People v. Vaughn

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh

Marilyn Kelly

Stephen J. Markman

Diane M. Hathaway

Mary Beth Kelly

Brian K. Zahra

FILED JULY 9, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 142627

JOSEPH LASHAWN VAUGHN,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

YOUNG, C.J.

We granted defendant’s application for leave to appeal to determine whether

defendant is entitled to a new trial because the circuit court closed the courtroom during

voir dire in violation of defendant’s constitutional rights.1 We hold that a defendant’s

right to a public trial is subject to the forfeiture rule articulated in People v Carines2 and

that the Court of Appeals erred by concluding that defendant’s failure to assert his public

1

US Const, Am VI; Const 1963, art 1, § 20.

2

People v Carines, 460 Mich 750; 597 NW2d 130 (1999).

trial right necessarily “forecloses the later grant of relief.”3 In applying the Carines

forfeiture rule to defendant’s appeal, however, we conclude that defendant is not entitled

to a new trial because he has not established that his forfeited claim of error “seriously

affected the fairness, integrity, or public reputation of judicial proceedings.”4 We further

conclude that defendant is not entitled to a new trial on the basis of ineffective assistance

of counsel.5 Accordingly, we vacate the Court of Appeals’ opinion to the extent that it is

inconsistent with this opinion, affirm on alternative grounds the judgment of the Court of

Appeals, and affirm defendant’s convictions.

I. FACTS AND PROCEDURAL HISTORY

On the night of June 14, 2002, defendant, Joseph Lashawn Vaughn, parked his car

on a Detroit street so that it partially blocked the driveway of Emmitt Smith, a retired

police officer. Smith and a neighbor went over to the car, which defendant had exited,

and began talking to a woman in the passenger seat of the car. Defendant then emerged

from a nearby alley and began shooting at Smith and the neighbor. In response, Smith

returned fire, although defendant ran from the scene. Police traced the parked vehicle to

defendant.

Defendant was arrested and charged with possession of a firearm by a felon

(felon-in-possession),6 possession of a firearm in the commission of a felony (felony-

3

People v Vaughn, 291 Mich App 183, 196; 804 NW2d 764 (2010).

4

Carines, 460 Mich at 774.

5

US Const, Am VI; Const 1963, art 1, § 20; Strickland v Washington, 466 US 668; 104

S Ct 2052; 80 L Ed 2d 674 (1984).

6

MCL 750.224f.

2

firearm),7 and two counts of assault with intent to murder.8 He proceeded to a jury trial

in the Wayne Circuit Court. After the circuit court discussed a preliminary matter with

counsel of record, a court officer closed the courtroom in preparation for voir dire:

The Court: All right, we’ll bring the jury in.

Court Officer: Okay, folks you’re going to have to clear the

courtroom until after the selection of the new jury.

Although the record is unclear regarding how many people were subject to the court’s

order, it is uncontested that the circuit court did not provide a reason for this closure. It

is also uncontested that neither defendant nor his counsel objected to closure of the

courtroom.

At the conclusion of defendant’s trial, the jury found defendant guilty of felon-in-

possession, felony-firearm, and two counts of assault with intent to commit great bodily

harm less than murder.9 Defendant raised several claims of error on appeal, among them

that the circuit court’s closure of the courtroom during voir dire violated his Sixth

Amendment right to a public trial and entitled him to a new trial. Alternatively,

defendant claimed that his trial counsel’s failure to object to the circuit court’s closure of

the courtroom constituted ineffective assistance of counsel and likewise entitled him to a

new trial.

7

MCL 750.227b. Defendant was charged as a second offender of MCL 750.227b. See

MCL 750.227b(1).

8

MCL 750.83.

9

MCL 750.84.

3

The Court of Appeals unanimously affirmed defendant’s convictions.10 The Court

of Appeals panel explained that while a defendant has “the right to have the courtroom

open to the public during jury voir dire[,] . . . this right is not self-executing [and] the

defendant must timely assert the right.”11 Accordingly, “the failure to timely assert the

right to a public trial forecloses the later grant of relief.”12 Because “defendant’s trial

counsel did not object to the trial court’s decision to close the courtroom to the public

during the selection of his jury,” the courtroom’s closure “does not warrant relief.”13

The Court of Appeals also determined that defendant was not entitled to relief on

the basis of ineffective assistance of counsel because he could not show “that his trial

counsel’s decision not to object fell below an objective standard of reasonableness under

prevailing professional norms . . . .”14 It explained that “[d]efendant’s trial counsel might

have reasonably concluded that proceeding with a jury voir dire that was closed to the

public benefitted defendant” because a reasonable trial counsel might determine “that the

potential jurors will be more forthcoming in their responses when the courtroom is

10

Vaughn, 291 Mich App 183.

11

Id. at 195-196, citing Presley v Georgia, 558 US ___; 130 S Ct 721, 724; 175 L Ed 2d

675 (2010), and Levine v United States, 362 US 610, 619-620; 80 S Ct 1038; 4 L Ed 2d

989 (1960).

12

Vaughn, 291 Mich App at 196, citing United States v Hitt, 473 F3d 146, 155 (CA 5,

2006), Freytag v Internal Revenue Comm’r, 501 US 868, 896; 111 S Ct 2631; 115 L Ed

2d 764 (1991) (Scalia, J., concurring), and Peretz v United States, 501 US 923, 936-937;

111 S Ct 2661; 115 L Ed 2d 808 (1991).

13

Vaughn, 291 Mich App at 196-197.

14

Id. at 197, citing People v Yost, 278 Mich App 341, 387; 749 NW2d 753 (2008).

4

closed, that the proceedings will be less likely to be tainted by outside influences, or . . .

[that] it will expedite the proceedings.”15

This Court granted defendant’s application for leave to appeal, limited to the

following issues:

(1) whether the defendant was denied his right to a public trial

pursuant to US Const, Am VI, and Const 1963, art 1, § 20, where the

Wayne Circuit Court excluded persons other than jurors from the

courtroom during the jury voir dire, see Presley v Georgia, 558 US ___;

130 S Ct 721; 175 L Ed 2d 675 (2010); (2) whether the defendant, by

failing to object, forfeited or waived any error resulting from the exclusion

of the public from the courtroom during the jury voir dire, and, if so,

whether trial counsel rendered ineffective assistance in failing to object; (3)

whether, if some structural errors can be forfeited, the denial of the right to

a public trial is among those forfeitable errors; and (4) whether the

defendant is entitled to a new trial as a consequence of the trial court’s

exclusion of the public during the jury voir dire.[16]

II. STANDARD OF REVIEW

Defendant claims that the circuit court violated his constitutional right to a public

trial when it closed the courtroom during voir dire.17 Alternatively, defendant claims that

his trial counsel’s failure to object to the courtroom’s closure rendered the assistance of

his counsel constitutionally deficient.18 Whether the circuit court violated defendant’s

right to a public trial presents a question of constitutional law.19 Whether defendant was

15

Vaughn, 291 Mich App at 197.

16

People v Vaughn, 490 Mich 887 (2011).

17

See US Const, Am VI; Const 1963, art 1, § 20.

18

See US Const, Am VI; Const 1963, art 1, § 20.

19

United States v Osborne, 68 F3d 94, 98 (CA 5, 1995).

5

denied the effective assistance of counsel presents a mixed question of fact and

constitutional law.20 We review for clear error a circuit court’s findings of fact.21 We

review de novo questions of constitutional law.22

III. RIGHT TO A PUBLIC TRIAL

The right to a public trial “has its roots in our English common law heritage.”23

The Sixth Amendment of the United States Constitution expressly enumerates this right

and states that a criminal defendant “shall enjoy the right to a . . . public trial . . . . ” The

Sixth Amendment right to a public trial is incorporated to the states by the Due Process

Clause of the Fourteenth Amendment.24 Additionally, article 1, § 20 of the 1963

Michigan Constitution guarantees that a criminal defendant “shall have the right to a . . .

public trial . . . . ”25 That the right to a public trial also encompasses the right to public

voir dire proceedings is “well settled.”26

20

People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).

21

Id.

22

Id.

23

In re Oliver, 333 US 257, 266; 68 S Ct 499; 92 L Ed 682 (1948).

24

Presley, 558 US at ___; 130 S Ct at 723, citing Oliver, 333 US at 273.

25

This right has existed in every constitution that the people of Michigan have adopted.

Const 1835, art 1, § 10 (“In all criminal prosecutions, the accused shall have the right to

a . . . public trial . . . .”); Const 1850, art 6, § 28 (“In every criminal prosecution, the

accused shall have the right to a . . . public trial . . . .”); Const 1908, art 1, § 19 (“In every

criminal prosecution, the accused shall have the right to a . . . public trial . . . .”).

Defendant suggested at oral argument that the right to a public trial under the

Michigan Constitution is broader than the right to a public trial under the United States

Constitution because judges in Michigan are elected, rather than appointed. Compare

6

Const 1963, art 6, §§ 2, 8, 11, and 16 (concerning the election of Supreme Court justices,

Court of Appeals judges, circuit judges, and probate judges, respectively) with US Const,

art II, § 2 (concerning the executive appointment of federal judges). “Our goal in

construing our Constitution is to discern the original meaning attributed to the words of a

constitutional provision by its ratifiers,” the people, who “are understood to have

accepted the words employed in a constitutional provision in the sense most obvious to

the common understanding and to have ‘ratified the instrument in the belief that that was

the sense designed to be conveyed.’” People v Nutt, 469 Mich 565, 573-574; 677 NW2d

1 (2004), quoting 1 Cooley, Constitutional Limitations (6th ed), p 81. In determining

whether the Michigan Constitution affords more expansive rights than the Constitution of

the United States for identically worded phrases and provisions, we have observed that

“an expansion of the Michigan Constitution beyond federal protections for identically

worded phrases and provisions” is appropriate only when “such protections [are] deeply

rooted in the document.” People v Pickens, 446 Mich 298, 316; 521 NW2d 797 (1994).

Of course, the interpretation of federal provisions by the Supreme Court of the United

States is relevant to applying similarly worded provisions in the Michigan Constitution,

but only to the extent that we believe the Supreme Court’s interpretation accurately

conveys the original meaning of the Michigan Constitution. See Harvey v Michigan, 469

Mich 1, 6 n 3; 664 NW2d 767 (2003).

Defendant points to language in a previous opinion of this Court suggesting that

the elective nature of judicial office “adds a dimension to the societal interests involved”

in the public’s “concern” over criminal proceedings. Detroit Free Press v Recorder’s

Court Judge, 409 Mich 364, 386; 294 NW2d 827 (1980). While there are societal

interests in the fact that the people of Michigan have retained the right to elect their

judicial officers, we reject the notion that these societal interests confer any greater, or

lesser, constitutional protections than those guaranteed by the federal constitution.

Indeed, the public interest in having criminal proceedings open is universal and simply

does not depend on any particular judicial selection process. Whether judges are elected

or appointed, the right to a public trial exists “as a safeguard against any attempt to

employ our courts as instruments of persecution.” Oliver, 333 US at 270 (emphasis

added). Thus, defendant has not shown that an expansion of a defendant’s protections

beyond the rights accorded him under the Sixth Amendment is “deeply rooted” in article

1, § 20 to such an extent that the people ratifying the 1963 Michigan Constitution

understood the Michigan Constitution to afford greater protections than the Sixth

Amendment. Nor has defendant shown that the drafters of the 1963 Michigan

Constitution had, or conveyed to the ratifiers, any intent to expand the protections of

article 1, § 20 beyond those of the Sixth Amendment. Accordingly, we decline to hold

that the right to a public trial is more expansive under the Michigan Constitution than it is

under the United States Constitution.

7

Although the Sixth Amendment right “is the right of the accused,” a member of

the public can invoke the right to a public trial under the First Amendment.27 “The extent

to which the First and Sixth Amendment public trial rights are coextensive is an open

question, and it is not necessary here to speculate whether or in what circumstances the

reach or protections of one might be greater than the other.”28 The existence of this

implied First Amendment right enjoyed by members of the public precludes a criminal

defendant from enjoying a constitutional right to a private trial, even if he waives his

Sixth Amendment right to a public trial.29 Because this case involves “the accused who

invoked his right to a public trial,” albeit after the fact, this case proceeds solely under the

Sixth Amendment.30

26

Presley, 558 US at ___; 130 S Ct at 724. In Press-Enterprise Co v Superior Court of

California, Riverside Co, 464 US 501, 510; 104 S Ct 819; 78 L Ed 2d 629 (1984) (Press-

Enterprise I), the Supreme Court of the United States held that the implied First

Amendment right provided citizens with a “presumption of openness” during voir dire

that could only be overcome under rare circumstances. Presley applied this holding of

Press-Enterprise I to a Sixth Amendment claim because “‘there can be little doubt that

the explicit Sixth Amendment right of the accused is no less protective of a public trial

than the implicit First Amendment right of the press and public.’” Presley, 558 US at

___; 130 S Ct at 723, quoting Waller v Georgia, 467 US 39, 46; 104 S Ct 2210; 81 L Ed

2d 31 (1984).

27

Presley, 558 US at ___; 130 S Ct at 723.

28

Id. at___; 130 S Ct at 724.

29

Singer v United States, 380 US 24, 35; 85 S Ct 783; 13 L Ed 2d 630 (1965)

(“[A]lthough a defendant can, under some circumstances, waive his constitutional right to

a public trial, he has no absolute right to compel a private trial[.]”), citing United States v

Kobli, 172 F2d 919, 924 (CA 3, 1949).

30

Presley, 558 US at ___; 130 S Ct at 723 (emphasis added).

8

A defendant’s Sixth Amendment right to a public trial is limited, and there are

circumstances that allow the closure of a courtroom during any stage of a criminal

proceeding, even over a defendant’s objection:

“[T]he party seeking to close the hearing must advance an overriding

interest that is likely to be prejudiced, the closure must be no broader than

necessary to protect that interest, the trial court must consider reasonable

alternatives to closing the proceeding, and it must make findings adequate

to support the closure.”[31]

If there is a timely assertion of the Sixth Amendment public trial right, the remedy for a

violation must be “appropriate to the violation,” although “the defendant should not be

required to prove specific prejudice in order to obtain relief . . . .”32

Although the existence of the Sixth Amendment right to a public trial during voir

dire is not questioned, neither this Court nor the Supreme Court of the United States has

squarely considered whether the right can be forfeited or waived by a defendant’s failure

to assert the right in a timely fashion. We turn now to this question.

A. PRESERVATION OF RIGHT TO A PUBLIC TRIAL

This Court “has long recognized the importance of preserving issues for appellate

review.”33 As a result, “[t]his Court disfavors consideration of unpreserved claims of

error,” even unpreserved claims of constitutional error.34 In People v Carines, this Court

31

Id. at ___; 130 S Ct at 724, quoting Waller, 467 US at 48 (alteration in original).

32

Waller, 467 US at 49-50 (holding that the appropriate remedy for the violation of the

public trial right during a pretrial suppression hearing is a new suppression hearing and

not necessarily a new trial).

33

Carines, 460 Mich at 762.

34

Id. at 761, 764-765.

9

adopted the forfeiture standard articulated by the Supreme Court of the United States in

United States v Olano.35 Like this Court’s jurisprudence, Olano reiterated the importance

of asserting a constitutional right in a timely manner:

“No procedural principle is more familiar to this Court than that a

constitutional right,” or a right of any other sort, “may be forfeited in

criminal as well as civil cases by the failure to make timely assertion of the

right before a tribunal having jurisdiction to determine it.”[36]

Thus, the failure to assert a constitutional right ordinarily constitutes a forfeiture of that

right.37 In analyzing a forfeited claim of error, a defendant is not entitled to relief unless

he can establish (1) that the error occurred, (2) that the error was “plain,” (3) that the

error affected substantial rights, and (4) that the error either resulted in the conviction of

an actually innocent defendant or seriously affected the fairness, integrity, or public

reputation of judicial proceedings.38

Both parties assert that this Court should not follow the Carines forfeiture rule

when examining a defendant’s Sixth Amendment right to a public trial. We turn first to

35

Id. at 763-764, citing United States v Olano, 507 US 725; 113 S Ct 1770; 123 L Ed 2d

508 (1993). Although Olano involved application of the Federal Rules of Criminal

Procedure regarding issue preservation, a state procedural requirement can bar an

assertion of federal constitutional error when the procedural requirement is “reasonable”

and “clearly announced to defendant and counsel . . . .” Henry v Mississippi, 379 US

443, 448 n 3; 85 S Ct 564; 13 L Ed 2d 408 (1965).

36

Olano, 507 US at 731, quoting Yakus v United States, 321 US 414, 444; 64 S Ct 660;

88 L Ed 834 (1944).

37

Olano, 507 US at 733 (“[F]orfeiture is the failure to make the timely assertion of a

right . . . .”).

38

Carines, 460 Mich at 763, citing Olano, 507 US at 731-734, 736-737.

10

defendant’s claim that his Sixth Amendment public trial right is not a forfeitable right,

but instead can only be abandoned with his personal and informed waiver of the right.

“What suffices for waiver depends on the nature of the right at issue.”39 Although

the violation of the right to a public trial is among the limited class of constitutional

violations that are structural in nature,40 this fact alone does not require that the waiver of

that right be personal and informed. Indeed, in Johnson v United States, the Supreme

Court of the United States rejected the argument that Olano does not apply to a claimed

structural error because it had “no authority” to create “out of whole cloth” an exception

to the traditional forfeiture analysis simply because the claimed error was structural.41

We likewise decline to create such an exception for the right to a public trial.

While certain constitutional rights are preserved absent a personal waiver,42 those rights

39

New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L Ed 2d 560 (2000).

40

Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999); Waller,

467 US at 49 (“[D]efendant should not be required to prove specific prejudice in order to

obtain relief . . . .”).

41

Johnson v United States, 520 US 461, 466; 117 S Ct 1544; 137 L Ed 2d 718 (1997).

42

Hill, 528 US at 114 (“For certain fundamental rights, the defendant must personally

make an informed waiver.”), citing Johnson v Zerbst, 304 US 458, 464-465; 58 S Ct

1019; 82 L Ed 1461 (1938) (right to counsel), and Brookhart v Janis, 384 US 1, 7-8; 86 S

Ct 1245; 16 L Ed 2d 314 (1966) (right to plead not guilty). The concurring justice

appears to favor a general rule of automatic reversal for all unpreserved structural errors,

subject to exceptions when the ultimate determination of guilt remains reliable despite the

structural error. Yet this distinction fails fully to acknowledge the importance of issue

preservation to this state’s jurisprudence and would situate most forfeited structural errors

identically with preserved structural errors. This argument is particularly unpersuasive

given that the Supreme Court of the United States has already identified, in Hill, two

constitutional rights distinct from the class of “structural errors” that do fall outside the

ordinary issue preservation requirements because they require a personal waiver.

Moreover, application of a plain-error analysis to unpreserved structural error does not

11

constitute a narrow class of foundational constitutional rights that “are of central

importance to the quality of the guilt-determining process and the defendant’s ability to

participate in that process.”43 Indeed, each of the foundational constitutional rights that

are preserved absent a personal waiver necessarily implicates a defendant’s other

constitutional rights.44 For example, the purpose of the right to counsel “would be

deny that error “close consideration,” as the concurring justice suggests, post at 3,

especially because the plain-error analysis already requires reviewing courts to consider

carefully whether any forfeited error either resulted in the conviction of an actually

innocent defendant or seriously affected the fairness, integrity, or public reputation of

judicial proceedings. Carines, 460 Mich at 763, citing Olano, 507 US at 736-737.

While the concurring justice recognizes that a structural error may “defy analysis

by ‘harmless-error’ standards,” United States v Gonzalez-Lopez, 548 US 140, 148-149;

126 S Ct 2557; 165 L Ed 2d 409 (2006) (citation and quotation marks omitted), he fails to

take into account that the caselaw of the Supreme Court of the United States has

expressly distinguished plain-error analysis from harmless-error analysis. For instance,

the Court has repeatedly withheld judgment on whether a structural error automatically

satisfies the third prong of plain-error analysis, Puckett v United States, 556 US 129, 140;

129 S Ct 1423; 173 L Ed 2d 266 (2009), implying that structural errors do not entirely

defy plain-error analysis, even if they do defy harmless-error analysis. Nor does this

Court’s opinion in People v Duncan, 462 Mich 47; 610 NW2d 551 (2000), compel the

rule that the concurring justice would adopt. While Duncan acknowledged that

“[s]tructural errors . . . are intrinsically harmful,” id. at 51, this statement is consistent

with applying our forfeiture rules because we explicitly follow Duncan when applying

the third Carines prong, as discussed later in this opinion, and Duncan does not expressly

state that structural errors defy application of plain-error analysis.

43

State v Butterfield, 784 P2d 153, 156 (Utah, 1989).

44

We think the concurring justice incorrectly suggests that our opinion limits the class of

rights that exist outside our ordinary preservation requirements to those specifically

identified in Hill—the right to counsel and the right to plead not guilty. However, we do

not read Hill as necessarily limiting the class to those two rights. Instead, we compare

the public trial right to Hill’s examples to determine whether the public trial right is also

among the narrow class of foundational constitutional rights that exist outside our

ordinary preservation requirements.

12

nullified by a determination that an accused’s ignorant failure to claim his rights removes

the protection of the Constitution”45 because it is counsel’s responsibility to “protect an

accused from conviction resulting from his own ignorance of his legal and constitutional

rights . . . .”46 Because the right to counsel “invokes, of itself, the protection of a trial

court,”47 preservation of the right does not require an affirmative invocation. Similarly, a

waiver of the right to plead not guilty “would shut off the defendant’s constitutional right

to confront and cross-examine the witnesses against him which he would have an

opportunity to do under a plea of not guilty.”48 The right to a public trial is “of a different

order” because the violation of that right “does not necessarily affect qualitatively the

guilt-determining process or the defendant’s ability to participate in the process.”49

Neither the Supreme Court of the United States nor this Court has held that the

Sixth Amendment right to a public trial is so fundamental to the protection of a

defendant’s other constitutional rights that it falls within this exceedingly narrow class of

rights that are placed outside the general preservation requirements and require a personal

and informed waiver. Defendant cites two foreign appellate cases, State v Njonge50 and

45

Johnson, 304 US at 465.

46

Id.

47

Id.

48

Brookhart, 384 US at 8.

49

Butterfield, 784 P2d at 156.

50

State v Njonge, 161 Wash App 568; 255 P3d 753 (2011).

13

Commonwealth v Lavoie.51 Neither is persuasive. Njonge states that a criminal

defendant may raise his public trial right “for the first time on appeal.”52 However, the

underlying caselaw—a plurality opinion of the Washington Supreme Court—merely

explained that a defendant’s failure to object does not “constitute a waiver of his right to

a public trial.”53 That statement did not address, much less compel, a personal and

intelligent waiver.54 While Lavoie does stand for the proposition that a defendant’s

“knowing agreement is required for the valid waiver of the right to a public trial,”55

neither Lavoie nor the cases it cited examined the right within the framework of the other

rights that require a personal and knowing waiver. Accordingly, we do not find it

persuasive in explaining why the right to a public trial is within the limited class of

constitutional rights that require a waiver to be personal and knowing.

Defendant also claims that a Sixth Amendment public trial right should be

excepted from our traditional preservation rules because “the whole body politic,” not

just a criminal defendant, “suffers an actual injury” in the denial of the public trial right.56

51

Commonwealth v Lavoie, 80 Mass App Ct 546; 954 NE2d 547 (2011).

52

Njonge, 161 Wash App at 574.

53

State v Strode, 167 Wash 2d 222, 229; 217 P3d 310 (2009).

54

Another basis for differentiating Njonge from the instant case is that Njonge analyzed

the defendant’s claim exclusively under the Washington Constitution rather than the

Sixth Amendment of the United States Constitution. Njonge, 161 Wash App at 574.

55

Lavoie, 80 Mass App Ct at 554.

56

People v Yeager, 113 Mich 228, 230; 71 NW 491 (1897) (citation and quotation marks

omitted).

14

Defendant notes language in this Court’s opinion in Detroit Free Press v Recorder’s

Court Judge that posits that a defendant “cannot waive his right to a public trial in

absolute derogation of the public interest.”57 From this language, defendant argues that a

defendant need not invoke his right to a public trial right in order to preserve it.

Defendant’s argument is problematic because it conflates his Sixth Amendment

right to a public trial with the related, but distinct, First Amendment right that the public

enjoys. It is true that a defendant cannot waive a public trial “in absolute derogation of

the public interest.”58 However, this “derogation of the public interest” only speaks to the

fact that a defendant cannot waive the public’s First Amendment right and demand a

private trial. Thus, a defendant cannot affirmatively seek to exclude the public from his

trial unless he can overcome the public’s First Amendment right. That right exists

separately from defendant’s Sixth Amendment right, and its mere existence does not

prevent this Court from enforcing its traditional rules of forfeiture and waiver when

reviewing a defendant’s claim that his Sixth Amendment right has been violated.

This Court’s decision in Detroit Free Press failed to recognize the distinction

between the separate but related First and Sixth Amendment rights. Detroit Free Press

acknowledged that “[f]rom a literal standpoint, the Sixth Amendment provides the right

to a public trial to ‘the accused,’”59 and it observed that “[t]he societal interests served by

[the right to a public trial] are separate from and at times may be in opposition to the

57

Detroit Free Press, 409 Mich at 385.

58

Id. (emphasis added).

59

Id. at 382.

15

interests of the accused.”60 However, it also suggested that these societal interests are

encompassed in the Sixth Amendment rather than the First Amendment. For instance, it

noted that “the Sixth Amendment has been held to implicate interests beyond those of the

accused”61 and emphasized that the Sixth Amendment protections provided to the

accused were not intended “to denigrate the interests of the public which are at the root of

the public-trial guarantee.”62

United States Supreme Court caselaw undermines the Detroit Free Press analysis

to the extent that Detroit Free Press rooted the public’s right to public trial proceedings

in the Sixth Amendment instead of the First Amendment.63 The Detroit Free Press

decision was issued shortly after the Supreme Court issued Richmond Newspapers, Inc v

Virginia,64 which identified the public’s right of access to trial proceedings as within the

60

Id. at 385.

61

Id. at 384.

62

Id. at 389.

63

Justice RYAN’s dissenting opinion recognized that “the resolution of this case is

governed by the First Amendment of the United States Constitution as it is made

applicable to the states through the Fourteenth Amendment,” and he believed that the

majority opinion’s emphasis on the Sixth Amendment and common law “assures the

irrelevance of today’s decision and fuels the increasingly widespread notion that state

courts cannot be depended upon to adequately address and resolve cases involving major

Federal constitutional issues.” Id. at 399 (RYAN, J., dissenting). Justice LEVIN’s

concurring opinion also acknowledged that the majority “should . . . recognize the First

Amendment in the disposition of this case.” Id. at 395 (LEVIN, J., concurring).

64

Richmond Newspapers, Inc v Virginia, 448 US 555; 100 S Ct 2814; 65 L Ed 2d 973

(1980).

16

First Amendment.65 Subsequently, in Press-Enterprise I, the Court clarified that whether

voir dire must be open “focuses on First . . . Amendment values and the historical

backdrop against which the First Amendment was enacted.”66 Similarly, when a

defendant “requested a closed preliminary hearing,” the Court emphasized that “the right

asserted here is that of the public under the First Amendment.”67 Because a defendant’s

Sixth Amendment right exists separately from the public’s First Amendment right, the

existence of the public’s First Amendment right simply has no bearing on whether to

apply our forfeiture analysis to a defendant’s Sixth Amendment claim, and the erroneous

conflation of these rights by Detroit Free Press does not provide a basis for creating an

exception to our traditional rules of forfeiture and waiver.68

65

Although there was no majority opinion in Richmond Newspapers, a majority of the

Court specifically identified the relevant right as a First Amendment right. See Richmond

Newspapers, 448 US at 577 (Burger, C.J., lead opinion on behalf of himself and White

and Stevens, JJ.) (“The right of access to places traditionally open to the public, as

criminal trials have long been, may be seen as assured by the amalgam of the First

Amendment guarantees of speech and press; and their affinity to the right of assembly is

not without relevance.”); id. at 585 (Brennan, J., concurring, on behalf of himself and

Marshall, J.) (“[T]he First Amendment—of itself and as applied to the States through the

Fourteenth Amendment—secures . . . a public right of access, I agree with those of my

Brethren who hold that, without more, agreement of the trial judge and the parties cannot

constitutionally close a trial to the public.”); id. at 599 (Stewart, J., concurring) (“[T]he

First and Fourteenth Amendments clearly give the press and the public a right of access

to trials themselves, civil as well as criminal.”).

66

Press-Enterprise I, 464 US at 509 n 8.

67

Press-Enterprise Co v Superior Court of California, Riverside Co, 478 US 1, 7; 106 S

Ct 2735; 92 L Ed 2d 1 (1986) (Press-Enterprise II).

68

To the extent Detroit Free Press deviates from these holdings on a matter of federal

constitutional interpretation, we must follow the holdings of the Supreme Court of the

United States rather than our own caselaw. See People v Gillam, 479 Mich 253, 261; 734

NW2d 585 (2007). In any event, the nuanced relationship between the First and Sixth

17

Alternatively, the prosecution and the Attorney General (acting as amicus curiae)

claim, and the Court of Appeals held, that a defendant’s Sixth Amendment right to a

public trial is not self-executing and, therefore, the failure to assert the right at the time of

closure results in the waiver of that right.69 Indeed, many other jurisdictions have

concluded that a defendant’s public trial right is waived when it is not asserted

contemporaneously with the courtroom’s closure.70 To support the conclusion that the

right is waived by silence, the prosecution points to language in United States v Levine,

wherein the Supreme Court of the United States observed:

Due regard generally for the public nature of the judicial process

does not require disregard of the solid demands of the fair administration of

justice in favor of a party who, at the appropriate time and acting under

advice of counsel, saw no disregard of a right, but raises an abstract claim

only as an afterthought on appeal.[71]

Amendment rights expressed in the cases of the Supreme Court of the United States is a

better reasoned approach than that of Detroit Free Press.

69

Although the Court of Appeals did not expressly use the term “waiver” in its core

holding, it explained that “the failure to timely assert the right to a public trial forecloses

the later grant of relief,” and parenthetically quoted caselaw that discussed the matter in

terms of waiver. Vaughn, 291 Mich App at 196, quoting Hitt, 473 F3d at 155 (“Where a

defendant, with knowledge of the closure of the courtroom, fails to object, that defendant

waives his right to a public trial.”).

70

See, e.g., Robinson v State, 410 Md 91, 108; 976 A2d 1072 (2009) (“[W]e are in

accord with the majority of the federal and state courts that a claimed deprivation of the

right to a public trial can be waived by counsel’s failure to lodge a contemporaneous

objection to the closure.”).

71

Levine, 362 US at 619-620.

18

Although Levine examined a defendant’s right to open criminal contempt proceedings

under the Due Process Clause of the Fifth Amendment,72 a subsequent Supreme Court

opinion, Peretz v United States, cited Levine in dictum for the proposition that the

“failure to object to [the] closing of [the] courtroom is [a] waiver of [the] right to public

trial.”73

We decline to follow the dictum of the Supreme Court of the United States

because it conflates the concepts of waiver and forfeiture that we have historically

recognized in Michigan. Both this Court and the Supreme Court of the United States

have distinguished the failure to assert a right—forfeiture—from the affirmative waiver

of a right.74 Olano explained that “[w]aiver is different from forfeiture” in that waiver is

“the ‘intentional relinquishment or abandonment of a known right.’”75 A defendant who

waives a right extinguishes the underlying error and may not seek appellate review of a

72

Id. at 616.

73

Peretz, 501 US at 936. The core holding in Peretz was that “a defendant has no

constitutional right to have an Article III judge preside at jury selection if the defendant

has raised no objection to the judge’s absence.” Id.

74

Of course, appellate courts have not always used the terms with precision. See

Freytag, 501 US at 894 n 2 (Scalia, J., concurring) (“The two [i.e., waiver and forfeiture]

are really not the same, although our cases have so often used them interchangeably that

it may be too late to introduce precision.”).

75

Olano, 507 US at 733 (emphasis added) (citation omitted).

19

claimed violation of that right.76 “Mere forfeiture, on the other hand, does not extinguish

an ‘error.’”77

The prosecution and the Attorney General claim that we should adopt an exception

to this traditional definition of “forfeiture” because any result other than a waiver will

encourage defense counsel to withhold objection as an appellate parachute. However,

this argument fails to take into consideration the heightened standard of review already

applied to forfeited claims of error. Carines requires a defendant who has forfeited his

claim of error to prove (1) that the error occurred, (2) that the error was “plain,” (3) that

the error affected substantial rights, and (4) that the error either resulted in the conviction

of an actually innocent defendant or seriously affected the fairness, integrity, or public

reputation of judicial proceedings.78 In other words, the prosecution and the Attorney

General have not shown that the Carines forfeiture requirements permit an appellate

parachute in this circumstance.79

76

Carter, 462 Mich at 215, citing United States v Griffin, 84 F3d 912, 924 (CA 7, 1996),

and Olano, 507 US at 733-734.

77

Carter, 462 Mich at 215, citing Olano, 507 US at 733, and Griffin, 84 F3d at 924-926.

78

Carines, 460 Mich at 763, citing Olano, 507 US at 731-734, 736-737.

79

Likewise, we do not consider persuasive the prosecution’s comparisons to the right

against compelled self-incrimination and the right of self-representation, which must be

asserted or they are waived. See Roberts v United States, 445 US 552, 559; 100 S Ct

1358; 63 L Ed 2d 622 (1980) (“The Fifth Amendment privilege against compelled self-

incrimination is not self-executing.”); Munkus v Furlong, 170 F3d 980, 983 (CA 10,

1999) (“[B]ecause the right to self-representation arises only when a defendant

knowingly and intelligently waives the right to counsel, courts consistently have

discussed the right to self-representation in terms of invoking or asserting it.”). In both of

those situations, unlike the right to a public trial, the defendant’s own actions necessarily

result in either the assertion or the waiver of the right; there is simply no potential for

20

Because neither party has persuasively shown that this Court should deviate from

the general Carines rule regarding forfeited constitutional error, we hold that Carines

applies to defendant’s forfeited claim that the trial court violated his Sixth Amendment

public trial right. The Court of Appeals erred by concluding that defendant’s failure to

assert his Sixth Amendment right to a public trial necessarily “forecloses the later grant

of relief.”80

B. APPLICATION

As stated, in order to receive relief on his forfeited claim of constitutional error,

defendant must establish (1) that the error occurred, (2) that the error was “plain,” (3) that

the error affected substantial rights, and (4) that the error either resulted in the conviction

of an actually innocent defendant or seriously affected the fairness, integrity, or public

reputation of judicial proceedings.81

The first two prongs of the analysis are straightforward. In this case, the circuit

court ordered the courtroom closed before voir dire. The Supreme Court of the United

States has stated that “‘the party seeking to close the hearing must advance an overriding

interest that is likely to be prejudiced . . . .’”82 Because the circuit court failed to advance

“forfeiture.” Any invocation of the right to self-representation necessarily requires the

waiver of the right to counsel, which must be personal and knowing. See Faretta v

California, 422 US 806, 835; 95 S Ct 2525; 45 L Ed 2d 562 (1975). Similarly, by

choosing to make incriminating statements, a defendant necessarily waives the right

against self-incrimination.

80

Vaughn, 291 Mich App at 196.

81

Carines, 460 Mich at 763, citing Olano, 507 US at 731-734, 736-737.

82

Presley, 558 US at ___; 130 S Ct at 724, quoting Waller, 467 US at 48.

21

that type of interest before closing the courtroom, we conclude that an error occurred.83

We also conclude that the error was plain, that is, “clear or obvious.”84 It is readily

apparent from the record that the circuit court closed the courtroom during voir dire. It is

also “well settled” that the Sixth Amendment right to a public trial extends to voir dire.85

The third Carines prong requires a defendant to show that the error “affected

substantial rights.”86 For this prong to be satisfied, Olano requires the error to have

“affected the outcome of the . . . proceedings.”87 Similarly, this Court has stated that “the

proper interpretation of the term ‘prejudice’ in the context of issue preservation for plain

error may be equated with the longstanding state precedent of outcome determination.”88

Thus,

a plain, unpreserved error may not be considered by an appellate court for

the first time on appeal unless the error could have been decisive of the

outcome or unless it falls under the category of cases, yet to be clearly

defined, where prejudice is presumed or reversal is automatic.[89]

83

Although the court officer, not the circuit court, ordered spectators “to clear the

courtroom until after the selection of the new jury,” the court officer’s order came

immediately after the circuit court ordered the jury brought into the courtroom.

Accordingly, it is apparent from the record that the court officer’s action is attributable to

the court.

84

Carines, 460 Mich at 763.

85

Presley, 558 US at ___; 130 S Ct at 724.

86

Carines, 460 Mich at 765.

87

Olano, 507 US at 734.

88

People v Grant, 445 Mich 535, 553; 520 NW2d 123 (1994).

89

Id.

22

While the Supreme Court of the United States has specifically reserved judgment on

whether an unpreserved structural error automatically affects a defendant’s substantial

rights,90 this Court’s decision in People v Duncan has explained that structural errors “are

intrinsically harmful, without regard to their effect on the outcome . . . .”91 Accordingly,

our caselaw suggests that a plain structural error satisfies the third Carines prong.

Nevertheless, even if defendant can show that the error satisfied the first three

Carines requirements, we “must exercise . . . discretion” and only grant defendant a new

trial if the error “resulted in the conviction of an actually innocent defendant” or seriously

affected the fairness, integrity, or public reputation of judicial proceedings.92 Although

denial of the right to a public trial is a structural error,93 it is still subject to this

requirement.94 While “any error that is ‘structural’ is likely to have an effect on the

fairness, integrity or public reputation of judicial proceedings,” the plain-error analysis

requires us to “consider whether an error ‘seriously’ affected those factors.”95

90

See Puckett, 556 US at 140, quoting Arizona v Fulminante, 499 US 279, 310; 111 S Ct

1246; 113 L Ed 2d 302 (1991) (“This Court has several times declined to resolve whether

‘structural’ errors—those that affect ‘the framework within which the trial proceeds,’—

automatically satisfy the third prong of the plain-error test.”) (citation omitted).

91

Duncan, 462 Mich 51.

92

Carines, 460 Mich at 763. Because defendant has not argued that he is actually

innocent, we review his claim of error only with regard to whether his conviction

seriously affected the fairness, integrity, or public reputation of judicial proceedings.

93

Neder, 527 US at 8.

94

Barrows v United States, 15 A3d 673 (DC, 2011).

95

Id. at 679-680 (emphasis added).

23

The United States Court of Appeals for the Second Circuit has recognized that “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.”96

While the Second Circuit’s analysis “does not dismiss a defendant’s claim on the grounds

that the defendant was guilty anyway or that he did not suffer ‘prejudice’ or ‘specific

injury,’” it examines “whether the actions of the court and the effect that they had on the

conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of

the protections conferred by the Sixth Amendment.”97 The goals sought by these

protections include (1) ensuring a fair trial, (2) reminding the prosecution and court of

their responsibility to the accused and the importance of their functions, (3) encouraging

witnesses to come forward, and (4) discouraging perjury.98

In reviewing the closure of a courtroom during the first day of jury selection, the

Second Circuit determined that the third and fourth protected values were “not implicated

by voir dire because no witnesses testified.”99 The Second Circuit then analyzed the

remaining two protected values within the particular circumstances of the case before it

and concluded that “limiting presence at the voir dire proceedings to only the attorneys,

96

Gibbons v Savage, 555 F3d 112, 120 (CA 2, 2009).

97

United States v Gupta, 650 F3d 863, 867 (CA 2, 2011).

98

Peterson v Williams, 85 F3d 39, 43 (CA 2, 1996), citing Waller, 467 US at 46-47.

99

Gibbons, 555 F3d at 121.

24

judge, defendant, and prospective jurors for one afternoon did not subvert these

values.”100

A review of the circuit court transcript during defendant’s voir dire shows that

both parties engaged in a vigorous voir dire process, that there were no objections to

either party’s peremptory challenges of potential jurors, and that each party expressed

satisfaction with the ultimate jury chosen. Moreover, because “the venire is drawn from

the public itself,” individual veniremembers “remain public witnesses during much of the

voir dire proceedings, listening to the court’s questions and observing the conduct of

counsel, until such time as they are chosen for the jury, disqualified, or excused.”101

Thus, “the presence of the venire lessens the extent to which [the court’s] closure

implicates the defendant’s public trial right because the venire, derived from and

representative of the public, guarantees that the voir dire proceedings will be subject to a

substantial degree of continued public review.”102 Because the closure of the courtroom

was limited to a vigorous voir dire process that ultimately yielded a jury that satisfied

both parties, we cannot conclude that the closure “seriously affected the fairness,

100

Id.

101

Gupta, 650 F3d at 870.

102

Id. at 870-871. The concurring justice suggests that this Court’s acknowledgment of

this fact risks that “a defendant will never be able to satisfy the requirements to overcome

forfeiture under the plain-error analysis.” Post at 9. However, we do not hold that the

presence of other veniremembers is dispositive to the analysis of the fourth Carines

prong, only that it is relevant to that analysis.

25

integrity, or public reputation of judicial proceedings.”103 Defendant is not entitled to a

new trial on the basis of his forfeited claim of error.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

The Sixth Amendment also guarantees a criminal defendant’s right “to have the

Assistance of Counsel for his defence.”104 The Supreme Court of the United States has

recognized that “‘the right to counsel is the right to the effective assistance of

counsel.’”105 The right to the effective assistance of counsel is incorporated to the states

by the Due Process Clause of the Fourteenth Amendment.106

In Strickland v Washington, the Supreme Court of the United States stated that in

order to receive a new trial on the basis of ineffective assistance of counsel, a defendant

must establish that “counsel’s representation fell below an objective standard of

reasonableness”107 and that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”108

103

Carines, 460 Mich at 774.

104

Additionally, article 1, § 20 of the 1963 Michigan Constitution guarantees that a

criminal defendant “shall have the right . . . to have the assistance of counsel for his or

her defense . . . .” “[T]he intention underlying the Michigan Constitution does not afford

greater protection than federal precedent with regard to a defendant’s right to counsel

when it involves a claim of ineffective assistance of counsel.” Pickens, 446 Mich at 302.

105

Strickland, 466 US at 686, quoting McMann v Richardson, 397 US 759, 771 n 14; 90

S Ct 1441; 25 L Ed 2d 763 (1970).

106

Powell v Alabama, 287 US 45; 53 S Ct 55; 77 L Ed 158 (1932).

107

Strickland, 466 US at 688.

108

Id. at 694.

26

Defendant claims that his counsel’s failure to object to the courtroom’s closure during

voir dire entitles him to a new trial on the basis of ineffective assistance of counsel.

A. DEFICIENT PERFORMANCE PRONG

Defense counsel should be “strongly presumed to have rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment.”109 The inquiry into whether counsel’s performance was reasonable is an

objective one and requires the reviewing court to “determine whether, in light of all the

circumstances, the identified acts or omissions were outside the wide range of

professionally competent assistance.”110 This standard requires a reviewing court “to

affirmatively entertain the range of possible ‘reasons . . . counsel may have had for

proceeding as they did.’”111

The Court of Appeals panel did just that in reviewing defendant’s claim. The

panel reasoned that “[d]efendant’s trial counsel might have reasonably concluded that

proceeding with a jury voir dire that was closed to the public benefitted defendant”

because “[r]easonable trial counsel might conclude that the potential jurors will be more

forthcoming in their responses when the courtroom is closed, that the proceedings will be

less likely to be tainted by outside influences, or might simply find the procedure

preferable because it will expedite the proceedings.”112

109

Id. at 690.

110

Id.

111

Cullen v Pinholster, 563 US ___, ___; 131 S Ct 1388, 1407; 179 L Ed 2d 557 (2011),

quoting Pinholster v Ayers, 590 F3d 651, 692 (CA 9, 2009) (Kozinski, C.J., dissenting).

112

Vaughn, 291 Mich App at 197.

27

The Court of Appeals’ conclusion is consistent with the conclusion of the United

States Court of Appeals for the First Circuit that when analyzing an ineffective assistance

of counsel claim, “the strategic advantage that [defendant] received from the individual

voir dire taking place in private cannot be ignored.”113 Accordingly, we agree with the

Court of Appeals’ analysis and its conclusion that defendant is not entitled to relief on his

ineffective assistance of counsel claim.

B. PREJUDICE PRONG

Even if defendant had shown that counsel’s performance was objectively

unreasonable, defendant cannot show that he is entitled to relief on the second Strickland

prong, which requires this Court to determine whether “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different.”114

Defendant claims that a structural error automatically satisfies the second

Strickland prong. However, Strickland and a companion case, United States v Cronic,

articulated only a narrow class of situations in which prejudice is presumed for

ineffective assistance purposes: “when counsel was either totally absent, or prevented

from assisting the accused during a critical stage of the proceeding”115 or “when counsel

is burdened by an actual conflict of interest.”116 Otherwise, “actual ineffectiveness

113

Horton v Allen, 370 F3d 75, 82-83 (CA 1, 2004).

114

Strickland, 466 US at 694.

115

United States v Cronic, 466 US 648, 659 n 25; 104 S Ct 2039; 80 L Ed 2d 657 (1984).

116

Strickland, 466 US at 692.

28

claims alleging a deficiency in attorney performance are subject to a general requirement

that the defendant affirmatively prove prejudice” because “[t]he government is not

responsible for, and hence not able to prevent, attorney errors that will result in reversal

of a conviction or sentence.”117

Although this Court has not yet ruled on the issue, the United States Court of

Appeals for the Eleventh Circuit and the Georgia and Utah Supreme Courts have held

that an ineffective assistance of counsel claim premised on a structural public trial right

violation still requires a defendant to demonstrate actual prejudice.118 The Eleventh

Circuit explained:

We cannot dispense with the prejudice requirement for attorney error

of this type without defying the Supreme Court’s clear holding that except

in three limited circumstances, which are not present here, a defendant must

show that any error his counsel committed “actually had an adverse effect

on the defense.” [Strickland, 466 US at 693.] That means he must prove a

reasonable probability of a different result.[119]

The Eleventh Circuit elaborated on the concept of prejudice in applying that

requirement to the case before it, which involved an ineffective assistance of counsel

claim premised on the failure to object when the trial judge closed the courtroom for the

victim’s testimony:

[Defendant] cannot show that an objection from his counsel would

have caused the factfinder to have a reasonable doubt about his guilt. If

117

Id. at 693.

118

Purvis v Crosby, 451 F3d 734, 741 (CA 11, 2006); Butterfield, 784 P2d at 157; Reid v

State, 286 Ga 484, 487; 690 SE2d 177 (2010).

119

Purvis, 451 F3d at 741.

29

counsel had objected in a timely fashion and had persuaded the trial judge

not to partially close the courtroom, there is no reason to believe that would

have changed the victim’s testimony in a way which would have created a

reasonable doubt in the jury’s mind. The victim could just as well have

been a more sympathetic or credible witness if forced to testify publicly.

We do not know, and when we do not know the party with the burden

loses, and here that party is [defendant].

Against this logic [defendant] argues that an objection by his trial

counsel would have preserved the issue for appeal and led to a reversal of

his conviction, which would have been a different result from the

affirmance that occurred. There are two flaws with this argument. One is

its assumption that the trial judge would have overruled an objection if one

had been made. There is as much reason to believe that pointing out the

error of his ways to the trial judge would have caused him to mend those

ways, thereby depriving [defendant] of the issue on appeal. The second and

more fundamental flaw in this argument is that it focuses on the outcome of

the appeal, not of the trial. The Supreme Court in Strickland told us that

when the claimed error of counsel occurred at the guilt stage of a trial

(instead of on appeal) we are to gauge prejudice against the outcome of the

trial: whether there is a reasonable probability of a different result at trial,

not on appeal.[120]

However, the United States Courts of Appeals for the First and Eighth Circuits

have ruled that a structural error automatically satisfies the Strickland prejudice prong.121

The First Circuit criticized the Eleventh Circuit’s reasoning, explaining that its actual

prejudice requirement “is in tension with the Supreme Court’s pronouncement that

prejudice is presumed in cases of structural error not because the risk of prejudice is high,

but because it is impossible to determine the extent of the prejudice.”122

120

Id. at 738-739, citing Strickland, 466 US at 694-695.

121

Owens v United States, 483 F3d 48, 64 n 14 (CA 1, 2007); McGurk v Stenberg, 163

F3d 470, 475 (CA 8, 1998).

122

Owens, 483 F3d at 65 n 14.

30

We conclude that the Eleventh Circuit’s reasoning and conclusion is more

persuasive. Without distinguishing a properly preserved structural error for which

reversal is required from an error claimed as ineffective assistance of counsel, counsel

can harbor error as an appellate parachute by failing to object to the closure of trial,

thereby depriving the trial court of the opportunity to correct the error at the time it

occurs. Further, because this is not one of the three circumstances in which the Supreme

Court of the United States has held that trial counsel’s ineffective assistance

automatically results in Strickland prejudice, we conclude that an ineffective assistance of

counsel claim premised on either counsel’s waiver of or failure to object to the Sixth

Amendment right to a public trial requires a showing of actual prejudice before the

defendant is entitled to relief.

In this case, defendant does not claim that the courtroom’s closure during voir dire

affected the voir dire process and tainted the ultimate jury chosen. To the contrary,

defense counsel actively participated in the voir dire process and expressed satisfaction

with the composition of the jury and, thus, we must presume that the resulting jury was a

fair and neutral fact-finder. Because defendant cannot show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different,”123 he is not entitled to relief on his ineffective assistance of

counsel claim.

123

Strickland, 466 US at 694.

31

V. CONCLUSION

While a criminal defendant has the constitutional right to a public trial, that right is

forfeited when no objection is made at the time of the courtroom’s closure to members of

the public. As a forfeited claim of constitutional error, the defendant can obtain relief if

he shows that the court’s exclusion of members of the public during voir dire was “a

plain error that affected substantial rights” and that he either “is actually innocent or the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.”124 Because defendant has not made the required showing in this case, he is

not entitled to a new trial on his forfeited claim of error. Nor is he entitled to a new trial

on the basis of ineffective assistance of counsel because he has not shown that his

counsel’s performance was objectively unreasonable or that there was a reasonable

probability that any error affected the proceeding’s outcome. Accordingly, we vacate the

Court of Appeals’ opinion to the extent it is inconsistent with this opinion, affirm on

124

Carines, 460 Mich at 774.

32

alternative grounds the judgment of the Court of Appeals, and affirm defendant’s

convictions.125

Robert P. Young, Jr.

Stephen J. Markman

Mary Beth Kelly

Brian K. Zahra

125

Defendant raised several issues in his application for leave to appeal beyond the

limited scope of this Court’s order granting leave to appeal: that the trial court erred by

denying his motion to suppress the statement that he made to police, that the missing

lower court record deprived defendant of his right to appeal, and that counsel rendered

ineffective assistance by failing to challenge two jurors during voir dire, failing to call

two alibi witnesses, and failing to quash the information. The Court of Appeals

concluded that these claims of error were without merit, and we deny defendant’s

application for leave to appeal on these remaining issues because we are not persuaded

that the questions presented should be reviewed by this Court.

33

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 142627

JOSEPH LASHAWN VAUGHN,

Defendant-Appellant.

CAVANAGH, J. (concurring).

I concur in the majority’s result only. I agree with the majority’s conclusion that a

violation of the right to a public trial, including the right to public voir dire, is structural

error. Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999); Waller

v Georgia, 467 US 39, 49-50; 104 S Ct 2210; 81 L Ed 2d 31 (1984); Presley v Georgia,

558 US ___; 130 S Ct 721, 724; 175 L Ed 2d 675 (2010).1 The majority also correctly

1

Indeed, as the United States Supreme Court explained in Waller, 467 US at 49 n 9,

“[w]hile the benefits of a public trial are frequently intangible, difficult to prove, or a

matter of chance, the Framers plainly thought them nonetheless real.” Accordingly, in

the context of the right to public voir dire, MCR 8.116(D) establishes very limited

circumstances under which a court may close the courtroom. See, also, Waller, 467 US

at 48 (explaining that in order to close a courtroom, four requirements must be satisfied:

(1) the party seeking closure must advance an overriding interest that is likely to be

prejudiced by an open courtroom, (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).

In my view, these strict limitations on courtroom closure indicate the importance placed

on the right to a public trial, including voir dire under Presley, 558 US at ___; 130 S Ct at

724.

notes that neither this Court nor the United States Supreme Court has directly considered

whether a defendant can waive or forfeit the erroneous denial of the right to public voir

dire. Finally, I agree with the majority’s conclusion that the right to public voir dire is

not subject to waiver by silence and that the Court of Appeals erred by concluding

otherwise.

Although I agree with the majority that a structural error occurred in this case, I do

not agree with the majority that Johnson v United States, 520 US 461; 117 S Ct 1544;

137 L Ed 2d 718 (1997), definitively established that some structural errors may be

subject to a forfeiture analysis. Johnson applied plain-error review to the petitioner’s

argument that a structural error had occurred; however, Johnson reserved judgment on

whether the error at issue was actually structural in nature. Id. at 468-469. Moreover,

Neder, 527 US at 8-10, interpreted Johnson as holding that the error was not structural.

Thus, I disagree with the majority that, by arguing in favor of automatic reversal,

defendant in this case seeks an “exception” to the general rules for issue preservation.

Ante at 11.

Additionally, the majority misapplies this Court’s opinion in People v Duncan,

462 Mich 47; 610 NW2d 551 (2000), in analyzing whether the structural error in this case

requires automatic reversal. I think that Duncan must be closely considered at this step

of the analysis, particularly Duncan’s statement that

structural errors . . . are intrinsically harmful, without regard to their effect

on the outcome, so as to require automatic reversal. Such an error

necessarily renders unfair or unreliable the determining of guilt or

innocence. . . . [S]tructural errors deprive defendants of basic protections

without which a criminal trial cannot reliably serve its function as a vehicle

for determination of guilt or innocence. [Id. at 51-52 (citations omitted).]

2

In my view, Duncan accurately explains the “intrinsically harmful” nature of most

structural errors and, accordingly, whenever a structural error occurs, I believe the

potential need for automatic reversal should be given close consideration, even if the

error is unpreserved. The majority concedes that Duncan held that “‘[s]tructural

errors . . . are intrinsically harmful,’” but the majority claims that “this statement is

consistent with applying our forfeiture rules . . . .” Ante at 12 n 42. However, the

majority ignores that Duncan also explained that intrinsically harmful structural errors

“require automatic reversal” when such an error “renders unfair or unreliable the

determining of guilt or innocence.” Duncan, 462 Mich at 51 (emphasis added).

Similarly, the United States Supreme Court has explained that, although rare, some errors

are structural “and thus require[] automatic reversal.” Washington v Recuenco, 548 US

212, 218; 126 S Ct 2546; 165 L Ed 2d 466 (2006).2 Accordingly, because the error at

issue in this case is structural, and structural errors are generally subject to automatic

2

The majority also criticizes my preference for a general rule of automatic reversal for

structural errors with a citation to New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L

Ed 2d 560 (2000). As the majority states, Hill acknowledged that “certain fundamental

rights” require a personal and informed waiver by the defendant, i.e., automatic reversal.

Hill, 528 US at 114. The majority opinion could be read as arguing that Hill stands for

the proposition that the denial of the right to counsel and the right to plead not guilty are

the only errors that require automatic reversal. See ante 11 n 42. However, as the

majority later acknowledges in footnote 44 of its opinion, Hill clearly offers the denial of

those two rights as examples of errors requiring automatic reversal. Hill, 528 US at 114

(“For certain fundamental rights, the defendant must personally make an informed

waiver. See, e.g., Johnson v Zerbst, 304 US 458, 464-465; 58 S Ct 1019; 82 L Ed 1461

(1938) (right to counsel); Brookhart v Janis, 384 US 1; 7-8, 86 S Ct 1245; 16 L Ed 2d

314 (1966) (right to plead not guilty).”) (emphasis added). Thus, the majority opinion

should not be interpreted as limiting the scope of constitutional rights that require

automatic reversal to only the rights discussed in Hill.

3

reversal, Neder, 527 US at 8; Washington, 548 US at 218, I believe that there must be an

“exception” in order to apply plain-error review in this case.3

As the majority explains, denial of the right to public voir dire is a structural error,

but the United States Supreme Court has not “squarely considered whether the right [to

public voir dire] can be forfeited . . . .” Ante at 9. Thus, today we are faced with an issue

of first impression in our state and one that has not yet been directly addressed by the

United States Supreme Court.

Considerable tension exists in the available caselaw regarding whether the denial

of the right to a public trial requires automatic reversal. For example, several opinions

from the United States Supreme Court appear to indicate that denial of the right to a

public trial is structural error requiring automatic reversal. See, e.g., Washington, 548 US

at 218 (offering “denial of public trial” as an example of “an error [that] is structural, and

thus requires automatic reversal”), citing Waller, 467 US 39); and Neder, 527 US at 8

(same). On the other hand, as the majority explains, several opinions that consider more

directly the issue of an unpreserved claim of the denial of the right to public voir dire

have applied plain-error review. See, e.g., Barrows v United States, 15 A3d 673 (DC,

2011). And in United States v Agosto-Vega, 617 F3d 541, 547-548 (CA 1, 2010), the

court addressed a preserved claim of the denial of the right to public voir dire and held

3

See United States v Marcus, 560 US ___; 130 S Ct 2159, 2168; 176 L Ed 2d 1012

(2010) (Stevens, J., dissenting) (explaining that plain-error analysis “requires lower courts

to conduct four separate inquiries, each of which requires a distinct form of judgment and

several of which have generated significant appellate-court dissensus; the test may also

contain an exception for ‘structural errors,’ a category we have never defined clearly”)

(emphasis added).

4

that a new trial was required. What is particularly notable about Agosto-Vega is that the

court did not engage in a harmless-error analysis but instead apparently took the view that

denial of the right to public voir dire falls into the class of errors that defy harmless-error

analysis. Id.; see Arizona v Fulminante, 499 US 279, 309-310; 111 S Ct 1246; 113 L Ed

2d 302 (1991) (explaining that some errors “defy analysis by ‘harmless-error’

standards”). Agosto-Vega’s approach seems to be supported by United States v

Gonzalez-Lopez, 548 US 140, 148-149; 126 S Ct 2557; 165 L Ed 2d 409 (2006), in which

the United States Supreme Court identified the denial of the right to a public trial as a

“structural defect” that “def[ies] analysis by ‘harmless-error’ standards” because a

structural defect affects the “framework within which the trial proceeds” and is “not

simply an error in the trial process itself.” (Citation and quotation marks omitted.)

Accordingly, I find it difficult to square the notion that the denial of public voir dire

defies harmless-error standards and is thus subject to automatic reversal when preserved

because the resulting harm is “necessarily unquantifiable and indeterminate,” Sullivan v

Louisiana, 508 US 275, 282; 113 S Ct 2078; 124 L Ed 2d 182 (1993), but the same error

is nevertheless subject to plain-error analysis when unpreserved.4

4

Indeed, other courts have also struggled with this paradox. See United States v

Floresca, 38 F3d 706, 712 (CA 4, 1994) (concluding that the error at issue was structural

but nevertheless reluctantly applying plain-error review and stating that “[w]e apply

[United States v] Olano [507 US 725; 113 S Ct 1770; 123 L Ed 2d 508 (1993)] although

it is by no means clear that we should,” and that “[i]t is an open question as to whether

the absence of an objection requires further analysis when the alleged error goes to the

heart of the entire judicial process”). Thus, while the majority may be correct to rely on

implications in the available caselaw regarding the interplay between plain-error and

harmless-error analysis, it is nevertheless clear that courts understandably continue to

struggle with this unsettled issue.

5

Despite this tension in the caselaw, I think that Duncan accurately tied the

“intrinsically harmful” nature of structural errors to the effect of those errors on the

reliability of the trial’s determination of guilt or innocence. Duncan, 462 Mich at 51-52.

As the United States Supreme Court explained in Washington, structural errors generally

require automatic reversal because a structural error “‘necessarily render[s] a criminal

trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’”

Washington, 548 US at 218-219, quoting Neder, 527 US at 9 (alteration in original).

Accordingly, in the context of an unpreserved claim of a violation of the right to public

voir dire, if it can be shown that the ultimate determination of guilt remains reliable, I

agree with the majority that, under Michigan’s current law, the error may be examined

Another possible way to view the difficult issue presented by unpreserved

structural errors may be to conclude that structural errors require automatic reversal

because even if the plain-error analysis is applied, all four prongs will always be satisfied

when the error is structural. See, e.g., United States v Recio, 371 F3d 1093, 1103 n 7

(CA 9, 2004) (“[I]t is difficult to imagine a case where structural error will not satisfy

[the] fourth requirement [of the plain-error analysis].”); United States v Rodriguez, 406

F3d 1261, 1266 (CA 11, 2005) (Carnes, J., concurring) (“Because structural error, where

it exists, renders a criminal punishment fundamentally unfair, it would be difficult to

justify a conclusion that an error that is structural does not ‘seriously affect[] the fairness,

integrity or public reputation of judicial proceedings.’”) (citation omitted). But other

courts that have applied plain-error analysis to structural errors have concluded that not

all structural errors satisfy the fourth prong of the analysis. See, e.g., United States v

Vazquez, 271 F3d 93, 100 (CA 3, 2001); United States v David, 83 F3d 638, 647-648

(CA 4, 1996).

6

for plain error under People v Carines, 460 Mich 750; 597 NW2d 130 (1999), 5 because

“the remedy should be appropriate to the violation.” Waller, 467 US at 50.6

As for the majority’s application of the Carines plain-error factors, I agree that the

first two prongs—that an error occurred and the error was plain—are clearly established

in this case. As for the third prong, which requires a showing that the error “affected

substantial rights,” Carines, 460 Mich at 763, I believe that Duncan does more than

merely “suggest” that plain structural error is prejudicial. Although “this Court and the

United States Supreme Court have left open the possibility that there is a category of

errors for which the third prong of the plain-error standard is automatically met,” People

v Shafier, 483 Mich 205, 220 n 15; 768 NW2d 305 (2009), denial of the right to a public

trial is an error that must be presumed prejudicial because “a requirement that prejudice

be shown ‘would in most cases deprive [the defendant] of the [public-trial] guarantee, for

it would be difficult to envisage a case in which he would have evidence available of

5

Although I disagree with this Court’s adoption of the federal plain-error doctrine for the

reasons provided in People v Grant, 445 Mich 535, 554-557, 520 NW2d 123 (1994)

(LEVIN, J., concurring); and Carines, 460 Mich at 775-783 (MARILYN KELLY, J.,

dissenting), I nonetheless recognize that Carines is the law in Michigan, as I have done in

previous cases. See People v Shafier, 483 Mich 205, 219-224; 768 NW2d 305 (2009).

6

I agree with the majority that under Michigan’s current law, plain-error review is

applicable to denial of the right to public voir dire if no objection to the denial was

lodged. However, because structural errors are generally subject to automatic reversal,

Neder, 527 US at 8; Washington, 548 US at 218-219, and the caselaw illustrates the

uncertainty regarding when structural errors should be subjected to plain-error analysis,

the extension of plain-error analysis in this case is limited to only unpreserved structural

error that results from the improper denial of the right to public voir dire. Accordingly,

the majority’s opinion should not be broadly interpreted to extend plain-error review to

any other structural errors but instead should be limited to the circumstances of this case.

7

specific injury,’” Waller, 467 US at 49 n 9, quoting United States ex rel Bennett v Rundle,

419 F2d 599, 608 (CA 3, 1969) (alterations in original). Accordingly, “the defendant

should not be required to prove specific prejudice in order to obtain relief for a violation

of the public-trial guarantee.” Waller, 467 US at 49.

Although I disagree with the majority’s equivocal stance on the third prong of the

plain-error test with regard to the denial of the right to public voir dire, my primary

quarrel with the majority opinion is with the route it takes to support the conclusion that

the error did not seriously affect the fairness, integrity, or public reputation of judicial

proceedings. Carines, 460 Mich at 763. I do not agree that the presence of the venire is a

proper consideration in gauging the final prong of the plain-error analysis. Although the

veniremembers are members of the public, if that fact is relevant to the plain-error

analysis of the structural error at issue in this case, the right to public voir dire guaranteed

by Presley, 558 US at ___; 130 S Ct at 724, loses all meaning. Specifically,

veniremembers will always be present during voir dire; therefore, under the majority’s

approach, the prosecution will always be able to argue that the error did not seriously

affect the fairness, integrity, or public reputation of judicial proceedings independent of

the defendant’s innocence. Carines, 460 Mich at 763. Moreover,

[t]he long-established tradition of open voir dire contemplates ensuring that

members of the general public, external to the judicial process, have the

opportunity to observe the proceedings. As the Supreme Court found in

Press–Enterprise [Co v Superior Court of California, Riverside Co, 464 US

501, 506-507; 104 S Ct 819; 78 L Ed 2d 629 (1984)], “beginning in the

16th century, jurors were selected in public,” meaning that the doors of the

“towne house” or other “common place” were open to “so many as will or

can come so neare as to heare it.” By contrast, a voir dire is neither

“public” nor “open” if the only members of the public allowed to attend are

those who, having received juror summonses, are required to be there and

8

part of the judicial process itself. Indeed, if the presence of potential jurors

were sufficient to “safeguard[]” the values underlying the Sixth

Amendment, it would seem that spectators could always be excluded.

[United States v Gupta, 650 F3d 863, 876 (CA 2, 2011) (Parker, J.,

dissenting) (citation omitted).]

Thus, although the majority correctly rejects the prosecution’s argument that the right to

public voir dire is subject to waiver, by considering the presence of the venire, the

majority’s analysis risks essentially adopting the very rule that it purports to reject

because a defendant will never be able satisfy the requirements to overcome forfeiture

under the plain-error analysis.7

The majority contends that my concerns are merely overwrought hand wringing

because, under the majority’s approach, the venire’s presence is not “dispositive.” Ante

at 25 n 102 (emphasis omitted). However, by considering the venire’s presence at all, the

majority places a heavy thumb on the delicate scales of justice. Indeed, because the

venire will always be present during voir dire, the majority’s approach will always weigh

in favor of denying the defendant relief. Given the importance that the Framers placed on

the right to a public trial, Waller, 467 US at 49 n 9, I would not hamstring a defendant’s

efforts to vindicate that right by stacking the deck against the defendant before the

analysis even begins.

7

Moreover, the exclusion of a defendant’s family has been given special consideration in

this area of the law. See, e.g., Watters v State, 328 Md 38, 48; 612 A2d 1288 (1992)

(stating that excluding a defendant’s family deprives the family of the ability “to

contribute their knowledge or insight to the jury selection” and prevents the venire from

seeing the interested individuals); United States v Garland, 364 F2d 487, 489 (CA 2,

1966) (stating that “it [was] improper to exclude any portion of the public, particularly a

member of a defendant’s family” without sufficient justification) (emphasis added).

Relying on the venire alone to serve the purpose of public participation in the jury-

selection process ignores the unique role of a defendant’s family in the courtroom.

9

I agree with the majority, however, that concerns regarding the fairness, integrity,

and public reputation of the voir dire process under the facts of this particular case are

lessened by the fact that the circuit court transcript reveals that “there were no objections

to either party’s peremptory challenges of potential jurors, and that each party expressed

satisfaction with the ultimate jury chosen.” Ante at 25-26. “The purpose of voir dire is to

elicit enough information for development of a rational basis for excluding those who are

not impartial from the jury. . . . It is the only mechanism, and the only safeguard a

defendant has, for ensuring the right to an impartial jury.” People v Tyburski, 445 Mich

606, 618; 518 NW2d 441 (1994) (lead opinion by MALLETT, J.). The public’s

involvement in the voir dire process assists in effectuating the purpose of voir dire, in

part, because it allows the public to see that the defendant “is fairly dealt with and not

unjustly condemned” via selection of an unbiased jury. Waller, 467 US at 46 (citations

and quotation marks omitted). Moreover, “the presence of interested spectators may keep

[the defendant’s] triers keenly alive to a sense of their responsibility and to the

importance of their functions . . . .” Id. (citations and quotation marks omitted).

Although the transcript showing “a vigorous voir dire process,” ante at 25, does not

satisfy these goals as well as the actual presence of observers, it does at least provide

some assurance that the voir dire process served its purpose. Accordingly, when

weighing the fourth plain-error prong in relation to the improper denial of the right to

public voir dire, a court should rely most heavily on evidence indicating whether the

purpose of voir dire was satisfied. If relevant evidence is not available, or if the court is

10

left with serious concerns regarding whether the voir dire process served its purpose, the

court should not hesitate to conclude that the fairness, integrity, or public reputation of

judicial proceedings were seriously affected and that a new trial is required.

Michael F. Cavanagh

Marilyn Kelly

Diane M. Hathaway

11