State v. Bond , 2020 Ohio 398 ( 2020 )

[Cite as State v. Bond, 2020-Ohio-398.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Patricia A. Delaney, J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
:
-vs- :
: Case No. 2019 CA 0033
KHAIRI A. BOND :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No.
2018CR0366
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 6, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP CHARES KOENIG
Prosecuting Attorney Koenig & Owens, LLC
BY: JOSEPH SNYDER 5354 North High Street
Assistant Prosecuting Attorney Columbus, OH 43214
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2019 CA 0033 2
Gwin, P.J.
{¶1} Defendant-appellant Khairi A. Bond [“Bond”] appeals his conviction and
sentence after a jury trial in the Richland County Court of Common Pleas.
Facts and Procedural History
{¶2} The underlying case arose as a result of the shooting death of Nolan Lovett
on May 3, 20181.
{¶3} On June 25, 2018, an indictment was filed charging Bond in a two-count
indictment. Count One charged Bond with Murder, an unclassified felony under R.C.
2903.02(A). Count Two charged Bond with Murder, an unclassified felony under R.C.
2903.02(B). Both Counts included a firearm specification under R.C. 2941.145.
{¶4} Bond's case proceeded to trial on March 18, 2019 and ending on March 25,
2019. On March 20, 2019, there was an incident outside of the courtroom during a recess.
1T. at 2652. As a result, the Trial Court restricted courtroom access to immediate family
members. 1T. at 266-267. At the close of trial, Bond was found guilty of the felonious
assault murder of Nolan Lovett, in violation of R.C. 2903.02(B), an unclassified felony,
and of a firearm specification, in violation of RC, 2941.145. Bond was acquitted of felony
murder. Bond was sentenced to 15 years to life on the murder conviction and 3 years on
the firearm conviction, to be served consecutively.
Assignments of Error
{¶5} Bond raises four Assignments of Error,
1 A detailed statement of the underlying facts is not necessary to our disposition of this appeal.
2 For clarity, references to the transcript from Bond’s jury trial will be cited by, as “__T.__,”
signifying the volume number and the page number.
Richland County, Case No. 2019 CA 0033 3
{¶6} “I. THE TRIAL COURT DEPRIVED APPELLANT OF HIS
CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL IN VIOLATION OF THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT CLOSED HIS
TRIAL TO THE PUBLIC.
{¶7} “II. THE VERDICT OF THE JURY FINDING THE DEFENDANT GUILTY OF
FELONY MURDER IN VIOLATION OF R.C. 2903.02(B) WAS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶8} “III. THE TRIAL COURT IMPROPERLY ALLOWED IRRELEVANT AND
OTHER ACTS EVIDENCE, AND PERMITTED THE STATE TO ENGAGE IN
PROSECUTORIAL MISCONDUCT, BY ADMITTING A "GANGSTA" RAP SONG, IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH
AMENDMENTS.
{¶9} “IV. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS
TO DUE PROCESS IN VIOLATION OF THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10,
ARTICLE I OF THE OHIO CONSTITUTION, AS A CONSEQUENCE OF INEFFECTIVE
ASSISTANCE OF COUNSEL.”
I.
{¶10} In Bond’s First Assignment of Error, Bond contends the trial court committed
reversible error when it closed the trial to the public. We agree.
Richland County, Case No. 2019 CA 0033 4
STANDARD OF APPELLATE REVIEW.
{¶11} The Sixth Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment guarantees that “[i]n all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial.” Section 10, Article I, Ohio
Constitution also guarantees an accused the right to a public trial.
{¶12} Because of the constitutional significance of an accused’s right to a public
trial, “[t]he violation of the right to a public trial is considered structural error and not
subject to harmless-error standard.” State v. Drummond, 111 Ohio St. 3d 14, 2006-Ohio-
5084, 854 N.E.2d 1038, ¶ 50, citing Waller v. Georgia, 467 U.S. 39, 49–50, 104 S. Ct.
2210, 81 L. Ed. 2d 31 (1984), fn. 9. “ ‘A structural error is a “defect affecting the framework
within which the trial proceeds, rather than simply an error in the trial process itself.” ’ ”
Sowell, ¶ 33, quoting Drummond, ¶ 50, quoting Arizona v. Fulminante, 499 U.S. 279,
310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Because the denial of a defendant’s right
to a public trial under Article I, Section 10 of the Ohio Constitution is considered structural
error, it “cannot be waived by the defendant’s silence.” State v. Bethel, 110 Ohio St. 3d
416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. Consequently, Bond did not waive his right
to a public trial in this case by a failure to object at trial. Id. See also Sowell, ¶ 36
ISSUE FOR APPEAL.
A. Whether the trial court’s order limiting a portion of the public from observing
Bond’s jury trial introduced error of constitutional dimension.
{¶13} The right to a public trial is not absolute, and in some instances must yield
to other interests, such as those essential to the administration of justice. A trial judge
has authority to exercise control over the proceedings and the discretion to impose control
Richland County, Case No. 2019 CA 0033 5
over the proceedings. Nonetheless, the abridgement of a defendant’s right to a public
trial may occur only when necessary, and any closure must be narrowly drawn and
applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc.
v. Unger, 28 Ohio St. 3d 418, 421, 504 N.E.2d 37(1986); State v. Lane, 60 Ohio St. 2d
112, 121, 397 N.E.2d 1338(1979).
{¶14} In Waller v. Georgia, the Supreme Court established the test for determining
whether a courtroom closure violates a criminal defendant’s Sixth Amendment right to a
public trial:
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. The interest is
to be articulated along with findings specific enough that a reviewing court
can determine whether the closure order was properly entered.
467 U.S. 39, 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), (quoting Press–Enter. Co. v.
Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S. Ct. 819, 78 L. Ed. 2d 629
(1984)). In the same opinion, the Supreme Court articulated the test as a four-factor
analysis:
[ (1) ] the party seeking to close a public hearing 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.
Waller, at 48, 104 S. Ct. 2210, 81 L. Ed. 2d 31. Courts frequently call this the “Waller test.”
Richland County, Case No. 2019 CA 0033 6
{¶15} The Supreme Court of Ohio in Drummond subsequently modified the Waller
test in cases where the trial closure is partial rather than total. In Drummond, the court
concluded “[w]hen a trial judge orders a partial, as opposed to a total, closure of a court
proceeding, a ‘substantial reason’ rather than Waller’s ‘overriding interest’ will justify the
closure.” 111 Ohio St. 3d 14, 53, 2006-Ohio-5084, 854 N.E.2d 1038.
{¶16} Waller dealt with a suppression hearing during which all persons other than
witnesses, court personnel, the parties, and their lawyers were excluded for the entire
duration. 467 U.S. 39, 42, 104 S. Ct. 2210, 81 L. Ed. 2d 31.
{¶17} In the case at bar, the closure was arguably partial. The trial court did not
exclude Bond’s immediate family members or the victim’s immediate family. 1T. at 265-
266. There is no evidence that the trial court either permitted or prevented the press from
entering the courtroom.
1). Whether there was a substantial reason for partially closing the
courtroom—one that is likely to be prejudiced if no closure occurs.
{¶18} With regard to the first Waller factor, because we consider the closure in
this case to be partial, the trial judge needed a “substantial reason” to close the trial to
the public. The trial judge articulated the following reason on the record:
THE COURT: The jury is not in the courtroom. They're back in the
jury room.
We had an incident in the lobby, apparently, during the break. The
jurors were not aware of that. I don't know they weren't aware of it, but they
were all in the jury room. This happened out in the lobby. An argument.
Apparently, the M&M machine is broken out there. But for that reason, we
Richland County, Case No. 2019 CA 0033 7
have cut back on the number of people that are allowed in the courtroom.
We will only allow immediate family members. So that's one of the results.
I wanted to get that on the record.
Is there anything the parties want to put on the record about it? Do
we need to ask the jury if they heard anything? They were all in the jury
room. This happened out in the lobby on a break.
From the State.
MS. BOYER: Your Honor, Olivia Boyer from the State. During the
incident, a juror came out of the room. I didn't say anything to her. But she
went back into the jury room while the incident was occurring.
THE COURT: The defense?
MR. BRADLEY: No. I don't think we should ask them, because if
they didn't know it –
THE COURT: If we ask them, we'll highlight it. I think that's probably
smart. Again, we checked immediately to make sure they were all back in
the jury room.
MS. SCHUMACHER: My only thought is, Mr. Caudill found himself
in the midst of that. I don't know if that will make the paper. I know we've
instructed the jurors not to pay attention to the paper. I don't know if it's
worth -- if it gets printed, Your Honor, my concern is that they will read it. Is
there concern from the jurors one way or the other?
THE COURT: I will continue to address that they are not to read the
newspaper or pay attention to the media. Whatever the reporter wants to
Richland County, Case No. 2019 CA 0033 8
report, it's his right. He can report whatever he wants to. But the good news
is no one got hurt, apparently, and the jurors were not out in the lobby. All
of them were back in the jury room.
MS. SCHUMACHER: Thank you, Judge.
THE COURT: So there are some good things. Again, we have
limited the numbers. Nothing like that helps the situation, helps either side.
Everyone needs to be on their best behavior or we won't have anybody
watching.
MS. SCHUMACHER: One more thing, Judge. The new victim’s
rights, there's a constitutional amendment. I believe the Court has
permitted immediate family and father and mother --
THE COURT: Immediate family members we have let back in. I don't
think necessarily anybody in the immediate family was involved. It was an
extended situation.
MS. SCHUMACHER: Thank you, Judge.
THE COURT: We'll bring the jurors back in and get started.
1T. at 264-267.
{¶19} In Drummond, the trial judge explained the reason that he decided
to close the courtroom,
The Court: It’s come to the attention of the Court that some of the
jurors—or witnesses feel threatened by some of the spectators in the court.
The Court’s making a decision that until we get through the next couple of
witnesses I’m going to clear the courtroom. That includes the victim’s
Richland County, Case No. 2019 CA 0033 9
family, the defendant’s family and all other spectators. The Court had two
incidents yesterday involving one of the spectators where he showed total
disrespect to the Court in chambers and gave the deputies a very hard time.
I didn’t hold him in contempt of court, but just after that then another
individual—there was a physical altercation between that individual who
also came to watch the trial. His name’s Damian Williams…
***
The Court: Who ultimately got charged with assault on a peace
officer. So over the objection of the defendant I’m clearing the courtroom
just for today only.
111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶¶32-34.
{¶20} With respect to the first Waller factor, the Ohio Supreme Court in Drummond
court concluded,
The trial court’s closure order on February 4, 2004, satisfied the
Waller criteria. First, the trial court’s interest in maintaining courtroom
security and protecting witness safety supported the trial court’s limited
closure of the courtroom. There had been a physical altercation between a
spectator and courtroom deputies, and a second incident occurred in the
judge’s chambers. The trial court also stated that “the fear of retaliation
expressed by various witnesses” was a basis for its action. In this regard,
we acknowledge the dangerous nature of gang violence and the genuine
need to protect witnesses testifying against gang members from the deadly
threat of retaliation.
Richland County, Case No. 2019 CA 0033 10
111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶54 (citations omitted).
{¶21} In the case at bar, there is nothing in the record to suggest that any further
altercations took place either in the courtroom or in the hallway. The trial judge
characterized the incident as “an argument.” No further description was given other than
a broken candy machine. We are not able to discern from the record who was involved
in the incident, the number of individuals involved in the incident, the individual, or
individual’s relationships to the parties or the witnesses, or the nature of the
disagreement. The record does not show that any potential witness was in fear of
retaliation or in need of protection. The trial court made no such finding on the record.
See, Drummond, ¶32; ¶54; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142,
2011-Ohio-817, ¶22.
2). Whether the closure was no broader than necessary to protect the
interest in partially closing the courtroom.
{¶22} With respect to the second Waller factor, the Drummond court concluded
that the closure of the courtroom during the testimony of three state witnesses was not
broader than necessary. Drummond at ¶ 55. The Court also noted the fact that the media
remained in the courtroom “helped safeguard Drummond’s right to a public trial” because
the witnesses’ awareness of the media minimized the risk that they would alter their
testimony.” 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶55.
{¶23} In the case at bar, the closure was not limited in scope or duration, but
continued for the remainder of the trial. Excluding members of the general public who
had nothing to do with the incident was overly broad. Nothing in the record suggests that
the press was permitted into the courtroom for the remainder of the trial.
Richland County, Case No. 2019 CA 0033 11
3). Whether the trial court considered reasonable alternatives to closing the
proceeding.
{¶24} With respect to the third Waller factor, the Drummond court noted, “the
record does not show that the trial court considered alternatives to closure. However, the
partial closure of the courtroom only during the cross-examination of Rozenblad and the
testimony of Morris and Thomas is narrower than full closure for the entire trial. See
Brown, 142 F.3d at 538.” 111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶57.
{¶25} In the case at bar, if the trial court believed that the incident on the third day
of trial necessitated stronger measures to preserve courtroom safety and security, the
record does not disclose that the trial judge considered alternatives to closing the trial to
the public. For instance, the record does not show that the trial court considered
additional security measures such as posting deputies in the hallway or in the courtroom,
or excluding only those individuals who took part in the incident. See, State v. Long, 10th
Dist. No. 16AP-708, 2017-Ohio-9322, ¶24.
{¶26} Both Drummond and Waller required the trial court to consider other
available options before closing the remainder of the trial. It does not appear from the
record before this Court that the trial court did so in the case at bar.
4). Whether the trial court made findings adequate to support the closure.
{¶27} Considering the final Waller factor the Drummond court noted,
[T]he trial court stated that there had been a physical altercation
between spectators and courtroom deputies. The trial court also mentioned
that another incident had occurred in the judge’s chambers and that
witnesses had expressed fear of retaliation by testifying in open court. The
Richland County, Case No. 2019 CA 0033 12
trial court also identified Damian Williams and Michael Peace as involved in
the earlier disturbances. Although the trial court should have made
additional findings to clarify the reasons for closing the court, the strength
of the judge’s actual findings must be evaluated in reference to the limited
scope of the closure. By that standard, we conclude that the trial court’s
findings were adequate.
111 Ohio St. 3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶58.
{¶28} In the case at bar, with regard to the final Waller factor, as noted above, the
trial court noted an “argument” and a broken candy machine. The trial court made no
other findings in support of its decision, and the record does not disclose any other
incidents or circumstances that would have necessitated the closing of the trial to the
general public. If there were other relevant incidents or circumstances justifying closure
that are not evident from the record, the trial court made no such findings. We cannot
agree with the trial court’s conclusion that an argument in the hallway during a recess
affected the integrity of the proceedings in such a way that closing the trial to the general
public became necessary. Otherwise, a trial court could close the courtroom to the public
for nearly every minor disturbance. State v. Woods, 8th Dist. Cuyahoga Nos. 94141,
94142, 2011-Ohio-817, ¶22.
{¶29} The failure to make any findings on the record to adequately support closure
does not satisfy the fourth prong of the Waller test. State v. Long, 10th Dist. No. 16AP-
708, 2017-Ohio-9322, ¶33; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142,
2011-Ohio-817, ¶26.
Richland County, Case No. 2019 CA 0033 13
{¶30} We find the trial court’s failure to satisfy the Waller test and lack of a
substantial reason to close the trial to the public as set forth in Drummond, violated Bond’s
Sixth Amendment right to a public trial. State v. Long, 10th Dist. Franklin No. 16AP-708,
2017-Ohio-9322, ¶33. Regrettably, we are constrained to reverse this case. As stated
above, the violation of the right to a public trial is structural error that affects the framework
within which the trial proceeds, rather than simply an error in the trial process itself.
{¶31} Accordingly, the First Assignment of Error is sustained, and we reverse
Bond’s convictions and remand this case for a new trial.
II., III., IV.
{¶32} In the remaining assignments of error, Bond alleges various errors at trial.
However, based on our disposition of the first assignment of error, we overrule these
assignments of error as moot. See App.R. 12(A)(1)(c).
{¶33} Accordingly, judgment of the Richland County Court of Common Pleas is
reversed and the case is remanded for a new trial.
By Gwin, P.J.,
Delaney, J., and
Baldwin, J., concur