People v. Roper

547 P.3d 1154

2024 COA 9

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Zachary Orion ROPER, Defendant-Appellant.

Court of Appeals No. 21CA0309

Colorado Court of Appeals, Div. VII.

Announced January 25, 2024

Boulder County District Court No. 19CR447, Honorable Thomas F. Mulvahill, Judge

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE TOW

¶ 1 The COVID-19 pandemic had far-reaching effects on every aspect of life, and the criminal justice system was certainly no exception. Courts had to grapple with the difficult question of how to conduct a jury trial in a manner that simultaneously protected the defendant’s rights to a speedy and fair trial, while safeguarding the health of the participants and the public. In particular, the virus necessitated certain social distancing requirements, making the task of providing a public trial even more challenging.

¶ 2 One common method adopted by courts was to provide an audio and video livestream of the proceedings to the public. In many cases, this included permitting the public to view the proceedings while sitting, socially distanced, in a different courtroom in the courthouse.

¶ 3 The trial court invoked this procedure when defendant, Zachary Orion Roper, was tried for and convicted of sexual assault (victim helpless) and sexual assault (victim incapable of appraising the nature of their conduct). On appeal of his conviction, Roper contends, among other things, that this arrangement was a partial courtroom closure that was not supported by sufficient findings. See Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (holding that a trial court "must make findings adequate to support the closure"). He further contends that the failure to make adequate findings to justify the partial courtroom closure constitutes structural error requiring automatic reversal of his convictions.

[1] ¶ 4 Roper’s challenge requires us to resolve a question that has often been mentioned but never conclusively resolved by a Colorado appellate court: Does the trial court’s failure to make sufficient findings at the time of the court closure amount to structural error or can that insufficiency be remedied by remanding to the trial court for further findings? We conclude that, where the trial court’s findings are incomplete, but it appears that a remand would not be futile, an appellate court is not precluded from remanding to the trial court for more findings. We further conclude that such a remand is appropriate here.

I. Background

¶ 5 Roper’s trial was originally scheduled for April 2020, but he requested a continuance due to the COVID-19 pandemic. The People agreed, and the case was continued. After a second continuance, Roper’s trial was rescheduled for October 2020. Roper asked for a third continuance because of the pandemic, stating that he would waive his speedy trial right. Roper also requested that four family members and four friends be permitted to attend his trial in person. He asserted that not allowing these people to be present in the courtroom during his trial would violate his right to a public trial.

¶ 6 At the pretrial hearing, the trial court denied Roper’s request for a third continuance. The trial court and parties then discussed the modified trial procedures in place as a result of the pandemic. The trial court noted that these procedures were "formulated with the input of the district attorney, the office of the public defender, probation, [and] security, and [were] ultimately vetted and approved by Boulder County Public Health."

¶ 7 The trial court also mentioned Waller and stated that "[w]e are not going to be able to accommodate family members or friends in the actual courtroom during the trial." Instead, the trial court advised the parties that, due to current COVID-19 health and safety regulations, jury selection would be done in one of two essentially identical courtrooms that could hold twenty-two potential jurors with appropriate social distancing, and the jury assembly room could hold twenty-eight additional potential jurors who would observe the jury selection via Webex. The court informed the parties that the trial would be in a smaller courtroom, and that the public could observe the trial proceedings via Webex, either online or from the public viewing area located in another courtroom in the courthouse. The court said that during the trial, the twelve jurors would be seated in the gallery bench seats. The court also agreed — at Roper’s request — to advise each witness that the trial was being observed via Webex.¹

¶ 8 Both during the pretrial hearing and at the start of trial, Roper objected to restricting the public’s access to the courtroom. In response to the latter objection, the trial court said, "With respect to your position about the public in the courtroom, the court facilities aren’t sufficiently large to allow the public to be in the physical courtroom where the trial is taking place. So public access to the courtroom is being provided through Webex." The court also stated that Roper’s family could watch the livestream in the adjacent courtroom and could have contact with Roper during breaks.

¶ 9 After the trial, in a written and signed minute order describing the trial proceedings, the trial court noted that the trial "proceedings were held pursuant to the health and safety provisions of the 20th Judicial District Court’s Administrative Order 20-110 - Resumption of Jury Trials." The trial court also noted the applicability of "the 20th Judicial District Court’s Plan for Resuming Jury Trials Safely During Covid-19 Health Emergency." Neither of those documents is in the record.

II. Courtroom Closure

¶ 10 Roper contends that the trial court’s exclusion of all members of the public from the courtroom, despite their being able to view the trial in a separate courtroom via a live audio and video stream, constituted a complete closure of the courtroom. Further, Roper contends that the closure, whether complete or partial, was not justified under Waller and thus violated his right to a public trial under the Sixth Amendment to the United States Constitution and article II, section 16 of the Colorado Constitution, resulting in structural error requiring automatic reversal. We conclude — consistent with other divisions of this court — that the separate courtroom livestream arrangement constituted a partial closure and further agree that the trial court’s findings were insufficient to support that partial closure. But we disagree that the mere inadequacy of the court’s findings rises to structural error.

A. The Right to a Public Trial

[2] ¶ 11 The United States and Colorado Constitutions guarantee criminal defendants the right to a public trial. See U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16. "This right ‘is 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.’ " People v. Jones, 2020 CO 45, ¶ 16, 464 P.3d 735 (quoting Waller, 467 U.S. at 46, 104 S.Ct. 2210).

[3–5] ¶ 12 Courtroom closures, whether total or partial, can violate a defendant’s right to a public trial. Id. at ¶ 27. But a defendant’s right to a public trial is not absolute, and at times it must yield to competing interests. People v. Lujan, 2020 CO 26, ¶ 15, 461 P.3d 494 (citing Waller, 467 U.S. at 45, 104 S.Ct. 2210). As the United States Supreme Court articulated in Waller, for a courtroom closure to be justified,

the party seeking to close the hearing must advance 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 adequate to support the closure.

467 U.S. at 48, 104 S.Ct. 2210.

[6–8] ¶ 13 In some circumstances, even if the trial court fails to make the necessary Waller findings, "some closures are simply so trivial that they do not rise to the level of a constitutional violation." Lujan, ¶ 16. In determining whether a closure was trivial, we "consider whether it implicated the protections and values of the public trial right." Id. at ¶ 28. These values include ensuring a fair trial, reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions, encouraging witnesses to come forward, and discouraging perjury. Id. at ¶ 14. In analyzing whether a closure implicates the public trial right, the court must consider the duration of the closure, the substance of the proceedings that occurred during the closure, whether the proceedings were later memorialized in open court or placed on the record, whether the closure was intentional, and whether the closure was total or partial. Id. at ¶ 19. This inquiry considers the totality of the circumstances, and no single factor is dispositive. Id.

B. Standard of Review

[9] ¶ 14 "Because a trial court’s decision to close the courtroom presents a mixed question of law and fact, we review the court’s legal conclusions de novo and its findings of fact for clear error." People v. Turner, 2022 CO 50, ¶ 19, 519 P.3d 353 (citation omitted).

C. Closure

[10] ¶ 15 The People argue that the livestream arrangement constitutes a fully public trial and, thus, is not a closure at all. Initially, we note that it is not clear that the People should be permitted to advance this argument, given that the prosecutor at trial characterized the arrangement as a partial closure. Regardless, we find no merit in the contention. If the livestreaming of a trial were not at least a partial...