Smith v. Hollins, Docket No. 03-2250-PR.

• Decision Date: 15 May 2006
• Docket Number: Docket No. 03-2250-PR.
• Citation: 448 F.3d 533
• Parties: Bryant SMITH, Petitioner-Appellant, v. Melvin L. HOLLINS, Superintendent, Oneida Correctional Facility, and Eliot Spitzer, New York Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

448 F.3d 533

Bryant SMITH, Petitioner-Appellant, v. Melvin L. HOLLINS, Superintendent, Oneida Correctional Facility, and Eliot Spitzer, New York Attorney General, Respondents-Appellees.

Docket No. 03-2250-PR.

United States Court of Appeals, Second Circuit.

Argued: November 28, 2005.

Decided: May 15, 2006.

Amy Irene Donner, Legal Aid Society, Criminal Appeals Bureau, New York, N.Y. (Laura R. Johnson, on the brief), for Petitioner-Appellant.

Sholom J. Twersky, Assistant District Attorney, for Charles J. Hynes, District Attorney Kings County, Brooklyn, N.Y. (Victor Barall and Leonard Joblove, on the brief), for Respondents-Appellees.

Before: McLAUGHLIN and SACK, Circuit Judges, and KOELTL, District Judge.^*

Judge SACK files a separate opinion concurring in part.

McLAUGHLIN, Circuit Judge.

Bryant Smith filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In it he claims that the state trial court's exclusion of his brother and sister during the testimony of two undercover officers, unless they consented to sitting behind a screen, violated his Sixth Amendment right to a public trial. The United States District Court for the Eastern District of New York (Korman, C.J.) denied Smith's petition in an oral opinion. We vacate the district court's decision because we find that the state court failed to make the requisite particularized findings necessary to justify the exclusion, but remand for a supplemental evidentiary hearing pursuant to Nieblas v. Smith, 204 F.3d 29 (2d Cir.1999).

BACKGROUND

In September 1997, in the Bushwick section of Brooklyn, Smith allegedly sold two glassine envelopes of heroin to an undercover police officer (the "Undercover") for $20 of prerecorded buy money. The police back-up team, which included a second undercover (the "Ghost"), immediately arrested Smith.

In 1998, Smith stood trial in New York State Supreme Court, Kings County, on one count of criminal sale of a controlled substance in the third degree, two counts of criminal possession of a controlled substance in the third degree, and two counts of criminal possession of a controlled substance in the seventh degree.

The prosecution made an application to seal the courtroom during the testimony of the Undercover and the Ghost (together the "undercovers"). In response, the court suggested a "semi-seal," excluding the general public, but allowing Smith's family to attend the proceedings. Smith's counsel consented to such a closure. The prosecution, however, objected, arguing that other measures needed to be taken because "these undercovers still operated in this vicinity, and not only their safety, but their ability to operate effectively as undercovers [would] be jeopardized if anyone were to see them." Specifically, the prosecution proposed placing a chalkboard between Smith's relatives and the witness stand. In response, Smith's counsel emphasized that his client's family "do[es] not live in the vicinity. They live some distance away," and thus the prosecutor's assertion that they "may jeopardize [the undercovers'] safety and effectiveness . . . is not really sufficient." The prosecution responded that "they still work in [an undercover] capacity in the [Bushwick] neighborhood, and that their ability to act effectively as undercovers will be jeopardized, and their physical safety will be jeopardized unless the courtroom is sealed." The prosecutor added that he would not allow the undercovers to testify if Smith's relatives were not behind a "chalkboard at the very least, if not exclude[d] altogether."

The following colloquy then ensued:

THE COURT: So what's the point? Do we have to have a hearing? . . .

PROSECUTOR: Say we have the hearing and that's what they testify to? What then?

COUNSEL: I believe I am given an opportunity to question th[ese] undercover[s], and I believe, then, that I am given the opportunity under the law to make an argument that this is a public courtroom and that there is no threat [that this] is credible.

THE COURT: So, you are saying—

PROSECUTOR: What the undercover says is not going to affect who these characters are who are sitting in the courtroom.

COUNSEL: I'm going to say that if [the prosecutor] refers to my client's family as characters or drug dealers again . . . there will be a contempt problem for me because . . . that's totally unacceptable and boyish [and] improper.

Following this exchange, the court ordered a hearing pursuant to People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265 (1972), which requires courts to conduct a hearing to determine the propriety and scope of a closure. Both undercovers testified.

The Ghost testified that he had been an undercover for two years, and he had worked only in Brooklyn, specifically in Bushwick and Bedford Stuyvestant. Additionally, the Ghost intended to return to work in those neighborhoods in the future. He stated that he had been involved in "over a hundred" narcotics purchases during his two years as an undercover, and had approximately fifteen "lost subjects," i.e., people who sold him drugs but were not arrested by his back-up team. The Ghost further stated that he had testified before a grand jury over a hundred times and during those appearances he had never once used his real name to identify himself, giving only his badge number.

The Ghost went on to admit that the grand jurors, some of whom came from communities where he had performed undercover work, had an unobstructed view of him during his grand jury testimony. During his court appearances he wore civilian clothes, never appeared in public in the company of uniformed officers, traveled in an unmarked police car, and on the day of the hearing, he entered the courtroom via a backdoor entrance. He had approximately twenty "open cases" pending in Kings County Supreme Court.

As to the threat he faced by testifying publicly, the Ghost said that testifying in an open courtroom would jeopardize his safety because it would "give the general public an idea of what he looked like . . . because [he was] still an undercover . . . [and he] would maybe be purchasing narcotics from someone who's sitting in the courtroom." The Ghost believed that he would be physically harmed if it was discovered that he was an undercover. He added that testifying in open court could jeopardize his effectiveness because "psychologically [he] didn't know if [he] would be prepared to go back to the street and purchase drugs as an undercover."

On cross-examination, the Ghost made three notable concessions: he knew neither Smith nor any of his family members; he had not been threatened in this case; and he could not recall ever being threatened by the family members of a defendant against whom he had testified.

After the Ghost's testimony, the court ruled that Smith's elderly mother, common-law wife, and child would be able to view the testimony of the Ghost without a screen.¹ Any remaining family members could remain in the courtroom, but only if Smith consented to their sitting behind a screen that would obscure their view of the Ghost.

Smith's counsel immediately objected. He argued that the court was applying an improper standard and erred by failing to hear evidence regarding where Smith's family members lived. Smith's counsel then pointed out that both Smith's brother and sister lived in Queens, while his mother, common-law wife, and child all lived in Flatbush. It was his contention that by residing in Queens, the siblings posed no threat to the Brooklyn undercovers. The court rejected this argument. Smith's counsel then rejected the offer to use the screen because "it suggests danger coming from the audience . . . and that will prejudice my client."

The Undercover testified next at the Hinton hearing. His testimony closely tracked that of the Ghost. He was assigned to Brooklyn North Narcotics and worked in several Brooklyn neighborhoods, including Bushwick. He too planned to return to undercover work in Bushwick. The Undercover entered the courtroom through a rear entrance, had approximately ten cases pending in the same courthouse, and approximately seven lost subjects. He too believed that testifying in an open courtroom would jeopardize both his safety and efficacy.

The Undercover did not claim to fear Smith's relatives and admitted that they had not threatened him. In fact, the Undercover admitted that he had never been threatened in more than fifty undercover drug purchases. Nor had he seen Smith since the day of the incident. Much like the Ghost, the Undercover had testified before the grand jury on countless occasions without a screen and, quite often, some of those grand jurors came from communities in which he worked.

Following the hearing, Smith's counsel renewed his argument that the courtroom should be left open to Smith's entire family, asserting that "there is no rational basis to distinguish between family members." The court, however, disagreed and issued the same ruling that it made following the Ghost's testimony: limited closure permitting only Smith's mother, commonlaw wife, and child to view the testimony without a screen. Other relatives or friends would have to remain behind an "unobtrusively placed screen in the back" during the testimony of the undercovers.²

Both undercovers testified at trial. The record is silent on whether anyone chose to remain in the courtroom behind a screen. Smith was eventually convicted and sentenced to nine to eighteen years' imprisonment.

Smith appealed his conviction to the Appellate Division, Second Department, arguing that the trial court violated his Sixth Amendment right to a public trial when it conditioned the attendance of his brother and sister at the undercovers' testimony upon their sitting behind a screen. The Appellate Division affirmed Smith's conviction, holding that "the trial court's alternative to closure . . . did not deprive him of his right to a public trial." People v. Smith, 282...