State v. Pinno

• Decision Date: 18 July 2014
• Docket Number: Nos. 2011AP2424–CR, 2012AP918.,s. 2011AP2424–CR, 2012AP918.
• Citation: 2014 WI 74,356 Wis.2d 106,850 N.W.2d 207
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Nancy J. PINNO, Defendant–Appellant. State of Wisconsin, Plaintiff–Respondent, v. Travis J. Seaton, Defendant–Appellant.
• Court: Wisconsin Supreme Court

356 Wis.2d 106
850 N.W.2d 207
2014 WI 74

STATE of Wisconsin, Plaintiff–Respondent,
v.
Nancy J. PINNO, Defendant–Appellant.
State of Wisconsin, Plaintiff–Respondent,
v.
Travis J. Seaton, Defendant–Appellant.

Nos. 2011AP2424–CR, 2012AP918.

Supreme Court of Wisconsin.

Argued Sept. 4, 2013.
Decided July 18, 2014.

[850 N.W.2d 211]

For defendant-appellant Nancy J. Pinno, there were briefs by Len Kachinsky and Sisson and Kachinsky Law Offices, Appleton, and oral argument by Len Kachinsky.

For the plaintiff-respondent, the cause was argued by Gregory M. Weber, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

For defendant-appellant Travis J. Seaton, there were briefs by Amelia L. Bizzaro and Bizzaro Law LLC, Milwaukee, and oral argument by Amelia L. Bizzaro.

For the plaintiff-respondent, the cause was argued by Daniel J. O'Brien, with whom on the brief was J.B. Van Hollen, attorney general.

[850 N.W.2d 212]

An amicus curiae brief was filed by Robert J. Dreps, Aaron A. Seligman, and Godfrey & Kahn, S.C., Madison, on behalf of the Wisconsin Freedom of Information Council, the Wisconsin Broadcasters Association, and the Wisconsin Newspaper Association.

DAVID T. PROSSER, J.

¶ 1 These cases are before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (2011–12).¹ THE COURT OF APPEAls certified both state v. pinno and state v. Seaton because these unrelated cases present the question whether the closure ² of a public criminal trial without objection from the defendant is subject to a waiver analysis or a forfeiture analysis on review.³

¶ 2 Fond du Lac County Circuit Judge Richard J. Nuss (Judge Nuss) presided over jury trials in Pinno and Seaton, including the voir dire proceedings. In both voir dire proceedings, the judge said he wanted the public to leave the courtroom to make room for large jury panels. Neither defendant objected, and both defendants were later found guilty by juries in trials that were completely open after the juries were selected.

¶ 3 The defendants, Travis J. Seaton (Seaton) and Nancy J. Pinno (Pinno), pursued postconviction relief, and in both cases Judge Nuss found that the courtroom had never actually been closed to all members of the public not part of the jury panel. In Seaton's Wis. Stat. § 974.06 motion, filed almost four years after the guilty verdict, Seaton alleged that a second, unknown closure took place in his case when someone stood in front of the courtroom doors to prevent the public from reentering the courtroom. Judge Nuss denied all postconviction motions, and these appeals followed.

¶ 4 Seaton and Pinno argue that a violation of the public trial right is structural error, and the right is not forfeited by their failure to make timely objections. Both defendants argue in the alternative that they received ineffective assistance of counsel because their attorneys failed to timely object to the exclusion of the public from voir dire. In addition, Seaton argues that he was denied his right to an impartial judge when Judge Nuss failed to grant Seaton's recusal motion.

¶ 5 We reach the following conclusions.

¶ 6 First, the Sixth Amendment right to a public trial extends to voir dire. Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). A judge's decision to “close” or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller v. Georgia, 467 U.S. 39, 45, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure. Id.

¶ 7 Second, the Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial

[850 N.W.2d 213]

decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it. It would be inimical to an efficient judicial system if a defendant could sit on his hands and try his luck in a closed courtroom only to argue after his conviction that his Sixth Amendment right to a public trial had been violated.

¶ 8 Third, the records in these cases are clear that neither Seaton nor Pinno objected to the alleged courtroom closure. In Seaton's case, the allegation that courtroom personnel prevented the public from reentering the courtroom does not alter the analysis because Seaton was aware of the initial exclusion. If courtroom personnel did prevent the public from coming back into the courtroom, that prevention was part of the initial exclusion. Therefore, Seaton and Pinno both forfeited their rights to a public trial.

¶ 9 Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys' failure to object to the exclusion of the public from the courtroom. Therefore, both defendants have failed to prove that their counsel was ineffective.

¶ 10 Finally, Seaton was not denied his right to an impartial judge. Judge Nuss's communications show that he was cognizant of his responsibilities under the Judicial Code of Conduct, and he did not appear to be biased. We presume that judges are impartial, and Seaton has not offered sufficient evidence to rebut that presumption. Therefore, Judge Nuss properly denied the recusal motion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY A. State v. Seaton

¶ 11 Travis J. Seaton was charged with first-degree reckless homicide as a repeater contrary to Wis. Stat. §§ 940.02(1) and 939.62(1)(c), on November 17, 2006. The charges stemmed from an incident that occurred in the early morning hours of November 15 in the City of Fond du Lac. Seaton was involved in an altercation with Keith Rockweit (Rockweit) outside a bar. Seaton threw a single punch that caused Rockweit to fall down and hit his head on the concrete pavement. Seaton was arrested a few minutes later about two blocks from the bar. Rockweit was taken to a hospital and treated for cerebral hemorrhaging and a broken jaw, but he died later that day.

¶ 12 Seaton engaged Attorneys Gerald P. Boyle and K. Richard Wells to represent him at trial, which was scheduled for March 24, 2008. Attorney Wells handled voir dire for the defendant.

¶ 13 Before voir dire began, Judge Nuss attempted to make room for the large incoming jury panel, indicating that he might clear the courtroom:

THE COURT: All right. Couple housekeeping matters that the Court will then address. First of all, just for those others that are in attendance, ... there's a hundred jurors coming in. Obviously we're short on space. And their comfort and availability will not be compromised by anyone else in the courtroom if it

[850 N.W.2d 214]

becomes necessary, I'm just going to excuse everybody in the courtroom, that's the way it's going to be. We'll have to be certainly sensitive to that, I'm certainly sensitive to the victim, I'm certainly sensitive to the Defendant, but jurors come first. And so the Court will address that.

Let me just invite [the clerk's opinion]. With the space that we have, do you think the jurors will be able to be seated in here?

THE CLERK: I believe so. Twenty-four in the jury box. We'll probably have to clear the courtroom first.

THE COURT: All right. And so we probably will do that just to be on the safe side.

¶ 14 No one objected.

¶ 15 The jury panel entered the courtroom at 9:40 a.m. Before the jury entered, the court disposed of several evidentiary issues and made the following concluding observation:

[T]he Court wants to address those others in attendance. If there is one hint of one word of any juror at all for any reason, all are going out. Okay? I'm not going to pick and choose or identify any particular individual. Mum is the word while the Court is engaged in its voir dire.... I don't expect any comments made, I don't expect any snickering, I don't expect any outbursts, I don't expect anything. And if one person says one thing or makes one comment that I can hear up here, the whole courtroom is going to be cleared of those individuals. All right?

(Jury enters the courtroom at 9:40 a.m.)

¶ 16 The record shows that the court actually seated 91 potential jurors, 14 of whom were ultimately selected for the jury. After the jurors were selected the court asked: “Does either attorney have any motions to make regarding the jury selection process?” Both the prosecutor, Assistant Attorney General Thomas L. Storm, and defense counsel, Richard Wells, specifically answered, “No, Your Honor.” Then the jury was sworn and excused for lunch. Again the court asked counsel: “Counsel have anything for the Court?” Attorney Wells responded, “No.”

¶ 17 On March 28, 2008, the jury found Seaton guilty of first-degree reckless homicide as a repeater, and on August 6, 2008, he was sentenced to 15 years in prison and 15 years of extended supervision. Seaton moved for an order granting a mistrial,⁴ which the circuit court denied in a written order on December 23, 2008.

¶ 18 On February 16, 2009, Seaton filed a postconviction motion pursuant to Wis. Stat. § 809.30. In that motion, Seaton argued that his sentence was too harsh, reasserted his argument that one of the jurors was biased, and argued that “other acts evidence” was used...