#26724-a-DG

2014 S.D. 47

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
STATE OF SOUTH DAKOTA,                      Plaintiff and Appellee,

      v.

JOHN A. ROLFE,                              Defendant and Appellant.


                                   ****

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE SEVENTH JUDICIAL CIRCUIT
                  PENNINGTON COUNTY, SOUTH DAKOTA

                                   ****

                  THE HONORABLE THOMAS L. TRIMBLE
                              Judge

                                   ****


MARTY J. JACKLEY
Attorney General

ANN C. MEYER
Assistant Attorney General
Pierre, South Dakota                        Attorneys for plaintiff
                                            and appellee.


ELLERY GREY
Grey Law
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellant.


                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON APRIL 28, 2014
                                            OPINION FILED 07/16/14
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GILBERTSON, Chief Justice

[¶1.]        A jury convicted Defendant and Appellant John Rolfe on three counts

of first-degree rape of a minor and twelve counts of possessing, manufacturing, or

distributing child pornography. In his first appeal, this Court determined that the

trial court improperly closed Rolfe’s trial to the public without making sufficient

findings on the record to support the closure. We remanded the case to allow the

trial court to enter supplemental findings regarding the closure. On remand, Rolfe

moved for a new trial, alleging that remanding for supplemental findings was an

inappropriate remedy. The trial court denied the motion. In this appeal, Rolfe

alleges that the trial court on remand abused its discretion by denying his motion

for a new trial and that the trial court improperly closed his trial in violation of his

Sixth Amendment right to a public trial. We affirm.

                                        FACTS

[¶2.]        The underlying facts of this case are set forth in State v. Rolfe, 2013

S.D. 2, 825 N.W.2d 901 (Rolfe I). Rolfe was convicted of three counts of first-degree

rape of a minor, A.F., and twelve counts of possessing, manufacturing, or

distributing child pornography. The trial court sentenced Rolfe to three concurrent

life sentences without parole for the rape convictions and twelve consecutive ten-

year sentences for the child pornography counts. On the third day of Rolfe’s trial,

the State invoked SDCL 23A-24-6 and requested the courtroom be closed to




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members of the general public during A.F.’s testimony. 1 Over Rolfe’s objection, the

trial court granted the request.

[¶3.]          On appeal, Rolfe argued that the trial court erred when it excluded the

general public from the courtroom during A.F.’s testimony without addressing the

factors required by Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31

(1984). We agreed, stating: “The trial court failed to address all of the Waller

factors and make specific findings regarding the closure of the courtroom.” Rolfe I,

2013 S.D. 2, ¶ 32, 825 N.W. at 911. We remanded for “the trial court to make

specific findings based on Waller, Farmer, and Globe Newspaper Co.’s standards for

closure.” Id. See also Waller, 467 U.S. at 48, 104 S. Ct. at 2216; United States v.

Farmer, 32 F.3d 369, 371-72 (8th Cir. 1994); Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 608, 102 S. Ct. 2613, 2621, 73 L.Ed.2d 248 (1982). Our

decision instructed the trial court to “supplement the record with specific findings

and reasoning” and determine whether there was an overriding interest or

substantial reason to justify total or partial closure. Rolfe I, 2013 S.D. 2, ¶ 26, 825

N.W. at 909.



1.      SDCL 23A-24-6 provides:

               Any portion of criminal proceedings, with the exception of grand jury
               proceedings, at which a minor is required to testify concerning rape of
               a child, sexual contact with a child, child abuse involving sexual abuse,
               or any other sexual offense involving a child may be closed to all
               persons except the parties’ attorneys, the victim or witness assistant,
               the victim’s parents or guardian, and officers of the court and
               authorized representatives of the news media, unless the court, after
               proper hearing, determines that the minor’s testimony should be closed
               to the news media or the victim’s parents or guardian in the best
               interest of the minor.

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[¶4.]        On remand, the trial court held a supplemental hearing concerning the

courtroom closure. After the hearing, the trial court issued extensive findings of

fact and conclusions of law. Based on evidence before the trial court before and

during the trial, the trial court found, inter alia: 1) the courtroom closure during

A.F.’s testimony was a partial closure and a complete closure of the courtroom was

never requested by either party or ordered by the court; 2) at all other times

throughout the trial the courtroom was completely open to the public; 3) present

during A.F.’s testimony were the jurors, members of the media, A.F.’s mother, and

the victim’s assistant, 4) in effect, the order only excluded other members of A.F.’s

family—no civil witnesses or supporters of Rolfe were present at the time the

courtroom was closed, 5) “there was minimal change in the dynamic of the

courtroom when A.F. testified, as compared with the rest of the trial, when the

courtroom was open[;]” 6) prior to trial, the trial court had opportunity in a 404(b)

hearing to observe A.F.’s demeanor and hear many details of the sexual abuse; 7)

the trial court observed that A.F. was fearful of Rolfe and “highly humiliated,

embarrassed, ashamed, and traumatized” by Rolfe; 8) during the 404(b) hearing

A.F. “presented as childlike, innocent, and did not know certain sexual terminology

used by Defense counsel[;]” and 9) A.F. appeared to be fearful of Rolfe’s influence

over her and her family.

[¶5.]        The trial court also adopted as findings of fact much of the

supplemental hearing testimony from A.F.’s counselor. The trial court found that

this additional evidence from the supplemental hearing verified that A.F. was

humiliated and traumatized by the abuse and that A.F. “sought to protect others


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from the details of her abuse.” Specifically, the trial court found that: 1) A.F.

initially refused to acknowledge the sexual abuse and “only began to disclose after

she discovered the Defendant was in jail, would not be getting out anytime soon,

and would be unable to contact her;” 2) A.F. was psychologically immature and did

not have full understanding of sexually explicit terminology; 3) each testifying

member of A.F.’s family felt it was in the family’s best interest that the courtroom

be closed; 4) A.F. did not want to upset family members with the details of her

victimization and was worried about strangers in the courtroom and that she would

not be able to answer questioning as completely in an open courtroom; 5) A.F.’s

counselor supported the closure of the courtroom because A.F. had difficulty

detailing her victimization to anyone and was physically ill from stress and anxiety

at the time of trial; 6) A.F. felt confused, betrayed, unloved, embarrassed, and guilty

like she had done something to deserve the abuse; 7) an open courtroom risked

further emotional and physical harm to A.F.; 8) fewer people in the courtroom made

the courtroom less stressful and distracting to A.F. during her trial testimony; and

9) “an open courtroom, without any closure, during A.F.’s testimony, would not be in

A.F.’s best interests, and would traumatize her further.”

[¶6.]        The trial court concluded that SDCL 23A-24-6 gave the trial court

discretion to weigh competing interests and minimize the number of spectators

while allowing for public observation of the trial through news media. The trial

court also concluded that because the closure was partial, a “substantial reason”

rather than an “overriding interest” had to exist to justify closure. The trial court

weighed the Globe Newspaper Co. and Farmer factors, including the victim’s age,


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psychological maturity and understanding, the nature of the crime, the desires of

the victim, and the interests of parents and relatives. The trial court found that a

substantial reason existed for closing the courtroom and that the Waller factors

supported the partial closure.

[¶7.]        Rolfe appeals, asserting that a new trial was the only appropriate

remedy to cure the error in his original trial. He also argues that the trial court

erred in concluding that sufficient justification existed to close the courtroom to

members of the general public during A.F.’s testimony.

                            ANALYSIS AND DECISION

[¶8.]        I.     Whether remanding for the trial court to make specific findings
                    was an appropriate remedy.

[¶9.]        On appeal, Rolfe first argues that the trial court should have granted

his motion for a new trial because a new trial was the only appropriate remedy to

the trial court error recognized by our holding in Rolfe I. We review a trial court’s

decision to deny a motion for new trial under the abuse of discretion standard.

State v. Zephier, 2012 S.D. 16, ¶ 15, 810 N.W.2d 770, 773 (citation omitted). Rolfe

contends that the violation of his right to a public trial was a structural error

requiring a new trial. In essence, Rolfe argues that this Court erred in Rolfe I by

remanding the case to the trial court to enter specific findings on the Waller factors

after finding that a Sixth Amendment violation had occurred. He argues that the

remand impermissibly gave the State an opportunity to “manufacture an after-the-

fact rationale [for closure] that is constitutionally defensible.” Accordingly, Rolfe

argues that the trial court erred when it denied his motion for a new trial.



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[¶10.]         In response, the State argues that Rolfe’s motion for a new trial was an

improper attempt to resurrect Rolfe’s direct appeal and subvert the remand process

by attacking this Court’s decision in Rolfe I. The State also argues on the merits

that the remedy ordered in Rolfe I was appropriate. 2 However, we need not answer

the question of whether a remedy short of a new trial is sufficient to address the

trial court error we found in Rolfe I. We answered that question in Rolfe I when we

specifically considered what relief would be appropriate and then ordered the trial

court on remand to “make specific findings based on Waller, Farmer, and Globe

Newspaper Co.’s standards for closure.” Rolfe I, 2013 S.D. 2, ¶ 32, 825 N.W.2d at

911.

[¶11.]         We recently addressed the nature of our remand instructions in State

v. Piper:

               Our directives on remittal are clear on the face of our opinions.
               If we affirm, the circuit court shall enter final judgment. Where
               we order reversal without any qualification, as in a general
               remand, “the mandate nullifies the judgment, findings of fact,
               and conclusions of law, and leaves the case standing as if no
               judgment or decree had ever been entered.” Between these two
               extremes is the limited remand, for which our instructions must
               exactly govern. . . . “When the direction contained in the
               mandate is precise and unambiguous, it is the duty of the lower
               court to carry it into execution, and not to look elsewhere for
               authority to change its meaning.”



2.       The State notes a split in authority on whether a remand for post-hoc
         articulation of the Waller factors is an appropriate remedy. Rolfe also
         recognizes this split in authority in his briefs. Compare State v. McRae, 494
         N.W.2d 252, 260 (Minn. 1992) (recognizing remand as an appropriate remedy
         when violation of Waller is claimed), and United States v. Galloway, 937 F.2d
         542, 547 (10th Cir. 1991) (same), with State v. Cox, 304 P.3d 327, 335 (Kan.
         2013) (rejecting remand for further findings as an appropriate remedy).


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2014 S.D. 2, ¶ 11, 842 N.W.2d 338, 343 (citations omitted). Rolfe’s motion for a new

trial was based on the argument that a new trial was the only appropriate

remedy—an argument directly at odds with our decision and instructions on

remand in Rolfe I. Because the trial court was carrying out the precise and

unambiguous mandate of this Court, Rolfe’s argument that the trial court abused

its discretion by denying his motion for a new trial is without merit.

[¶12.]       We uphold our decision in Rolfe I that a remand to the trial court in

order to supplement the record was an appropriate remedy. Accordingly, we

conclude that the trial court did not abuse its discretion by denying Rolfe’s motion

for a new trial.

[¶13.]       II.    Whether there was sufficient justification to order the courtroom
                    closed to members of the general public during A.F.’s testimony.

[¶14.]       Next, Rolfe argues that the trial court erred on remand by finding

there was sufficient justification to close the courtroom to the general public during

A.F.’s testimony. This Court reviews a trial court’s findings of fact for clear error.

Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 9, 804 N.W.2d 388, 392. We review

de novo a trial court’s application of law. Id.

[¶15.]       In Rolfe I, we recognized that to completely close all or portions of a

trial,

             the party seeking closure of the proceeding must (1) “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.” The
             interest and specific findings should be articulated so that a
             reviewing court can make a determination about whether
             closure was proper.

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2013 S.D. 2, ¶ 20, 825 N.W.2d at 907 (alteration in original) (citing Waller, 467 U.S.

at 48, 104 S. Ct. at 2216) (additional citations omitted). In Rolfe I we also

recognized—without explicitly adopting—that the Waller test has been modified by

some federal circuits where the courtroom was only partially closed. Id. ¶ 22

(citations omitted).

[¶16.]         The parties disagree over whether the closure in this case was a

complete closure or whether it was a partial closure. “Whether a closure is total or

partial . . . depends not on how long a trial is closed, but rather who is excluded

during the period of time in question.” United States v. Thompson, 713 F.3d 388,

395 (8th Cir. 2013) (citations omitted). In general, a partial closure “results in the

exclusion of certain members of the public while other members of the public are

permitted to remain in the courtroom.” State v. Garcia, 561 N.W.2d 599, 605 (N.D.

1997) (citation omitted). A partial closure “does not raise the same constitutional

concerns as a total closure, because an audience remains to ensure the fairness of

the proceedings.” United States v. Osborne, 68 F.3d 94, 98 (5th Cir. 1995) (citation

omitted). Although the trial court excluded members of the general public, the trial

court allowed Rolfe, the parties’ attorneys, the victim’s mother and advocate,

courtroom personnel, and representatives of the media to remain in the courtroom. 3

Because the courtroom remained open to the representatives of the media, the



3.       The trial court’s findings highlight the limited impact the closure had on
         public observation of the trial. Only members of A.F.’s own family were
         actually affected by the closure because there were no civil witnesses or
         supporters of Rolfe present at the time the courtroom was closed.


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closure in this case did not “implicate the same secrecy and fairness concerns” as a

total closure. Rolfe I, 2013 S.D. 2, ¶ 22, 825 N.W.2d at 901 (quoting Farmer, 32 F.3d

at 371). Accordingly, we agree with the trial court that only a partial closure of the

courtroom occurred.

[¶17.]       Under the first Waller factor, we look to the interest advanced by the

State to justify closure. In order to justify a complete closure, the party seeking

closure must advance an “overriding interest that is likely to be prejudiced” if the

courtroom were to remain open. Id. ¶ 20 (quoting Waller, 467 U.S. at 48, 104 S. Ct.

at 2216). However, we have not determined the standard to apply when, as in this

case, only a partial closure has been ordered. We now adopt the partial closure

standard recognized in Rolfe I: “‘When a trial judge orders a partial, as opposed to a

total, closure of a court proceeding at the request of one party, a ‘substantial reason’

rather than Waller’s ‘overriding interest’ will justify the closure’ because a partial

closure does not ‘implicate the same secrecy and fairness concerns that a total

closure does.’” Id. ¶ 22 (quoting Farmer, 32 F.3d at 371 (quoting Woods v.

Kuhlmann, 977 F.2d 74, 76 (2d Cir. 1992))); United States v. Petters, 663 F.3d 375,

382-83 (8th Cir. 2011); United States v. Sherlock, 962 F.2d 1349, 1356-58 (9th Cir.

1989); Nieto v. Sullivan, 879 F.2d 743, 749-54 (10th Cir. 1989), cert. denied, 493

U.S. 957, 110 S. Ct. 373, 107 L. Ed. 2d 359 (1989); Douglas v. Wainwright, 739 F.2d

531 (11th Cir. 1984) (per curiam), cert. denied, 469 U.S. 1208, 105 S. Ct. 1170, 84 L.

Ed. 2d 321 (1985)). Thus, we examine whether the State advanced a substantial

reason to justify the closure ordered.




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[¶18.]         The trial court found that protecting the physical and psychological

well-being of the child victim in this case was a substantial reason justifying the

partial closure. 4 In considering closure of a courtroom during a child’s testimony

about sexual abuse, the trial court should consider the “victim’s age, psychological

maturity and understanding, the nature of the crime, the desires of the victim, and

the interests of the parents and relatives.” See Rolfe I, 2013 S.D.2, ¶ 25, 825

N.W.2d at 909 (quoting Globe Newspaper Co., 457 U.S. at 608, 102 S. Ct. at 2621).

The trial made specific findings regarding these considerations. Specifically, the

trial court found that A.F. was quite young—only nine years old when the abuse

began and thirteen at the time of trial—and that A.F. showed psychological

immaturity and lack of understanding of some of the sexual terminology used in the

courtroom. The trial court also noted the prolonged and disturbing nature of the

abuse alleged. The trial court observed that A.F. had difficulty relating her

victimization to others, even to A.F.’s counselor. A.F. feared Rolfe and his

manipulation of her family, and also felt betrayed and confused. At the time of

trial, A.F. was suffering from stress-related illness including vomiting, weight loss,

and trouble concentrating. Additionally, the trial court found that A.F. sought to

protect others from the horrific details of her abuse, and that A.F. was concerned

she would not be able to answer questions as completely in an open courtroom. The




4.       The trial court also found that this concern met the State’s higher burden of
         proving an overriding interest. Because we adopt the “substantial reason”
         standard for partial courtroom closures, we refrain from determining whether
         this justification constitutes an overriding interest.

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trial court also found that the family wished the courtroom to be closed during

A.F.’s testimony.

[¶19.]         Examining the trial court’s findings of fact and conclusions of law, we

are convinced that the trial court adequately addressed the factors we listed in Rolfe

I that would support partial closure of a courtroom during a child’s testimony

concerning child sexual abuse. Given the physical and emotional condition of the

child victim in this case, the nature of the crime, and the wishes of the child and her

family, the trial court concluded that the well-being of the child victim in this case

justified the partial courtroom closure. We agree that there was a substantial

reason in this case to justify the closure.

[¶20.]         As we noted in Rolfe I, even though partial closure may be justified by

a substantial reason, “the rest of Waller’s requirements must be addressed.” Id. ¶

22. Under the second Waller requirement, “the closure must be no broader than

necessary to protect that interest[.]” Id. ¶ 20 (citation omitted). The trial court

concluded that the limited courtroom closure in this case was no broader than was

necessary to protect the substantial interest advanced by the State. The partial

closure in this case was only in effect during A.F.’s testimony. During the rest of

the trial, the courtroom was fully open to the general public. Although the

courtroom was closed to general spectators during A.F.’s testimony, the trial court

concluded that allowing media access to the courtroom during protected societal and

constitutional interests. 5 We agree that the closure in this case was narrowly



5.       See State v. Drummond, 854 N.E.2d 1038, 1055 (Ohio 2006) (noting that
         media presence helps safeguard right to a public trial).

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constructed to protect the interest at stake by reducing the number of general

spectators who would have a negative impact on A.F.’s well-being and her ability to

freely share the details of the crimes. We therefore conclude that the trial court

adequately addressed the second Waller requirement.

[¶21.]       Next, the trial court addressed the third Waller requirement by

considering alternatives to the closure ordered in this case. See Rolfe I, 2013 S.D.2,

¶ 20, 825 N.W.2d at 907 (citation omitted). The trial court indicated that it had

considered leaving the courtroom completely open, completely closing the

courtroom, having the victim testify via closed-circuit television, and having media

and interested members of the public having only video or audio access to the

courtroom. The trial court concluded that leaving the courtroom completely open

was not appropriate given the nature of the crimes and concerns about the victim.

The trial court concluded that having the victim testify via closed-circuit television

potentially violated Rolfe’s right to confrontation. See United States v. Bordeaux,

400 F.3d 548, 554 (8th Cir. 2005) (“[A] ‘confrontation’ via two-way closed circuit

television is not constitutionally equivalent to a face-to-face confrontation.”). The

trial court also concluded that closing the courtroom to the entire public except

through audio or visual access was a broader closure than that ordered, and that it

held greater potential to prejudice Rolfe’s right to a public trial. Given these

considerations outlined by the trial court, we are convinced that the trial court

adequately weighed alternatives to the closure ordered in this case.

[¶22.]       Turning to the final Waller requirement, we note that the trial court on

remand followed our directive in Rolfe I to make findings of fact and conclusions of


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law regarding the Waller, Globe Newspaper Co., and Farmer standards for court

closure. Armed with these extensive findings of fact and conclusions of law in this

appeal, we now conclude that the trial court record adequately supports the closure

ordered in this case.

                                   CONCLUSION

[¶23.]       The remedy ordered by this Court in Rolfe I was appropriate to cure

the constitutional violation alleged. Therefore, the trial court did not abuse its

discretion by denying Rolfe’s motion for a new trial. Upon reviewing the trial

court’s findings of fact and conclusions of law, we conclude that the partial closure

ordered in this case was appropriate. Accordingly, we affirm.

[¶24.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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