Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                        FILED
court except for the purpose of establishing                   Apr 16 2012, 8:17 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                     CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                               GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MICHAEL EARLS,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A02-1108-CR-754
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Steven R. Eichholtz, Judge
                        The Honorable Michael Jensen, Magistrate
                            Cause No. 49G20-0911-FB-92701


                                       April 16, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
      Appellant-Defendant Michael Earls appeals from his conviction for Class B felony

Dealing in Cocaine,1 contending that the exclusion of the public during one witness’s

testimony amounted to reversible error. We affirm.

                         FACTS AND PROCEDURAL HISTORY

      On November 3, 2009, Indianapolis Metropolitan Police Detectives Richard

Wilkerson and Craig Wildauer went to the home of Norris Griffin. Norris permitted the

uniformed detectives into his home, inside which they observed drug paraphernalia in

plain view. Norris allowed the detectives to search his house, a search that produced a

handgun. When Norris agreed to cooperate with police, the detectives called in Detective

Brad Ball.

      After speaking with Detective Ball, Griffin agreed to attempt to arrange for drug

dealers to sell him cocaine at his house that night. The detectives moved their vehicles

away from the house, and Griffin made four telephone calls attempting to arrange a

cocaine sale. Earls returned one of Griffin’s calls, informed him that he had cocaine to

sell, and arrived at the house shortly thereafter. When Griffin gave a prearranged verbal

signal, police emerged and confronted Earls, who dropped a package that was later tested

and determined to hold 1.1885 grams of cocaine-containing substance.

      On November 4, 2009, the State charged Earls with Class B felony dealing in

cocaine and Class D felony cocaine possession. Before trial, the following exchange

regarding Griffin’s upcoming testimony took place:



      1
          Ind. Code § 35-48-4-1 (2009).


                                           2
        THE COURT: Is there anything else we need to take care of before
we go to copying the instructions and finish getting ready?
        MS. RAY: Yes, your honor. Before – at one point when the
confidential informant testifies, the State is going to be asking to clear the
courtroom. We have had issues, the confidential informant has had issues
of gunshots near or at his house. He has been called “snitch” by multiple
people recently, and like within the last year, people around the
neighborhood ask him about this case. And we would ask to clear the
courtroom – the gallery of any defense family or friends.
        THE COURT: Ms. Devane?
        MS. DEVANE: Judge, I think that’s up to the Court’s discretion.
All courtrooms are open to the public as the court well –
        THE COURT: Right.
        MS. DEVANE: – knows. There are exceptions. I’m not sure this
falls under one of them. I think it’s up the discretion of the Court as to
whether or not it does. I have no knowledge nor reason to believe that Mr.
Earls was to communicate anything to this individual. This case has been
going on two years, but – and he was out for a long time – for a time.
        THE COURT: For a time.
        MS. DEVANE: A very long time, but it’s up – I would just leave it
to the discretion of the Court.
        THE COURT: Okay. So there has been actual comments made
about this particular case?
        MS. RAY: Yes. The confidential informant has been questioned by
various individuals – never the defendant, but he has been questioned by
numerous people about his testimony, about his role in this case. I think he
said last week someone drove by him, “snitch” out the window at him.
And there were gunshots near his house prior to the last jury setting, with
the week before his last jury setting.
        THE COURT: All right. Well, due to the fact that it was apparently
aimed right at this case, the harassment, I’m going to grant the State’s
request. I think there are special circumstances here. It’s just not general
issues, but issues related to this particular case. So I’ll have the gallery
members, if you move – obviously defendant gets to stay – but the
spectators we’ll ask to be removed, and we’ll close the courtroom during
that one witness’s testimony. All right.
        MS. DEVANE: So if his mother or father come in, they can stay? I
don’t think they’re going to be here, I think his father had to work.
        DEFT. EARLS: My father is right here.
        MS. RAY: I don’t know who was making accusations or asking
about this case. I would ask that the defendant’s family or friends be
excluded.


                                      3
             THE COURT: I’m going to excluded everybody, then, since we
       have no idea who’s making the threats.
             MS. DEVANE: That’s fine, Your Honor.

Tr. pp. 24-26. A jury found Earls guilty as charged, and the trial court entered judgment

on the Class B felony dealing in cocaine count only. On August 2, 2011, the trial court

sentenced Earls to eighteen years of incarceration.

                             DISCUSSION AND DECISION

                     Whether the Exclusion of the Public During
                 Griffin’s Testimony Constituted Fundamental Error

       Earls contends that his Sixth Amendment right to a public trial was violated when

the trial court excluded all spectators during Griffin’s testimony. The Sixth Amendment

to the United States Constitution provides, in part, 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. [In Re] Oliver, 333 U.S. [257,] 266–67, 68 S.Ct.
       [499,] 504 [(1948)]; Hackett [v. State], 266 Ind. [103,] 109, 360 N.E.2d
       [1000,] 1004 [(1977)]. It 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,] 46, 104 S.Ct. [2210,] 2215 [(1984)] (quoting
       Gannett Co. v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 2906, 61
       L.Ed.2d 608 (1979) (in turn quoting Oliver, 333 U.S. at 270 n.25, 68 S.Ct.
       at 506 n.25)). It protects the accused by allowing the public to assess the
       fairness of the proceedings. In addition, it encourages witnesses to come
       forward, and discourages perjury. Waller, 467 U.S. at 46, 104 S.Ct. at
       2215.… However, [the defendant’s right to public trial is not] absolute.
       Complete or partial exclusion of the public may be justified if a court finds
       “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.” Waller, 467 U.S. at 45, 104 S.Ct. at 2215
       (quoting Press–Enterprise [Co. v. Superior Court of California], 464 U.S.
       [501,] 510, 104 S.Ct. [819,] 824 [(1984)]). See also Hackett, 266 Ind. at

                                              4
       110, 360 N.E.2d at 1004 (exclusions may be justified by a legitimate
       purpose that furthers the integrity of the judicial process, so long as there is
       a sufficient record supporting the court’s exercise of discretion). Examples
       of valid exclusions include forbidding the televising of a public trial, Estes
       v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) and
       protecting a witness fearful of retaliation by those attending the trial,
       Hackett, 266 Ind. at 110, 360 N.E.2d at 1004; Kendrick [v. State], 661
       N.E.2d [1242,] 1242 [(1996)].

Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997) (brackets around “the accused’s” in

Williams, all others supplied). “[T]he 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.”

Waller, 467 U.S. at 48.

       Applying the Waller factors, we conclude that the record is sufficient to support

the trial court’s exclusion of the public during Griffin’s testimony. The State requested

the closure because of concern for Griffin’s safety, a legitimate interest that may justify a

courtroom closure. See, e.g., Williams, 690 N.E.2d at 167. The record indicates that

Griffin had been called “snitch” by “multiple people” shortly before trial, had been asked

by numerous persons about his upcoming testimony, and had heard gunshots “near or at

his house” within a week before a prior trial setting. In our view, the term “snitch” is

pejorative enough that its use under the circumstances here may reasonably be considered

a threat (especially when shouted out the window of a passing vehicle). And, while the

gunshots may not have had anything to do with Earls’s case, we cannot say that it would

be completely unreasonable to think that there might have been some connection.


                                              5
        The record is also sufficient to demonstrate that the closure was no broader than

necessary and that the trial court considered reasonable alternatives to closure. As the

trial court noted, only a complete closure of the courtroom during Griffin’s testimony

would suffice because the persons threatening Griffin were unknown. Moreover, the trial

court considered and rejected Earls’s request that his parents be allowed to stay, a request

that while not unreasonable on its face, was rendered unreasonable by the lack of

knowledge concerning the source of the threats. We conclude that the trial court did not

abuse its discretion in clearing the courtroom during Griffin’s testimony.2

        The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




        2
           The State notes that Earls failed to object to the closure and argues that he waived the claim for
appellate review. The State also argues that any error the trial court may have made was harmless. Earls
contends that a claim of denial of the right to public trial neither can be waived nor is subject to harmless
error analysis because it always constitutes “structural error” such that prejudice is presumed. Because
we find the record sufficient to justify the trial court’s limited closure, we leave these questions for
another day.


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