¶1dissenting.
¶2I respectfully dissent. Here, only two spectators were excluded from the court during the testimony of a single witness. The circumstances in the present case are different than those presented in the authority upon which the majority relies.
¶3In Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), the court determined that the right to a public trial included a suppression hearing held after the jury was empaneled. Id. at 48, 104 S.Ct. at 2216-2217. ■ The court found that less extensive measures were available to protect the privacy of people mentioned in wire-tap tapes than to close a seven-day hearing due to tapes which spanned two and one-half hours. Id. at 48-49, 104 S.Ct. at 2216-2217.
¶4In Press-Enterprise Co. v. Superior Court of Cal., 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), the court found that the California court improperly closed six weeks of voir dire to the public, including the press. Id. at 512-513, 104 S.Ct. at 825-826. The court held that the closure, in an attempt to increase candor in the responses by individual jurors in a trial where the defendant was charged with the rape and murder of a teenage girl, was not narrowly tailored to protect privacy while maintaining the openness essential to public confidence in the criminal justice system. Id.
¶5At the core of both cases was the over-breadth of the response to a legitimate privacy interest, that of uncharged individuals mentioned on wire-tap tapes in Wallerand that of potential jurors who may be required to reveal personal matters due to the nature of the criminal trial at which they were called upon to serve in Press-Enterprise. In both cases, the trial court closed the matters to the public.
¶6Here, the stated interest was for the protection of a witness, a matter addressed by IND.CODE § 5-14-2-7 (1993 Ed.) (court has inherent power to “exclude those individuals whose presence constitutes a direct threat to the safety of ... witnesses”). Based upon its inherent power, the trial court excluded only two spectators who posed a threat to the safety of a witness. Under these circumstances, I would find that the trial court acted pursuant to the statute, and that any threat to the fairness of an open trial was not implicated by the removal of two people during the testimony of one witness, thus rendering the specific findings mandate of Wallerand Press-Enterprise inapplicable.