State v. Coons

Docket Number20220289
Decision Date21 June 2023
Citation2023 ND 115
PartiesState of North Dakota, Plaintiff and Appellee v. Susan Kaye Coons, Defendant and Appellant
CourtNorth Dakota Supreme Court


2023 ND 115

State of North Dakota, Plaintiff and Appellee
Susan Kaye Coons, Defendant and Appellant

No. 20220289

Supreme Court of North Dakota

June 21, 2023

Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Gary H. Lee, Judge. REVERSED.

Tiffany M. Sorgen, Assistant State's Attorney, Minot, N.D., for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and Justice Bahr joined. Justice Crothers filed a dissenting opinion, in which Justice McEvers joined joined.



Tufte, Justice.

[¶1] Susan K. Coons appeals from a criminal judgment finding her guilty of forgery, in violation of N.D.C.C. § 12.1-24-01(1)(b). She argues the district court erred by closing the courtroom without making sufficient findings and making a prejudicial and biased statement in front of the jury. We reverse.


[¶2] During jury selection, the district court informed the jury panel that the potential jurors had the option to speak with the court "in private" in a separate room if they had information to share that might be embarrassing or intrusive. After general questioning of the panel, the court, Coons, the attorneys for both Coons and the State, and an officer met in a private room and conducted individual questioning of three prospective jurors on the record. Coons argues on appeal that this procedure for individual questioning constituted a trial closure and violated her right to public trial.

[¶3] At trial, defense counsel asked a witness about a probate proceeding in which Coons had been involved. The district court interjected, commenting that "[y]our client lost in the probate proceeding," and prevented further testimony about the proceeding. On appeal, Coons argues that this statement demonstrated bias and prejudice against her.


[¶4] Coons argues that the district court violated her right to public trial under the Sixth Amendment of the United States Constitution. When considering a claimed violation of the right to a public trial,

we first consider whether the claim of error was preserved at trial. We then consider the threshold question of whether there was a closure implicating the public trial right. If we determine there was a closure, we determine whether the trial court made preclosure Waller findings sufficient to justify the closure

State v. Davis Heinze, 2022 ND 201, ¶ 4, 982 N.W.2d 1 (quoting State v. Pendleton, 2022 ND 149, ¶ 4, 978 N.W.2d 641). This Court reviews a trial court's Waller findings for clear error and "its application of the law to those findings de novo." State v. Martinez, 2021 ND 42, ¶¶ 3, 19, 956 N.W.2d 772 (citing State v. Rogers, 2018 ND 244, ¶ 3, 919 N.W.2d 193). "'[T]he Sixth Amendment public trial right attaches from the beginning of adversarial proceedings through sentencing.'" Id. at ¶ 19 (quoting State v. Morales, 2019 ND 206, ¶ 16, 932 N.W.2d 106). The defendant bears the burden of demonstrating a public trial violation occurred. State v. Frederick, 2023 ND 77, ¶ 7, 989 N.W.2d 504.

[¶5] This Court reviews forfeited errors for obvious error. Id. (citing N.D.R.Crim.P. 52(b)). To establish obvious error, the appellant must demonstrate "(1) an error, (2) that was plain, and (3) affected his substantial rights." Davis-Heinze, 2022 ND 201, ¶ 6. The structural error doctrine applies to the public trial right. Rogers, 2018 ND 244, ¶ 5. "A structural error is a 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Id. at ¶ 4 (quoting Johnson v. United States, 520 U.S. 461, 468 (1997)). When the claim of error is one of structural error, the appellant need not demonstrate element three of obvious error, that the error affected his substantial rights, because such errors "defy analysis by harmless-error standards." Davis-Heinze, 2022 ND 201, ¶ 7 (cleaned up).



[¶6] During general questioning of the panel, one prospective juror indicated she preferred to respond to a question in private. That juror and two other prospective jurors indicated they knew something about the case, and the district court and both attorneys agreed to defer further questioning of those jurors. Coons did not object to the court's stated intent to hold further questioning in a separate room. Although there was no objection or other indication of disagreement with the court's procedure for private questioning, Coons did not waive her right to a public trial according to the requirements we described in Martinez. 2021 ND 42, ¶ 18. On this record, we conclude Coons


did not preserve the claimed public trial error at trial, nor did she waive it. We review this forfeited error for obvious error. Id. at ¶ 4.


[¶7] The right to a public trial applies during jury selection. Presley v. Georgia, 558 U.S. 209, 213-14 (2010) (per curiam). A typical public trial claim asserts the public was excluded from the courtroom where the trial was being held. Frederick, 2023 ND 77, ¶ 8. In contrast, here the trial proceedings were removed from the public courtroom to a different room. For the reasons stated below, we conclude there was a closure for purposes of the public trial right because individual questioning of prospective jurors occurred in private without opportunity for public observation.

[¶8] Addressing a First Amendment claim, the United States Supreme Court explained that individual questioning of jurors described by the trial court as "in private" was a closure triggering constitutional scrutiny. Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 503 (1984). In that case, three days of general questioning were conducted in open court while six weeks of individual questioning of prospective jurors were closed to the public. Id. When a prospective juror indicates a belief that a response will be damaging or embarrassing, the individual "may properly request an opportunity to present the problem to the judge in camera but with counsel present and on the record." Id. at 512. The Court explained, however, that such a "limited closure" must be no broader than necessary and supported by adequate findings. Id. The Sixth Amendment right at issue here is "no less protective" than the First Amendment right at issue in Press-Enterprise. Martinez, 2021 ND 42, ¶ 39.

[¶9] The District of Columbia Court of Appeals wrote that jury selection conducted in open court is not a closure but a reasonable alternative to closure even if some members of the public have an obstructed view, or if the court employs a "husher" to prevent some in attendance from hearing what is being said. Blades v. United States, 200 A.3d 230, 238-41 (D.C. 2019). The court distinguished this procedure from a closure because individual questioning was held "within the view" of the public. Id. at 239-40 (concluding this process is an alternative to closure rather than a closure subject to the requirements


of Waller). "When questioning occurs at the bench, the public can still observe the proceedings, thus furthering the values that the public trial right is designed to protect, and can hear the general questions posed to the jury panel." Id. at 238 (cleaned up); see also Copeland v. United States, 111 A.3d 627, 633 (D.C. 2015) ("Appellant cites no authority, and we can find none, holding that the practice of conducting a limited amount of individual [jury selection] at the bench with a 'husher' on violates a defendant's right to a public trial.").

[¶10] "[C]ourts have found there to be full or partial courtroom closures only where some or all members of the public are precluded from perceiving contemporaneously what is transpiring in the courtroom, because they can neither see nor hear what is going on." Blades, 200 A.3d at 239. The court cited five cases in support of this proposition. Id. (citing Presley, 558 U.S. 209; Cable News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987); Barrows v. United States, 15 A.3d 673, 679 (D.C. 2011); Williams v. United States, 51 A.3d 1273, 1283 (D.C. 2012) (perceiving "no difference of significance for Sixth Amendment purposes between...

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