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The Colorado Supreme Court en banc affirmed in part and reversed in part two consolidated cases involving the Sixth Amendment.
Terrel Turner and Christopher Cruse were jointly tried and convicted in connection to a burglary of a marijuana dispensary. According to court records, during the second day of trial, Cruse’s wife and Turner’s friend, Yolanda Cruse was arrested and charged with multiple counts from an alleged hostile encounter she had with a prosecution witness and victim advocate outside the courtroom. The trial judge excluded Yolanda Cruse from the courtroom for the remainder of the trial.
On appeal, that court found Yolanda Cruse’s exclusion was non-trivial and in absence of findings under Waller v. Georgia, the partial courtroom closer violated the defendants’ public trial right. That court further concluded the error was structural, reversed Turner’s and Christopher Cruse’s convictions and remanded for a new trial.
Under the Waller test, multiple requirements need to be met: the party wanting to close the proceeding needs to advance an overriding interest that is likely to be prejudiced; that closure must be not be broader than necessary to protect that interest; the trial court has to consider other alternatives to close the proceeding; and the trial court needs to make findings to support the closure.
The high court found the exclusion of Yolanda Cruse was a closure implicating the Sixth Amendment, but under the circumstances of this case, a new trial is unwarranted. The Colorado Supreme Court concluded that any courtroom closure implicates the Sixth Amendment public trial right and the test established in Waller, with no exclusion-for-cause exception.
The high court held that when the removal of a disruptive spectator leads to a non-trivial closure, that closure needs to satisfy the Waller test. In this case, the trial court’s exclusion of a spectator was a non-trivial, partial closure according to the high court.
The Supreme Court surmised the trial court failed to expressly apply the Waller test, but the record supports the closure was justified under Waller and didn’t violate the defendant’s Sixth Amendment rights.
“But structural error doesn’t flow simply from the trial court’s failure to employ the precise language found in Waller,” wrote Justice William Hood in the opinion. “After all, we typically gauge compliance by substance, not form. And while the Waller court expressed some reluctance to consider certain ‘post hoc assertion[s]’ by the Georgia Supreme Court, it said nothing to foreclose appellate review when the trial court overlooks a particular incantation.”
The Supreme Court affirmed in part and reversed in part. It affirmed the portion that ruled Yolanda Cruse’s exclusion constituted a non-trivial, partial closure. But it reversed the portion of the judgment reversing the convictions and remanding for a new trial. The Supreme Court remanded the case for further proceedings consistent with the opinion.
Chief Justice Brian Boatright concurred in the judgment, agreed the defendants’ public trial right wasn’t violated and agreed with the majority’s conclusion. Boatright, however, noted he would hold the trial court’s removal of a disruptive spectator — an exclusion for cause — didn’t implicate the Sixth Amendment or Waller test.
“When trial judges exclude people from the courtroom for their own conduct, that exclusion is not a closure that implicates the Sixth Amendment or Waller v. Georgia,” Boatright wrote. “Rather, judges in these instances are merely exercising their discretion to ensure the safety, fairness, and efficiency of the trial. Therefore, although I agree that a new trial is unwarranted, I believe we should review this type of exclusion for an abuse of discretion and not require courts to apply the Waller factors in these situations.”
In dissent, Justice Richard Gabriel agreed the exclusion constitutes a non-trivial, partial closure implicating the Sixth Amendment and Waller test. Gabriel contended the lack of express Waller findings should result in the reversal of Turner and Christopher Cruse’s convictions and be remanded for a new trial.
“Instead, the majority concludes that the trial court’s findings were somehow ‘adequate’ to support the closure order under Waller, and the majority justifies this conclusion by making what appear to me to be its own findings of fact,” Gabriel wrote. “This result, however, is directly contrary to Waller’s express admonition against post hoc appellate assertions that the trial court had balanced the co-defendants’ rights to a public trial against any countervailing interests.”