November 12, 2007, Mr. Eaton examined the three bullets recovered from Mr. Stewart’s body, twelve shell casings collected from the 130Ó block of Early Oaks Lane, the bullet recovered from the bathroom floor of 1307 Early Oaks Lane, and the two bullet fragments recovered from the steps of the residence. He concluded that the twelve shell casings were .9 millimeter Luger cartridge casings, and they were all fired from the same firearm. The three bullets recovered from Mr. Stewart’s body were .9 millimeter Luger bullets, which were fired from the same firearm. Mr. Eaton also concluded that the bullet found in the bathroom with Mr. Nichols was a .9 millimeter Luger bullet that had been fired from the same gun as the bullets found in Mr. Stewart’s body.

Mertina Davis, a fingerprint specialist for the Prince George’s County Police Department, was admitted as an expert in the field of fingerprint examination. Ms. Davis testi ¹⁵¹ fíed regarding the process used in Prince George’s County to compare a latent print to a known print, referred to as the ACE-V method. Ms. Davis stated that latent prints are collected by evidence technicians and submitted to her unit in a sealed envelope. She testified that on January 24, 2008, she compared a latent palm print lifted from the driver’s door of Mr. Stewart’s vehicle with a known print of appellant.

After identifying “fifteen plus” common points between the latent print and appellant’s print, Ms. Davis concluded that it was a match. At the close of the State’s case, appellant made a motion for judgment of acquittal on the charges of first-degree murder of Duane Nichols and use of a handgun in the commission of that felony. The court denied the motion. Appellant did not call any witnesses on his behalf, nor did he testify in his own defense.

After entering three joint exhibits into evidence by consent, appellant renewed his motion for judgment of acquittal. The court denied the motion. The court then instructed the jury, and the State and appellant delivered closing arguments. The jury returned a guilty verdict on the charges of first degree murder of Michael Stewart and Duane Nichols, attempted murder of Darryl Fitzgerald, and the three counts of use of handgun in the commission of a felony.

We shall include additional facts in our discussion. DISCUSSION I. Closing of the Courtroom Appellant first contends that the circuit court erred in granting the State’s request to close the courtroom during the testimony of Beverly Lancaster, arguing that this violated his constitutional right to a public trial as guaranteed by the Sixth Amendment. In response, the State argues that “the court was within its discretion in allowing for the limited ¹⁵² closure of the courtroom for the testimony of one witness who had been threatened with death if she testified.” The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a ... public trial____” U.S. Const, amend.

VI

As this Court recently stated: 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 [v. Georgia, 467 U.S. 39, 46 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984)) ]. 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 [68-]69, 723 A.2d 922 (quoting Waller, supra, 467 U.S. at 46 , 104 S.Ct. 2210 ).

Longus v. State, 184 Md.App. 680, 688 , 968 A.2d 140 , cert. granted, 409 Md. 47 , 972 A.2d 861 (2009). The right to a public trial, however, “is not absolute.” Robinson v. State, 410 Md. 91, 102 , 976 A.2d 1072 (2009); Carter v. State, 356 Md. 207, 216 , 738 A.2d 871 (1999). 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.” Robinson, 410 Md. at 103 , 976 A.2d 1072 (quoting Walker v. State, 125 Md.App. 48, 69 , 723 A.2d 922 (1999)). The Court of Appeals has cautioned, however, that “criminal trials are to be open to the public as a matter of course, and any closure of the courtroom for even part of the trial and only affecting some of the public must be done with great caution.” Id. at 102 , 976 A.2d 1072 . ¹⁵³ Before closing a courtroom, certain requirements must be satisfied.

In Waller v. Georgia, 467 U.S. at 48 , 104 S.Ct. 2210 , the Supreme Court set forth a four factor test, which requires: (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.” Accord Robinson, slip op. at 7-8; Longus, 184 Md.App. at 689 , 968 A.2d 140 . Here, the State’s request to close the courtroom was made prior to the testimony of Beverly Lancaster. The State made the following proffer: The State had Ms. Lancaster here yesterday. She was here all day.

Overnight she claims to have received threats through a third party. Those threats allegedly were sent by the defendant’s father indicating that if Ms. Lancaster testifies in this case that she would be killed. There is a prior allegation that earlier on, immediately after the incident in question, that a threat was made by either the defendant or his brother against Ms. Lancaster threatening to kill her. Based upon that, based upon the fact that we know that the defendant’s father has already been convicted in a homicide case and that his uncle is also serving time for a homicide conviction, we believe these threats to be legitimate and as such we’re making a formal request that when Ms. Lancaster comes in that the courtroom be sealed and that all nonessential personnel be asked to leave the courtroom, and that Ms. Lancaster be permitted to come in the courtroom through the back door escorted by sheriffs and exit through the back door escorted by sheriffs.

Defense counsel objected. Initially, he objected to Ms. Lancaster being escorted to the witness stand by the sheriff in front of the jury. After that concern was resolved, counsel continued with his objection: ¹⁵⁴ Mr. Markham has a right to an open trial and a public trial. Having spoken with Ms. Lancaster now, she is a witness who says almost anything that pops into her head at any time.

She’s given at least three different versions of events, so it makes it very difficult to really assess her credibility when she says that somebody has threatened to kill her. She explained that she was under the influence of alcohol and drugs when she spoke to the police initially, and when she made her written statement. So, to read much into her allegations takes a vivid imagination. So, the defense is not nearly as persuaded as the Government is that there’s any legitimacy to this whatsoever.

The court granted the State’s request to close the courtroom during Ms. Lancaster’s testimony. It stated: “Other than the witness being called in this case, at this point in time anyone that’s not involved in this case, please step outside and remain outside until my deputy or my bailiff directs you to return to the courtroom, that means everybody outside.” Appellant contends that “none of the prongs of the Waller test were satisfied____” Specifically, he asserts: (1) “there was no cause for closing the courtroom to everyone but the parties, the witness, and essential court personnel”; (2) “the court’s order was overbroad”; (3) “the court made no effort to find an alternative to total closure”; and (4) “the court made no findings in support of its ruling.” The State argues that the court’s order instructing anyone who was not involved in the case to exit the courtroom during the testimony of Ms. Lancaster amounted to a partial closure of the courtroom, which required a “substantial reason,” as opposed to an “overriding interest” in closure. Moreover, the State maintains that the court did not err in failing to consider reasonable alternatives to closure sua sponte because “the partial closure ordered by the court was narrowly tailored to address a single, documented problem, the death threats against a particular witness ---- [and appellant] did not suggest any alternatives to that partial closure.” The State concedes that the court “did not put any findings in support of ¹⁵⁵ its ruling on the record.” It argues, however, citing United States v. Farmer, 32 F.3d 369, 370 (8th Cir.1994), that specific findings are not necessary if the record shows support for a closure. In the alternative, the State contends that, if this Court finds that the absence of specific findings on the record was error, the proper remedy is to remand the case for such a finding, not to reverse appellant’s convictions.

With respect to the first factor, the “overriding interest” or “substantial reason” for closure, we recognize the seriousness of the problem of witness intimidation. Clearly, the State has a compelling interest in guarding against the intimidation of individuals who testify. See Longus, 184 Md.App. at 696 , 968 A.2d 140 (State’s interest in securing testimony, uninfluenced by intimidation, is “at least a substantial reason for the partial courtroom closure”); State v. Mahkuk, 736 N.W.2d 675, 685 (Minn.2007) (protection of witnesses from intimidation is an overriding state interest); Feazell v. Nevada, 111 Nev. 1446 , 906 P.2d 727, 729 (1995) (witness’ “interest in personal safety qualifies as both a ‘substantial reason’ and an ‘overriding interest’ ”); People v. Frost, 100 N.Y.2d 129 , 760 N.Y.S.2d 753 , 790 N.E.2d 1182, 1188 (2003) (witnesses’ “legitimate fears of testifying” established an overriding interest). The problem in this case, however, is that the trial court failed to make the requisite case-specific findings necessary to justify a closure of the courtroom, as required by Waller .

In addressing this issue, we find the Court of Appeals’ decision in Carter, 356 Md. at 221-26 , 738 A.2d 871 , to be dispositive. In Carter , the question was whether the “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 this action, violate[d] the accused’s Sixth Amendment right to a public trial.” Id. at 210 , 738 A.2d 871 . The prosecution proffered that the nature of the offense and the child’s age warranted closure of the courtroom. Id. at 211 , 738 A.2d 871 .

The defense objected on the ground that this would violate his right to a public trial. Id. The court ordered all spectators to ¹⁵⁶ leave the courtroom, stating “that the child’s privacy and tender age in this instance certainly outweighs any significance attaching to the public trial____” Id. The Court of Appeals held that the trial court erred in closing the courtroom without adhering to the Waller test.

In particular, the Court held that “case-specific finding[s]” were “necessary to justify the closing of the courtroom to the public.” Id. at 223, 738 A.2d 871 . The Court explained: Even if there were a sufficient basis in this case to close the courtroom, ordinarily, the trial judge must have stated the reason or reasons for doing so on the record. Only in that way will the public be able to be aware of the reasons for closure, and an appellate court able to review the adequacy of those reasons. Id. at 221 , 738 A.2d 871 .

The Court stated that the trial court’s failure to make the “requisite case-specific finding[s]” prevented it from determining “whether the closure was necessary or narrowly tailored to protect the State’s overriding interest.” Id. at 223 , 738 A.2d 871 . Therefore, it held “that the closure violated the petitioner’s right to a public trial.” Id. at 226 , 738 A.2d 871 . The Court next addressed the proper remedy for a violation of the right to a public trial. Noting that the denial of a public trial was a “ ‘structural defect,’ ” the Court “held that a new trial, rather than remand to supplement the record, is the proper remedy.” Id. at 224 , 738 A.2d 871 (citation omitted).

Here, as the record indicates, and the State concedes, the court failed to make the requisite case-specific findings of fact before closing the courtroom to the public. Consequently, following the mandate of Carter , we conclude that the closing of the courtroom infiinged upon appellant’s Sixth Amendment right to a public trial, and the appropriate remedy is to remand for a new trial. This Court is aware that other courts have held to the contrary, holding that the lack of specific findings does not require reversal if support for the closure can be ascertained from the record. See, e.g., Bell v. Jarvis, 236 F.3d 149 , 172 ¹⁵⁷ (4th Cir.2000) (reading “nothing in Waller that would require a reviewing court to evaluate the trial judge’s closure order solely on the basis of the explicit factual findings and, thereby, ignore facts of record which fully support the decision”), cert. denied, 534 U.S. 830 , 122 S.Ct. 74 , 151 L.Ed.2d 39 (2001); Farmer, 32 F.3d at 371 (specific findings not necessary where the record provides sufficient support for a limited closure); Woods v. Kuhlmann, 977 F.2d 74, 77-78 (2d Cir.1992) (Waller factors satisfied where “information gleaned” from the record is sufficient to support the partial closure of trial).

In light of the controlling nature of Carter , however, this Court is required to reverse appellant’s convictions. This opinion should not be construed to suggest that the court on remand cannot close the courtroom for the testimony of Ms. Lancaster. Upon a full evaluation by the trial court, and an articulation of its specific findings, the court may conclude that some form of closure of the courtroom is constitutionally permitted.

II

Fingerprint Evidence Appellant’s second contention is that “the trial court erred by denying [his] motion to exclude the testimony of the State’s fingerprint expert as a result of a discovery violation or, in the