Ex parte Judd

• Decision Date: 25 April 1997
• Citation: 694 So.2d 1294
• Parties: Ex parte Ernest Randy JUDD. (Re Ernest Randy Judd v. State.) 1950078.
• Court: Alabama Supreme Court

Page 1294

694 So.2d 1294

Ex parte Ernest Randy JUDD (Re Ernest Randy Judd v. State.)

1950078.

Supreme Court of Alabama.

April 25, 1997.

Herman Watson, Jr., and Charles H. Pullen, of Watson, Fees & Jimmerson, P.C., Huntsville, for petitioner.

Bill Pryor, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for respondent.

PER CURIAM.

This Court granted Ernest Randy Judd's petition for the writ of certiorari to consider his argument that his conviction was had in violation of his right to a public trial as guaranteed under Article I, § 6, of the Alabama Constitution of 1901 and the Sixth Amendment to the United States Constitution.

In his petition for certiorari review, Judd cited Rule 39(c)(4), Ala.R.App.P., arguing that the affirmance by the Court of Criminal Appeals conflicts with Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). He also cited Rule 39(c)(3), arguing that the petition presents a question of first impression in regard to the closing of a trial to the public.

Article I, § 6, Ala. Const.1901, guarantees that "in all criminal prosecutions, the accused has a right to ... a speedy, public trial." The Sixth Amendment to the United States Constitution begins: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...."

Judd was indicted on several counts of rape, sodomy, and sexual abuse. Ala.Code 1975, §§ 13A-6-61, 13A-6-63, and 13A-6-66. At the opening of the testimony, the court announced that "upon motion of the State of Alabama, which I have granted, the courtroom will be cleared during the testimony of the minor child." Judd's trial counsel objected to the closure of the courtroom, stating:

"Judge, we object to my client's constitutional rights being violated. He's entitled, under the U.S. and Alabama Constitutions, to have a free and open courtroom in this case. The Court has closed that courtroom and we believe my client's rights have been violated in that aspect."

The court overruled Judd's objection. The jury found Judd guilty of three counts of sexual abuse in the first degree and two counts of sodomy in the first degree. The circuit court entered judgments of conviction and sentenced Judd on those five convictions. The Court of Criminal Appeals affirmed by an unpublished memorandum. Judd v. State (CR-93-2063), 683 So.2d 60 (Ala.Cr.App.1995) (table).

In construing the Sixth Amendment to the United States Constitution, the United States Supreme Court has recognized a "balance of interests" to be applied in determining the extent of the right to an open trial:

"[T]he Court has made clear that the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. Such circumstances will be rare, however, and the balance of interests must be struck with special care."

Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984). The Waller Court stated the test for a proper courtroom closure as follows:

" [T]he 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."

467 U.S. at 48, 104 S.Ct. at 2216.

Several United States Courts of Appeals have held that the closure of a criminal trial during the testimony of a minor child did not, under the particular circumstances presented, violate the defendant's right to a public trial. In United States v. Osborne, 68 F.3d 94 (5th Cir.1995), the Fifth Circuit addressed Waller by setting out the four-part Waller test quoted above and then distinguishing Waller in the following manner:

"There is a significant difference between Waller and the instant case, however. In Waller, the Supreme Court addressed a total closure of a suppression hearing, from which all members of the public were excluded. In the present case, the district court ordered only a partial closure of the proceedings, allowing all but one of the existing spectators to remain during the victim's testimony.

"Prior to the Waller decision, this circuit [had] addressed the constitutionality of a partial closure in Aaron v. Capps, [507 F.2d 685 (5th Cir.), cert. denied, 423 U.S. 878, 96 S.Ct. 153, 46 L.Ed.2d 112 (1975) ]. In Aaron, this court held that, when considering a partial closure, a trial court should look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee. This court reasoned that the partial closing of court proceedings does not raise the same constitutional concerns as a total closure, because an audience remains to ensure the fairness of the proceedings.

"Although this circuit has not had the opportunity to reexamine the constitutionality of a partial closing since the Waller decision, five other circuits have addressed the issue. The Second, Eighth, Ninth, Tenth, and Eleventh Circuits have all found that Waller 's stringent standard does not apply to partial closures, and have adopted a less demanding test requiring the party seeking the partial closure to show only a 'substantial reason' for the closure. As in this circuit's Aaron decision, these courts have all based their decisions on a determination that partial closures do not implicate the same fairness and secrecy concerns as total closures."

68 F.3d at 98-99 (emphasis original) (footnotes omitted). See also United States v. Farmer, 32 F.3d 369 (8th Cir.1994); United States v. Galloway, 937 F.2d 542 (10th Cir.1991), affirmed on return to remand, 963 F.2d 1388 (10th Cir.1992); United States v. Sherlock, 962 F.2d 1349 (9th Cir.1989); Douglas v. Wainwright, 714 F.2d 1532 (11th Cir.1983), vacated and remanded, 468 U.S. 1206, 104 S.Ct. 3575, 82 L.Ed.2d 874, panel opinion reinstated, 739 F.2d 531 (11th Cir.1984); Geise v. United States, 262 F.2d 151 (9th Cir.1958).

Thus, the Federal courts have recognized the public interest in protecting young victims of crime, particularly young victims of sexual offenses, who are required to testify against the person accused of assaulting them. This interest provides the "substantial reason" called for in Osborne and the cases cited therein for a partial closure of a trial during the testimony of the minor victim. A "partial closure" usually means that the general public is excluded but that family and friends of the defendant are allowed to remain unless a specific reason for excluding them exists and, usually, that members of the press are allowed to remain.

Even though Alabama has a different history of applying the guarantee of a public trial as it is stated in § 6 of our Constitution, the Alabama courts have held that, under certain circumstances, a trial judge has the discretion to close a courtroom. See Wright v. State, 340 So.2d 69, 71, n. 1 (Ala.Crim.App.1976), reversed, 340 So.2d 74, 79 (Ala.1976); Hull v. State, 232 Ala. 281, 167 So. 553 (1936). Cf. Reynolds v. State, 41 Ala.App. 202, 203, 126 So.2d 497, 497 (1961), which recognized the court's discretion to exclude children of tender years from the courtroom and to exclude such persons as necessary to preserve order in the court.

Until 1973, the authority of trial courts to use their discretion in excluding persons from the courtroom during prosecutions for rape and assault with intent to ravish was included in the Alabama Constitution as Article VI, § 169, which provided:

"In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial."

This specific provision, however, was not carried forward in Amendment 328, which repealed the Judicial Article (Article VI) and adopted a new Article VI as set out in Amendment 328; but the legislature adopted § 12-21-202, Ala.Code 1975, and the first clause of that section reads exactly as did § 169:

"In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary in the conduct of the trial; and, in all other cases where the evidence is vulgar, obscene or relates to the improper acts of the sexes and tends to debauch the morals of the young, the presiding judge shall have the right, by and with the consent and agreement of the defendant, in his discretion and on his own motion, or on the motion of the plaintiffs or defendants or their attorneys, to hear and try the said case after clearing the courtroom of all or any portion of the audience whose presence is not necessary."

Even though the provisions of § 169 were not carried forward into the new Article VI, we hold that the Legislature nevertheless had the constitutional authority under its grant of power from the people to adopt § 12-21-202, and that the repeal of § 169 does not limit the power of the legislature to exclude persons from the courtroom in cases of rape or assault with intent to ravish.

We further hold that the interpretation of the Supreme Court of the United States in Waller v. Georgia is not inconsistent with the provisions of Article 1, § 6, of the Alabama Constitution of 1901, and we adopt the Waller v. Georgia test for determining when a courtroom, in cases of rape or assault with intent to ravish, can be closed without violating a defendant's constitutional right to a public trial. We hold, therefore, that a trial court has discretion under the provisions of § 12-21-202, in the proper circumstances, as here, to limit access to the courtroom if there is a showing of a substantial need to exclude some spectators. We would caution, however, that a total closure of the courtroom can be justified only in...