Walker v. State

• Decision Date: 10 February 1999
• Docket Number: No. 514,514
• Citation: 723 A.2d 922,125 Md. App. 48
• Parties: Daryl Antjuan WALKER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

723 A.2d 922

125 Md. App. 48

Daryl Antjuan WALKER v. STATE of Maryland.

No. 514, Sept. Term, 1998.

Court of Special Appeals of Maryland.

February 10, 1999.

David M. Simpson, Greenbelt, for appellant.

Rachel Marblestone Kamins, Asst. Atty. General (J. Joseph Curran, Jr., Atty. General, Baltimore, and Jack B. Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee. Argued before MURPHY, C.J., and HOLLANDER and VICTOR K. BUTANIS (Specially Assigned), JJ.

HOLLANDER, Judge.

This appeal arises from an assault committed upon Daryl Antjuan Walker,¹ appellant, by a State's witness during a pretrial hearing on appellant's motion to suppress a photographic identification. The attack briefly spawned chaos, confusion, and commotion in the courtroom, and culminated in a closure order barring appellant's mother, sister, and girlfriend (collectively, the "family") from attending the suppression hearing and the trial. Because the courtroom was equipped with video cameras, in lieu of a court reporter, the incident was captured on videotape.

On February 28, 1998, a jury in the Circuit Court for Prince George's County convicted appellant of robbery with a deadly weapon, two counts of first degree assault, and three counts of use of a handgun in the commission of a felony or crime of violence.² The court subsequently sentenced appellant to a total of twenty-five years in prison.³ On appeal, only matters arising from the courtroom fracas are at issue. Appellant presents the following questions for our review, which we have rephrased:

I. Did the trial court abuse its discretion and violate appellant's constitutional right to a public trial when it issued a closure order barring appellant's family from the trial, because of the family's behavior in response to an assault upon appellant committed by a State's witness during a pre-trial motion hearing?

II. Did the trial court abuse its discretion when it denied appellant's request for a continuance of the trial after a courtroom disturbance that occurred while the jury was sequestered in the jury room?

For the reasons that follow, we conclude that the trial court abused its discretion in excluding appellant's family from the trial.⁴ Further, we hold that the closure order violated appellant's constitutional right to a public trial. Accordingly, we shall reverse the convictions and remand for further proceedings. In view of our disposition of the first issue, we need not reach appellant's second issue.

I. The Videotape: A Picture Is Worth A Thousand Words

This case presents a situation created by "emerging technologies that are fast becoming a part of the trial process." Ringe v. State, 94 Md.App. 614, 625, 618 A.2d 266 (1993). In this era marked by the importance of the "visual image"⁵ and "dizzying television technology",⁶ it happened that video cameras, rather than a court reporter, were utilized to make a record of the trial proceedings. Although a transcript of most of the videotaped court proceedings has been submitted for our review, no transcription of the melee was prepared; clearly, it would have been almost impossible to prepare such a transcript. Accordingly, the videotape of the court proceedings, including the fracas, has been included as part of the record on appeal, pursuant to this Court's order of October 14, 1998. See generally Md. Rules 8-415, 16-405, 16-406. While the transcript contains the trial judge's post-event summary of what occurred, the videotape provides the only contemporaneous account of the courtroom disturbance.

The trial judge was one of several eyewitnesses to the underlying occurrence, but she was the only witness who recounted what happened. Moreover, the family members were not provided with an opportunity to explain their conduct, which was provoked by the attack upon appellant and prompted the closure order. In a sense, the judge relied on her own credibility and reliability as a witness in determining to issue a closure order. Thus, this case pits the videotape of the courtroom disturbance against the transcript, which contains the trial judge's observations.

The parties have not raised any concerns about our review of the videotape, nor have they suggested any factors that should guide our consideration of it. To be sure, we are concerned about the potential misuse of a videotape of the proceedings as a vehicle for "instant replay," opening the door to the proverbial "Monday morning quarterbacking" regarding the trial judges fact-finding. Indeed, we are mindful that even when an umpire or a referee makes a "bad call" that is plainly evident on replay, the call is not overruled. Yet this is not a game, and we cannot disregard a vital part of the record. Instead, we are required to determine from our review of the entire record whether the judge's findings of fact, undergirding the closure order, were clearly erroneous. See Jones v. State, 343 Md. 448, 457-58, 682 A.2d 248 (1996)

; Md. Rule 8-131(c).

When the factual findings of the trial court are supported by substantial evidence, they are not clearly erroneous. Ryan v. Thurston, 276 Md. 390, 392, 347 A.2d 834 (1975); Sea Watch Stores Ltd. Liab. Co. v. Council of Unit Owners of Sea Watch Condominium, 115 Md.App. 5, 31, 691 A.2d 750, cert. granted, 347 Md. 253, 700 A.2d 1214, and cert. dismissed, 347 Md. 622, 702 A.2d 260 (1997). Our review is limited to determining "only whether there was sufficient evidence to support the trial court's findings. In making this decision, we must assume the truth of all evidence, and of all the favorable inferences fairly deducible therefrom, tending to support the factual conclusions of the lower court." Mercedes-Benz v. Garten, 94 Md.App. 547, 556, 618 A.2d 233 (1993) (citation omitted); see also State v. Johnson, 108 Md.App. 54, 71, 670 A.2d 1012 (1996)

.

Our research reveals that numerous courts, in Maryland and elsewhere, have readily considered videotapes without offending the well-established principles that govern appellate review. In Suggs v. State, 87 Md.App. 250, 589 A.2d 551 (1991), for example, we considered the propriety of the trial judge's conduct in analyzing whether the defendant received a fair trial. To determine what actually occurred in front of the jury, we specifically reviewed the videotape of the court proceedings, noting:

Appellant's counsel, at oral argument, stated that the videotape of the proceedings showed that the jury was still in the courtroom. We have reviewed the tape, and he is correct.

Id. at 257 n. 2, 589 A.2d 551 (emphasis added).

Similarly, in Ringe, 94 Md.App. 614, 618 A.2d 266, we considered a videotaped confession offered in evidence at a suppression hearing. Writing for this Court, Judge Cathell said that "review of the video tape [sic] may be even more necessary when appellate judges are required to make independent appraisals of constitutional issues." Id. at 623, 618 A.2d 266. See also, e.g., In re Adoption/Guardianship No. 3598, 109 Md. App. 475, 516, 675 A.2d 170 (1996)

(finding no support for trial court's conclusion that appellant's home was "less than desirable," based on appellate review of videotape introduced in evidence), rev'd on other grounds, 347 Md. 295, 701 A.2d 110 (1997); J.F.E. v. J.A.S., 930 P.2d 409, 412 (Alaska 1997) (discussing appellate court's review of videotape and photographs introduced as exhibits in connection with visitation dispute and concluding they did not "furnish a sufficient basis for the court's decision to restrict [father's] visitation privileges"); Noland v. Noland, 330 Ark. 660, 956 S.W.2d 173, 178-79 (1997) (reviewing, inter alia, videotaped interview of decedent and his execution of trust and concluding that "trial court clearly erred in finding that the appellants failed to establish [decedent's] soundness of mind," because videotape "manifestly depicts a man who essentially knew what he was doing in signing the documents."); State v. Moncrief, 234 Ga. App. 871, 508 S.E.2d 216 (1998) (reviewing audio/videotape of car stop and reversing trial court's order granting defendant's motion in limine on the basis of alleged deficiency of warnings); Montoya v. State, 232 Ga. App. 24, 499 S.E.2d 680, 683 (1998) (reviewing the videotape of a car stop and ruling that trial court correctly denied suppression motion); State v. Aubin, 100 N.C.App. 628, 397 S.E.2d 653 (1990) (reviewing videotape and upholding trial court's findings of fact); Commonwealth v. Lease, 703 A.2d 506 (Pa.Super.Ct.1997) (reviewing videotape from burglar alarm protection system and concluding evidence was sufficient to support burglary conviction); Cooper v. State, 961 S.W.2d 222, 226-27 (Tex.Ct.App.1997) (reviewing videotape in connection with motion to suppress videotape made at police station and concluding that trial court erred in admitting audio portion of videotape because defendant invoked his right to terminate interview); Perkins v. State, 940 S.W.2d 365 (Tex.Ct.App.1997) (concluding that videotape made shortly after defendant's arrest "demonstrated that Appellant was not intoxicated" and reversing conviction following bench trial on ground that "finding of intoxication is so against the great weight [of evidence] as to be unjust and manifestly wrong."); Commonwealth v. Benjamin, 28 Va.App. 548, 507 S.E.2d 113 (1998) (upholding trial judge's determination that defendant did not waive constitutional rights, based on independent appellate review of videotape of custodial interrogation); State v. Peterson, 588 N.W.2d 84 (Wis.Ct.App.1998) (reviewing videotape and concluding that trial court erroneously excluded it from evidence).

We have uncovered only one appellate court that expressly declined to review a videotape of trial proceedings. In Moustakas v. Dashevsky, 25 Cal.App.4th 752, 754, 30 Cal.Rptr.2d 753, 754 (1994), the court did not want to engage in its "own evaluation of the sights and sounds of the trial courtroom." In that court's...