STATE OF MISSOURI v. JOHNNY R. DAVIS, JR.

STATE OF MISSOURI, )
)
Respondent, )
)
vs. ) No. SD32702
)
JOHNNY R. DAVIS, JR., ) FILED: July 9, 2014
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF McDONALD COUNTY
Honorable John R. LePage, Judge
REVERSED AND REMANDED
Johnny Davis appeals his convictions for kidnapping and first-degree assault.
He complains, in part, that closing the courtroom during voir dire violated his right
to a public trial. We agree.
Thirty years ago in Waller v. Georgia, 467 U.S. 39, 45-48 (1984), the
Supreme Court affirmed that public criminal trial guarantees extended to voir dire
and pretrial hearings, and described a four-part test for courts to assure that any
“rare” closure would pass constitutional muster.
Four years ago, reiterating that “Waller provided standards for courts to apply
before excluding the public from any stage of a criminal trial,” the Court reversed a
conviction because the trial judge, citing limited space, closed voir dire to the public
without considering all reasonable alternatives. Presley v. Georgia, 558 U.S. 209,
213-16 (2010).
Last year, in a case “similar to Presley,” this court found “that the trial court
did not follow the procedure necessary to close a courtroom to the public during voir
dire.” State v. Salazar, 414 S.W.3d 606, 613 (Mo.App. 2013). We declined to
reverse only because the record failed to show that anyone “was actually prevented
from attending voir dire by the trial court’s actions.” Id. That is not true in this
case. We reverse and remand.1
Constitutional Principles
The Sixth Amendment right to a public trial extends to voir dire. Presley,
558 U.S. at 213. It may yield to other interests in “rare” instances, such as a need to
protect sensitive information, but “the balance of interests must be struck with
special care.” Waller, 467 U.S. at 45.
Specifically, four criteria must be met before courts exclude the public from
any stage of a criminal trial:
1. The proponent for closure must advance an overriding interest likely to
be prejudiced unless the proceeding is closed;
2. Closure can be no broader than necessary to protect that interest;
1The state concedes that voir dire was closed in the constitutional sense, and that a
Sixth Amendment public-trial violation is structural error that requires no showing
of prejudice.
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3. The court must consider reasonable alternatives to closing the
proceeding; and
4. The court must make findings adequate to support the closure.
Id. at 48, cited in Presley, 558 U.S. at 213.
A trial court must consider alternatives to closure even if none are suggested
by the parties. Presley, 558 U.S. at 214-15. “Trial courts are obligated to take every
reasonable measure to accommodate public attendance at criminal trials.” Id. at
215.
In other words, if a court intends to exclude the public from a
criminal proceeding, it must first analyze the Waller factors and
make specific findings with regard to those factors. If a trial court
fails to adhere to this procedure, any intentional closure is
unjustified and will, in all but the rarest of cases, require reversal.
U.S. v. Gupta, 699 F.3d 682, 687 (2d Cir. 2012).2
Courtroom Closure in This Case
Prior to voir dire, Davis’s attorney asked the trial court to accommodate the
public based on “the right to a public trial,” indicating that Davis’s family and
perhaps the press might attend. The court denied the request, citing limited space,
but said the courtroom would re-open “once the cuts are made and we don’t have
50-some jurors here.” The court also confirmed for the record that “14 empty seats
in the jury box [would] remain empty during the voir dire selection.”
2 Specifically as to voir dire closures, see also U.S. v. Agosto-Vega, 617 F.3d 541
(1st Cir. 2010); Commonwealth v. Alebord, 953 N.E.2d 744 (Mass.App. 2011);
State v. Turrietta, 308 P.3d 964 (N.M. 2013); People v. Martin, 949 N.E.2d
491 (N.Y. 2011); Turner v. State, 413 S.W.3d 442 (Tex.App. 2012).
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The venire was brought in and voir dire began. At the first break, the court
noted that Davis’s family had arrived “and asked to come in and were told that they
could not because of our earlier rulings.” Davis’s continuing objection was noted.
After that break, voir dire continued to conclusion, then Davis’s attorney
made further record that no member of the public had been admitted to voir dire; at
least 14 empty seats in the jury box could have been used, either for prospective
jurors or the public; and Davis’s family had been there, wanting to attend. The court
replied that Davis’s family arrived after voir dire started “and we would have had to
disrupt the entire panel, because they’ve got basically the whole aisle taken for
prospective jurors, to bring those family members through them to seat them in the
jury box, so that request is still denied.”
Presley Closure Compared
When the trial court excluded Presley’s uncle (the lone observer) from voir
dire, Presley’s attorney objected and requested accommodation. The court said
there was not enough room, but “the uncle can certainly come back in once the trial
starts.” Presley, 558 U.S. at 210. Later, a record was made that 14 prospective
jurors “could have fit in the jury box and the remaining 28 could have fit entirely on
one side of the courtroom, leaving adequate room for the public.” Id. at 210-11. This
did not convince the judge, who said he preferred to seat potential jurors throughout
the courtroom and that it was “‘up to the individual judge to decide ... what’s
comfortable.’” Id. at 211.
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The Supreme Court reversed, remanded, and declared that trial courts must
“take every reasonable measure to accommodate public attendance at criminal
trials.” Id. at 215.
Nothing in the record shows that the trial court could not have
accommodated the public at Presley’s trial. Without knowing the
precise circumstances, some possibilities include reserving one or
more rows for the public; dividing the jury venire panel to reduce
courtroom congestion; or instructing prospective jurors not to
engage or interact with audience members.
Id. Thus, “even assuming, arguendo, that the trial court had an overriding interest
in closing voir dire, it was still incumbent upon it to consider all reasonable
alternatives to closure. It did not, and that is all this Court needs to decide.” Id. at
216.
Presley Compels Reversal Here
Similarities between Presley and this case are too strong to ignore. Both
cases involve criminal trials and the Sixth Amendment right to public trial. The
entire voir dire was closed to the public in both cases. In both cases, the defendant’s
family also was excluded. Both trial courts cited lack of space in the courtroom’s
audience area. Both trial courts disregarded Waller. Neither court proactively
sought alternatives to closure. Both jury boxes had 14 empty chairs which, with
appropriate judicial flexibility or planning, may have allowed family members or
interested citizens to observe. Neither court made findings to justify closure despite
14 empty chairs.
We need not belabor the point. As in Presley, without making any Waller
findings, the trial court excluded Davis’s family and the public from the courtroom
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for all of voir dire. On these facts alone, closure was unjustified. Presley’s outcome
must follow here. The state offers no persuasive argument or case to the contrary.3
Conclusion
Surprisingly, and in fairness to the trial court and perhaps local prosecutors,
only one Missouri case prior to this trial had cited Waller and only in limited detail,
with no mention of its four-step test (any closure complaint there had been waived).4
If Waller’s requirements were not widely known to our trial bench, then it likely did
not help that Davis’s counsel never mentioned Waller and cited Presley only after
the jury had been selected and sworn. All that said, we remain duty-bound to
enforce the Constitution.
To borrow again from Gupta, “the importance of the public trial right
dictates that, before closing a courtroom to the public, a trial court must inform the
parties of its intentions and make explicit Waller findings. Failure to comply with
this procedure will, in nearly all cases, invite reversal.” 699 F.3d at 690. “While we
do not rule out the possibility that in the rare circumstance an unjustified closure
may, under [a] ‘triviality standard,’ not require reversal of the defendant’s
3 We considered sua sponte whether this closure, while unjustified, might be excused
as trivial. “The triviality doctrine holds that certain courtroom closures are too
trivial to affect a defendant’s public trial rights,” but is largely confined to “cases
involving unintentional closures for short periods of time.” Zach Cronen, Behind
Closed Doors: Expanding the Triviality Doctrine to Intentional Closures - State v.
Brown, 40 Wm. Mitchell L. Rev. 252, 258, 261 & n.80 (2013). Having surveyed
current law, however, we join the Second Circuit in concluding “that a trial court’s
intentional, unjustified closure of a courtroom during the entirety of voir dire cannot
be deemed ‘trivial.’” Gupta, 699 F.3d at 689.
4 See State v. Williams, 328 S.W.3d 366, 370-71 (Mo.App. 2010). More than
1,000 non-Missouri cases cited Waller during this 29-year period. We handed
down Salazar – the only other Missouri opinion citing Waller or Presley – after
Davis’s trial.
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conviction, this is not the present case.” Id. “Here, the [trial] court’s intentional,
unjustified closure of the courtroom for the entirety of voir dire violated the
defendant’s Sixth Amendment right to a public trial.” Id.
We need not reach Davis’s other arguments for reversal. We reverse and
remand for further proceedings consistent with this opinion.
DANIEL E. SCOTT, J. – OPINION AUTHOR
WILLIAM W. FRANCIS, JR., C.J., P.J. – CONCURS
JEFFREY W. BATES, J. – CONCURS
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