                                                RENDERED: OCTOBER 20, 2016
                                                          TO BE PUBLISHED




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                               2015-SC-000620-MR
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ANTHONY WAYNE CRUTCHER JR.                                              APPELLANT


                   ON APPEAL FROM FAYETTE CIRCUIT COURT
V.                  HONORABLE PAMELA GOODWINE, JUDGE
                            NO. 12-CR-01332-001


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



            OPINION OF THE COURT BY CHIEF JUSTICE MINTON

                                   AFFIRMING

      A Circuit Court jury convicted Anthony Wayne Crutcher of first-degree

robbery and of being a first-degree persistent felony offender (PFO I). The jury

recommended a sentence of 15 years' imprisonment for the robbery conviction,

enhanced to 35 years for the PFO I conviction. Crutcher appeals as a matter of

right, arguing the trial court violated his right to a public trial when it removed

all spectators during the victim's testimony and when it denied Crutcher's

motion to suppress a photo identification. Having reviewed the record and the

arguments of the parties, we affirm the judgment of the trial court.

                              I. BACKGROUND.

      Ricky Goldsmith testified that three men - later identified as Jamaur

Yocum, Crutcher, and a man known only by the nickname "SD" - approached
him in an apartment breezeway and asked him to sell them marijuana.

Goldsmith went into the apartment he shared with his girlfriend, got a "dime

bag," and returned to the breezeway. Crutcher pulled out a handgun and

pointed it at Goldsmith. Yocum and Crutcher went through Goldsmith's

pockets, taking $100, the marijuana, and other items. Yocum then ran and

Crutcher told Goldsmith to turn around and run. 1 Goldsmith did so and, when

he was about two steps away, Crutcher shot him in the shoulder. Goldsmith

then ran to a nearby apartment building, and a neighbor called the police and

EMS. Emergency personnel transported Goldsmith to a hospital where he was

treated for his wound and released. SD did not participate in the robbery.

       In an interview with police that night, Goldsmith stated that someone

named "Yocum," whom he had seen around the neighborhood, had

participated in the robbery. Goldsmith could not identify either Crutcher or

SD. Shortly thereafter, Goldsmith, who said he was too afraid to stay in town,

moved to away.

       Months later, another police officer, Kyle Toms, tracked down Goldsmith

and asked him to come to the department to try to identify "Yocum." Officer

Toms put together a six-picture photo lineup from which Goldsmith identified

Yocum as one of the men who robbed him.

       While talking to Officer Toms, Goldsmith stated that a relative told him

that someone named "Little Anthony" had been the shooter. Officer Toms



      1 At trial, Yocum testified that he did not participate in the robbery but ran
away as soon as Crutcher pulled out his gun.

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found Crutcher's photo by using that nickname to search the department's

database. Officer Toms then used the department's database to put together a

photo lineup that included Crutcher's photo. Goldsmith picked Crutcher's

photo from the lineup and identified him as the shooter.

      Yocum and Crutcher were arrested and charged with the robbery.

Yocum pled guilty, but Crutcher, who insisted that he was not present during

the robbery, went to trial. After hearing testimony from Yocum, the two police

officers, Goldsmith's emergency room physician, and Goldsmith, a jury

convicted Crutcher of first-degree robbery and of being a PFO. We set forth

additional facts as necessary below.

                        II. STANDARD OF REVIEW.

      The issues raised by Crutcher have different standards of review, which

we set forth as necessary when addressing those issues.

                                III. ANALYSIS.

A.    Denial of Public Trial.

      When the Commonwealth called Goldsmith as a witness, the trial court's

bailiff and counsel approached the bench. The bailiff stated that an officer who

was outside the courtroom advised him that Goldsmith was reluctant to testify

because a person in the courtroom had threatened Goldsmith. The bailiff

stated that he did not know who had allegedly made the threat and that he was

reluctant to investigate Goldsmith's statement without some direction from the

trial court. The Commonwealth's attorney stated that: someone had

threatened Goldsmith and "his family," Goldsmith was "terrified," and "[they]

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had a hard time getting him down here." The trial court then suggested

clearing the courtroom while Goldsmith testified. The bailiff asked if people

would be re-admitted after Goldsmith testified, and the trial court responded

affirmatively. Crutcher's attorney stood silent while this conversation took

place. The bailiff then cleared visitors from the courtroom and Goldsmith

testified. Crutcher now argues that this violated his right to a public trial as

guaranteed by the U.S. and Kentucky Constitutions. The Commonwealth

argues that, by failing to object, Crutcher waived this argument for appeal and,

in the alternative, that any error was not palpable. And we agree.

      The Sixth Amendment to the United States Constitution guarantees all

criminal defendants the ability to "enjoy the right to a speedy and public trial."

A similar protection is included in Section 11 of the Kentucky Constitution,

boldly declaring that "in all prosecutions by indictment or information, he [the

accused] shall have a speedy public trial by an impartial jury of the vicinage."

The right to public trial is, of course, primarily for the benefit of the accused,

allowing the public to see that he is "fairly dealt with and not unjustly

condemned, and that the presence of interested spectators may keep his triers

keenly alive to a sense of their responsibility and to the importance of their

functions." Waller v. Georgia, 467 U.S. 39, 46 (1986). And we agree that public

trials are foundational prerequisites to any American notion of due process of

law, guaranteeing defendants a serious and fair tribunal, and disincentivizing

courts of law from devolving into dystopian kangaroo courts. But we simply

hold that this right may be waived through a defendant's failure to object.

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       In Waller v. Georgia, the United States Supreme Court articulated its

four-part test for trial courts to administer when considering whether to close

the courtroom over a defendant's objection. In other words, the Supreme Court

held that if the courtroom is closed over the accused's objection, and the Waller

test is not satisfied, the constitutionally enshrined right to public trial is

violated. Under Waller, a court, when considering whether to close a trial or a

portion of a trial to the public must consider three factors: (1) whether the

party seeking to close the proceedings has "an overriding interest that is likely

to be prejudiced;" (2) what the narrowest method of protecting that interest is;

and (3) whether there are "reasonable alternatives to closing the proceedings."

Id. at 48. Once the court makes the determination to close the proceedings or a

portion of the proceedings, "it must make findings adequate to support the

closure." Id.

      In this case, the trial court clearly did not engage in a Waller colloquy

and did not address the prerequisite factors before ordering the courtroom

briefly closed for Goldsmith's testimony. But unlike Waller, Crutcher failed to

object to the closure.   Waller is noticeably silent about instances where the

defendant fails to object to the closure at all.

      Despite Waller's silence, Crutcher argues that waiver is unavailable in

this situation, but he fails to present any federal or state case law in support of

that proposition. And he ignores the plain reading of the Sixth Circuit's

opinion in Johnson v. Sherry, authority we find highly persuasive, holding that

a defendant may waive his right to public trial absent any express objection or

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compliance with the Waller test. 586 F.3d 439, 444 (6th Cir. 2009). In

Johnson, not only did defense counsel fail to object, he actually consented to

closing the courtroom. The panel-majority accordingly held that, "While we

agree that the right to a public trial is an important structural right, it is also

one that can be waived when a defendant fails to object to the closure of the

courtroom..." Id. (emphasis added). Obviously, Crutcher's attorney did not

consent to closure. But this difference in form does not undermine the

substance behind the Johnson Court's central holding that a defendant may

waive his right to public trial through failure to preserve the issue for review.

        This position is not limited to a single panel of a federal appellate court.

In fact, the United States Supreme Court has at least implicitly endorsed the

Johnson proposition that, like most criminal trial rights under the

Constitution, the right to public trial is subject to the defendant's waiver

through failing to enter an objection. See Peretz v. United States, 501 U.S. 923,

926 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960), for the

proposition that "failure to object to closing of [the] courtroom is waiver of [the]

right to public trial" affirms its general conclusion that "the most basic rights of

criminal defendants are similarly subject to waiver").

      Crutcher's understanding of waiver not only misreads Johnson, but it

also undermines the Supreme Court's holding in Waller. If we are to accept his

view that this right cannot be waived absent a knowing, voluntary, and

intelligent waiver personally executed by the defendant, the Waller test itself

may be unconstitutional. Assuming this right belongs in the company of others

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that require express waiver—right to counsel, Miranda warnings, etc.—the trial

court is powerless to close the courtroom under any circumstances,

particularly over a defendant's objection. Unless Crutcher also contends that

the express-waiver characterization is also the improper measurement for

public-trial rights, his understanding of the Sixth Amendment would preclude

any type of deprivation of the right, without regard to whether the defendant

chooses to object to the closure or not.

      Other state appellate courts have already held that if the public-trial

right were among those requiring personal waiver, "then a judge would be

unable to close the courtroom over the defendant's objection despite satisfying

the Waller test." Stackhouse v. People,        P.3d , 2015 WL 3946868 *5 (Colo.

June 29, 2015), cert denied by Stackhouse v. Colorado, 136 S.Ct. 1513 (2016).

See also Robinson v. State, 976 A.2d 1072, 1082 n. 6 (Md. 2009) (for the

proposition that if "the right to public trial cannot be waived by the defendant's

`inaction"' then a "defendant's refusal to make an 'intelligent and knowing'

waiver of the right would preclude a trial judge from ever closing a courtroom,

no matter the circumstances warranting closure.").

      We understand that denial of a defendant's right to a public trial is

considered a structural error.   See McCleery v. Commonwealth, 410 S.W.3d

597, 604 (Ky. 2013). Structural errors, to be sure, undermine the overall

integrity of the proceeding, and such mistakes warrant automatic reversal.        Id.

But the Sixth Circuit recognized that while denial of a defendant's right to

public trial is quite clearly structural and worthy of automatic reversal, that

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standard has no bearing on whether that right may be waived, either through

agreeing to the closure or by failing to raise an objection in the record. The

structural-error analysis is only relevant once a defendant's right is denied;

there is no denial of right when the defendant is complicit in its abrogation.

      In effect, Crutcher's characterization of this right subtly undermines the

validity of Waller in Kentucky law. The only way we can imagine reconciling

this position with Kentucky law is essentially to declare that, in Kentucky, an

accused's right to public trial is more robust than its federal counterpart. And

that is something we are free to decide as a matter of state constitutional law, if

we can conclude that our constitution includes a more expansive liberty than

the baseline the Sixth Amendment requires. We are often receptive and

interested in such arguments, but one was not presented to us today.

      As the matter stands today, we see no reason for this issue to depart

from our time-honored paradigm requiring parties who feel aggrieved by some

action taken at the trial court to expend the minimal energy required to

preserve that issue in the record. Excluding spectators from the courtroom is

not an action of judicial legerdemain that can catch even an attentive attorney

off balance. Rather, it is unmistakable; any attorney not asleep in his chair

would understand the change in scenery and face the conscious decision of

whether to state an objection to the trial court's decision. Defense counsel

obviously chose not to object here, and we see no reason why it is our duty to

do his job for him.




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       There is understandably extreme caution when it comes to waiving

constitutional rights, and we express no hostility toward those rights already

requiring express waiver. But there is nothing in today's case, in light of

federal Sixth Amendment precedent, suggesting a defendant's right to public

trial may not be waived by failure to object.

B.     Out-of-Court Identification.

        Sometime before Goldsmith met with Officer Toms, a relative told

Goldsmith that the rumor circulating through the neighborhood was that a

man identified as "Little Anthony" was the shooter. The relative then showed

Goldsmith a photo of the man known as "Little Anthony." When he saw the

photo, Goldsmith stated that Little Anthony was the man who shot him.

Goldsmith then told Officer Toms that he believed a man known as Little

Anthony had shot him. Officer Toms searched the police department's

database using the nickname Little Anthony and discovered only one match -

Crutcher. Officer Toms then took Crutcher's photo from that database and put

it with five other photos that he believed were similar. When Officer Toms

showed the photos to Goldsmith, he picked out Crutcher's photo and stated

that Crutcher was the man who shot him. Crutcher moved to suppress this

identification.

      In his motion, Crutcher argued that the photo lineup was impermissibly

suggestive, noting that Goldsmith had initially described the man who shot

him as being a light skinned African American with dreadlocks. Crutcher

agreed that all of the men in the photo lineup were African Americans with

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dreadlocks. However, he argued the lineup was skewed because he had the

lightest skin tone. Following a hearing, the trial court noted that it can be

difficult to define skin tone with precision and what one person might describe

as light skin tone another might describe as dark skin tone. Putting aside the

issue of skin tone, the court found that all of the men had dreadlocks and

relatively similar facial features and that all of the photos were taken against

the same background. Based on those findings, the court determined that the

photo lineup was not impermissibly suggestive, and it denied Crutcher's

motion. On appeal, Crutcher raises the same arguments as he did before the

trial court.

       We review a trial court's ruling on a motion to suppress an out-of-court

identification, as we do a ruling regarding the admissibility of any evidence, for

an abuse of discretion. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky.

2004). A court abuses its discretion when its "decision [is] arbitrary,

unreasonable, unfair, or unsupported by sound legal principles."

Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).

      When a defendant questions the validity of an out-of-court identification,

the trial court must first determine if that identification was unduly or

impermissibly suggestive. Grady v. Commonwealth, 325 S.W.3d 333, 353 (Ky.

2010). If it was not, then the analysis stops. Id. Minor differences in photos

are not sufficient to establish that a photo lineup was unduly or impermissibly

suggestive. As we stated in Jacobsen v. Commonwealth, 376 S.W.3d 600, 607

(Ky. 2012), as corrected (Sept. 11, 2012):

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      It is inevitable, after all, that separate photos of different
      individuals will all be unique in one way or another. What matters
      is not that a suspect's photo is different from the others, but that
      the differences are such as to suggest police suspicion or
      culpability, such as stark irregularities suggesting that the other
      pictures were selected together as controls, whereas the odd
      picture is apt to be the suspect, or differences that mark the
      suspect's photo as singularly like the witness's description of the
      perpetrator.

(Internal citation omitted).

      Here, the only difference Crutcher can point to is skin tone. As the trial

court noted, the description "light skinned African American" is subjective.

After reviewing the photos, the court determined that any variation in skin tone

among the photos was not unnecessarily suggestive. Having reviewed the

record, we cannot say that the court abused its discretion in making this

determination. Therefore, we discern no error in the court's denial of

Crutcher's motion.

                               IV. CONCLUSION.

      For the foregoing reasons, we affirm the trial court's judgment below on

both issues.

      All sitting. Minton, C.J., Cunningham, Hughes and Noble, JJ., concur.

Venters, J., concurs by separate opinion in which Keller, and Wright, JJ., join.




      VENTERS, J., CONCURS: I fully concur with the Majority opinion

including the conclusion that Crutcher is entitled to no relief with respect to

his belated discovery that the right to a public trial was somewhat abridged. I

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also agree that this is not the case to parse the difference between the public

trial right protected by the Sixth Amendment of the United States Constitution

and the corresponding right set forth in Section 11 of the Kentucky

Constitution, but I write separately to highlight an important but subtle

difference between the two.

        Section 11 may not be "more robust than its federal counterpart," but it

is different in a way that is worth noting. I suggest that under the Kentucky

Constitution, the right to a public trial belongs to the people, the general

citizenry; it does not belong exclusively to the defendant, and so the right to a

public trial is not his to waive. A criminal defendant cannot waive the right to

a public trial, although he may waive his right to complain on appeal about the

denial of a public trial.

      The Sixth Amendment provides in pertinent part, "In all criminal

prosecutions, the accused shall enjoy the right to a . . . public trial." That

language presents a clear manifestation of a right that is the defendant's to

enjoy. In contrast, Section 11 of the Kentucky Constitution provides that "in

all prosecutions . . . [the accused] shall have a speedy public trial." I take that

language to mean the trial shall be public whether the defendant wants it that

way or not. Section 11 makes it imperative that criminal trials are to be open

to the public. It creates a right that belongs to the people, anyone of the

general citizenry, to assure that no criminal adjudications take place behind

closed doors regardless of the defendant's preference on the subject.




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      I do not diminish the usual interest of the accused to have a public trial.

But in my view, the greater menace averted by Section 11 is the secret

disposition of criminal cases without the public's knowledge. Section 11

protects the greater good of assuring that the public business of administering

justice is done in the open for all to see. To that extent, I submit that Crutcher

had no ability to waive the right to a public trial, but he certainly could, and he

certainly did waive his right to complain about it.

      Keller, and Wright, JJ., join.



COUNSEL FOR APPELLANT:

Karen Shuff Maurer
Department of Public Advocacy


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Emily Lucas
Assistant Attorney General




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