State v. Martinez, No. 20190407

CourtNorth Dakota Supreme Court
Writing for the CourtTufte, Justice.
Citation956 N.W.2d 772
Parties STATE of North Dakota, Plaintiff and Appellee v. Juan Antonio MARTINEZ, Defendant and Appellant State of North Dakota, Plaintiff and Appellee v. Everest Burdan Moore, Defendant and Appellant
Decision Date24 March 2021
Docket NumberNos. 20200080–20200082,No. 20190407

956 N.W.2d 772

STATE of North Dakota, Plaintiff and Appellee
v.
Juan Antonio MARTINEZ, Defendant and Appellant

State of North Dakota, Plaintiff and Appellee
v.
Everest Burdan Moore, Defendant and Appellant

No. 20190407
Nos. 20200080–20200082

Supreme Court of North Dakota.

FILED MARCH 24, 2021
Rehearing Denied April 20, 2021


Nathan K. Madden, Assistant State's Attorney, Williston, N.D., for plaintiff and appellee.

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

Kelly A. Dillon, Assistant Attorney General, Bismarck, N.D., for plaintiff and appellee.

Scott O. Diamond, Fargo, N.D., for defendant and appellant.

Tufte, Justice.

¶1] We consolidated these criminal cases after argument under N.D.R.App.P. 3(b), because both involve whether a defendant may waive his Sixth Amendment right to a public trial. Everest Burdan Moore appeals three criminal judgments following a jury verdict finding him guilty of eight counts of gross sexual imposition. Moore argues the district court closed two pretrial hearings and parts of his trial without the pre-closure analysis required by Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), thus violating his public trial right guaranteed by the Sixth Amendment. Juan Martinez appeals from a criminal judgment entered after a jury found him guilty of continuous sexual abuse of a child. Martinez argues the district court erred by closing the courtroom to the public during the testimony of the minor victim and the victim's counselor. We reverse the judgments and remand for new trials.

I

[¶2] Because of the increasing frequency with which closure orders have been entered in the trial courts and then argued to us on appeal, it is appropriate that this Court articulate some procedural guidelines as to how closure motions should be handled in the trial courts. See Minot Daily News v. Holum , 380 N.W.2d 347, 349-50 (N.D. 1986) ; Gannett River States Pub. Co. v. Hand , 571 So. 2d 941, 945 (Miss. 1990). We emphasize that closures of criminal trial proceedings to the public should be rare. District courts should not close trials as a matter of convenience, to increase judicial efficiency, or simply because the parties both prefer to exclude the public. Trial courts should not close trial proceedings at the request of one or both parties without carefully considering the asserted interest in closing the hearing, alternatives to closure, and the minimum scope necessary to serve any overriding interest in closure. In the ordinary course, a request to close a trial should be made by pretrial motion, which provides the district court time and opportunity to make findings and provides the opposing party, the press and the general public opportunity to assert their interests in a public trial. Holum , 380 N.W.2d at 350 ; State v. Klem , 438 N.W.2d 798, 800 (N.D. 1989).

[¶3] 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.

[956 N.W.2d 780

State v. Olander , 1998 ND 50, ¶¶ 8, 14, 575 N.W.2d 658 (explaining that whether an issue is preserved by timely objection, forfeited, or waived determines the standard of review for the issue). We then consider the threshold question of whether there was a closure implicating the public trial right. State v. Morales , 2019 ND 206, ¶ 16, 932 N.W.2d 106. If there was a closure, we determine whether the trial court made pre-closure Waller findings sufficient to justify the closure. Id. at ¶ 25. We review the court's findings under the clearly erroneous standard and its application of the law to those findings de novo. See Klem , 438 N.W.2d at 802-03 ; State v. Hall , 2017 ND 124, ¶ 12, 894 N.W.2d 836 (reviewing district court's speedy trial conclusion de novo and associated findings for clear error).

A

[¶4] In criminal cases, errors not raised in the district court may be either forfeited errors or waived errors. State v. Watkins , 2017 ND 165, ¶ 12, 898 N.W.2d 442 (citing Olander , 1998 ND 50, ¶ 14, 575 N.W.2d 658 ). "Forfeiture is the failure to timely assert a right, while waiver is the intentional relinquishment of a right." Id. We review forfeited errors under N.D.R.Crim.P. 52(b) for obvious error. Id. The structural error doctrine applies to a narrow class of rights, including three Sixth Amendment rights defining the framework of a trial: the right to counsel, the right to self-represent, and the right to a public trial. State v. Rogers , 2018 ND 244, ¶ 5, 919 N.W.2d 193. Because a structural error affects the framework within which a trial proceeds, it renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Morales , 2019 ND 206, ¶ 14, 932 N.W.2d 106. The structural error doctrine serves the purpose of "ensur[ing] insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial." Id. (quoting Weaver v. Massachusetts , ––– U.S. ––––, 137 S. Ct. 1899, 1907, 198 L.Ed.2d 420 (2017) ). Errors that affect the entire adjudicatory framework "defy analysis by ‘harmless-error’ standards." Rogers , at ¶ 4 (quoting Puckett v. United States , 556 U.S. 129, 141, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ). An impact on the trial's outcome is not necessary in the case of structural errors. Morales , at ¶ 14. A difficulty in "assess[ing] the effect of the error" is inherent in the very nature of a structural error. Rogers , at ¶ 4 (quoting United States v. Marcus , 560 U.S. 258, 263, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) ).

[¶5] "Violation of the right to a public trial is a structural error." Morales , 2019 ND 206, ¶ 15, 932 N.W.2d 106 (citing Rogers , 2018 ND 244, ¶ 5, 919 N.W.2d 193 ). This Court has repeatedly said structural errors require automatic reversal regardless of whether they were forfeited or waived, including when the error is invited. Morales , at ¶ 15 ; Rogers , at ¶ 3 ; State v. Rende , 2018 ND 56, ¶ 8, 907 N.W.2d 361 ; State v. Decker , 2018 ND 43, ¶ 8, 907 N.W.2d 378 ; Watkins , 2017 ND 165, ¶ 12, 898 N.W.2d 442 ; see State v. White Bird , 2015 ND 41, ¶ 24, 858 N.W.2d 642. These cases did not squarely present the question of whether or under what conditions a structural error may be waived. Now that the issue is properly before us, we acknowledge this Court's prior statements were overly broad, and we now explain and narrow these broad statements about waiver of structural error.

¶6] In White Bird , 2015 ND 41, ¶¶ 18, 21, 858 N.W.2d 642, the defendant argued he was denied a fair trial when the district court admitted a "large volume" of inadmissible, extraneous, and prejudicial evidence. The defendant claimed the State allowed him to say "virtually anything"

[956 N.W.2d 781

and introduce whatever he wanted while he represented himself at trial and the court failed to regulate the introduction of evidence and instruct the jury on the limits of the evidence. Id. at ¶ 21. In the context of discussing the invited error doctrine, this Court stated that "[c]ourts have held ... that the ‘invited error’ doctrine does not apply when a constitutional error is structural, but few constitutional errors qualify for the ‘structural’ label." Id. at ¶ 24. However, we did not decide that any of the alleged errors were structural errors. We held the defendant was not denied a fair trial because he engaged in an unsuccessful trial strategy and introduced the evidence about which he complained on appeal. Id. at ¶ 26.

¶7] In Watkins , 2017 ND 165, ¶ 8, 898 N.W.2d 442, the defendant argued the district court erred in applying a mandatory minimum sentence for armed offenders because the jury was not required to find that he possessed a firearm. We concluded the district court erred by failing to ask the jury to determine whether the defendant possessed a firearm, a fact which triggered imposition of the mandatory minimum sentence. Id. at ¶ 11. We said structural errors require reversal regardless of whether they have been waived, but we held the error was not a structural error. Id. at ¶ 13 (citing Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ; Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ).

[¶8] In Decker , 2018 ND 43, ¶ 6, 907 N.W.2d 378, the defendant argued his trial was tainted by structural error when court staff excluded the public from attending jury selection. Citing White Bird and Watkins , we said structural errors are immune to the invited error doctrine, do not necessarily require action at the time the error occurs, and require automatic reversal regardless of whether the error is forfeited or waived. Id. at ¶ 8. This statement was not necessary to the decision because Decker did not waive or invite the error. Decker objected during trial after learning of the closure and requested a mistrial. Id. at ¶ 3.

[¶9] In Rende , 2018 ND 56, ¶ 5, 907 N.W.2d 361, the defendant argued the jury instructions failed to include an element of the offense. We again stated structural errors require reversal regardless of whether they have been forfeited or waived. Id. at ¶¶ 8 -9. But, as in Watkins , we concluded an Apprendi or Alleyne error in jury instructions is not a structural error. Id. at ¶ 10. Our statement about structural error was not necessary to our decision. Id.

[¶10] In each of these cases, statements that structural errors require automatic...

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5 practice notes
  • Rios v. State, PD-0441-21
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • December 7, 2022
    ...v. Duarte-Higareda, 113 F.3d 1000, 1003 (9th Cir. 1997) (denial of the right to a jury is structural error); North Dakota v. Martinez, 956 N.W.2d 772, 782 (N.D. 2021) (denial of right to a jury trial implicates structural error); Idaho v. Vasquez, 416 P.3d 108, 114 (Idaho 2018) (structural ......
  • Yoney v. State, 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...85, 959 N.W.2d 891, the first case stating a person cannot commit an attempted knowing murder. See State v. Martinez , 2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should not expect our trial courts to be clairvoyant regarding newly announced standards established ......
  • Yoney v. State, No. 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...85, 959 N.W.2d 891, the first case stating a person cannot commit an attempted knowing murder. See State v. Martinez, 2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should not expect our trial courts to be clairvoyant regarding newly announced standards established b......
  • State v. Walbert, No. 20200197
    • United States
    • United States State Supreme Court of North Dakota
    • March 24, 2021
    ...whether a defendant's public trial right was implicated is whether the proceeding was closed. See State v. Martinez , 2021 ND 42, ¶ 3, 956 N.W.2d 772. If so, we determine whether the trial court made appropriate Waller findings to justify the closure. Id. If not, a Waller determination is u......
  • Request a trial to view additional results
4 cases
  • Yoney v. State, 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...85, 959 N.W.2d 891, the first case stating a person cannot commit an attempted knowing murder. See State v. Martinez , 2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should not expect our trial courts to be clairvoyant regarding newly announced standards established ......
  • Yoney v. State, No. 20200359
    • United States
    • United States State Supreme Court of North Dakota
    • July 22, 2021
    ...85, 959 N.W.2d 891, the first case stating a person cannot commit an attempted knowing murder. See State v. Martinez, 2021 ND 42, ¶ 69, 956 N.W.2d 772 (McEvers, J., dissenting) (stating we should not expect our trial courts to be clairvoyant regarding newly announced standards established b......
  • State v. Walbert, No. 20200197
    • United States
    • United States State Supreme Court of North Dakota
    • March 24, 2021
    ...whether a defendant's public trial right was implicated is whether the proceeding was closed. See State v. Martinez , 2021 ND 42, ¶ 3, 956 N.W.2d 772. If so, we determine whether the trial court made appropriate Waller findings to justify the closure. Id. If not, a Waller determination is u......
  • Solberg v. McKennett, No. 20200207
    • United States
    • United States State Supreme Court of North Dakota
    • March 24, 2021
    ...an action for deceit, not for rescission. There is a vast difference between the actions, and this difference must be constantly kept in [956 N.W.2d 772 mind in considering this case." Gunderson v. Havana-Clyde Mining Co. , 22 N.D. 329, 133 N.W. 554, 555 (1911) ; Erickson v. Brown , 2008 ND......

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