State v. Frederick

• Citation: 2023 ND 77
• Decision Date: 26 April 2023
• Docket Number: 20220070
• Parties: State of North Dakota, Plaintiff and Appellee v. Demoris Omar Frederick, Defendant and Appellant
• Court: United States State Supreme Court of North Dakota

1

2023 ND 77

State of North Dakota, Plaintiff and Appellee v. Demoris Omar Frederick, Defendant and Appellant

No. 20220070

Supreme Court of North Dakota

April 26, 2023

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Pamela A. Nesvig, Judge.

Dennis H. Ingold, Assistant State's Attorney, Bismarck, ND, for plaintiff and appellee.

Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.

OPINION

Jon J Jensen, C.J.

[¶1] Demoris Frederick appeals from a criminal judgment entered after a jury convicted him of aggravated assault. Frederick argues the district court created a structural error by denying his constitutional right to a public trial, and created a reversible error by conducting voir dire off the record, making a transcript of the jury selection unavailable. Because Frederick has not demonstrated any portion of trial was held privately, or that the public was asked to leave the courtroom or was not allowed in, his right to a public trial was not violated. Because Frederick also has not demonstrated an error affecting his substantial rights when the district court failed to create an adequate record during a bench conference in open court, he has failed to demonstrate obvious error. We therefore affirm the criminal judgment.

I

[¶2] On March 9, 2021, R.B. was seriously injured by a knife during an altercation with Frederick. An amended information charged Frederick with aggravated assault and conspiracy to commit aggravated assault. Testimony at trial established that Frederick stabbed R.B. over a dispute R.B. had with Frederick's co-defendant. The jury found Frederick guilty of aggravated assault with a dangerous weapon, but acquitted him of conspiracy to commit aggravated assault.

[¶3] Frederick argues there were multiple closures during the trial that violated his right to a public trial. Frederick claims two bench conferences were held with no record taken creating closed proceedings-the first occurring right before jury selection, and the second occurring during cross examination of R.B. Frederick argues a violation occurred on the first day of trial shortly after jury selection when the district court noted on the record that "[t]he door is closed," and then admonished Frederick for being late and discussed certain matters such as jury instructions and exhibits. Frederick also asserts other discussions relating to opening and closing statements, and jury selection were taken off the record, not in view of the public. The State argues, in part, that Frederick's argument is foreclosed by his failure to comply with N.D.R.App.P. 10(f) because Frederick made no attempt to recreate the record through supplemental affidavits by the parties. Frederick also claims the court created a reversible error by conducting voir dire off the record, resulting in a transcript of jury selection being unavailable.

II

[¶4] This Court applies a de novo standard to review whether facts rise to the level of a public trial violation. State v Martinez, 2021 ND 42, ¶ 19, 956 N.W.2d 772. "When considering on appeal a defendant's claim that his right to a public trial was violated, 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." Id. at ¶ 3 (citation omitted). If there was a closure, this Court determines "whether the trial court made pre-closure Waller findings sufficient to justify the closure." Id. When a defendant does not preserve the public trial issue with a timely objection at trial, this Court reviews only for obvious error. See State v. Pendleton, 2022 ND 149, ¶ 5, 978 N.W.2d 641; State v. Morales, 2019 ND 206, ¶ 24, 932 N.W.2d 106. To establish obvious error, a defendant must demonstrate a plain error that affected the defendant's substantial rights. State v. Pemberton, 2019 ND 157 ¶ 8, 930 N.W.2d 125 (citing N.D.R.Crim.P. 52(b)).

[¶5] This Court has determined that a violation of a defendant's right to a public trial is a structural error that affects the substantial rights of a defendant, and, therefore, constitutes obvious error. State v. Pulkrabek, 2022 ND 128, ¶ 7, 975 N.W.2d 572. Structural errors include three Sixth Amendment rights-the right to counsel, right to self-representation, and right to a public trial. Id. (citing State v. Rogers, 2018 ND 244, ¶ 5, 919 N.W.2d 193). When a structural error occurs, it affects the framework of the entire judicial proceeding, and its detrimental effects are inherently difficult to assess. Id. (citing Morales, 2019 ND 206, ¶ 14). Thus, it is not necessary that a defendant identify a specific prejudice or negative outcome. Id. (citing Morales, at ¶ 14).

[¶6] In Pendleton, 2022 ND 149, ¶ 6, this Court provided guidance on determining when a closure has occurred:

"We have said that brief sidebars or bench conferences conducted during trial to address routine evidentiary or administrative issues outside the hearing of the jury ordinarily will not implicate the public trial right." Martinez, 2021 ND 42, ¶ 20, 956 N.W.2d 772. "Contrary to what the 'administrative' label suggests, such proceedings are not limited to purely administrative procedures before the court, such as scheduling." State v. Smith, 876 N.W.2d 310, 329 (Minn. 2016) (cited to favorably in Martinez, 2021 ND 42, 956 N.W.2d 772 and Morales, 2019 ND 206, 932 N.W.2d 106). For example, routine evidentiary rulings, objection rulings, or "[m]atters traditionally addressed during private bench conferences or conferences in chambers generally are not closures implicating the Sixth Amendment." Martinez, 2021 ND 42, ¶ 20, 956 N.W.2d 772. Additionally, "[n]on-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials." Smith, 876 N.W.2d at 329 (quoting U.S. v. Norris, 780 F.2d 1207, 1210 (5th Cir. 1986)). Therefore, because administrative exchanges "ordinarily relate to the application of legal principles to admitted or assumed facts so that no fact finding function is implicated," the public trial right is not implicated for these types of exchanges. Smith, at 329[.]

The above exchanges do not implicate a defendant's Sixth Amendment right to a public trial. The exchanges do not involve the public or specific persons being asked to leave the courtroom, nor do they involve a truth-seeking function such as testimony being taken from a witness or the selection of prospective jurors. There is little threat of judicial, prosecutorial, or public abuse in these instances, and thus, the truth is not at risk for compromise.

[¶7] This Court has yet to address which party has the burden to demonstrate the public was excluded from a proceeding to which the public had a right to be present. We now clarify that an appellant bears the burden of proving this error. See State v. Rademacher, 2023 ND 9, ¶ 8, 984 N.W.2d 660 (quoting L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 799) ("On appeal, the appellant bears the burden of showing error."); see also Commonwealth v. Williams, 401 N.E.2d 376, 378 (Mass. 1980) ("The burden is clearly on the defendant to demonstrate that the public was excluded from his trial[.]"); Cameron v. State, 490 S.W.3d 57, 69 (Tex. Crim. App. 2014), on reh'g (Mar. 2, 2016) (noting "the burden to show that a trial is closed to the public is on the defendant"). In the instance of an alleged public trial violation, this means the appellant must demonstrate the public was excluded from a proceeding and the proceeding was of a nature that the public had a right to be present.

[¶8] In most of our public trial cases, members of the public were specifically asked to leave, or the parties discussed matters outside the presence of the public. See State v. Davis-Heinze, 2022 ND 201, ¶ 1, 982 N.W.2d 1 (discussion in hallway between trial court and parties on a question from the jury); Pulkrabek, 2022 ND 128, ¶ 6 (in-chamber pre-trial conference discussing jury selection, evidentiary stipulations, and an attorney withdrawal request); Martinez, 2021 ND 42, ¶ 1 (portion of trial closed to public when testimony from a minor was received); Morales, 2019 ND 206, ¶ 4 (public asked to leave during pre-trial and evidentiary hearings and at trial); Rogers, 2018 ND 244, ¶ 6 (public excluded from a competency hearing).

[¶9] In Pendleton, certain discussions occurred outside the presence of the public (reviewing jury selection charts; examining the verdict forms), but one instance involved whether an off-the-record bench conference, conducted in open court, violated a defendant's right to a public trial. 2022 ND 149, ¶ 7. The bench conference was "an off-the-record discussion at the bench with the parties discussing the numbering of exhibits[.]" Id. We acknowledged in that case that "at no time did the court close the courtroom or ask members of the public to leave before any matters were discussed." Id. at ¶ 10. Instead, the discussion "occurred at the bench in open court in view of the public." Id. Additionally, "[t]he content of the discussion was described by the court before it began, and the substance of the discussion was immediately summarized by the court on the record at its conclusion." Id. We concluded that this discussion "was purely administrative in substance and did not constitute a closure implicating the public trial right." Id.

[¶10] We have yet to address whether a defendant's right to a public trial is violated when a bench conference conducted in open court is not recorded or the district court does not explain on the record the substance of a bench conference. Although our prior case...