Stackhouse v. People, Supreme Court Case No. 12SC1029

• Docket Nº: Supreme Court Case No. 12SC1029
• Citation: 386 P.3d 440, 2015 CO 48
• Case Date: June 29, 2015
• Court: Supreme Court of Colorado

386 P.3d 440
2015 CO 48

James Robert STACKHOUSE, Petitioner
v.
The PEOPLE of the State of Colorado, Respondent

Supreme Court Case No. 12SC1029

Supreme Court of Colorado.

June 29, 2015

Attorneys for Petitioner: Douglas K. Wilson, Public Defender, Elizabeth Porter–Merrill, Deputy Public Defender, Denver, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado

En Banc

CHIEF JUSTICE RICE delivered the Opinion of the Court.

¶ 1 In this case, we granted certiorari to consider whether the court of appeals erred in concluding that the defendant waived his public trial claim by failing to object to the closure of the courtroom during jury selection. This question turns largely on whether our precedent in Anderson v. People, 176 Colo. 224, 490 P.2d 47, 48 (1971) —holding that a defendant affirmatively waives his public trial right by not objecting to a known closure of the courtroom—remains controlling precedent, or whether it has been abrogated by the more recent United States Supreme Court decisions in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010) (per curiam). Because Waller and Presley relate only to closures that elicit contemporaneous objections from defense counsel, and because the rationale supporting Anderson remains sound, Anderson is still controlling precedent and remains good law in Colorado. We therefore affirm the court of appeals' judgment.

I. Facts and Procedural History

¶ 2 The People charged Petitioner James Robert Stackhouse with sexual assault on a child, sexual assault on a child by a person in a position of trust, and sexual assault on a child as a pattern of sexual abuse. At trial, the court required members of the public to

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leave the courtroom during jury selection because the large jury pool and limited courtroom space created a risk that family members and others would comingle with and potentially bias the jurors. After explaining his reasoning for the closure, the trial judge asked the attorneys if they had "anything further," and Stackhouse did not object to the closure at that point or at any point during trial. Stackhouse was subsequently tried and was convicted of the first two counts, acquitted of the pattern count, and sentenced to ten years to life. He subsequently appealed his conviction.

¶ 3 Despite not objecting to the closure at trial, Stackhouse asserted on appeal that the court's exclusion of the public during jury selection without satisfying the four elements established in Waller constituted structural error mandating automatic reversal under Presley. People v. Stackhouse, 2012 COA 202, ¶ 7, ––– P.3d ––––. The court of appeals disagreed, holding that although denial of public voir dire over a defendant's objection constitutes structural error if the court does not satisfy the Waller test, even structural errors are subject to the doctrine of waiver, and Stackhouse waived his right to a public voir dire by not objecting to the closure. Id. at ¶¶ 9–10 (citing Anderson, 490 P.2d at 48 ). We granted Stackhouse's petition for certiorari to determine whether the court of appeals erred by relying on our precedent in Anderson in light of the United States Supreme Court's decisions in Waller and Presley.¹

II. Standard of Review

¶ 4 Whether Stackhouse waived his public trial claim by not objecting to the known closure is a question of law, and we review such questions de novo. Kazadi v. People, 2012 CO 73, ¶ 11, 291 P.3d 16, 20.

III. Analysis

¶ 5 We hold that the court of appeals did not err: Anderson has not been abrogated by more recent United States Supreme Court decisions and remains controlling precedent. Although the United States Supreme Court's precedent on the right to a public trial has evolved since the case was decided, Anderson remains legally sound. Thus, we affirm the court of appeals' holding that Stackhouse waived his right to public trial during voir dire by not objecting to the trial court's known closure.

¶ 6 We begin by discussing the public trial right generally and Anderson specifically, and we then demonstrate that Anderson does not conflict with United States Supreme Court authority.

A. The Right to Public Trial and Anderson's Waiver Principle

¶ 7 Both the United States and the Colorado Constitutions guarantee criminal defendants the right to a public trial. U.S. Const. amends. VI, XIV ; Colo. Const. art. II, § 16. It is well settled that a criminal defendant's constitutional right to a public trial extends to the jury selection process. Presley, 558 U.S. at 213, 130 S.Ct. 721. Under Waller, the public trial right is violated when a defendant objects to a closure and the court does not satisfy the four factors of the Waller test. 467 U.S. at 48, 104 S.Ct. 2210. Such a violation is structural error that requires automatic reversal without individualized prejudice analysis.² SeeNeder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (noting that "we have found an error to be ‘structural,’ and thus subject to automatic reversal, only in a very

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limited class of cases," and citing Waller as including denial of public trial within the class of structural errors (internal quotation marks omitted)); accordHagos v. People, 2012 CO 63, ¶ 10, 288 P.3d 116, 119 ("[C]ertain errors are structural errors, which require automatic reversal without individualized analysis of how the error impairs the reliability of the judgment of conviction. Examples of these errors include ... denial of the right to a public trial." (citations omitted)); People v. Hassen, 2015 CO 49, ¶ 18, ––– P.3d –––– (stating that "[w]hen the trial court closes the courtroom over a defendant's objection, it must satisfy the four Waller factors," then determining that the factors were not satisfied and thus remanding for a new trial). Nevertheless, the right to a public trial is not absolute, but rather "may give way ... to other rights or interests" even over a defendant's objection. Waller, 467 U.S. at 45, 104 S.Ct. 2210 ; id. at 48, 104 S.Ct. 2210 (describing four factors that must be met to close the courtroom over a defendant's objection).

¶ 8 Furthermore, even fundamental rights can be waived, regardless of whether the deprivation thereof would otherwise constitute structural error. SeePeretz v. United States, 501 U.S. 923, 936, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991) ("The most basic rights of criminal defendants are ... subject to waiver."). "Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, we examine the particularities of the public trial right.

¶ 9 Under Anderson, a defendant affirmatively waives his public trial right when he does not object to a known closure. 490 P.2d at 48. In that case, we considered a factual scenario almost identical to that before us now—the whole spectator area of the courtroom was needed to seat the jury pool, and the bailiff restricted access so as to "segregate prospective jurors from witnesses, relatives, and other individuals whose proximity, conversation, or actions might cause the jury to be contaminated to the prejudice of the defendant or the prosecution." Id. On these facts, we held that "any right the defendant may have had to object to the exclusion of the public from the courtroom during the selection of the jury was waived" when defense counsel did not object despite being aware of the closure. Id. This has been the law in Colorado since we decided Anderson in 1971. See, e.g., People v. Dunlap, 124 P.3d 780, 818–19 (Colo.App.2004) (applying Anderson's waiver principle).

¶ 10 Therefore, because Stackhouse was aware of the closure and did not object to it, Anderson would appear to resolve his appeal.³ Stackhouse argues, however, that Anderson is no longer valid in light of more recent Supreme Court authority. We now address this contention.

B. Anderson Remains Controlling Precedent

¶ 11 Anderson's holding that a defendant waives his public trial right by not objecting

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to a known closure has not been abrogated by the United States Supreme Court's more recent authority in Waller and Presley. Waller adopted a four-part test that courts must satisfy before closing a courtroom over a defendant's objection, see467 U.S. at 48, 104 S.Ct. 2210, and Presley explicitly confirmed that the public trial right extends to the jury selection process, see558 U.S. at 213, 130 S.Ct. 721. Crucially, both cases addressed only closures that elicited contemporaneous objections, and so neither case affected Anderson's longstanding waiver principle.

¶ 12 In Waller, the Court considered "the extent to which a hearing on a motion to suppress evidence may...