         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                    April 12, 2011 Session

                   JOHN WILLIAMS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Shelby County
                    No. 01-08325-33    John T. Fowlkes, Jr., Judge


               No. W2010-01013-CCA-R3-PC - Filed September 1, 2011


The Petitioner, John Williams, appeals the Shelby County Criminal Court’s denial of post-
conviction relief from his convictions for five counts of especially aggravated kidnapping
and three counts of aggravated robbery, with an effective sentence of 161 years. He contends
that the trial court violated his constitutional right to a public trial and that counsel rendered
ineffective assistance by failing to object to partial closure of the trial and failing to raise the
issue on direct appeal. Because the trial court’s order denying post-conviction relief is
incomplete, we reverse the judgment and remand the case to the trial court for findings of
fact and conclusions of law on the ineffective assistance of counsel claim.

  Tenn. R. App. P. 3; Judgment of the Criminal Court Reversed; Case Remanded

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OBERT W. W EDEMEYER, JJ., joined.

Robert C. Brooks, Memphis, Tennessee, for the appellant, John Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alexia Fulgham, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

       The Petitioner was convicted of offenses he committed with five other individuals.
He and co-defendant Jarvis Williams were tried together. On direct appeal of the Petitioner’s
and co-defendant Williams’s convictions, this court affirmed the trial court’s judgments. See
State v. Jarvis Williams & John Williams, No. W2002-03010-CCA-R3-CD, Shelby County
(Tenn. Crim. App. Dec. 23, 2003), app. denied (Tenn. May 10, 2004).
        This court’s summary of the facts in that appeal as they pertained to the Petitioner
included testimony from victims Kimberly Hancock, Divin Wright, Omar Coleman, Oliver
Wright, Tonyell Somerville, and Ms. Somerville’s son, who was seven years old at the time
of the offense. Id., slip op. at 1-5. According to their testimony, Ms. Hancock, Divin
Wright, Mr. Coleman, and two other individuals drove to Marion Vaughn’s house on the
night of January 11, 2001. Ms. Vaughn was Ms. Hancock’s friend, and Ms. Hancock wanted
to retrieve clothing she had left at the house. Ms. Hancock and Mr. Wright entered the house
while the others waited in the car. The Petitioner and co-defendant were in the house with
Ms. Vaughn, Torrez Talley, and Thaddeus Brown.

        Ms. Hancock testified that when she went upstairs to gather her clothes, the Petitioner
followed her, yelled, “[S]omebody is fixing to die,” grabbed her by the neck, threw her down
the stairs, and forced her to sit on the couch. The co-defendant forced Divin Wright onto the
same couch. The Petitioner and co-defendant were both armed, and the Petitioner accused
Ms. Hancock of setting up a break-in of his home by Oliver Wright, Divin’s brother. The
Petitioner and co-defendant told both victims they would die that night.

        Mr. Talley and Mr. Brown brought Mr. Coleman out of his car and into the house.
Javon Bryant arrived at the house, pointed two guns at Ms. Hancock, and told her that she
would help them find Oliver Wright. Mr. Bryant and the co-defendant forced Ms. Hancock
into a car and drove away. The co-defendant later called Oliver Wright, arranged a meeting,
and called the Petitioner to notify him. Mr. Brown drove the co-defendant’s car, a Dodge
Intrepid, to meet the co-defendant and Mr. Bryant. They forced Ms. Hancock to the Intrepid
at gunpoint and waited for Oliver Wright. When Oliver Wright arrived, his passengers
included Mr. Carpenter, Ms. Somerall, and her son. Two assailants surrounded the car, a
Dodge Neon, and forced Oliver Wright and Mr. Carpenter to get out and remove their
clothes.

        The co-defendant forced Oliver Wright into the trunk of the Intrepid and closed the
trunk on his leg, breaking his leg. The assailants forced Mr. Carpenter into the trunk of the
Neon, with Ms. Somerville and her son still held at gunpoint in the Neon. Mr. Ezell drove
the Neon, and Mr. Bryant drove the Intrepid. They later pulled over, and the assailants
released Ms. Somerville and her son, allowing her to drive away in the Neon after they took
her identification and threatened to kill her and her son if she called the police. They put Mr.
Carpenter in the trunk of the Intrepid with Oliver Wright and told Ms. Hancock they would
kill both men. They drove Ms. Hancock to a location near her mother’s house, allowed her
to get out, and threatened to kill her and her daughter if she called the police. Ms. Hancock
testified that the assailants robbed her of $120 and that she later called the police. Ms.
Somerville also called the police.



                                              -2-
        Divin Wright testified that after the co-defendant and Mr. Bryant left Ms. Vaughn’s
house with Ms. Hancock, the Petitioner pointed a pistol at him and took everything in his
pockets. He testified that he was stripped naked and beaten by Mr. Ezell. Mr. Coleman
testified that he was also stripped and that his checkbook was taken. The co-defendant and
other assailants later brought Oliver Wright and Mr. Carpenter into the house. According to
the victims who were in the house, the Petitioner and co-defendant beat Divin and Oliver
Wright with their fists and guns, forced Divin’s head into the smoldering fireplace, burned
Oliver Wright’s back with cigarettes, and poured bleach on Mr. Coleman, Mr. Carpenter, and
both Wright brothers. Mr. Coleman also testified that he was hit in the head when he tried
to escape and that the co-defendant ripped off Mr. Coleman’s pants and shook out the
pockets as both the co-defendant and the Petitioner asked, “Where’s my stuff?”

       The armed Petitioner joined with other assailants to force Mr. Coleman and Mr.
Carpenter into the trunk of Mr. Coleman’s car, a Ford Focus. Oliver and Divin Wright were
forced into the trunk of the Intrepid. Oliver Wright testified that the assailants told him he
was going to die and that they drove the cars until they stopped at a place where he could
hear a train approaching. The police later arrived and released the victims from the car
trunks. The Petitioner testified that he “wasn’t involved in none of these incidents” and had
been “at home with [his] child and [the] baby’s momma.” See id., slip op. at 1-5.

        The jury convicted the Petitioner of five counts of especially aggravated kidnapping
of victims Kimberly Hancock, Divin Wright, Oliver Wright, Omar Coleman, and Jerome
Carpenter and three counts of aggravated robbery of Divin Wright, Oliver Wright, and Omar
Coleman. The Petitioner filed a petition for post-conviction relief on March 15, 2005.

        At the post-conviction hearing, Derrick Rucker testified that he was employed at an
auto body shop until he injured his back six weeks before the hearing. He said he and the
Petitioner were close friends and knew each other for more than fifteen years. He said that
he was present for the Petitioner’s trial on the morning of September 4, 2002, and that he
watched two or three people testify before the lunch recess. He said that he went to lunch
with two other friends and that when they returned, the bailiff told them they could not enter
the courtroom for a security purpose. He denied that any problems occurred that morning
or that the judge or bailiff spoke to him or his friends about their behavior or appearance.
He said there was nothing disruptive or improper about their behavior or appearance. He
said his purpose for going to court was to support his friend because the Petitioner’s aunt was
unable to attend the trial.

       On examination by the court, Mr. Rucker testified that more than eight people were
involved in the trial and that multiple people were in the audience. He said the case was
“high profile” and covered extensively by television news. He remembered that the charges

                                              -3-
included violent crimes and thought the case involved attempted murder. He said that the
media tried to make it look like the case was related to gang activity but that he was not a
“gangster” and neither were his friends. He said he and his two friends were the only persons
kept out of the courtroom. He said his past convictions included burglary, possession of
marijuana, and some misdemeanors.

       On further direct examination, Mr. Rucker testified that his felony drug conviction
was in 2004 and that he was last released from custody on July 7, 2008. He said he had no
problems with the law since then.

       On cross-examination, Mr. Rucker agreed that the Petitioner’s charges were
“something similar” to especially aggravated kidnapping and aggravated robbery. He agreed
there were at least three victims whom he saw ready to testify and said he also thought a little
boy was a victim. He said that he and his friends asked why they could not return to the
courtroom and that the bailiff would tell them only that it was for a security reason. On
examination by the court, Mr. Rucker testified that he went through the security system at the
courthouse on the day of the trial.

        Troy Hughlett testified that he had been employed for two years at a warehouse. He
said he and the Petitioner had been good friends for fifteen or twenty years. He said he was
in the courtroom on the morning of September 4, 2002, with Mr. Rucker and Mario
Wrenthrob. He said that the Petitioner’s family was not there that morning and that he
attended the trial to support the Petitioner. He said that while he and his friends were at the
trial, no one spoke to them about their behavior or appearance. He said that when the court
recessed, he and his friends went downstairs in the courthouse to eat lunch. He said that
when they tried to return to the courtroom, the bailiff stopped them and said they had been
barred. He said the bailiff did not explain the reason.

       On cross-examination, Mr. Hughlett testified that the bailiff did not give him or his
friends an opportunity to ask why they had been barred from the courtroom. He agreed that
many people were in the courtroom and that it was a newsworthy case. He said he did not
remember the charges against the Petitioner or anything else about the case. He said he had
no felony convictions.

        On examination by the court, Mr. Hughlett testified that he did not attempt to attend
the trial after that day. He said he and his friends heard one woman testify before the lunch
recess. He said he was not present for the jury selection. He said the Petitioner and the
Petitioner’s brother were on trial.




                                              -4-
       Mario Wrenthrob testified that he had been employed at McDonald’s for about a year
and that he and the Petitioner had been friends for many years. He said he attended the first
day of the Petitioner’s trial to support the Petitioner and “to see what was really going on.”
He did not think the Petitioner’s family was able to attend. He said that neither the judge nor
the bailiff told him or his friends their clothing or behavior was inappropriate and that there
was nothing inappropriate about their clothing or behavior. He said that he left the
courtroom for the lunch recess with his friend and his cousin and that when they returned,
they were told they could not enter. He said the only reason given was a “security purpose.”
He said he knew of no one else who was not allowed to enter the courtroom.

       On cross-examination, Mr. Wrenthrob testified that he asked the bailiff why they
could not reenter the courtroom but that the bailiff would only say it was for security reasons.
He said they left after they were barred. He did not remember news personnel at the trial or
whether the case was gang-related. He said he had been convicted of a misdemeanor
marijuana charge but not a felony.

        On the court’s examination, Mr. Wrenthrob testified that when the bailiff told him and
his friends they could not enter the courtroom, the door had closed but they were about to
enter. He denied being asked to leave while court was in session.

       The Petitioner’s counsel testified that he practiced primarily in criminal defense. He
said that Mr. Rucker looked “vaguely familiar” but that he had never seen Mr. Hughlett or
Mr. Wrenthrob.

       At this point, the trial court noted for the record:

              [H]is friends all left. And, one of them I believe Mr. Rucker
              was trying to talk with Mr. Williams when he was leaving. The
              officers had to tell him not to communicate with Mr. Williams.
              His close friends are now gone.

        Counsel testified that he vaguely remembered that someone was told to leave the
courtroom at the trial because of a security issue but that he did not remember specific
details. He said he reviewed his notes from the trial and did not find any mention of people
excluded from the trial. He said that it was a difficult trial and that he was occupied with the
job at hand. He remembered that a bailiff mentioned the exclusion of some individuals for
security reasons. He said, “It didn’t shock me to the point that I objected or to the point that
I took notes on it.” He said he would usually note anything that might need to be raised in
a motion for new trial or on appeal.



                                              -5-
       Counsel testified that he thought he was told when he returned from the lunch recess
by either a bailiff or the judge about the exclusion of individuals. He did not know if the
Petitioner was told. He did not remember any discussion in court regarding whether the
individuals should be excluded. He said that if the trial court had explained that it was
considering the exclusion, he would have objected because his client needed support. When
asked why he did not raise an objection or raise the issue in the motion for new trial, he said
he did not remember. He said he reviewed the trial transcript and his notes but found no
mention of the individuals’ exclusion from the courtroom. He noted that it had been eight
years since the trial. He agreed it was a possibility that there was “nothing to remember”
about the issue.

        Counsel testified that around the time of this trial and in the same courtroom, he was
involved in a murder trial during which an individual or two were asked to leave because of
their clothing. He said that as he tried to remember what happened in this trial, he began to
confuse the two. He said the courtroom audience for the Petitioner’s trial was divided into
prosecution and defense sides. He said that the case involved seven victims and that there
was a great deal of support on the prosecution’s side but very little on the Petitioner’s side.
He did not remember meeting the Petitioner’s parents and did not remember any of the
Petitioner’s family attending the trial.

       On cross-examination, counsel testified that he had practiced criminal law for over
ten years and that he had represented defendants in ten to fifteen jury trials and about the
same number of bench trials. He said the Petitioner and his brother were both charged with
multiple counts of especially aggravated kidnapping and aggravated robbery. He agreed that
the District Attorney’s Office labeled the Petitioner’s case a “gang case” and that the trial
prosecutor was the gang crime prosecutor. He said the trial lasted at least five days. He said
four of the seven victims knew the Petitioner before the offenses occurred. He said he did
not remember if the Petitioner asked him to object when his friends were barred from the
courtroom. On redirect examination, counsel testified that he did not know whether the
Petitioner was aware of his friends’ exclusion from the courtroom during the trial.

        On examination by the trial court, counsel testified that he was aware during the trial
that the Petitioner had friends there in support of him and that when the bailiff told him
individuals were excluded, he knew they were supporters of the Petitioner. He said he
reviewed the trial transcripts and found no mention of the individuals’ exclusion. He said
that he hoped he would have objected and asked for a hearing if the Petitioner told him that
his friends were excluded but that he did not recall whether the Petitioner said anything. He
said that the State’s witnesses were terrified and that the atmosphere was tense.




                                              -6-
        The Petitioner testified that his trial began on September 4, 2002, and lasted four days.
He said that Mr. Rucker, Mr. Hughlett, and Mr. Wrenthrob were his good friends and that
he had known them for fifteen or twenty years. He said they had nothing to do with the
offenses in the case and were at the trial to support him. He said his family was not at the
trial because counsel told him the case would be continued. He said that he was surprised
that the trial started when it did. He said that his three friends were in the courtroom the first
morning of the trial but not after the lunch recess and that he learned of their exclusion when
he called home that night. He said his friends did not cause a disruption with their behavior
or appearance. He did not remember if the judge told him about the exclusion and said he
would have asked counsel to object if he had known.

        On cross-examination, the Petitioner testified that to his knowledge, counsel did not
know about his friends’ exclusion. He denied that his friends caused a disruption when they
left the post-conviction hearing. He agreed that one friend said something to him before
leaving and said that the friend asked if he wanted some money on his books. He denied that
his friends were smiling and laughing and that one friend gave him a sign with his hands.
He said he did not see his friends do anything wrong at the post-conviction hearing or the
trial. He said that his family lived in Chattanooga and that they offered to attend the trial, but
that he told them he was okay and they did not need to attend.

       On redirect examination, the Petitioner testified that he thought he said something to
counsel about his friends’ exclusion but that he was not sure. He said that although he asked
counsel to include the issue on appeal, counsel refused. He agreed that if his family lived in
Memphis, he would have asked them to attend, but he said that the six-hour drive from
Chattanooga was too much for them when he already had friends there to support him. On
recross-examination, the Petitioner testified that the State appointed counsel to represent him
on appeal.

        On further redirect examination, the Petitioner testified that when his friend asked
during the post-conviction hearing if he wanted money on his books, it meant on his account
at the jail commissary. In response to a question from the court, the Petitioner agreed court
officers told his friends to stop talking to him during the post-conviction hearing and to leave
the courtroom. The trial court accepted a copy of the trial transcript as an exhibit and
requested that defense counsel mark the section containing the lunch recess at issue for the
court’s review.

        The prosecutor testified that she vaguely remembered an incident during the first day
of the trial when the judge would not allow three young men to return to the courtroom after
the lunch recess. She said that she was assigned to the District Attorney’s Office gang unit
at the time of the trial and that her unit considered the Petitioner’s case to be gang-related.

                                               -7-
She said that there were seven victims and six defendants in the case and that there were
many people present in the courtroom during the trial. She said the victims were frightened
and easily intimidated. She said they told her that people in the courtroom were gesturing
and making faces at them or saying things. She told the trial court, and it ruled that none of
the victims had to “go through that”and excluded the three individuals. She said that one of
the victims recognized at least one of the excluded individuals and that the court officer
obtained the individuals’ names. She said her conversation with the judge was not on the
record but was held openly in court.

        On examination by the court, the prosecutor testified that she received an excerpt of
the trial transcript provided by the Petitioner’s post-conviction counsel. She said that Ms.
Somerville was on the witness stand before and after the exclusion occurred and that Ms.
Somerville’s young son still had to testify. She said specific individuals were brought to her
attention and were excluded from the courtroom. She said that the trial court did not address
the excluded individuals because the court ruled to exclude them before they returned to the
courtroom and that after the ruling, the bailiff did not admit them. She agreed the incident
occurred during the second day of testimony and third day of the trial. She said testimony
that day began with Omar Coleman, who was followed by Ms. Somerville and her son. On
redirect examination, she testified that the jury was not in the courtroom when she brought
the witnesses’ concern to the trial court’s attention or when the court ruled to exclude the
individuals.

       In a written order denying post-conviction relief, the trial court stated:

              A review of the trial transcript shows that on September 5, 2002,
              three individuals were, in fact, barred from the courtroom. The
              trial court said the following:

                     “The court: All right. The three young men that
                     were seated on this side of the courtroom early
                     this morning. They’re not here now. They’re not
                     to be allowed back in the courtroom for the
                     duration of the trial. We can’t have the conduct
                     that is threatening in any manner or suggest
                     intimidation in any manner. And so if that
                     continues they’ll just be kicked out of the
                     courtroom. It’s as simple as that. Bring in the
                     jury, please.”

              ...

                                              -8-
              Petitioner produced three witnesses who purported to be friends
              of Petitioner. Each of the witnesses testified during the hearing
              that they attended Petitioner’s trial during the morning hours,
              but after lunch recess, they were denied access to the courtroom.
              They indicated that there was no type of disturbance, but that
              courtroom bailiffs kept them out of the courtroom for security
              reasons.

              ...

                     Petitioner’s complaint about closing the courtroom to his
              friends is denied for two reasons. First, and foremost, Petitioner
              raised this complaint for the first time in his Petition for Post-
              Conviction Relief. No objection was made to the trial court at
              the time the partial closure occurred. Petitioner testified that he
              found out about the closure after the court had adjourned for the
              day, but neglected to inform trial counsel the following day
              when the trial continued. Thus, the trial court was never given
              the opportunity to address this alleged complaint.

                      Secondly, although the trial court did not conduct a
              formal jury out hearing, it is clear that a complaint was
              communicated to the court, and three individuals were identified
              and barred from the courtroom. The court articulated reasons on
              the record for the partial closure. Some type of threat was
              communicated to witnesses during the trial, and the court was
              made aware of such and took steps to eliminate the threat. In
              response, the court ordered the individuals responsible for the
              threats to be excluded from the courtroom. This Court finds that
              the actions taken by the trial court were reasonable under the
              circumstances.

              For the foregoing reasons, Petitioner’s complaints about partial
              trial closure are without merit and are denied.

       The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2010);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). A petitioner is required to provide
“allegations of fact explaining why each ground for relief was not previously presented in
any earlier proceeding.” T.C.A. § 40-30-104(e) (2010). On appeal, we are bound by the trial

                                              -9-
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). Post-conviction
relief may only be given if a conviction or sentence is void or voidable because of a violation
of a constitutional right. T.C.A. § 40-30-103 (2010).

                                                 I

        The Petitioner contends that the trial court violated his constitutional right to a public
trial by closing the courtroom to his three friends without following the requirements for
partial closure set out in Waller v. Georgia, 467 U.S. 39, 46-47 (1984). The State contends
that the trial court correctly found that the Petitioner waived this issue for post-conviction
relief by failing to raise it on direct appeal. See T.C.A. § 40-30-106(g) (2010). We agree
with the State.

        The right to a public trial is guaranteed by the Sixth Amendment to the United States
Constitution and article I, section 9 of the Tennessee Constitution. To avoid violating a
defendant’s right to a public trial, the trial court should hold a jury-out hearing before closing
or partially closing the trial, determine whether the party seeking to close the hearing has an
overriding interest that is likely to be prejudiced without the closure, confine the closure to
only that necessary to serve such an interest, consider alternatives, and make findings
adequate to support the closure. See Waller, 467 U.S. at 48; State v. Sams, 802 S.W.2d 635,
640 (Tenn. Crim. App. 1990). As the Petitioner notes, if the record shows a violation of the
right to a public trial, prejudice requiring reversal is implied. See State v. Tizard, 897
S.W.2d 732, 749 (Tenn. Crim. App. 1994); Sams, 802 S.W.2d at 641 (noting that to require
actual proof of prejudice “would seriously impair, if not actually destroy, the safeguards
provided by the public trial requirement”).

        In this case, however, we conclude that the Petitioner waived his public trial claim by
failing to raise it in the trial of his case and on direct appeal. A constitutional claim for relief
that was not raised when it could have been raised in an earlier proceeding is waived for
post-conviction relief unless the constitutional right was not recognized at the time of the trial
or was not raised as a result of a State or federal action. See T.C.A. § 40-30-106(g). Neither
exception applies in this case, and the Petitioner is not entitled to relief on this issue.

                                                II

        The Petitioner contends that counsel rendered ineffective assistance by failing to
object to partial closure of the trial and failing to raise the issue on direct appeal. He argues
and the State concedes that the trial court, in both its written order denying post-conviction
relief and its ruling from the bench, failed to address whether the Petitioner received the

                                               -10-
ineffective assistance of counsel. We agree that the trial court failed to address this claim,
and we conclude that the trial court’s order denying post-conviction relief is incomplete.

         The Post-Conviction Procedure Act mandates that the trial court enter an order or
written memorandum detailing all grounds presented by the Petitioner and its findings of fact
and conclusions of law with respect to each ground. See T.C.A. 40-30-111(b) (2006)
(amended 2009). The purpose of this requirement is to facilitate appellate review. See State
v. Swanson, 680 S.W.2d 487, 489 (Tenn. Crim. App. 1984); cf. State v. Higgins, 729 S.W.2d
288, 290-91 (holding that the trial court’s failure to state findings of fact and conclusions of
law regarding each issue of the defendant’s claim in its written order was harmless because
the court’s oral findings from the bench on each issue were included in the appellate record).
Although we held in Section I that the Petitioner waived any complaint of a constitutional
violation as a result of the trial court’s partial closure of the courtroom when he failed to raise
it in the conviction proceedings or direct appeal, it does not necessarily follow that he is not
entitled to relief on the basis of this constitutional claim of ineffective assistance of counsel.
We are unable to review the Petitioner’s claim of ineffective assistance of counsel because
the trial court did not rule on this issue. See T.C.A. § 40-30-111(b); Tenn. Sup. Ct. R. 28 §
9(A).

       In consideration of the foregoing and the record as a whole, the judgment of the trial
court is reversed, and the case is remanded to the trial court for findings of fact and
conclusions of law on the Petitioner’s ineffective assistance of counsel claim.


                                                  ___________________________________
                                                  JOSEPH M. TIPTON, PRESIDING JUDGE




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