Davis v. Reynolds

• Decision Date: 30 November 1989
• Docket Number: No. 88-1673,88-1673
• Citation: 890 F.2d 1105
• Parties: 17 Media L. Rep. 1151 Clark DAVIS, Petitioner-Appellant, v. Dan M. REYNOLDS, Warden; and Robert H. Henry, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1105

890 F.2d 1105

17 Media L. Rep. 1151

Clark DAVIS, Petitioner-Appellant, v. Dan M. REYNOLDS, Warden; and Robert H. Henry, Attorney General, Respondents-Appellees.

No. 88-1673.

United States Court of Appeals Tenth Circuit.

Nov. 30, 1989.

Gary Peterson, Oklahoma City, Okl., for petitioner-appellant.

Timothy S. Gilpin, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen. of Okl., and Rozia McKinney-Foster, Asst. Atty. Gen., Deputy Chief, Federal Div., on the brief), Oklahoma City, Okl., for respondents-appellees.

Before McKAY and ANDERSON, Circuit Judges, and BRATTON, ^* District Judge.

STEPHEN H. ANDERSON, Circuit Judge.

Clark A. Davis appeals from the district court's order dismissing his petition for a writ of habeas corpus. He contends that the state trial court improperly excluded the general public and the press from his trial during a complaining witness's testimony, thereby violating his Sixth Amendment right to a public trial. That argument was presented to and rejected by the Oklahoma Court of Criminal Appeals, which affirmed Davis' conviction in the state district court. Davis v. State, 728 P.2d 846 (Okla.Crim.App.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 677 (1987). Davis then filed a post-conviction application for relief in the Oklahoma trial court. The state trial court denied relief, and its decision was affirmed by the Oklahoma Court of Criminal Appeals. Davis v. State, No. PC-87-810 (Okla.Crim.App. Nov. 9, 1987). Davis then petitioned the federal district court for a writ of habeas corpus. The district court dismissed Davis' petition, and this appeal followed. After reviewing the record and examining Davis' arguments, we reverse the decision of the district court, and remand with instructions.

BACKGROUND

On April 10, 1984, an Oklahoma jury found Davis guilty of three counts of rape in the first degree. The trial court sentenced Davis to three consecutive prison terms of thirty years each. According to the evidence at trial, three sixteen year old girls who had been roommates at a juvenile facility in Tahlequah, Oklahoma, walked and/or hitchhiked to Checotah, Oklahoma to the home of Carolyn Stevens, one of the girls' aunt. At that time, Davis was living in the Stevens home. One of the girls testified that Davis raped her on three different occasions during their overnight stay in the Stevens home. ¹ Although she testified that Davis had not actually wielded a weapon during any of these rapes, she testified that she was scared by Davis, and that she continued to object verbally and physically during each of the rapes. She also testified that she had witnessed Davis rape her companion, another sixteen year old girl, while the two girls were in the same bed together.

At Davis' trial, before the jury was impaneled or any testimony had been taken, the prosecutor requested that "the public be excluded" during the complaining witness' testimony. R.Supp.Vol. I, Transcript of Jury Trial, at 3 (hereinafter "Trial Tr."). The prosecutor noted that the judge at the preliminary hearing had cleared the courtroom during this witness' testimony, that the witness had experienced "some emotional and psychological trauma associated with this incident," ² and that the defendant would not be prejudiced by clearing the courtroom. The prosecutor summarized: "it is just the matter of saving her some embarrassment and humiliation; we feel it is purely discretionary with the court and since there is no prejudice to the defendant we would urge the motion be granted." Trial Tr. at 4.

Davis' attorney objected, asserting:

"[T]here is no evidence or doctor's report or psychologist or psychiatrist report which would indicate her testifying in court is going to cause any traumatic harm to her mental condition. If there was a report in the record stating that was the case it might be a different story, but I think she is the complaining witness and I think she is not entitled to have the exclusion of all members of the general public from the courtroom. The defendant is entitled to a speed[y] public trial, if you exclude [the] public [from] portions of the trial I think all it would do really would be to facilitate or cause people to ... tell less of the truth, ... not [to] be fair and cand[id] in their testimony in open court...."

Id. at 5, 6. Finally, the prosecutor informed the judge that "the witness we are talking about is under the age of sixteen, she is a minor...." Id.

Without taking any evidence concerning the witness' condition, and without interviewing the witness or her parents, the trial court granted the motion to exclude the public during the complaining witness' testimony. The court cited its reasons for the closure: "one, the age of the alleged victim is fifteen years, if she was in a juvenile proceedings the public would be excluded anyway; secondly, the defendant will have a right to confrontation, the jury will be there and can observe the demeanor and trustworthiness of the witness and I don't see that the defendant is prejudiced by it...." Id. at 6. When the prosecution called the complaining witness to take the stand, the trial court ordered that "all the spectators will have to leave the courtroom; the courtroom will be closed for purpose of taking testimony of this witness only." Id. at 32.

SIXTH AMENDMENT RIGHT TO A PUBLIC TRIAL

A criminal defendant has a constitutional right to insist on a public trial. ³ The explicit language of the Sixth Amendment guaranteeing every criminal defendant a "speedy and public trial," is undoubtedly for the protection of the accused. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2905-06, 61 L.Ed.2d 608 (1979); In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948). One of the major purposes for the public trial guarantee, as Davis' counsel correctly stated, is to safeguard the defendant from potentially perjurious or abusive testimony. See Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 1662, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring) ("[T]he public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.").

Although the right to an open trial is not absolute, that right will only rarely give way to other interests. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984) ("[T]he right to an open trial may give way in certain cases to other rights or interests.... Such circumstances will be rare however...."). An accused's right under the Sixth Amendment must be carefully balanced against the government's competing interest in protecting vulnerable witnesses from embarrassment and harm. Speaking of the right to a public trial, the United States Supreme Court has said:

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

Waller, 467 U.S. at 45, 104 S.Ct. at 2215 (1984) (quoting Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 824, 78 L.Ed.2d 629 (1984)); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100 S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) ("Absent an overriding interest, articulated in findings, the trial of a criminal case must be open to the public."). ⁴

Recent decisions have developed a more lenient standard for closure orders which only partially exclude the public or are otherwise narrowly tailored to specific needs. See Nieto v. Sullivan, 879 F.2d at 753 (Where state appeals court observed that only the defendant's relatives were excluded, and only during one witness' testimony, such a partial closure is subject to a lesser, "substantial reason" standard rather than the strict "overriding interest" standard applicable to total closures.); United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir.1989) (trial court's exclusion of defendant's relatives during portions of trial upheld under more lenient test for partial closures); Douglas v. Wainwright, 739 F.2d 531, 532-33 (11th Cir.1984), cert. denied, 469 U.S. 1208, 105 S.Ct. 1170, 84 L.Ed.2d 321 (1985) ("impact of partial closure is 'not a kind presented when a proceeding is totally closed to the public, and therefore only a "substantial" rather than "compelling" reason for the closure is necessary.' ").

The trial court's order in this case made no exceptions for members of the press or for relatives of the defendant. We are not faced, therefore, with a partial closure or a closure tailored to protect the conflicting interests of the defendant in a public hearing and the government's interest in protecting a susceptible or vulnerable witness. We therefore apply the "overriding interest" standard articulated in Waller to the trial court's order.

To justify an order completely excluding the public from portions of a criminal proceeding, "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." Waller v. Georgia, 467 U.S. at 48, 104 S.Ct. at 2216. The prosecutor's best articulation of the government's interest in the closure of Davis' trial was that "we are trying to save [the witness] some problem and embarrassment." Trial Tr. at 6. Although the prosecutor hinted at some vague psychological problems that could possibly accompany the witness' testifying, it is not clear from the record what specific problems were foreseen, why they would have occurred,...