People v. Roper.

2024 COA 9. No. 21CA0309. Sixth Amendment Right to Public Trial—Partial Courtroom Closure—Waller Test—Findings—Structural Error.

January 25, 2024

Roper was tried for sexual assault (victim helpless) and sexual assault (victim incapable of appraising the nature of their conduct). He requested that four family members and four friends be permitted to attend his trial in person, asserting that not granting this request would violate his right to a public trial. The trial court and parties discussed the modified trial procedures in place as a result of the COVID-19 pandemic, and the trial court stated that family members or friends could not be accommodated in the actual courtroom during the trial. The court informed the parties that the trial would take place in a smaller courtroom and the public could observe the trial proceedings via Webex, either online or from the public viewing area in another courtroom in the courthouse. Roper objected to the restrictions, but the trial proceeded as planned. He was convicted as charged.
On appeal, Roper argued that the trial court’s exclusion of all members of the public from the courtroom constituted a complete courtroom closure, notwithstanding their ability to view the trial in a separate courtroom via a live audio and video stream. He maintained that the closure, whether complete or partial, was not justified under Waller v. Georgia, 467 U.S. 39 (1984), and thus violated his Sixth Amendment right to a public trial, resulting in structural error requiring automatic reversal. Under Waller, for a courtroom closure to be justified, the party seeking to close the hearing must show an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings sufficient to support the closure. Here, the closure lasted throughout the trial, and it was intentional and precluded in-person attendance by Roper’s family. Accordingly, the closure was sufficient to implicate Roper’s right to a public trial. Further, the court’s statements about the closure were inadequate under Waller to determine whether the closure could have been narrower or whether other reasonable alternatives existed. And the record does not contain evidence describing the physical layout of the trial courtroom or the availability of other courtrooms. Therefore, the separate courtroom livestream arrangement constituted a partial closure, which the trial court’s findings insufficiently supported. However, the mere inadequacy of the court’s findings does not rise to structural error, and a remand for further findings would not be futile.
The case was remanded to the trial court, with instructions, for the limited purpose of making supplemental Waller findings.