U.S. v. Osborne, 94-41041

• Decision Date: 18 October 1995
• Docket Number: No. 94-41041,94-41041
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Carroll OSBORNE, and Timothy Earl Norris, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 94

68 F.3d 94

UNITED STATES of America, Plaintiff-Appellee, v. Robert Carroll OSBORNE, and Timothy Earl Norris,

Defendants-Appellants.

No. 94-41041.

United States Court of Appeals, Fifth Circuit.

Oct. 18, 1995.

Craig L. Henry (Court-appointed), Texarkana, TX, for Osborne.

Rick C. Schumaker (Court-appointed), Texarkana, TX, for Norris.

Traci L. Kenner, Jim Middleton, Asst. U.S. Attys., Tyler, TX, for U.S.

Appeals from the United States District Court for the Eastern District of Texas.

Before WISDOM, DUHE and BARKSDALE, Circuit Judges.

WISDOM, Circuit Judge:

Robert Carroll Osborne and Timothy Earl Norris were both convicted of kidnapping and of using a firearm during a kidnapping. Both men now challenge their convictions, and Mr. Osborne also challenges his sentence. We find no reversible error and AFFIRM.

I. Background

On March 15, 1994, Robert Carroll Osborne and Timothy Earl Norris, the defendants/appellants, along with a third man, Denver Weaver, began a two day crime spree that took them to three different states. That morning, in Texarkana, Texas, the three men left a local motel with the purpose of looking for employment. This search was short-lived, however, as their first stop was a local liquor store, where Norris purchased some beer.

After this stop, the three men drove to a residence in Texarkana where they used a knife to rob a wheelchair-bound "dope dealer" of a .22 caliber revolver, a VCR, money, jewelry, and several bags of marijuana. They sold the VCR at a local pawn shop, and unsuccessfully tried to test fire the gun.

The men then went to Dekalb, Texas, where Norris had acquaintances. As they drove and visited Norris's friends, they smoked the stolen marijuana and drank the beer they had purchased earlier. The three men eventually arrived at the home of Jane Doe, a twelve year old girl. Norris knew Jane because his sister was also Jane's aunt by marriage.

The men visited with some women who were at Jane's house, and then left for a while. When they returned later in the day, the women were gone, but Jane was still at the house. Norris persuaded Jane to get in the car and show him where her aunt was. Norris sat in the back seat with Jane. Osborne drove, and Weaver rode in the passenger seat.

When Jane instructed Osborne to turn right at an intersection, Norris told Osborne to turn left. Jane corrected Norris, and he told her to shut up. Jane told the men that she had to be home for choir practice. In response, Norris showed Jane the gun they had stolen in Texarkana. Jane again asked to go home. Norris told her to shut up and relax, then removed her pants and sexually assaulted her in the back seat of the car. Norris kept the gun with him during the assault.

Osborne then drove the group to an abandoned house in the country where his mother had recently lived. Norris lead Jane by the arm into the bedroom of the house. Osborne followed behind, and brought the gun with him. Norris pointed the gun at Jane and told her to disrobe and get on an old mattress that was in the room. He threatened to kill her if she refused. Norris and Osborne then took turns sexually assaulting Jane. They kept the gun on the mattress during the assaults. Weaver was intoxicated, and stayed in the front room of the house during the assaults.

Afterwards, they all dressed and returned to the car. Jane again asked to go home. Norris told her that she was not going to go home. He said that she was "going to be their girl" and was going to "make them some money" by selling her body.

The group then drove to a truck stop, where they abandoned Weaver. Norris and Osborne then took Jane back to the motel they had stayed in the previous night. In the room, both men again sexually assaulted Jane. Afterwards, Norris told Jane that he knew where she lived and that he would kill her if she tried to run away.

The next morning, Norris, Osborne, and Jane left the motel. They had car trouble, and tried to get help in Texarkana. While they waited, the group had breakfast in a crowded hospital cafeteria. Jane did not attempt to escape or ask for help.

Norris and Osborne eventually persuaded a man to tow them to an auto parts store in exchange for some marijuana. They left Jane alone with the man while they were in the store. At this time, Jane tried to get help, and told the man what had happened to her. He ignored her story, left her with Osborne and Norris, and did not call the police.

After the car was repaired, Jane repeated her request to go home. Norris again told her that she was not going to go home, and that she was going to "make them some money."

Jane fell asleep. While she was sleeping, Osborne and Norris drove to Arkansas, and burglarized a home. They took two guns, a television, a VCR, and a keyboard. They then drove to Louisiana. In Louisiana, they attempted to sell the stolen items at several locations. They also bought ammunition at a K-Mart, and picked up another individual whom they also threatened.

Later, Osborne and Norris went to a housing project with the two guns. They returned with a wallet and a bottle of cocaine. While attempting to speed away from the project, they got into a wreck. Before the police arrived, Norris and Osborne hid the guns and the keyboard in a nearby truck.

When the police arrived, an officer took Jane into protective custody, and arrested Norris and Osborne. The officer searched the car and found a bag of marijuana residue, a stolen identification card, and two boxes of ammunition. He also found two .38 caliber revolvers and the stolen keyboard in the nearby truck. The .22 caliber revolver was never recovered.

On April 5, 1994, a grand jury indicted Osborne and Norris for aiding and abetting, ¹ kidnapping, ² and possession of a firearm during a violent crime. ³ The two men were tried together, beginning on June 13, 1994.

The primary evidence against Norris and Osborne was the testimony of Denver Weaver and of Jane Doe. Before Jane Doe took the stand, the prosecution asked the district court to close the proceedings while she testified. Over the defendants' objections, the district court ordered that Norris's sister leave the courtroom, and prohibited any new spectators from entering during Jane's testimony. The district court allowed the remaining audience, which included relatives of both defendants, to stay.

On June 17, 1994, the jury returned guilty verdicts on all counts against both Norris and Osborne. On September 23, 1994, the district court sentenced Norris to 322 months in prison, and Osborne to 295 months in prison, each followed by five years of supervised release. In calculating Osborne's sentence, the district court included a prior uncounseled conviction in Osborne's criminal history.

Osborne and Norris both appeal the district court's decision partially to close the courtroom during the testimony of Jane Doe, contending that this action violated their Sixth Amendment right to a public trial. In addition, Norris appeals the sufficiency of the evidence supporting his conviction, and Osborne appeals the district court's consideration of the prior uncounseled conviction in computing his sentence. We consider each of these appeals in turn.

II. The Right to a Public Trial

Norris and Osborne argue that the district court violated their constitutional right to a public trial when it partially closed the courtroom during the testimony of Jane Doe. We review this question of constitutional law de novo.

The Sixth Amendment to the United States Constitution guarantees a public trial to all criminal defendants. ⁴ This right exists to ensure the fairness of the proceedings and to encourage witnesses to come forward with information. ⁵ The right to a public trial is not absolute, however, and must be balanced against other interests essential to the administration of justice. ⁶

In Waller v. Georgia, the United States Supreme Court adopted the following test for determining when the defendant's right to a public trial is outweighed by other considerations: 1) a party seeking to close a court 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) it must make findings adequate to support the closure. ⁷

There is a significant difference between Waller and the instant case, however. In Waller, the Supreme Court addressed a total closure of a suppression hearing, from which all members of the public were excluded. ⁸ In the present case, the district court ordered only a partial closure of the proceedings, allowing all but one of the existing spectators to remain during the victim's testimony.

Prior to the Waller decision, this circuit addressed the constitutionality of a partial closure in Aaron v. Capps. ⁹ In Aaron, this court held that, when considering a partial closure, a trial court should look to the particular circumstances of the case to see if the defendant will still receive the safeguards of the public trial guarantee. ¹⁰ This court reasoned that the partial closing of court proceedings does not raise the same constitutional concerns as a total closure, because an audience remains to ensure the fairness of the proceedings. ¹¹

Although this circuit has not had the opportunity to reexamine the constitutionality of a partial closing since the Waller decision, five other circuits have addressed the issue. The Second, Eighth, Ninth, Tenth, and Eleventh Circuits have all found that Waller's stringent standard does not apply to partial closures, and have adopted a less demanding test requiring the party seeking the partial closure to show only a "substantial reason" for the closure. ¹² As in this circuit's Aaron decision, these courts have all based their decisions on a determination that partial closures do not implicate the same fairness and secrecy concerns as...