Robinson v. State

*112 GREENE, J.,

dissenting.

Essentially, the trial judge had concerns that members of Cecil Robinson’s (“Robinson”) family were discussing the case in the hallway in the presence of potential jurors and that Robinson’s sister might have tried to intimidate one of the State’s witnesses or suborned perjury. The trial judge questioned Susan Price, Robinson’s seventeen year-old sister about her conversation with one of the State’s witnesses:

THE COURT: Seventeen. Susan, it’s been brought to my attention by members of the State’s Attorney’s Office that you went into the State’s Attorney’s Office and attempted to talk to one of the State’s witnesses.

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me, ma'am. And encouraged them not to tell the truth. Now if this [is] in fact true....

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me. If that is, in fact, true, that is a crime, but additionally you were instructed that you were not to have any contact with any of the witnesses. So what business you had going into the State’s Attorney’s Office, I don’t know. I am just bringing this to your attention as a result of what has been reported to me.

[APPELLANT]: What’d you say, Susan? •

THE COURT: Mr. Robinson

MS. PRICE: I just wanted to say hi to her.

THE COURT: Mr. Robinson, excuse me, Mr. Robinson.

MS. PRICE: Cause that’s my friend from school.

THE COURT: As I said, excuse me, excuse me. Did you not under [stand], what part of you cannot have contact with any of the witnesses did you not understand.

MS. PRICE: I didn’t know that, you didn’t say that before I left.

THE COURT: Excuse me, Ms. Robinson, Ms. Price. All right, what I’m going to end up doing is I’m excluding the entire family from the courtroom! Now I don’t know where *113 they’re going to go that they don’t have contact with anybody else in this case.

As the majority points out, “the court discussed with the courtroom personnel the possibility of placing the family spectators in a separate courtroom by themselves, away from the public.” After directing Susan Price to go and sit with her mother, the mother addressed the trial judge about the order requiring them to leave the courtroom:

MS. THOMAS: Your Honor?

THE COURT: I don’t want to hear from anybody. Everyone’s going to be, you’re going to leave the courtroom. I have to find some place to put you all.

MS. THOMAS: Right.

THE COURT: Where you will not interfere with this case today.

MS. THOMAS: I understand, Your Honor, I was just saying she had said that before.

THE COURT: Okay, I don’t want to hear, maybe what you’re doing is not malicious, Ms. Thomas, but I just don’t think you all understand....

MS. THOMAS: No, I understand, I do.

THE COURT: Nor respect the decorum that is needed in this particular proceeding. So it’s better to just put you all out of the courtroom. So with that said, Pm just going to get you all to leave the courtroom, I just need one of the deputies to maybe sit out there with them, to make sure, I don’t know, just to make sure they’re not talking to anybody inappropriately.... So why don’t you all have a seat out there. Just going to have a deputy sit out there with you so if you end up wandering into some conversation that you shouldn’t be having.

MS. THOMAS: Can they sit out there and I’ll sit in, I won’t say anything. I just....

THE COURT: Everybody’s sitting out there. He’s not a juvenile any more. Everybody sit on out there. Maybe if you behave well, in the next hour or two, Ms. Thomas, I’ll *114 reconsider, but right now. Everybody in the back, I want everybody out.

UNIDENTIFIED: We not his family.

THE COURT: I don’t care, you’re out.

The above excerpts from the record reveal that the trial judge excluded Robinson’s entire family from the courtroom, as well as at least two other spectators. According to the trial judge, the exclusion was necessary to prevent those persons excluded from interfering with the proceedings. Nothing happened, however, in the presence of the trial judge to support the trial judge’s restriction on access to the trial, and the judge made no factual findings, as to matters that occurred outside her presence, that would have supported such an overly broad restriction on access to the trial. Thus, in my opinion, the trial court’s overly broad order of exclusion constituted a violation of Robinson’s right to a public trial under the Sixth Amendment.

A. The Right to a Public Trial is Fundamental and cannot be Waived by Inaction

The majority holds that because Robinson failed to object to the removal of his family members and other spectators from the courtroom, at the time of the trial, the issue as to denial of his right to a public trial is not preserved for appellate review. 410 Md. 91, 102 , 976 A.2d 1072, 1079 (2009). Citing Maryland Rule S-lBRa), 1 the majority maintains that the law required Robinson to make a timely objection at trial, and that the failure to make such an objection bars him from obtaining review of the claimed error. 410 Md. 91, 103-04 , 976 A.2d 1072, 1079-80 (2009). Essentially, failure to raise an objec *115 tion, in the view of the majority, results in waiver or forfeiture of the right. 410 Md. 91, 106-07 , 976 A.2d 1072, 1081 (2009).

The United States Supreme Court and this Court, however, have both held that, in the case of certain fundamental rights, mere inaction is not enough to constitute waiver-some affirmative, knowing and intelligent action is required. See Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461, 1466 (1938) (“[Cjourts indulge every reasonable presumption against waiver of fundamental constitutional rights and ... we do not presume acquiescence in the loss of fundamental rights. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”) (internal quotations and citations omitted); Schneckloth v. Bustamonte, 412 U.S. 218, 242 , 93 S.Ct. 2041, 2055 , 36 L.Ed.2d 854, 871 (1973) (“The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial.”); Knox v. State, 404 Md. 76 , 945 A.2d 638 (2008) (holding that waiver of the fundamental right to counsel must be knowing and intelligent); Smith v. State, 375 Md. 365 , 825 A.2d 1055 (2003) (holding that waiver of the right to trial by jury must be intentional).

The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution. 2 This right is a fundamental element of our criminal justice system, working the dual roles of ensuring fairness and justice to the defendant and encouraging witnesses to come forward and discourage perjury. Waller v. Georgia, 467 U.S. 39, 46 , 104 S.Ct. 2210, 2215 , 81 L.Ed.2d 31, 38 (1984). In Carter v. State, 356 Md. 207, 215 , 738 A.2d 871, 875 (1999), this Court discussed the history of the right, acknowledging “the historical significance, and critical function, that a public trial serves in the administration of justice.”

*116 The right to a public trial is not unlimited. Proceedings may be closed if the closure is in pursuit of an overriding interest. See Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 , 104 S.Ct. 819, 824 , 78 L.Ed.2d 629, 638 (1984); see also Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 , 102 S.Ct. 2613, 2620 , 73 L.Ed.2d 248, 258 (1982) (“[S]afeguarding the physical and psychological well-being of a minor is a compelling [interest].”); Smith v. Hollins, 448 F.3d 533, 539 (2nd Cir.2006) (acknowledging the compelling interest of protecting the anonymity of undercover police officers); Wisconsin v. Ndina, 315 Wis.2d 653 , 761 N.W.2d 612, 629 (2009) (allowing for removal of defendant’s family members when they violated the court’s order to sequester witnesses). There is a specific process, however, that must be followed before a trial may be closed to 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.

Waller v. Georgia, 467 U.S. at 48 , 104 S.Ct. at 2216 , 81 L.Ed.2d at 39 .

Given the importance and historical significance of the right to a public trial, and the specific process required for overriding that right, more than mere inaction should be required for the waiver of this fundamental right. Maryland courts have not affirmatively ruled on this issue, but the reasoning of other jurisdictions is persuasive:

It is, however, insisted by counsel for the state that because no objection or exception was entered or taken by the appellant at the time of the trial the error, if any, cannot now be taken advantage of. With this we do not agree. In the case of State v. Crotts, 22 Wash. 245 , 60 P. 403 (1900), which decided that the action of the trial court in commenting on the facts in a criminal case being an invasion of the constitutional rights of the accused, such action may be reviewed on appeal, although no exception or objection was *117 interposed at the time, it was said: “Where the constitutional right has been invaded, it has been held by this court that no failure of objection or exception should stand in the way of considering errors based on the violation of such provisions.”

State v. Marsh, 126 Wash. 142 , 217 P. 705, 706 (1923) (discussing the right to a public trial when an adult defendant was convicted and sentenced in a private hearing that was closed to the general public, with only his parents and social service representatives present).

The right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and by Section 10, Article I of the Ohio Constitution. Although Bethel did not object to the closing of the hearing, the right to a public trial under Section 10, Article I of the Ohio Constitution cannot be waived by the defendant’s silence.

State v. Bethel, 110 Ohio St.3d 416 , 854 N.E.2d 150, 170 (2006).

There is no evidence in the record that Robinson affirmatively waived his right to a public trial. Nothing less than a knowing and intelligent waiver of the right to a public trial should exempt the trial court from engaging in the required analysis. Therefore, Robinson did not waive the right to challenge the trial court’s action by failing to object at the time of the order. The question of whether Robinson’s rights were violated is properly before this Court.

B. This Court May Exercise Discretion Under Rule 8-131(a) and Decide Unpreserved Issues

Alternatively, even if the issue was not properly preserved, this Court can exercise discretion under Rule 8-131 (a) and choose to rule on the merits of Robinson’s case. As cited above, Rule 8-131 (a) states:

[ojrdinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the *118 trial court or to avoid the expense and delay of another appeal.

Thus, pursuant to Rule 8-131 (a), we have discretion to decide an issue that may not have been preserved below. See State v. Bell, 334 Md. 178, 188 , 638 A.2d 107, 113 (1994) (“[A]n appellate court’s review of arguments not raised at the trial level is discretionary, not mandatory. The use of the word ‘ordinarily’ clearly contemplates both those circumstances in which an appellate court will not review issues if they were not previously raised and those circumstances in which it will.”); Gindes v. Khan, 346 Md. 143, 151 , 695 A.2d 163, 167 (1997) (holding that while preservation is the ordinary rule, it is not absolute, and that appellate courts have discretion to consider issues raised for the first time on appeal).

As the plain language of the rule allows for exceptions, the question becomes whether this is a scenario where the Court should exercise discretion. In deciding this question in the past, this Court has stated that:

[t]here is no fixed formula for the determination of when discretion should be exercised.... We have, however, laid out in prior cases, by explanation and example, principles to guide the courts when consideration of unpreserved issues might be proper....

* * * *

First, the appellate court should consider whether the exercise of its discretion will work unfair prejudice to either of the parties.

Second, the appellate court should consider whether the exercise of its discretion will promote the orderly administration of justice.

Jones v. State, 379 Md. 704, 713-15 , 843 A.2d 778, 784 (2004). In Conyers v. State, the Court explained:

The few cases where we have exercised our discretion to review unpreserved issues are cases where prejudicial error *119 was found and the failure to preserve the issue was not a matter of trial tactics.... We usually elect to review an unpreserved issue only after it has been thoroughly briefed and argued, and where a decision would (1) help correct a recurring error, (2) provide guidance when there is likely to be a new trial, or (3) offer assistance if there is a subsequent collateral attack on the conviction.

354 Md. 132, 150-51 , 729 A.2d 910, 919-20 (1999).

In Carter v. State, this Court recognized that the denial of a public trial is “structural error,” meaning it “affect[s] the framework within which the trial proceeds, rather than simply [being] an error in the trial process itself.” 356 Md. 207, 224 , 738 A.2d 871, 880 (1999) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302, 331 (1991)). Because of this fundamental defect, and citing Waller v. Georgia, the Court went on to say that “while ‘benefits of the public trial are frequently intangible, difficult to prove, or a matter of chance, the Framers plainly thought them nonetheless real,’ and opined that ‘the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.’ ” Carter, 356 Md. at 224 , 738 A.2d at 880 . The Carter Court also relied on a Third Circuit opinion, United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir.1969), which held that a petitioner was presumed to have been prejudiced by the court’s decision to close the trial to the public.

This presumption of prejudice cuts in favor of this Court exercising its discretion to hear unpreserved issues. Normally the “orderly administration of justice” requires that parties make their positions known at trial to avoid prejudice in bringing up new arguments at a later point. Exercising discretion in this case, however, would not prejudice either party. Indeed, failure to decide this question will allow prejudice to Robinson to continue unchecked.

In addition, ruling on the merits of the issue will provide direction to the trial courts, clarifying the requirement that, before an individual’s right to a public trial is limited, the *120 court must engage in the Waller analysis required by the United States Supreme Court. Waller v. Georgia, 467 U.S. at 48 , 104 S.Ct. at 2216 , 81 L.Ed.2d at 39 . This issue is also likely to appear in a post-conviction proceeding. Deciding the merits at this point will avoid further appeals. “[Rule 8-131(a)] allows us to consider a matter not addressed in the lower court if it would aid the trial court on remand or prevent another appeal.” Montgomery County Bd. Of Educ. v. Horace Mann Ins. Co., 154 Md.App. 502, 518-19 , 840 A.2d 220, 230 (2003), aff'd 383 Md. 527 , 860 A.2d 909 (2004).

Therefore, this issue is one that is properly before this Court and should be decided on the merits.

C. Robinson’s Right to a Public Trial was Violated When the Trial Judge Excluded Members of Robinson’s Family and Others from the Trial

The United States Supreme Court and this Court have made clear that the right to an open and public trial is vital to the fair administration of justice. See Waller v. Georgia, 467 U.S. at 46 , 104 S.Ct. at 2215 , 81 L.Ed.2d at 38 (“The central aim of a criminal proceeding must be to try the accused fairly, and ‘[o]ur cases have uniformly recognized the public-trial guarantee as one created for the benefit of the defendant.’ ”); Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 508 , 104 S.Ct. 819, 823 , 78 L.Ed.2d 629, 637 (1984) (“No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused’s right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.”); In re Oliver, 333 U.S. 257, 270 , 68 S.Ct. 499, 506 , 92 L.Ed. 682, 692 (1948) (“Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.”); Carter v. State, 356 Md. 207, 214 , 738 A.2d 871, 874 (1999) (“The right to a public trial ... is deeply rooted in the English common law tradition to promote fairness and public confidence in criminal proceedings, upon which our *121 system of justice is based.”); Watters v. State, 328 Md. 38 , 612 A.2d 1288 (1992).

This right, however, is not without its limits. “[T]he Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.” Waller v. Georgia, 467 U.S. at 45 , 104 S.Ct. at 2215 , 81 L.Ed.2d at 38 . Because the right to a public trial is so essential to the criminal justice system, the process for restricting this right is rigid:

LTjhe 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.

Waller, 467 U.S. at 48 , 104 S.Ct. at 2216 , 81 L.Ed.2d at 39 . The record of the trial judge’s decision to exclude Robinson’s family and other spectators from the trial does not meet this four-part test: (1) an overriding interest likely to be prejudiced; (2) narrowly tailored closure; (3) consideration of reasonable alternatives; and (4) findings adequate to support the closure.

The state’s interest in protecting the integrity of legal proceedings is certainly an overriding interest. 3 See Wiscon *122 sin v. Ndina, 315 Wis.2d 653 , 761 N.W.2d 612, 629 (2009) (“[Disruptions within the courtroom may be viewed as a justification for a trial court’s order excluding family members from the trial ....”); see also United States v. Hernandez, 608 F.2d 741, 747 (9th Cir.1979) (“The right to a public trial ‘has always been interpreted as being subject to the trial judge’s power to keep order in the courtroom. Were this not so a public trial might mean no trial at all at the option of the defendant and his sympathizers.’ ”) (quoting United States ex rel. Orlando v. Fay, 350 F.2d 967, 971 (2nd Cir.1965)). Indeed, the parties do not dispute that the trial judge had a duty to ensure the fairness and credibility of the proceedings. Failure to meet the remaining three elements of the Waller test is where the trial court erred.

The specific allegations of improper contact with witnesses only extended to Robinson’s sister. The trial judge failed to make findings on the record to support the decision to exclude the rest of the family and other unidentified spectators. This indicates that the exclusion order was not narrowly tailored to address the specific problem at hand. There is no evidence that the trial judge considered reasonable alternatives, such as excluding only those individuals who had engaged in inappropriate behavior. Robinson’s mother requested that she be allowed to remain even if the rest of the family was excluded. The trial judge denied the mother’s request without explanation. In Yung v. Walker, 341 F.3d 104, 111 (2nd Cir.2003), the Second Circuit held that,

Waller prevents a court from denying a family member’s request to be exempted from a courtroom closure order unless the court is convinced that the exclusion of that particular relative is necessary to protect the overriding interest at stake. Indeed, it would be an unreasonable interpretation of Waller for a court to deny such a request if the exclusion of that particular relative, under the specific *123 circumstances at issue, is not necessary to promote the overriding interest.

Without specific findings on the record, it is impossible to determine whether the exclusion order was narrowly tailored to the identified problem. Therefore, the trial court erred in failing to engage in the Waller analysis required before infringing on Robinson’s right to a public trial.

D. Remedy

As mentioned above, the denial of a public trial is a structural error. Carter v. State, 356 Md. 207 , 738 A.2d 871 (1999). Case law indicates that structural errors are not subject to a harmless error analysis because

[tjhose cases ... contain a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Such errors “infect the entire trial process” and “necessarily render a trial fundamentally unfair.” Put another way, these errors deprive defendants of “basic protections” without which “a criminal trial cannot reliably serve its function as a vehicle lor determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.”

Neder v. United States, 527 U.S. 1, 8-9 , 119 S.Ct. 1827, 1833 , 144 L.Ed.2d 35, 46-47 (1999).

In such a situation, the remedy is to remand for a new trial. “When we have determined that the denial of a public trial has occurred, we have held that a new trial, rather than remand to supplement the record, is the proper remedy.” Carter, 356 Md. at 224 , 738 A.2d at 880 . Therefore, Robinson’s conviction should be reversed and the case remanded to the Circuit Court for Caroline County for purposes of a new trial.

Chief Judge BELL and Judge BATTAGLIA authorize me to state that they join in this dissenting opinion.

. Md. Rule 8-131(a): ‘‘Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.”

. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ...” U.S. Const. Amend. VI.

. The Court of Special Appeals recently held in Longus v. State, 184 Md.App. 680, 689-90 , 968 A.2d 140, 146 (2009) that when a closure is partial, i.e. "where only certain persons are barred from the courtroom during a particular witness’s testimony” as opposed to complete closure, the trial court must find only a “substantial reason” as opposed to an "overriding interest” to justify the closure. In reaching that result, the intermediate appellate court relied upon federal and other state court cases that have modified the first requirement of the Waller test and adopted the "substantial reason" standard. See Id. at 689-90 nn. 2-3, 968 A.2d at 146 nn. 2-3. This Court has not yet adopted this standard. In the present case, it is not necessary to decide which test is more appropriate in cases involving a partial closure because under either test, the trial judge should make the appropriate findings of fact. *122 In this case, the record does not reveal facts that were compelling, nor did the trial judge make the necessary factual findings to support a partial closure.