MEMORANDUM DECISION                                                             FILED
                                                                            Nov 29 2017, 8:41 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                                CLERK
this Memorandum Decision shall not be                                       Indiana Supreme Court
                                                                               Court of Appeals
regarded as precedent or cited before any                                        and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                  Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

David Sanders,                                          November 29, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1606-CR-1403
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Marc T.
Appellee-Plaintiff.                                     Rothenberg, Judge
                                                        Trial Court Cause No.
                                                        49G02-1511-MR-40234



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017        Page 1 of 13
                                           Statement of the Case
[1]   David Sanders (“Sanders”) appeals his conviction, following a jury trial, of two

      counts of felony murder.1 2 He argues that the trial court abused its discretion

      when it closed the proceedings to spectators during the third day of trial.

      Finding no abuse of the trial court’s discretion in closing the proceedings to

      spectators, we affirm in part. However, we also reverse and remand with

      instructions for the trial court to vacate Sanders’ convictions for Level 2 robbery

      resulting in serious bodily injury and Level 2 attempted robbery resulting in

      serious bodily injury.


[2]   We affirm in part, reverse in part, and remand with instructions.


                                                           Issue
                 The sole issue for our review is whether the trial court abused its
                 discretion when it closed the proceedings to spectators during the
                 third day of trial.




      1
          IND. CODE § 35-42-1-1(2).
      2
        Sanders was also convicted of Level 2 felony robbery resulting in serious bodily injury and Level 2 felony
      attempted robbery resulting in serious bodily injury. However, he correctly argues, and the State concedes,
      that where, as here, a felony murder results from a killing in the commission of a robbery or an attempted
      robbery, the underlying robbery or attempted robbery is a lesser included offense of the felony murder. See
      Collier v. State, 470 N.E.2d 1340, 1341 (Ind. 1984). In such cases, it is a violation of both the federal and state
      double jeopardy clauses to convict the defendant of both felony murder and robbery or attempted robbery.
      Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000) (citing Richardson v. State, 717 N.E.2d 32, 50-52 (Ind. 1999)).
      We therefore remand this case to the trial court with instructions to vacate Sanders’ convictions for both
      Level 2 felony robbery resulting in serious bodily injury and Level 2 felony attempted robbery resulting in
      serious bodily injury.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017              Page 2 of 13
                                                          Facts
[3]   In the early morning hours of November 9, 2015, Sanders, Antwane

      Washington (“Washington”), and others went to Jonte Johnson’s (“Johnson”)

      house to play dice with Johnson, Da’Von Cummings (“Cummings”), Nathan

      Greer (“Greer”), and Thomas Stewart (“Stewart”). It was the first time that

      Johnson, Cummings, Greer, and Stewart had met Sanders and Washington. At

      some point, Sanders became angry, and he and Washington robbed and shot

      Johnson, Cummings, Greer, and Stewart. Johnson, who was sitting on the

      couch with his hands up, and Stewart were both killed. Cummings, who was

      shot five times in the face, and Greer, who attempted to run and was twice shot

      in the back, survived.


[4]   The State charged both Sanders and Washington with two counts of felony

      murder, one count of Level 2 felony robbery resulting in serious bodily injury,

      and one count of Level 2 felony attempted robbery resulting in serious bodily

      injury. The two men were tried together with two additional defendants who

      were charged with the same offenses.3


[5]   On the first day of trial before jury selection, the trial court ordered the

      spectators not to use their cell phones in the courtroom and warned them that

      any disruptive behavior would be dealt with quickly and harshly. Following

      jury selection, the trial court was apprised of several instances of disruptive




      3
          The two additional defendants were acquitted following a jury trial.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 3 of 13
      conduct involving individuals associated with the case. Based on these reports,

      the trial court explained that it was “seriously thinking about making this a

      closed jury trial for the purposes of safety.” (Tr. 35).


[6]   Following a lunch break, the trial court held a hearing on the reports of

      disruptive conduct. Marion County Sheriff’s Deputy Kishu Vaswani (“Deputy

      Vaswani”) testified that five recent arrests had been connected to the case before

      the trial had even started. Specifically, Deputy Vaswani explained that earlier

      that day, one man, who reported that his life had been threatened, had started a

      fight with another man. There had also been an altercation involving families

      associated with the case on Washington Street outside the City County

      Building. In addition, two women had been arrested for disorderly conduct the

      previous week after attending a hearing concerning the case. Further, a woman

      associated with the case had been arrested that morning while attempting to

      enter the City County Building.


[7]   Dawn Rogers (“Rogers”) testified that while attending a pretrial conference the

      previous week, she had heard one of the defendant’s family members

      threatening that someone was “gonna get it.” (Tr. 53). That morning, Rogers

      had also heard someone calling Cummings’ mother and Greer’s friend “rats.”

      (Tr. 54). Following this testimony, the trial court asked the attorneys for their

      respective positions on closing the courtroom to spectators. Sanders’ counsel

      and Washington’s counsel both objected to closing the courtroom. Following

      argument, the trial court determined that the proceedings would remain open.

      However, the trial court again warned that it would close the courtroom if there

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 4 of 13
      was “any disruption whatsoever.” (Tr. 61). The trial court also added an extra

      police presence in the courtroom and in the building and determined that the

      spectators would be “wand[ed]” for safety as they entered the courtroom. (Tr.

      65).


[8]   Despite the trial court’s warnings, during Cummings’ testimony on the first day

      of trial, the trial court had to admonish spectators to be quiet and request a

      deputy to escort one of the spectators out of the courtroom. Also on the first

      day of trial, Greer, who identified Washington as the defendant who had shot

      him, became agitated while testifying. Specifically, he engaged in a “stare-

      down” with Washington and called him a “nigga” several times. (Tr. 183, 187,

      193, 202). While being cross-examined by Washington’s counsel, Greer

      continued to stare-down Washington while rubbing his hands together. Greer

      also became belligerent with Washington’s counsel and asked him if he was a

      lawyer and stated, “you in the way. I don’t know how you get a job.” (Tr.

      209).


[9]   On the second day of trial, the trial court noted that there had been “some

      problems with people in the gallery” and explained that it was:


              very, very close for the purposes of the adjudication of justice and
              public safety to closing this hearing so no one will be able to
              come in. So it is important for your own safety, for other’s
              safety, that you remain quiet and simply observe. No
              communicating with the defendants, none of that. That is not
              going to be tolerated.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 5 of 13
       (Tr. 230). Following the lunch break that day, the trial court further stated as

       follows:


               I’ve been made aware that there were some interactions between
               the gallery and my court staff. And, again, it’s not going to be
               tolerated. This is it, last chance. I’ll simply remove. And - - the
               people who are causing the problems - - I’ll simply remove you
               and you won’t be coming back. I don’t care who you’re here for.
               All right? And, ma’am, I’m looking at you with the
               (indiscernible) coat on. Got it?


       (Tr. 332).


[10]   The following day after a morning recess, the trial court told the defendants’

       counsels that a juror had been approached the previous day. In a hearing

       outside the presence of other jurors, one juror testified that she and a group of

       four jurors had been sitting just outside City Market at lunch time when they

       had been approached by a man who had asked her if she was on jury duty.

       When the juror failed to respond, the man apologized for asking the question

       and asked if there were any odd jobs that he could perform at her house. At the

       end of the day, that same juror was waiting for her ride at the revolving doors

       when she saw a group of women who had been spectators at trial. One of the

       women approached the juror and asked to borrow her cell phone. The juror

       refused the woman’s request.


[11]   After hearing about these incidents, the trial court advised the attorneys that

       there would be another hearing regarding closing the trial to spectators. Both



       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 6 of 13
Sanders’ and Washington’s counsels objected to closing the trial. Following the

hearing, the trial court issued an order that provides in relevant part as follows:


        2.     In this matter, during every pretrial prior to trial the Court
        has been disrupted by numerous spectators in the gallery, by the
        use of phones and talking.

        3.     On April 11, the Court has noted no less than 3 arrests
        involving numerous spectators for this matter in and around the
        courthouse, all causing disruption in the courthouse by arguing,
        fighting, and tumultuous conduct.

        4.    On April 11, 201[6,] the numerous spectators argued and
        communicated the nature of the case outside of the jury pool
        waiting area, essentially poisoning any future prospective jurors.

        5.     Throughout this trial, approximately 30 people have been
        trespassed from the courthouse due to safety and decorum
        reasons.

        6.    On April 12 201[6,] the Court received notice from law
        enforcement that two witnesses who had testified in this matter
        had reported that they were threatened and shot at.

        7.      On April 12, the Court held a hearing where it considered
        closing the proceedings due to its concerns for safety, decorum,
        and administration of justice. During the hearing, Court heard
        testimony from sheriff’s deputies as to disruptions throughout the
        courthouse and the surrounding area. At that hearing the Court
        balanced the Defendants’ rights to a public trial and the Court’s
        concerns of safety, decorum, and administration of justice. The
        Court determined that there were less stringent procedures that
        could be implemented instead of closure of the proceedings to
        strive to relieve those concerns. The following lesser procedures
        were put in place:

                a.       Extra deputies were assigned to the court
                         proceedings, inside and outside of the courtroom.

                b.       Metal detectors were placed outside of the entrance
                         to the courtroom, and all spectators were screened
                         prior to entrance to the courtroom.

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 7 of 13
                c.       The gallery was advised, outside of the [presence] of
                         the jury, that misbehavior would not be tolerated.

                d.       As unacceptable behavior was observed by the
                         Court, those spectators were removed.

                e.       As many spectators would leave the courtroom and
                         return multiple times, the Court restricted entrance
                         to the court only during breaks from testimony.

                f.       The Court made alternate parking arrangements for
                         jurors.

                g.       The Court informed the spectators that closure to
                         the public could occur if more incidents were to
                         happen.

        8.     Even with these procedures in place, incidents continued
        to occur; including jurors being approached by spectators in
        public after the proceeding the evening of April 12, 2016,
        acknowledging that those spectators knew they were jurors.

        9.     On April 13, 2016, the Court Voir Dire’d the entire jury
        panel, and it was concluded that they could remain fair and
        impartial.

        10. The Court concludes that these acts of contact could be
        viewed as attempted intimidation to all those who do business
        with/in the Court, including jurors, attorneys, witnesses,
        defendants, judges, law enforcement officers, and other civilians.

        11. Also, such conduct is a danger to both the State and
        Defendants receiving a fair trial.

        12. On April 13, 2016, outside the presence of the public, the
        jurors, and defendants, the Court conducted a second hearing on
        the issue of closing the proceeding to the public. During the
        hearing, the Court voiced its concerns again, as well as the new
        incidents of the spectators approaching the jurors. All attorneys,
        but for [one], object to the closure to the public. The State [did]
        not object.

        13. In examining further less stringent means to address the
        Court’s concern for safety, decorum, and administration of

Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 8 of 13
               justice in this case, the Court feels simply limiting one or two
               specific spectators from the galley will not be an adequate remedy
               for this situation.

               14. The Court also feels that there are no further less stringent
               procedures, but for closure of the proceedings, that could be
               implemented that would satisfy the Court’s purpose of assuring
               the integrity of the judicial process, courtroom decorum, public
               safety, and administration of justice.

               15. Based on the continued conduct of the spectators from the
               gallery, and weighing the Defendants’ constitutional right to a
               public trial, the Court now finds that there is sufficient and
               legitimate reason to close the above captioned proceeding to the
               public for the purpose of preserving the integrity of the judicial
               process, the safety of the defendants, jurors, and all of those in
               the Courtroom.

               16. However, recognizing that the public has a vested interest
               in the proceedings, the Court will remain open to members of the
               media to report on the proceedings.

               17.     Also, the Court will remain open to officers of the court.

               18. The Court feels that these measures are necessary to assure
               the safety of the public, the security of the proceedings, the
               preservation of courtroom decorum, and the administration of
               justice, and operation of the Court, while balancing the public
               interest and Defendants’ right in these matters.

       (App. 176-78).


[12]   The jury subsequently convicted Sanders as charged. He now appeals.


                                                  Decision
[13]   Sanders’ sole argument is that the trial court abused its discretion when it closed

       the proceedings to spectators during the third day of trial. Sanders is correct

       that both the United States and Indiana Constitutions provide him with the

       right to a public trial. Specifically, the Sixth Amendment to the United State
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017   Page 9 of 13
       Constitution provides that “[i]n all criminal prosecutions, the accused shall

       enjoy the right to a speedy and public trial. . . .” The public trial right of the

       Sixth Amendment applies to the states via the Fourteenth Amendment.

       Williams v. State, 690 N.E.2d 162, 166-67 (Ind. 1997) (citing Waller v. Georgia,

       467 U.S. 39, 39 (1984)). Likewise, Section 13 of the Indiana Constitution

       provides that “[i]n all criminal prosecutions, the accused shall have a right to a

       public trial. . . .”


[14]   The right to a public trial has long been recognized as a fundamental right of

       the accused. Williams, 690 N.E.2d at 167 (citing In re Oliver, 333 U.S. 257, 266–

       67 (1948)); Hackett v. State, 266 Ind. 103, 109, 360 N.E.2d 1000, 1004 (1977). It

       helps ensure a fair trial because “the presence of interested spectators may keep

       [the accused’s] triers keenly alive to a sense of their responsibility and to the

       importance of their functions. . . .” Waller, 467 467 U.S. at 47. It protects the

       accused by allowing the public to assess the fairness of the proceedings.

       Williams, 690 N.E.2d at 167. In addition, it encourages witnesses to come

       forward and discourages perjury. Id.


[15]   However, the right to a public trial is not unlimited. Hackett, 360 N.E.2d at

       1004. Other interests in the administration of justice may prevail over a

       defendant’s right to a public trial. Id. Accordingly, a trial court has the

       “inherent power to limit spectators in order to relieve overcrowding, to protect

       the order and decorum of the courtroom and to protect the rights of parties and

       witnesses, including the prosecuting witness.” Id. Limited restrictions on the

       right to a public trial are within the trial court’s discretion where they are

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017 Page 10 of 13
       related to a legitimate purpose furthering the integrity of the judicial process, so

       long as there is a sufficient record supporting the judge’s exercise of that

       discretion. Id. We therefore review the trial court’s decision to impose limited

       restrictions on the defendant’s right to a public trial for an abuse of discretion.

       See id. An abuse of discretion occurs when the decision is clearly against the

       logic and effect of the facts and circumstances before the court. Hutchison v.

       State, 82 N.E.3d 305, 310 (Ind. Ct. App. 2017).


[16]   In determining whether the trial court has abused its discretion in imposing

       limited restrictions on the defendant’s right to a public trial, we use the

       following four-part analysis set forth by the United States Supreme Court:


               (1) the party seeking to close the hearing 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
               proceedings; and (4) it must make findings adequate to support
               the closure.


       Kendrick v. State, 661 N.E.2d 1242, 1244 (Ind. Ct. App. 1996) (citing in Waller,

       467 U.S. at 48). The defendant does not need to show specific prejudice in

       order to obtain a reversal for a violation of his right to a public trial. Id. Rather,

       because the loss to both the defendant and society from improperly closing

       courtrooms is intangible, the prejudice of the non-public proceedings is implied.

       Id.


[17]   Here, our review of the evidence and the trial court’s findings in support of its

       decision to close Sander’s trial to spectators during the third day of trial reveals
       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017 Page 11 of 13
that the trial court’s overriding interest was its “concern for safety, decorum and

administration of justice” that the trial court determined had already been

prejudiced by disruptive behavior both inside and outside the courtroom. (App.

177). This disruptive behavior included five arrests connected to the case before

the trial had even started. In addition, spectators had to be admonished and

even removed from the courtroom because of their disruptive behavior. The

trial court’s closure was no broader than necessary to protect that interest where

the trial court remained open to members of the media to report on the

proceedings and to officers of the court. In addition, the trial court held two

hearings on closing the courtroom and implemented less stringent procedures

before closing the trial to spectators. Specifically, the trial court assigned extra

deputies both inside and outside the courtroom. All spectators were screened

with metal detectors before they entered the courtroom and were warned that

their disruptive behavior could lead to the court’s closure to the public.

However, even with these measures in place, the spectators continued to be

disruptive, even approaching one of the jurors outside the courtroom. Further,

the trial court’s findings are adequate to support the closure. Specifically, the

trial court (1) documented the disruptive behavior both inside and outside the

courtroom that had led to its concern for safety, decorum and the

administration of justice; (2) explained how its closure was no broader than

necessary to protect that interest; and (3) identified the unsuccessful less

stringent measures that it had implemented as reasonable alternatives to closing

the proceedings to spectators. Based on this evidence, the trial court did not



Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017 Page 12 of 13
       abuse its discretion when it closed the proceedings to spectators during the third

       day of trial.4


[18]   Affirmed in part, reversed in part, and remanded with instructions.


[19]   Baker, J., and Mathias, J., concur.




       4
         We further note that Sanders argues in his reply brief that the trial court also violated INDIANA CODE § 5-14-
       2-3 when it excluded the public from the trial without first conducting a hearing for the public. However, a
       party may not raise an issue for the first time in a reply brief. See Curtis v. State, 948 N.E.2d 1143, 1148 (Ind.
       2011). This issue is therefore waived. See Jones v. State, 22 N.E.3d 877, 881 n.4 (Ind. Ct. App. 2014)
       (explaining that an issue that is raised for the first time in a reply brief is waived). Waiver notwithstanding,
       we find no error. INDIANA CODE § 5-14-2-3 provides that “[n]o court may order the exclusion of the general
       public from any criminal proceeding, or part of a criminal proceeding, unless it first affords the parties and
       the general public a meaningful opportunity to be heard on the issue of any proposed exclusion.” However,
       INDIANA CODE § 5-14-2-7 further provides that “[t]his chapter does not affect the inherent power of a court to
       make limited exclusions of witnesses, to relieve overcrowding, to protect the order and decorum of the
       courtroom, or to exclude those individuals whose presence constitutes a direct threat to the safety of the
       spectators, parties, or witnesses.” Here, where the trial court used its inherent power to protect the order and
       decorum of the courtroom and to exclude spectators who constituted a direct threat to the safety of those
       associated with the case, the trial court was not required to comply with section 7 and hold a hearing. We
       find no error.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1403 | November 29, 2017 Page 13 of 13
