State v. Uhre, 28279

• Decision Date: 23 January 2019
• Docket Number: 28279
• Citation: 922 N.W.2d 789
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Waylon Nathan UHRE, Defendant and Appellant.
• Court: South Dakota Supreme Court

922 N.W.2d 789

STATE of South Dakota, Plaintiff and Appellee,

v.Waylon Nathan UHRE, Defendant and Appellant.

28279

Supreme Court of South Dakota.

ARGUED OCTOBER 3, 2018

OPINION FILED January 23, 2019

MARTY J. JACKLEY, Attorney General, ANN C. MEYER, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

ELLERY GREY of Grey & Eisenbraun Law Prof. LLC, Rapid City, South Dakota, Attorneys for defendant and appellant.

SALTER, Justice

[¶1.] Waylon Uhre was convicted following a jury trial of first-degree rape, multiple counts of sexual contact with a child, and possessing, manufacturing, or distributing child pornography. He appeals, claiming the circuit court violated his right to a public trial when it ordered the partial closure of the courtroom during the minor victim’s testimony. Uhre also argues the court erred when it denied his motion to suppress his non-custodial statement to a law enforcement officer. We affirm.

Background

[¶2.] On June 30, 2015, E.B.’s parents left E.B., then four years old, and her older brother with their grandparents in Black Hawk while they took an overnight trip. Waylon Uhre, E.B.’s adopted uncle, lived with E.B.’s grandparents. That evening, E.B. told her grandmother that Uhre made her perform a sexual act on him earlier that day. E.B.’s grandparents removed Uhre from the home, and E.B.’s father contacted law enforcement the next day.

[¶3.] Hollie Strand, a forensic interviewer with the Child’s Advocacy Center, interviewed E.B. on July 2, 2015. E.B. told Strand she licked Uhre. Strand noted that E.B. was anxious, "incredibly guarded," and "avoidant" during the interview. Strand provided the family with options, including counseling, to help E.B. and suggested giving her more time before considering a second interview.

[¶4.] On July 7, 2015, Deputy Dustin Bostrom with the Meade County Sheriff’s Office called Uhre and requested a meeting to discuss E.B.’s allegations. Uhre told Bostrom that he had spoken with an attorney and wanted to speak with the attorney again before any meeting, adding his attorney would contact Bostrom. Attorney Robbie Rohl called Bostrom six days later, inquiring if Bostrom intended to indict Uhre. Bostrom told Rohl he was still investigating the matter. Bostrum testified that Rohl called him two days later and advised that he would not be representing Uhre in the criminal investigation.

[¶5.] After E.B. told her mother more details about the incident with Uhre, Strand interviewed E.B. a second time on July 14, 2015. During this interview, E.B. gave Strand more information, including where she was in her grandparents' home when Uhre made her "suck his wee-wee," what Uhre was wearing, and where her grandmother and brother were in the home when the abuse occurred.

[¶6.] Tye Parsons was also living with E.B.’s grandparents but was not home on the afternoon and evening of the incident. When Parsons returned, he was told to move out. While packing, he found a secure digital (SD) card on the floor in the doorway of Uhre’s bedroom. Parsons believed the SD card was his and packed it with his belongings. He later viewed the contents of the SD card and found pornographic images of children, including E.B., along with pictures of Uhre. He gave the SD card to E.B.’s grandparents, who turned it over to law enforcement.

[¶7.] On February 22, 2016—over seven months later—Special Agent Brett Garland with the South Dakota Division of Criminal Investigation interviewed Uhre at a friend’s home where Uhre was staying.

While the two were inside of the home, Garland told Uhre that he did not want to bother Uhre and that he was free to get up and leave. Uhre, nevertheless, agreed to speak with Garland, but wanted to continue the conversation outside of the home. The two went to Garland’s car, where Garland again advised Uhre at least two times that he did not have to speak with him and could discontinue the interview at any time. During their conversation, Uhre admitted to several of E.B.’s allegations. Two days later, Uhre was charged by indictment with one count of first-degree rape, nine counts of sexual contact with a child, and twenty counts of possessing, manufacturing, or distributing child pornography.

[¶8.] Prior to trial, the State filed a motion to close the courtroom to "all but the necessary persons" listed in SDCL 23A-24-6¹ during E.B.’s testimony, citing concerns about the victim’s young age and the seriousness of the crimes. Uhre objected, asserting his Sixth Amendment right to a public trial and arguing there was insufficient justification to close the courtroom. Following oral arguments and post-hearing briefs, the circuit court issued a memorandum opinion granting the State’s motion and ordering a partial closure of the courtroom during E.B.’s testimony. The court concluded a partial closure was necessary to protect E.B.’s interests based upon her age, psychological maturity, and the sensitive personal nature of her testimony.

[¶9.] Also prior to trial, Uhre moved to exclude his statement to Special Agent Garland, arguing it was obtained in violation of the holding in Edwards v. Arizona , which prohibits reinitiating police questioning after a suspect has asked for a lawyer in an earlier interview. 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Uhre contended he had requested an attorney during his initial telephone conversation with Deputy Bostrom over seven months earlier. The circuit court initially accepted Uhre’s argument and granted his motion to suppress. However, the court later changed its ruling after granting the State’s motion to reconsider, concluding, among other things, that the Edwards rule applies only in custodial situations.

[¶10.] During the three-day trial, Uhre testified and denied the allegations, telling the jury he had been pressured into making a false confession. He also said he did not recognize the SD card, had never taken any sexually explicit photographs, and never possessed child pornography. The jury found Uhre guilty on all counts. The circuit court sentenced Uhre to 80 years in prison for first-degree rape, 15 years for each count of sexual contact with a child, and 10 years for each count of possessing, manufacturing, or distributing child pornography.

[¶11.] Uhre appeals his conviction, raising the following issues:

1. Whether the circuit court erred by ordering a partial closure of the courtroom during E.B.’s testimony in violation of Uhre’s right to a public trial.

2. Whether the circuit court erred when it denied Uhre’s motion to suppress his statement to Special Agent Garland.

Standard of Review

[¶12.] Uhre’s claim that the circuit court’s decision to partially close the courtroom violated his Sixth Amendment right to a public trial presents a legal question that we review de novo. State v. Rolfe (Rolfe I) , 2013 S.D. 2, ¶ 15, 825 N.W.2d 901, 905. A violation of the right to a public trial is among the narrow class of errors regarded as structural, and it is, therefore, not subject to further review for harmlessness. See Neder v. United States , 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999) ("Indeed, we have found an error to be ‘structural,’ and thus subject to automatic reversal, only in a ‘very limited class of cases.’ " (quoting Johnson v. United States , 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997) ) ).²

[¶13.] We review the circuit court’s "ultimate decision to close a court proceeding for an abuse of discretion." Rolfe I , 2013 S.D. 2, ¶ 15, 825 N.W.2d at 905 (quoting Rapid City Journal v. Delaney , 2011 S.D. 55, ¶ 9, 804 N.W.2d 388 ). An abuse of discretion is "a choice outside the range of permissible choices[.]" State v. Stanley , 2017 S.D. 32, ¶ 22, 896 N.W.2d 669, 678 (quoting State v. Kvasnicka , 2016 S.D. 2, ¶ 7, 873 N.W.2d 705, 708 ). We review the trial court’s findings of fact justifying a courtroom closure for clear error. State v. Rolfe (Rolfe II ), 2014 S.D. 47, ¶ 14, 851 N.W.2d 897, 902.

[¶14.] "A motion to suppress based on an alleged violation of a constitutionally protected right is a question of law reviewed de novo." State v. Rademaker , 2012 S.D. 28, ¶ 7, 813 N.W.2d 174, 176 (quoting State v. Wright , 2010 S.D. 91, ¶ 8, 791 N.W.2d 791, 794 ). We review the trial court’s findings of fact "under the clearly erroneous standard. Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo." Id.

Analysis

Courtroom Closure

[¶15.] The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." U.S. Const. amend. VI. The South Dakota Constitution similarly provides that "the accused shall have the right to ... a speedy public trial...." S.D. Const. art. VI, § 7. The right to a public trial serves to protect the accused and exists so "that the public may see [the defendant] is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep [the defendant’s] triers keenly alive to a sense of their responsibility and to the importance of their functions." Rolfe I , 2013 S.D. 2, ¶ 17, 825 N.W.2d at 906 (quoting Waller v. Georgia , 467 U.S. 39, 46, 104 S.Ct. 2210, 2215, 81 L.Ed.2d 31 (1984) ). In this regard, "[t]he public-trial right also protects some interests that do not belong to the defendant. After all, the right to an open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused."

Weaver v. Massachusetts , ––– U.S. ––––, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017).

[¶16.] Notwithstanding constitutional protections, the right to a public trial is not absolute. See Rolfe I , 2013 S.D. 2, ¶ 18, 825 N.W.2d at 906. South Dakota statutory law authorizes a circuit court to exercise its discretion to partially or completely close the courtroom during criminal proceedings when minor victims are "required to testify concerning...