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State v. Dixon6/3/2005
xt item is additional peremptory challenges. I think I have accommodated that as well in that we have provided for additional alternate jurors when we bring that second jury panel in to choose from in the event that we do have some leave. So, I have considered and adopted that standard as well."
Although it does not appear that the trial court expressly considered the specific possibility of swearing in Griffin's jury before hearing the Dixon verdicts, as defendant now advocates, in the extensive findings made by the trial court it is apparent that the required consideration was given to whether the closure was necessitated by a compelling governmental interest. The outline of the trial court's analysis was drawn from the reasonable alternative means noted by this court in Kansas City Star Co. v. Fossey, 230 Kan. 240, 249, 630 P.2d 1176 (1981): "'(1) continuance, (2) severance, (3) change of venue, (4) change of venire, (5) intensive voir dire, (6) additional peremptory challenges, (7) sequestration of the jury, and (8) admonitory instructions to the jury.'" The court was quoting from the commentary to Fair Trial and Free Press: Standard 8-3.2, which was adopted by the American Bar Association's Standing Committee on Association Standards for Criminal Justice in August 1978 and adopted by this court in July 1981. 230 Kan. at 247-48, 251.
Upon concluding that closure is necessitated by a compelling interest, the Waller standard requires the trial court to narrowly tailor the closure order to serve that interest. In this case, the trial judge closed the courtroom for the reading of the verdicts, but announced his intention to disclose the information the following day when Griffin's jury was in place. There is no suggestion by the parties that his intention was not carried out.
This case is readily distinguishable from the New York cases relied on by Dixon. In both, the trial court closed the courtroom without inquiring whether there was any reason to do so. In Martinez, the New York Supreme Court stated that
"the failure to record any purported compelling reasons justifying closure precludes a proper review by this court and mandates a reversal of defendant's conviction. [Citations omitted.] A courtroom may be closed where an overriding interest to preserve higher values is demonstrated (see, Waller v. Georgia, 467 U.S. 39; [citation omitted]). However, this interest must be articulated along with findings that are specific enough to permit a reviewing court to determine whether closure was warranted. [Citation omitted.]" 172 App. Div. 2d at 429.
In the present case, in contrast, the trial court went to great lengths to articulate the interest to be served by closure as well as its findings on reasonable alternative means.
Dixon also cites United States v. Canady, 126 F.3d 352 (2d Cir. 1997), cert. denied 522 U.S. 1134 (1998). The constitutional problems in Canady eclipsed that of a closed courtroom in that the defendant first learned of his conviction by reading a newspaper. Hence, the defendant's right to be present at all stages of a criminal proceeding was at the heart of his appeal along with his right to a public trial. At the close of the evidence in Canady's bench trial, the trial judge announced that he would read some cases and write an opinion. Instead of reconvening court for delivery of the verdict, the trial judge filed the opinion and mailed copies to the parties. The federal Court of Appeals found error in the failure of the district court to announce its verdict in open court in the presence of the defendant. 126 F.3d at 362-63.
We conclude in the present case that it was error for the trial court to close the c
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