Cameron v. State

OPINION

Opinion by:

Rebeca C. Martinez, Justice

This case is before us on remand from the Court of Criminal Appeals. Vanessa Cameron was convicted of the murder for hire of her child’s father and sentenced to seventy years in prison. On appeal, Cameron raised several issues,' including that she was deprived of her constitutional right to a public trial during voir dire. A majority of this court agreed, and we reversed her conviction and remanded for a new trial. The Court of Criminal Appeals initially affirmed, but issued a new opinion on rehearing reversing and remanding. In its opinion on rehearing, the Court held that a defendant bears an initial burden of proof on appeal to show that the courtroom was “in fact closed” to the public before an appellate court may consider whether the closure was justified. The Court therefore reversed and remanded the case for our reconsideration of the public trial issue under the sequential two-step test. See

Cameron v. State, 490 S.W.3d 57, 70 (Tex. Crim. App.) (op. on reh’g), cert. denied, — U.S. -, 137 S.Ct. 95, 196 L.Ed.2d 38 (2016).

Background

The only facts relevant to this appeal are those surrounding the alleged closing of the courtroom to the exclusion of Cameron’s family and friends, as well as the public, during the voir dire phase of trial, In a nutshell, Cameron’s family and friends were instructed by the bailiffs to leave the courtroom prior to the start of voir dire so the large venire panel could be seated. Cameron’s family and friends understood that they were not allowed to reenter (he courtroom during the voir dire proceedings. Defense counsel made the trial court aware they had been excluded from the courtroom and objected to a violation of Cameron’s right to a public trial. A lengthy discussion occurred both on and off the record, with the trial court repeatedly stating the courtroom was not “closed” but there was no room for the family or public inside the courtroom to observe voir dire. The relevant statements made by the trial court and counsel on the record are discussed in detail in the Court of Criminal Appeals’ opinion as well as the prior majority and dissenting opinions by this court. See id. at 65-67; see also Cameron v. State, 415 S.W.3d 404, 406-408 (Tex. App—San Antonio 2013), rev’d, 490 S.W.3d 70 (Tex. Crim. App. 2015); see also id. at 415-21 (Angelini, J., dissenting).

After Cameron was tried and convicted, she filed a motion for new trial alleging her right to a public trial was violated during voir dire. She attached twelve affidavits from her family and friends stating the bailiffs instructed them to leave the courtroom before the jury panel entered and they did not witness any of the voir dire proceedings. The affidavit by Cameron’s mother, a San Antonio police officer, also states that she requested to come in and sit on the floor during voir dire, but the bailiff denied her request and stated she would be a security risk. The State filed a response to the motion for new trial and attached affidavits from two bailiffs stating they did not close the courtroom to the public during voir dire. One of the bailiffs confirms in his affidavit that he denied the request by Cameron’s mother to sit on the floor based on security concerns. The trial court did not hold a hearing on the motion for new trial. It signed an order acknowledging presentment of the motion for new trial and stating the motion would be determined based solely upon the affidavits. Although the court did not enter a written order denying the motion, it adopted the State’s proposed findings of fact in opposition to the motion. Specifically, the trial court made the following sixteen findings of fact:

1. The Court never ruled that observers were excluded from the voir dire or any other part of the trial in this case.

2. The defense attorney in this case was more inclined to obtain a ruling from the court and seemed less inclined to accept any solutions offered by the Court.

3. Prior to the venire panel entering the courtroom, the defense attorney never requested the Court to allow him to go outside and bring the defendant’s family and friends into the courtroom; nor did he ask for a break to call family and friends to come into the courtroom. The Court made it clear that the public was not excluded from the courtroom.

4. The Court offered to open up the doors in the back of the court and let the public observe from the hall area.

5. The Court attempted to find places for the public to observe from.

6. Suggestions were offered to the attorney for the defense regarding placement of observers, both on and off the record.

7. Both on and off the record, suggestions were requested from the defense attorney as to where he would like the observers to be placed in the courtroom.

8. Besides the time when the Court’s bailiffs cleared the courtroom to bring the venirepanel [sic] in and get the panel seated, on two other occasions (one involving a venireman who had a medical episode and another involving a security alarm) the courtroom had to be cleared again.

9. No Court personnel ordered observers to leave the courthouse.

10. The Court did not order the bailiffs or anyone else to tell spectators to leave the courtroom.

11. The Court did not order the bailiffs or anyone else to tell spectators to leave the courthouse.

12. The bailiffs [sic] did not tell spectators that they should leave the courthouse.

13. The bailiffs [sic] did not tell spectators that they would not be allowed to watch the proceedings.

14. If observers had entered after the jury panel was seated, , they would have been allowed back in the courtroom by the Court during the proceedings in this case.

15. Prior to voir dire in this case, the Court’s bailiffs cleared the courtroom in order to make room to bring the venire panel into the courtroom and to get them organized and seated, but they did not tell any spectators that they were not allowed to watch the voir dire or any other part of the proceedings in this case.

16. During other trials in the past, including during voir dire proceedings, the 379th Court has had spectators in the courtroom.

Right to a Public Trial

The Sixth Amendment guarantees the right to a public trial in all criminal prosecutions. U.S. Const. amend. VI; Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). The right extends to the jury selection phase of trial, including voir dire of prospective jurors. Presley v. Georgia, 558 U.S. 209, 212-13, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam). Violation of a criminal defendant’s right to a public trial is structural error that does not require a showing of harm. Johnson, 520 U.S. at 468-69, 117 S.Ct. 1544; Steadman v. State, 360 S.W.3d 499, 510-11 (Tex. Crim. App. 2012).¹

The Court of Criminal Appeals clarified in its opinion on rehearing in this case that, under Lilly v. State, the proper approach to determine whether a defendant’s right to a public trial was violated is a sequential two-step analysis. Cameron, 490 S.W.3d at 68-69 (citing Lilly v. State, 365 S.W.3d 321, 331 (Tex. Crim. App. 2012)). “[T]he initial burden of proof is on the defendant to show that the trial is closed to the public. If the defendant fails to carry that burden, the analysis is concluded. Only after a trial is closed to the public is it necessary to determine if the closure was justified.” Cameron, 490 S.W.3d at 69. Under the first step, “[t]o determine if a trial was closed, a reviewing court should look .to the totality of the evidence, rather than whether a spectator was actually excluded from trial.” Id. at 68 (citing Lilly, 365 S.W.3d at 331). If the totality of the evidence shows the defendant’s trial was closed, then the reviewing ,court must proceed to the second step and determine whether the closure was justified. Cameron, 490 S.W.3d at 68. Under the second step, the reviewing court considers whether the trial court took every reasonable measure to accommodate public attendance before closing the proceeding. Lilly, 365 S.W.3d at 331. Under the standards established by the. United States Supreme Court in Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the closure must be necessary to protect an' overriding interest, the closure must be no broader than necessary, the trial court must consider all reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure. Lilly, 365 S.W.3d at 330-31.

Standard of Review

In its opinion on rehearing, the Court of Criminal Appeals not only clarified that the Lilly analysis is a sequential two-step test, it also, clarified the applicable standard of review. Cameron, 490 S.W.3d at 69-70. The Court explained that the question of whether a defendant’s trial was closed to the public is a mixed question of law and fact that does not turn on credibility and demeanor. Id. at 70. Therefore, we defer to the trial court’s findings of fact to-the extent they are supported by the record. Id. (noting such level of deference is “a necessary prerequisite before an appellate court can resolve whether a defendant met his burden to show his trial was closed to the public based on the totality of the evidence”).

Was the Courtroom Closed?

As all the prior opinions in this case have acknowledged, an unusual situation is presented in which no party sought 'closure of the courtroom and it is contested whether the courtroom was in fact closed. In determining whether Cameron met her burden to show the voir dire proceedings were actually closed, we consider the totality of the evidence on the issue while deferring to the trial court’s fact findings that are supported by the record. Id. at 68, 70; Lilly, 365 S.W.3d at 330.

As set forth above, the trial court made findings of fact that it did not order the bailiffs or anyone else to tell spectators to leave the courtroom or the courthouse, and the bailiffs did not tell spectators to do so. The trial court made a finding acknowledging that, prior to voir dire, the bailiffs cleared the courtroom² “in order to make room to bring the venire panel into the courtroom and to get them organized and seated, but they did not tell any spectators they would not be allowed to watch the voir dire.” The trial court further found that, "[pjrior to the venire panel entering the courtroom,, the defense attorney never requested- the Court to allow him, to. go outside and bring the. defendant’s family and friends into the courtroom; nor did he ask for a break to call family and friends to come into the courtroom.” Finally, the trial court made fact findings that it “never ruled that observers were excluded from the voir dire,” and “made it clear that the public was not excluded from the courtroom.”

The record does not support the trial court’s findings that the public was not excluded from the courtroom during voir diré. Cameron’s counsel stated on the record that the bailiffs told Cameron’s family and friends to leave the courtroom before the venire panel arrived and before the judge took the bench, and their affidavits attached to Cameron’s motion for new trial confirm their removal and understanding that they would not be permitted to observe voir dire. Moreover, the trial court’s own fact findings clearly state that the bailiffs removed all spectators from the courtroom before thé venire panel was brought in and seated. The State does not challenge the fact that • the public was cleared from the courtroom prior to the venire panel’s entry and seating.

The issue then becomes, whether the public was permitted to re-enter to observe the voir dire proceedings. The State argues the record is silent as to whether any spectators were allowed back inside the, courtroom during any part of the voir dire. We disagree. One of the bailiffs’ affidavits confirms that Cameron’s mother was not allowed to re-enter the courtroom to observe voir , dire, despite her request. While the focus of the. Lilly test for closure is not on whether a defendant can show the exclusion of any particular person, such evidence is still relevant to show the courtroom was closed. See Lilly, 365 S.W.3d at 331 (focus of closure inquiry is the totality of the evidence, rather than exclusion of a particular person). As to whether any other member of the public re-entered the courtroom to observe voir dire, the trial court’s own fact findings and statements on the record show it did not happen. By stating in Finding No. 3 that defense counsel never requested permission “to go outside and bring the defendant’s family and friends into the courtroom,” or asked for a break “to call family and friends to come into the courtroom,” the trial court conceded that the public was not brought back into the courtroom to observe voir dire. In addition, the trial court’s statement in Finding No. 14 that, “if observers had entered after the jury panel was seated,” they would have been allowed back in the courtroom necessarily implies that no public observers re-entered during the voir dire.³

Further, the tidal court’s statements on the record show that the public was not permitted inside the courtroom during voir dire. While the trial court repeatedly stated on the record that the public was “not excluded” from the courtroom, it also stated that, “before we called the case, we saw a pretty significant number of family members that were walking in ... [tjhere is no way this courtroom can accommodate them,” and due to the 65 venire members and the lack of additional chairs and space, the judge did not “see any room whatsoever where anybody else would be able to sit and observe.” Even though reiterating “this is a public trial” and “I’ve never ruled that the public is excluded,” the trial court repeatedly pressed defense counsel for suggestions as to where to put spectators, improperly shifting the duty to accommodate the public from the court to defense counsel. See Presley, 558 U.S. at 214, 130 S.Ct. 721; see also Steadman, 360 S.W.3d at 505 (no burden on defendant to proffer alternatives). Further, far from refuting that spectators were excluded from the courtroom during voir dire, the trial court sought to justify their exclusion by performing a Waller analysis on the record. Midway through voir dire, after the State’s portion was completed, the trial court went on the record of its own accord to again describe the lack of space in the courtroom and stated, “[djuring the course of discussions, the Court did analyze the four-prong [Waller] questions.” The court then proceeded to detail its consideration of the Waller factors, citing the large venire panel, the lack of space for spectators to sit inside the courtroom, jury-contamination issues due to the emotionally charged trial, and courtroom security concerns, and its rejection of other courtrooms such as the central jury room as alternatives. The trial court’s findings track the test for whether or not a closure is justified. See Waller, 467 U.S. at 48, 104 S.Ct. 2210 (before excluding the public, trial court must make adequate findings showing the closure is necessary to protect an overriding interest, is narrowly tailored, and all reasonable alternatives have been considered). As the Court of Criminal Appeals pointed out in its original opinion, if the voir dire phase had actually been open to the public, the trial court would not have needed to cite space limitations and safety concerns as justifications for excluding the public. See Cameron, 490 S.W.3d at 62 (opinion superseded on rehearing).

Although we generally defer to a trial court’s findings of fact, we do not do so if the record does not support the findings. Id. at 70 (op. on reh’g). Here, the judge’s own statements on the record show there was no room in the courtroom for spectators during voir dire, and thus undermine its findings of fact that the courtroom was not “closed.” We conclude that, based on the totality of the evidence in the record, Cameron met her burden to show the courtroom was in fact closed to the public during the voir dire phase of her trial.

Was the Closure Justiñed?

Having determined that the first step under the Lilly analysis has been satisfied, we next determine whether the closure of the courtroom was justified. Id. at 68-69; Lilly, 365 S.W.3d at 331. As explained in detail in bur prior opinion, the trial court did not meet its obligation to consider all reasonable alternatives to accommodate the public before closing the courtroom, particularly the option of splitting the venire panel which was stressed in Presley. See Presley, 558 U.S. at 215, 130 S.Ct. 721 (noting that splitting the venire panel is a reasonable accommodation for the public during voir dire which solves space and security concerns).⁴ In Stead-man, the Court of Criminal Appeals held the trial court failed to consider all reasonable alternatives as required by Presley and Waller when it failed to consider “an alternative that would have solved both the jury-contamination issue and the courtroom-security issue: ‘dividing the jury ve-nire panel to reduce courtroom congestion.’ ” Steadman, 360 S.W.3d at 509. The trial court made the same mistake in Cameron’s case. We therefore conclude the trial court did not fulfill its duty to consider all reasonable alternatives and to provide a reasonable accommodation to the public before closing the courtroom.

Conclusion

Based on the foregoing analysis, we hold that Cameron met her burden to prove the courtroom was closed to the public during voir dire, and that the record shows the trial court failed to consider all reasonable alternatives to closure, in violation of Cameron’s Sixth Amendment right to a public trial. Because the error is structural, the trial court’s judgment is reversed and the cause is remanded for a new trial. Presley, 558 U.S. at 216, 130 S.Ct. 721; Steadman, 360 S.W.3d at 510-11.⁵

Karen Angelini, Justice, dissenting

1 . .At all levels of appeals in this case, including on remand, the State has argued that Cameron failed to preserve her public trial issue for review. As the Court of Criminal Appeals similarly concluded in its original opinion, we conclude the record shows "very clearly” that Cameron’s counsel made the trial court aware of her complaints concerning the closure of the courtroom during voir dire and the trial court acknowledged her Sixth Amendment right to a public trial before stating the courtroom was not closed. See Cameron, 490 S.W.3d at 61 (opinion superseded on rehearing). Further, thfe record shows the trial court declined to rule on Cameron’s public trial objection multiple times, despite repeated requests by defense counsel. Based on this 'record, the public triál issue was preserved for review. Tex. R. App, P, 33.1.

2 . The trial court also found that the courtroom was cleared, on two other occasions involving a venireman with a medical episode and a security alarm,

3 . The affidavit of Tonya Kersey supports this implication by stating that she arrived as late as 4:00 p.m. and was told she could not enter the courtroom during jury selection.

4 . At one point, the trial court offered to open the courtroom doors so the spectators could stand in the foyer outside during voir dire, but when the prosecutor objected to a potential fire code violation, the option was dropped. Nothing in the record shows that any members of the public observed voir dire from the foyer.

5 . Based on our disposition of the public trial issue, we need not address Cameron’s other appellate issues concerning her motion to suppress and admission of rebuttal evidence.