Carson v. Fischer, Docket No. 04-3018-PR.

• Decision Date: 23 August 2005
• Docket Number: Docket No. 04-3018-PR.
• Citation: 421 F.3d 83
• Parties: Uniko CARSON Petitioner-Appellant, v. Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Eliot L. Spitzer, New York State Attorney General Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

421 F.3d 83

Uniko CARSON Petitioner-Appellant, v. Brian FISCHER, Superintendent, Sing Sing Correctional Facility, Eliot L. Spitzer, New York State Attorney General Respondents-Appellees.

Docket No. 04-3018-PR.

United States Court of Appeals, Second Circuit.

Argued: May 27, 2005.

Decided: August 23, 2005.

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Amy Irene Donner (Andrew C. Fine, on the brief), The Legal Aid Society, Criminal Appeals Bureau, New York, NY, for Petitioner-Appellant.

Traci R. Wilkerson, Assistant District Attorney (John M. Castellano, Assistant District Attorney, on the brief), for Richard A. Brown, District Attorney, Queens County, Kew Gardens, NY, for Respondents-Appellees.

Before: CALABRESI, KATZMANN, B.D. PARKER, Circuit Judges.

B.D. PARKER, JR., Circuit Judge.

This appeal requires us to consider whether, when a defendant's ex-mother-in-law is excluded from a limited portion of a criminal trial that is attended by other members of the defendant's family, law enforcement personnel, counsel, and a jury, the Sixth Amendment's public trial guarantee requires granting habeas corpus relief absent particularized findings justifying the exclusion. While the Sixth Amendment generally requires specialized findings before family members and friends can be excluded, under the unique circumstances presented here, we conclude that the trial court's refusal to admit the ex-mother-in-law was so trivial as not to constitute a constitutional violation.

Petitioner Uniko Carson appeals from a judgment of the United States District Court for the Eastern District of New York (Korman, C.J.), denying his petition for a writ of habeas corpus following his conviction for selling cocaine. See N.Y. Penal Law § 220.43[1]. He contends that his right to a public trial was violated when the state trial court effected a limited courtroom closure during the testimony of a confidential informant. Carson argues that the trial court's alleged failure to consider reasonable alternatives to closure, and its refusal to admit his ex-mother-in-law during the informant's testimony constitute an unreasonable application of Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), entitling him to habeas relief. See 28 U.S.C. § 2254.

The District Court denied the habeas petition on the ground that any error resulting from the trial court's exclusion of Carson's ex-mother-in-law was harmless. We affirm, though on different grounds. We hold that the harmless error doctrine does not apply. However, we affirm because we find that the error was not substantial enough to undermine the values furthered by the Sixth Amendment's public trial guarantee.

BACKGROUND

In August 1996, the New York City Police Department ("NYPD") began a year-long investigation into narcotics trafficking in the Lefrak City apartment complex in Queens. The NYPD enlisted the aid of a drug dealer named Larry Sanchez, who agreed to arrange "buy and bust" drug sales involving Petitioner and several co-defendants, and an undercover detective. On September 17, 1996, undercover detective Frank Patinella met Sanchez and Petitioner at a pre-arranged location in Queens. A livery cab pulled up carrying Sanchez and Petitioner. Patinella got into the cab and told Petitioner what he wanted. Petitioner handed him a brown bag containing more than two ounces of cocaine, and Patinella handed Petitioner $2,200 in pre-marked bills. On March 28, 1997, Patinella identified Petitioner in a line-up. Similar "buy and bust" sales took place with Petitioner's co-defendants.

A. The Trial

Carson and co-defendant Leroy Williams proceeded to a jury trial before the Supreme Court, Queens County.¹ During its direct case, the State sought to close the courtroom during Sanchez's testimony. Defense counsel objected on the ground that the State had already elected to reveal Sanchez's name, and that it was known in the courtroom and Lefrak City that Sanchez would be testifying against Carson and Williams. The court conducted a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), to determine whether a closure was necessary to protect Sanchez and his family's safety.

Sanchez testified at the Hinton hearing that from August 30, 1996 to March 4, 1997, he had cooperated with the NYPD in their Lefrak City investigation. Around March of 1997, shortly after numerous arrests had been made, Sanchez learned that his girlfriend and her family members had been threatened several times and told that they would be killed if he testified. The mother of one of his daughters also received threats, in which she was told that Sanchez would die if he testified. In addition, someone approached the mother's cousin with a razor and threatened to cut the cousin's "snitch bitch" throat. Sanchez also gave detailed testimony about several occasions on which he was personally threatened and attacked because of his cooperation.

Although Sanchez no longer lived in Lefrak City, he had relatives and friends who did. Sanchez testified about his fear of endangering his family's safety if he testified in an open courtroom. He believed that a closed courtroom would protect his family's safety because people could then only speculate as to the contents of his testimony. He also believed he would be more nervous if the courtroom were open and would consequently have difficulty remembering details.

After hearing argument from both sides, the court granted a limited courtroom closure during Sanchez's testimony. The trial judge explained that "there is no doubt in my mind that [Sanchez] is terrified and there is no doubt in my mind that his fears are not generalized fears but very, very specific, so specific that he says that one of the people that allegedly abused him was someone that he had seen with defendant Williams." The court ruled that "[b]ecause of threats to the witness, to his family, actual acts done, the increased exposure to people who haven't seen him for a long time, the size of the audience and obvious affinity for the defendants that many of the spectators have shown . . . [and] the fact [that] the man has been in a Witness Protection Program . . . it seems to me that there is an overriding State interest." However, the court denied the State's motion for full closure, instead ordering that members of the defendants' immediate families, as well as members of the bar and law enforcement officers, could stay for Sanchez's testimony.

Defense counsel objected to this ruling and urged the court to consider alternatives to courtroom closure, such as "a disguise for this witness or some sort of curtain application around the witness box or something that gives this witness his request for privacy." The court responded: "In my view I've made a sensitive accommodation. I don't think requiring the man to testify with a paper bag over his head is the answer here, and it would have a deleterious effect upon the assessment of his credibility; the jurors would have trouble looking [sic] and observing his demeanor."

The court then allowed family members who wished to be present for Sanchez's testimony to identify themselves to the court. The court admitted Carson's brother, son, mother, and fiancée, as well as three individuals who identified themselves as Williams's first cousins.² The court denied entry, however, to Dolores Broome, who was Carson's ex-mother-in-law and the grandmother of his son. The following colloquy occurred:

The Court: Yes ma'am?

A Spectator: Dolores Broome, I'm Unicko [sic] Carson's mother-in-law.

The Court: You say you're his mother-in-law? Your daughter —

A Spectator: Was his wife. That's my grandson.

The Court: Your daughter is his legal wife?

A Spectator: Yes, and that's my grandson.

The Court: You may be seated, ma'am. They're presently married?

A Spectator: They're not together now.

The Court: Are they married?

A Spectator: No, not now.

The Court: Are they divorced?

A Spectator: Yes.

The Court: Please step out, ma'am.

Sanchez testified for three days in a trial that lasted about one month. He described, among other things, the drug sale he arranged between Petitioner and Patinella on September 17, 1996. Patinella also testified about the events of September 17 and about his identification of Carson in a line-up the following March. The jury convicted Petitioner of first degree criminal sale of a controlled substance, and he was sentenced to an indeterminate prison term of fifteen years to life. See N.Y. Penal Law § 220.43[1].

B. Direct Appeal

Carson appealed to the Appellate Division on several grounds, including that the trial court's partial closure of the courtroom during Sanchez's testimony violated his Sixth Amendment right to a public trial. The Appellate Division affirmed Carson's conviction, concluding that the partial closure of the courtroom during Sanchez's testimony did not deprive Carson of his right to a public trial. People v. Carson, 292 A.D.2d 461, 740 N.Y.S.2d 346 (2d Dep't 2002). The court held that:

[t]he record of the Hinton hearing shows that all four prongs of the test articulated by the Supreme Court in Waller v. Georgia were satisfied. First, since the informant testified at the hearing as to specific incidents of actual violence and threats aimed at him in connection with this case, there was an overriding interest in protecting the informant's safety. Second, the closure was no broader than necessary to protect that interest. Third, the court considered and used an alternative to complete closure. Finally, the court made findings of facts on the record to support the partial closure of the courtroom. Accordingly, the court's limited closure of the courtroom during the informant's testimony was a provident exercise of discretion.

Id. at 461-62, 740 N.Y.S.2d 346 (citations omitted).

Petitioner sought leave to appeal to the New York Court of Appeals, but the application was denied. People v. Carson, 98 N.Y.2d 673,...