                              SECOND DIVISION
                                MILLER, P. J.,
                           RICKMAN and REESE, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules


                                                                   January 21, 2020




In the Court of Appeals of Georgia
 A19A1706. SPIKES v. THE STATE.

      MILLER, Presiding Judge.

      Charles James Spikes appeals from his convictions for rape and child

molestation, arguing that the trial court erred during trial when it completely closed

the courtroom during the victim’s testimony without first engaging in an analysis

under the Supreme Court of the United States’ decision in Waller v. Georgia, 467

U. S. 39 (104 SCt 2210, 81 LEd2d 31) (1984). We determine that a Waller analysis

was necessary in this case because the trial court de facto completely closed the

courtroom and that the trial court committed reversible error when it closed the

courtroom without making adequate findings to support the closure. Therefore, we

must reverse Spikes’ convictions and remand for a new trial.
      Viewed in the light most favorable to the jury’s verdicts,1 the evidence showed

that Spikes and the then thirteen-year-old victim and her family were Spikes’

downstairs neighbors. One evening, there was a gathering of adults and teenagers at

Spikes’ apartment, at which the victim was present. At one point, Spikes and the

victim were in the living room watching a movie together. Once the two of them were

alone, Spikes grabbed the victim by the arm, took her into the bathroom, locked the

door, and turned the lights off. Spikes then made the victim suck his penis and had

vaginal sex with her — both of which were against her will — and also ejaculated on

the victim’s back.

      The State indicted Spikes for one count of aggravated sodomy (OCGA § 16-6-

2 (a) (2)), one count of rape (OCGA § 16-6-1), four counts of child molestation

(OCGA § 16-6-4 (a)), and one count of false imprisonment (OCGA § 16-5-41). The

jury convicted Spikes of rape and two of the child molestation counts and acquitted

him of the remaining counts of the indictment, and the trial court sentenced Spikes

to life imprisonment without the possibility of parole. Spikes then filed a direct

appeal.



      1
          Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

                                          2
      On appeal, Spikes’ sole claim of error is that the trial court erred when it

completely closed the courtroom during the victim’s testimony without first engaging

in the analysis explicated in Waller, supra, and that the trial court’s failure in this

regard necessitates a new trial. We agree.

                            (a) The right to a public trial.

      The Sixth Amendment to the United States Constitution, applicable to the

states in relevant part, provides that “[i]n all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an impartial jury[.]” U. S. Const.

Amend. VI. The Georgia Constitution also guarantees criminal defendants the right

to a public trial. Ga. Const. of 1983, Art. I, Sec. I, Par. XI. Importantly, “Georgia law

regarding the public aspect of hearings in criminal cases is more protective of the

concept of open courtrooms than federal law. Our state constitution point-blankly

states that criminal trials shall be public.” (Citation and punctuation omitted;

emphasis in original.) Purvis v. State, 288 Ga. 865, 866 (1) (708 SE2d 283) (2011).

Although a defendant’s right to a public trial is not unlimited, “[t]he circumstances

in which a defendant’s Sixth Amendment right may be limited are rare and the

balance of interests must be struck with special care.” (Citations and punctuation

omitted.) Jackson v. State, 339 Ga. App. 313, 318 (2) (b) (793 SE2d 201) (2016).

                                           3
      Before the trial court can exclude the public from any stage of a criminal
      trial, the 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.


(Punctuation omitted; emphasis supplied.) Jackson, supra, 339 Ga. App. at 318 (2)

(b) (citing Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721, 175 LEd2d 675)

(2010)). We review the trial court’s closure of a courtroom for an abuse of discretion.

Mullis v. State, 292 Ga. App. 218, 221 (6) (664 SE2d 271) (2008). Mindful of this

framework, we now turn to whether the trial court committed reversible error.

             (b) The courtroom closure was effectively a total closure.

      Generally, we have characterized courtroom closures as either total or partial.

See Jackson, supra, 339 Ga. App. at 316 (2) (a); Hunt v. State, 268 Ga. App. 568, 571

(1) (602 SE2d 312) (2004). “A partial closure occurs when some members of the

public are permitted to attend, while a total courtroom closure involves exclusion of

all members of the public.” Jackson, supra, 339 Ga. App. at 316 (2) (a). In Jackson,

we recognized that, while the State has a compelling interest in protecting minor

victims of sex crimes, a trial court must conduct the Waller analysis before ordering


                                          4
a total closure of the courtroom to comply with United States Supreme Court

precedent. Id. at 318-320 (2) (b). See Globe Newspaper Co. v. Superior Court for

Norfolk County, 457 U. S. 596, 607-609 (B) (IV) (102 SCt 2613, 73 LEd2d 248)

(1982) (explaining that, although the State has a compelling interest in safeguarding

the physical and psychological well-being of a minor victim, the trial court can

determine on a case-by-case basis whether closure is necessary by considering the

minor victim’s age, psychological maturity and understanding, the nature of the

crime, the desires of the victim, and the interests of parents and relatives).

      In this case, after the State announced the victim as its first witness, the

prosecutor “ask[ed] that the courtroom be cleared of anybody” and only requested

that the victim’s mother be allowed to remain. Spikes’ counsel objected, explaining

that Spikes’ family was present and wished to listen to the entire proceeding. The trial

court then stated,

      I feel that the statute requires that I close the courtroom except for non-
      essential personnel. So that means the court reporter may remain, the
      bailiff, court security, clerk, prosecutor, client and mother. So friends
      and family members, you know, we have open courtrooms but I’m
      required to follow the statute to protect the minor child’s privacy.




                                           5
      Spikes renewed his objection, arguing that he was entitled to an open trial and

explaining that the closure, especially as applied to his family, would violate his Sixth

Amendment rights and his state constitutional rights. The trial court proceeded with

the courtroom closure as it had previously directed and reopened the courtroom after

victim testified.

      Unquestionably, the trial court did not engage in a Waller analysis before

closing the courtroom, and neither the State nor the trial court invoked a specific

statute before the closure. Nevertheless, the State argues that the trial court only

partially closed the courtroom pursuant to the mandatory closure rule encapsulated

in OCGA § 17-8-54 and that the legislature does not require trial courts to make

Waller findings on the record when acting in accordance with OCGA § 17-8-54. To

the extent that a question remains regarding whether a trial court must first engage in

a Waller analysis before effecting a partial closure under OCGA § 17-8-54,2 we need

not decide that issue today. This is because the closure of the courtroom was not, in

actuality, a partial closure in accordance with OCGA § 17-8-54.




      2
        See, e.g., Scott v. State, 306 Ga. 507, 510-516 (832 SE2d 426) (2019)
(Peterson, J., concurring).

                                           6
      “OCGA § 17-8-54 provides for only a partial closure of a criminal trial based

upon a legislative determination that there is a compelling state interest in protecting

children while they are testifying concerning a sex offense.” Hunt, supra, 268 Ga.

App. at 571 (1). The statute reads as follows:

      [i]n the trial of any criminal case, when any person under the age of 16
      is testifying concerning any sexual offense, the court shall clear the
      courtroom of all persons except parties to the cause and their immediate
      families or guardians, attorneys and their secretaries, officers of the
      court, victim assistance coordinators, victims’ advocates, and such other
      victim assistance personnel as provided for by Code Section 15-18-14.2,
      jurors, newspaper reporters or broadcasters, and court reporters.3


OCGA § 17-8-54.

      Here, however, the trial court plainly ordered that the only persons who would

be allowed to remain in the courtroom were the court reporter, the bailiff, court



      3
        We note that OCGA § 17-8-53 allows the trial judge discretion to clear the
courtroom of “all or any portion of the audience” if the evidence in a trial is “vulgar
and obscene or relates to the improper acts of the sexes, and tends to debauch the
morals of the young.” OCGA § 17-8-53. Given that OCGA § 17-8-53 refers to a trial
court’s discretionary power, and the trial court indicated that it believed it was
required to clear the courtroom, we will not presume that the trial court relied on
OCGA § 17-8-53 when it closed the courtroom. We note, however, that our posture
should not be construed as a ruling or suggestion that a trial court need not engage
in the Waller analysis before closing the courtroom under OCGA § 17-8-53.

                                           7
security, clerk, prosecutor, the victim, and the victim’s mother (whose presence the

State explicitly requested). The trial court then required any other friends and family

members to leave. And even after Spikes’ counsel repeatedly explained that Spikes’

family members were present in the courtroom, the trial court made no inquiry

whatsoever regarding their relation to Spikes, nor did it order that Spikes’ immediate

family members would be permitted to remain. Compare Hunt, supra, 268 Ga. App.

at 571 (1) (recognizing that if the defendant had objected, the trial court would have

had an opportunity either to allow the defendant’s immediate family and any press

members to remain in the courtroom or to engage in the four-part Waller inquiry);

Chamberlain v. State, 347 Ga. App. 775, 779-780 (2) (819 SE2d 303) (2018) (after

the defense objected to the clearing of the courtroom, the trial court invoked OCGA

§ 17-8-54, indicated that all persons who did not fall under the statute had to leave

during the victim’s testimony, and determined that the defendant’s sister-in-law was

not his “immediate family” under the statute). Thus, the trial court’s closure here was

not a partial closure that comported with OCGA § 17-8-54. Instead, the courtroom

closure in this case is similar to the total closure that was under consideration in

Jackson, supra, 339 Ga. App. at 317 (a), where we concluded that the courtroom

closure was total because the State requested that the courtroom be closed to the

                                          8
defendant’s extended family and non-courtroom personnel, and the trial court cleared

the courtroom of all persons who were not law enforcement or involved in the court

system. In this case, the prosecutor “ask[ed] that the courtroom be cleared of

anybody,” and the trial court then ordered the courtroom closed to all “non-essential”

personnel.

      Although the trial court permitted the victim’s mother to remain at the State’s

request, we are wholly unpersuaded that allowing the presence of that single

individual obviated the need for case-specific findings. “In giving content to the

constitutional and statutory commands that an accused be given a public trial, without

exception all courts have held that an accused is at the very least entitled to have his

friends, relatives and counsel present, no matter with what offense he may be

charged.” (Citation and punctuation omitted.) Purvis, supra, 288 Ga. at 867 (1). And

“[i]t is the general policy of our law that a trial of a case in court be open and public

and free from secrecy save the deliberations of the jury.” (Emphasis supplied.) Grant

v. Hart, 197 Ga. 662, 671 (1) (30 SE2d 271) (1944). “There are, moreover, degrees

of partial closure, some of which might approach a total closure in practical effect.”

Tinsley v. United States, 868 A2d 867, 874 (II) (D.C. 2005). Indeed, while the

victim’s mother was permitted to observe the victim’s testimony, all of the

                                           9
defendant’s family members were ordered to leave and the record suggests that no

other spectators were present. The closure in this case thus implicated the same

secrecy concerns as a total closure. See Whitson v. State, 791 So2d 544, 546, n.3 (Fla.

1st DCA 2001) (explaining that although the victim’s mother and a victim advocate

were present during the victim’s testimony, “the prohibition against closure of a

courtroom without an appropriate inquiry, inures to the benefit of the public at large

and the accused, under the First and Sixth Amendments to the United States

Constitution,” and thus the situation warranted the same analysis as a total closure);

Longus v. State, 7 A3d 64, 75 (III) (Md. Ct. App. 2010) (“[I]n some cases, members

of the defendant’s family or friends may be the only spectators, which would make

a ‘partial’ closure under those circumstances a de facto total closure.”); Demouey v.

State, 202 So3d 355, 360-361 (Ala. Crim. App. 2015) (trial court’s decision to clear

the courtroom of all the defendant’s supporters was a de facto total closure of the

courtroom, which invokes the Waller test). Compare State v. Rolfe, 851 NW2d 897,

903 (16) (S.D. 2014) (determining that the closure was partial because the trial court

permitted media representatives to remain and therefore the closure did not implicate

the same secrecy and fairness concerns as a total closure).



                                          10
      The courtroom closure in this case was, effectively, a total closure, which “did

not comply with constitutional requirements because the trial court made no findings

adequate to support the closure, including a consideration of reasonable alternatives.”

Jackson, supra, 339 Ga. App. at 319 (2) (b). Indeed, the trial court elicited no

information before closing the courtroom. Although the trial court cursorily

mentioned protecting the minor’s privacy, a trial court’s findings must be “specific

enough that a reviewing court can determine whether the closure order was properly

entered.” (Citation omitted.) Goldstein v. State, 283 Ga. App. 1, 3 (2) (640 SE2d 599)

(2006). See Rockdale Citizen Publishing Co. v. State, 266 Ga. 92, 94 (1) (463 SE2d

864) (1995) (trial court’s conclusory statement that it had considered the alternatives

to closure and found them to be insufficient under the circumstances of the case was

not specific enough to enable the Court to determine that the closure order was

entered properly). Accordingly, the closure here constituted reversible error.

                         (c) Spikes is entitled to a new trial.

      Just as in Jackson, remand is not available in this case because “the court

closed the courtroom during the most critical testimony of the trial itself. There is no

way to remedy that error short of a new trial.” Jackson, supra, 339 Ga. App. at 320

(c). While we are not insensitive to the victim having to testify about the incident

                                          11
again, we are duty-bound to abide by United States Supreme Court precedent, and we

must reverse Spikes’ convictions.4 Nevertheless, the evidence was more than

sufficient to support his convictions, and double jeopardy does not bar Spikes from

being retried. See id.

      Judgment reversed and case remanded. Rickman and Reese, JJ., concur.




      4
        In Sandifer v. State, 318 Ga. App. 630, 632 (1) (734 SE2d 464) (2012), we
determined that the defendant was not harmed by the trial court’s decision to remove
the defendant’s sister from the courtroom while allowing the victims’ families to
remain. In that case, however, the issue before the Court was not the trial court’s
failure to perform a Waller analysis in furtherance of the defendant’s Sixth
Amendment public-trial guarantee. See also Stephens v. State, 261 Ga. 467, 469-470
(7) (405 SE2d 483) (1991) (declining to view as harmless the trial court’s failure to
follow the applicable requirements for courtroom closure, including making written
findings of fact and conclusions of law).

                                         12
