[Cite as State v. Bond, 2020-Ohio-398.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Patricia A. Delaney, J.
                         Plaintiff-Appellee    :       Hon. Craig R. Baldwin, J.
                                               :
-vs-                                           :
                                               :       Case No. 2019 CA 0033
KHAIRI A. BOND                                 :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Richland County
                                                   Court of Common Pleas, Case No.
                                                   2018CR0366


JUDGMENT:                                          Reversed and Remanded




DATE OF JUDGMENT ENTRY:                            February 6, 2020


APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

GARY BISHOP                                        CHARES KOENIG
Prosecuting Attorney                               Koenig & Owens, LLC
BY: JOSEPH SNYDER                                  5354 North High Street
Assistant Prosecuting Attorney                     Columbus, OH 43214
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 2019 CA 0033                                                                       2


Gwin, P.J.

        {¶1}    Defendant-appellant Khairi A. Bond [“Bond”] appeals his conviction and

sentence after a jury trial in the Richland County Court of Common Pleas.

                                        Facts and Procedural History

        {¶2}    The underlying case arose as a result of the shooting death of Nolan Lovett

on May 3, 20181.

        {¶3}    On June 25, 2018, an indictment was filed charging Bond in a two-count

indictment. Count One charged Bond with Murder, an unclassified felony under R.C.

2903.02(A). Count Two charged Bond with Murder, an unclassified felony under R.C.

2903.02(B). Both Counts included a firearm specification under R.C. 2941.145.

        {¶4}    Bond's case proceeded to trial on March 18, 2019 and ending on March 25,

2019. On March 20, 2019, there was an incident outside of the courtroom during a recess.

1T. at 2652. As a result, the Trial Court restricted courtroom access to immediate family

members. 1T. at 266-267. At the close of trial, Bond was found guilty of the felonious

assault murder of Nolan Lovett, in violation of R.C. 2903.02(B), an unclassified felony,

and of a firearm specification, in violation of RC, 2941.145. Bond was acquitted of felony

murder. Bond was sentenced to 15 years to life on the murder conviction and 3 years on

the firearm conviction, to be served consecutively.

                                             Assignments of Error

        {¶5}     Bond raises four Assignments of Error,




        1 A detailed statement of the underlying facts is not necessary to our disposition of this appeal.
        2 For clarity, references to the transcript from Bond’s jury trial will be cited by, as “__T.__,”
signifying the volume number and the page number.
Richland County, Case No. 2019 CA 0033                                                 3


       {¶6}   “I.   THE    TRIAL     COURT       DEPRIVED       APPELLANT     OF     HIS

CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL IN VIOLATION OF THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION, WHEN IT CLOSED HIS

TRIAL TO THE PUBLIC.

       {¶7}   “II. THE VERDICT OF THE JURY FINDING THE DEFENDANT GUILTY OF

FELONY MURDER IN VIOLATION OF R.C. 2903.02(B) WAS CONTRARY TO THE

MANIFEST WEIGHT OF THE EVIDENCE.

       {¶8}   “III. THE TRIAL COURT IMPROPERLY ALLOWED IRRELEVANT AND

OTHER ACTS EVIDENCE, AND PERMITTED THE STATE TO ENGAGE IN

PROSECUTORIAL MISCONDUCT, BY ADMITTING A "GANGSTA" RAP SONG, IN

VIOLATION OF THE DUE PROCESS CLAUSE OF THE FIFTH AND FOURTEENTH

AMENDMENTS.

       {¶9}   “IV. APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHTS

TO   DUE      PROCESS     IN VIOLATION OF THE              SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10,

ARTICLE I OF THE OHIO CONSTITUTION, AS A CONSEQUENCE OF INEFFECTIVE

ASSISTANCE OF COUNSEL.”

                                                I.

       {¶10} In Bond’s First Assignment of Error, Bond contends the trial court committed

reversible error when it closed the trial to the public. We agree.
Richland County, Case No. 2019 CA 0033                                                       4


       STANDARD OF APPELLATE REVIEW.

       {¶11} The Sixth Amendment to the United States Constitution, as applied to the

states through the Fourteenth Amendment guarantees that “[i]n all criminal prosecutions,

the accused shall enjoy the right to a speedy and public trial.” Section 10, Article I, Ohio

Constitution also guarantees an accused the right to a public trial.

       {¶12} Because of the constitutional significance of an accused’s right to a public

trial, “[t]he violation of the right to a public trial is considered structural error and not

subject to harmless-error standard.” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-

5084, 854 N.E.2d 1038, ¶ 50, citing Waller v. Georgia, 467 U.S. 39, 49–50, 104 S.Ct.

2210, 81 L.Ed.2d 31 (1984), fn. 9. “ ‘A structural error is a “defect affecting the framework

within which the trial proceeds, rather than simply an error in the trial process itself.” ’ ”

Sowell, ¶ 33, quoting Drummond, ¶ 50, quoting          Arizona v. Fulminante, 499 U.S. 279,

310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Because the denial of a defendant’s right

to a public trial under Article I, Section 10 of the Ohio Constitution is considered structural

error, it “cannot be waived by the defendant’s silence.” State v. Bethel, 110 Ohio St.3d

416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 81. Consequently, Bond did not waive his right

to a public trial in this case by a failure to object at trial. Id. See also Sowell, ¶ 36

       ISSUE FOR APPEAL.

       A. Whether the trial court’s order limiting a portion of the public from observing

Bond’s jury trial introduced error of constitutional dimension.

       {¶13} The right to a public trial is not absolute, and in some instances must yield

to other interests, such as those essential to the administration of justice. A trial judge

has authority to exercise control over the proceedings and the discretion to impose control
Richland County, Case No. 2019 CA 0033                                                     5


over the proceedings. Nonetheless, the abridgement of a defendant’s right to a public

trial may occur only when necessary, and any closure must be narrowly drawn and

applied sparingly. See State ex rel. The Repository, Div. of Thompson Newspapers, Inc.

v. Unger, 28 Ohio St.3d 418, 421, 504 N.E.2d 37(1986); State v. Lane, 60 Ohio St.2d

112, 121, 397 N.E.2d 1338(1979).

        {¶14} In Waller v. Georgia, the Supreme Court established the test for determining

whether a courtroom closure violates a criminal defendant’s Sixth Amendment right to a

public trial:

                The presumption of openness may be overcome only by an

        overriding interest based on findings that closure is essential to preserve

        higher values and is narrowly tailored to serve that interest. The interest is

        to be articulated along with findings specific enough that a reviewing court

        can determine whether the closure order was properly entered.

467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), (quoting Press–Enter. Co. v.

Super. Ct. of Cal., Riverside Cnty., 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629

(1984)). In the same opinion, the Supreme Court articulated the test as a four-factor

analysis:

                [ (1) ] the party seeking to close a public 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 proceeding, and [ (4) ] it

        must make findings adequate to support the closure.

Waller, at 48, 104 S.Ct. 2210, 81 L.Ed.2d 31. Courts frequently call this the “Waller test.”
Richland County, Case No. 2019 CA 0033                                                      6


       {¶15} The Supreme Court of Ohio in Drummond subsequently modified the Waller

test in cases where the trial closure is partial rather than total. In Drummond, the court

concluded “[w]hen a trial judge orders a partial, as opposed to a total, closure of a court

proceeding, a ‘substantial reason’ rather than Waller’s ‘overriding interest’ will justify the

closure.” 111 Ohio St.3d 14, 53, 2006-Ohio-5084, 854 N.E.2d 1038.

       {¶16} Waller dealt with a suppression hearing during which all persons other than

witnesses, court personnel, the parties, and their lawyers were excluded for the entire

duration. 467 U.S. 39, 42, 104 S.Ct. 2210, 81 L.Ed.2d 31.

       {¶17} In the case at bar, the closure was arguably partial. The trial court did not

exclude Bond’s immediate family members or the victim’s immediate family. 1T. at 265-

266. There is no evidence that the trial court either permitted or prevented the press from

entering the courtroom.

       1). Whether there was a substantial reason for partially closing the

courtroom—one that is likely to be prejudiced if no closure occurs.

       {¶18} With regard to the first Waller factor, because we consider the closure in

this case to be partial, the trial judge needed a “substantial reason” to close the trial to

the public. The trial judge articulated the following reason on the record:

              THE COURT: The jury is not in the courtroom. They're back in the

       jury room.

              We had an incident in the lobby, apparently, during the break. The

       jurors were not aware of that. I don't know they weren't aware of it, but they

       were all in the jury room. This happened out in the lobby. An argument.

       Apparently, the M&M machine is broken out there. But for that reason, we
Richland County, Case No. 2019 CA 0033                                                    7


      have cut back on the number of people that are allowed in the courtroom.

      We will only allow immediate family members. So that's one of the results.

      I wanted to get that on the record.

             Is there anything the parties want to put on the record about it? Do

      we need to ask the jury if they heard anything? They were all in the jury

      room. This happened out in the lobby on a break.

             From the State.

             MS. BOYER: Your Honor, Olivia Boyer from the State. During the

      incident, a juror came out of the room. I didn't say anything to her. But she

      went back into the jury room while the incident was occurring.

             THE COURT: The defense?

             MR. BRADLEY: No. I don't think we should ask them, because if

      they didn't know it –

             THE COURT: If we ask them, we'll highlight it. I think that's probably

      smart. Again, we checked immediately to make sure they were all back in

      the jury room.

             MS. SCHUMACHER: My only thought is, Mr. Caudill found himself

      in the midst of that. I don't know if that will make the paper. I know we've

      instructed the jurors not to pay attention to the paper. I don't know if it's

      worth -- if it gets printed, Your Honor, my concern is that they will read it. Is

      there concern from the jurors one way or the other?

             THE COURT: I will continue to address that they are not to read the

      newspaper or pay attention to the media. Whatever the reporter wants to
Richland County, Case No. 2019 CA 0033                                                 8


      report, it's his right. He can report whatever he wants to. But the good news

      is no one got hurt, apparently, and the jurors were not out in the lobby. All

      of them were back in the jury room.

             MS. SCHUMACHER: Thank you, Judge.

             THE COURT: So there are some good things. Again, we have

      limited the numbers. Nothing like that helps the situation, helps either side.

      Everyone needs to be on their best behavior or we won't have anybody

      watching.

             MS. SCHUMACHER: One more thing, Judge. The new victim’s

      rights, there's a constitutional amendment.       I believe the Court has

      permitted immediate family and father and mother --

             THE COURT: Immediate family members we have let back in. I don't

      think necessarily anybody in the immediate family was involved. It was an

      extended situation.

             MS. SCHUMACHER: Thank you, Judge.

             THE COURT: We'll bring the jurors back in and get started.

1T. at 264-267.

      {¶19} In Drummond, the trial judge explained the reason that he decided

to close the courtroom,

             The Court: It’s come to the attention of the Court that some of the

      jurors—or witnesses feel threatened by some of the spectators in the court.

      The Court’s making a decision that until we get through the next couple of

      witnesses I’m going to clear the courtroom. That includes the victim’s
Richland County, Case No. 2019 CA 0033                                                9


      family, the defendant’s family and all other spectators. The Court had two

      incidents yesterday involving one of the spectators where he showed total

      disrespect to the Court in chambers and gave the deputies a very hard time.

      I didn’t hold him in contempt of court, but just after that then another

      individual—there was a physical altercation between that individual who

      also came to watch the trial. His name’s Damian Williams…

                                           ***

             The Court: Who ultimately got charged with assault on a peace

      officer. So over the objection of the defendant I’m clearing the courtroom

      just for today only.

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶¶32-34.

      {¶20} With respect to the first Waller factor, the Ohio Supreme Court in Drummond

court concluded,

             The trial court’s closure order on February 4, 2004, satisfied the

      Waller criteria.   First, the trial court’s interest in maintaining courtroom

      security and protecting witness safety supported the trial court’s limited

      closure of the courtroom. There had been a physical altercation between a

      spectator and courtroom deputies, and a second incident occurred in the

      judge’s chambers. The trial court also stated that “the fear of retaliation

      expressed by various witnesses” was a basis for its action. In this regard,

      we acknowledge the dangerous nature of gang violence and the genuine

      need to protect witnesses testifying against gang members from the deadly

      threat of retaliation.
Richland County, Case No. 2019 CA 0033                                                   10


111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶54 (citations omitted).

      {¶21} In the case at bar, there is nothing in the record to suggest that any further

altercations took place either in the courtroom or in the hallway.           The trial judge

characterized the incident as “an argument.” No further description was given other than

a broken candy machine. We are not able to discern from the record who was involved

in the incident, the number of individuals involved in the incident, the individual, or

individual’s relationships to the parties or the witnesses, or the nature of the

disagreement. The record does not show that any potential witness was in fear of

retaliation or in need of protection. The trial court made no such finding on the record.

See, Drummond, ¶32; ¶54; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142,

2011-Ohio-817, ¶22.

      2). Whether the closure was no broader than necessary to protect the

interest in partially closing the courtroom.

      {¶22} With respect to the second Waller factor, the Drummond court concluded

that the closure of the courtroom during the testimony of three state witnesses was not

broader than necessary. Drummond at ¶ 55. The Court also noted the fact that the media

remained in the courtroom “helped safeguard Drummond’s right to a public trial” because

the witnesses’ awareness of the media minimized the risk that they would alter their

testimony.” 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶55.

      {¶23} In the case at bar, the closure was not limited in scope or duration, but

continued for the remainder of the trial. Excluding members of the general public who

had nothing to do with the incident was overly broad. Nothing in the record suggests that

the press was permitted into the courtroom for the remainder of the trial.
Richland County, Case No. 2019 CA 0033                                                      11


       3). Whether the trial court considered reasonable alternatives to closing the

proceeding.

       {¶24} With respect to the third Waller factor, the Drummond court noted, “the

record does not show that the trial court considered alternatives to closure. However, the

partial closure of the courtroom only during the cross-examination of Rozenblad and the

testimony of Morris and Thomas is narrower than full closure for the entire trial. See

Brown, 142 F.3d at 538.” 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶57.

       {¶25} In the case at bar, if the trial court believed that the incident on the third day

of trial necessitated stronger measures to preserve courtroom safety and security, the

record does not disclose that the trial judge considered alternatives to closing the trial to

the public.   For instance, the record does not show that the trial court considered

additional security measures such as posting deputies in the hallway or in the courtroom,

or excluding only those individuals who took part in the incident. See, State v. Long, 10th

Dist. No. 16AP-708, 2017-Ohio-9322, ¶24.

       {¶26} Both Drummond and Waller required the trial court to consider other

available options before closing the remainder of the trial. It does not appear from the

record before this Court that the trial court did so in the case at bar.

       4). Whether the trial court made findings adequate to support the closure.

       {¶27} Considering the final Waller factor the Drummond court noted,

              [T]he trial court stated that there had been a physical altercation

       between spectators and courtroom deputies. The trial court also mentioned

       that another incident had occurred in the judge’s chambers and that

       witnesses had expressed fear of retaliation by testifying in open court. The
Richland County, Case No. 2019 CA 0033                                                    12


       trial court also identified Damian Williams and Michael Peace as involved in

       the earlier disturbances.     Although the trial court should have made

       additional findings to clarify the reasons for closing the court, the strength

       of the judge’s actual findings must be evaluated in reference to the limited

       scope of the closure. By that standard, we conclude that the trial court’s

       findings were adequate.

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶58.

       {¶28} In the case at bar, with regard to the final Waller factor, as noted above, the

trial court noted an “argument” and a broken candy machine. The trial court made no

other findings in support of its decision, and the record does not disclose any other

incidents or circumstances that would have necessitated the closing of the trial to the

general public. If there were other relevant incidents or circumstances justifying closure

that are not evident from the record, the trial court made no such findings. We cannot

agree with the trial court’s conclusion that an argument in the hallway during a recess

affected the integrity of the proceedings in such a way that closing the trial to the general

public became necessary. Otherwise, a trial court could close the courtroom to the public

for nearly every minor disturbance. State v. Woods, 8th Dist. Cuyahoga Nos. 94141,

94142, 2011-Ohio-817, ¶22.

       {¶29} The failure to make any findings on the record to adequately support closure

does not satisfy the fourth prong of the Waller test. State v. Long, 10th Dist. No. 16AP-

708, 2017-Ohio-9322, ¶33; State v. Woods, 8th Dist. Cuyahoga Nos. 94141, 94142,

2011-Ohio-817, ¶26.
Richland County, Case No. 2019 CA 0033                                                         13


       {¶30} We find the trial court’s failure to satisfy the Waller test and lack of a

substantial reason to close the trial to the public as set forth in Drummond, violated Bond’s

Sixth Amendment right to a public trial. State v. Long, 10th Dist. Franklin No. 16AP-708,

2017-Ohio-9322, ¶33. Regrettably, we are constrained to reverse this case. As stated

above, the violation of the right to a public trial is structural error that affects the framework

within which the trial proceeds, rather than simply an error in the trial process itself.

       {¶31} Accordingly, the First Assignment of Error is sustained, and we reverse

Bond’s convictions and remand this case for a new trial.

                                               II., III., IV.

       {¶32} In the remaining assignments of error, Bond alleges various errors at trial.

However, based on our disposition of the first assignment of error, we overrule these

assignments of error as moot. See App.R. 12(A)(1)(c).

       {¶33} Accordingly, judgment of the Richland County Court of Common Pleas is

reversed and the case is remanded for a new trial.

By Gwin, P.J.,

Delaney, J., and

Baldwin, J., concur
