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State v. Rogers

Supreme Court of North Dakota

November 6, 2018

State of North Dakota, Plaintiff and Appellee
Mark Allen Rogers, Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Stacy J. Louser, Judge.

          Aaron G. Birst, Special Assistant State's Attorney, Bismarck, N.D., for plaintiff and appellee.

          Kiara C. Kraus-Parr, Grand Forks, N.D., for defendant and appellant.


          Tufte, Justice.

         [¶ 1] Mark Allen Rogers appeals from a district court judgment for gross sexual imposition ("GSI"). Rogers argues the district court: 1) violated his Sixth Amendment right to a public trial by closing his competency hearing on March 28, 2017; and 2) acted arbitrarily when it assigned extradition costs as restitution to this case. Because the district court did not make individualized findings supporting closure of the competency hearing, the Sixth Amendment public trial guarantee was violated. The restitution award was proper, and it is affirmed consistent with our remand. We reverse the district court's closure of the competency hearing and remand for further proceedings.


         [¶ 2] In 2014, Rogers was charged with one count of GSI with a minor under 15 years of age--a class A felony under N.D.C.C. § 12.1-20-03. Rogers did not appear at his trial scheduled for February 10, 2015. He was extradited from Thailand in November of 2016 and charged with bail-jumping. The district court held several pretrial hearings in the GSI case, some of which included issues raised in the separate bail-jumping case. On March 28, 2017, the court held a hearing relating to both cases in which it first considered whether Rogers was competent to proceed to trial. The courtroom was closed for the competency hearing. After the court found Rogers competent to proceed, Rogers indicated his desire to plead guilty to both charges. The courtroom was opened to the public to receive Rogers' guilty plea to both charges. Rogers argues the closure of the competency hearing violated his Sixth Amendment right to a public trial, was a structural error, and requires reversal of the judgment.


         [¶ 3] In criminal cases, errors not raised in the district court may fall into one of three categories: forfeited error, waived error, and structural error. State v. Watkins, 2017 ND 165, ¶ 12, 898 N.W.2d 442. A structural error is a "constitutional error[, ] 'so intrinsically harmful as to require automatic reversal' regardless of whether [it was] forfeited or waived." Id.; State v. Rende, 2018 ND 56, ¶ 8, 907 N.W.2d 361. "We apply a de novo standard of review to a claim of a constitutional violation." State v. Decker, 2018 ND 43, ¶ 6, 907 N.W.2d 378 (quoting State v. Aguero, 2010 ND 210, ¶ 16, 791 N.W.2d 1).

         [¶ 4] A structural error is a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Johnson v. United States, 520 U.S. 461, 468 (1997) (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). Such errors "necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence." Neder v. United States, 527 U.S. 1, 9 (1999). They "defy analysis by 'harmless-error' standards by affecting the entire adjudicatory framework." Puckett v. United States, 556 U.S. 129, 141 (2009) (internal quotations omitted). Structural errors do not require a finding of impact on the trial's outcome. United States v. Marcus, 560 U.S. 258, 263 (2010); see also Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378 ("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."). Not only do structural errors not require an impact finding, but part of what makes an error a "structural error" is the difficulty in "asses[sing] the effect of the error." Marcus, 560 U.S. at 263.

         [¶ 5] "The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial." Weaver v. Massachusetts, 137 S.Ct. 1899, 1907 (2017). Only a handful of situations have been determined to fall within the structural error category: "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." Decker, 2018 ND 43, ¶ 8, 907 N.W.2d 378.

         [¶ 6] Public trial violations are considered structural error largely because of the "difficulty of assessing the effect of the error." Weaver, 137 S.Ct. at 1910 (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 149 n.4 (2006) (where the Supreme Court of the United States "rest[s its] conclusion of structural error upon the difficulty of assessing the effect of the error")). The error cannot be quantified when a public trial right is violated, yet it is present. Fundamental unfairness, another factor used to determine structural errors, see Weaver, 137 S.Ct. at 1908, is particularly unhelpful in a public trial violation because there are cases where an "unlawful closure might take place and yet the trial still will be fundamentally fair from the defendant's standpoint." Id. at 1910. Here, the competency hearing was closed at the request of Rogers and without objection by the State. Rogers' inviting the district court to commit the error would ordinarily foreclose relief from that error on appeal, Watkins, 2017 ND 165, ¶ 14, 898 N.W.2d 442, but "[s]tructural errors are immune to the 'invited error' doctrine." Decker, 2018 ND 43, ¶ 8, 2018 ND 43. Because a violation of the right to a public trial is a structural error, Waller v. Georgia, 467 U.S. 39 (1984), Rogers is entitled to relief on appeal if the competency hearing is part of the "public trial."


         [¶ 7] The Sixth Amendment expressly protects the right to a public trial: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." U.S. Const. amend. VI. This right is further protected by the North Dakota constitution: "In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial." N.D. Const. art. 1, § 12. Each provision defines its scope in three dimensions: who may assert the right (the accused); when the right attaches ("criminal prosecutions"); and what the right guarantees (a "public trial"). Rothgery v. Gillespie County, 554 U.S. 191, 214 (2008) (Alito, J., concurring). At the competency hearing, Rogers was undeniably an "accused," so whether he is within the scope of who is not in question. We are concerned here with the when and the what: whether a pretrial competency hearing is part of a "criminal prosecution" such that the public trial right has attached, and, if so, whether the public trial right was violated by the district court's closure of the competency hearing by agreement of Rogers and the State.

         A. Why

         [¶ 8] Before we reach the questions of when and what, a brief discussion of why is in order. Public trials are "for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions." Waller, 467 U.S. at 46 (quoting In re Oliver, 333 U.S. 257, 270 n.25 (1948)); State v. Garcia, 1997 ND 60, ¶ 20, 561 N.W.2d 599 ("Although the guarantee of a public trial was created for the benefit of criminal defendants, the right is also shared with the public; the common concern is to assure fairness." (internal citation omitted)); State v. Nyhus, 19 N.D. 326, 124 N.W. 71, 72 (1909) ("The Constitution of this state guarantees to all persons accused of crime a speedy and public trial. These provisions are for the benefit of the accused."). A public trial is also a tool to "encourage[] witnesses to come forward and discourage[] perjury." Waller, 467 U.S. at 46; State v. Klem, 438 N.W.2d 798, 800 (N.D. 1989) ("public trial... brings forth witnesses who might be unknown to the parties and might not otherwise testify, and tends to assure testimonial trustworthiness"). "Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system." Gannett Co., Inc. v. ...

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