Peterson v. Williams, 93-CV-1669 (JG).
| Decision Date | 18 October 1995 |
| Docket Number | No. 93-CV-1669 (JG).,93-CV-1669 (JG). |
| Citation | 901 F. Supp. 119 |
| Parties | Kareem PETERSON, Petitioner, v. Melvin WILLIAMS, Superintendent of Wyoming Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Philip L. Weinstein, Robert S. Dean, The Legal Aid Society, Criminal Appeals Bureau, New York City, for Petitioner.
Charles J. Hynes, Kings County District Attorney, Brooklyn, NY by Moira E. Casey, Roseann B. MacKechnie, and Victor Barall, Assistant District Attorneys, for Respondent.
Petitioner Kareem Peterson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in New York Supreme Court, Kings County, of third degree criminal sale of a controlled substance under N.Y.Penal Law § 220.39(1) (McKinney 1989). Petitioner claims that the trial proceedings giving rise to his conviction were deficient because they deprived him of his constitutional right to a public trial. Respondent does not dispute that petitioner has exhausted his state court remedies, and that this Court may reach the merits of the claim.1 For the reasons stated below, the petition is denied.
After a one-day jury trial, petitioner was found guilty of selling a controlled substance. He was sentenced on October 3, 1990, to 6 to 12 years in prison.
At the trial, Police Officer John Faust identified petitioner as the person who had sold him two vials of crack on the corner of Classon and St. Marks in Brooklyn, in the early evening of August 3, 1989. The officer testified that just after 5:00 p.m. that day, while acting in an undercover capacity, he approached petitioner and asked if he had any "nicks."2 Petitioner responded "yeah, how many," and when Faust indicated two, handed over two vials of crack cocaine. For these, Faust paid petitioner $10 in pre-recorded "buy money." He then observed petitioner walk away and stop at the corner of Classon and Bergen in front of a bodega. Finally, Faust testified that at the time of the incident, petitioner had been wearing gray pants and a green and white striped "Le Tigre-type shirt" bearing a small tiger insignia.
Police Officer Roberto Nieves, who had been serving as Faust's "ghost" backup on August 3, 1989,3 also testified, but did not identify petitioner in court. He stated, however, that at the relevant time and place he observed Officer Faust conversing with a man who was wearing gray pants and a green "short sleeved polo-type shirt with white stripes."
Petitioner was arrested at the corner of Classon and Bergen at 5:10 p.m. The evidence at trial revealed that he had neither drugs nor buy money in his possession at the time of the arrest. A cigarette "twisted on the end" was recovered from behind his right ear, but testing revealed that it did not contain a controlled substance.
Before Officer Nieves took the stand at trial, the People moved to seal the courtroom for the duration of his testimony. After a closure hearing outside the presence of the jury, the court granted the application over petitioner's objection, reasoning that Nieves' continuing undercover work in the neighborhood made closure necessary.4
Pursuant to the closure order, spectators observing the trial were ushered out of the courtroom, and it was sealed. Nieves completed his testimony and was excused. The trial record indicates that the judge did not then order the unsealing of the courtroom, but instead allowed the proceedings to continue. The parties announced to the jury the following two stipulations: (1) that the two vials Officer Faust had obtained at the corner of Classon and St. Marks on August 3, 1989, contained cocaine; and (2) that the cigarette recovered from behind petitioner's ear did not contain any controlled substance. The People rested and defense counsel's motion for an order of dismissal was denied.
Petitioner then took the stand and testified for fifteen to twenty minutes.5 He claimed that he had not possessed or sold drugs on August 3, 1989. Rather, he said he had gone to the grocery store on the corner of Bergen and Classon at the time of the alleged transaction in order to buy cigarettes. He stated further that at the time of the incident he had been wearing a turquoise blue Izod shirt with pink and white stripes, and that the emblem thereon was an alligator, not a tiger.
After petitioner testified, defense counsel's renewed motion for an order of dismissal was denied, and the jury was instructed on how to evaluate the parties' summations. Before summations were presented however, a knock on the courtroom door alerted defense counsel to the fact that the courtroom had remained sealed after Nieves' testimony. At that moment the spectators who had earlier been ousted from the courtroom were readmitted. Neither of the parties have estimated the total amount of time the courtroom remained closed after the end of Officer Nieves' testimony, but the above facts suggest it was between 30 and 40 minutes.
Claiming that the petitioner's right to a public trial had been violated, the defense moved for a mistrial. The court reserved decision on the motion until after the guilty verdict was rendered. It then denied the application on the ground that the failure to reopen the courtroom had been unintentional, i.e., it had not resulted from an improper, intentional extension of the original closure order. The court further opined that the defendant had not been prejudiced by the error.
On appeal, petitioner argued that the continued closure of the courtroom after Officer Nieves had completed his testimony violated petitioner's Sixth Amendment right to a public trial as applied to the states through the Fourteenth Amendment. The Appellate Division affirmed the judgment on the ground that the continued closure of the proceedings throughout petitioner's testimony had been inadvertent and there was no evidence that any observer wishing to enter the courtroom had been excluded. People v. Peterson, 186 A.D.2d 231, 232, 587 N.Y.S.2d 770, 772 (2d Dep't 1992). For these reasons, the court concluded, a new trial would not advance the purposes served by the Sixth Amendment. Id. The Court of Appeals affirmed, reasoning that the brief, inadvertent and unnoticed continuation of a proper courtroom sealing was not an affirmative act of the trial court to exclude persons from the courtroom, and consequently did not violate petitioner's constitutional rights. People v. Peterson, 81 N.Y.2d 824, 825, 611 N.E.2d 284, 285, 595 N.Y.S.2d 383, 384 (1993).
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right to a ... public trial ..." However, this right is not absolute, and in some circumstances may give way to overriding interests. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 2214-15, 81 L.Ed.2d 31 (1984). A court confronted with an application to close a courtroom proceeding to the public must therefore determine which interests are paramount before granting or denying the request. Id.; see also Woods v. Kuhlmann, 977 F.2d 74, 76 (2d Cir.1992). In Waller, the Supreme Court set forth the following four-part analysis to assist courts in reaching this determination: "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 courtroom; and it must make findings adequate to support the closure." 467 U.S. at 48; see also Woods, 977 F.2d at 76-78 (); United States v. Hernandez, 608 F.2d 741, 746-48 (9th Cir.1979) (same).
Petitioner does not challenge the decision to close the courtroom during Nieves' testimony, and, in fact, concedes it was proper. Instead, petitioner asserts that the second prong of the Waller test was violated, because the continued closure of the courtroom beyond the court's limited closure order was "broader than necessary" to protect the government's interest in maintaining Officer Nieves' cover.
Few cases deal with the inadvertent exclusion of the public during a defendant's trial. In United States v. Al-Smadi, 15 F.3d 153 (10th Cir.1994), the courthouse closed at 4:30 p.m., about 20 minutes before the defendant's trial had adjourned for the day. During that 20-minute period, the defendant's wife had been denied access to the courtroom. The Tenth Circuit nevertheless affirmed the district court's denial of a motion for a mistrial, stating that the "brief and inadvertent closing of the courthouse and hence the courtroom, unnoticed by any of the participants, did not violate the Sixth Amendment." Id. at 154.
In Snyder v. Coiner, 365 F.Supp. 321, 323-24 (N.D.W.Va.1973), the doors to the courtroom were closed during summations by a deputy sheriff who had mistaken the judge's order to keep the courtroom quiet for a command to keep people from moving into or out of the courtroom. In denying a petition for habeas relief, the court reasoned that the closure had occurred during a relatively small portion of the entire proceeding, and that "neither the judge nor the parties were aware of any exclusion of the public taking place." Id. at 324.
Similarly, in the instant case, the continued sealing of the courtroom during petitioner's testimony went unnoticed by the petitioner and his counsel, the prosecutor, the judge, and the jury. The moment it was discovered, the doors were reopened. Indeed, the record indicates that the unsealing occurred before the judge had even observed that the original sealing was still in effect.6 In addition, the unauthorized portion of the closure lasted for only a small portion of the total trial — only 12 pages7 of the 218-page trial record were transcribed during that period.
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Peterson v. Williams, 1280
...The district court (Gleeson, J.) found that the continued closure after Officer Nieves' testimony was inadvertent. Peterson v. Williams, 901 F.Supp. 119, 122-23 (E.D.N.Y.1995). It also noted that the courtroom was immediately reopened upon discovery. Id. at From this denial of his petition,......