     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                            January 10, 2019

                                 2019COA1

No. 14CA1384, People v. Irving — Constitutional Law — Sixth
Amendment — Speedy and Public Trial

     At the defendant’s trial, the prosecution asked the court to

exclude defendant’s mother from the courtroom during the

testimony of the defendant’s former girlfriend. According to the

prosecution, at the time of the offense, nearly four years earlier, the

defendant’s mother had urged the girlfriend not to cooperate with

police. Without determining that the girlfriend had a fear of

testifying while the mother was present or making other required

findings under Waller v. Georgia, 467 U.S. 39 (1984), the court

granted the prosecution’s request.

     The division concludes that the need to prevent witness

intimidation is an overriding interest that can justify closure of the

courtroom under certain circumstances. However, the proponent of
a courtroom closure must demonstrate not only an overriding

interest but also a substantial probability that the identified interest

will be prejudiced by an open courtroom. Here, the trial court failed

to make any finding that the interest in preventing witness

intimidation would be prejudiced unless the defendant’s mother

was excluded from the courtroom during the girlfriend’s testimony.

Nor does the record support such a finding.

     Accordingly, the division concludes that the court erred in

partially closing the courtroom. And because the error is

structural, the division reverses the defendant’s convictions and

remands for a new trial.
COLORADO COURT OF APPEALS                                         2019COA1


Court of Appeals No. 14CA1384
Arapahoe County District Court No. 11CR1958
Honorable Elizabeth Beebe Volz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

De’Twan Clayton Irving,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                   Division III
                           Opinion by JUDGE HARRIS
                          Webb and Welling, JJ., concur

                          Announced January 10, 2019


Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lynn Noesner, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, De’Twan Clayton Irving, a member of the Rollin

 60s branch of the Crips gang, was convicted of second degree

 murder and conspiracy to commit murder after he killed the victim

 during a gang-related dispute.

¶2    Based on the prosecutor’s allegations of witness intimidation,

 the trial court partially closed the courtroom during the testimony

 of two witnesses, one of whom was Irving’s former girlfriend, and

 closed it entirely during the testimony of a third witness. Irving

 contends that the closures violated his constitutional right to a

 public trial.

¶3    Because we agree that the court erred in excluding Irving’s

 mother from the courtroom during the testimony of Irving’s

 girlfriend, we need not consider the propriety of the other closures.

 And because the error is structural, we must reverse Irving’s

 convictions and remand for a new trial.

                       I.    Right to a Public Trial

                        A.   Background Facts

¶4    According to the prosecution’s evidence, in September 2010,

 Irving’s then girlfriend drove him and a few of his fellow gang

 members to an apartment complex where Irving shot the victim in


                                   1
 retaliation for the victim’s earlier altercation with one of the gang

 members.

¶5    Irving was charged with first degree murder and conspiracy to

 commit murder. The case proceeded to trial in April 2014. On the

 third day of trial, the prosecutor requested that the court partially

 close the courtroom during the testimony of three witnesses:

 Irving’s former girlfriend, a jailhouse informant to whom Irving had

 made inculpatory statements, and Irving’s codefendant who had

 agreed to testify against Irving pursuant to a plea agreement.

¶6    According to the prosecutor, he had received information the

 day before directly from the informant and the codefendant. The

 informant told the prosecutor that Irving had made a throat-

 slashing gesture when the two had crossed paths in the courthouse

 the prior morning and, later that day, another inmate had told the

 informant that if he testified against Irving, a “hit” would be put out

 on him and his family. As for the codefendant, he reported to the

 prosecutor that gang members had threatened him and his mother

 and sister.

¶7    But the alleged threats against Irving’s former girlfriend had

 occurred years earlier. The prosecutor told the court that in


                                    2
 January 2012, a gang member “directly threatened” the girlfriend at

 a gas station, “telling her that were she to testify,” her “life would be

 in danger.”1 The prosecutor also told the court that “Mr. Irving’s

 mother has made a documented statement to [the girlfriend] that

 [she] should not testify.”

¶8    Defense counsel disputed that Irving’s mother had ever

 threatened or intimidated the girlfriend. He explained that just

 after the crime, Irving’s mother had advised the girlfriend not to

 speak to police because “nothing good” would come of it and, in

 fact, after speaking to police, the girlfriend was charged with first

 degree murder.

¶9    The prosecutor implied that all three witnesses were reluctant

 to testify based on the alleged threats. The court made no findings

 with respect to the girlfriend, announcing only that “the courtroom



 1 At trial, Irving’s girlfriend described the encounter differently. She
 said that a former middle school classmate, who was now a Rollin
 60s gang member, approached her at a gas station in 2012. He told
 her there was a “hit” out on her, but that he “was going to pretend
 like he didn’t see [her].” The girlfriend did not testify that the
 classmate threatened her or advised her not to testify at a trial that
 would occur two years later. Her version of events suggests that the
 classmate was unwilling to harm the girlfriend, even though his
 gang had ordered a “hit.”

                                     3
  will be closed for [the girlfriend]. With regard to Mr. Irving’s mother

  because there was this specific interaction with [the girlfriend] and

  any member of the Rollin 60s gang that the People have identified,

  they will not be permitted to come into the courtroom.”

                         B.     Standard of Review

¶ 10   A trial court’s decision to close the courtroom presents a

  mixed question of fact and law. People v. Hassen, 2015 CO 49, ¶ 5.

  We defer to the trial court’s findings of fact absent an abuse of

  discretion but review its legal conclusions de novo. Id.

¶ 11   The People concede preservation with respect to exclusion of

  Irving’s mother from the courtroom.

                           C.    Legal Principles

¶ 12   The United States and Colorado Constitutions guarantee

  criminal defendants the right to a public trial. U.S. Const. amend.

  VI; Colo. Const. art. II, § 16. That right is “one created for the

  benefit of the defendant.” Waller v. Georgia, 467 U.S. 39, 46 (1984)

  (quoting Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979)).

  Still, the right is not absolute. It may yield to competing interests,

  including the government’s interest in inhibiting disclosure of

  sensitive information and the defendant’s right to a fair trial. Id. at


                                      4
  45. The Supreme Court has cautioned, however, that “[s]uch

  circumstances will be rare,” and that “the balance of interests must

  be struck with special care.” Id.

¶ 13   In Waller, the Supreme Court articulated the criteria that

  must be satisfied in order to close the courtroom without violating

  the defendant’s Sixth Amendment rights: (1) the party seeking to

  close the proceeding 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) the trial

  court must make findings adequate to support the closure.

  Hassen, ¶ 9 (citing Waller, 467 U.S. at 48).

        D.   The Exclusion of Irving’s Mother Violated His Sixth
                  Amendment Right to a Public Trial

¶ 14   The People contend, and Irving does not appear to dispute,

  that the need to protect witnesses from intimidation constitutes an

  overriding interest. The weight of authority supports that view.

  See, e.g., United States v. Simmons, 797 F.3d 409, 414 (6th Cir.

  2015) (“Unsurprisingly, courts have also recognized that the need to

  protect the safety of witnesses and to prevent intimidation satisfies



                                      5
  the higher ‘overriding interest’ requirement in the standard Waller

  test.”). However, the proponent of a courtroom closure must

  demonstrate not only an overriding interest but also “a substantial

  probability that the identified interest will be prejudiced by an open

  courtroom.” Hassen, ¶ 12 (quoting People v. Echevarria, 989 N.E.2d

  9, 15-16 (N.Y. 2013)).

¶ 15   Here, the prosecutor only cursorily suggested that the

  girlfriend was hesitant to testify, and he did not link her supposed

  hesitation to the statement the mother had made nearly four years

  earlier. The trial court made no attempt to confirm the suggestion,

  despite the paucity of information offered by the prosecutor.

¶ 16   Some minimal inquiry would likely have yielded contrary

  information. The girlfriend testified about the mother’s statements

  at trial, and her testimony undermined the prosecutor’s

  representations.

¶ 17   The girlfriend did not say that Irving’s mother had ever

  threatened her or had even suggested that she not testify at trial.

  Rather, she recounted that shortly after the crime in 2010, Irving

  and his mother told her “[t]hat the police aren’t no good,” and that

  she “really shouldn’t talk to them” because “[t]hey really aren’t


                                     6
  going to do anything for [her].” She agreed that their “pressure”

  was a factor in her decision not to immediately cooperate with

  police. But according to her testimony, the primary reason she did

  not cooperate with police until a year after the crime was that she

  did not want Irving “to get in trouble” and she was scared that she

  “was going to go to prison.” And in any event, the girlfriend

  ultimately disregarded the mother’s advice not to speak to the police

  and eventually cooperated with the prosecution.

¶ 18   The girlfriend did say that she was reluctant to testify, but her

  reluctance was not based on the alleged threats. When the

  prosecutor asked the girlfriend whether testifying that day was

  “difficult” for her, she acknowledged that it was — not because she

  felt intimidated, but because “[i]t just brings back a lot of

  memories.”

¶ 19   Under these circumstances, where the alleged intimidation

  was based on a single, ambiguous, four-year-old statement that the

  girlfriend later disregarded, the court should not have simply

  accepted the “unsubstantiated statements of the prosecutor” that

  she was reluctant to testify in front of the mother. Guzman v.

  Scully, 80 F.3d 772, 775-76 (2d Cir. 1996) (“Since no testimony was


                                     7
  elicited from the witness alleged to be feeling intimidated, there was

  no ascertainment that the [interest] advanced by the prosecutor

  was . . . ‘likely to be prejudiced.’” (quoting Waller, 467 U.S. at 48));

  see also Simmons, 797 F.3d at 415 (where witness did not indicate

  that he felt threatened or intimidated by three codefendants, nature

  of the “threat” was vague, and court made no effort to question

  witness, court could not have found that overriding interest was

  likely to be prejudiced and therefore partial closure violated the

  defendant’s constitutional rights); cf. Woods v. Kuhlmann, 977 F.2d

  74, 77 (2d Cir. 1992) (partial closure did not violate the defendant’s

  rights where witness told judge that she was reluctant to testify

  because she feared for her safety); Commonwealth v. Martin, 653

  N.E.2d 603, 605 n.4, 606 (Mass. App. Ct. 1995) (partial closure did

  not violate the defendant’s rights where witness testified during

  hearing that some of her previous testimony was not truthful

  because certain spectators, including members of the defendant’s

  family, were “scaring [her] from testifying”).

¶ 20   While the right to a public trial may yield to an interest in

  protecting witnesses from injury or intimidation, “such an

  encroachment on a defendant’s rights requires, at a minimum, that


                                      8
  the trial court first determine whether or not the threat of injury or

  intimidation in fact exists.” State v. Tucker, 290 P.3d 1248, 1259

  (Ariz. Ct. App. 2012) (quoting Commonwealth v. Penn, 562 A.2d 833,

  839 (Pa. Super. Ct. 1989)). This principle applies with even greater

  force when it comes to excluding members of the defendant’s family.

  The Supreme Court has noted a special concern for accommodating

  the attendance at trial of a defendant’s family members. See In re

  Oliver, 333 U.S. 257, 271-72 (1948); see also Vidal v. Williams, 31

  F.3d 67, 69 (2d Cir. 1994) (granting habeas relief where court

  erroneously excluded the defendant’s parents from courtroom

  during testimony of one police officer).

¶ 21   The trial court may have identified an overriding interest, but

  it never found that there was a substantial probability that the

  interest would be prejudiced absent a partial closure. Thus, the

  trial court did not make the finding necessary to satisfy the first

  element of the Waller test. See Simmons, 797 F.3d at 415.

¶ 22   Indeed, the court did not make any specific findings with

  respect to the partial closure during the girlfriend’s testimony,

  instead simply stating, “So the courtroom will be closed for [the

  girlfriend]” based on the mother’s “specific interaction” with the


                                     9
  girlfriend. Waller’s fourth element requires the trial court to make

  findings that are “adequate to support the closure” and “specific

  enough that a reviewing court can determine whether the closure

  order was properly entered.” Waller, 467 U.S. at 45, 48 (quoting

  Press-Enter. Co. v. Superior Court, 464 U.S. 501, 510 (1984)). The

  court’s ruling does not satisfy this requirement.

¶ 23   Although the People suggested we remand for additional

  findings to support the court’s total closure order, they did not

  request a remand with respect to the partial closure orders. In any

  event, we would have rejected that suggestion as it relates to the

  order excluding Irving’s mother. For one thing, “post hoc”

  rationales for closures cannot “satisfy the deficiencies in the trial

  court’s record.” Id. at 49 n.8. But also, on this record, the trial

  court could not make a finding that the girlfriend was too

  intimidated to testify absent exclusion of Irving’s mother. The court

  did not ask the girlfriend any questions, and the girlfriend’s

  testimony would not support such a finding.

¶ 24   When the trial court erroneously deprives the defendant of his

  public trial right, the error is structural. Hassen, ¶ 7. Structural

  errors are not amenable to harmless error analysis because such


                                     10
  errors affect the framework within which the trial proceeds and are

  not errors in the trial process itself. Id. These errors “require

  automatic reversal without individualized analysis of how the error

  impairs the reliability of the judgment of conviction.” People v.

  Flockhart, 2013 CO 42, ¶ 17. Accordingly, we must reverse Irving’s

  convictions and remand for a new trial.2

                              II.   Conclusion

¶ 25   The judgment is reversed. We remand the case to the trial

  court for a new trial.

       JUDGE WEBB and JUDGE WELLING concur.




  2 The People have not argued that any single closure would be so
  trivial as to not implicate Irving’s Sixth Amendment rights. See
  People v. Hassen, 2015 CO 49, ¶ 17 (declining to decide whether to
  adopt the Second Circuit’s “triviality framework” for courtroom
  closure cases). We decline to raise the issue sua sponte.

                                    11
