State v. Bond, 2020-0415

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'CONNOR, C.J.
Citation2022 Ohio 4150
PartiesThe State of Ohio, Appellant, v. Bond, Appellee.
Docket Number2020-0415
Decision Date23 November 2022


The State of Ohio, Appellant,

Bond, Appellee.

No. 2020-0415

Supreme Court of Ohio

November 23, 2022

Submitted March 30, 2021

Appeal from the Court of Appeals for Richland County, No. 2019 CA 0033, 2020-Ohio-398.

Gary D. Bishop, Richland County Prosecuting Attorney, and Joseph C. Snyder, Assistant Prosecuting Attorney, for appellant.

Koenig & Owen, L.L.C., and Charles A. Koenig, for appellee.


{¶ 1} In this appeal brought by the state of Ohio, we determine whether the trial court violated appellee Khairi A. Bond's right to a public trial under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution and, if so, whether the error must be corrected even though Bond failed


to object to the courtroom closure in the trial court. We hold that a public-trial violation occurred but that Bond has not established that the violation rose to the level of a plain error that we must correct.

Facts and procedural background

{¶ 2} Bond was indicted by a Richland County grand jury on two counts of murder, one under R.C. 2903.02(A) and one under R.C. 2903.02(B), each with a firearm specification under R.C. 2941.145. During a recess on the third day of a five-day jury trial, some of the people attending the trial were involved in an altercation outside the courtroom. The altercation resulted in damage to a vending machine. Thereafter, the following interaction between the trial judge and counsel took place outside the presence of the jury.

THE COURT: The jury is not in the courtroom. They're back in the jury room
We had an incident in the lobby, apparently, during the break. The jurors were not aware of that. I don't know they weren't aware of it, but they were all in the jury room. This happened out in the lobby. An argument. Apparently, the M&M machine is broken out there. But for that reason, we have cut back on the number of people that are allowed in the courtroom. We will only allow immediate family members. So that's one of the results. I wanted to get that on the record.
Is there anything the parties want to put on the record about it? Do we need to ask the jury if they heard anything? They were all in the jury room. This happened out in the lobby on a break.
From the State.
MS. BOYER: Your Honor, Olivia Boyer from the State. During the incident, a juror came out of the room. I didn't say
anything to her. But she went back into the jury room while the incident was occurring.
THE COURT: The defense?
MR. BRADLEY: No. I don't think we should ask them, because if they didn't know it-
THE COURT: If we ask them, we'll highlight it. I think that's probably smart. Again, we checked immediately to make sure they were all back in the jury room.
MS. SCHUMACHER [counsel for the state]: My only thought is, Mr. Caudill [a news reporter] found himself in the midst of that. I don't know if that will make the paper. I know we've instructed the jurors not to pay attention to the paper. I don't know if it's worth-if it gets printed, Your Honor, my concern is that they will read it. Is there concern from the jurors one way or the other?
THE COURT: I will continue to address that they are not to read the newspaper or pay attention to the media. Whatever the reporter wants to report, it's his right. He can report whatever he wants to. But the good news is no one got hurt, apparently, and the jurors were not out in the lobby. All of them were back in the jury room.
MS. SCHUMACHER: Thank you, Judge.
THE COURT: So there are some good things. Again, we have limited the numbers. Nothing like that helps the situation, helps either side. Everyone needs to be on their best behavior or we won't have anybody watching.
MS. SCHUMACHER: One more thing, Judge. The new victim's rights, there's a constitutional amendment. I believe the Court has permitted immediate family and father and mother-
THE COURT: Immediate family members we have let back in. I don't think necessarily anybody in the immediate family was involved. It was an extended situation.
MS. SCHUMACHER: Thank you, Judge.
THE COURT: We'll bring the jurors back in and get started.

(Capitalization sic.)

{¶ 3} Bond's counsel did not object to the court's limiting attendees to only immediate family members.

{¶ 4} At the conclusion of trial, the jury found Bond guilty of murder as a result of felonious assault in violation of R.C. 2903.02(B) and guilty of an accompanying firearm specification under R.C. 2941.145. Bond was acquitted of murder charged under R.C. 2903.02(A). The trial court sentenced Bond to 15 years to life in prison on the murder conviction and ordered that that sentence be served consecutively to the mandatory three-year sentence for the firearm specification.

{¶ 5} On appeal to the Fifth District Court of Appeals, Bond raised four assignments of error. Relevant here, Bond argued that the trial court violated his right to a public trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution when it closed the trial to the public. The Fifth District concluded that Bond's failure to object to the courtroom closure did not result in a waiver of his right to a public trial, because a violation of that right is considered structural error and structural errors" 'cannot be waived by the defendant's silence,'" 2020-Ohio-398, ¶ 12, quoting State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. The court of appeals also found that the trial court had failed to provide sufficient justification for the partial closure of the courtroom. It therefore found structural error, reversed Bond's convictions, and remanded the matter to the trial court for a new trial.


{¶ 6} The state appealed, and this court accepted a discretionary appeal to consider the following proposition of law: "The trial court did not violate appellee's Sixth Amendment right to a public trial by partially limiting access to the courtroom after an altercation disrupted court proceedings." See 159 Ohio St.3d 1434, 2020-Ohio-3634, 148 N.E.3d 580.


{¶ 7} Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The main distinction between plain-error review, which is the standard employed when a defendant failed to object at trial, and harmless-error review, which is employed when a defendant did object, is the party that bears the burden. See State v. Jones, 160 Ohio St.3d 314, 2020-Ohio-3051, 156 N.E.3d 872, ¶ 17-18. Under plain-error review, the defendant bears the burden to demonstrate the requirements for review whereas under harmless-error review, the state bears the burden to demonstrate that the error did not affect the defendant's substantial rights. Id. at ¶ 17, 18. Certain constitutional defects that defy analysis by harmless-error standards are structural errors. Id. at 20."' "Errors of this type are so intrinsically harmful as to require automatic reversal (i.e., 'affect substantial rights') without regard to their effect on the outcome." '" Id., quoting State v. Hill, 92 Ohio St.3d 191, 196, 749 N.E.2d 274 (2001), quoting Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). Here, both plain error and structural error are relevant because Bond did not object to the courtroom closure in the trial court and the denial of a public trial is a recognized category of structural error, see id. at ¶ 21.

{¶ 8} This court recently addressed, but did not resolve, the intersection of plain error and structural error in State v. West, ___ Ohio St.3d ___, 2022-Ohio-1556, ___ N.E.3d___ (plurality opinion). On appeal in West, the defendant asserted that the trial-court judge had exhibited bias when questioning him during his


testimony at trial and thereby committed structural error. Id. at 20. The defendant had not objected at trial to the trial judge's questions. Id. at ¶ 3. In a plurality opinion, three members of this court stated that they would "decline to elevate any class of errors [including structural errors] beyond the application of our plain-error rule." Id. at 35. They concluded that West was unable to establish the prejudice prong of the plain-error rule based on the trial judge's questions during his cross-examination, but they recognized that "there may be situations in which a structural error so affects the fairness of a judicial proceeding that reversal is warranted despite the failure to preserve the error." Id.

{¶ 9} In a dissenting opinion, one member of the court agreed that West's claim was subject to a plain-error analysis but explained that he would have found prejudice sufficient to recognize plain error. Id. at 38-41 (Donnelly, J., dissenting). In a second dissenting opinion, two members of the court agreed that a plain-error analysis applied but said that they would have held that when structural error is recognized, it is unnecessary to consider whether the error affected the trial's outcome. Id. at ¶ 91 (Brunner, J., dissenting).

{¶ 10} West therefore established that a plain-error analysis is necessary when a defendant seeks reversal based on an error to which the defendant did not object at trial. But West left unresolved the extent to which the existence of structural error is relevant to that analysis. We begin where West left off.

Did the partial courtroom closure violate Bond's right to a public trial?

{¶ 11} The right to a public trial is a fundamental constitutional guarantee under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, but the right is not absolute. State v. Drummond, 111 Ohio St.3d 14,...

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