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State v. Decker

Supreme Court of North Dakota

February 22, 2018

State of North Dakota, Plaintiff and Appellee
Kevin Frank Decker, Defendant and Appellant

         Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Cynthia Feland, Judge.

          Ladd R. Erickson, Special Assistant Attorney General, Washburn, ND, for plaintiff and appellee.

          Kiara Costa Kraus-Parr, Grand Forks, ND, for defendant and appellant.


          Crothers, Justice.

         [¶ 1] Kevin Frank Decker appeals from a judgment entered after a jury found him guilty of disorderly conduct. Decker argues the district court created a structural error by denying his Sixth Amendment right to a public trial when court staff excluded one member of the public from jury selection proceedings. He also argues the State presented insufficient evidence for the jury to find him guilty of disorderly conduct. We affirm the judgment, concluding the district court's exclusion of one member of the public was too trivial to amount to structural error and the evidence was sufficient to sustain the conviction.


         [¶ 2] Decker participated in protests against the Dakota Access Pipeline on August 11, 2016, at a construction site on North Dakota state highway 1806. Police cordoned off the site with guarded police tape. Decker stood at the front of the crowd, pressing into the police line. Officer Gruebele stood immediately opposite Decker on the inside of the police line. Gruebele testified that Decker lifted the police tape several times and was warned not to do so. Decker began pushing against Gruebele, who then arrested Decker. Decker testified that the crowd pushed him from behind into Gruebele.

         [¶ 3] The State charged Decker with disorderly conduct under N.D.C.C. § 12.1-31-01. At trial on January 31 and February 1, 2017, the district court directed deputies to prevent potential juror tainting after some potential jurors at a trial scheduled in December of 2016 received copies of a pamphlet on jury nullification and "voting your conscience." Decker joined an objection made by another defendant and asked for a mistrial based on denial of the right to a public trial:

"MR. REICHERT:... I brought up at one of the sidebars that the Court had closed the courtroom during voir dire.
THE COURT: You indicated that you wanted an opportunity to raise that issue, that hadn't been something that was brought up to the Court previously.
MR. REICHERT: Correct. Can I bring that up?
THE COURT: You can.
MR. REICHERT: Thank you. I was made aware after jury selection that individuals of the public were not allowed in during jury selection. I asked the Court at the sidebar if the Court had ordered that none of the public be allowed in during the--
THE COURT: No. What you said was, I understand the Court ordered this. And I will tell you now the Court issued no such order. The Court did leave in the deputies' sound discretion and did give direction because of what happened at the last attempted trial that we had in this matter that the jurors were to be--members of the public were to be restricted access to potential jurors in this case. I left that up to law enforcement to decide how to accomplish that, but jurors and potential members of the public were not allowed to be seated together, so until that was ironed out, I indicated that I didn't want that contact because I wanted no potential tainting of our jury panel."

         [¶ 4] Attorney Bruce Nestor, unconnected to the cases heard that day, testified deputies restricted his access to the courtroom during voir dire. Another member of the public present in the courtroom during voir dire testified that some seats remained unoccupied. Court staff testified they received orders to keep potential jurors separate from the public and that no seating was available for the public because of the large jury pool. Court staff also indicated they did not advise members of the public they could enter the courtroom after the first jurors entered the jury box and seats in the courtroom became available. The district court reviewed the U.S. Supreme Court case cited in oral argument, Presley v. Georgia, 558 U.S. 209 (2010), and denied the motion for mistrial on the following day:

"THE COURT:... A couple of things I'm going to note for the record. The deputy did testify yesterday that this Court did not specifically give him any specific direction. I will note that this Court did make clear to court security, as well as the clerk's office, that efforts were to be taken to prevent potential jurors from having contact with the public. That was due to a situation that has never arisen before this Court before, and that is the efforts of the public on December 19th when this case was originally set to be tried, to tamper with potential jurors. Provide them each a copy. The court was contacted or notified by multiple people indicating that a flyer was being handed out to potential jurors and others in an effort to taint the jury....
The Court never directed, as happened in the case [ Presley v. Georgia ] that you cited counsel, that this courtroom be closed to the public, but the Court did indicate that the public was not to have contact with potential jurors because of efforts of jury tampering that occurred with regard to these very same defendants when this Court was originally set to go to trial back on December 19th.
The Court would note that members of the press were here. And contrary to Mr. Reichert's assertions yesterday that they couldn't do, and was sure they weren't doing live streaming, I would point out to you, counsel, that proceedings held in chambers, proceedings that are closed to the public and jury selection may not be photographed, recorded or broadcast. That is under Supreme Court Administrative Rule 214D and the Court had cited that in the original order that the Court issued in this case pertaining to a combined order on request of expanded media coverage and with regard to required conduct within the courtroom. That was issued back on December 16th prior to the time that this case was originally set to be tried. We had the public here, albeit there could have been more seats, the Court was not aware that people were being held outside of the courtroom, and if there were seats available where they wouldn't be co-mingled with potential jurors in this case.
The Court would also note that Mr. Nodland was relieved of his duties as an attorney because his case was continued at his request prior to the jury selection process, and Mr. Nodland also remained in the courtroom.
So contrary to the case that you cite, the public was allowed to participate in this case. The Court does view this as being different than the case that you cited in Presley v. Georgia, and I am denying your request for a mistrial in this case."

         [¶ 5] The jury returned a guilty verdict to the disorderly conduct charge. The district court sentenced Decker to one year of unsupervised probation with fines.


         [¶ 6] Decker argues the district court created a structural error by denying one member of the public access to the courtroom during jury selection, thus violating Decker's Sixth Amendment right to a public trial. "We apply a de novo standard of review to a claim of a constitutional violation." State v. Aguero, 2010 ND 210, ¶ 16, 791 N.W.2d 1; see State v. Pea Garcia, 2012 ND 11, ¶ 6, 812 N.W.2d 328 ("A de novo standard of review applies to whether facts rise to the level of a constitutional violation....").


         [¶ 7] Structural errors are violations of the framework of the trial rather than mere procedural errors. Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). "[S]ome constitutional rights [are] so basic to a fair trial that their infraction can never be treated as harmless error...." Chapman v. California, 386 U.S. 18, 23 (1967).

         [¶ 8] Structural errors include deprivation of right to counsel, lack of judicial impartiality, racial exclusion from a grand jury, violation of the right to self-represent, and denial of the right to a public trial. Fulminante, 499 U.S. at 309-10. Structural errors are immune to the "invited error" doctrine and do not necessarily require action at the time the error occurs. See State v. White Bird, 2015 ND 41, ¶ 24, 858 N.W.2d 642. "Structural errors... are constitutional errors 'so intrinsically harmful as to require automatic reversal' regardless of whether they have been forfeited or waived." State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442 (quoting Neder v. United States, 527 U.S. 1, 7 (1999)). Structural error differs substantially from obvious error, for which a defendant bears the burden of showing either prejudice or an adverse effect on the outcome of the proceeding. See State v. Erickstad, 2000 ND 202, ¶ 22, 620 N.W.2d 136 (finding no obvious error under N.D.R.Crim.P. 52(b) where defendants failed to show prejudicial effect of alleged error in jury instructions).

         [¶ 9] The rights implicated in structural errors are not absolute. State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d 599 (ruling right to a public trial "is not absolute and must give way in rare instances to other interests essential to the fair administration of justice."). The U.S. Supreme Court established when the right to a public trial gives way to other interests:

"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."

Press-Enterprise Co. v. Super. Ct. of Cal., 464 U.S. 501, 510 (1984) (finding the trial court erred in closing voir dire proceedings to the public even though neither party objected at the time). Four factors must be present to avoid structural error in closing a courtroom:

"[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."

Waller v. Georgia, 467 U.S. 39, 48 (1984) (numbering added) (citing Press-Enterprise, 464 U.S. 501 (1984)) (ruling a trial court's "broad and general" findings did not justify closure of a seven-day suppression hearing and remanding for a new hearing). North Dakota adopted the Waller standard for evaluating violations of the right to a public trial, strictly requiring the trial court to make findings before closure. 467 U.S. 39 (1984); State v. Klem, 438 N.W.2d 798, 802 (N.D. 1989) ("An appellate court may not provide a post hoc rationale for why the trial court would have closed the trial had it held a hearing and made findings."). Voir dire falls within the scope of public trials under the Sixth Amendment. Presley v. Georgia, 558 U.S. 209, 213 (2010) (citing Press-Enterprise and Waller).

         [¶ 10] Trial courts must "take every reasonable measure to accommodate public attendance at criminal trials." Id. at 215. Such measures can include reserving rows, dividing jury panels, and instructions to prospective jurors. Id. The overriding interests cited by the trial judge in closing voir dire to the public must be specific. Id. Potential jurors always risk overhearing prejudicial remarks from public attendees, and a generic, broad rationale would permit courtroom closure nearly any time. Id.

         [¶ 11] The U.S. Supreme Court recently concluded in Weaver that "an unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant's standpoint, " and "in the case of a structural error where there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error's actual effect on the outcome." Weaver v. Massachusetts, 137 S.Ct. 1899, 1910 (2017) (citation omitted). Thus, before ordering a courtroom closed to the public at any stage of a trial, a judge must make sufficient findings under the four Waller factors. If a party objects to the closure and the judge has not made the required findings, on appeal the party generally receives a reversal.

         [¶ 12] Here, the district court did not specifically order the closure. This issue was raised after a person was denied access to the courtroom during jury selection. Decker objected during trial. The district court did not make any of the four Waller findings before the court was closed to the public. On appeal Decker did not argue the district court's direction to keep potential jurors separate from the public amounted to an understanding with court staff to evade the requirements of Waller. While we do not hold the district court intentionally closed voir dire proceedings to the public, the closure nevertheless raises Sixth Amendment concerns. See, e.g., Owens v. United States, 483 F.3d 48, 63 (1st Cir. 2007) (finding cause for concern where judge's inattention resulted in unauthorized closure of courtroom by court officer) , abrogated by Weaver v. Massachusetts, 137 S.Ct. 1899 (2017); Walton v. Briley, 361 F.3d 431, 433 (7th Cir. 2004) ("Whether the closure was intentional or inadvertent is constitutionally irrelevant.").


         [¶ 13] Our Sixth Amendment concerns may be allayed if closing voir dire had a trivial impact on Decker's case. Some courts have held certain errors are "not significant enough to rise to the level of a constitutional violation" under a triviality standard. Carson v. Fischer, 421 F.3d 83, 94 (2d Cir. 2005).

"A triviality standard, properly understood, does not dismiss a defendant's claim on the grounds that the defendant was guilty anyway or that he did not suffer 'prejudice' or 'specific injury.' It is, in other words, very different from a harmless error inquiry. It looks, rather, to whether the actions of the court and the effect that they had on the conduct of the trial deprived the defendant--whether otherwise innocent or guilty--of the protections conferred by the Sixth Amendment."

Peterson v. Williams, 85 F.3d 39, 42 (2d Cir. 1996); see, e.g., United States v. Perry, 479 F.3d 885, 890 (D.C. Cir. 2007) (ruling "an eight-year-old's presence in the courtroom would neither 'ensure that judge and prosecutor carry out their duties responsibly' nor 'discourage perjury'"); United States v. Ivester, 316 F.3d 955, 958-60 (9th Cir. 2003) ("Before applying the Waller test to determine whether the district court violated [defendant's] Sixth Amendment right to a public trial, we must first determine whether the right attaches...."); Braun v. Powell, 227 F.3d 908, 918-19 (7th Cir. 2000) (concluding the permanent exclusion from trial of one person did not implicate defendant's Sixth Amendment rights); United States v. Greene, 431 Fed.App'x 191, 195-97 (3d Cir. 2011) (finding court staff's temporary exclusion of defendant's brother, where trial court did not subsequently ratify exclusion, trivial or "de minimis"). In State v. Addai, we upheld a district court's decision to close the courtroom for a brief period of time on the mistaken belief a witness would testify about a restricted case where a transcript of the testimony was later made public. 2010 ND 29, ¶ 50, 778 N.W.2d 555. Although our conclusion in Addai comports with the result under a triviality analysis, it appears our use of the plain error standard was incorrect.

         [¶ 14] The Sixth Amendment right to a public trial advances ...

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