State v. Rolfe

851 N.W.2d 897

2014 S.D. 47

STATE of South Dakota, Plaintiff and Appellee,

v.John A. ROLFE, Defendant and Appellant.

No. 26724.

Supreme Court of South Dakota.

Considered on Briefs April 28, 2014.

Decided July 16, 2014.

Marty J. Jackley, Attorney General, Ann C. Meyer, 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.] A jury convicted Defendant and Appellant John Rolfe on three counts of first-degree rape of a minor and twelve counts of possessing, manufacturing, or distributing child pornography. In his first appeal, this Court determined that the trial court improperly closed Rolfe's trial to the public without making sufficient findings on the record to support the closure. We remanded the case to allow the trial court to enter supplemental findings regarding the closure. On remand, Rolfe moved for a new trial, alleging that remanding for supplemental findings was an inappropriate remedy. The trial court denied the motion. In this appeal, Rolfe alleges that the trial court on remand abused its discretion by denying his motion for a new trial and that the trial court improperly closed his trial in violation of his Sixth Amendment right to a public trial. We affirm.

FACTS

[¶ 2.] The underlying facts of this case are set forth in State v. Rolfe, 2013 S.D. 2, 825 N.W.2d 901 ( Rolfe I ). Rolfe was convicted of three counts of first-degree rape of a minor, A.F., and twelve counts of possessing, manufacturing, or distributing child pornography. The trial court sentenced Rolfe to three concurrent life sentences without parole for the rape convictions and twelve consecutive ten-year sentences for the child pornography counts. On the third day of Rolfe's trial, the State invoked SDCL 23A–24–6 and requested the courtroom be closed to members of the general public during A.F.'s testimony.¹ Over Rolfe's objection, the trial court granted the request.

[¶ 3.] On appeal, Rolfe argued that the trial court erred when it excluded the generalpublic from the courtroom during A.F.'s testimony without addressing the factors required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). We agreed, stating: “The trial court failed to address all of the Waller factors and make specific findings regarding the closure of the courtroom.” Rolfe I, 2013 S.D. 2, ¶ 32, 825 N.W.2d at 911. We remanded for “the trial court to make specific findings based on Waller, Farmer, and Globe Newspaper Co.'s standards for closure.” Id. See also Waller, 467 U.S. at 48, 104 S.Ct. at 2216; United States v. Farmer, 32 F.3d 369, 371–72 (8th Cir.1994); Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 608, 102 S.Ct. 2613, 2621, 73 L.Ed.2d 248 (1982). Our decision instructed the trial court to “supplement the record with specific findings and reasoning” and determine whether there was an overriding interest or substantial reason to justify total or partial closure. Rolfe I, 2013 S.D. 2, ¶ 26, 825 N.W.2d at 909.

[¶ 4.] On remand, the trial court held a supplemental hearing concerning the courtroom closure. After the hearing, the trial court issued extensive findings of fact and conclusions of law. Based on evidence before the trial court before and during the trial, the trial court found, inter alia: 1) the courtroom closure during A.F.'s testimony was a partial closure and a complete closure of the courtroom was never requested by either party or ordered by the court; 2) at all other times throughout the trial the courtroom was completely open to the public; 3) present during A.F.'s testimony were the jurors, members of the media, A.F.'s mother, and the victim's assistant, 4) in effect, the order only excluded other members of A.F.'s family—no civil witnesses or supporters of Rolfe were present at the time the courtroom was closed, 5) “there was minimal change in the dynamic of the courtroom when A.F. testified, as compared with the rest of the trial, when the courtroom was open[;]” 6) prior to trial, the trial court had opportunity in a 404(b) hearing to observe A.F.'s demeanor and hear many details of the sexual abuse; 7) the trial court observed that A.F. was fearful of Rolfe and “highly humiliated, embarrassed, ashamed, and traumatized” by Rolfe; 8) during the 404(b) hearing A.F. “presented as childlike, innocent, and did not know certain sexual terminology used by Defense counsel[;]” and 9) A.F. appeared to be fearful of Rolfe's influence over her and her family.

[¶ 5.] The trial court also adopted as findings of fact much of the supplemental hearing testimony from A.F.'s counselor. The trial court found that this additional evidence from the supplemental hearing verified that A.F. was humiliated and traumatized by the abuse and that A.F. “sought to protect others from the details of her abuse.” Specifically, the trial court found that: 1) A.F. initially refused to acknowledge the sexual abuse and “only began to disclose after she discovered the Defendant was in jail, would not be getting out anytime soon, and would be unable to contact her;” 2) A.F. was psychologically immature and did not have full understanding of sexually explicit terminology; 3) each testifying member of A.F.'s family felt it was in the family's best interest that the courtroom be closed; 4) A.F. did not want to upset family members with the details of her victimization and was worriedabout strangers in the courtroom and that she would not be able to answer questioning as completely in an open courtroom; 5) A.F.'s counselor supported the closure of the courtroom because A.F. had difficulty detailing her victimization to anyone and was physically ill from stress and anxiety at the time of trial; 6) A.F. felt confused, betrayed, unloved, embarrassed, and guilty like she had done something to deserve the abuse; 7) an open courtroom risked further emotional and physical harm to A.F.; 8) fewer people in the courtroom made the courtroom less stressful and distracting to A.F. during her trial testimony; and 9) “an open courtroom, without any closure, during A.F.'s testimony, would not be in A.F.'s best interests, and would traumatize her further.”

[¶ 6.] The trial court concluded that SDCL 23A–24–6 gave the trial court discretion to weigh competing interests and minimize the number of spectators while allowing for public observation of the trial through news media. The trial court also concluded that because the closure was partial, a “substantial reason” rather than an “overriding interest” had to exist to justify closure. The trial court weighed the Globe Newspaper Co. and Farmer factors, including the victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives. The trial court found that a substantial reason existed for closing the courtroom and that the Waller factors supported the partial closure.

[¶ 7.] Rolfe appeals, asserting that a new trial was the only appropriate remedy to cure the error in his original trial. He also argues that the trial court erred in concluding that sufficient justification existed to close the courtroom to members of the general public during A.F.'s testimony.

ANALYSIS AND DECISION

[¶ 8.] I. Whether remanding for the trial court to make specific findings was an appropriate remedy.

[¶ 9.] On appeal, Rolfe first argues that the trial court should have granted his motion for a new trial because a new trial was the only appropriate remedy to the trial court error recognized by our holding in Rolfe I. We review a trial court's decision to deny a motion for new trial under the abuse of discretion standard. State v. Zephier, 2012 S.D. 16, ¶ 15, 810 N.W.2d 770, 773 (citation omitted). Rolfe contends that the violation of his right to a public trial was a structural error requiring a new trial. In essence, Rolfe argues that this Court erred in Rolfe I by remanding the case to the trial court to enter specific findings on the Waller factors after finding that a Sixth Amendment violation had occurred. He argues that the remand impermissibly gave the State an opportunity to “manufacture an after-the-fact rationale [for closure] that is constitutionally defensible.” Accordingly, Rolfe argues that the trial court erred when it denied his motion for a new trial.

[¶ 10.] In response, the State argues that Rolfe's motion for a new trial was an improper attempt to resurrect Rolfe's direct appeal and subvert the remand process by attacking this Court's decision in Rolfe I. The State also argues on the merits that the remedy ordered in Rolfe I was appropriate.² However, we need not answerthe question of whether a remedy short of a new trial is sufficient to address the trial court error we found in Rolfe I. We answered that question in Rolfe I when we specifically considered what relief would be appropriate and then ordered the trial court on remand to “make specific findings based on Waller, Farmer, and Globe Newspaper Co.'s standards for closure.” Rolfe I, 2013 S.D. 2, ¶ 32, 825 N.W.2d at 911.

[¶ 11.] We recently addressed the nature of our remand instructions in State v. Piper:

Our directives on remittal are clear on the face of our opinions. If we affirm, the circuit court shall enter final judgment. Where we order reversal without any qualification, as in a general remand, “the mandate nullifies the judgment, findings of fact, and conclusions of law, and leaves the case standing as if no judgment or decree had ever been entered.” Between these two extremes is the limited remand, for which our instructions must exactly govern.... “When the direction contained in the mandate is precise and unambiguous, it is the duty of the lower court to carry it into execution, and not to look elsewhere for authority to change its meaning.”

2014 S.D. 2, ¶ 11, 842 N.W.2d 338, 343 (citations omitted). Rol...