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
