State v. Ndina

• Decision Date: 20 November 2007
• Docket Number: No. 2007AP5-CR.,2007AP5-CR.
• Citation: 743 N.W.2d 722,2007 WI App 268
• Parties: STATE of Wisconsin, Plaintiff-Appellant, v. Dhosi J. NDINA, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

743 N.W.2d 722

2007 WI App 268

STATE of Wisconsin, Plaintiff-Appellant, v. Dhosi J. NDINA, Defendant-Respondent.

No. 2007AP5-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs September 4, 2007.

Opinion Filed November 20, 2007.

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of J.B. Van Hollen, Attorney General and Daniel J. O'Brien, Assistant Attorney General.

On behalf of the defendant-respondent, the cause was submitted on the brief of Richard L. Kaiser of Law Offices of Richard L. Kaiser, of Milwaukee.

Before WEDEMEYER, FINE and KESSLER, JJ.

¶ 1 WEDEMEYER, J

The State appeals from an order reversing the judgment and ordering a new trial for Dhosi J. Ndina after a jury found him guilty of first-degree recklessly endangering safety. The State argues that because Ndina failed to object when the trial court removed disruptive family members from the courtroom, his claim of violation of his Sixth Amendment right to a public trial should have been reviewed in the context of ineffective assistance of counsel. We conclude that Ndina's failure to object during his trial when the court ordered family members out of the courtroom requires this court to review his Sixth Amendment public trial violation claim only in the context of ineffective assistance of counsel. Because Ndina failed to establish ineffective assistance of counsel, we reverse the order of the trial court, reinstate the judgment rendered by the jury, and remand this matter to the circuit court for any additional postconviction proceedings required by law.

BACKGROUND

¶ 2 Ndina was charged with attempting to kill his nephew, Erjon Dhembi, at a family gathering which took place on November 24, 2002. Erjon was stabbed in the back. Ndina entered a not guilty plea and the case was tried to a jury in May 2005. During the trial, the court entered a sequestration order for witnesses who were scheduled to testify.

¶ 3 The State presented testimony from the victim's sister, Eglantina Dhembi, who stated that she saw Ndina stab her brother. The victim, Erjon, testified that he was confronted by Ndina and Ndina's brother, Ilia. While Erjon argued with Ilia, Ndina stabbed Erjon twice from behind. Erjon did not see a knife, but was sure Ndina was the one who stabbed him in the back. Erjon's father, Spiro Dhembi, also testified that he saw Ndina stab his son in the back. During this testimony, there was a disturbance in the courtroom involving Ndina's family members. The trial court instructed the individuals to remain silent.

¶ 4 The next afternoon, which was the fourth day of trial, May 12th, there was another disturbance in the courtroom involving Ndina's family members. The trial court noted that family members were walking in and out during testimony and disrupting the process. The trial court, then ordered the exclusion of all family members from the courtroom, with the exception of Ndina's mother. The trial court expressed concern that the family members were disturbing the process, violating the sequestration order and disobeying the order of the court by discussing the case with each other. Ndina did not object to the trial court's order excluding his family members or dispute the court's observations.

¶ 5 On the following day, the trial court noted that it had observed Ndina's family members:

[B]oth male and female who have joined [Ndina's mother] in the gallery over the course of the last five days, discussing matters as witnesses were on the stand, often times in a very animated and elevated fashion. I simply cannot turn a blind eye to that and expect that my sequestration order was understood by those parties.

The trial court reasoned that such conduct "made it inappropriate for [these family members] to remain in my courtroom." The trial court also described the conversations the family was engaging in as "not only animated with facial gestures nodding in approval or disapproval of witnesses' testimony, in full view of the jury . . . they became loud, loud enough such that other members of my staff, as well as the parties could hear it." On May 18, 2005, family members were allowed back into the courtroom for jury instructions and closing arguments.

¶ 6 The defense theory was that Ndina was present at the family gathering, but was not the one who stabbed Erjon. The jury returned a guilty verdict on the lesser-included offense of first-degree recklessly endangering safety. Ndina was sentenced on July 22, 2005, to a term of five years in prison followed by two years of extended supervision. Judgment was entered on July 25, 2005. The Honorable Mary M. Kuhnmuench presided over the trial and sentencing proceedings.

¶ 7 Ndina filed a postconviction motion alleging, among other things that the trial court violated his Sixth Amendment right to a public trial when it excluded several family members from part of the trial. Due to judicial rotation, the Honorable Dennis P. Moroney presided over the hearing on the motion. After considering the written submissions and oral arguments by the parties, the trial court issued an order granting Ndina's motion for a new trial, ruling that Ndina's public trial right was violated. The trial court did not reach the issue of ineffective assistance of counsel because it had already ruled in favor of Ndina on the merits. The State appeals from this order.

DISCUSSION

¶ 8 The State contends that the trial court erred in granting the motion without considering the issue within the context of an ineffective assistance of counsel claim. It proffers that because Ndina's counsel failed to object, he waived review on the merits of the issue and thus, the trial court should have considered the issue only in the context of whether Ndina can establish that counsel provided ineffective assistance by failing to object to the removal of his family members from the courtroom. Ndina responded that the State waived this argument, and that when a Sixth Amendment right to a public trial has been violated, the defendant is not required to show prejudice.

¶ 9 Ndina is correct in stating that generally when a Sixth Amendment right to a public trial has been violated, the defendant is not required to show prejudice. Waller v. Georgia, 467 U.S. 39, 49-50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The Sixth Amendment right to a public trial is a fundamental right protected by the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment. U.S. CONST. amend. VI; Duncan v. Louisiana, 391 U.S. 145, 148-49, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Wisconsin Constitution also guarantees the right to a public trial. WIS. CONST. art. I, § 7 ("In all criminal prosecutions the accused shall enjoy the right ... to a speedy public trial. . . .").

¶ 10 The right to a public trial is a basic tenet of our judicial system, promotes justice, prevents perjury, encourages witnesses to come forward and preserves the integrity of the judicial system. Walton v. Briley, 361 F.3d 431, 432-33 (7th Cir. 2004); Sheppard v. Maxwell, 384 U.S. 333, 349, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

¶ 11 In order to assert a violation of the constitutional right to a public trial, however, a defendant must object at the time the violation occurs. State v. Huebner, 2000 WI 59, ¶¶ 10-11, 235 Wis.2d 486, 611 N.W.2d 727 (failure to make an objection during trial at the time the error occurs generally precludes appellate review of a claim). Here, it is undisputed that there was no objection from the defense, when the trial court ordered Ndina's family members out of the courtroom. Thus, we agree that Ndina's right to raise the merits of this issue on appeal was waived. Levine v. United States, 362 U.S. 610, 619, 80 S.Ct. 1038, 4 L.Ed.2d 989 (1960) (constitutional rights are waived or forfeited by a defendant's or attorney's failure to object when the constitutional violation occurred); State v. Agnello, 226 Wis.2d 164, 172-73, 593 N.W.2d 427 (1999); see also United States v. Hitt, 473 F.3d 146, 155 (5th Cir.2006), cert. denied, ___ U.S. ___, 127 S.Ct. 2083, 167 L.Ed.2d 802 (2007); Roque v. Phillips, No. 04-CV-4337, 2007 WL 777764, at *7 (E.D.N.Y. Mar. 12, 2007); State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038, 1055-56 (2006); Jones v. State, 883 So.2d 369, 371-72 (Fla.Dist.Ct.App.2004); People v. Hayden, 338 Ill.App.3d 298, 272 Ill.Dec. 802, 788 N.E.2d 106, 113-14 (2003); People v. Brown, 278 A.D.2d 60, 717 N.Y.S.2d 177, 177-78 (2000); State v. Butterfield, 784 P.2d 153, 156-57 (Utah 1989); but see Walton, 361 F.3d at 433 (courthouse closed and public was thereby prevented from attending trial; exclusion of disruptive spectators not involved).

¶ 12 The purpose for the waiver rule has been often stated. A timely objection enables the trial court to avoid or correct any error with minimal disruption of the judicial process. State v. Boshcka, 178 Wis.2d 628, 643, 496 N.W.2d 627 (Ct. App.1992). Here, neither Ndina nor his defense counsel raised any objection to the trial court's decision to remove several family members from the courtroom after the family members continued to cause disruption despite the trial court's warnings. Thus, under such circumstances, the only context within which Ndina's claim can be considered is whether his trial counsel provided ineffective assistance by failing to object to the trial court's removal of his family from the courtroom for part of the trial. See Kimmelman v. Morrison, 477 U.S. 365, 375, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (unobjected to error must be analyzed under ineffective assistance of counsel standards, even when error is of constitutional dimension).

¶ 13 In evaluating an ineffective assistance claim, we review whether the defendant has proven two things: (1) that his or her lawyer's performance was deficient; and (2) that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80...