State v. Tucker

Decision Date24 December 2012
Docket NumberNos. 2 CA–CR 2011–0340,2 CA–CR 2011–0391.,2 CA–CR 2011–0386,s. 2 CA–CR 2011–0340
Citation231 Ariz. 125,650 Ariz. Adv. Rep. 19,290 P.3d 1248
PartiesThe STATE of Arizona, Appellee, v. Marcus Deshaun TUCKER, Appellant. The State of Arizona, Appellee, v. Clifton James Cuttler II, Appellant. The State of Arizona, Appellee, v. Andre Lavelle Armstrong, Appellant.
CourtArizona Court of Appeals


Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Amy M. Thorson, and Nicholas Klingerman, Tucson, Attorneys for Appellee.

Law Offices of Cornelia Wallis Honchar, P.C. By Cornelia Wallis Honchar, Tucson, Attorney for Appellant Tucker.

West & Zickerman, PLLC By Anne Elsberry, Tucson, Attorneys for Appellant Cuttler.

Lori J. Lefferts, Pima County Public Defender By David J. Euchner, Tucson, Attorneys for Appellant Armstrong.



¶ 1 After an eight-day jury trial, appellants Andre Armstrong, Clifton Cuttler II, and Marcus Tucker were convicted of offenses arising from their agreement to commit a home invasion and were sentenced to terms of imprisonment. In their consolidated appeals, they all argue they were deprived of their constitutional right to a public trial. Armstrong separately challenges the sufficiency of the evidence supporting his conviction and the trial court's denial of his motions to sever his trial from that of his codefendants. Cuttler also contends the trial court erred in denying his motion to permit appointed counsel to withdraw. Although we find Armstrong's separate arguments to be without merit, we agree that all the defendants were deprived of a public trial.1 We therefore vacate their convictions and sentences and remand for a new trial.

Factual Background and Procedural History

¶ 2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Gunches, 225 Ariz. 22, n. 1, 234 P.3d 590, 591 n. 1 (2010). This case arose from an undercover operation by Tucson police officers involving Armstrong, Cuttler, and Tucker (collectively “the defendants), as well as Torson Diaz, who is not a party to this appeal. Between December 2010 and March 2011, police officers posing as drug traffickers told Cuttler, Tucker, and Diaz they wanted to hire a “crew” to execute a home invasion and steal between ten and twenty kilograms of cocaine for resale. They offered to supply weapons, bulletproof vests, and a vehicle for the job. The three men agreed, and on March 15, 2011, they arrived at the appointed time at an arranged staging area, accompanied by Armstrong. All four men reviewed the details of the plan, inspected the weapons, and tried on the bulletproof vests the undercover officers had brought. Shortly thereafter, as the men prepared to leave to execute the plan, uniformed police officers arrived and arrested them.

¶ 3 The defendants were charged in a fifteen-count indictment, which later was condensed to allege only two counts against each defendant: one count of misconduct involving body armor and one count of conspiracy to commit armed robbery, aggravated robbery, aggravated assault, or kidnapping. Diaz was found incompetent to stand trial, and the other three defendants were tried jointly over Armstrong's objections.

¶ 4 On the third day of trial, the trial court closed the courtroom to all members of the public except the press for the remaining proceedings, apparently in response to complaints by jurors about intimidating conduct by persons in the courtroom and possibly the court's own observation of such conduct. The court entered the closure order despite concerns raised by Armstrong, who asserted that his family members had not acted inappropriately, and Tucker, who argued that excluding everyone from the courtroom “may look prejudicial.” The court also denied a subsequent motion for mistrial based on the argument the closure had violated the defendants' constitutional right to a public trial.

¶ 5 The trial court denied all three defendants' motions for a judgment of acquittal pursuant to Rule 20, Ariz. R.Crim. P., and Armstrong's and Cuttler's motions for a new trial. The jury found Cuttler and Tucker guilty of both counts of the indictment but found Armstrong guilty only of the body armor charge after it was unable to reach a verdict on the conspiracy charge as to him. Armstrong was sentenced to the presumptive prison term of ten years. Cuttler was sentenced to presumptive, concurrent prison terms, the longest of which was 15.75 years.2 Tucker pleaded guilty to an additional charge of possession of a deadly weapon by a prohibited possessor and was sentenced to presumptive, concurrent prison terms, the longest of which was 15.75 years.

¶ 6 The defendants filed separate appeals, which we consolidated because all three contend they were denied the right to a public trial. We have jurisdiction pursuant to A.R.S. §§ 12–120.21, 13–4031, and 13–4033.

Public Trial

¶ 7 Tucker, Cuttler, and Armstrong argue they were denied their constitutional right to a public trial when, during the third day of the eight-day trial, the judge closed the courtroom to all members of the public except members of the press, based on concerns that observers might have been photographing jurors and witnesses and giving them “looks.” “Because the value of the public trial guarantee to the judicial system is incalculable, we carefully scrutinize any trial court order that denies, restricts or limits a defendant's right to a public trial.” Ridenour v. Schwartz, 179 Ariz. 1, 3, 875 P.2d 1306, 1308 (1994). Whether a defendant has been denied a public trial is a constitutional question we review de novo. See State v. Dann, 220 Ariz. 351, ¶ 27, 207 P.3d 604, 613 (2009). The improper denial of a public trial constitutes structural error, State v. Ring, 204 Ariz. 534, ¶ 46 & n. 16, 65 P.3d 915, 933–34 & 934 n. 16 (2003), and, consequently, prejudice is presumed and need not be shown by the defendant.3Waller v. Georgia, 467 U.S. 39, 49–50 & 49 n. 9, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); State v. Valverde, 220 Ariz. 582, ¶ 10, 208 P.3d 233, 236 (2009).

¶ 8 The United States and Arizona Constitutions guarantee a defendant in a criminal case a public trial. U.S. Const. amends. VI, XIV; Ariz. Const. art. II, § 24; see Presley v. Georgia, 558 U.S. 209, ––––, 130 S.Ct. 721, 723, 175 L.Ed.2d 675 (2010) ( per curiam ) (Sixth Amendment right to public trial applicable to states); see alsoA.R.S. § 13–114(1).4 A “public trial” is “a trial which is open to the general public at all times.” People v. Woodward, 4 Cal.4th 376, 14 Cal.Rptr.2d 434, 841 P.2d 954, 956 (1992). Our system of justice places great importance on the public nature of criminal trials because [o]penness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participantsto perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.” Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Accordingly, there is a presumption that criminal proceedings will be open to the public, and [c]losed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness.” Press–Enter. Co. v. Superior Court, 464 U.S. 501, 509, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984) ( Press–Enter. I ).5 Nevertheless, both federal and Arizona courts have recognized that the right to a public trial may be limited under some circumstances. See, e.g., United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir.1989); State v. Bush, 148 Ariz. 325, 330–31, 714 P.2d 818, 823–24 (1986).6

The Waller Test

¶ 9 In Waller, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31, the United States Supreme Court unanimously established a four-part test for determining whether a closure of criminal proceedings is constitutional. Under that test,

the 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. We are unaware of any Arizona authority that has applied this test.

¶ 10 In its answering briefs, the state argues Waller does not apply here because in that case, “everyone in the general public was apparently excluded” from the proceedings, including the press, whereas here the press was not barred from the courtroom. Although the state is correct that in Waller the proceedings were closed to everyone, the Supreme Court announced a broad rule and did not restrict its application to cases in which the proceedings were completely closed. 467 U.S. at 42, 48–49, 104 S.Ct. 2210. On the contrary, the test itself suggests the Court intended that it apply to any closure of a criminal trial, whether complete or partial, as the second element requires that any order excluding members of the public be “no broader than necessary” to protect the interest advanced by the proponent of the closure. Id. at 48, 104 S.Ct. 2210. If the test applied only in cases of total closure, that requirement would be meaningless. Cf. State v. Hoggatt, 199 Ariz. 440, ¶ 13, 18 P.3d 1239, 1243 (App.2001) (in context of statutory interpretation, courts constrained to avoid construction that “would render portions of statute superfluous and meaningless”). Thus, whether closure was partial or total is not a threshold question for determining whether the test applies, but rather a component of the test itself, used to determine whether the closure was no broader than necessary and, thus, constitutional under the circumstances.

¶ 11 The state contends United States ex rel. Orlando v. Fay, 350 F.2d 967 (2d Cir.1965), is analogous to the situation before us and provides guidance here. In that case the Second Circuit Court of Appeals reject...

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