State v. Turrietta, 33,057.

• Decision Date: 28 June 2013
• Docket Number: No. 33,057.,33,057.
• Citation: 308 P.3d 964
• Parties: STATE of New Mexico, Plaintiff–Respondent, v. Manuel TURRIETTA, Defendant–Petitioner.
• Court: New Mexico Supreme Court

308 P.3d 964

STATE of New Mexico, Plaintiff–Respondent,

v.Manuel TURRIETTA, Defendant–Petitioner.

No. 33,057.

Supreme Court of New Mexico.

June 28, 2013.

Bruce Rogoff, Supervising Attorney, UNM School of Law Robert Milder, Practicing Law Student, Brianne Bigej, Practicing Law Student, Shannon Crowley, Practicing Law Student, Nicholas Sitterly, Practicing Law Student, Santa Fe, NM, for Petitioner.

Gary K. King, Attorney General, Ralph E. Trujillo, Assistant Attorney General, Santa Fe, NM, for Respondent.

OPINION

MAES, Chief Justice.

{1} In a criminal trial, the accused shall enjoy the right to a speedy and public trial. U.S. Const. amend. VI; N.M. Const. art. II, § 14. However the right to a public trial is not absolute and may give way in certain cases to other rights or interests. In this case we address whether Manuel Turrietta's (Defendant) right to a public trial was violated when the district court partially closed the courtroom during the testimony of two confidential informants. We also address whether the State withheld favorable material evidence that was relevant to the guilt or punishment of Defendant, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

I. PROCEDURAL HISTORY

{2} Defendant, a member of two gangs known as Bad Boys Krew (BBK) and Thugs Causing Kaos (TCK), shot and killed Alberto Sandoval (Victim), a member of the West Side gang. Defendant was found guilty of second degree murder (firearm enhancement) contrary to NMSA 1978, Section 30–2–1(B) (1994), and NMSA 1978, Section 31–18–16(A) (1993), shooting at or from a motor vehicle resulting in great bodily harm contrary to NMSA 1978, Section 30–3–8(B) (1993), aggravated battery with a deadly weapon contrary to NMSA 1978, Section 30–3–5(C) (1969), and tampering with evidence contrary to NMSA 1978, Section 30–22–5(B)(1) (2003).

{3} Following trial, Defendant appealed to the Court of Appeals claiming that

“(1) the district court improperly closed the courtroom during the testimony of two confidential informants in violation of [his] right to a public trial under the Sixth Amendment to the United States Constitution and Article II, Section 14 of the New Mexico Constitution; (2) the State suppressed favorable material evidence in violation of Brady v. Maryland, 373 U.S. 83 ; and (3) Defendant [was] entitled to a judgment of acquittal or, alternatively, a new trial, under the cumulative error doctrine.”

State v. Turrietta, 2011–NMCA–080, ¶ 1, 150 N.M. 195, 258 P.3d 474. The Court of Appeals affirmed Defendant's convictions holding that Defendant's Sixth Amendment right to a public trial was not violated because the specific threats of retaliatory gang violence and evidence of gang presence in the courtroom provided a “substantial reason” for the district court to order a partial closure. Id. ¶¶ 18–19. The Court also determined that Defendant failed to establish evidence that the State suppressed Brady material because the record indicated that the State alerted Defendant to the deal struck with one of the witnesses during trial and there was no evidence that the other two witnesses ever struck a deal with the State. Id. ¶ 30.

{4} Defendant petitioned this Court for certiorari pursuant to Rule 12–502 NMRA. We granted certiorari to address (1) whether the Court of Appeals erred under Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), by relying on pre-Presley circuit authority providing for a less-strenuous constitutional test than Presley requires and (2) whether the Court of Appeals erroneously concluded that a prosecutor's misrepresentation that demanded Kyles/Brady matter did not exist is cured by the discovery of the material during a jury trial. We hold that the Court of Appeals erred by applying the “substantial reason” standard to a Sixth Amendment constitutional challenge. Accordingly, we conclude that when a court is deciding whether a closure, partial or full, is constitutional it must analyze the facts using the more strenuous standard articulated in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). Additionally, we hold that the Court of Appeals was correct in affirming the district court's conclusion that there was no Brady violation.

II. DISCUSSIONA. Any closure of a courtroom, over the objection of the accused, must satisfy the Waller “overriding interest” standard

{5} The State filed a pre-trial motion requesting that the courtroom be cleared of unnecessary persons during testimony of four cooperating witnesses—David Torrez, George Morales, Brandon Neal and Joshua Ayala—all of whom were former gang members. The State argued that “[b]ased on previous trials involving gang members ... the State [was] fearful that other gang members, and possibly family members, affiliated with the Defendant [would] ‘pack’ the Courtroom and ‘maddog’ the witnesses, or even try to physically intimidate [the witnesses] so that they [would] not testify.”

{6} Outside of the presence of the jury, the district court held a hearing on the motion. The district court allowed the State to conduct a limited voir dire of the confidential informants recognizing Defendant's constitutional right to a public trial and that the State had the burden to establish a “substantial probability of danger” in order to justify closure. Defendant objected to the closed proceeding, arguing that a closed courtroom, even during a limited voir dire, violated an individual's First Amendment right to be present at a hearing and Defendant's Sixth Amendment right to a public trial.

{7} Torrez, a former member of TCK, testified that after he became an informant against Defendant and another gang member in an unrelated case, he began receiving threats from TCK. Torrez also testified that he was beaten up twice in jail by members of TCK. Morales testified that after TCK learned he had become an informant for the police, a TCK member called him “a rat or a snitch” and threatened to kill him. Morales did not say that the death threat was specifically related to him testifying at Defendant's trial.

{8} Because Neal testified that he was not concerned about the threats, and the State failed to establish that the threats Ayala had received came from Defendant's gang, the district court denied that part of the motion. The district court judge believed there to be a TCK presence in the courtroom after court security twice found the etched moniker “TCK Blast” outside the courtroom doors. Therefore, the district court partially granted the State's motion to close the courtroom during the testimony of Torrez and Morales. The court ordered that the immediate family members of both Defendant and Victim, as well as attorneys, staff members, and press, could remain in the courtroom but that all other members of the public would not be allowed in the courtroom during the testimony of Torrez and Morales “for the purposes of witness protection, as well as the protection of the [D]efendant and the [c]ourt.” Defendant objected, stating that those who would be excluded had a First Amendment right to attend proceedings and that he had a federal and state constitutional right to their presence. The district court overruled Defendant's objection, reasoning that it did not know of any other alternatives except to request the names and social security numbers of each observer to determine whether they were affiliated with any gangs, thus partial closure of the courtroom was the least intrusive and least limiting alternative available.

{9} The Court of Appeals affirmed Defendant's convictions ruling that Defendant's Sixth Amendment right to a public trial was not violated because the specific threats of retaliatory gang violence and evidence of gang presence in the courtroom provided a “substantial reason” for the district court to order a partial closure. Turrietta, 2011–NMCA–080, ¶¶ 18–21, 150 N.M. 195, 258 P.3d 474. The Court did not rely on the Waller “overriding interest” standard in upholding the district court's decision. Rather, because the district court only partially closed the courtroom during the testimony of Torrez and Morales, the Court applied the more lenient “substantial reason” standard which requires the party seeking closure to proffer a “substantial reason” for the partial closure, rather than an “overriding interest.” Id. ¶ 18.

{10} The Court of Appeals reasoned that “a partial closure satisfies the court's obligation to consider, sua sponte, reasonable alternatives to a complete closure of the proceeding.” Id. ¶ 17. In applying the more lenient standard in this case, the Court determined that the district court was correct in ordering a partial closure because “Torrez and Morales both testified that TCK gang members had threatened them with death or physical harm in retaliation for their cooperation.” Id. ¶ 18. In reaching this decision, the Court of Appeals also relied on the fact that there was a “TCK presence” in the courtroom, reflected by the tagging “TCK Blast,” found twice by the district court during the trial. Id. {11} The Court of Appeals agreed with the Supreme Court of Ohio, which held that “ ‘the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation is a ‘substantial reason’ to order a partial closure of [a] courtroom.' ” Id. (quoting State v. Drummond, 110 Ohio St.3d 14, 2006–Ohio–5084, 854 N.E.2d 1038, at ¶ 54). The Court of Appeals went on to state that

[t]he partial closure of the courtroom was narrowly tailored to protect the witnesses, Defendant, and the court from specific threats of gang violence. The closure did not extend beyond Torrez' and Morales' testimony and did not exclude the immediate family members of Defendant or Victim, attorneys, staff, or the press from the proceedings.

Turrietta, 2011–NMCA–080, ¶ 19, 150 N.M. 195, 258 P.3d 474.

{12} Defendant argues that his...