                                                                                         FILED
                                                                                    Apr 11 2019, 10:26 am

                                                                                         CLERK
                                                                                     Indiana Supreme Court
                                                                                        Court of Appeals
                                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Dylan A. Vigh                                               Curtis T. Hill, Jr.
Law Offices of Dylan A. Vigh, LLC                           Attorney General of Indiana
Indianapolis, Indiana                                       Ellen H. Meilaender
                                                            Supervising Deputy Attorney
                                                            General
                                                            Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Haile S. Long,                                              April 11, 2019
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            18A-CR-2140
        v.                                                  Appeal from the Delaware Circuit
                                                            Court
State of Indiana,                                           The Honorable Kimberly S.
Appellee-Plaintiff.                                         Dowling, Judge
                                                            Trial Court Cause No.
                                                            18C02-1611-F2-18



Pyle, Judge.




                                   Statement of the Case



Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019                           Page 1 of 7
[1]   Haile Long (“Long”) appeals his conviction, following a jury trial, of eight drug

      related offenses. He argues that the trial court violated his Sixth Amendment

      right to a public trial. Specifically, he contends that the trial court’s act of

      asking the public not to enter and exit the courtroom in the middle of testimony

      equated to a total exclusion of members of the public. Concluding that there

      was no Sixth Amendment violation, we affirm the trial court.


[2]   We affirm.


                                                       Issue

              Whether Long’s Sixth Amendment right to a public trial was
              violated.

                                                       Facts

[3]   In 2016, the Muncie Narcotics Unit (“MNU”) conducted an investigation of

      Long using a confidential informant and four controlled drug buys. All of the

      controlled buys occurred at Long’s auto business. After the fourth controlled

      buy, the MNU applied for, and was granted, a search warrant for Long’s auto

      business.


[4]   Based upon the controlled buys and what was recovered from the search, the

      State charged Long with the following: Level 2 felony dealing cocaine; Level 2

      felony dealing a narcotic drug; three counts of Level 3 felony dealing cocaine;

      Level 5 felony dealing a Schedule IV controlled substance; Level 6 felony

      maintaining a common nuisance; and Class A misdemeanor dealing marijuana.


      Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019            Page 2 of 7
[5]   Long’s jury trial began in May of 2018 and lasted three days. At the start of the

      second day of trial, the trial court noted that it had “put a sign on the door

      asking people not to enter and exit in the middle of testimony,” explaining that

      it was “happening a lot yesterday and it was very distracting.” (Tr. Vol. II at

      130). The trial court also asked counsel for both sides to “police your own to

      the best of your ability” and asked the prosecutor’s staff to “try not to leave in

      the middle of testimony.” (Tr. Vol. II at 130). Long did not object or otherwise

      voice any concerns about this.


[6]   Shortly after the first witness began testifying on the second day, spectators

      entered the courtroom. The trial court interrupted the examination, stating,

      “[s]ir, sir there’s a sign on the door that there’s not going to be people entering

      and exiting during court, all right. So you guys can come in and have a seat but

      you stay until there’s a break. I don’t want people coming in and out during

      testimony today, all right. Thank you.” (Tr. Vol. II at 133). During a break

      later that morning, the trial court stated:


                       All right, some folks came in during some of that
                       testimony after I gave an earlier admonishment. So let me
                       just say this one more time, I don’t want comings and
                       goings during testimony today. It’s very distracting.
                       Yesterday was very distracting. So you can leave and
                       come during breaks. If you are outside the courtroom and
                       testimony has already started, you are to stay outside the
                       courtroom until we take our next break when you can
                       come back in, okay. And I would appreciate you not
                       leaving in the middle of testimony just because it takes,
                       you know, the attraction [sic] away from the witness,
                       okay.



      Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019            Page 3 of 7
      (Tr. Vol. II at 194-95). Long never objected or voiced any concerns about the

      trial court’s statements.


[7]   Following the presentation of evidence, the trial court took a recess before the

      start of closing arguments. It advised those present that there would be a 15-

      minute break and that there would be an officer “standing at the door.” (Tr.

      Vol. III at 228). The court continued, “[i]f you’re in here when closings start,

      fine. You’re staying until they are over. If you’re not in here when closings

      start, you’re not coming in to listen to closings, okay.” (Tr. Vol. III at 228-29).

      Long again did not object or voice any concerns about this. Thereafter, the jury

      found Long guilty as charged on all eight counts. The trial court sentenced

      Long to an aggregate, executed term in the Department of Correction for

      twenty-six-and-a-half (26½) years. Long now appeals.


                                                      Decision

[8]   Long argues that the trial court violated his Sixth Amendment right to a public

      trial.1 Long is correct that the United States Constitution provides him with

      the right to a public trial. Specifically, the Sixth Amendment to the United




      1
        In addition to the Sixth Amendment, Section 13 of the Indiana Constitution provides that “[i]n all
      prosecutions, the accused shall have the right to a public trial . . . .” While Long cites the Indiana
      Constitution, he makes no separate argument under the Indiana Constitution. Our supreme court has held
      that when a party, though citing Indiana constitutional authority, presents no separate argument specifically
      treating and analyzing a claim under the Indiana Constitution distinct from its federal counterpart, we
      resolve the party’s claim “on the basis of federal constitutional doctrine and express no opinion as to what, if
      any, differences there may be” under the Indiana Constitution. Williams v. State, 690 N.E.2d 162, 167 (Ind.
      1997).

      Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019                                   Page 4 of 7
       States Constitution provides that “[i]n all criminal prosecutions, the accused

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

       has long been recognized as a fundamental right of the accused. Williams v.

       State, 690 N.E.2d 162, 167 (Ind. 1997). It protects the accused by allowing the

       public to assess the fairness of the proceedings. Id. A public trial helps ensure a

       fair trial because “the presence of interested spectators may keep [the accused’s]

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

       their functions . . . .” Waller v. Georgia, 467 U.S. 39, 47 (1984).


[9]    The State argues that Long has waived his claim regarding his right to a public

       trial because he did not raise an objection below in the trial court. We agree.

       As a general rule, a party may not present an argument or issue on appeal

       unless the party raised that argument or issue before the trial court. Washington

       v. State, 808 N.E.2d 617, 625 (Ind. 2004). Because Long failed to object and

       preserve the issue at trial, despite having multiple opportunities to do so, he has

       waived consideration of this issue on appeal. See Williams, 690 N.E.2d at 166

       (holding that because the defendant raised no objection to the use of a metal

       detector and wand below, his claim that this violated his right to a public trial

       was waived on appeal).


[10]   Waiver notwithstanding, the record reveals no basis for Long’s argument that

       there was a violation of his right to a public trial. Long argues that there was a

       “total exclusion of the public during witness testimony and closing

       arguments . . . .” (Long’s Br. 12). The State argues that the “trial court did not

       exclude or bar any person, let alone the entire public, from observing any part

       Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019            Page 5 of 7
       of the trial.” (State’s Br. 20). We agree with the State. Both a common sense

       reading of “exclusion,” and, more importantly, the cases interpreting the right

       to a public trial, conceive of an exclusion as an affirmative act specifically

       barring some or all members of the public from attending a proceeding.

       Williams, 690 N.E.2d at 168 (citing Waller, 467 U.S. at 39). This exclusion

       requires some showing that the court, “by order or otherwise, physically

       prevented the public from attending.” Id. (citing United States v. Al-Smadi, 15

       F.3d 153, 154 (10th Cir. 1994) (denial of a defendant’s Sixth Amendment right

       to a public trial requires some affirmative act by the trial court meant to exclude

       persons from the courtroom)).


[11]   This case presents an issue of trial management, and a trial court is given

       latitude to manage the courtroom and maintain order and decorum. Marcum v.

       State, 725 N.E.2d 852 (Ind. 2000). Here, the trial court posted the sign asking

       spectators to only enter or exit during breaks precisely because the “comings

       and goings” of spectators proved to be “very distracting” and was “happening a

       lot” during testimony on the first day of trial. (Tr. Vol. II at 133, 130). No one

       was ever removed from the courtroom or prevented from entering. Indeed, the

       record reveals that members of the public came into the courtroom when the

       sign was on the door. Because the trial court did not engage in “an affirmative

       act specifically barring some or all members of the public[,]” nor did it

       physically prevent members of the public from attending, we hold that the trial




       Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019          Page 6 of 7
       did not exclude any members of the public. Williams, 690 N.E.2d at 168.

       Accordingly, Long’s Sixth Amendment right to a public trial was not violated. 2


[12]   Affirmed.


       Najam, J., and Altice, J., concur.




       2
        To the extent that Long argues that the trial court failed to consider the four Waller factors set forth by the
       United States Supreme Court, this argument has no merit. Because we hold that the trial court did not
       exclude the public from the courtroom, this obviated the need for a Waller analysis.
       Additionally, Long’s argument that he did not voluntarily waive his right to a public trial is also without
       merit. The record is clear that Long received a public trial. Thus, Long did not waive his right to a public
       trial.

       Court of Appeals of Indiana | Opinion 18A-CR-2140 | April 11, 2019                                     Page 7 of 7
