State v. Comeaux

• Decision Date: 31 December 2012
• Docket Number: No. COA11–1289.,COA11–1289.
• Citation: 741 S.E.2d 346
• Parties: STATE of North Carolina v. Allan COMEAUX.
• Court: North Carolina Court of Appeals

741 S.E.2d 346

STATE of North Carolina

v.Allan COMEAUX.

No. COA11–1289.

Court of Appeals of North Carolina.

Dec. 31, 2012.

Appeal by Defendant from judgments entered 14 March 2011 by Judge C. Philip Ginn in Buncombe County Superior Court. Heard in the Court of Appeals 21 March 2012.

Roy Cooper, Attorney General, by Robert C. Montgomery, Special Deputy Attorney General, and Jane Rankin Thompson, Assistant Attorney General, for the State.

Rudolf Widenhouse & Fialko, Chapel Hill, by M. Gordon Widenhouse Jr., for the defendant.

THIGPEN, Judge.

Allan Comeaux (“Defendant”) appeals from judgments convicting him of four counts of taking indecent liberties with a child. On appeal, Defendant contends that his Sixth Amendment right to a public trial was violated because the trial court closed the courtroom during the victim's testimony without making findings of fact as required under Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Defendant also contends that the trial court erred by denying his motions to dismiss, or by failing to arrest judgment, because the indictments, jury instructions, and verdict forms were “duplicitous” and “generic” in violation of his constitutional and statutory rights to a unanimous jury. For the following reasons, we find no error.

I. Factual & Procedural Background

The State's evidence at trial tended to show that K.D., the victim in this case, was born on 24 January 1992. When she was approximately 9 or 10 years old, K.D. went to live with a distant relative, Connie Comeaux (“Connie”), and Connie's husband, Defendant,in Napoleonville, Louisiana. K.D. testified that Defendant began sexually abusing her when she was 10 years old and living in Napoleonville. The sexual abuse which allegedly occurred in Napoleonville included K.D. performing oral sex on Defendant; Defendant fondling and sucking K.D.'s breasts; and one incident of Defendant ejaculating on her.

When K.D. was eleven, she moved with Connie and Defendant to New Jersey, where the sexual abuse continued. They then moved to Montreat when K.D. was thirteen, where the abuse stopped during the six months that they lived there. In early 2006, when K.D. was still thirteen, she moved with Connie and Defendant to Asheville, North Carolina. K.D. testified, “[t]hat's when it got really bad[,]” with Defendant frequently abusing her at night. The sexual abuse in North Carolina included Defendant putting his hands down K.D.'s pants; touching and sucking her breasts; and touching the outside of her vagina. K.D. testified that the sexual abuse lasted approximately seven years and that it did not stop until she left the Comeaux's home on 1 July 2009.

In August of 2009, K.D. contacted the Buncombe County Department of Social Services (“DSS”) to report the sexual abuse. Following K.D.'s report, DSS contacted the Buncombe County Sheriff's Department. K.D. was subsequently interviewed by a police officer and a social worker from DSS. K.D.'s explanation of the history of sexual abuse to the police officer and social worker was consistent with her testimony at trial.

Defendant was charged with five counts of taking indecent liberties with a child. At trial, the jury convicted Defendant of four counts of taking indecent liberties with a child. Defendant was sentenced to four consecutive sentences of 16 to 20 months imprisonment and ordered to register as a sex offender for thirty years. Defendant appeals from these judgments.

On 8 May 2012, this Court entered an order remanding the case “for the limited purpose of the trial court indicating whether it made findings consistent with State v. Jenkins, 115 N.C.App. 520, 525, 445 S.E.2d 622, 625,disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994)[,] in clearing the courtroom.” This Court further decreed in its 8 May 2012 order that “[t]he trial court shall enter an order stating whether it made such findings, and if so, it shall reduce those findings of fact and conclusions of law to writing [.]” Defendant's appeal was “held in abeyance pending receipt of the trial court's order.”

On 30 May 2012, Judge Philip Ginn entered an order stating that the “facts needed for granting the State's Motion and ordering the limited closure of the courtroom during the testimony of the Victim” were “establish[ed][.]” However, the trial court failed to memorialize the facts in writing in its 20 May 2012 order, instead stating that, “in the opinion of [the trial court],” it was not “required to engage in any Constitutional analysis or make any Constitutionally-based findings as contemplated by the Jenkins Court[.]”

On 20 August 2012, this Court entered a second order again remanding the case to the trial court “to make findings of fact and conclusions of law in accordance with State v. Jenkins, 115 N.C.App. 520, 525, 445 S.E.2d 622, 625,disc. review denied, 337 N.C. 804, 449 S.E.2d 752 (1994), utilizing the four-part test enumerated in Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39 (1984).” This Court again instructed that “[t]he trial court shall then reduce those findings of fact and conclusions of law to writing[,]” and Defendant's “appeal shall again be held in abeyance pending receipt of the trial court's order.”

On 19 September 2012, Judge Philip Ginn entered an order containing written findings of fact as ordered by this Court.

II. Analysis

A. Closure of the Courtroom During K.D.'s Testimony

On appeal, Defendant contends that his constitutional right to a public trial was violated when the trial court closed the courtroom during K.D.'s testimony without making findings of fact as required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).¹ We disagree.

This Court reviews alleged constitutional violations de novo. State v. Tate, 187 N.C.App. 593, 599, 653 S.E.2d 892, 897 (2007). Pursuant to the Sixth Amendment of the United States Constitution, a criminal defendant is entitled to a “public trial.” U.S. Const. amend. VI.

The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions. In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury.

Waller, 467 U.S. at 46, 104 S.Ct. 2210 (citations and quotation marks omitted). “[T]he guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682 (1948). “[T]he public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.” Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring). “The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” In re Oliver, 333 U.S. at 270, 68 S.Ct. 499.

The central aim of a criminal proceeding is to try the accused fairly and the public trial guarantee serves the purpose of ensuring that judge and prosecutor carry out their duties responsibly, encouraging witnesses to come forward, and discouraging perjury. Hence, the right to a public trial is not only to protect the accused but to protect as much the public's right to know what goes on when men's lives and liberty are at stake, for a secret trial can result in favor to as well as unjust prosecution of a defendant.

Bell v. Jarvis, 236 F.3d 149, 165 (4th Cir.2000) (citations and quotation marks omitted) (alterations removed). “The violation of the constitutional right to a public trial is a structural error, not subject to harmless error analysis.” Id.

“Although there is a strong presumption in favor of openness, the right to an open trial is not absolute. The trial judge may impose reasonable limitations on access to a trial in the interest of the fair administration of justice.” Bell v. Evatt, 72 F.3d 421, 433 (4th Cir.1995). “[T]he right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information.” Waller, 467 U.S. at 45, 104 S.Ct. 2210.

Accordingly, within the boundaries of these constitutional principles, N.C. Gen.Stat. § 15–166 (2011) permits the exclusion of certain persons from the courtroom in cases involving rape and other sexually-based offenses:

In the trial of cases for rape or sex offense or attempt to commit rape or attempt to commit a sex offense, the trial judge may, during the taking of the testimony of the prosecutrix, exclude from the courtroom all persons except the officers of the court, the defendant and those engaged in the trial of the case.

Id. Before a trial court may allow a courtroom closure pursuant to N.C. Gen.Stat. § 15–166, however, the court must comply with the rule set forth in Waller, see, e.g., State v. Smith, 180 N.C.App. 86, 98, 636 S.E.2d 267, 275 (2006); State v. Starner, 152 N.C.App. 150, 154, 566 S.E.2d 814, 816–17 (2002); State v. Jenkins, 115 N.C.App. 520, 525, 445 S.E.2d 622, 625 (1994), which requires the following:

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced;

(2) the closure must be no broader than necessary to protect that interest;

(3) the trial court must consider reasonable alternatives to closing the proceeding; and

(4) the trial court must make findings adequate to support the closure.

Jenkins, 115 N.C.App. at 525, 445 S.E.2d at 625 (citing Waller, 467 U.S. at 48, 104 S.Ct. 2210). “[W...