MAINE SUPREME JUDICIAL COURT                                                          Reporter of Decisions
Decision: 2014 ME 125
Docket:   And-13-398
Argued:   September 10, 2014
Decided:  November 6, 2014

Panel:          SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, JABAR, and HJELM, JJ.


                                      DANIEL P. ROBERTS

                                                     v.

                                         STATE OF MAINE

SILVER, J.

         [¶1]     Daniel P. Roberts appeals from an order of the Superior Court

(Androscoggin County, Wheeler, J.) denying his petition for post-conviction

review. Because we conclude that Roberts’s Sixth Amendment right to a public

trial was not violated during any stage of his 2007 murder trial, we affirm.

                                 I. FACTUAL BACKGROUND

         [¶2] In December 2005, Roberts was indicted for the murder of Melissa

Mendoza, the mother of his child.1 Roberts pleaded not guilty, and the case


   1
     Roberts and Mendoza had a daughter who was about two years old at the time of the killing. The
couple was engaged in a contentious custody dispute regarding the child. Mendoza, who lived in
California, had previously taken the child out of the state in violation of a court order but had returned to
Maine and was staying in a local hotel while she attempted to have the court’s order modified. Mendoza
made numerous phone calls to Roberts on the night of August 14, 2005, and into the early morning hours
of August 15, 2005. Around 1:30 a.m., she arrived at Roberts’s home and entered through a garage door.
Roberts, who was waiting for her in the garage, shot her in the back of the head as she moved toward the
house. He told police—and his defense team argued at trial—that he shot Mendoza in self defense and in
defense of his daughter because Mendoza had stolen one of his handguns, was armed with it when she
entered the garage, and threatened to kill or kidnap the child.
2

proceeded to trial in February 2007.                 The jury returned a guilty verdict on

February 27, 2007.           In March 2007, Roberts filed a motion to dismiss the

indictment and vacate the conviction based on alleged misconduct by grand jurors;

the motion was denied. On June 29, 2007, Roberts was sentenced to fifty-five

years in prison and was ordered to pay $4500 as restitution for Mendoza’s funeral

expenses. In August 2007, Roberts appealed.2 We affirmed the conviction on

July 8, 2008. See State v. Roberts, 2008 ME 112, 951 A.2d 803.

         [¶3]    Roberts filed a pro se petition for post-conviction review on

July 2, 2009, alleging that he received ineffective assistance from trial counsel. He

submitted an amended petition through counsel in December 2010, and he filed a

supplemental amended petition in March 2011. An evidentiary hearing was held in

the Superior Court in December 2011.

A.       Jury Selection

         [¶4]   Prior to jury selection, Roberts’s defense counsel filed a motion

in limine requesting that questioning of individual jurors take place outside of the

     2
      On appeal, Roberts argued that the trial court improperly admitted a photograph showing Mendoza
smiling and kissing the child, affidavits attached to Mendoza’s request for a protection from abuse order
against Roberts, and evidence that Mendoza’s rental vehicles and the vehicles of a visit supervisor were
vandalized shortly before the murder. State v. Roberts, 2008 ME 112, ¶¶ 22, 23, 27, 31, 951 A.2d 803.
Roberts also argued that the court improperly excluded evidence of a prior consistent statement by Jaime
Bolduc, a witness who testified that Mendoza told her that if she had a gun, she would kill Roberts.
Id. ¶¶ 36-37. Roberts further argued that the jury instructions impermissibly lowered the mens rea
element and that the State should have been required to prove that Roberts actually knew that Mendoza
was not about to use deadly force or commit a kidnapping. Id. ¶ 40. Finally, Roberts argued that the
State engaged in prosecutorial misconduct by suggesting in its closing argument that the theory that
Mendoza was going to kidnap the child had been recently fabricated by the defense. Id. ¶ 44.
                                                                                  3

presence of other jurors. He also asked that several non-attorney consultants, a

second attorney, and up to two trial assistants be permitted to attend voir dire.

Roberts also requested that he be permitted to personally address prospective jurors

during the voir dire process.

      [¶5] The court addressed the process for conducting voir dire during a

motion hearing on January 30, 2007, at which Roberts was present and represented

by counsel. The court explained that general voir dire would be conducted in open

court and that jurors who had been exposed to information about the case or

expressed a possible bias would then be questioned individually. Topics to be

explored during individual voir dire included, among other things, jurors’ views

regarding drugs and alcohol, whether they had any personal experience with

domestic violence, and whether they had previous experience in the court system

as a party, witness, complaining witness, or victim.

      [¶6] The court indicated, “[T]he question is whether [the individual voir

dire is] done at sidebar or whether it’s done in chambers,” to which defense

counsel responded, “I would prefer that it be done in chambers, Your Honor.”

Defense counsel further stated that Roberts was entitled to be present in chambers

during the individual voir dire and said, “I would also ask for other people to be

present as well.” The court acknowledged that defense counsel had previously

requested that “a number of people” be present during individual voir dire but
4

expressed concern about having enough space in chambers to accommodate them.

Further, the court explained, “I don’t believe that all of that is necessary. What I

will permit is one of your jury selection people to attend with you . . . and one

co-counsel.” Defense counsel said, “We don’t object to obviously having them in

chambers, and I don’t object to limiting it to my co-counsel[,] one juror counselor

and my client.”

      [¶7] Consequently, during jury selection, individual voir dire was conducted

in chambers with no members of the public present; defense counsel was

accompanied by co-counsel and one jury-selection consultant. The court advised

each of the forty-nine prospective jurors questioned in chambers that everyone

present had an obligation to keep confidential any information that was divulged

during the individual voir dire. At no time did Roberts object to this procedure.

B.    Courthouse Screening

      [¶8]   During the trial, a sign was posted at the front entrance of the

courthouse indicating that anyone wearing colors, logos, or insignia associated

with any fraternal organization would not be allowed inside. The purpose of this

screening policy was to prevent the jury from being exposed to any suggestion that

Roberts was affiliated with the Hell’s Angels. Roberts did not object to this

procedure; on the contrary, it was implemented with his knowledge and consent.

The court informed counsel that it was implementing the process in order to
                                                                                 5

prevent the colors or insignia from being displayed anywhere that the jury could

see them, to which defense counsel jokingly responded that he would “strangle

anyone [who] did that anyway.”

      [¶9] One day while the trial was in session a judicial marshal asked a

Roberts supporter to remove his T-shirt before entering the courthouse because the

shirt displayed a Harley Davidson logo. The supporter removed the shirt, turned it

inside out, and put it back on; he was then permitted to enter the courthouse. No

members of the public were excluded as a result of the screening policy.

C.    Limitations on Entry to the Courtroom During Trial

      [¶10] Defense counsel requested during a conference in chambers that the

victim’s family be removed from the courtroom during the presentation of certain

evidence⎯specifically, the playing of a recording of a phone call between the

victim and Roberts⎯because they were holding each other and visibly crying into

handkerchiefs, which defense counsel feared could unfairly prejudice Roberts.

The court declined to ask them to leave the courtroom but did consider various

options, including having a victim advocate ask them to be more aware of their

behavior and possibly asking them to move to a less visible location in the

courtroom. The court concluded, however, that the best option would be to simply

adjourn for the day, noting that Roberts’s family and friends had engaged in

distracting behavior as well, including tapping other spectators on the shoulder as
6

they got up to leave the courtroom during witnesses’ testimony. Once the jury was

excused, the court addressed the spectators, saying,

      I would like everyone to stay in the courtroom just for a minute so I
      can give some general instructions about courtroom demeanor, both
      during sessions and in between sessions. So I’m going to ask that
      people remember they’re in a courtroom, they’re in a courthouse.
      Their behavior should be in accordance with . . . the solemnity that
      should be attached to a courthouse. . . . I’m asking all of you here
      who are attending the trial on a daily basis that you treat each other
      civilly, and I do not want any eruptions or anything else to happen. If
      that does happen I will have to remove people from the courtroom. . . .
      I treat the court with utmost respect, and I expect anyone who is here
      to do the same.

      [¶11] Later in the trial, the court again discussed with counsel the problem

of distracting activity occurring in the audience during the presentation of

evidence. The court addressed both defense counsel and the State at sidebar,

saying,

      I am concerned, and I could speak to the attorneys or I could speak to
      the whole audience after the jury leaves, but I would ask each of you
      to talk to your sort of fan clubs back there. During the tape recording
      [of the phone call between the victim and Roberts] your victim
      advocate was not there . . . and the [victim’s] mother was having a
      difficult time. . . . On your side a young blond woman came in and
      acted sort of like this was a wedding or something. . . . [S]he gave
      [Roberts’s father] a big hug and then she gave a woman across the
      front of the bench a big hug and she turned and waved to other people.
      I think you just need to talk to the principal people who are here and
      make sure they reign in their behavior. . . . I’ll ask each of you to talk
      to the people . . . about the right of the jury to make a decision . . .
      independent of being affected by what members of the audience are
      doing.
                                                                                   7

      [¶12] At some point during the trial, judicial marshals began requiring

spectators to wait until a break in the presentation of evidence before entering the

courtroom. Defense counsel was not specifically made aware that this procedure

was being implemented. One Roberts supporter explained that she was excluded

from the courtroom while “proceedings [were] going on” because “the judge had

stated one day in court that too many people were going in and out and it was

distracting people.” According to the Roberts supporter, the trial judge made this

statement while both Roberts and the jury were absent from the courtroom.

Several of Roberts’s supporters testified at the post-conviction hearing that they

were not permitted to enter the courtroom while witnesses were testifying.

Spectators who arrived after the trial had begun for the day were required to wait in

a side room until there was a break in the proceedings. Similarly, spectators who

left the courtroom during testimony were not permitted to reenter until there was a

break. The time they were required to wait varied from only a few minutes to

more than twenty minutes.

D.    The Return of the Verdict

      [¶13] On its first day of deliberations, the jury asked for read-backs of

several portions of testimony and reviewed videos and recordings that had been

offered during the trial.    After rehearing certain evidence, the jury resumed

deliberations at 4:26 p.m. The record does not reflect at what time the jury notified
8

the court that it had reached a verdict. At 4:54 p.m., the jury returned to the

courtroom. It announced its verdict, and the court excused the jury at 4:58 p.m.

      [¶14] Several of Roberts’s supporters, upon being informed that the jury

had reached a verdict, went to the courthouse and tried to get in. They believed

that the court would allow thirty minutes for spectators to arrive before having the

jury announce the verdict.      When they arrived, however, the doors to the

courthouse were locked. A court officer explained at the post-conviction hearing

that a county employee typically locks the courthouse doors at 5:00 p.m., and that

he recalled seeing an employee lock the door around that time on the day of the

verdict. The Roberts supporters who testified that they were unable to get in were

unsure of what time they arrived at the courthouse. They observed members of the

victim’s family being escorted out of the courthouse after the verdict had been

announced.

                       II. PROCEDURAL BACKGROUND

      [¶15] On August 17, 2012, the court issued a forty-six-page order denying

Roberts’s petition. With regard to jury selection, the court concluded that defense

counsel had waived any objection to the closure on Roberts’s behalf. The court

found that this was a tactical decision by defense counsel that did not constitute

ineffective assistance of counsel. The court concluded that Roberts had failed to

show cause for failing to object at trial and for failing to raise the issue on direct
                                                                                   9

appeal and that, therefore, he was precluded from raising the issue on

post-conviction review. With respect to the screening procedure, the court found

that Roberts consented to the process through counsel and had not shown cause for

his failure to object. Additionally, the court noted that the screening process was

undertaken in order to protect Roberts’s interests by preventing the jury from being

exposed to any prejudicial suggestion that he was affiliated with the Hell’s Angels.

       [¶16] The court further concluded that the exclusion of late arrivals from the

courtroom did not amount to even a partial closure. The court went on to explain

that, even assuming that the restrictions on entry during testimony did amount to a

partial closure, such a closure was too trivial to implicate Roberts’s Sixth

Amendment rights. Finally, the court found as fact that the courthouse doors were

not locked before the verdict was announced at 4:54 p.m. and that those spectators

who were unable to enter must have arrived shortly after 5:00 p.m.

       [¶17] On August 12, 2013, the court issued a supplemental order to address

arguments it had overlooked in its previous order, and again denied Roberts’s

petition.   Roberts appealed, and we issued an order granting a certificate of

probable cause and permitting full review on two issues: whether the

post-conviction court erred in determining that the trial court did not violate

Roberts’s right to a public trial when it closed portions of voir dire, and whether
10

the post-conviction court erred in determining that no courtroom closure occurred

during the trial.

                                  III. DISCUSSION

       [¶18] Decisions whether to close court proceedings to the public frequently

involve the balancing of three important interests: the First Amendment rights of

the press and members of the public, the defendant’s right to a public trial, and the

interest of both the State and the defendant in ensuring an impartial jury and a fair

trial. See In re Maine Today Media, Inc., 2013 ME 12, ¶ 3, 59 A.3d 499. This

appeal requires us to weigh Roberts’s personal right to a fair and public trial with

the trial court’s responsibility to manage the proceedings and maintain order. As

this case demonstrates, these interests are not necessarily incompatible. On the

contrary, the trial court’s management of the courtroom is undertaken with the goal

of ensuring the fairness and impartiality of the trial.

       [¶19] The Sixth Amendment to the United States Constitution provides, “In

all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial” by an impartial jury. The Sixth Amendment’s public trial guarantee “is for

the benefit of the accused; that the public may see he is fairly dealt with and not

unjustly condemned, and that the presence of interested spectators may keep his

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

functions.” Waller v. Georgia, 467 U.S. 39, 46 (1984) (quotation marks omitted);
                                                                                   11

see also Gannett Co. v. DePasquale, 443 U.S. 368, 380 (1979); In re Oliver,

333 U.S. 257, 270 n.25 (1948). The goals advanced by the public-trial guarantee

are “1) to ensure a fair trial; 2) to remind the prosecutor and judge of their

responsibility to the accused and the importance of their functions; 3) to encourage

witnesses to come forward; and 4) to discourage perjury.”          Braun v. Powell,

227 F.3d 908, 918 (7th Cir. 2000) (quotation marks omitted).             With these

principles in mind, we address each of Roberts’s arguments.

A.    Conducting Voir Dire in Chambers

      [¶20] We must first determine whether Roberts is procedurally defaulted

from raising this issue on post-conviction review.       The post-conviction court

concluded that defense counsel effectively waived Roberts’s Sixth Amendment

rights relating to the voir dire of individual jurors, and that doing so did not

constitute ineffective assistance of counsel.      Roberts argues that no waiver

occurred, that trial counsel’s failure to object constituted ineffective assistance of

counsel, and that appellate counsel’s performance was similarly deficient for

failing to raise the issue on appeal.

      [¶21] We review questions of law de novo, Alexandre v. State, 2007 ME

106, ¶ 14, 927 A.2d 1155, and “apply a deferential standard of review to the

findings of a post-conviction court.” Francis v. State, 2007 ME 148, ¶ 5,

938 A.2d 10. Generally, errors at trial that could have been raised on direct appeal
12

may not be raised in an action for post-conviction review. 15 M.R.S. § 2128(1)

(2013). However, “[t]he assertion of a right under the Constitution of the United

States may not be held waived by its nonassertion at trial or on appeal if the

assertion of the right would be held not waived in a federal habeas corpus

proceeding brought by the convicted or adjudicated person pursuant to

[28 U.S.C.A. §§ 2241-2254].” 15 M.R.S. § 2128-A (2013). Thus, we turn to

federal case law to determine whether Roberts’s Sixth Amendment claim would be

deemed waived in a federal habeas corpus proceeding.

         [¶22] Typically, a habeas petitioner is entitled to collateral relief on a Sixth

Amendment claim only if he can show both (1) cause for having procedurally

defaulted his claim, and (2) actual prejudice resulting from the alleged error.

Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). Because a total closure of

the courtroom during jury selection is a structural error,3 however, a petitioner is

not required to demonstrate actual prejudice resulting from such a closure.

Owens v. United States, 483 F.3d 48, 64 (1st Cir. 2007). Thus, we will consider




     3
      As the post-conviction court noted, it remains an open question whether a partial courtroom closure
is a structural error. A partial closure occurs where “courtroom access is restricted but some members of
the public are permitted to attend”; a total courtroom closure occurs where “all members of the public
[are] excluded during some phase of the trial.” Bucci v. United States, 662 F.3d 18, 23 (1st Cir. 2011);
see also Judd v. Haley, 250 F.3d 1308, 1315 (11th Cir. 2001) (“Nowhere does our precedent suggest that
the total closure of a courtroom for a temporary period can be considered a partial closure, and analyzed
as such.”). Here, a total closure⎯albeit a brief one⎯occurred when the court conducted individual voir
dire in chambers.
                                                                                  13

the merits of Roberts’s argument that his Sixth Amendment rights were violated

during jury selection if he can demonstrate cause for his procedural default.

      [¶23] A showing that counsel was constitutionally ineffective is sufficient to

show cause for failure to raise an issue at trial and may allow a petitioner for

post-conviction review to avoid a procedural default. See Owens, 483 F.3d at 63.

“To prove ineffective assistance of counsel, a defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 57 (citing

Strickland v. Washington, 466 U.S. 668, 687-88 (1984)) (quotation marks omitted).

“The question is whether the counsel’s performance fell within the wide range of

reasonable professional assistance that a competent criminal defense counsel could

provide under prevailing professional norms.” Bucci, 662 F.3d at 29-30 (quotation

marks omitted). The Strickland test “compels us to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” Morales v. United States, 635 F.3d 39, 44 (2d Cir. 2011)

(quotation marks omitted).     “We will not overturn a post-conviction court’s

determination as to the effectiveness of trial counsel unless it is clearly erroneous

and there is no competent evidence in the record to support it.” Gauthier v. State,

2011 ME 75, ¶ 13, 23 A.3d 185 (quotation marks omitted).

      [¶24] “[T]he right to an open trial may give way in certain cases to other

rights or interests. . . . Such circumstances [are] rare, however, and the balance of
14

interests must be struck with special care.” Waller, 467 U.S. at 45. The United

States Supreme Court has articulated four criteria that a trial court must find are

met before it may exclude the public from proceedings in a criminal trial: (1) “the

party seeking to close the 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.”

Id. at 48.

       [¶25] For purposes of the Sixth Amendment, jury selection is an essential

part of “the trial.” Presley v. Georgia, 558 U.S. 209, 213 (2010) (“[T]he Sixth

Amendment right to a public trial extends to the voir dire of prospective jurors.”);

State v. Pullen, 266 A.2d 222, 228 (Me. 1970), overruled on other grounds by

State v. Brewer, 505 A.2d 774 (Me. 1985); see also Owens, 483 F.3d at 63 (“Jury

selection is, of course, a crucial part of any criminal case.”). A trial court is

constitutionally required to consider alternatives to closure before it may exclude

members of the public from voir dire. Press-Enterprise Co. v. Superior Court,

464 U.S. 501, 511 (1984).

       [¶26] We are nevertheless unpersuaded by Roberts’s contention that trial

counsel acted incompetently by requesting that individual voir dire be conducted in

chambers. This appeal concerns only Roberts’s right to a fair and public trial; it
                                                                                     15

does not implicate the rights of the press or the public. Because the right at issue is

personal to Roberts, it can be forfeited.             See Henderson v. United States,

133 S.Ct. 1121, 1126 (2013) (“[N]o procedural principle is more familiar to this

Court than that a constitutional right . . . may be forfeited in criminal . . . cases by

the failure to make timely assertion of the right . . . .”); see also Fryetag v. Comm’r

of Internal Revenue, 501 U.S. 868, 895 (1991) (Scalia, J., concurring) (“To

abandon that principle is to encourage the practice of ‘sandbagging’: suggesting or

permitting, for strategic reasons, that the trial court pursue a certain course, and

later—if the outcome is unfavorable—claiming that the course followed was

reversible error.”). It is true that a “presumption of openness” attaches to every

stage of a criminal trial, including jury selection, and that the presumption 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.”

Press-Enterprise Co., 464 U.S. at 510.         The defendant’s right to a fair trial,

however, is one of the several interests that can justify overriding the defendant’s

interest in a public trial. Waller, 467 U.S. at 45.

      [¶27] As the post-conviction court found, trial counsel’s approach was

entirely consistent with the prevailing professional norms in Maine’s criminal

defense bar and trial courts at the time. See, e.g., State v. Moody, 486 A.2d 122,

126 (Me. 1984) (concluding that the trial court “abused [its] discretion in declining
16

to ask [certain] questions in a private setting”).        Further, “while criminal

defendants are entitled to competent representation, the Constitution does not

[e]nsure that defense counsel will recognize and raise every conceivable

constitutional claim.” Bucci, 662 F.3d at 31 (quotation marks omitted). This is

particularly true where, as here, pressing a constitutional claim is unlikely to

further the interests of the accused. See id. at 31-32 (“[C]ompetent counsel could

have knowingly and reasonably declined to raise the constitutional issue . . .

because doing so would be a waste of the defense’s time, energy and resources . . .

and [the defendant’s] interests would be best served by moving the trial along and

focusing on the immediate task of jury selection.”); Morales, 635 F.3d at 44-45 (“It

would not be unreasonable for a defense attorney . . . to believe that [a defendant’s]

trial had been unaffected notwithstanding the public’s absence.”). The potential

jurors in this high-profile trial were to be questioned about personal and potentially

sensitive topics, including their views on and any prior experience with domestic

violence. Under these circumstances, the trial court’s finding that Roberts’s trial

counsel made a reasonable tactical decision to agree to the process of conducting

certain aspects of voir dire in chambers cannot be seen as clearly erroneous. On

the contrary, trial counsel’s decision represented a thoughtful and practical

strategic choice designed to elicit the most candid responses from potential jurors,
                                                                                     17

thus providing the defense team with the information it needed to select a jury in a

manner that would best protect Roberts’s interests.

      [¶28]    Because we conclude that trial counsel’s performance was not

ineffective, we likewise conclude that appellate counsel did not provide ineffective

assistance by failing to raise Roberts’s Sixth Amendment claim on direct appeal.

See Morales, 635 F.3d at 45. Roberts has failed to show cause for failing to raise

this issue on appeal; therefore, he cannot raise it now on post-conviction review.

B.    The Courthouse Screening Procedure

      [¶29]   Roberts next contends that the prohibition on apparel displaying

certain logos implicated his Sixth Amendment rights to such an extent that a new

trial is constitutionally required.    Roberts argues that the screening process

constituted at least a partial closure of the courtroom, which is only permissible if

the trial court makes appropriate factual findings on the record. The State argues

that no closure occurred because no members of the public were excluded and that

the restriction was a reasonable measure designed to protect Roberts’s right to a

fair trial. We agree with the State.

      [¶30] In discussing the public’s right to attend criminal trials, the United

States Supreme Court has indicated that a trial judge may, “in the interest of the

fair administration of justice, impose reasonable limitations on access to a trial,”

and that “[t]he question in a particular case is whether that control is exerted so as
18

not to deny or unwarrantedly abridge the opportunities for the communication of

thought and the discussion of public questions immemorially associated with resort

to public places.” Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 581 n.18

(1980) (alterations omitted) (quotation marks omitted). Thus, not every restriction

on entry to court proceedings constitutes a closure. Commonwealth v. Maldonado,

2 N.E.3d 145, 151-52 (Mass. 2014). Where there is an articulable risk of witness

intimidation or courtroom disruption, or some other comparable reason, the

imposition of conditions on entry to the courtroom is permissible so long as the

conditions are “no broader than needed to accomplish their purpose.” Id. at 154.

Thus, for example, several jurisdictions have concluded that no constitutional

closure occurs when spectators are required to provide identification prior to

attending a trial. See, e.g., id. at 153; Williams v. State, 690 N.E.2d 162, 168-69

(Ind. 1997) (establishing that a Sixth Amendment violation occurred requires

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

public from attending”); State v. Cross, 771 N.W.2d 879, 882 (Minn. 2009) (“A

voluntary decision by a member of the public to avoid courtroom security

procedures designed merely to record the identities of persons attending a hearing

does not constitute a ‘closure’ for purposes of the Sixth Amendment right to a

public trial.”).
                                                                                                         19

        [¶31] Here, the policy of prohibiting spectators from wearing certain types

of apparel in the courthouse was justified by the trial court’s concern for

maintaining security and order in the courtroom, as well as its desire to shield the

jury from prejudicial information about Roberts’s associations that could

compromise the fairness and integrity of the trial. The restriction was no broader

than necessary to accomplish these purposes, see Maldonado, 2 N.E.3d at 154, as

evidenced by the fact that only one spectator was affected but was ultimately

permitted to enter the courthouse after agreeing to turn his shirt inside out.4 The

screening procedure represented a reasonable exercise of the court’s ability to exert

control over the courtroom, see Richmond Newspapers, Inc., 448 U.S. at 581 n.18,

especially in light of defense counsel’s knowledge of and agreement to the

measures. See United States v. Acosta-Colon, 741 F.3d 179, 187 (1st Cir. 2013)

(declining to find a constitutional violation where counsel failed to object to trial

court’s decision to exclude a group of spectators wearing T-shirts expressing

support for criminal defendant). Because the screening procedure constituted a

reasonable condition on entry to the courtroom, it did not rise to the level of a

constitutional closure.


   4
      Roberts argues that the screening policy was enforced exclusively against his supporters. Although
the record reflects that the only spectator affected by the policy was a Roberts supporter, there is nothing
in the record to support the suggestion that the procedure was designed to exclude Roberts’s friends and
family, or that the judicial marshals enforced the policy only against Roberts supporters and not against
members of the general public.
20

C.       Limitations on Entry to the Courtroom During Trial

         [¶32]    Roberts further argues that the trial court’s decision to prohibit

members of the public from entering the courtroom during witness testimony

constituted a partial closure unsupported by any appropriate findings. Again, we

conclude that no closure⎯and thus, no constitutional violation⎯occurred.

         [¶33] We reiterate that the Sixth Amendment does not prohibit a trial court

from imposing reasonable limitations on the public’s access to the courtroom.

See Richmond Newspapers, Inc., 448 U.S. at 581 n.18; Maldonado, 2 N.E.3d at

151-52. Here, although certain members of the public were barred from entering

the courtroom at certain times, they were not permanently excluded. Moreover,

the public at large was not excluded; anyone who was inside the courtroom,

including family members and members of the press, was permitted to remain.5

That some members of the public were unable or unwilling to arrive on time does

     5
      We note that trial courts statewide and in other jurisdictions consistently take a similar approach to
minimizing distractions in the courtroom during an essential part of any criminal trial⎯the reading of
jury instructions. Were we to accept Roberts’s argument that precluding spectators from entering the
courtroom during certain portions of the trial constitutes a closure within the meaning of the Sixth
Amendment, we would be forced to conclude also that the longstanding and accepted practice of closing
the courtroom doors while the jury is being charged violates the constitution. Such a result is untenable
and is not compelled by the Sixth Amendment’s public trial guarantee. See, e.g., State v. Brown,
815 N.W.2d 609, 617-18 (Minn. 2012) (rejecting argument that locking doors during jury instructions
violated Sixth Amendment because “[t]he trial remained open to the public and press already in the
courtroom and the trial court never ordered the removal of any member of the public, the press, or the
defendant’s family”); Davidson v. State, 591 So.2d 901, 903 (Ala. Crim. App. 1991) (“An order to lock
the door for such an interval as to prevent disruption in the courtroom is properly a matter for the trial
court’s discretion and does not prevent a public trial in the sense of constitutional requirements.”); People
v. Colon, 521 N.E.2d 1075, 1079 (N.Y. 1988) (“Locking the doors during the charge to avoid
disruption⎯allowing those already present to remain⎯does not seek to exclude the public or frustrate the
salutary purposes of public scrutiny.”).
                                                                                    21

not render the restriction on entry a closure for constitutional purposes. See Cross,

771 N.W.2d at 882. This is not a situation that raises concerns about a trial being

conducted in secret. See Press-Enterprise Co., 464 U.S. at 508 (“The value of

openness lies in the fact that people not actually attending trials can have

confidence that standards of fairness are being observed; the sure knowledge that

anyone is free to attend gives assurance that established procedures are being

followed and that deviations will become known.”). Rather, the restriction on

courtroom entry during witness testimony reflects the trial court’s reasonable

response to what the record reveals was an ongoing problem during the first few

days of the trial. Here, the trial court raised the issue of spectators’ distracting

behavior with counsel at least twice and addressed the spectators directly about

their conduct. It appears that only when these measures proved ineffective did the

court resort to restricting courtroom access. Under these circumstances, the trial

court’s decision constituted a reasonable exercise of its power to control the

proceedings and did not amount to a closure of constitutional dimensions.

Accordingly, it did not affect Roberts’s Sixth Amendment right to a public trial.

D.    The Return of the Verdict

      [¶34] Finally, Roberts contends that the doors to the courthouse were locked

before the jury returned its verdict, constituting a closure in violation of the Sixth

Amendment. The post-conviction court found as fact that the doors were not
22

locked prior to the announcement of the verdict, and we review that finding only

for clear error. See McGowan v. State, 2006 ME 16, ¶ 14, 894 A.2d 493; see also

Lamarre v. State, 2013 ME 110, ¶ 14, 82 A.3d 845 (a post-conviction court’s

finding is clearly erroneous only if “there is no competent evidence in the record to

support it” (quotation marks omitted)).

         [¶35]    Contrary to Roberts’s assertions, ample evidence supports the

post-conviction court’s finding that the courthouse doors were not locked until

after the verdict had been announced. The record reveals that the jury returned to

the courtroom at 4:54 p.m. after it had completed its deliberations. The record also

contains evidence that the courthouse doors were typically locked at 5:00 p.m., and

the evidence did not compel a finding that they were locked any earlier than usual

on the day the verdict was reached. Although several witnesses testified that they

were unable to enter the courthouse when they arrived to hear the verdict, none of

them could recall what time it was when they arrived. The post-conviction court

acted well within its prerogative as a fact-finder by concluding that the doors were

locked at the usual time of 5:00 p.m. and that the public was not excluded from the

announcement of the verdict.6 The post-conviction court properly concluded that

Roberts’s Sixth Amendment right to a public trial was not violated.

     6
     The record reflects that certain members of the press, as well as members of Mendoza’s family,
were escorted out of the courthouse sometime after the verdict was announced. The post-conviction court
also mentioned in its order that members of Roberts’s family were present in the courtroom when the
                                                                                                     23

        The entry is:

                           Judgment affirmed.



On the briefs:

        Rosemary Curran Scapicchio, Esq., Boston, Massachusetts, and
        Verne E. Paradie, Jr., Esq., Paradie Sherman Walker &
        Worden, Lewiston, for appellant Daniel Roberts

        Janet T. Mills, Attorney General, and William R. Stokes, Dep.
        Atty. Gen., Office of the Attorney General, Augusta, for
        appellee State of Maine


At oral argument:

        Rosemary Curran Scapicchio, Esq., for appellant Daniel
        Roberts

        Donald Macomber, Asst. Atty. Gen., Office of the Attorney
        General, Augusta, for appellee State of Maine



Androscoggin County Superior Court docket number CR-2009-685
FOR CLERK REFERENCE ONLY




verdict was read. This finding appears to be clearly erroneous, as uncontroverted testimony at the
post-conviction review hearing indicated that Roberts’s family members were among those
unsuccessfully attempting to gain entry to hear the verdict. This apparent error is immaterial, however,
because the presence or absence of Roberts’s family members had no bearing on the court’s finding that
the doors were locked after the verdict had already been announced.
