Tarpey v. State

Decision Date06 February 2023
Docket NumberS-21-0234,S-22-0167
Citation2023 WY 14
PartiesCHRISTOPHER DAVID TARPEY, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
CourtWyoming Supreme Court

Appeal from the District Court of Teton County The Honorable Marvin L. Tyler, Judge

Representing Appellant:

Devon Petersen of Fleener Petersen, LLC, Laramie, Wyoming. Argument by Mr. Petersen.

Representing Appellee:

Bridget L. Hill, Attorney General; Jenny L. Craig, Deputy Attorney General; Kristen R. Jones, Senior Assistant Attorney General; and Donovan Burton, Assistant Attorney General. Argument by Mr. Burton.

Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, JJ.

FENN Justice.

[¶1] Following a jury trial, Christopher Tarpey was convicted of one count of first-degree sexual assault. On appeal he contends the district court violated his Sixth Amendment right to a public trial, the district court committed plain error when it admitted a recording of the victim's statement to the police, and he received ineffective assistance of counsel. We affirm.

ISSUES

[¶2] Mr. Tarpey raises three issues, which we rephrase as follows:

I. Did the district court violate Mr. Tarpey's Sixth Amendment right to a public trial?

II. Did the district court commit plain error by admitting the recording of the victim's statement to the police?

III. Did Mr. Tarpey receive ineffective assistance of counsel?

FACTS

[¶3] On July 26, 2020, Sergeant Russ Ruschill of the Jackson Police Department received a call from BS who informed him Christopher Tarpey sexually assaulted her in the early morning hours of July 23, 2020. Sergeant Ruschill recorded his telephone interview of BS with his body camera. On December 10, 2020, the State charged Mr. Tarpey with one count of sexual assault in the first degree. He pled not guilty at his arraignment, which was conducted by videoconference with Mr. Tarpey's consent.

Pretrial Proceedings and Covid-19 Protocols

[¶4] The district court set Mr. Tarpey's trial for five days beginning on June 1, 2021. The district court's scheduling order informed the parties the trial would be conducted in compliance with its Covid-19 jury trial plan and it required the parties to file any objections to those protocols by March 26, 2021. Mr. Tarpey did not file any objections to those protocols. The scheduling order also required the parties to submit a stipulated exhibit list. The parties filed an exhibit list that indicated they stipulated to the admission of "select excerpts" of the recording of Sergeant Ruschill's phone interview with BS which was identified as Exhibit 1/MM. The exhibit list did not identify which excerpts the parties intended to play.

[¶5] The district court addressed its Covid-19 protocols at the pretrial conference held on May 7, 2021. The district court indicated it would be "taking every reasonable precaution" to protect the jurors, including socially distancing all the participants. The district court stated the courtroom could not accommodate more than three people at each counsel table, and any other people who wanted to attend the trial would have to do so by a video link. Mr. Tarpey did not object at that time. The district court issued an order following the pretrial conference, which incorporated the district court's pandemic jury trial plan and stated: "Counsel are directed to review that plan and raise any questions at any upcoming conferences." The order reiterated that due to the size of the courtroom, three people could sit at counsel tables, and "[a]ll other support staff, co-counsel, investigators, friends, family, Victim Services staff, etc. may attend by videoconference link."

[¶6] The district court held another pretrial hearing on May 25, 2021. At this hearing, the State asked the district court if it had decided how it would be broadcasting the trial to the public. The following discussion then took place:

THE COURT: The short answer is, no. I could get your -- what are your thoughts about -- the easiest way to do this is there's a streaming capability audio only through the Supreme Court website and some judges have done that. And obviously you don't have the video.
The other two choices for video are either full streaming to YouTube or let people know how they could tune in through Microsoft Teams. They each have their problems. However, [the court reporter] and I are talking about -- at least this would have to happen after voir dire because we wouldn't have enough space otherwise. But we're talking about the possibility of actually putting a Hub probably up there on the jury box so that we could maybe get it at an angle that would get the witness and the judge and the lawyers.
It would be kind of a long distance view, but at least it would be a visual view. And we think we might be able to do that without showing who the jurors are, which I want to avoid. So, that's an option we are working on this week.
Anybody have any recommendations?
[DEFENSE COUNSEL]: We anticipate that the defense would be requesting sequestration. We'd have to make sure that witnesses wouldn't be streaming in and attending.
THE COURT: Yeah, that's tricky, isn't it?
So, you know, upon request I am to issue a sequestration order, it's not a discretionary thing. And so upon request I issue it and then it's impossible for the [c]ourt to really police that, it's up to the parties. And so you'd have to make sure that all of your witnesses know that that's listening on anything.
However, it would be broadcast would be a violation of the sequestration order and then as officers of the court if you found out there was a problem you'd have to let us know. But I think that's probably a risk under any of the three modes of transmission.
[THE STATE]: Your Honor, the state prefers the audio only version. That's my preference.
THE COURT: Okay. And other than your comment, [defense counsel], do you have any preference?
[DEFENSE COUNSEL]: No.
THE COURT: Okay.
[DEFENSE COUNSEL]: Just it's going to be difficult. Thank you.

[¶7] The district court conducted a final pretrial hearing on May 28, 2021. The district court indicated it made arrangements with the District Court Clerk to post a notice about the audio broadcast on the Clerk's website and at the front of the courthouse, so there would be "reasonable public access in that regard."

[¶8] The district court issued an order after the pretrial hearings. This order set forth the district court's reason for limiting public access to the trial and for using the audio broadcast rather than a video link:

17. Public Access. As the [c]ourt's jury trial plan indicates, public access to the trial would occur remotely. Due to the size of the courtroom, there is no space for public access during the trial while accommodating physical distancing for the jurors. The [c]ourt noted at the May 25 hearing that the video feed, if a video broadcast were used, is not optimal for showing all trial participants protecting the privacy of the jurors, or both. The [c]ourt was considering using an audio-only feed, used by the Wyoming Supreme Court and other trial courts in Wyoming. Both parties requested the audio-only feed be used.[1]
18. The Sixth Amendment's right to a public trial right was made applicable to the states in In re Oliver[,] 333 U.S. 257, 270 (1948). A public trial is "for the benefit of the accused" so "the public may see he is fairly dealt with and not unjustly condemned," which has the effect of "keeping his triers keenly alive to a sense of their responsibility and to the importance of their functions." Id. However, the right to a public trial is not absolute. In Waller v. Georgia, the Supreme Court set forth a four-part test for trial courts to use to determine whether a courtroom closure is appropriate. 467 U.S. 39 (1984). A closure is appropriate when: (1) the party (or in this case, the court), seeking to close the proceeding must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the trial court must consider reasonable alternatives to closing the proceeding, and (4) the court must make findings adequate to support the closure.
19. The First Amendment also provides the right of public and media access to trial proceedings. Press-Enterprise Co. v. Superior Court of Cal. For the Cnty. of Riverside, 478 U.S. 1 (1978). A First Amendment right to access criminal proceedings[] exists if (1) "the place and process have historically been open to the press and general public," and (2) "public access plays a significant role in the functioning of the [p]articular process in question." Id. at 8.
20. In this case, the criminal trial is open to the public. The difference from an ordinary criminal trial is that the public and media cannot attend in person. The public and media can attend remotely. Some courts, when evaluating a partial closure, have applied a less stringent test than that announced in Waller. E.g., Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir. 2001).
21. Applying the more stringent Waller factors in this case, the overriding interest is one of public health, namely an airborne virus (COVID-19) easily transmitted by aerosols emitted when a person speaks or breaths, although respiratory droplets by sneezing or coughing and fomite transmission through touched surfaces are also recognized means of transmission. One of the several scientifically-recognized tools to reduce contagion of the airborne virus is to physically distance people six feet apart. The District Courtroom is small. It can accommodate the necessary number of jurors and litigants for trial with physically distanced seating. But the space is too small to allow more than the jurors, court staff, attorneys, and parties
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