Criminal Practice – Courtroom Closure – Waller v. Georgia

The trial court did not err in closing the courtroom during witness testimony.

We affirmed the trial court’s order.

In 2018, Neqayvius McClendon, Nyhiem Kendall, and O.S. (collectively, the group) walked to a local basketball court together. On their way to the basketball court, the group was accosted by D.G., E.G., K.H., and Defendant, who were riding together in a car. D.G. was driving the car, and all of the occupants were in possession of guns. D.G. pulled up next to where the group was walking, and the car’s occupants “flash[ed]” their guns at the group. As D.G. began driving away, testimony revealed that Defendant fired his gun at the group—striking McClendon in his back.

In 2019, Defendant was indicted for attempted first degree murder, possession of a handgun by a minor, discharging a firearm in city limits, and going armed to the terror of the people. Before Defendant’s trial in 2021, the State moved for closure of “the courtroom . . . to the public” while McClendon and Kendall testified, arguing that it was justified under Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210 (1984) and N.C. Gen. Stat. § 15A-1034 (2023) (“Controlling access to the courtroom.”). The State argued that closing the courtroom was warranted because of “concerns for the safety of the witnesses.” The State reasoned that closure was justified since Defendant previously attempted to intimidate the witnesses via social media. Defendant objected, arguing that closing the courtroom would amount to a Sixth Amendment violation, or in the alternative, that it was unnecessary given that other “reasonable alternatives” were available.

On remand, the trial court entered an order decreeing that closure of the courtroom during the testimony of McClendon and Kendall was warranted under Waller. The day after entry of the trial court’s order on remand, the State filed a dismissal of Defendant’s charge for discharging a firearm in city limits. The trial court resentenced Defendant, and he entered his notice of appeal in open court.

On appeal, Defendant contended, among other things, that the trial court committed error because “the State failed to advance an overriding interest that would be prejudiced if the courtroom was kept open.” Defendant maintained that “[t]he findings were not supported by competent evidence, nor were they sufficient to justify the closure.” We disagreed. Contrary to Defendant’s urging, the State adequately advanced the overriding interest of witness safety, and that interest was likely to be prejudiced by the intimidation tactics of Defendant and members of the gallery filming. Accordingly, the trial court adhered to the first and fourth Waller elements in reaching its decision on remand. Moreover, the competent findings in the trial court’s order adequately support its conclusion—that the State had an overriding interest in having its witnesses and victims testify, which is likely prejudiced if there is intimidation or unauthorized recording of court proceedings occurring.

Defendant next contended that the courtroom closure was broader than necessary because banning cell phones would have addressed the State’s concerns. Defendant submitted that since this reasonable alternative was available, the trial court’s order on remand was broader than necessary. We disagreed. The trial court adequately adhered to the second and third Waller elements by ensuring that closure of the courtroom was no broader than necessary and considering reasonable alternatives.

Affirmed.

State of North Carolina v. Derek Jvon Miller (Lawyers’ Weekly No. 011-064-25, 17 pp.) (Michael Stading, J.) Appealed from Union County Superior Court (Jonathan W. Perry, J.) Appellate Defender Glenn Gerding, by Assistant Appellate Defender Katy Dickinson-Schultz, for defendant-appellant; Attorney General Jeff Jackson, by Special Deputy Attorney General Kimberley A. D’Arruda, for the State. North Carolina Court of Appeals