State v. Overline, 38929.

• Court: Court of Appeals of Idaho
• Writing for the Court: LANSING, Judge.
• Citation: 154 Idaho 214,296 P.3d 420
• Parties: STATE of Idaho, Plaintiff–Respondent, v. Kevin Christian OVERLINE, Defendant–Appellant.
• Docket Number: No. 38929.,38929.
• Decision Date: 03 December 2012

154 Idaho 214
296 P.3d 420

STATE of Idaho, Plaintiff–Respondent,
v.
Kevin Christian OVERLINE, Defendant–Appellant.

No. 38929.

Court of Appeals of Idaho.

Dec. 3, 2012.
Review Denied March 20, 2013.

296 P.3d 422

Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy Appellate Public Defender, Boise, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy Attorney General, Boise, for respondent.

LANSING, Judge.

154 Idaho 216

Kevin Christian Overline appeals from his judgment of conviction for several sex offenses against a child. The principal issue that we must address is whether defense counsel may waive a defendant's constitutional right to a public trial by consenting to closure of a portion of the trial, or whether such a waiver may be made only by the defendant personally. We hold that this constitutional right may be waived by consent from counsel and therefore affirm the judgment of conviction.

I.

BACKGROUND

Overline was charged with lewd conduct with a minor child under sixteen, Idaho Code § 18–1508, sexual abuse of a minor child under sixteen, I.C. § 18–1506, and possession of sexually exploitative material, I.C. § 18–1507A,¹ for acts committed against his girlfriend's ten-year-old daughter. The charges arose from Overline's creation and possession of explicit photographs of the child's body. At a pretrial conference, the court inquired about the type of exploitative material the State intended to present, and the prosecutor responded that it would be photographs. The following exchange then occurred:

[PROSECUTOR]: And I'm wondering if I can just publish [the exhibits] personally to the jury or we can clear the courtroom out since it is a young victim.

THE COURT: I—I would probably clear—clear the area. I think that would make more sense. Is that okay with you?

[DEFENSE COUNSEL]: That's fine.

THE COURT: Okay. But this isn't like videos or anything like that? It's just photographs?

[PROSECUTOR]: Photographs.

THE COURT: And it's up to you whether you want to just publish it individually or put it on the overhead. But if you—I think if you want to do it on the overhead, that's fine, and then we can—we'll just have everybody out.

At trial, the district court excluded spectators from the courtroom on at least two occasions, without defense objection, while the photographs were being shown as exhibits. One closure occurred while the victim identified herself in the photos, and one while a computer forensic examiner identified the photos as those that had been found on a computer in Overline's home. The courtroom apparently was open for all other portions of the trial, including the victim's testimony that was unrelated to the photographs. The jury returned guilty verdicts on all three charges.

Overline appeals, asserting that his convictions must be reversed because the closure of the courtroom violated his constitutional right to a public trial. He also asserts that his sentences are excessive.

II.

ANALYSIS

A. The Sixth Amendment Right to a Public Trial

The Sixth Amendment to the United States Constitution guarantees that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." This right is made applicable to the states through the Due Process Clause of the Fourteenth Amendment. In re Oliver, 333 U.S. 257, 278, 68 S.Ct. 499, 510, 92 L.Ed. 682, 696–97 (1948). "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility

154 Idaho 217

296 P.3d 423

and to the importance of their functions." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31, 38 (1984) (quoting Oliver, 333 U.S. at 270 n. 25, 68 S.Ct. at 506 n. 25, 92 L.Ed. at 692 n. 25).² "In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Waller, 467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed.2d at 38. Waller sets forth the procedures that must be followed before a criminal trial may be closed over a defense objection:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. at 48, 104 S.Ct. at 2216, 81 L.Ed.2d at 39. Because of the "great, though intangible, societal loss that flows from closing courthouse doors," the denial of a right to a public trial is considered a structural error from which prejudice is presumed. Id. at 49 n. 9, 104 S.Ct. at 2217 n. 9, 81 L.Ed.2d at 40 n. 9 (internal quotations and citation omitted).

Because Overline made no objection to the courtroom closures that occurred here, his claim that his right to a public trial was violated is reviewable on appeal only if he demonstrates that the trial court's action constituted fundamental error. State v. Perry, 150 Idaho 209, 225–26, 245 P.3d 961, 977–78 (2010). To demonstrate fundamental error, the defendant's first burden is to show that one or more of the defendant's unwaived constitutional rights was violated. Id. at 226, 245 P.3d at 978. That is, the claimed error is not reviewable if the constitutional right was waived at the trial court level. Id. at 225, 245 P.3d at 977. See also United States v. Olano, 507 U.S. 725, 732–34, 113 S.Ct. 1770, 1776–78, 123 L.Ed.2d 508, 518–20 (1993) (holding that if a right is waived, no "error" has occurred).

In the present case, defense counsel plainly waived any objection to the closure of the trial when he said, "That's fine," after the court expressed a preference to clear the courtroom and asked, "Is that okay with you?"³ Overline asserts, however, that defense counsel's consent to the exclusion of spectators does not preclude review of his claim of fundamental error because a valid waiver of the right to a public trial requires a personal and informed waiver by the accused himself.

Not all of a criminal defendant's constitutional rights are subject to waiver by only the defendant personally. As explained by the United States Supreme Court:

What suffices for waiver depends on the nature of the right at issue. "[W]hether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant's choice must be particularly informed or voluntary, all depend on the right at stake." United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770 [1777], 123 L.Ed.2d 508 [519] (1993). For certain fundamental rights, the defendant must personally make an informed waiver. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464–465, 58 S.Ct. 1019 [1023], 82 L.Ed. 1461 [1466–67] (1938) (right to counsel); Brookhart v. Janis, 384 U.S. 1, 7–8, 86 S.Ct. 1245 [1248–49], 16 L.Ed.2d 314 [318–19] (1966) (right to plead not guilty). For other rights, however, waiver may be effected by action of counsel. "Although there are basic rights that the attorney cannot waive without the fully informed and publicly

154 Idaho 218

296 P.3d 424

acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial." Taylor v. Illinois, 484 U.S. 400, 417–418, 108 S.Ct. 646 [657–58], 98 L.Ed.2d 798 [816] (1988). As to many decisions pertaining to the conduct of the trial, the defendant is "deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ " Link v. Wabash R. Co., 370 U.S. 626, 634, 82 S.Ct. 1386 [1390], 8 L.Ed.2d 734 [740] (1962) (quoting Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955 [958] (1880) ). Thus, decisions by counsel are generally given effect as to what arguments to pursue, see Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308 [3312–13], 77 L.Ed.2d 987 [993–94] (1983), what evidentiary objections to raise, see Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564 [569], 13 L.Ed.2d 408 [414–15] (1965), and what agreements to conclude regarding the admission of evidence, see United States v. McGill, 11 F.3d 223, 226–227 (C.A.1 1993). Absent a demonstration of ineffectiveness, counsel's word on such matters is the last.

New York v. Hill, 528 U.S. 110, 114–15, 120 S.Ct. 659, 663–64, 145 L.Ed.2d 560, 566–67 (2000). In addition to the two fundamental rights mentioned in Hill —the right to counsel and the right to plead not guilty—the United States Supreme Court has identified several other rights that cannot be waived without a defendant's personal and informed consent. These include the right to a jury trial, the right to be present at trial, the right to...