State v. Bauer

851 N.W.2d 711

2014 S.D. 48

STATE of South Dakota, Plaintiff and Appellee,

v.Jeremy BAUER, Defendant and Appellant.

No. 26719.

Supreme Court of South Dakota.

Argued April 29, 2014.

Decided July 16, 2014.

Marty J. Jackley, Attorney General, Craig M. Eichstadt, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Ellery Grey, Grey Law, Rapid City, South Dakota, Attorneys for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Appellant Jeremy Bauer was convicted by a Pennington County jury of first-degree rape against I.T., who was nine years old at the time of the crime. At trial, the State moved to close the courtroom during I.T.'s testimony to all but the parties, the media, and the State's victim-witness assistant. Bauer's attorney did not object. On appeal, Bauer argues that the closure violated his right to a public trial. Specifically, Bauer asserts that a defendant must personally waive the right to a public trial. Additionally, Bauer argues that the trial court committed reversible error by allowing the closure and that Bauer's trial counsel was ineffective by failing to object to the closure. We affirm.

FACTS

[¶ 2.] In April 2012, I.T., age nine, attended a birthday party at the home of her friend, K.B. During the party, I.T. went upstairs and laid down in K.B.'s room. K.B.'s father, Bauer, followed I.T. up the stairs and laid down behind I.T., so that both were facing the bedroom wall. According to I.T., Bauer then “put his finger down [her] pants” and “inside [her] private area.” I.T. stated that it hurt. When Bauer left the room, I.T. went to the bathroom. She reported that she experienced pain while urinating. I.T. then went downstairs and confronted Bauer, saying he had touched her. Bauer denied the allegation and denied having been upstairs.

[¶ 3.] A grand jury charged Bauer with alternative counts of first-degree rape in violation of SDCL 22–22–1(1) and sexual contact with a child under thirteen in violation of SDCL 22–22–7 and 22–22–1.2(2). Prior to trial, the State moved to partially close the courtroom during I.T.'s testimony. Outside the presence of the jury, the trial court heard arguments on this motion. The State explained that it was prepared to offer testimony to support the closure. A brief exchange then occurred between the judge and Bauer's counsel:

THE COURT: [Defense counsel], what's the defendant's position on this?

[DEFENSE COUNSEL]: Your Honor, I'd leave it in the Court's discretion. I don't have any objection to it if the Court feels there's a finding that supports it.

[¶ 4.] The State then explained that it had witnesses prepared to testify in favor of closure. The State asserted that its witness would explain that I.T. was only ten years old and was somewhat less mature than other girls her age. I.T.'s parents would also testify that they desired that their daughter not to have to talk about the crime in front of any more people than necessary. The State asserted that its witnesses would establish that I.T. became “somewhat emotional and reluctant to talk about the issue” and that a partial closure would make the child more comfortable and reduce the “chilling effect” on I.T.'s ability to recall and testify truthfully about the events. In sum, the State argued that a partial closure—allowing only the parties, necessary court personnel, the media, and the State's victim-witness assistant—would safeguard the psychological well-being of I.T. and keep her testimony as credible and truthful as possible.

[¶ 5.] When the State concluded its arguments, the court again asked Bauer's counsel if there were any objections. Counsel stated there were none. The court then asked if defense counsel wanted to hear testimony from any of the State's witnesses regarding the closure. Defense counsel stated, “No, I'm satisfied.” Based on the arguments, the trial court made oral findings on the record. The court concluded that given I.T.'s age and the nature of the crime, it would be a traumatic experience for her to testify. The court also concluded that not going forward with the closure would prejudice both the accurate presentation of evidence and the ability of the defense to properly cross-examine. The court found these to be substantial reasons for ordering the closure. The judge stated that he considered reasonable alternatives, such as testifying by video, and found that the alternatives were not practical and that the closure ordered was not broader than necessary. The trial court stated it was noteworthy that the media would be allowed to remain in the courtroom.

[¶ 6.] When the State called I.T. as its first witness, the State requested the gallery be cleared of all spectators, except members of the media and the State's victim-witness assistant. Defense counsel again stated, “No objection, Your Honor.” The trial transcript does not reflect how many individuals left the courtroom, but at least one person was asked to leave the courtroom after the judge learned the person was not with the media. I.T. then testified about the incident and defense counsel cross-examined her about her recollection of the incident.

[¶ 7.] Later in the trial, Bauer took the stand and admitted being present in the home at the time of the crime and that he was with I.T. in his daughter's bedroom. However, Bauer denied touching or raping I.T. Bauer also denied that I.T. confronted him with the accusation when she came down the stairs from the bedroom where she had laid down.

[¶ 8.] At the close of the trial, the jury found Bauer guilty of first-degree rape. Bauer was sentenced to 30 years in the penitentiary, with 112 days credit for time served. Bauer appeals his conviction, raising three issues:

1. Whether trial counsel may waive a defendant's right to a public trial.

2. Whether the trial court committed plain error by closing the courtroom to the general public during I.T.'s testimony.

3. Whether trial counsel was ineffective by failing to object to the courtroom closure.

ANALYSIS AND DECISION

[¶ 9.] 1. Whether trial counsel may waive a defendant's right to a public trial.

[¶ 10.] As an initial matter, we are asked to determine whether Bauer's trial counsel had authority to waive Bauer's right to a public trial. The parties do not dispute that defense counsel clearly stated that there were no objections to the closure. The State asserts that Bauer's trial counsel thereby properly waived Bauer's right to a public trial. Bauer contends, however, that waiver of the right to a public trial must be made personally by an informed defendant. He alleges that the trial court's failure to canvass Bauer about the closure violated Bauer's constitutional right to a public trial under the Sixth Amendment. We review alleged constitutional violations de novo. State v. Long Fox, 2013 S.D. 40, ¶ 11, 832 N.W.2d 55, 58 (citation omitted).

[¶ 11.] The United States Supreme Court has stated that “[w]hat suffices for waiver depends on the nature of the right at issue.... For certain fundamental rights, the defendant must personally make an informed waiver. For other rights, however, waiver may be effected by action of counsel.” Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 1769, 170 L.Ed.2d 616 (2008) (citations omitted). “Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.” Taylor v. Illinois, 484 U.S. 400, 417–18, 108 S.Ct. 646, 657, 98 L.Ed.2d 798 (1988) (citations omitted). Bauer asserts that the right to a public trial is not within the purview of counsel's authority to manage the conduct of the trial, but is instead within the class of “certain fundamental rights” that can only be waived personally by the defendant. See Gonzalez, 553 U.S. at 248, 128 S.Ct. at 1769.

[¶ 12.] Bauer correctly notes that the United States Supreme Court has recognized that a deprivation of a defendant's right to a public trial has been held as error. See, e.g., Waller v. Georgia, 467 U.S. 39, 49–50, 104 S.Ct. 2210, 2217, 81 L.Ed.2d 31 (1984). Yet, Bauer fails to cite any binding authority holding that a trial court's failure to personally canvass a defendant regarding a partial closure results in such a deprivation. The United States Supreme Court has identified several rights that cannot be waived without a defendant's personal and informed waiver. See, e.g., Boykin v. Alabama, 395 U.S. 238, 242–43, 89 S.Ct. 1709, 1711–12, 23 L.Ed.2d 274 (1969) (guilty plea must be intelligent and voluntary waiver of right to jury trial, confront witnesses, and self-incrimination); New York v. Hill, 528 U.S. 110, 114–15, 120 S.Ct. 659, 663–64, 145 L.Ed.2d 560 (2000) (waiver of right to counsel and right to plead not guilty must be personal and informed) (citing Johnson v. Zerbst, 304 U.S. 458, 464–465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Brookhart v. Janis, 384 U.S. 1, 7–8, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966)); Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 560, 160 L.Ed.2d 565, 578 (2004) (“A defendant ... has ‘the ultimate authority’ to determine ‘whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.’ ”) (citations omitted). Bauer has not directed our attention to any case, however, in which the United States Supreme Court has placed the right to a public trial in this same category.^*

[¶ 13.] A unifying characteristic of the rights recognized by the Supreme Court requiring personal informed waiver is that those rights affect the defendant's ability to meaningfully participate in the judicial process and are also “of central importance to the quality of the guilt-determining process.” State v. Butterfield, 784 P.2d 153, 156 (Utah 1989) (holding “right to a public trial to be of a different order” than those rights requiring personal and informed waiver). A number of courts have...