Michael Earls v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Apr 16 2012, 8:17 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
VICTORIA L. BAILEY GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MICHAEL EARLS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1108-CR-754
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Steven R. Eichholtz, Judge
The Honorable Michael Jensen, Magistrate
Cause No. 49G20-0911-FB-92701
April 16, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Michael Earls appeals from his conviction for Class B felony
Dealing in Cocaine,1 contending that the exclusion of the public during one witness’s
testimony amounted to reversible error. We affirm.
FACTS AND PROCEDURAL HISTORY
On November 3, 2009, Indianapolis Metropolitan Police Detectives Richard
Wilkerson and Craig Wildauer went to the home of Norris Griffin. Norris permitted the
uniformed detectives into his home, inside which they observed drug paraphernalia in
plain view. Norris allowed the detectives to search his house, a search that produced a
handgun. When Norris agreed to cooperate with police, the detectives called in Detective
Brad Ball.
After speaking with Detective Ball, Griffin agreed to attempt to arrange for drug
dealers to sell him cocaine at his house that night. The detectives moved their vehicles
away from the house, and Griffin made four telephone calls attempting to arrange a
cocaine sale. Earls returned one of Griffin’s calls, informed him that he had cocaine to
sell, and arrived at the house shortly thereafter. When Griffin gave a prearranged verbal
signal, police emerged and confronted Earls, who dropped a package that was later tested
and determined to hold 1.1885 grams of cocaine-containing substance.
On November 4, 2009, the State charged Earls with Class B felony dealing in
cocaine and Class D felony cocaine possession. Before trial, the following exchange
regarding Griffin’s upcoming testimony took place:
1
Ind. Code § 35-48-4-1 (2009).
2
THE COURT: Is there anything else we need to take care of before
we go to copying the instructions and finish getting ready?
MS. RAY: Yes, your honor. Before – at one point when the
confidential informant testifies, the State is going to be asking to clear the
courtroom. We have had issues, the confidential informant has had issues
of gunshots near or at his house. He has been called “snitch” by multiple
people recently, and like within the last year, people around the
neighborhood ask him about this case. And we would ask to clear the
courtroom – the gallery of any defense family or friends.
THE COURT: Ms. Devane?
MS. DEVANE: Judge, I think that’s up to the Court’s discretion.
All courtrooms are open to the public as the court well –
THE COURT: Right.
MS. DEVANE: – knows. There are exceptions. I’m not sure this
falls under one of them. I think it’s up the discretion of the Court as to
whether or not it does. I have no knowledge nor reason to believe that Mr.
Earls was to communicate anything to this individual. This case has been
going on two years, but – and he was out for a long time – for a time.
THE COURT: For a time.
MS. DEVANE: A very long time, but it’s up – I would just leave it
to the discretion of the Court.
THE COURT: Okay. So there has been actual comments made
about this particular case?
MS. RAY: Yes. The confidential informant has been questioned by
various individuals – never the defendant, but he has been questioned by
numerous people about his testimony, about his role in this case. I think he
said last week someone drove by him, “snitch” out the window at him.
And there were gunshots near his house prior to the last jury setting, with
the week before his last jury setting.
THE COURT: All right. Well, due to the fact that it was apparently
aimed right at this case, the harassment, I’m going to grant the State’s
request. I think there are special circumstances here. It’s just not general
issues, but issues related to this particular case. So I’ll have the gallery
members, if you move – obviously defendant gets to stay – but the
spectators we’ll ask to be removed, and we’ll close the courtroom during
that one witness’s testimony. All right.
MS. DEVANE: So if his mother or father come in, they can stay? I
don’t think they’re going to be here, I think his father had to work.
DEFT. EARLS: My father is right here.
MS. RAY: I don’t know who was making accusations or asking
about this case. I would ask that the defendant’s family or friends be
excluded.
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THE COURT: I’m going to excluded everybody, then, since we
have no idea who’s making the threats.
MS. DEVANE: That’s fine, Your Honor.
Tr. pp. 24-26. A jury found Earls guilty as charged, and the trial court entered judgment
on the Class B felony dealing in cocaine count only. On August 2, 2011, the trial court
sentenced Earls to eighteen years of incarceration.
DISCUSSION AND DECISION
Whether the Exclusion of the Public During
Griffin’s Testimony Constituted Fundamental Error
Earls contends that his Sixth Amendment right to a public trial was violated when
the trial court excluded all spectators during Griffin’s testimony. The Sixth Amendment
to the United States Constitution provides, in part, that “[i]n all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial[.]”
The right to a public trial has long been recognized as a fundamental
right of the accused. [In Re] Oliver, 333 U.S. [257,] 266–67, 68 S.Ct.
[499,] 504 [(1948)]; Hackett [v. State], 266 Ind. [103,] 109, 360 N.E.2d
[1000,] 1004 [(1977)]. It helps ensure a fair trial because “the presence of
interested spectators may keep [the accused’s] triers keenly alive to a sense
of their responsibility and to the importance of their functions….” Waller
[v. Georgia], 467 U.S. [39,] 46, 104 S.Ct. [2210,] 2215 [(1984)] (quoting
Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61
L.Ed.2d 608 (1979) (in turn quoting Oliver, 333 U.S. at 270 n.25, 68 S.Ct.
at 506 n.25)). It protects the accused by allowing the public to assess the
fairness of the proceedings. In addition, it encourages witnesses to come
forward, and discourages perjury. Waller, 467 U.S. at 46, 104 S.Ct. at
2215.… However, [the defendant’s right to public trial is not] absolute.
Complete or partial exclusion of the public may be justified if a court finds
“that closure is essential to preserve higher values and is narrowly tailored
to serve that interest. The interest is to be articulated along with findings
specific enough that a reviewing court can determine whether the closure
order was properly entered.” Waller, 467 U.S. at 45, 104 S.Ct. at 2215
(quoting Press–Enterprise [Co. v. Superior Court of California], 464 U.S.
[501,] 510, 104 S.Ct. [819,] 824 [(1984)]). See also Hackett, 266 Ind. at
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110, 360 N.E.2d at 1004 (exclusions may be justified by a legitimate
purpose that furthers the integrity of the judicial process, so long as there is
a sufficient record supporting the court’s exercise of discretion). Examples
of valid exclusions include forbidding the televising of a public trial, Estes
v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and
protecting a witness fearful of retaliation by those attending the trial,
Hackett, 266 Ind. at 110, 360 N.E.2d at 1004; Kendrick [v. State], 661
N.E.2d [1242,] 1242 [(1996)].
Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (brackets around “the accused’s” in
Williams, all others supplied). “[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, 467 U.S. at 48.
Applying the Waller factors, we conclude that the record is sufficient to support
the trial court’s exclusion of the public during Griffin’s testimony. The State requested
the closure because of concern for Griffin’s safety, a legitimate interest that may justify a
courtroom closure. See, e.g., Williams, 690 N.E.2d at 167. The record indicates that
Griffin had been called “snitch” by “multiple people” shortly before trial, had been asked
by numerous persons about his upcoming testimony, and had heard gunshots “near or at
his house” within a week before a prior trial setting. In our view, the term “snitch” is
pejorative enough that its use under the circumstances here may reasonably be considered
a threat (especially when shouted out the window of a passing vehicle). And, while the
gunshots may not have had anything to do with Earls’s case, we cannot say that it would
be completely unreasonable to think that there might have been some connection.
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The record is also sufficient to demonstrate that the closure was no broader than
necessary and that the trial court considered reasonable alternatives to closure. As the
trial court noted, only a complete closure of the courtroom during Griffin’s testimony
would suffice because the persons threatening Griffin were unknown. Moreover, the trial
court considered and rejected Earls’s request that his parents be allowed to stay, a request
that while not unreasonable on its face, was rendered unreasonable by the lack of
knowledge concerning the source of the threats. We conclude that the trial court did not
abuse its discretion in clearing the courtroom during Griffin’s testimony.2
The judgment of the trial court is affirmed.
VAIDIK, J., and CRONE, J., concur.
2
The State notes that Earls failed to object to the closure and argues that he waived the claim for
appellate review. The State also argues that any error the trial court may have made was harmless. Earls
contends that a claim of denial of the right to public trial neither can be waived nor is subject to harmless
error analysis because it always constitutes “structural error” such that prejudice is presumed. Because
we find the record sufficient to justify the trial court’s limited closure, we leave these questions for
another day.
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