         IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: ________

Filing Date: June 28, 2013

Docket No. 33,057

STATE OF NEW MEXICO,

       Plaintiff-Respondent,

v.

MANUEL TURRIETTA,

       Defendant-Petitioner.

ORIGINAL PROCEEDING ON CERTIORARI
Denise Barela Shepherd, District Judge

Bruce Rogoff, Supervising Attorney, UNM School of Law
Robert Milder, Practicing Law Student
Brianne Bigej, Practicing Law Student
Shannon Crowley, Practicing Law Student
Nicholas Sitterly, Practicing Law Student
Santa Fe, NM

for Petitioner

Gary K. King, Attorney General
Ralph E. Trujillo, Assistant Attorney General
Santa Fe, NM

for Respondent

                                          OPINION

MAES, Chief Justice.

{1}    In a criminal trial, the accused shall enjoy the right to a speedy and public trial. U.S.
Const. amend. VI; N.M. Const. art. II, § 14. However the right to a public trial is not
absolute and may give way in certain cases to other rights or interests. In this case we
address whether Manuel Turrietta’s (Defendant) right to a public trial was violated when the

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district court partially closed the courtroom during the testimony of two confidential
informants. We also address whether the State withheld favorable material evidence that
was relevant to the guilt or punishment of Defendant, in violation of Brady v. Maryland, 373
U.S. 83 (1963).

I.     PROCEDURAL HISTORY

{2}    Defendant, a member of two gangs known as Bad Boys Krew (BBK) and Thugs
Causing Kaos (TCK), shot and killed Alberto Sandoval (Victim), a member of the West Side
gang. Defendant was found guilty of second degree murder (firearm enhancement) contrary
to NMSA 1978, Section 30-2-1(B) (1994) and NMSA 1978, Section 31-18-16(A) (1993),
shooting at or from a motor vehicle resulting in great bodily harm contrary to NMSA 1978,
Section 30-3-8(B) (1993), aggravated battery with a deadly weapon contrary to NMSA 1978,
Section 30-3-5(C) (1969), and tampering with evidence contrary to NMSA 1978, Section
30-22-5(B)(1) (2003).

{3}    Following trial, Defendant appealed to the Court of Appeals claiming that

       “(1) the district court improperly closed the courtroom during the testimony
       of two confidential informants in violation of [his] right to a public trial
       under the Sixth Amendment to the United States Constitution and Article II,
       Section 14 of the New Mexico Constitution; (2) the State suppressed
       favorable material evidence in violation of Brady v. Maryland, 373 U.S. 83;
       and (3) Defendant [was] entitled to a judgment of acquittal or, alternatively,
       a new trial, under the cumulative error doctrine.”

State v. Turrietta, 2011-NMCA-080, ¶ 1, 150 N.M. 195, 258 P.3d 474. The Court of
Appeals affirmed Defendant’s convictions holding that Defendant’s Sixth Amendment right
to a public trial was not violated because the specific threats of retaliatory gang violence and
evidence of gang presence in the courtroom provided a “substantial reason” for the district
court to order a partial closure. Id. ¶¶ 18-19. The Court also determined that Defendant
failed to establish evidence that the State suppressed Brady material because the record
indicated that the State alerted Defendant to the deal struck with one of the witnesses during
trial and there was no evidence that the other two witnesses ever struck a deal with the State.
Id. ¶ 30.

{4}     Defendant petitioned this Court for certiorari pursuant to Rule 12-502 NMRA. We
granted certiorari to address (1) whether the Court of Appeals erred under Presley v.
Georgia, 558 U.S. 209 (2010) by relying on pre-Presley circuit authority providing for a
less-strenuous constitutional test than Presley requires and (2) whether the Court of Appeals
erroneously concluded that a prosecutor’s misrepresentation that demanded Kyles/Brady
matter did not exist is cured by the discovery of the material during a jury trial. We hold that
the Court of Appeals erred by applying the “substantial reason” standard to a Sixth
Amendment constitutional challenge. Accordingly, we conclude that when a court is

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deciding whether a closure, partial or full, is constitutional it must analyze the facts using
the more strenuous standard articulated in Waller v. Georgia, 467 U.S. 39 (1984).
Additionally, we hold that the Court of Appeals was correct in affirming the district court’s
conclusion that there was no Brady violation.

II.    DISCUSSION

A.     Any closure of a courtroom, over the objection of the accused, must satisfy the
       Waller “overriding interest” standard

{5}      The State filed a pre-trial motion requesting that the courtroom be cleared of
unnecessary persons during testimony of four cooperating witnesses—David Torrez, George
Morales, Brandon Neal and Joshua Ayala—all of whom were former gang members. The
State argued that “[b]ased on previous trials involving gang members . . . the State [was]
fearful that other gang members, and possibly family members, affiliated with the Defendant
[would] ‘pack’ the Courtroom and ‘maddog’ the witnesses, or even try to physically
intimidate [the witnesses] so that they [would] not testify.”

{6}     Outside of the presence of the jury, the district court held a hearing on the motion.
The district court allowed the State to conduct a limited voir dire of the confidential
informants recognizing Defendant’s constitutional right to a public trial and that the State
had the burden to establish a “substantial probability of danger” in order to justify closure.
Defendant objected to the closed proceeding, arguing that a closed courtroom, even during
a limited voir dire, violated an individual’s First Amendment right to be present at a hearing
and Defendant’s Sixth Amendment right to a public trial.

{7}      Torrez, a former member of TCK, testified that after he became an informant against
Defendant and another gang member in an unrelated case, he began receiving threats from
TCK. Torrez also testified that he was beaten up twice in jail by members of TCK. Morales
testified that after TCK learned he had become an informant for the police, a TCK member
called him “a rat or a snitch” and threatened to kill him. Morales did not say that the death
threat was specifically related to him testifying at Defendant’s trial.

{8}      Because Neal testified that he was not concerned about the threats, and the State
failed to establish that the threats Ayala had received came from Defendant’s gang, the
district court denied that part of the motion. The district court judge believed there to be a
TCK presence in the courtroom after court security twice found the etched moniker “TCK
Blast” outside the courtroom doors. Therefore, the district court partially granted the State’s
motion to close the courtroom during the testimony of Torrez and Morales. The court
ordered that the immediate family members of both Defendant and Victim, as well as
attorneys, staff members, and press, could remain in the courtroom but that all other
members of the public would not be allowed in the courtroom during the testimony of Torrez
and Morales “for the purposes of witness protection, as well as the protection of the
[D]efendant and the [c]ourt.” Defendant objected, stating that those who would be excluded

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had a First Amendment right to attend proceedings and that he had a federal and state
constitutional right to their presence. The district court overruled Defendant’s objection,
reasoning that it did not know of any other alternatives except to request the names and
social security numbers of each observer to determine whether they were affiliated with any
gangs, thus partial closure of the courtroom was the least intrusive and least limiting
alternative available.

{9}     The Court of Appeals affirmed Defendant’s convictions ruling that Defendant’s Sixth
Amendment right to a public trial was not violated because the specific threats of retaliatory
gang violence and evidence of gang presence in the courtroom provided a “substantial
reason” for the district court to order a partial closure. Turrietta, 2011-NMCA-080, ¶¶ 18-
21. The Court did not rely on the Waller “overriding interest” standard in upholding the
district court’s decision. Rather, because the district court only partially closed the
courtroom during the testimony of Torrez and Morales, the Court applied the more lenient
“substantial reason” standard which requires the party seeking closure to proffer a
“substantial reason” for the partial closure, rather than an “overriding interest.” Id. ¶ 18.

{10} The Court of Appeals reasoned that “a partial closure satisfies the court’s obligation
to consider, sua sponte, reasonable alternatives to a complete closure of the proceeding.”
Id. ¶ 17. In applying the more lenient standard in this case, the Court determined that the
district court was correct in ordering a partial closure because “Torrez and Morales both
testified that TCK gang members had threatened them with death or physical harm in
retaliation for their cooperation.” Id. ¶ 18. In reaching this decision, the Court of Appeals
also relied on the fact that there was a “TCK presence” in the courtroom, reflected by the
tagging “TCK Blast,” found twice by the district court during the trial. Id.

{11} The Court of Appeals agreed with the Supreme Court of Ohio, which held that “‘the
dangerous nature of gang violence and the genuine need to protect witnesses testifying
against gang members from the deadly threat of retaliation is a ‘substantial reason’ to order
a partial closure of [a] courtroom.’” Id. (quoting State v. Drummond, 110 Ohio St. 3d 14,
2006-Ohio-5084, 854 N.E.3d 1038, at ¶ 54). The Court of Appeals went on to state that

       [t]he partial closure of the courtroom was narrowly tailored to protect the
       witnesses, Defendant, and the court from specific threats of gang violence.
       The closure did not extend beyond Torrez’ and Morales’ testimony and did
       not exclude the immediate family members of Defendant or Victim,
       attorneys, staff, or the press from the proceedings.

Turrietta, 2011-NMCA-080, ¶ 19.

{12} Defendant argues that his constitutional right to a public trial under the Sixth
Amendment was violated when the district court granted the State’s motion for a partial
closure of the courtroom during the testimony of two witnesses, and as a result, excluded
more than thirty people. Defendant argues that closure in this case was broader than

                                              4
necessary by asserting that scores of people, including family members, were excluded from
the courtroom without any specific finding of wrongdoing or that they posed any threat. In
support of this Court adopting the more stringent “overriding interest” standard, Defendant
argues that “[b]ecause the substantial reason test does not reflect the demanding test
articulated by the Court in Waller, it is an inaccurate interpretation of Supreme Court
precedent.” Defendant supplemented the record following oral argument by citing to
Drummond v. Houk, and pointed out that the Ohio Supreme Court case relied upon by the
Court of Appeals in the present case was overturned as a result of a habeas corpus action in
federal district court. 761 F.Supp.2d 638 (N.D. Ohio 2010). Defendant asserts that in
Drummond v. Houk, the court held that the Ohio Supreme Court was incorrect in holding
that there was a substantial reason to justify the courtroom closure because the court failed
to make any specific inquiries into any actual threat and therefore defendant Drummond’s
case was remanded for a new trial. 761 F.Supp.2d at 718. Defendant suggests that “[w]hen
choosing an appropriate constitutional test, there is no reason for New Mexico to adopt the
weakest possible one. Citing to State v. Gutierrez, Defendant suggests that “[t]his Court has
taken a strong stance in protecting constitutional rights in other areas.” 116 N.M.431, 435,
863 P.2d 1052 (1993) (rejecting the federal “good faith” exception in search and seizure
cases). Defendant asserts that there is no reason not to do so here and that we should join
other courts that have rejected the “substantial reason” standard as inadequate to protect the
right to a public trial.

{13} The State argues that Defendant’s constitutional right to a public trial was not
violated when the district court granted the partial closure because the protection of the two
witnesses and court personnel from actual gang threats and acts of intimidation met both the
“substantial reason” and “overriding interest” standards. The State argues that the Court of
Appeals correctly selected and applied the “substantial reason” standard in this case.
Nonetheless, the State submits that the protection of witnesses against actual and specific
intimidation and threats from gang members, ensuring the integrity of the judicial system
and furthering the search for truth, clearly met both standards. The State claims that based
on the evidence of threats and intimidation to witnesses presented at trial there was both a
substantial reason and an overriding interest justifying the partial closure of the courtroom.

{14} An improper courtroom closure can violate a defendant’s constitutional right to a
public trial. Waller suggests that the violation of a right to a public trial can be a structural
error. 467 U.S. at 49. A structural error can “include such [a] pervasive defect[ ] as . . . [the]
denial of the right to a public trial.” State v. Rivera, 2012-NMSC-003, ¶20, 268 P.3d 40
(citation omitted). Structural error, including deprivation of the public trial right, is not
subject to harmlessness analysis. Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991). The
question of whether a defendant’s constitutional rights were violated is a question of law
which we review de novo. State v. Brown, 2006-NMSC-023, ¶ 8, 139 N.M. 466, 134 P.3d
753.

{15} In a criminal trial, the accused shall enjoy the right to a speedy and public trial. U.S.
Const. amend. VI; N.M. Const. art. II, § 14. The Supreme Court has “‘uniformly recognized

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the public-trial guarantee as one created for the benefit of the defendant.’” Presley, 558 U.S.
at 213 (quoting Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 380 (1979)). The right to
“a public trial is for the benefit of the accused; that the public may see he is fairly dealt with
and not unjustly condemned,” and “encourages witnesses to come forward [while]
discourag[ing] perjury.” Waller, 467 U.S. at 46. The right to a public trial is not absolute
and “may give way in certain cases to other rights or interests, such as the defendant’s right
to a fair trial or the government’s interest in inhibiting disclosure of sensitive information.”
Id. at 45. However, these circumstances are rare and “the balance of interests must be struck
with special care.” Id.

{16} There are two types of courtroom closures, total courtroom closures and partial
courtroom closures. A total courtroom closure occurs when no spectators are allowed in the
courtroom and only attorneys and court staff remain. United States v. Osborne, 68 F.3d 94,
98 (5th Cir. 1995). A partial closure occurs when the courtroom is closed to some
spectators, but not all. Id. The court in Tinsley v. United States, 868 A.2d 867, 874 (D.C.
2005), noted that some partial closures “might approach a total closure in practical effect.”

{17} A total courtroom closure is allowed when there is “an overriding interest based on
findings that closure is essential to preserve higher values and is narrowly tailored to serve
that interest.” Waller, 467 U.S. at 45 (internal quotation marks and citation omitted).
Specifically, using the analysis of Press-Enterprise Company v. Superior Court of
California, Riverside County, 464 U.S. 501 (1984), Waller outlines a four pronged
“overriding interest” standard

        [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 [district] court must consider
        reasonable alternatives to closing the proceeding, and [4] it must make
        findings adequate to support the closure.

Waller, 467 U.S. at 48.

{18} Several federal circuit courts have applied a less stringent “substantial reason”
standard “for closure orders which only partially exclude the public or are otherwise
narrowly tailored to specific needs.” Davis v. Reynolds, 890 F.2d 1105, 1109 (10th Cir.
1989). The reason for this standard, according to the 5th Circuit Court of Appeals, is
because “partial closures do not implicate the same fairness and secrecy concerns as total
closures.” Osborne, 68 F.3d at 99. The Tenth Circuit has utilized the “substantial reason”
standard for partial closures as well. See, e.g., Nieto v. Sullivan, 879 F.2d 743, 753 (10th Cir.
1989) (holding that excluding some of defendant’s relatives because the testifying witness
was afraid for his safety was a “substantial reason” justifying a constitutional, partial
courtroom closure). This “substantial reason” standard appears to originate from a lack of
case law addressing Waller in the context of partial closures and from the Press-Enterprise
court alluding to a distinction between constitutional requirements for total and partial

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closures. See United States v. Sherlock, 962 F.2d 1349, 1356-57 (9th Cir. 1989).

{19} We adopt the “overriding interest” standard as discussed by the Supreme Court in
Waller for any type of courtroom closure. First, the difference between the two standards
is not perfectly clear, other than the fact that the reviewing court knows that the “substantial
reason” standard is a more lenient standard than the “overriding interest” standard. Second,
within the Waller standard, the reviewing court is charged with considering reasonable
alternatives to closing the proceeding. Therefore, if a reviewing court is already
contemplating a partial closure, something less than a full closure, that analysis seems to
already align with the Waller standard’s requirement that the closure be no broader than
necessary. Furthermore, if a party is seeking something less than full closure, the Waller
standard should still apply as originally intended because any courtroom closure is an
infringement on a defendant’s Sixth Amendment right to a public trial, and therefore, such
a request should not be granted lightly. The four pronged “overriding interest” standard
requires that:

       [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 [district] court must consider
       reasonable alternatives to closing the proceeding, and [4] it must make
       findings adequate to support the closure.

Id. at 48. We now determine whether the district court was correct in granting the State’s
motion for a partial closure of the courtroom.

1.     The State did not demonstrate an overriding interest for closure that is likely
       to be prejudiced

{20} In this case the State’s burden was to “advance an overriding interest that is likely
to be prejudiced.” Waller, 467 U.S. at 48. The State must show “a substantial probability
that the defendant’s right to a fair trial will be prejudiced by publicity that closure would
prevent.” Press-Enterprise Co., 478 U.S. at 14. When dealing with witness intimidation by
gang members, the State must show that “the witness has a legitimate fear that might affect
his or her ability to testify truthfully.” Longus v. State, 7 A.3d 64, 79 (Md. 2010). The
proponent of a closure must establish “a nexus between the particular overriding interest
asserted and open-court testimony.” People v. Jones, 750 N.E.2d 524, 527 (N.Y. 2001).

{21} The State asserts that the facts were enough to constitute an overriding interest to
close the courtroom. Defendant argues that the State failed to meet its burden because
neither witness testified that the threats they received were specifically linked to this case
or that intimidation would affect their testimony in court. Defendant further argues that the
etched gang moniker does not establish an overriding interest and that speculative and
general concerns do not support closure.


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{22} Neither Torrez nor Morales ever stated that they were afraid to testify, that their trial
testimony would be affected by any received threats, or that having gang members or related
family members in the audience would affect their testimony. We are not to assume that the
absence of a definitive statement that a witness’s testimony would not be affected by an open
courtroom means that it automatically would be effected. Guzman v. Scully, 80 F.3d 772,
775 (2d Cir. 1996) (explaining that “[s]ince no testimony was elicited from the witness
alleged to be feeling intimidated, there was no ascertainment that the reason advanced by the
prosecutor was substantial or likely to be prejudiced”) (internal quotation marks and citations
omitted). Further, the State failed to establish whether the threats and violence that Torrez
and Morales had experienced prior to trial were directly related to Defendant’s case or other
cases where both had admitted to snitching. Both Torrez and Morales had received those
threats when TCK initially discovered they were assisting the police; the State did not
present any evidence that the threats occurred or increased in an effort by TCK members to
deter the two informants from testifying. Further, the State never presented any evidence
that either Torrez or Morales was aware of the TCK etchings outside of the courtroom.
There was insufficient proof that a link existed between the experienced threats and either
witnesses’ ability or willingness to testify. See id. at 775-76 (holding that the court cannot
rely on representations from the prosecutor, rather the testimony must come from the witness
himself). Without more, the State did not demonstrate an overriding interest that was likely
to be prejudiced by an open courtroom. Therefore, the first prong of the Waller standard was
not satisfied and the closure was unconstitutional. The courtroom closure in this case is
deemed unconstitutional because of the failure of the first prong; however, because we are
adopting a new standard, we address the remaining three prongs for the purpose of analysis.

2.     The closure was overly broad

{23} Defendant contends that the closure in this case was extreme and overly broad
because there was no showing that the thirty plus people excluded were in any way gang-
affiliated, had done anything wrong or posed any threat. Defendant cites to a handful of
cases holding that the exclusion of observers without specific justification supports a finding
that the closure was overly broad: State v. Ortiz, 981 P.2d 1127, 1138 (Haw. 1999) (holding
that the exclusion of defendant’s family based on a “vague suspicion” of jury tampering and
witness intimidation constituted an overly broad closure); Com. v. Cohen, 921 N.E.2d 906,
923 (Mass. 2010) (holding that where a “Do Not Enter” sign was placed outside of the
courtroom due to lack of sufficient seating inside, which prevented observers from entering,
was a “[c]losure by policy” and “runs counter to the requirement that a court make a
case-specific determination before a closure . . . constitutionally may occur.”); Longus, 7
A.3d at 79-80, n. 10 (explaining that a court may not “exclude additional spectators who did
not participate in the disruption based on the conduct of one spectator”); cf Concha v.
Sanchez, 2011-NMSC-031, ¶¶ 1, 37, 45, 150 N.M. 268, 258 P.3d 1060 (finding the blanket
detention of thirty-two courtroom spectators invalid where there was no attempt to determine
the guilt of individual observers).

{24}   The State argues that the closure in this case was narrowly tailored because the court

                                              8
enforced only a partial closure, allowing Defendant’s family, Victim’s immediate family,
attorneys, staff and members of the press to remain. Further, the State asserts that the
closure was not overly broad because it was only enforced during the testimony of Torrez
and Morales. However, the State failed to cite to any supporting authority explaining how
or why the district court’s closure was narrowly tailored so as not to infringe on Defendant’s
Sixth Amendment right to a public trial.

{25} The second prong of Waller requires that the closure “be no broader than necessary
to protect [the overriding interest].” Waller, 467 U.S. at 48. A properly tailored closure may
exist where a careful balance of interests is struck and only the individuals allegedly
involved in the creation of the threat are excluded. See Longus, 7 A.3d at 82. Here, both
Torrez and Morales testified to the names of specific individuals from TCK who had
threatened and intimidated them. The district court could have chosen to exclude those
named gang members, possibly creating a narrowly tailored closure. Instead, the district
court excluded more than thirty people without knowing how many of them, if any, were
gang affiliated. The court also later admitted that as a result of the closure, it had excluded
“members of . . . [D]efendant’s family and a few of his friends.”

{26} “[A]n accused is at the very least entitled to have his friends, relatives and counsel
present[.]” In re Oliver, 333 U.S. 257, 272 (1948). The relationship between those excluded
to the defendant must be taken into account when deciding whether a closure is
constitutional. English v. Artuz, 164 F.3d 105, 108 (2d Cir. 1998). Here, some family
members and friends were excluded without any finding that they posed a threat, suggesting
that the exclusion was overly broad and unconstitutional. See id. at 109 (holding the right
to a public trial was violated when the court excluded family members, and rejected the
government’s contention that removal of spectators was required because the state could not
tell who was a family member of the defendant).

{27}   Accordingly, the State did not satisfy the second prong of Waller.

3.     The district court failed to adequately assess possible alternatives to closure

{28} The third Waller prong requires that the court consider reasonable alternatives to
closure. 467 U.S. at 48. A district court is required to “take every reasonable measure to
accommodate public attendance at criminal trials.” Presley, 558 U.S. at 215. Even if the
parties do not offer alternatives to closure, the court is required to assess whether any
reasonable alternatives exist. Id. at 213-14.

{29} The State argues that the district court’s granting of a partial closure was a reasonable
alternative to a complete closure. Citing to Ayala v. Speckard, 131 F.3d 62, 70 (2d Cir.
1997), the State contends that some courts have interpreted the third prong of Waller to mean
that trial courts need not consider sua sponte any and all alternatives to partial closure, but
rather they must only consider sua sponte alternatives to complete closure. Defendant
asserts that Presley requires a court to consider all alternatives, even if not offered by the

                                              9
parties. 558 U.S. at 214. Defendant argues that there were a variety of reasonable
alternatives to both a partial and complete closure such as screening observers, see United
States v. DeLuca, 137 F. 3d 24, 34 (1st Cir. 1998) (explaining that screening and recording
spectators’ identification was a constitutional response to the potential witness intimidation),
admonishing spectators of possible criminal sanctions, see Ortiz, 981 P.2d at 1138; Longus,
7 A.3d at 79-80 n.10 (noting that a spectator’s in-court misconduct allows removal), the
wait-and-see method, see Sherlock, 962 F.2d at 1356-57 (explaining that a judge may decide
to leave the courtroom open and then based on the witness’s demeanor and ability to testify,
determine whether closure is appropriate) or increased security in the courtroom, all of
which the court in this case chose not to pursue.

{30} We decline to follow the State’s interpretation of the third Waller prong and instead
adopt Presley’s rule that a court must consider, sua sponte, all alternatives to any type of
closure. Presley, 558 U.S. at 214. Although Defendant did not suggest at trial all of the
alternatives to closure that he now argues, the district court had the responsibility to consider
as many alternatives as possible. In fact, the judge suggested that screening the spectators
and recording names to determine gang affiliation was a possibility, but neglected to do so.
As Defendant now suggests there were several other alternatives to closure that the district
court did not consider such as using the wait and see method or increasing security. Because
the district court failed to consider all reasonable alternatives to closure, we hold that the
third Waller prong was not satisfied.

4.      The district court failed to make adequate findings under the Waller standard
        to support closure

{31} The final prong of Waller requires that the court make legally adequate findings to
justify the closure. 467 U.S. at 48. It is appropriate to evaluate the amount of evidence
required and the level of findings needed to support an overriding interest in closure.
Drummond, 854 N.E.2d at 1055. When a trial court fails “to make the requisite case-specific
findings of fact, closure of the courtroom violate[s] the defendant’s right to a public trial.”
Longus, 7 A.3d at 79-80 (citation omitted).

{32} Defendant argues that the Court of Appeals erred in applying the more lenient
“substantial reason” standard as established in Douglas v. Wainwright, 739 F.2d 531, 532
(11th Cir. 1984), and thus its findings are not legally adequate to support closure as analyzed
through the Waller standard. Defendant asserts that if we were to adopt the less stringent
standard for closure, the exception would swallow the rule and fear and intimidation would
be rewarded instead of discouraged. Defendant maintains that “inside the courthouse
constitutional process must govern” and the adoption of the “overriding interest” standard
ensures that courts retain the necessary control to remain as open and public as possible.

{33} The State maintains that the district court made adequate legal findings in granting
the partial closure to support both the “substantial reason” and “overriding interest” tests.
The State points to the Court of Appeals’ affirmation of the district court’s ruling that

                                               10
protection of a witness who claims to be frightened as a result of perceived threats did not
violate Defendant’s Sixth Amendment right to a public trial. By implementing a narrowly
tailored closure, the State argues that violent and threatening spectators are kept out of the
courtroom which prevents disruption of the fairness of trials, contrary to Defendant’s
reasoning.

{34} The district court justified the closure based on “the danger to the witnesses . . . and
the fact that [there were two etchings] outside of [the] courtroom, indicating that there [was
a] TCK presence that [was] undetected.” This basis however fails to mention any specific
threat or possibility of intimidation. In fact, no testimony was ever elicited from Torrez or
Morales that either was afraid to testify or that the presence of certain spectators in the
courtroom would affect their ability to testify. Similarly, there is nothing in the record that
indicates either informant witness was aware of the etchings outside the courtroom. Finally,
the district court admitted that it was unable to identify who was gang-affiliated and thus it
was unable to ascertain who if anyone posed a real or specific threat. Closing the courtroom
based on the two etchings and testimony from the informants about past threats were not
sufficient findings of fact and did not satisfy the fourth Waller requirement. As such,
Defendant’s Sixth Amendment right to a public trial was violated.

B.      There was no Brady violation

{35} The Supreme Court has held that a defendant’s due process rights are violated when
the prosecution suppresses favorable evidence. Brady, 373 U.S. at 86-87. Under Brady, a
defendant must prove three elements: first, the evidence was suppressed by the prosecution;
second, the suppressed evidence was favorable to the defendant; and third, it was material
to the defense. State v. Balenquah, 2009-NMCA-055, ¶ 12, 146 N.M. 267, 208 P.3d 912.
An alleged Brady violation constitutes a charge of prosecutorial misconduct, State v.
Trujillo, 2002-NMSC-005, ¶¶ 48, 50, 131 N.M. 709, 42 P.3d 814, which we review for
abuse of discretion “because the trial court is in the best position to evaluate the significance
of any alleged prosecutorial errors,” Case v. Hatch, 2008-NMSC-024, ¶ 47, 144 N.M. 20,
183 P.3d 905 (internal quotation marks and citation omitted). An appellate court, therefore,
will affirm the district court “unless its ruling [was] arbitrary, capricious, or beyond reason.”
Id. (alteration in original) (internal quotation marks and citation omitted).

{36} Defendant contends that the State improperly suppressed favorable evidence, namely
files and information related to alleged deals the informant witnesses had made with the
State. Defense counsel subpoenaed the witnesses’ informant files and later filed a motion
to compel production of the files when the subpoenas went unanswered. Defendant argues
that he wanted to determine whether any consideration was given to each witness for their
cooperation in this case or any other, including promises of protection, money or relocation
expenses, which was necessary information for cross examination relating to bias and motive
to lie. Defendant ultimately received a redacted version of Torrez’ files, but according to
the State, such files did not exist for any of the other witnesses.


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{37} Prior to trial, the State informed the district court that no witness was paid and that
there were no informant files related to this case. At trial, it was discovered that one of the
confidential informants struck a deal with the State to be released from jail in exchange for
the testimony. The State informed the district court that it had disclosed this information to
Defendant and that Defendant was fully aware of this new development. Defendant did not
dispute this claim.

{38} The Court of Appeals held that Defendant “failed to establish that the State
suppressed evidence in violation of Brady.” Turrietta, 2011-NMCA-080, ¶ 30. Although
the Court of Appeals acknowledged that a few of the witnesses’ testimony supported an
inference that they testified in hopes of receiving favorable treatment from the State, there
was no evidence to indicate that the hope was realized or that a deal with the State was
reached. Id. In the absence of such evidence, the Court of Appeals could not “conclude that
Defendant was deprived of his constitutional right to due process of law.” Id.

{39} On appeal the State argues that Defendant has failed to satisfy any Brady element,
primarily because no additional files existed to be suppressed. Despite the State’s insistence
that no other files existed, Defendant maintains that files containing information on deals
with the other three witnesses did exist and were suppressed. We find this argument
unavailing as Defendant cannot cite to any evidence suggesting even an inference that
additional files existed. The district court was in the best position to evaluate whether any
prosecutorial misconduct occurred and found that only a portion of the only existing “gang
file” should be produced to Defendant. Because Defendant failed to satisfy the first Brady
element, that any evidence was suppressed, we need not reach the other two Brady elements.
Thus, the district court did not abuse its discretion by finding that a Brady violation did not
occur and that Defendant’s due process rights were not violated in regards to any
exculpatory information.

III.   CONCLUSION

{40} We hold that the “substantial reason” standard does not meet constitutional muster
and a court must apply the Waller standard prior to any courtroom closure. In this case,
Defendant’s Sixth Amendment right to a public trial was violated and the closure of the
courtroom during his trial was unconstitutional. Additionally, we hold that a Brady violation
did not occur. Accordingly, we affirm in part and dismiss in part Defendant’s appeal and
remand to the district court for a new trial consistent with this Opinion.

{41}   IT IS SO ORDERED.

                                               ____________________________________
                                               PETRA JIMENEZ MAES, Chief Justice

WE CONCUR:


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____________________________________
RICHARD C. BOSSON, Justice

____________________________________
EDWARD L. CHÁVEZ, Justice

____________________________________
CHARLES W. DANIELS, Justice

____________________________________
BARBARA J. VIGIL, Justice




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