People v. Turner

Citation519 P.3d 353
Docket NumberSupreme Court Case No. 21SC79, Supreme Court Case No. 21SC277
Decision Date31 October 2022
Parties The PEOPLE of the State of Colorado, Petitioner, v. Terrel Shameek TURNER, Respondent. The People of the State of Colorado, Petitioner, v. Christopher Nicholas Cruse, Respondent.
CourtSupreme Court of Colorado

519 P.3d 353

The PEOPLE of the State of Colorado, Petitioner,
Terrel Shameek TURNER, Respondent.

The People of the State of Colorado, Petitioner,
Christopher Nicholas Cruse, Respondent.

Supreme Court Case No. 21SC79
Supreme Court Case No. 21SC277

Supreme Court of Colorado.

October 31, 2022

Attorneys for Petitioner: Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney General, Denver, Colorado

Attorneys for Respondent Terrel Shameek Turner: Law Office of Gregory Lansky, LLC, Gregory Lansky Aurora, Colorado

Attorneys for Respondent Christopher Nicholas Cruse: Schelhaas Law LLC, Krista A. Schelhaas, Littleton, Colorado

Attorneys for Amicus Curiae Rocky Mountain Victim Law Center: Katherine Houston, Camille Agnello, Lauren Haefliger, Denver, Colorado

En Banc


CHIEF JUSTICE BOATRIGHT concurred in the judgment.


JUSTICE HOOD delivered the Opinion of the Court.

519 P.3d 356

¶1 Terrel Turner and Christopher Cruse were jointly tried and convicted on charges related to the burglary of a marijuana dispensary. On the second day of trial, Yolanda Cruse, who is Mr. Cruse's wife and Mr. Turner's friend, was arrested and charged with several counts stemming from a hostile encounter she had with the victim advocate and a prosecution witness just outside the courtroom. The trial judge ordered that Mrs. Cruse be excluded from the courtroom for the remainder of trial.

¶2 On appeal, a division of the court of appeals concluded that Mrs. Cruse's exclusion was a non-trivial, partial courtroom closure that violated defendants’ public trial right. People v. Turner , No. 17CA2294, ¶¶ 23–24, 2020 WL 7870603 (Dec. 24, 2020) ; People v. Cruse , No. 18CA34, ¶ 14, 2021 WL 1030344 (Mar. 11, 2021). The division reversed the convictions and remanded for a new trial. Turner , ¶ 35 ; Cruse , ¶ 15.

¶3 We agree with the division that the trial court's exclusion of Mrs. Cruse was a closure that implicated the Sixth Amendment. Under the circumstances of this case, however, a new trial is unwarranted. The record justifies the closure order.

I. Facts and Procedural History

¶4 On the third morning of defendants’ trial, before the jury was brought into the courtroom, the prosecution informed the court that Mrs. Cruse had been arrested the day before "on harassment charges for an encounter with [the] victim advocate out in the hallway outside the courtroom, as well as with [a prosecution witness]," and that she had a court appearance related to those charges scheduled for that morning. The prosecution continued, "[T]here will be a mandatory protection order in place that restrains Mrs. Cruse from having any contact with our victim advocate, and, obviously, our advocate will be in the courtroom, so Mrs. Cruse is not going to be allowed legally to be in the courtroom." Mr. Cruse objected on public trial grounds and asked that Mrs. Cruse be allowed to attend the trial. When the court asked Mr. Turner for his position, his attorney responded:

[B]oth the co-defendant and the People have a lot more information than I do. I have access to the affidavit ... [but] I just don't have any other information. ... I can't access anything other than the fact that [Mrs. Cruse] was arrested. Until I have information, I have no position.

¶5 The court concluded that Mrs. Cruse had "forfeited her right to be present in this trial[ ] because she has interfered with the orderly presentation of the evidence ... [and] has directly contacted a witness and made aggressive statements." The court explained that it has "an obligation to [e]nsure a fair trial for all parties, and that includes [e]nsuring the safety of all participants in the trial, whether those participants are the defendants or the witnesses, counsel, and other people associated with the parties." The

519 P.3d 357

court then excluded Mrs. Cruse from the courtroom and the hallway outside the courtroom for the remainder of trial, but it said she could see defendants "during breaks, away from this area of the courthouse."

¶6 Defendants’ trial lasted six days, and the jury convicted both men on all counts.

¶7 On appeal, the division concluded that excluding Mrs. Cruse was an unjustified, partial closure of the courtroom that implicated defendants’ Sixth Amendment right to a public trial. Turner , ¶ 23 ; Cruse , ¶ 14. The division further determined that the closure was not trivial and, in the absence of appropriate findings under Waller v. Georgia , 467 U.S. 39, 46–47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the closure violated defendants’ public trial right. Turner , ¶¶ 23–27 ; Cruse , ¶ 14. Further concluding that the error was structural in nature and that remanding for additional findings would not be helpful, the division reversed defendants’ convictions and remanded for a new trial. Turner , ¶ 35 ; Cruse , ¶ 15.

¶8 The prosecution petitioned this court for certiorari review, which we granted.1

II. Analysis

¶9 We first discuss whether Mr. Turner waived his challenge to the trial court's alleged closure of the courtroom when he neither joined in Mr. Cruse's objection nor offered his own objection. After concluding he didn't waive his challenge, we discuss the constitutional right to a public trial and this court's recent adoption of a partial-closure standard. Based on the facts here, we conclude that Mrs. Cruse's exclusion from the trial was a non-trivial, partial closure of the courtroom that implicated the Waller test. Finally, because the trial court did not specifically address the Waller test before ordering the closure, we discuss the adequacy of the court's findings.

A. Waiver

¶10 The prosecution contends that Mr. Turner waived the right to challenge the trial court's alleged closure on appeal. We disagree.

¶11 To preserve an issue for appellate review, the alleged error must affect a substantial right, and "a timely objection or motion to strike" must appear on the record "stating the specific ground of objection, if the specific ground was not apparent from the context." CRE 103(a)(1) ; see Crim. P. 52(a) ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.").

¶12 If a defendant fails to object to a known closure, he waives his right to a public trial and may not challenge the closure on appeal. Stackhouse v. People , 2015 CO 48, ¶¶ 8–15, 386 P.3d 440, 443–45 ; see Phillips v. People , 2019 CO 72, ¶ 16, 443 P.3d 1016, 1022 ("[W]aiver is a procedural bar to appellate review based on ‘the intentional relinquishment of a known right or privilege.’ " (quoting People v. Rediger , 2018 CO 32, ¶ 39, 416 P.3d 893, 902 )). But "we ‘do not presume acquiescence’ in the loss of such rights; to the contrary, we ‘indulge every reasonable presumption against waiver.’ " Phillips , ¶ 16, 443 P.3d at 1022 (quoting Rediger , ¶ 39, 416 P.3d at 902 ); accord People v. Curtis , 681 P.2d 504, 514 (Colo. 1984).

519 P.3d 358

¶13 Although there may be sound strategic reasons for waiving the right to a public trial in some instances, see Stackhouse , ¶ 15, 386 P.3d at 445, strategic choice does not appear to be what happened here. Mr. Turner's counsel knew of the right to a public trial, but he didn't know enough about the underlying incident to object to Mrs. Cruse's exclusion. So, there was no waiver because the failure to object wasn't an intentional relinquishment of the public trial right.

¶14 In the absence of a waiver, a defendant may still forfeit an error through inaction. Phillips , ¶ 17, 443 P.3d at 1022 ("[W]hereas waiver requires ‘intent,’ forfeiture occurs ‘through neglect.’ " (quoting United States v. Carrasco-Salazar , 494 F.3d 1270, 1272 (10th Cir. 2007) )). Forfeiture is "the failure to make the timely assertion of a right," and forfeited errors may be reviewed only for plain error on appeal. Id. at ¶¶ 17–18, 443 P.3d at 1022 (quoting Rediger , ¶ 40, 416 P.3d at 902 ); see also People v. Miller , 113 P.3d 743, 750 (Colo. 2005) (explaining that plain errors are those that are obvious, substantial, and "so undermine[ ] the fundamental fairness of the trial itself so as to cast serious doubt on the reliability of the judgment of conviction" (quoting People v. Sepulveda , 65 P.3d 1002, 1006 (Colo. 2003) )). By contrast, errors preserved by contemporaneous objection are reviewed for harmless error on appeal. See Hagos v. People , 2012 CO 63, ¶ 12, 288 P.3d 116, 119 (explaining that harmless error requires reversal only "if the error ‘substantially influenced the verdict or affected the fairness of the trial proceedings’ " (quoting Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986) )).

¶15 Regardless of whether we review the alleged public trial violation in Mr. Turner's case for plain error, based on Mr. Turner's failure to object contemporaneously, or for harmless error, by imputing his co-defendant's objection to him,2 we conclude that the trial court's ruling here doesn't...

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