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State v. Morales

Supreme Court of North Dakota

July 30, 2019

State of North Dakota, Plaintiff and Appellee
Bradley Joe Morales, Defendant and Appellant

          Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge.

          Rozanna C. Larson, State's Attorney, Minot, N.D., for plaintiff and appellee.

          Bradley J. Morales, self-represented, Bismarck, N.D., defendant and appellant; submitted on brief.


          Tufte, Justice

         [¶1] Bradley Joe Morales appeals a district court criminal judgment following a jury verdict finding him guilty of murdering his ex-girlfriend. Morales argues a motion hearing, evidentiary hearing, and parts of his trial were closed to the public without the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48 (1984), thus violating his right to a public trial guaranteed by the Sixth Amendment. We reverse the judgment and remand for a new trial.


         [¶2] During an argument with his ex-girlfriend, Morales stabbed her in the neck. Morales was initially charged with Criminal Attempt - Murder. After the victim died from her injuries, the district court dismissed the Criminal Attempt charge on the State's motion. The State then charged Morales with Murder. On appeal Morales argues his public trial right was violated by the district court's closures of a motion hearing on March 27, 2018; an evidentiary hearing on April 16, 2018; and parts of the jury trial on May 17-24, 2018. He also argues he was denied his right to represent himself at trial and the State's decision to dismiss the initial charge and file new charges a week later was made in bad faith in an effort to have a new judge assigned to the case.

         [¶3] These court proceedings attracted significant public interest and media attention. Because of news media coverage, the trial judge expressed concern about tainting the jury and impairing Morales's right to a fair and impartial trial. In an attempt to mitigate the risk of tainting potential jurors, the court issued an expansive order on March 15, 2018, advising that "all participants, including potential witnesse[s], are to refrain from making or authorizing extrajudicial comments to the media and the public" encompassing all "out-of-court comments" and subject to "sanctions against the offending individual, including contempt of court."

         [¶4] Morales argues the district court improperly closed the courtroom on eight separate occasions during the trial or pretrial hearings. Seven of the closures were initiated by the court, and one was requested by Morales. Before several of the closures, the court failed to conduct any of the analysis required by Waller. For some, the court discussed the Waller factors after the courtroom had already been closed. Before three of the closures, the court acknowledged the Waller factors but failed to articulate findings on all of the factors. In each of the eight closures, the public was excluded without the court giving consideration to whether the public could remain while the jury was excluded.

         [¶5] The district court closed two pretrial hearings to the public. The first, a March 27, 2018, hearing on Morales's pro se motion for new counsel, was closed by a written order issued prior to the hearing. The closure notice provided no explanation. The amended notice of hearing simply stated "this hearing will be CLOSED TO THE PUBLIC" with "Per Judge" as the only explanation. No findings supporting the closure were made at the hearing. Neither party objected to the closure.

         [¶6] The second closure was of an April 16, 2018, pretrial evidentiary hearing relating to admissibility of evidence under N.D.R.Ev. 404(b). At the close of the March 27 motion hearing, the district court stated its intent to close this hearing:

I will have a new order clarifying on the pretrial being the first part of the April 16th and then we will clear the press out and we will go and deal with the 404(b). That will be a closed hearing for obvious reasons.

         Just before the court excluded the public from the courtroom, the State objected to the closure and reminded the court of the Waller requirements. Morales's trial counsel then expressed concern that Morales's right to a fair trial with an impartial jury would be diminished if the media reported on any inadmissible evidence that would be discussed in open court. The State suggested that by making this argument, Morales was waiving his right to a public trial. The State asked the court to make specific findings and adequately tailor the closure, reasserting that the State did not join in the requested closure. When asked whether Morales concurred with the requested closure, his attorney responded: "Mr. Morales and I are apparently taking a different position, Judge. Mr. Morales will not waive his right to appeal on this issue should an appeal become necessary." Faced with objections from both the State and the defendant, the court then reflected on the level of media coverage:

There [have] been reports, I don't know if all the excessive details that have been reported are going to be admissible or not. And I don't want a jury to be needlessly tainted because somebody perceives that's the public's absolute right to know. The public does have a right to know, and that. It's just a question of balancing the matters of how soon they have a right to know if we are going to be able to have a justice system that works. Both sides are entitled to a fair and impartial jury, and that's what I want us to have here.

         After stating that "I will follow this up with an additional written order," the court closed the courtroom without further pre-closure discussion of alternatives to closing the courtroom or whether the closure might be more narrowly tailored to protect the interest in an untainted jury pool without unnecessarily burdening the public trial right.

         [¶7] The first trial closure occurred just before the jury was given preliminary instructions. The bailiff gave the trial judge a note from a juror who wanted to alert the court he had family working at the hospital where the victim was treated. The district court closed the proceedings, stating: "So if you are part of the public or the media I do ask that you leave temporarily. And just shut down your recording equipment." After closing the courtroom, the court found "no alternatives to closing the courtroom" and characterized the closure as "what we would normally call a conference at the bench." The court then called in the juror who had written the note and questioned him in the presence of Morales and the State about an incident in which people unrelated to the trial had initiated conversation with the juror about the case. The court was satisfied that the juror had complied with the court's admonishment against talking to people about the case, and excused the juror back to the jury room.

         [¶8] The second closure occurred on the first day of trial after the jury had been escorted out for a lunch recess. After a brief discussion with counsel about whether and in what form certain video clips would be played, the court closed the courtroom to the public. After the closure, the court reviewed graphic video clips of the crime scene for analysis under N.D.R.Ev. 403. There was no objection to the closure by Morales or the State, and the court made no findings under Waller.

         [¶9] At the beginning of the second day of the trial, the court closed the trial for a third time to have "a full and candid conversation with the attorneys" about a limiting instruction. The court stated it did not "view that there is an alternative to" the closure. During several closed sessions of court throughout the morning, the court discussed limiting instructions with Morales and the attorneys and also Morales's dissatisfaction with his trial attorney ...

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