IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 186
State of North Dakota, Plaintiff and Appellee
v.
Andrew M. Barrett, Defendant and Appellant
No. 20250114
Appeal from the District Court of Dunn County, Southwest Judicial District, the
Honorable Rhonda R. Ehlis, Judge.
REVERSED.
Opinion of the Court by Crothers, Justice.
Jonathan R. Byers, Special Assistant State’s Attorney, Bismarck, ND, for plaintiff
and appellee.
Kiara C. Kraus-Parr, Grand Forks, ND, for defendant and appellant.
State v. Barrett
No. 20250114
Crothers, Justice.
[¶1] Andrew Barrett appeals from the district court judgment after a jury found
him guilty of two counts of gross sexual imposition, one a class AA felony and
one a class A felony. Barrett was convicted on both counts and sentenced to a 20-
year term, 10 suspended, with sentences running concurrently. Barrett claims his
right to a public trial was violated. We reverse the judgment and remand for a
new trial.
I
[¶2] Barrett claims his right to a public trial was violated when the district court
closed the courtroom to the public while the jury was reviewing evidence.
During deliberations, the jury asked the court to review a recorded interview.
The court did not have a device available for the jury to listen to the recording in
the jury room. The court noted that the recording needed to be played in the
courtroom, and discussed with counsel whether the jury listening to the
recording constituted juror deliberations requiring closure. The court noted that,
if the courtroom were closed, it would need to make findings on the Waller
factors. Waller v. Georgia, 467 U.S. 39, 48 (1984). Although Barrett did not object
to closing the courtroom, he asked the court to consider leaving the courtroom
open because he questioned whether reviewing evidence constituted juror
deliberations:
THE COURT: Yeah. Yep. So Counsel, I believe I have to do the Waller
determination at that point.
MR. SUHR: Is—and I guess I don’t know for sure the answer to this.
Is them simply viewing the video evidence deliberations? I have had
cases where, just to view, they’re brought back into court, the
courtroom is left open, they view, and then they return to deliberate.
So I think the first question is, are they actually in the deliberation
process or are they just asking to review evidence that they don’t
have with them?
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[¶3] The district court determined reviewing evidence was juror deliberations
that required exclusion of the public, and closing the courtroom required a Waller
analysis. The first Waller factor is: “The claiming party must advance an
overriding interest that is likely to be prejudiced.” State v. Rogers, 2018 ND 244,
919 N.W.2d 193 (citing Waller,
467 U.S. at 48). On this factor, the court found:
THE COURT: Well, it’s jury deliberations and we never allow the
public access to the jury while they are deliberating. None of us have
access to the jury while they are deliberating. So I do not want to
cause any prejudice to them.
The court asked both parties if the findings were adequate for the record. Both
parties agreed the findings were adequate.
II
[¶4] In State v. Haney, this Court identified the analysis required to determine
if the right to public trial was violated:
In considering a defendant’s claim his right to a public trial
was violated, “we first consider whether the claim of error was
preserved at trial. We then consider the threshold question of
whether there was a closure implicating the public trial right.” [State
v.] Linner, 2023 ND 57, ¶ 7,
988 N.W.2d 586 (quoting [State v.]
Martinez, 2021 ND 42, ¶ 3,
956 N.W.2d 772). If there was a closure,
we decide “whether the trial court made pre-closure Waller findings
sufficient to justify the closure.” Id. When a defendant does not
preserve the public trial issue with a timely objection at the trial, we
review only for obvious error. Id. To establish obvious error, the
defendant must demonstrate a plain error that affected the
defendant’s substantial rights. State v. Pemberton, 2019 ND 157, ¶ 8,
930 N.W.2d 125; see also N.D.R.Crim.P. 52(b); State v. Frederick,
2023
ND 77, ¶ 4,
989 N.W.2d 504.
2023 ND 227, ¶ 19,
998 N.W.2d 817.
[¶5] We review a district court’s Waller findings for clear error. State v. Coons,
2023 ND 115, ¶ 4,
992 N.W.2d 521. Barrett did not object at trial; therefore, we
review for obvious error if the issue was not waived. Martinez,
2021 ND 42, ¶ 12.
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A violation of the right to a public trial is a structural error and can be waived or
forfeited if not raised in the district court. Id. ¶ 4. A waiver must be made
knowingly, intelligently, and voluntarily. Id. ¶ 13. The court did not inform
Barrett of his right to a public trial and did not ask Barrett to waive his right. We
determine no knowing, intelligent, or voluntary waiver occurred. See id. ¶ 35
(determining the right to public trial was forfeited, not waived, when the district
court “did not inform [defendant] that he had a right to a public trial [and] did
not inquire of [defendant] to elicit an express waiver”). Because Barrett forfeited
but did not waive his public trial objection, we review the question for obvious
error. Id. ¶ 36.
[¶6] The threshold issue is whether there was a closure implicating the public
trial right. Haney, 2023 ND 227, ¶ 19. “[T]he Sixth Amendment public trial right
attaches from the beginning of adversarial proceedings through sentencing.”
Martinez,
2021 ND 42, ¶ 19. If a closure occurred, this Court looks at “whether
the trial court made pre-closure Waller findings sufficient to justify the closure.”
Haney, ¶ 19. Here, the public trial right attached and the district court made
findings on the Waller factors.
[¶7] The dispositive question in this case is whether the district court obviously
erred by closing the courtroom while the jury reviewed evidence. Our obvious
error review requires identification of an error, that is plain, and that affects the
defendant’s substantial rights. Martinez,
2021 ND 42, ¶ 36. Plain error requires
“a clear deviation from an applicable legal rule under current law.” Id. ¶ 36.
[¶8] The Sixth Amendment of the United States Constitution and article I,
section 12 of the North Dakota Constitution require a defendant receive a public
trial in criminal prosecutions. The North Dakota Century Code and the Rules of
Criminal Procedure provide related protections when a deliberating jury has a
legal question or requests to review evidence that is not available to them in the
jury room.
[¶9] Rule 43(a)(3), N.D.R.Crim.P., requires the jury to be brought into open
court, when the jury requests information on a point of law or requests testimony
be read or played to them. See State v. Watterud,
2025 ND 185, ¶ 19 (“Reading
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subsections (A) and (B) together, N.D.R.Crim.P. 43(a)(3)(A) requires that the
jury’s question or request to review testimony must be answered in open court
unless the defendant otherwise agrees.”). Section 29-22-05, N.D.C.C., now
superseded by N.D.R.Crim.P. 43, provided a statutory right for the defendant to
be present in open court when a jury requests evidence be reviewed. (“Upon
their being brought into court, the information required must be given in the
presence of, or after notice to, the state’s attorney and the defendant or the
defendant’s counsel, or after they have been called.”). The procedural right of
N.D.R.Crim.P. 43 and the absorbed statutory right of N.D.C.C. § 29-22-05 both
state the courtroom must be open during these proceedings, absent waiver.
[¶10] Barrett argues the district court erred by concluding that reviewing
evidence constituted juror deliberations. We agree. See State v. Curtis, 2009 ND
34, ¶ 26,
763 N.W.2d 443 (collecting cases and stating, the now superseded,
N.D.C.C. § 29-22-05 “unequivocally gives defendants a statutory right to have a
jury brought into the courtroom and requires the court to have requested
testimony read to the jury and to inform the jury on points of law”); Watterud,
2025 ND 185, ¶ 19 (“Rule 43(a)(3), N.D.R.Crim.P., requires, as a default, the jury
be brought into open court when, during deliberations, it has a question or
requests to review testimony.”); see also Chamber v. Janda, No. 1:13–cv–00230 LJO
MJS (HC),
2013 WL 4012632, at *11 (E.D. Cal. Aug. 6, 2013) (determining the
replaying of evidence in open court was within the scope of the constitutional
right to a public trial). The court erred in its application of law by determining
the jury reviewing evidence constituted deliberations requiring closure. The
court made a corresponding error on the first Waller factor by finding the
reviewing of evidence constituted deliberations and there was an overriding
interest of needing to close the courtroom to the public. This determination is a
misapplication of law and an error satisfying the first element in our analysis.
[¶11] The second obvious error requirement is the mistake is plain, in clear
deviation from an applicable legal rule under current law. Martinez,
2021 ND 42,
¶ 39. The district court determined the review of evidence constituted juror
deliberations that must be closed to the public. For a closure of the courtroom to
satisfy constitutional requirements, the Waller factors must have been properly
applied. State v. Morales,
2019 ND 206, ¶ 21,
932 N.W.2d 106 (citing Rogers, 2018
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ND 244, ¶ 15). Rule 43, N.D.R.Crim.P., and section 29-22-05, N.D.C.C., have
constitutional underpinnings protecting a defendant’s right to be present at trial.
Curtis,
2009 ND 34, ¶ 28. This statute and rule also protect the constitutional right
to a public trial. Id.; see id. ¶ 26 (“[A]ll communications with the jurors, after a
case has been submitted to them, must be made in open court . . . .”); see also
Watterud,
2025 ND 185, ¶ 17. (“We have equated ‘the courtroom’ referred to in
N.D.R.Crim.P. 43(a)(3)(A) to mean ‘open court’ . . . .”).
[¶12] The constitutional right to public trial requires an “overriding interest that
is likely to be prejudiced” to close a courtroom. Rogers,
2018 ND 244, ¶ 15
(quoting Waller,
467 U.S. at 48). Without this interest, a defendant’s right to
public trial has been violated. Morales,
2019 ND 206, ¶ 21. Closing the courtroom
for a jury’s request to review evidence is not an interest that needs to be
protected. It is the opposite. Our statutes and rules emphasize the importance of
ensuring the defendant’s right to an open courtroom, with the goal of ensuring
constitutional compliance. The court clearly deviated from current law when it
determined there was an overriding interest that required closing the courtroom.
We conclude this error was plain, satisfying the second element for obvious
error.
[¶13] The third obvious error requirement is the mistake affects the defendant’s
substantial rights. A violation of the right to a public trial is a structural error.
Campbell v. State,
2025 ND 152, ¶ 23,
25 N.W.3d 781. Structural errors are a class
of errors which affect the framework of a trial, rendering the trial fundamentally
unfair. Martinez,
2021 ND 42, ¶ 4. Structural errors necessarily affect a
defendant’s substantial rights, meaning they forgo harmless error analysis. Id.
¶ 40. This structural error necessarily affects Barrett’s substantial rights. As a
result, the closure of the courtroom for a jury’s request to review evidence is an
obvious error.
[¶14] Courts correct an obvious error only “if it seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Martinez,
2021 ND 42,
¶ 41 (cleaned up). In Martinez, closing the courtroom—without waiver or
adequate Waller findings—negatively impacted the fairness, integrity, and
public reputation of our criminal justice system. Id. ¶ 42. In this case, the
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misapplication of law on juror deliberations, and resulting misapplication of the
first Waller factor, negatively impacted the fairness, integrity, and public
reputation of our criminal justice system. The remedy for a violation of the right
to a public trial is a new trial. Id. ¶ 53.
III
[¶15] We have considered the remaining issues and arguments raised by each
party and determine they are unnecessary to our decision. We reverse the
judgment and remand for a new trial.
[¶16] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
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