Ayala v. Speckard

Citation131 F.3d 62
Decision Date03 December 1997
Docket NumberD,1363 and 1669,Nos. 1304,s. 1304
Parties26 Media L. Rep. 1129 Steven AYALA, Petitioner-Appellant, v. Hubert SPECKARD, Superintendent of Groveland Correctional Facility, Respondent-Appellee. Charles OKONKWO, Petitioner-Appellee, v. Peter J. LACY, Superintendent of Bare Hill Correctional Facility, Respondent-Appellant, Howard PEARSON, Petitioner-Appellant, v. Charles JAMES, Superintendent of Collins Correctional Facility, Respondent-Appellee. ockets 95-2463, 95-2626 and 95-2801. . Petition for Rehearing In Banc
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Richard M. Greenberg, Appellate Defender's Office, New York City, for appellants Ayala and Pearson, and appellee Okonkwo.

Mark Dwyer, Asst. Dist. Atty., New York City (Robert M. Morgenthau, Dist. Atty., Mark Frazier Scholl, Eleanor J. Ostrow, Asst. Dist. Attys., New York City, on the brief), for appellee James and appellant Lacy.

Joseph N. Ferdenzi, Chief, Appeals Bureau, Dist. Atty.'s Office, Bronx, NY (Robert T. Johnson, Dist. Atty., Howard B. Sterinbach, Asst. Dist. Atty., Bronx, NY, on the brief), for appellee Speckard.

Before: WINTER, Chief Judge, NEWMAN, * KEARSE, CARDAMONE, ** MINER, *** ALTIMARI, WALKER, McLAUGHLIN, JACOBS, LEVAL, CALABRESI, CABRANES, and PARKER, Circuit Judges.

Opinion for the Court by Judge JON O. NEWMAN, in which Chief Judge WINTER and Judges KEARSE, MINER, McLAUGHLIN, LEVAL, CALABRESI, and JOSE A. CABRANES join; opinion by Judge WALKER, in which Judge JACOBS joins, concurring in the judgment, but declining to reach the merits because of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 103 L.Ed.2d 334 (1989); dissenting opinion by Judge PARKER, in which Judges CARDAMONE and ALTIMARI join.

JON O. NEWMAN, Circuit Judge:

We granted rehearing in banc in three unrelated cases to consider issues concerning the lawfulness of the exclusion of the public from a criminal trial during the testimony of an undercover police officer. Each case presents primarily two specific issues: (1) whether the prosecution established a sufficient justification for courtroom closure to override the defendant's usual right to a public trial, and (2) whether a trial judge, acting upon a request for courtroom closure, is required to consider sua sponte alternatives to closure during the testimony of one witness. These issues arise on appeals in three cases that considered petitions for habeas corpus filed by prisoners challenging state court convictions. In No. 95-2463, Steven Ayala appeals from the June 26, 1995, decision of the District Court for the Southern District of New York (John F. Keenan, Judge) denying his petition. In No. 95-2626, Peter J. Lacy, Superintendent of Bare Hill Correctional Facility, appeals from the June 19, 1995, judgment of the District Court for the Southern District of New York (Shira Scheindlin, Judge) granting the petition of Charles Okonkwo. In No. 95-2801, Howard Pearson appeals from the October 26, 1995, judgment of the District Court for the Southern District of New York (Peter K. Leisure, Judge), denying his petition.

We conclude that in all three cases the prosecution sufficiently justified the courtroom closure, and that a trial judge, having already considered closure during the testimony of one witness as an alternative to complete closure, is not required to consider sua sponte further alternatives to closure but needs to consider only further alternatives suggested by the parties. We therefore affirm in No. 95-2463 (Ayala) and No. 95-2801 (Pearson) and reverse in No. 95-2626 (Okonkwo).

Background

All three petitioners were convicted in separate trials in New York Supreme Court of selling drugs. Their convictions were based on so-called "buy and bust" activities of undercover police officers. The officer, posing as a narcotics user, purchases the drugs, and the seller is arrested shortly thereafter. The details of the offenses are set forth in the panel opinions. See Ayala v. Speckard, 89 F.3d 91, 92 (2d Cir.) ("Ayala I "), modified on denial of rehearing, 102 F.3d 649 (2d Cir.1996) ("Ayala II "); Okonkwo v. Lacy, 104 F.3d 21, 22 (2d Cir.1997) ("Okonkwo "); Pearson v. James, 105 F.3d 828, 829 (2d Cir.1997) ("Pearson "). We detail separately the circumstances concerning the courtroom closure in each case.

In No. 95-2463 (Ayala), the State moved to close the courtroom to spectators during the testimony of Detective Willie Dotson, the undercover officer who purchased drugs from Ayala. At a hearing before the state court trial judge, Dotson testified that he had been making undercover drug purchases for two years and expected to continue doing so for approximately six months in the 41st Precinct of New York City, the precinct to which he was assigned. See Ayala I, 89 F.3d at 92-93. He also testified that he had been working in the specific area where Ayala's sale occurred for the past month and knew that he would be returning there after his trial testimony. Transcript of State Court July 15, 1991, Hearing ("Ayala Transcript") at 42. He identified that location as "the area around 1006 Intervale Avenue." Id. at 46. Dotson asserted that if he was recognized by people in the courtroom and then returned to "this particular area," he would "fear for [his] life." Ayala I, 89 F.3d at 93. He also testified that, on prior occasions while he was working undercover, people on the street had indicated to others that he was a police officer. He also admitted that he testified about the need for courtroom closure in every case in which his purchases occasioned a trial. The trial judge credited Dotson's testimony, Ayala Transcript at 50-52, and ordered the courtroom cleared of spectators during Dotson's trial testimony. The judge made clear that he would be "troubled by the testimony of an officer who simply makes this application in every case regardless of any circumstances which appl[y] specifically to the particular case in question," id. at 50, and relied primarily on the fact that Officer Dotson would be returning to the precise location in which he had arrested the defendant, id. at 51.

In No. 95-2626 (Okonkwo), the State moved at an in camera hearing to close the courtroom to spectators during the testimony of John Swift, the undercover officer who had purchased drugs from Okonkwo. He was a member of the Manhattan South Tactical Narcotics Team, with responsibility to investigate street sales of narcotics south of 59th Street in Manhattan. Swift testified that undercover officers follow the practice of "maintenance," returning to the location where they had previously made drug purchases. Transcript of State Court February 5-6, 1990, Hearing ("Okonkwo Transcript") at 4-5. He said that he expected to engage in "maintenance" in the area where he had purchased drugs from Okonkwo, id. at 7, which he described as "Cooper Square," id. at 6.

Swift testified that his life would be in danger if his identity as an undercover officer was "exposed to the community in the area where [he] would operate." Okonkwo, 104 F.3d at 23. The trial judge found that Swift continues to work in the "general area" where the crime occurred, and that, if his identity became known, his life or at least his continuing undercover activity would be jeopardized. He therefore ordered the courtroom closed to spectators during Swift's trial testimony. Okonkwo Transcript at 9.

In No. 95-2801 (Pearson), the State moved to close the courtroom to spectators during the trial testimony of Denise DiBenedetto, the undercover officer who purchased drugs from Pearson. Like the officer who purchased from Okonkwo, she was assigned to the Manhattan South Tactical Narcotics Team. DiBenedetto testified that she had been working as an undercover officer for 15 months and was currently active in the area of "West 42nd Street and Eighth Avenue" in Manhattan. Transcript of State Court September 7, 1990, Hearing ("Pearson Transcript") at 20. She said that she had been working in the described area 25 times in the past 30 days and was continuing to work there on ongoing investigations.

When asked what could happen if her identity was revealed to the public, she answered, "Okay my cover could be blown and I could get killed." Pearson Transcript at 22. The trial judge found that DiBenedetto was still active in the area where she bought drugs from Pearson and that she had reason to fear retaliation if her identity was disclosed. Responding to the defendant's contention that courtroom closure during the testimony of undercover officers would be "automatic" if permitted in Pearson's case, the trial judge disagreed, pointing out that in the last hearing he had held on a similar claim, he had denied closure. In Pearson's case, the judge ordered the courtroom closed to spectators during DiBenedetto's trial testimony.

Prior Proceedings

Ayala. Ayala's conviction was affirmed, People v. Ayala, 202 A.D.2d 262, 608 N.Y.S.2d 642 (1st Dep't 1994), and leave to appeal to the New York Court of Appeals was denied, People v. Ayala, 83 N.Y.2d 908, 614 N.Y.S.2d 390, 637 N.E.2d 281 (1994). His petition for a writ of habeas corpus to challenge his conviction on the ground of a denial of his constitutional right to a public trial was denied by Judge Keenan.

A panel of this Court, consisting of Judges Cardamone, Altimari, and Parker, reversed. Ayala I, 89 F.3d at 92. Writing for the panel, Judge Altimari relied on two grounds. First, he ruled that, although the State had an overriding interest in protecting both "the safety, as well as the confidentiality" of an undercover officer, the State had failed to show "a substantial probability" that this interest "would likely have been prejudiced" if the officer had testified in open court. Id. at 95. He pointed out that the officer had testified that there was nothing special about Ayala's trial that made him fearful, and had not suggested that anyone in a position to "blow" his cover was likely to...

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