State v. Coons , 2023 ND 115 ( 2023 )

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
JUNE 21, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 115State of North Dakota, Plaintiff and Appellee
v.
Susan Kaye Coons, Defendant and Appellant
No. 20220289
Appeal from the District Court of Ward County, North Central Judicial
District, the Honorable Gary H. Lee, Judge.
REVERSED.
Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and
Justice Bahr joined. Justice Crothers filed a dissenting opinion, in which
Justice McEvers joined.
Tiffany M. Sorgen, Assistant State’s Attorney, Minot, N.D., for plaintiff and
appellee.
Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.
State v. Coons
No. 20220289
Tufte, Justice.
[¶1] Susan K. Coons appeals from a criminal judgment finding her guilty of
forgery, in violation of N.D.C.C. § 12.1-24-01(1)(b). She argues the district court
erred by closing the courtroom without making sufficient findings and making
a prejudicial and biased statement in front of the jury. We reverse.
I
[¶2] During jury selection, the district court informed the jury panel that the
potential jurors had the option to speak with the court “in private” in a separate
room if they had information to share that might be embarrassing or intrusive.
After general questioning of the panel, the court, Coons, the attorneys for both
Coons and the State, and an officer met in a private room and conducted
individual questioning of three prospective jurors on the record. Coons argues
on appeal that this procedure for individual questioning constituted a trial
closure and violated her right to public trial.
[¶3] At trial, defense counsel asked a witness about a probate proceeding in
which Coons had been involved. The district court interjected, commenting
that “[y]our client lost in the probate proceeding,” and prevented further
testimony about the proceeding. On appeal, Coons argues that this statement
demonstrated bias and prejudice against her.
II
[¶4] Coons argues that the district court violated her right to public trial
under the Sixth Amendment of the United States Constitution. When
considering a claimed violation of the right to a public trial,
we first consider whether the claim of error was preserved at trial.
We then consider the threshold question of whether there was a
closure implicating the public trial right. If we determine there
was a closure, we determine whether the trial court made pre-
closure Waller findings sufficient to justify the closure.
1
State v. Davis-Heinze, 2022 ND 201, ¶ 4, 982 N.W.2d 1 (quoting State v.
Pendleton, 2022 ND 149, ¶ 4, 978 N.W.2d 641). This Court reviews a trial
court’s Waller findings for clear error and “its application of the law to those
findings de novo.” State v. Martinez, 2021 ND 42, ¶¶ 3, 19, 956 N.W.2d 772(citing State v. Rogers, 2018 ND 244, ¶ 3, 919 N.W.2d 193). “‘[T]he Sixth
Amendment public trial right attaches from the beginning of adversarial
proceedings through sentencing.’” Id. at ¶ 19 (quoting State v. Morales, 2019
ND 206, ¶ 16, 932 N.W.2d 106). The defendant bears the burden of
demonstrating a public trial violation occurred. State v. Frederick, 2023 ND 77,
¶ 7, 989 N.W.2d 504.
[¶5] This Court reviews forfeited errors for obvious error. Id. (citing
N.D.R.Crim.P. 52(b)). To establish obvious error, the appellant must
demonstrate “(1) an error, (2) that was plain, and (3) affected his substantial
rights.” Davis-Heinze, 2022 ND 201, ¶ 6. The structural error doctrine applies
to the public trial right. Rogers, 2018 ND 244, ¶ 5. “A structural error is a
‘defect affecting the framework within which the trial proceeds, rather than
simply an error in the trial process itself.’” Id. at ¶ 4 (quoting Johnson v. United
States, 520 U.S. 461, 468 (1997)). When the claim of error is one of structural
error, the appellant need not demonstrate element three of obvious error, that
the error affected his substantial rights, because such errors “defy analysis by
harmless-error standards.” Davis-Heinze, 2022 ND 201, ¶ 7 (cleaned up).
III
A
[¶6] During general questioning of the panel, one prospective juror indicated
she preferred to respond to a question in private. That juror and two other
prospective jurors indicated they knew something about the case, and the
district court and both attorneys agreed to defer further questioning of those
jurors. Coons did not object to the court’s stated intent to hold further
questioning in a separate room. Although there was no objection or other
indication of disagreement with the court’s procedure for private questioning,
Coons did not waive her right to a public trial according to the requirements
we described in Martinez. 2021 ND 42, ¶ 18. On this record, we conclude Coons
2
did not preserve the claimed public trial error at trial, nor did she waive it. We
review this forfeited error for obvious error. Id. at ¶ 4.
B
[¶7] The right to a public trial applies during jury selection. Presley v.
Georgia, 558 U.S. 209, 213-14 (2010) (per curiam). A typical public trial claim
asserts the public was excluded from the courtroom where the trial was being
held. Frederick, 2023 ND 77, ¶ 8. In contrast, here the trial proceedings were
removed from the public courtroom to a different room. For the reasons stated
below, we conclude there was a closure for purposes of the public trial right
because individual questioning of prospective jurors occurred in private
without opportunity for public observation.
[¶8] Addressing a First Amendment claim, the United States Supreme Court
explained that individual questioning of jurors described by the trial court as
“in private” was a closure triggering constitutional scrutiny. Press-Enterprise
Co. v. Superior Court of Cal., 464 U.S. 501, 503 (1984). In that case, three days
of general questioning were conducted in open court while six weeks of
individual questioning of prospective jurors were closed to the public. Id. When
a prospective juror indicates a belief that a response will be damaging or
embarrassing, the individual “may properly request an opportunity to present
the problem to the judge in camera but with counsel present and on the record.”
Id. at 512. The Court explained, however, that such a “limited closure” must be
no broader than necessary and supported by adequate findings. Id. The Sixth
Amendment right at issue here is “no less protective” than the First
Amendment right at issue in Press-Enterprise. Martinez, 2021 ND 42, ¶ 39.
[¶9] The District of Columbia Court of Appeals wrote that jury selection
conducted in open court is not a closure but a reasonable alternative to closure
even if some members of the public have an obstructed view, or if the court
employs a “husher” to prevent some in attendance from hearing what is being
said. Blades v. United States, 200 A.3d 230, 238-41 (D.C. 2019). The court
distinguished this procedure from a closure because individual questioning
was held “within the view” of the public. Id. at 239-40 (concluding this process
is an alternative to closure rather than a closure subject to the requirements
3
of Waller). “When questioning occurs at the bench, the public can still observe
the proceedings, thus furthering the values that the public trial right is
designed to protect, and can hear the general questions posed to the jury
panel.” Id. at 238 (cleaned up); see also Copeland v. United States, 111 A.3d
627, 633 (D.C. 2015) (“Appellant cites no authority, and we can find none,
holding that the practice of conducting a limited amount of individual [jury
selection] at the bench with a ‘husher’ on violates a defendant’s right to a public
trial.”).
[¶10] “[C]ourts have found there to be full or partial courtroom closures only
where some or all members of the public are precluded from perceiving
contemporaneously what is transpiring in the courtroom, because they can
neither see nor hear what is going on.” Blades, 200 A.3d at 239. The court cited
five cases in support of this proposition. Id. (citing Presley, 558 U.S. 209; Cable
News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987); Barrows
v. United States, 15 A.3d 673, 679 (D.C. 2011); Williams v. United States, 51
A.3d 1273, 1283 (D.C. 2012) (perceiving “no difference of significance for Sixth
Amendment purposes between excluding the public from the courtroom during
voir dire, as in Presley and Barrows, and removing the voir dire proceedings
from the courtroom to another location from which the public is excluded”);
ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir. 2004) (concluding that individual
questioning of prospective jurors in a private room with a transcript available
the next day was a closure triggering constitutional scrutiny)). See also
Copeland, 111 A.3d at 633 (explaining that a closure occurs when the court
excludes persons from the courtroom during jury selection or by moving
portions of jury selection outside of the courtroom “to a location not observable
by the public, such as a jury room”).
[¶11] In State v. Morales, we considered two California appellate cases which
distinguished between peremptory challenges held in open court and in view
of the public, which was not a closure, and similar proceedings held in
chambers, which was a closure. 2019 ND 206, ¶ 17. In People v. Harris, the
appellate court concluded the trial court closed the defendant’s trial by holding
the peremptory challenge portion of jury selection in chambers. 10 Cal. App.
4th 672, 682-687, 12 Cal. Rptr. 2d 758 (1992). The court stated that the
4
proceedings were not “public” for purposes of the public trial right because a
record of the proceedings was later made available to the public. Id. at 684. In
contrast, the court in People v. Williams distinguished Harris and concluded
no closure had occurred because the parties first made preemptory challenges
in public view at sidebar and then announced them to the open court. 31 Cal.
Rptr. 2d 769, 772-73 (Cal. App. Dep’t Super. Ct. 1994) (citing Harris, generally).
[¶12] Massachusetts appellate courts have concluded similarly regarding a
defendant’s public trial right under the Sixth Amendment of the United States
Constitution. Com. v. Grant, 940 N.E.2d 448, 454 (Mass. App. Ct. 2010). In
Grant, the court initially conducted jury selection in an open courtroom and
asked the venire members if any of them had any bias towards or knew the
parties to the case and whether serving on the jury would pose a hardship. Id.
at 450. Some potential jurors answered affirmatively, and the court conducted
individual questioning in chambers. Id. at 451. These proceedings were
transcribed, and only the judge, prosecutor, and defense counsel were present.
Id. at 451, 454. The court concluded that “[c]onducting the individual
questioning in the judge’s chambers constituted a full closure in the
constitutional sense.” Id. at 454-55. See also Com. v. Jaynes, 55 Mass. App. Ct.
301, 311-13, 770 N.E.2d 483 (2002) (concluding courtroom closure for
individual questioning was supported by sufficient findings on the required
factors).
[¶13] Here, the district court initially conducted jury selection on the record
and in open court. During questioning of the panel, the parties and court
agreed to visit with three prospective jurors in private after each indicated a
desire to answer certain questions in private or indicated prior knowledge of
the case which prompted an objection to further public questioning. The State
argues that no closure occurred because the court conducted the individual
questioning “outside the hearing of the rest of the jury pool so as to not
prejudice the remaining venire” and because no member of the jury pool was
asked to exit the courtroom. The transcript shows individual questioning
occurred in a separate room, rather than simply outside the hearing of the
panel. At the beginning of jury selection, the court told the panel that if any of
them had sensitive information that they did not want to share “in front of the
5
whole group,” then they had the option of going into “another courtroom just
across the hall there” where they could share their information “in private.”
After general questioning of the panel in the courtroom, the court explained
that it was going to conduct individual questioning “with some of the
prospective jurors in private. We’ll go to the room across the way.… But we
should be back in no more than about 10 or 15 minutes.”
[¶14] Although it is possible the district court could have conducted individual
questioning in a different public courtroom, the court’s repeated
characterization of those proceedings as “private” is sufficient on appeal to
establish that they were what the court said they were: private as opposed to
public. These statements would reasonably communicate to anyone present
that they were not welcome to follow to the other courtroom in order to continue
observing the proceedings. By referring to the brief proceedings in the other
room as “in private,” the court committed essentially the same error we
identified in Martinez, 2021 ND 42, ¶¶ 29-32, using the other courtroom as
private chambers for jury selection. We conclude this record shows there was
a closure because the court conducted individual jury selection in a different
room announced to the public as “in private” and thus not open to the public.
Press-Enterprise Co., 464 U.S. at 512.
C
[¶15] Because the district court closed part of Coons’ trial, we must consider
whether the court sufficiently considered the Waller factors. See Rogers, 2018
ND 244, ¶ 14; Davis-Heinze, 2022 ND 201, ¶ 4. These factors are:
(1) the claiming party must advance an overriding interest that is
likely to be prejudiced, (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) it must
make findings adequate to support the closure.
Rogers, at ¶ 15 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). “Trial courts
are strictly required to make findings before a trial closure, and failure to make
each of the findings requires reversal.” Martinez, 2021 ND 42, ¶ 22 (citing
Rogers, at ¶ 19). Although we require findings sufficient to satisfy Waller, we
6
do not necessarily require that the court expressly references that or any other
case so long as the findings themselves are sufficient. See State v. Modtland,
970 N.W.2d 711, 721-723 (Minn. Ct. App. 2022). Here, the court did not refer
to Waller or generally to the threshold requirements before closing a trial
proceeding but did make some findings that we now consider under the Waller
framework.
1
[¶16] To satisfy the first Waller factor, the district court must find “an
overriding interest that [would likely have been] prejudiced” without the
closure. Waller, 467 U.S. at 48. “The presumption of openness may be overcome
only by an overriding interest based on findings that closure is essential to
preserve higher values and is narrowly tailored to serve that interest.” Press-
Enterprise Co., 464 U.S. at 510. A defendant’s right to a fair trial is such an
overriding interest. Morales, 2019 ND 206, ¶ 21 (citing Rogers, 2018 ND 244,
¶ 14); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 393 (1979); Waller, at 45
(dicta). “To preserve fairness and at the same time protect legitimate privacy,
a trial judge should inform the prospective jurors, once the general nature of
sensitive questions is made known to them, that those individuals believing
public questioning will prove damaging because of embarrassment, may
properly request an opportunity to present the problem to the judge in camera
but with counsel present and on the record.” Press-Enterprise Co., 464 U.S. at
502. A prospective juror has an interest in avoiding disclosure of deeply
personal and legitimately private matters. Cable News Network, Inc. v. United
States, 824 F.2d 1046, 1048 (D.C. Cir. 1987). This interest is distinct from the
defendant’s right to a fair trial, which would be implicated by a juror’s
reluctance to disclose personal knowledge about the defendant that may
influence the other jurors if answered in their presence.
[¶17] Here, the district court articulated its reasoning that Coons’ fair trial
right was an overriding interest and was likely to be prejudiced without a
closure of the proceedings. The district court informed the potential jurors that
they had the option to answer questions in a different room if they didn’t want
to share certain information in front of the whole jury panel. The court
conducted individual jury selection of potential juror numbers 11, 15, and 18.
7
[¶18] In open court, Juror 15 requested to talk in private and stated that she
had previously heard information about the case. Defense counsel objected to
further questioning to prevent juror taint, and the court sustained. In open
court, Juror 18 stated that he had previously read about the case. The State
inquired whether he had any preconceived notions about the case when defense
counsel objected to prevent juror taint, and the court deferred further
questioning on the topic until it could be addressed in private. Finally, Juror
11 stated that he also had read about the case, and the State, the defense
counsel, and the court agreed to visit with Juror 11 in private for the same
reason as with Jurors 15 and 18.
[¶19] The record shows the district court closed the proceedings to protect
Coons’ fair trial right, and the fact that defense counsel objected to further
questioning while in front of the other jurors and thus avoiding tainting the
entire pool supports the fact that Coons’ fair trial right was the interest
asserted in support of closing part of the proceedings. The district court
articulated sufficient reasoning to support an overriding interest under Waller
factor one.
2
[¶20] Second, “the closure must be no broader than necessary to protect that
interest.” Waller, 467 U.S. at 48. Whenever a trial court requires a “prospective
juror to make an affirmative request [to speak in private], the trial judge can
ensure that there is in fact a valid basis for [an overriding interest that is likely
to be prejudiced]. This process will minimize the risk of unnecessary closure.”
Press-Enterprise Co., 464 U.S. at 512. To analyze whether a closure is no
broader than necessary to protect the asserted overriding interest, the court
must evaluate the breadth of closure against the overriding interest it
identified in step one. Whether individual questioning is requested to avoid
potential embarrassment to a juror or instead to avoid tainting the entire pool
may justify a different scope of closure.
[¶21] Before beginning voir dire, the district court made this statement to the
entire panel:
8
The lawyers get to ask you some questions about further
qualifications. These are not meant to be embarrassing or
intrusive. They’re meant to be informative. If a lawyer asks you a
question that you don’t want to share in front of the whole group,
we can go—there’s another courtroom just across the hall there.
We can go over there, and we can talk to you in private, so please
keep that in mind. And as I say, they’re meant to be informative,
not intrusive.
[¶22] This context shows the district court’s statement to jurors that they could
talk with the court and counsel in private was to avoid their being asked
embarrassing or intrusive questions in a public setting. That offer of privacy
was very different from the objection leading to the separate interviews of three
jurors—that the defense did not want to contaminate the entire jury pool. The
record quoted above clearly supports this conclusion for Jurors 11 and 18
because they were interviewed separately only after responding to a question
about their knowledge of facts, and only after an objection from the defense.
[¶23] Initially, the record is less clear regarding Juror 15. But after review, it
too is clear the entire separate discussion with Juror 15 related to her
knowledge of potentially criminal conduct committed by Coons. To start with,
the defense objected to Juror 15 openly responding to a question about what
she might have heard about the case. The following dialog occurred:
MR. BOUGHEY: Your Honor, at this time, I think we should delay
any further inquiry. We were already planning on visiting with this
person outside the presence of the panel. I think she’s treading on
dangerous waters and could really goof things up if we continue on
this line of questioning.
THE COURT: I believe that’s a[n] objection that’s well taken. We’ll
visit with Juror 15 in private. She’s already asked that we do that.
The early record does not explicitly state why Juror 15 was already being
questioned outside the presence of the panel before the defense objection. The
purpose and subject matter of Juror 15’s request is made clear by what followed
during questioning while in the second courtroom:
9
MR. BOUGHEY: Well, I’ll just cut [to] the chase. You had
mentioned you had concerns, and you wanted to visit outside the
presence of the panel, which is what we’re doing now. What were
those concerns?
PROSPECTIVE JUROR NO. 15: I didn’t want to say it in front of
everybody because I didn’t want to—
MR. BOUGHEY: Of course.
PROSPECTIVE JUROR NO. 15: —sway anybody’s opinion, but I
do believe she forged my friend’s notary stamp, so.
[¶24] Taken in context, and when accounting for the details of the objections,
only one reason existed for the separate questioning. The three jurors were
interviewed in a separate courtroom to avoid contaminating the remaining jury
pool. The separate interviews were for protection of the jury pool, and not to
avoid embarrassing individual jurors by disclosure of deeply personal or
embarrassing information. The district court may protect an overriding
interest in avoiding contamination of the entire pool without closing the
proceedings to the public, but only the other potential jurors needed to be
excluded from the individual questioning.
[¶25] Here, the district court conducted private individual questioning of three
potential jurors whose testimony in open court indicated that their answers to
a question risked tainting the jury pool. The court treated the situation as if it
were to avoid embarrassing or intrusive questions, as suggested by its general
instructions, rather than to avoid tainting the pool, as the juror’s initial
responses indicated. The district court failed to satisfy Waller’s requirement
that any closure be no broader than necessary because the record shows the
court conducted this questioning “in private” outside the presence of the public
and the rest of the jury pool, when only the rest of the jury pool needed to be
excluded to protect the interest in a fair trial.
3
[¶26] Trial courts are obligated to consider reasonable alternatives to closing
a proceeding and “take every reasonable measure to accommodate public
10
attendance at criminal trials.” Presley, 558 U.S. at 214-15. Here, the district
court initially informed the potential jurors that the court could conduct
private jury selection in a courtroom across the hall if any of them had
information that they did not want to share in open court. The record shows
that the court conducted much of jury selection in open court. It ceased to do
so only when a potential juror requested to speak in private or indicated prior
knowledge of the case. The court announced that it would visit “in private”
with three prospective jurors for “no more than about 10 or 15 minutes.” It is
the court’s obligation to consider alternatives to closure even when the parties
do not suggest any. Presley, 558 U.S. at 214; Minot Daily News v. Holum, 380
N.W.2d 347, 350 (N.D. 1986). Here, the district court narrowed the closure to
include only a brief portion of jury selection using a procedure approved by the
United States Supreme Court to protect against juror embarrassment. Press-
Enterprise, 464 U.S. at 511-13. But the court erred by failing to consider
alternatives to closure in the context of an overriding interest in avoiding
contamination of the jury pool rather than an interest in avoiding juror
embarrassment. Here, the jurors indicated they had information that should
not be shared in front of the rest of the prospective jurors because it was about
the defendant or the case and not because it was personal or embarrassing.
4
[¶27] We conclude that the district court’s findings were sufficient to show an
overriding interest but that the court’s limited consideration of the scope of
closure and failure to consider alternatives to closure were erroneous.
Although the court identified one interest that may support closure, it did not
narrowly tailor to that interest. We conclude this error is obvious error.
IV
[¶28] Although the public trial error we identified in the previous section is
sufficient to reverse the conviction, we address Coons’ claim of bias, because if
meritorious, it may require assignment of a different judge on retrial. See State
v. Craig, 2019 ND 123, ¶¶ 8-10, 927 N.W.2d 99. Coons argues that during her
trial the district court made a prejudicial and biased statement that the jury
could have used as evidence to convict her. She did not raise the issue of judicial
11
bias at trial. “‘The failure to raise the issue of judicial bias in the trial court
precludes our review on appeal.’” Wisnewski v. Wisnewski, 2020 ND 148, ¶ 65,
945 N.W.2d 331 (quoting Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991)).
The court may, however, review an unpreserved claim of judicial bias for
obvious error. State v. Majetic, 2017 ND 205, ¶¶ 13-15, 901 N.W.2d 356 (citing
State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). “‘[W]e exercise the
power to notice obvious error cautiously and only in exceptional circumstances
where the defendant has suffered serious injustice.’” Majetic, at ¶ 14 (quoting
Tresenriter, at ¶ 12). Error is obvious when the appellant demonstrates (1) an
error, (2) that was plain, and which (3) affected his substantial rights. Id. at
¶ 15 (citation omitted).
[¶29] Coons argues that the district court prejudiced her trial by making a
prejudiced and biased statement against her. At the trial, defense counsel
asked a witness about a civil proceeding that Coons was a party to, and the
trial court sustained a relevance objection. Immediately thereafter, defense
counsel again inquired about the civil case, and the court interjected: “Let me
stop this. That probate file, that is over. It’s done. Your client lost in the probate
proceeding, and she did not appeal it. It is a final judgment.” Coons now argues
that this statement is evidence of bias or prejudice. We disagree. We conclude
the trial court was ensuring that the trial would proceed efficiently and not
deviate into irrelevant or collateral matters.
[¶30] A trial court has great discretion over how to conduct a trial and to keep
“questioning within bounds” “where counsel for the defendant [goes] into
collateral and immaterial matters.” State v. Bilbrey, 349 N.W.2d 1, 4 (N.D.
1984) (citing Haugen v. Mid-State Aviation, Inc., 144 N.W.2d 692, 696 (N.D.
1966)). A trial court may remind counsel to refrain from further incursions into
collateral and immaterial matters. Majetic, 2017 ND 205, ¶ 25 (quoting State
v. Foard, 355 N.W.2d 822, 823-24 (N.D. 1984)). See also N.D.R.Ev. 403 (a trial
court has discretion to exclude relevant but confusing, time-wasting, or
cumulative evidence).
[¶31] Here, the district court was explaining its basis for halting further
questioning into the civil proceeding and keeping the trial in bounds. Before
trial, the court sent a letter to the parties announcing that it was uncertain
12
about how much they should discuss the civil or probate code in Coons’ criminal
trial. On the first day of trial, outside the jury’s presence, the court explained
that it wanted to avoid introducing discussion of civil law in a criminal trial to
prevent juror confusion.
[¶32] After the district court made the statement, which Coons argues was
biased or prejudiced, the court stated, “We’ve had these discussions outside the
presence of the jury and I’ll say it now. I don’t know how far we can get into
these civil matters, and I don’t want this to become a trial within the trial of
the civil proceeding.” Here, the trial court’s comments were not biased or
prejudiced against Coons, but the court was keeping the witness interrogation
“within bounds.” Bilbrey, 349 N.W.2d at 4; N.D.R.Ev. 403. We conclude these
statements do not establish bias and thus there was no error, obvious or
otherwise.
V
[¶33] Coons also argues the trial judge violated Rule 605, N.D.R.Ev., by acting
as a witness at the trial. Because we reverse on the basis of the public trial
violation, we need not reach this argument.
[¶34] We reverse the judgment.
[¶35] Jon J. Jensen, C.J.
Jerod E. Tufte
Douglas A. Bahr
Crothers, Justice, dissenting.
[¶36] I respectfully dissent from the majority’s holding Coons has shown she
was denied her right to a public trial. I do not join the majority’s decision the
district court did not make prejudicial or biased statements in front of the jury
because that portion of the decision is not likely to reoccur on remand and
therefore is dicta.
13
[¶37] The resolution of this case turns on the judge’s meaning of the word
“private,” and whether his use of that word as a matter of law commands a
conclusion that limited voir dire of three potential jurors was not open to the
public. On this record, I do not agree with the majority’s conclusion it does. See
majority opinion, ¶ 14 (“Although it is possible the district court could have
conducted individual questioning in a different public courtroom, the court’s
repeated characterization of those proceedings as ‘private’ is sufficient on
appeal to establish that they were what the court said they were: private as
opposed to public.”).
[¶38] The appellant bears the burden of establishing her rights were violated.
In the context of a public trial claim, this Court held:
We now clarify that an appellant bears the burden of proving this
error. See State v. Rademacher, 2023 ND 9, ¶ 8, 984 N.W.2d 660(quoting L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 799) (“On
appeal, the appellant bears the burden of showing error.”); see also
Commonwealth v. Williams, 401 N.E.2d 376, 378 (Mass. 1980)
(“The burden is clearly on the defendant to demonstrate that the
public was excluded from his trial[.]”); Cameron v. State, 490
S.W.3d 57, 69 (Tex. Crim. App. 2014), on reh’g (Mar. 2, 2016)
(noting “the burden to show that a trial is closed to the public is on
the defendant”). In the instance of an alleged public trial violation,
this means the appellant must demonstrate the public was
excluded from a proceeding and the proceeding was of a nature
that the public had a right to be present.
State v. Frederick, 2023 ND 77, ¶ 7, 989 N.W.2d 504.
[¶39] Here, Coons failed to establish that the public was excluded from the
limited separate voir dire of three potential jury members. Rather, she
assumes, and the majority agrees it is possible, that is what happened. See
majority opinion, ¶ 14. However, Coon’s duty on appeal is to do more than
assume—she “must demonstrate the public was excluded from a proceeding”
before she can obtain appellate review of the claimed constitutional error.
Frederick, 2023 ND 77, ¶ 7.
14
[¶40] The jury selection transcript confirms the district court offered to discuss
any “embarrassing or intrusive” matters “in private.” The transcript also
confirms the separate voir dire of three potential jurors actually was conducted
to avoid contaminating the larger jury pool, rather than to discuss a juror’s
intimate or embarrassing matters.
[¶41] Voir dire of the three prospective jurors was held in a separate courtroom
“across the hall” from where the remaining jury pool was assembled. The
district court moved to the other courtroom to separately voir dire three jurors
regarding what they knew about the case. Notwithstanding the actual and
known reason for the separate voir dire, much is made of the district court’s
use of the phrase “in private,” seemingly to suggest the “private” discussions
support a conclusion the district court improperly excluded the public from the
second courtroom. See majority opinion, ¶¶ 2, 8, 13, 14, 25 and 26.
[¶42] Because the separate interviews were for protection of the jury pool, and
not to avoid embarrassing individual jurors by disclosure of intimate or
salacious information, I do not believe it is reasonable to infer the district court
conducted “private jury selection” from which the public was excluded. See
majority opinion, ¶ 26. Rather, absent a clearer record establishing exclusion
of the public, we should infer no more than that the separate questioning was
moved to a different courtroom than the one containing the rest of the jury
pool.
[¶43] I also do not agree the record otherwise supports concluding the second
courtroom was closed to the public. The transcript shows the district court
never said the public was included or excluded from voir dire of the entire panel
in the main courtroom. The majority concludes that proceeding was public. See,
e.g., majority opinion, ¶ 13 (“Here, the district court initially conducted jury
selection on the record and in open court.”); id. at ¶ 19 (“In open court, Juror
15 requested to talk in private with the district court and parties and stated
that she had previously heard information about the case.”). Yet in the face of
a similar record for the voir dire in the second courtroom, the majority reaches
the opposite conclusion—that the courtroom across the hall was closed to the
public.
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[¶44] When the limited voir dire of the three potential jurors was moved to the
adjacent courtroom, the transcript contains no indication that the public was
included or excluded. In the absence of a clearer record, and with only the
judge’s use of the word “private” to describe voir dire outside of the presence of
the whole panel, I would not presume the public was excluded from the
proceedings in the second courtroom.
[¶45] Finally, I note limited voir dire of the three jurors was not merely
conducted “in a separate room,” or in “a different room,” as the majority writes.
Majority opinion, ¶¶ 7 and 14. It was conducted in a courtroom, and not in the
judge’s chambers, or in the jury assembly room, or in another controlled access
or limited capacity room in the courthouse. Courtrooms ordinarily are public
spaces, and absent a record to the contrary, conducting the voir dire in a
courtroom strongly suggests to me that the location was open to the public.
Therefore, under the mandate of our Frederick decision, I would hold Coons to
her burden of establishing as a threshold matter that the proceeding actually
excluded the public. If Coons cannot meet her burden on direct appeal, she has
the opportunity to do so through post-conviction relief proceedings. See
N.D.C.C. ch. 29-32-1.
[¶46] In this case, Coons has failed to meet her burden. I therefore would reject
her claim that the district court violated her Sixth Amendment right to a public
trial, and I would not engage in the further analysis entertained by the
majority.
[¶47] Daniel J. Crothers
Lisa Fair McEvers
16