Walker v. State

HOLLANDER, Judge. This appeal arises from an assault committed upon Daryl Antjuan Walker, 1 appellant, by a State’s witness during a pretrial hearing on appellant’s motion to suppress a photographic identification. The attack briefly spawned chaos, confusion, and commotion in the courtroom, and culminated in a closure order barring appellant’s mother, sister, and girlfriend (collectively, the “family”) from attending the suppression hearing and the trial. Because the courtroom was ⁵² equipped with video cameras, in lieu of a court reporter, the incident was captured on videotape.

On February 28,1998, a jury in the Circuit Court for Prince George’s County convicted appellant of robbery with a deadly weapon, two counts of first degree assault, and three counts of use of a handgun in the commission of a felony or crime of violence. 2 The court subsequently sentenced appellant to a total of twenty-five years in prison. 3 On appeal, only matters arising from the courtroom fracas are at issue. Appellant presents the following questions for our review, which we have rephrased: I. Did the trial court abuse its discretion and violate appellant’s constitutional right to a public trial when it issued a closure order barring appellant’s family from the trial, because of the family’s behavior in response ■ to an assault upon appellant committed by a State’s witness during a pre-trial motion hearing?

II

Did the trial court abuse its discretion when it denied appellant’s request for a continuance of the trial after a courtroom disturbance that occurred while the jury was sequestered in the jury room? For the reasons that follow, we conclude that the trial court abused its discretion in excluding appellant’s family from the trial. 4 Further, we hold that the closure order violated appellant’s constitutional right to a public trial. Accordingly, we ⁵³ shall reverse the convictions and remand for further proceedings. In view of our disposition of the first issue, we need not reach appellant’s second issue.

I. The Videotape: A Picture Is Worth A Thousand Words This case presents a situation created by “emerging technologies that are fast becoming a part of the trial process.” Ringe v. State, 94 Md.App. 614, 625 , 618 A.2d 266 (1993). In this era marked by the importance of the “visual image” 5 and “dizzying television technology”, 6 it happened that video cameras, rather than a court reporter, were utilized to make a record of the trial proceedings. Although a transcript of most of the videotaped court proceedings has been submitted for our review, no transcription of the melee was prepared; clearly, it would have been almost impossible to prepare such a transcript. Accordingly, the videotape of the court proceedings, including the fracas, has been included as part of the record on appeal, pursuant to this Court’s order of October 14, 1998.

See generally Md. Rules 8-415, 16-405, 16-406. While the transcript contains the trial judge’s post-event summary of what occurred, the videotape provides the only contemporaneous account of the courtroom disturbance. The trial judge was one of several eyewitnesses to the underlying occurrence, but she was the only witness who recounted what happened. Moreover, the family members were not provided with an opportunity to explain their conduct, which was provoked by the attack upon appellant and prompted the closure order.

In a sense, the judge relied on her own credibility and reliability as a witness in determining to issue a closure order. Thus, this case pits the videotape of the courtroom disturbance against the transcript, which contains the trial judge’s observations. ⁵⁴ The parties have not raised any concerns about our review of the videotape, nor have they suggested any factors that should guide our consideration of it. To be sure, we are concerned about the potential misuse of a videotape of the proceedings as a vehicle for “instant replay,” opening the door to the proverbial “Monday morning quarterbacking” regarding the trial judges fact-finding. Indeed, we are mindful that even when an umpire or a referee makes a “bad call” that is plainly evident on replay, the call is not overruled.

Yet this is not a game, and we cannot disregard a vital part of the record. Instead, we are required to determine from our review of the entire record whether the judge’s findings of fact, undergird-ing the closure order, were clearly erroneous. See Jones v. State, 348 Md. 448, 457-58 , 682 A.2d 248 (1996); Md. Rule 8-131(c). When the factual findings of the trial court are supported by substantial evidence, they are not clearly erroneous.

Ryan v. Thurston, 276 Md. 390, 392 , 347 A.2d 834 (1975); Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners of Sea Watch Condominium, 115 Md.App. 5, 31 , 691 A.2d 750 , cert. granted, 347 Md. 253 , 700 A.2d 1214 , and cert. dismissed, 347 Md. 622 , 702 A.2d 260 (1997). Our review is limited to determining “only whether there was sufficient evidence to support the trial court’s findings. In making this decision, we must assume the truth of all evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusions of the lower court.” Mercedes-Benz v. Garten, 94 Md.App. 547, 556 , 618 A.2d 233 (1993) (citation omitted); see also State v. Johnson, 108 Md.App. 54, 71 , 670 A.2d 1012 (1996).

Our research reveals that numerous courts, in Maryland and elsewhere, have readily considered videotapes without offending the well-established principles that govern appellate review. In Suggs v. State, 87 Md.App. 250 , 589 A.2d 551 (1991), for example, we considered the propriety of the trial judge’s conduct in analyzing whether the defendant received a fair trial. To determine what actually occurred in ⁵⁵ front of the jury, we specifically reviewed the videotape of the court proceedings, noting: Appellant’s counsel, at oral argument, stated that the videotape of the proceedings showed that the jury was still in the courtroom. We have reviewed the tape, and he is correct.

Id. at 257 n. 2, 589 A.2d 551 (emphasis added). Similarly, in Ringe, 94 Md.App. 614 , 618 A.2d 266 , we considered a videotaped confession offered in evidence at a suppression hearing. Writing for this Court, Judge Cathell said that “review of the video tape [sic] may be even more necessary when appellate judges are required to make independent appraisals of constitutional issues.” Id. at 623 , 618 A.2d 266 . See also, e.g., In re Adoption/Guardianship No. 3598, 109 Md.App. 475, 516 , 675 A.2d 170 (1996) (finding no support for trial court’s conclusion that appellant’s home was “less than desirable,” based on appellate review of videotape introduced in evidence), rev’d on other grounds, 347 Md. 295 , 701 A.2d 110 (1997); J.F.E. v. J.A.S., 930 P.2d 409 , 412 (Alaska 1997) (discussing appellate court’s review of videotape and photographs introduced as exhibits in connection with visitation dispute and concluding they did not “furnish a sufficient basis for the court’s decision to restrict [father’s] visitation privileges”); Noland v. Noland, 330 Ark. 660 , 956 S.W.2d 173, 178-79 (1997) (reviewing, inter alia, videotaped interview of decedent and his execution of trust and concluding that “trial court clearly erred in finding that the appellants failed to establish [decedent’s] soundness of mind,” because videotape “manifestly depicts a man who essentially knew what he was doing in signing the documents.”); State v. Moncrief, 234 Ga.App. 871 , 508 S.E.2d 216 (1998) (reviewing audio/videotape of car stop and reversing trial court’s order granting defendant’s motion in limine on the basis of alleged deficiency of warnings); Montoya v. State, 232 Ga.App. 24 , 499 S.E.2d 680, 683 (1998) (reviewing the videotape of a car stop and ruling that trial court correctly denied suppression motion); State v. Aubin, 100 N.C.App. 628 , 397 S.E.2d 653 (1990) (reviewing videotape and upholding trial court’s findings of fact); Commonwealth v. Lease, 703 A.2d 506 (Pa.Su ⁵⁶ per.Ct.1997) (reviewing videotape from burglar alarm protection system and concluding evidence was sufficient to support burglary conviction); Cooper v. State, 961 S.W.2d 222, 226-27 (Tex.Ct.App.1997) (reviewing videotape in connection with motion to suppress videotape made at police station and concluding that trial court erred in admitting audio portion of videotape because defendant invoked his right to terminate interview); Perkins v. State, 940 S.W.2d 365 (Tex.Ct.App.1997) (concluding that videotape made shortly after defendant’s arrest “demonstrated that Appellant was not intoxicated” and reversing conviction following bench trial on ground that “finding of intoxication is so against the great weight [of evidence] as to be unjust and manifestly wrong.”); Commonwealth v. Benjamin, 28 Va.App. 548 , 507 S.E.2d 113 (1998) (upholding trial judge’s determination that defendant did not waive constitutional rights, based on independent appellate review of videotape of custodial interrogation); State v. Peterson, 588 N.W.2d 84 (Wis.Ct.App.1998) (reviewing videotape and concluding that trial court erroneously excluded it from evidence).

We have uncovered only one appellate court that expressly declined to review a videotape of trial proceedings. In Moustakas v. Dashevsky, 25 Cal.App.4th 752, 754 , 30 Cal.Rptr.2d 753, 754 (1994), the court did not want to engage in its “own evaluation of the sights and sounds of the trial courtroom.” In that court’s view, consideration of the videotape represented a “drastic change” in “[m]any aspects of the time-honored rules limiting the scope of appellate review____” Id. Further, the court believed that it contravened the trial judge’s function “to see and hear witnesses, attorneys, and jurors.” Id. As we see it, the California appellate court overlooked the equally important responsibility of an appellate court to apply the clearly erroneous standard to the trial judge’s fact-finding.

See Md. Rule 8-131(c). Accordingly, our factual summary of the courtroom disturbance derives from both the transcript and the videotape. Were it not for the video cameras, our understanding of the events that unfolded in the courtroom would necessarily have ⁵⁷ been limited to the oral account provided by the judge. Because the record includes the videotape, however, we need not rely solely on the judge’s rendition of events.

Through the lens of the video cameras, it is as if we, too, were eyewitnesses to the disturbance; the videotape enables us to see for ourselves what happened in the courtroom. Although we recognize that video cameras are not without limitations, the video cameras that were used in the courtroom, were not “static.” 7 Thus, they did not merely capture a “thin slice” 8 of what occurred. Rather, the video cameras captured the details of the incident in a way that an ordinary eyewitness understandably could not. Further, quite unlike an actual eyewitness caught in the frenzy of the moment, we have been able to scrutinize, analyze, and repeatedly review the videotape, and we have done so in the calm, dispassionate milieu afforded to an appellate court.

Our review has also benefitted from technological aids, such as slow motion and the use of freeze frames. We remain mindful, however, that even when two or more people witness the same incident, they “may see or hear it differently.” Aaronson, Maryland Criminal Jury Instructions and Commentary, § 2.06, at 77 (2d ed.1988) (citing, inter alia, DeVitt and Blackmar, Federal Jury Practice and Instructions, § 17.01 (3d ed.1977)). After scrutinizing the videotape and the transcript, it is evident to us that the trial judge’s summary of facts — the only first hand account provided to us — did not correspond in all material respects with what the video cameras recorded. In reaching our conclusion, we are satisfied that our review has not encroached upon the trial judge’s exercise of her fact-finding duties.

Instead, we have endeavored to fulfill our responsibility to determine whether the trial judge’s factual findings were clearly erroneous. ⁵⁸ II. Factual Summary A. Facts Pertinent to the Charges 9 At around 3:00 a.m. on January 30, 1997, while Earl Watkins and his girlfriend, Sherre Burton, were watching television in the living room of Ms. Burton’s Capitol Heights apartment, appellant and a few other men made an uninvited entry into the apartment. Brandishing handguns, which the men pointed at the faces of the two victims, the assailants robbed Watkins of over $100.00. 10 Appellant also kicked Watkins in the head. In the meantime, Officers Piazza and Butcher responded to a 911 call that Watkins had made when he first heard the sound of breaking glass.

As the officers approached the apartment building, a man yelled “police,” and the robbers fled the scene. According to Detective Gregory McDonald, the police recovered $340.00 that the robbers left scattered at the crime scene. After the robbery, Watkins told Detective McDonald that he knew one of the assailants from the area, and identified him as “Daryl.” In a photographic array subsequently shown to Watkins by Sergeant Mark Ciccone, Watkins positively identified appellant as one of the robbers. According to Sergeant Ciccone, Ms. Burton selected two photographs of the person she knew as “Daryl.” One of the photographs was that of appellant.

At the time, Ms. Burton indicated that the people in the photographs looked “familiar” and “[i]t could be him.” At trial, Watkins explained that he recognized appellant because he had seen him at the building “all the time.” Moreover, on the night in question, Watkins said that he stood “very close” to appellant. According to Watkins, Walker ⁵⁹ stood “right in front” of Watkins, with only Walker’s gun obstructing the victim’s vision. Ms. Burton stated that she had only “glanced” at the robbers, and the robbers instructed her not to look at their faces. Indeed, one of the assailants wrapped a towel around Ms. Burton’s head and put her in a closet.

Therefore, Ms. Burton was not asked if she could identify appellant as one of the robbers. B. Facts Pertinent to Issue I The incident occurred shortly after the conclusion of voir dire. At the time, the jurors, who were not yet sworn, were sequestered in a jury room adjacent to the courtroom, because the court was to begin the suppression hearing concerning the pretrial photographic identification of appellant. The videotape reveals that appellant was seated at the trial table next to his counsel, and four people were seated on two benches in the public seating area of the courtroom.

Three of the spectators have been identified as appellant’s mother, sister, and girlfriend, although we do not know who is who. The fourth person, seated behind them, has not been identified for us. Several court personnel were also present in the courtroom, including two uniformed sheriffs deputies. Nevertheless, the precise number of court personnel and their specific duties is not made clear in the record.

The videotape also shows a rail separating the well of the court from the public seating area, in what seems like a rather small courtroom. An aisle divided the public seating area into two sections, and the spectators were all seated on the same side as appellant. The State began by calling Watkins as its first witness. The videotape indicates that, moments later, at approximately 11:38:52 a.m., Watkins walked past appellant and suddenly slugged him.

Until that time, however, there is no indication that anyone had engaged in any disorderly or unruly conduct while in the courtroom. 11 As a result of Watkins’s attack, a ⁶⁰ fracas of sorts ensued, which is described in one sentence in the transcript. It says: “(An altercation erupted in the courtroom between the witness and the defendant.)” The videotape reflects that many of the responses of those in the courtroom occurred simultaneously. A sheriffs deputy and another man, presumably a bailiff, immediately responded by grabbing Watkins and pulling him away from appellant. They quickly took Watkins to the side of the courtroom, next to the rail.

As they did so, the prosecutor managed to scoot out of the way. Unfortunately, Watkins seemed to land on top of another member of the court’s staff. When appellant was struck, he stood up and seemed to turn in the direction of the public seating area, towards his family. As he did so, his attorney put his arms on appellant, as if to restrain him or calm him.

In the meantime, another sheriff, who had been in the public seating area of the courtroom, quickly came past the rail and seemed to tackle appellant, although Watkins had already been separated from Walker and removed to the side. As the sheriff grabbed appellant, his family got up from their seats, gesturing, with one of them screaming repeatedly, “Oh my God.” Additionally, one of the women approached the nearby rail, while another paced up and down the courtroom. None of the spectators ever entered the well of the court, however. As the family was yelling, the court repeatedly said, “get out.” But the judge never expressly indicated that she was speaking to the family.

By 11:39:22 a.m., the family vacated the courtroom. Thereafter, noise continued to emanate from the hallway. We cannot ascertain from the record who approached the rail or repeatedly screamed “Oh my God.” Because no testimony was ever taken to establish which family member did what, or why they behaved as they did, there is no evidence as to precisely when the family first heard the judge’s directive to leave the courtroom or when they first understood that her ⁶¹ instruction was directed to them. Instead, we know only that the judge believed, based on “eye contact” with the family during the frenzy, that the family members knew that they had been ordered to leave but did not do so.

In any event, as a result of the incident, the court barred appellant’s family from the courtroom for the duration of all court proceedings. For his part, Watkins was charged with two counts of criminal contempt; one count related to striking appellant and the other related to fighting with court personnel. Moreover, the court ordered Watkins’s immediate incarceration, and he remained jailed during the trial. Following appellant’s trial, the court sentenced Watkins to two consecutive terms of 179 days for each contempt offense.

Immediately after the fracas, the court took a recess. When court resumed about two hours later, appellant’s counsel moved to continue both the suppression hearing and the trial. The following colloquy in the transcript is relevant: [APPELLANT’S COUNSEL]: My client’s mother, and girlfriend and sister were here earlier and they were requested to leave the courtroom. I don’t know what happened behind me.

THE COURT: They were coming over the rail to get involved in the fracas that occurred, that’s why they were asked to leave the courtroom. [APPELLANT’S COUNSEL]: Your Honor, I believe the jury was in the next room when the incident occurred and I would suspect that they heard some commotion. And I suspect that it could have tainted this jury panel. They might be assuming that somehow my client was involved in the fight or if they were advised that the alleged victim struck my client that might effect [sic] their view of this case as well, possibly to the detriment of my client. I think that emotionally — whether the State choose [sic] to see it this way or not, [appellant] is a victim in reference to what happened here today and I think it would be unfair to even have to complete this trial — nor do any motions at ⁶² this point with the person that just struck him merely two hours ago---- THE COURT: All right.

For the record, at approximately 11:38 this morning, after a jury had been selected and sequestered, the first witness was called on a Motion to Suppress an eyewitness identification. The witness came into the courtroom, walked past the defendant. When he became immediately beside the defendant he commenced to pummel the defendant with his fist. The deputies interceded and got him away from the defendant, who also stood up and decided to get into the affray, and was also subdued and put down.

In that accounting, my deputy was injured and had to be taken to the hospital. One of the deputies was also injured. The defendant does not appear to me to have any injuries. I’m going to go ahead and do the Motion and I’m going to inquire of the jurors if they heard anything.

And that’s how were going to handle it. I’m not going to continue anything. [APPELLANT’S COUNSEL]: Your Honor, there is a case Ronald G. Watters v. State of Maryland that I believe does make sure [sic] to a public trial, which would include the right of family members to be present during a trial. I know that the Court has indicated that I didn’t see what was happening behind me, frankly, but— THE COURT: I did. I saw everything that happened. [APPELLANT’S COUNSEL]: — that people came up.

I don’t know if all three, my client’s mother, and the girlfriend and the younger sister all got up. I think it’s a natural reaction that if their love one is being pummeled, that they would get up and see what’s happening, possibly even defend him. But I think given that the assailant of this morning, will not be in the courtroom of everyone else, that they should certainly be allowed during the testimony. And I think that’s the defendant’s right under the Sixth Amendment of the United States Constitution and I— ⁶³ THE COURT: For this record, [appellant’s family] left their seats.

They approached this rail. They were all yelling. I told them to leave the courtroom and they made eye contact with me and refused to do that, while the deputies were trying to put this affray down and I’m not going to let them in here. If people can’t be rulely [sic] in the courtroom and I have to do something like that, this Court is not required to put them in here.

I’m not going to invite another incident. The court then proceeded with the motion hearing. 12 After the suppression hearing, and before proceeding with the trial, the judge questioned each juror individually in regard to what he or she may have heard concerning the altercation. Jurors 1, 4, 5, 19, and 37 reported that they heard nothing while they were sequestered. Those jurors who heard noise generally indicated that they would be able to serve impartially and fairly.

Juror 8 “heard yelling and shouting and banging coming from this courtroom.” Juror 9 heard noise that was described as “extraordinary [sic] loud,” but the juror was unable to “distinguish” the words and reached no conclusions. Juror 15 heard “some noise, some loud noise,” which the juror “couldn’t really make ... out.” Juror 17 heard “some female voices screaming” and “sounds similar to a ... chair falling.” Juror 22 heard a “rumpus” that “sounded like bodies and furniture falling, and somebody yelling.” Further, the juror “speculated] that somebody involved with the trial was upset about something.” The juror added: “Family members, whatever.” Nonetheless, the juror acknowledged that he/she had no idea what had happened. Juror 30 heard “some commotion,” but did not reach any conclusions. Similarly, Juror 38 heard “a commotion,” which the juror described as “thumping and a lady yelling.” ⁶⁴ Juror 14 reported hearing a “commotion” that sounded like “a lady screaming or some type of outburst.” The juror added: “[W]e were trying to decide if we wanted to go out the other door or not.” Juror 14 also acknowledged concern about the incident, stating: “I would have to say it unnerved me a little bit.” Neither side asked the court to strike Juror 14, however.

Thereafter, the defense attorney renewed his motion to continue the case, and again asked the court to allow appellant’s family into the courtroom. Appellant’s counsel stated: It is clear that several of the [jurors] heard a commotion---- There seems to be some consistency that they heard a female voice. My client’s mother, my client’s girl friend, my client’s younger sister are not present in Court at this time. I think this could prejudice my client’s case were we to proceed at this time with this jury.

Maybe in some of their minds they can be fair and impartial still, but at some point it could have a greater significance when they don’t see those people here. My client should not be punished for being attacked by the complainant in this case, and some of them might infer from that noise that this is a particularly dangerous case, and it might effect [sic] their judgment when it comes down to reaching a verdict. The other matter was my client does have a right to a public trial. I do believe I cited a case earlier.

I do believe that my client is entitled to have family members present at critical stages____ Again, the court denied the motion for continuance and refused to permit appellant’s family in the courtroom. The following exchange in the transcript is pertinent: THE COURT: [I]t is obvious that [the jury] heard women yelling. That is what they were doing. They were very loud, and they were approaching the rail.

They were going ⁶⁵ to get into it. I am not going to let them in here. I saw them do that. Your back was to them, mine wasn’t. [APPELLANT’S COUNSEL]: My concern is that it still could effect [sic] the jury even if the Court were to so find they shouldn’t be here, I maintain they should be here.

I understand what you’re saying. The situation has changed. There is no reason for them to come up during this trial.