State v. Hood, 31,568.

• Decision Date: 16 January 2014
• Docket Number: No. 31,568.,31,568.
• Citation: 320 P.3d 522
• Parties: STATE of New Mexico, Plaintiff–Appellee, v. Robert HOOD, Defendant–Appellant.
• Court: Court of Appeals of New Mexico

320 P.3d 522

STATE of New Mexico, Plaintiff–Appellee,

v.Robert HOOD, Defendant–Appellant.

No. 31,568.

Court of Appeals of New Mexico.

Jan. 16, 2014.

Gary K. King, Attorney General Margaret McLean Santa Fe, NM, for Appellee.

Jorge A. Alvarado, Chief Public Defender Kathleen T. Baldridge, Assistant Appellate Defender Santa Fe, NM, for Appellant.

OPINION

HANISEE, Judge.

{1} At Robert Hood's (Defendant) trial on charges of trafficking cocaine, the district court excluded, over Defendant's objection, all members of the public from the courtroom during the testimony of an undercover officer. On appeal, Defendant contends that this courtroom closure violated his Sixth Amendment right to a public trial. Applying our Supreme Court's recent decision in State v. Turrietta, 2013–NMSC–036, 308 P.3d 964, we conclude that the closure was unconstitutional because although the disclosure of an undercover identity may constitute an overriding interest likely to be prejudiced by open-court testimony, the trial record indicates that the district court proscriptively closed the courtroom to all members of the public during the undercover officer's testimony without inquiring into the nature or circumstances of individuals to be excluded. Further, the trial record is devoid of findings regarding inquiry into whether there existed reasonable alternatives to the closure of the proceedings. Accordingly, pursuant to the exacting standard articulated in Turrietta, and to which we are bound, we reverse Defendant's conviction and remand for a new trial.

BACKGROUND

{2} An undercover officer and a confidential informant arranged to buy crack cocaine from Defendant. As a result of the purchase, Defendant was charged with trafficking cocaine. The jury found him guilty, and the State filed a supplemental information, listing several prior offenses for purposes of a habitual offender enhancement pursuant to NMSA 1978, Section 31–18–17 (2003). Defendant was sentenced to eighteen years for the trafficking conviction, which the district court reduced by four years pursuant to NMSA 1978, Section 31–18–15.1 (2009). He was additionally sentenced to four years pursuant to the habitual offender enhancement, resulting in a total term of incarceration of eighteen years. Defendant appeals, raising three claims of error: that he was denied his Sixth Amendment right to a public trial, that his conviction was not supported by substantial evidence, and that his sentence subjected him to cruel and unusual punishment. Because Turrietta compels that we reverse and remand on Sixth Amendment grounds, we do not consider Defendant's remaining claims of error.

{3} Prior to trial, the State filed a motion to clear the courtroom during the testimony of Officer Nick Bloomfield. Officer Bloomfield worked undercover, and although the State had listed his real name on its witness list, it did not want his undercover identity to be disclosed to members of the public in the courtroom, as there might be someone who would recognize him during his ongoing undercover operations. At the hearing on the State's motion, Officer Bloomfield did not testify, nor did the State present evidence supporting its motion to close the courtroom to all spectators during the officer's testimony. Thus, specific information about Officer Bloomfield's operations and the need for the courtroom to be closed during his testimony was based solely upon the State's representations to the court. In addition, the district court asked the State to submit a sealed document containing the number of cases that Officer Bloomfield was working on, along with information about how many of his cases had been filed and how many had been resolved. The district court asked that the list not contain any details about the law enforcement operations.

{4} As directed, the State submitted the responsive document under seal and provided a copy to defense counsel. The document has since been unsealed by consent of the parties, and it represents that Officer Bloomfield had been involved in twenty investigations as an undercover officer. From these, five criminal cases were still pending at the time of the hearing. Those investigations had been resolved at the time of the State's motion, but Officer Bloomfield's involvement had not yet been revealed. As well, the document revealed that Officer Bloomfield was still participating in two investigations in which he was operating undercover.

{5} On the day of trial, prior to voir dire, the district court asked the State whether Officer Bloomfield had ever testified in open court. The State represented that Officer Bloomfield had testified once in district court and at a few preliminary hearings in magistrate court, and that, in each instance, the courtroom was closed during his testimony. The district court then ruled that it would close the courtroom during Officer Bloomfield's testimony because it thought that “there [was] a legitimate public safety issue” as Officer Bloomfield had “some ongoing investigations.”

DISCUSSIONThe Sixth Amendment Right to a Public Trial

{6} Defendant argues that the district court erred in closing the hearing to the public during Officer Bloomfield's testimony because the Sixth Amendment to the United States Constitution guarantees the right to a public trial. In a criminal prosecution, “the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend. VI; N.M. Const. art. II, § 14. We review this claim of error de novo. Turrietta, 2013–NMSC–036, ¶ 14, 308 P.3d 964. If a hearing is closed in violation of the Constitution, the denial of the right to a public trial is a structural error; thus, it is not subject to a harmless error analysis. Id.

{7} One purpose of the right to a public trial is to benefit the accused, “that the public may see he is fairly dealt with and not unjustly condemned[.]” Id. ¶ 15 (internal quotation marks and citation omitted). Althoughthe right to a public trial serves to protect important interests, the right is not absolute and “may give way in certain cases to other rights or interests, such as ... the government's interest in inhibiting disclosure of sensitive information.” Id. (internal quotation marks and citation omitted). However, circumstances such as these are rare and “the balance of interests must be struck with special care.” Id. (internal quotation marks and citation omitted). It is now settled in New Mexico that, when a party seeks courtroom closure, whether it be partial or total, the “overriding interest” standard, as adopted by our Supreme Court in Turrietta and articulated in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), will apply.¹Turrietta, 2013–NMSC–036, ¶ 19, 308 P.3d 964. The Waller standard is a four-pronged inquiry requiring that:

[ (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 district court must consider reasonable alternatives to closing the proceeding, and [ (4) ] it must make findings adequate to support the closure.

Turrietta, 2013–NMSC–036, ¶ 19, 308 P.3d 964 (alteration, internal quotation marks, and citation omitted).

{8} In Turrietta, our Supreme Court was faced with deciding the constitutionality of a courtroom closure during the testimony of four cooperating witnesses. Id. ¶¶ 1, 5. The cooperating witnesses were former gang members set to testify against the defendant, a member of two gangs, who shot and killed a member of another gang. Id. ¶¶ 2, 5. The prosecution sought to close the courtroom during the testimony of the witnesses out of fear that individuals affiliated with the defendant would fill the courtroom and attempt to intimidate the witnesses. Id. ¶ 5. Over the defendant's objections, the district court conducted a limited voir dire of the cooperating witnesses. Id. ¶ 6. During these proceedings, one such witness testified that after he began informing against the defendant in an unrelated case, he was subjected to threats and was physically assaulted on two occasions. Id. ¶ 7. A second witness testified that after the gang learned of his status as a confidential informant, he received a death threat. Id. Further, the district court recognized a gang presence in the courtroom after a gang moniker was twice found etched outside the courtroom doors. Id. ¶ 8. Accordingly, over the defendant's objections, the district court closed the courtroom during the testimony of two of the cooperating witnesses and excluded all members of the public, with the exception of the immediate family of the defendant and the victim, attorneys, court staff, and members of the press. See id. The defendant appealed, and this Court affirmed the district court. Id. ¶ 9. After granting certiorari, our Supreme Court adopted the Waller “overriding interest” test. Turrietta, 2013–NMSC–036, ¶¶ 4, 19, 308 P.3d 964. Based on the failure of the first Waller prong, the closure was deemed to be unconstitutional, and the case was remanded to the district court for a new trial. Id. ¶¶ 22, 40.

{9} We now apply the Waller standard to determine whether the district court committed error in granting the State's motion to close the courtroom during Officer Bloomfield's testimony. For the purposes of our analysis, we assume, without deciding, that the State's objective to conceal the identity of an active undercover officer constitutes an overriding interest that is likely to be prejudiced by open-court testimony. Even with this assumption, however, under Turrietta's stringent requirements, the courtroom closure in this case was nonetheless unconstitutional.Not then having the benefit of the holding articulated in Turrietta, the basis for the district court's closure in the case before us failed to comport with prongs two, three, and four of the Waller test. See Turrietta, 2013–NMSC–036, ¶ 22, 308 P.3d...