U.S. v. Galloway

• Decision Date: 28 June 1991
• Docket Number: No. 90-4008,90-4008
• Citation: 937 F.2d 542
• Parties: 33 Fed. R. Evid. Serv. 575 UNITED STATES of America, Plaintiff-Appellee, v. George Don GALLOWAY, a/k/a Saul D. Davis, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 542

937 F.2d 542

33 Fed. R. Evid. Serv. 575

UNITED STATES of America, Plaintiff-Appellee, v. George Don GALLOWAY, a/k/a Saul D. Davis, Defendant-Appellant.

No. 90-4008.

United States Court of Appeals Tenth Circuit.

June 28, 1991.

Tena Campbell, Asst. U.S. Atty. (Dee Benson, U.S. Atty., with her on the brief), Salt Lake City, Utah, for plaintiff-appellee.

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colo., for defendant-appellant.

Before SEYMOUR and EBEL, Circuit Judges, and BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

The defendant-appellant George Don Galloway was convicted of kidnapping in violation of 18 U.S.C. Sec. 1201(a)(1). The indictment alleged that he abducted an eighteen-year-old girl from a shopping mall in West Valley City, Utah, for the purpose of sexually abusing her and extorting money from her, and that he transported her in interstate commerce, from the state of Utah through the states of Idaho, Oregon, California, and Nevada. The defendant was found guilty by a jury and was sentenced to life imprisonment. He alleges that several errors were committed in the course of his trial and at sentencing.

I. Effective Assistance of Counsel at Trial.

Appellant first contends that he was denied his Sixth Amendment right to effective assistance of counsel at the trial because his attorney informed the jury that the defendant had numerous prior convictions. Before the trial, the government gave notice that it would use the defendant's prior convictions to impeach him if he testified. By way of a pretrial motion, the defendant's attorney sought to limit the introduction of this evidence under Rule 609. The district court did not specifically rule on the admissibility of the convictions at the pretrial hearing, however, indicating that they would have to be individually evaluated at the time the defendant testified. The court's comments at this pretrial hearing may be interpreted as indicating that the convictions would likely be admitted. Tr. Vol. I at 62-64. In his opening statement, the defendant's attorney brought up the fact that his client had numerous prior convictions. The attorney attempted to use these prior convictions to show that the defendant did not have the intent to commit the crime. He sought to show that the defendant, who had spent a fair amount of time in prison, was from a background so different from the complaining witness that he misinterpreted her actions as acquiescence to his advances. The attorney later elicited the fact of these prior convictions from the defendant during the defendant's testimony on direct examination. Appellant contends that evidence of many of these convictions would have been inadmissible and that his attorney's failure to keep as many as possible out of the trial amounted to ineffective assistance of counsel.

In order to find that the defendant was denied effective assistance of counsel, we would have to find that the conduct of his attorney "so undermined the proper functioning of the adversary process that the trial cannot be relied on as having produced a just result." United States v. Rivera, 900 F.2d 1462, 1472 (10th Cir.1990) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To establish this the defendant must show: 1) that counsel's performance was deficient, with reference to prevailing professional norms, and 2) that the deficient performance prejudiced the defense. Id. Under the circumstances presented, we find that trial counsel's performance was not deficient. The government had a strong evidentiary case against the defendant. The only possible basis for a defense was to establish that the complaining witness went with the defendant willingly or that the defendant believed she went willingly. The complaining witness testified that she did not go with the defendant voluntarily, however, and there was strong circumstantial evidence to support her testimony and her credibility. Thus, the defense was left with the task of persuading the jury that the defendant somehow misinterpreted the complainant's actions as consenting to his advances. Faced with this situation, the defense sought to use evidence of the defendant's prior convictions to show that the defendant and the complainant were "from two different worlds" and that they misunderstood each others' intentions. Although it is quite possible that some of the defendant's prior convictions would have ultimately been found to be inadmissible, it almost certain that some of them would have been admitted. We do not find that the defense's decision to inform the jury of these convictions and to allow them into evidence was deficient with regard to prevailing professional norms. In light of the evidence against the defendant, counsel's decision was a legitimate tactical move that this court will not second guess. See Denton v. Ricketts, 791 F.2d 824, 828 (10th Cir.1986) ("Counsel's actions were based properly on informed strategic choices and are well within the range of professionally reasonable judgments."). Counsel's actions here did not undermine the proper functioning of the adversary process; on the contrary, they were informed strategic choices. Defense counsel did not blindly allow evidence of the defendant's prior actions to come in. In fact, counsel successfully kept out evidence of a prior attempted rape that would have been devastating to the defense. We find that the defendant was not denied his Sixth Amendment right to the effective assistance of counsel.

II. Partial Closure of the Trial.

Appellant's next contention is that his Sixth Amendment right to a public trial was violated by the district court's order partially closing the courtroom to the public. Over the defendant's objection, the district court granted a government motion to partially close the courtroom during the complaining witness' testimony. The courtroom was closed to all but the defendant, the relatives of the complaining witness and the defendant, courtroom personnel, attorneys for the parties, and the press. Tr. Vol. II at 72-73. The government's stated purpose for seeking the partial closure was to protect the complaining witness. The district court granted the motion without making any findings as to the need for closure. Appellant contends that the district court failed to meet the requirements set forth by the Supreme Court concerning closures of the courtroom and argues that we must therefore reverse his conviction.

The Sixth Amendment guarantees every criminal defendant a "speedy and public trial." U.S. Const.Amend. VI. "Although the right to an open trial is not absolute, that right will only rarely give way to other interests." Davis v. Reynolds, 890 F.2d 1105, 1109 (10th Cir.1989) (citing Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). In Davis we cautioned that "an accused's right under the Sixth Amendment must be carefully balanced against the government's competing interest in protecting vulnerable witnesses from embarrassment and harm." Davis, 890 F.2d at 1109. We also noted the Supreme Court's emphasis on the need for specific findings to help determine whether an order of closure is proper:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Id. (citing Waller, 467 U.S. at 45, 104 S.Ct. at 2215). See also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581, 100

S.Ct. 2814, 2829-30, 65 L.Ed.2d 973 (1980) ("Absent an overriding interest, articulated in findings, the trial of a criminal case must be open to the public.") The requirements for the total closure of a trial were set forth by the Supreme Court in Waller: "[T]he 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." 467 U.S. at 48, 104 S.Ct. at 2216. In Nieto v. Sullivan, 879 F.2d 743 (10th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989), we recognized that a different standard applies where the courtroom is only partially closed to the public, as was the case in the district court. In such circumstances, the partial closure need only be supported by a "substantial" interest, rather than a "compelling" one. Nevertheless, the trial court must make sufficient findings to allow the reviewing court to determine whether the partial closure was proper. Cf. Nieto, 879 F.2d at 753.

The government contends that the judgment should be affirmed because the order of partial closure furthered a substantial interest--the protection of the complaining witness. This court has previously recognized that the government may have a substantial or compelling interest in protecting young witnesses who are called to testify in cases involving allegations of sexual abuse. See e.g., Davis, 890 F.2d at 1110 (citing Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 607, 102 S.Ct. 2613, 2620, 73 L.Ed.2d 248 (1982) and United States ex rel. Latimore v. Sielaff, 561 F.2d 691 (7th Cir.1977), cert. denied, 434 U.S. 1076, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978)). See also United States v. Sherlock, 865 F.2d 1069, 1077 (9th Cir.1989). The age of an alleged victim, the nature of an alleged offense, and the potential for harm to the victim are appropriate factors to consider in weighing an accused's right to a public trial against the government's interest in protecting a victim from undue...