# State v. Brown

> Supreme Court of Minnesota · July 3, 2012 · 815 N.W.2d 609

URL: https://www.frixlaw.com/law-library/cases/8246264

## Case

- **Full name:** STATE of Minnesota v. Jerrell Michael BROWN
- **Court:** Supreme Court of Minnesota
- **Decided:** July 3, 2012
- **Citations:** 815 N.W.2d 609; 2012 Minn. LEXIS 277; 2012 WL 2529435
- **Precedential status:** Published
- **Opinion:** Dissent by Meyer
- **Judges:** Anderson, Meyer, Paul
- **Cited by:** 60 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8246264

## How later opinions describe it (automated extraction)

- rejecting argument that locking doors during jury instructions violated Sixth Amendment because ”[t]he trial remained open to the public and press already in the courtroom and the trial court never ordered the removal of any member of the public, the press, or the defendant's …
- stating that if one prong of plain-error standard is not met, appellate courts need not analyze remaining prongs
- finding error trivial when judge locked courtroom during reading of jury instructions in order to keep the jury attentive
- finding error trivial when judge locked courtroom during reading ofjury instructions in order to keep the jury attentive
- stating that a plain-error claim may fail on any one prong

## Opinion text

MEYER, Justice
(dissenting).
I respectfully dissent. I believe that the trial court’s decision to close and lock the courtroom doors during jury instructions contravened the purposes of the public trial guarantee, requiring the district court to conduct an analysis pursuant to Waller v. Georgia, 467 U.S. 39, 45 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984). Because the trial court failed to articulate any reason to justify locking the doors for a portion of the trial under the Waller factors, I would remand the case to the postconviction court for an evidentiary hearing and findings in accordance with State v. Fageroos, 531 N.W.2d 199, 203 (Minn.1995). In reaching this conclusion, I first look to the standard for determining whether a courtroom closure has occurred, and then apply that standard to the facts in this case.
A.
The right to a public trial is guaranteed by both the United States and Minnesota Constitutions. See U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a ... public trial.”); Minn. Const, art. 1, § 6 (same); In re Oliver, 333 U.S. 257, 266-71 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948) (outlining the history *623 and purpose of public trials in the United States). The purpose of the public trial guarantee “ ‘is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’ ” Waller, 467 U.S. at 46 , 104 S.Ct. 2210 (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 , 99 S.Ct. 2898 , 61 L.Ed.2d 608 (1979)). A public trial encourages witnesses to come forward, discourages perjury, and provides a “meaningful assurance to an accused that he will be dealt with justly, protected not only against gross abuses of judicial power but also petty arbitrariness.” State v. Schmit, 273 Minn. 78, 86-88 , 139 N.W.2d 800, 806-07 (1966). All portions of a jury or bench trial are subject to the public trial guarantee, including suppression hearings conducted prior to the presentation of evidence to the jury and jury voir dire. See Presley v. Georgia, 558 U.S. 209 , 130 S.Ct. 721, 723-24 , 175 L.Ed.2d 675 (2010) (voir dire); Waller, 467 U.S. at 46-47 , 104 S.Ct. 2210 (pretrial suppression hearing); Oliver, 333 U.S. at 265 , 68 S.Ct. 499 (summary trial for contempt of court at a grand jury proceeding); see also Press-Enterprise Co. v. Superior Court of Cal., Riverside Cnty., 464 U.S. 501 , 509 n. 8, 104 S.Ct. 819 , 78 L.Ed.2d 629 (1984) (noting that the public trial guarantee is broader than double jeopardy protections because the fundamental openness requirement of the public trial guarantee spans all trial proceedings); State v. Lawrence, 167 N.W.2d 912, 915 (Iowa 1969) (“All authorities agree that, in the absence of legitimate reasons for limiting public attendance in criminal trials, the concept of public trial includes the entire trial from the impaneling of the jury to the rendering of its verdict.”).
The right to a public trial is not only for the accused, but also the public and the press, and is a fundamental part of Anglo-American jurisprudence. See Press-Enterprise, 464 U.S. at 507 , 104 S.Ct. 819 (“This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence. The presence of bystanders served yet another purpose according to Blackstone. If challenges kept a sufficient number of qualified jurors from appearing at the trial, ‘either party may pray a tales' ”) (quoting 3 W. Blackstone, Commentaries 364 (13th ed. 1800)); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 , 100 S.Ct. 2814 , 65 L.Ed.2d 973 (1980) (“[T]he historical evidence demonstrates conclusively that at the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather, it has long been recognized as an indispensable attribute of an Anglo-American trial.”).
In recent years, the Supreme Court has reaffirmed its strong protection of the public trial right, despite increasing encroachments by trial and appellate courts around the country. See Presley, 130 S.Ct. at 723-24 (holding that no part of the trial process is exempt from the public trial guarantee); see also Daniel Levitas, Comment, Scaling Waller: How Courts Have Eroded the Sixth Amendment Public Trial Right, 59 Emory L.J. 493 , 494 (2009) (arguing that despite the Supreme Court’s consistent reaffirmation of a robust right to a public trial, trial judges and appellate courts often remain “unwilling to enforce this fundamental right” and “persist in upholding improper courtroom closures”). In addition to this general guarantee, the Supreme Court has held that the presence at trial of family members and friends of the defendant holds special constitutional *624 import. Oliver, 338 U.S. at 271-72, 68 S.Ct. 499 (“[W]ithout exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” (footnote omitted)).
The public trial guarantee is an obligation of the trial court, and any party seeking to close the courtroom has the burden to advance an overriding interest in closure; it is not the burden of the defendant or any person seeking access to advance a justification for openness. As the Court said in Presley, “[tjrial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” 130 S.Ct. at 725 . Thus, it is irrelevant whether a defendant objects to the courtroom closure, because courts have an obligation to preserve the “presumption of openness [that] inheres in the very nature of a criminal trial under our system of justice.” Richmond Newspapers, 448 U.S. at 573 , 100 S.Ct. 2814 .
Despite this protection, our court has held that a trial court may avoid a Waller analysis when the “ ‘unjustified closure ... was too trivial to amount to a violation of the [Sixth] Amendment.’ ” State v. Lindsey, 632 N.W.2d 652, 660 (Minn.2001) (alterations in original) (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.1996)). A closure is too trivial to implicate the public trial guarantee when it does not impede the goals furthered by the guarantee. See Peterson, 85 F.3d at 43 (characterizing these goals as “1) to ensure a fair trial; 2) to remind the prosecutor and judge of their responsibility to the accused and the importance of their functions; 3) to encourage witnesses to come forward; and 4) to discourage perjury”). In evaluating these goals, relevant factors include the length of the closure, the people excluded from the courtroom, the subjects discussed during the closure, whether the trial court intended the closure to occur, and the justifications given by the trial court for closure. Accord United States v. Perry, 479 F.3d 885, 890-91 (D.C.Cir.2007); Carson v. Fischer, 421 F.3d 83, 93-94 (2d Cir.2005); Peterson, 85 F.3d at 43 .
A conclusion that the trial court’s decision to lock the doors for the duration of jury instructions implicates the public trial guarantee does not end the inquiry. Traditionally, courtroom closures that implicate the public trial right are divided into two categories: (1) total or complete closures and (2) partial closures. A total or complete closure occurs when all members of the public, including the press, are excluded from all or a significant portion of the trial. Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992) (noting that Waller involved “the total closure of a suppression hearing in which all persons other than witnesses, court personnel, the parties and their lawyers were excluded for the duration of the hearing”). A partial closure, on the other hand, occurs when only some, but not all, members of the public, usually in the form of a class of people (the press, children, etc.) or specific individuals, are excluded from the trial, or when the exclusion occurs for a limited portion of the trial, or when some combination of those exclusions occurs. Id. (describing the closure at issue as partial because it involved an exclusion of only members of the defendant’s family and only during the testimony of one witness). We have rejected any distinction between partial and total closures, requiring that the Waller framework apply to all courtroom closures. State v. Mahkuk, 736 N.W.2d 675, 685 (Minn.2007) (declining to apply the “substantial reason” test to partial closures). 1
*625 If the actions taken by a trial court implicate the public trial right, a trial court must apply the Waller standards before excluding the public:
“[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.”
Presley, 130 S.Ct. at 724 (quoting Waller, 467 U.S. at 48 , 104 S.Ct. 2210 ) (alteration in original). Trial courts are obligated to take these steps even when the parties do not themselves identify the relevant issues. Id. at 724-25 (“The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court’s precedents but also [because] the public has a right to be present whether or not any party has asserted the right.”). Thus, if the actions taken by the trial court in this case constitute a courtroom closure, then the court was required to consider alternatives to closure.
B.
Here, the trial court closed and locked the courtroom doors for the entire duration of the jury instructions. In doing so, the court said:
For the benefit of those in the back. I am about to begin giving jury instructions. While that is going on the courtroom is going to be locked and people are not going to be allowed to go in and out.
So, if anybody has to leave, now would be the time. You are welcome to s[t]ay. But I just want to make sure that everybody knows that the courtroom is going to be locked. We are all good? Deputy?
While the trial court’s colloquy indicates, that members of the public were present immediately prior to jury instructions, the record does not reflect whether any members of the public stayed for jury instructions. The record lacks evidence that any specific person attempted to enter after the doors were locked; Brown nevertheless argues that members of the public, including his family members and friends, were denied entrance during jury instructions. Additionally, the trial court did not give any reason why the courtroom doors needed to be locked, or identify any disruptions that justified locking the doors. The trial court also did not give prior notice during the trial that the doors would be locked for jury instructions such that Brown’s friends or family members, members of the press, or other members of the public knew in advance that they needed to be in the courtroom at the start of jury instructions in order to observe them.
I would hold that locking a courtroom such that the public may not enter or exit for any portion of a trial constitutes a partial courtroom closure that implicates *626 the public trial right. It seems to me that the concerns outlined here by the appellant mirror those in Presley: while there may be justifications for locking the doors during jury instructions, “[tjrial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” 130 S.Ct. at 725 . The act of locking the doors such that the public may not enter or exit for the duration of jury instructions certainly contravenes the “presumption of openness” at the heart of the public trial guarantee. Richmond Newspapers, 448 U.S. at 573 , 100 S.Ct. 2814 . This is especially true when the closure implicates a discrete portion of the trial process: in Presley, it was voir dire; here, it is jury instructions. See 130 S.Ct. at 724 . Thus, even though Brown did not object to the courtroom closure and the State did not argue for closure, the trial court was obligated under Waller to justify why a closure was necessary. Fageroos, 531 N.W.2d at 202 .
Instead of applying the “well settled” principles of Presley, 130 S.Ct. at 724 , the majority holds that Lindsey indicates that locking the courtroom doors during jury instructions was too trivial to implicate Brown’s public trial right. See Lindsey, 632 N.W.2d at 660 . The majority’s reasoning here is flawed. For one, the act of locking the doors to the courtroom is by definition a “closed” courtroom — it makes it impossible for the public to enter or leave. Second, the actions of the trial court in Lindsey are distinguishable: there, the trial court gave some articulation of the reason why specific spectators were excluded — the spectators at issue were minors and statutorily prohibited from observing. See id. at 657 . Here, the trial court did not exclude specific spectators for a justified reason and did not articulate any reason at all why the courtroom should be locked. Thus, it is not clear that the rationale of Lindsey is still controlling in light of Presley.
Even applying the Lindsey standard, the values of the public trial guarantee are sufficiently implicated under the facts of this case such that a Waller analysis is required. Discussing jury instructions implicates the public trial guarantees because doing so publicly reminds “the prosecutor and judge of their responsibility to the accused and the importance of their functions” and in ensuring a fair trial in general, though it does not implicate witness testimony or the prevention of perjury. Peterson, 85 F.3d at 43 . While not all spectators were excluded from the courtroom, the closure excluded any person who arrived at court after jury instructions began. Brown alleges that members of his family and the press may have arrived during the jury instructions and were denied access to the courtroom. The potential exclusion of Brown’s family members implicates the public trial right. Oliver, 333 U.S. at 271-72 , 68 S.Ct. 499 . The exclusion of family members, “ ‘even from part of a criminal trial, is not a step to be taken lightly.’ ” Carson, 421 F.3d at 91 (quoting Guzman v. Scully, 80 F.3d 772, 776 (2d Cir.1996)). The record does not establish whether Brown had other family members already present in the courtroom, whether those family members stayed through the jury instructions, and how many family members were excluded from being spectators.
Finally, in terms of the intention of the closure and justifications given, it is clear that this closure was not inadvertent: the trial court intended to close the courtroom. Additionally, the court did not give an administrative or order-based reason for locking the doors. The lack of any articulated justification for closure contravenes the goal of openness inherent in the public trial guarantee. See Presley, 130 S.Ct. at 725 . There is nothing in the record or asserted by the State that indicates that a *627 closure was necessitated here by the complexity of the charge, the confusion of the jury, or some other reason. Accord Scott, 564 F.3d at 38.
The majority focuses on the lack of evidence that any specific person was actually excluded from the courtroom. But as the Texas Court of Criminal Appeals recently held in finding a public trial violation, the focus on actual exclusion asks the wrong question:
When determining whether a defendant has proved that his trial was closed to the public, the focus is not on whether the defendant can show that someone was actually excluded. Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation “to take every reasonable measure to accommodate public attendance at criminal trials.”
Lilly v. State, No. PD-0658-11, 2012 WL 1314088 , at *7 (Tex.Crim.App. Apr. 18, 2012) (quoting Presley, 130 S.Ct. at 725 ).
Other courts have also concluded that impeding access by the public to the courtroom without justification implicates the public trial right. See, e.g., Walton v. Briley, 361 F.3d 431, 433 (7th Cir.2004) (concluding that holding court sessions late at night when the public could not access the courtroom violated the right to a public trial); Commonwealth v. Cohen, 456 Mass. 94 , 921 N.E.2d 906, 923 (2010) (holding that the placement of a “Do Not Enter” sign during jury selection implicated the public trial right because “[cjlosure by policy runs counter to the requirement that a court make a case-specific determination before a closure of any part of a criminal proceeding constitutionally may occur”); People v. Martin, 16 N.Y.3d 607 , 925 N.Y.S.2d 400 , 949 N.E.2d 491, 494-96 (2011) (holding that preventing defendant’s father from attending voir dire without adequate justification justified a new trial); State v. Bowen, 157 WashApp. 821, 239 P.3d 1114, 1120 (2010) (holding that moving voir dire into chambers such that the public could not access or observe proceedings violated the public trial guarantee); State v. Vanness, 304 Wis.2d 692 , 738 N.W.2d 154, 158-59 (Wis.Ct.App.2007) (holding that the right to a public trial was violated when the courthouse was locked for more than an hour of the trial). I would agree with the reasoning of these courts and hold that preventing the public from accessing Brown’s trial during jury instructions sufficiently implicated the public trial guarantee that it necessitated Waller findings.
In conclusion, I would remand to the district court for an evidentiary hearing on the issues of whether the press and Brown’s family attempted to enter the courtroom after the doors were locked and whether any member of the press or Brown’s family were excluded from the courtroom during the jury instructions. In doing so, the postconviction court should evaluate the factors outlined above and take evidence on such questions. See Fageroos, 531 N.W.2d at 201, 203 (remanding for an evidentiary hearing and findings because the courtroom closure was authorized by statute and not analyzed under the Waller factors). The postconviction court should also analyze the reasons for the courtroom closure and conduct a Waller analysis if required. See id. at 203; see also Presley, 130 S.Ct. at 725 (concluding that only one Waller factor need be violated to constitute structural error and justify a new trial).
. Many federal appellate courts, however, apply a modified Waller test to cases involving a *625 partial closure. Garcia v. Bertsch, 470 F.3d 748, 753 (8th Cir.2006) (noting that the Second, Eighth, Ninth, Tenth, and Eleventh Circuits all apply a less stringent "substantial reason” test instead of Waller in the case of a partial courtroom closure). In Mahkuk , I suggested that our court would be better served by following the federal standard and modifying the first prong of the Waller analysis in the case of partial courtroom closures. 736 N.W.2d at 691 (Meyer, J., concurring). Because "the defendant’s right to a public trial is less likely to be violated during a partial closure,” I would apply a modified Waller test in partial closures such as the one at issue here. Id. at 690. That being said, even under the "substantial reason” standard, I would conclude that a trial court that gives no reason for closing the courtroom during jury instructions, a critical stage of trial, has not advanced a substantial reason justifying closure.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8246264. Public record. Not legal advice.