Nazarian, Friedman, [*]Woodward, JJ.
April 19, 2016, a jury sitting in the Circuit Court for
Baltimore County convicted appellant, Clyde Campbell, of
second degree murder. The court subsequently sentenced
appellant to thirty years of incarceration. In this timely
appeal, appellant presents two questions for our review,
which we have reordered and rephrased as
1. Did the circuit court violate appellant's Sixth
Amendment right to a public trial when the court excluded
appellant's family members during a portion of voir
dire, the entire selection of the jury,  and the
swearing-in of the members of the jury?
2. Did the circuit court err in denying appellant's
motion to suppress his statements?
Because we conclude that the circuit court erred by excluding
appellant's family members from the courtroom during a
portion of voir dire, the entire selection of the
jury, and the swearing-in of the members of the jury, we
reverse appellant's conviction and remand the case for a
new trial. Accordingly, we need not reach the second question
on appeal, but in the interest of judicial economy we will
briefly address one of appellant's challenges to the
admissibility of his statements to the police.
produced during the trial showed that appellant and his son,
Jesse Campbell, lived with appellant's long-term
girlfriend, Dorothy Grubb, in her row house in Baltimore
County. Jesse's recollection of the night of July 24,
2014, was that appellant and Grubb got into an argument in
the upstairs bathroom of Grubb's house and such argument
did not cease until Jesse heard a "big bang." The
commotion at the house also caught the attention of two
next-door neighbors, who called 911 reporting suspected child
Frederick Johnson responded to Grubb's house around 11:30
p.m. and knocked at the front door in an attempt to contact
any occupants. Appellant refused to open the door, yelled
obscenities, and eventually, turned off all interior lights.
In an effort to investigate who else may be inside the home,
Officer Johnson then went to the back of the house and
discovered two individuals in an alley. When Officer Johnson
identified himself, the two individuals began to run. Once
the individuals were detained, they were identified as
appellant and Jesse. After questioning the pair, the police
let them return home, because the call to police had been
about suspected child abuse and Jesse appeared unharmed. The
police did not enter Grubb's house and were told by
appellant that Grubb left to stay with a friend.
that night, Jesse observed appellant drive his truck to the
back of the house. Jesse saw appellant place in the back of
his truck a large tarp that appeared to have something
"long and big" in it, and then drive away.
next day, appellant asked Jesse if he wanted to go camping,
and Jesse agreed. According to Jesse, the trip was not
previously planned, and when they discovered that there were
no available campsites, the two ended up driving to Ocean
City. While on this trip, Jesse noticed that the tarp he saw
on the night of July 24, 2014, was no longer in the back of
appellant's truck, and the truck was "clear
appellant and Jesse were on their trip, Grubb's daughter,
Kristi Grubb, was unable to contact her mother. Kristi had
gone to her mother's house on July 26, 2014, to pick her
up to go swimming, but Grubb did not come to the door. Later
that day, Kristi filed a missing person report, and based on
that missing person's report, Detective Ryan Massey
"obtained a search and seizure warrant for"
Grubb's house on July 27, 2014. The search of the house
did not reveal the location of Grubb, but police did discover
blood stains inside and outside the home.
28, 2014, appellant called 911 at 3:44 a.m. to inform police
that he would come down to the police station to discuss
"Grubb being missing." Later that morning, police
arrested appellant on an arrest warrant unrelated to
Grubb's disappearance. Around 8:30 a.m., the police
placed appellant in an interrogation room at police
headquarters. At approximately 9:54 a.m., Detective Massey
entered the room and began to advise appellant of his
Miranda rights. After being advised of his rights,
appellant signed a form indicating that he wished to waive
those rights. Appellant then spoke to detectives.
29, 2014, detectives from the homicide unit in Baltimore
County conducted a search for Grubb, focusing on areas close
to her house. In a wooded area near a highway "within
two, two and a half miles" of Grubb's house,
Detective Massey and Detective
Schrott discovered Grubb's remains wrapped in a blue
tarp. The next day, Mary Jane Ripple, M.D., the deputy chief
medical examiner for Maryland, determined that the cause of
Grubb's death was "multiple injuries [including]
sharp and blunt force injuries[, ]" and the manner of
death was homicide.
receiving the results of the autopsy, Detective Massey
instructed Detective Schrott and Detective Joe Caskey to
bring appellant to headquarters to inform him that he would
be charged with the murder of Grubb. During transport,
appellant inquired about Grubb, and made several other
after appellant arrived at headquarters on the afternoon of
July 30, 2014, Detective Massey informed appellant that
police had found Grubb's body. Detective Massey then told
appellant that the autopsy determined that her death was a
homicide, and he would be charged with Grubb's murder.
Upon appellant's inquiry as to why he was being charged
with Grubb's murder, Detective Massey explained that some
of the evidence indicated that appellant was responsible for
her death. In response, appellant proclaimed that Grubb's
death was an accident and that she had fallen in the upstairs
bathroom. Appellant was later indicted for the murder of
trial, appellant filed several motions, including a motion to
suppress all statements that he made to law enforcement.
After a motions hearing on February 19, 2016, the circuit
court denied appellant's motion to suppress.
April 11, 2016, appellant's trial began with the voir
dire of prospective jurors. In the afternoon session of
the first day, the State brought to the court's attention
that one of the jurors told the prosecutors that
appellant's family was sitting in the jury box and asked
whether that was permitted. The trial judge declined to
address the issue at that time, and the voir dire
continued until 6:31 p.m. that evening.
next day, the voir dire recommenced at 9:38 a.m.
Shortly thereafter, the clerk informed the trial judge that
appellant's son wished to watch the proceedings, which
prompted the following discussion:
[PROSECUTOR 1]: No, Your Honor. State's going to move to
exclude [appellant's] son, sister, any other relatives
from the courtroom today.
THE COURT: And the people that we're talking about now,
they're not listed as witnesses?
[PROSECUTOR 1]: They're not. They're not witnesses.
[DEFENSE COUNSEL 1]: [Appellant] would oppose that.
He's entitled to a fair and public trial, and that
includes his family who are not witnesses being allowed to be
in the courtroom for him as emotional support. Sometimes we
accommodate that if there's no space, but there's
clearly space at this point in the courtroom; so I
mean, I think they're entitled to come in if they want
to. They can't disrupt. They can't communicate with
people. They just have to sit there.
[PROSECUTOR 1]: Your Honor.
THE COURT: Let me hear from the state.
[PROSECUTOR 1]: Thank you. Two things. First,
[appellant's sister] who was present yesterday - - and
I'm not sure if she's here today - - is going to be
heard at the - - during the trial although she will not be
called to testify.
There was a jail recording that Your Honor has already
ruled admissible, and she is part of that conversation.
Secondly, there is some evidence that they were
fraternizing with the jury panel because one of the jurors
mentioned to [prosecutors 1 and 2] yesterday that she was
aware that family members of [appellant] were seated in the
[DEFENSE COUNSEL 1]: So the state brought that to our
attention yesterday and I said to - - [defense
counsels 1 and 2] talked to them yesterday at the end of the
day about it because obviously we don't want to
see a problem with that, either. And we said how do you think
it is that that was the case?
And they said because the deputy walked over to us and was
talking to us, and we weren't wearing jury badges, so
that's why they thought they were - - that's why they
thought they were. They said they didn't talk to
They didn't communicate with anybody and candidly
them sitting there without the jurors or somebody coming in
and saying that they did anything inappropriate, it
wouldn't be appropriate to exclude them based on the fact
that some excused juror surmised that they were the family
because that's a logical inference.
THE COURT: All right. I hear what you're saying. Anything
else from the state on that?
[PROSECUTOR 2]: Your Honor, I did speak with [the] deputy and
go over to them and that was before - - like that was the
juror came to us before the deputy walked over and talked to
them that information. I mean, without knowing
exactly what was said or why that juror said that, the juror
came over to us. We didn't have any indication
that anybody said we can't talk to you, but
that's all she said to us.
[PROSECUTOR 1]: We actually in response to her
statement said please tell the judge's clerk, but she
didn't. She exited the courtroom.
THE COURT: I'm going to grant - - I'm going to grant
the state's request that they in this part of the case
which is going through continuing the [voir dire]
process, I want to make sure that there is absolutely nothing
that can be considered by the people who are here and the
people who are coming back at 1:00 that there are any, any
possible issue that can be raised with that.
I also take into account that for whatever reason, one of the
prospective jurors yesterday thought, brought to my attention
that the process was intimidating. I don't know
if it was intimidating for - - again I don't want to
speculate, but perhaps it could even be because individuals
in the courtroom - - I'll just put it that way and
whatever - - it's amazing what people observe
that we don't necessarily know. During this part, I'm
making sure that we do everything right, and I think
it's not going to be taking anything away from
[appellant's] defense that his family members not take
part in this phase of the trial.
[DEFENSE COUNSEL 1]: [Appellant] notes an objection.
THE COURT: It's noted and your record is made.
circuit court continued the voir dire until breaking
for lunch at 11:48 a.m. At 1:27 p.m., the court reconvened,
and the clerk conducted a roll call of all the jurors. At the
conclusion of the voir dire but before beginning the
process of selecting the jury, the court allowed both parties
to make any objections for the record. Defense counsel
objected to the court's ruling that excluded
appellant's family members from the courtroom:
[DEFENSE COUNSEL 1]: So and then [appellant] would also just
readopt his argument about the exclusion of his family during
the jury selection process arguing that there's not a
substantial basis for the [c]ourt to make a finding that they
should be excluded and that [appellant] had an objection
based upon that just adopting what we had previously
discussed. Court's indulgence. That's all, Judge.
THE COURT: Anything from the state?
[PROSECUTOR 2]: No, Your Honor.
[PROSECUTOR 1]: No, Your Honor.
Now, counsel, I'm looking at defense - -
excuse me - - state's attorneys at this point. Is
your position the same with respect to [appellant's]
family members during the striking process?
[PROSECUTOR 1]: Yes, Your Honor.
[DEFENSE COUNSEL 1]: Same objection, Judge.
THE COURT: And your objection. All right. Then my ruling will
be consistent with respect to the striking of the jury. The
family will be permitted - - first of all, we have a
packed courtroom here. Since we don't have anybody
sitting in the jury box or in the row, front row folding
chairs in front of the jury box, I think that's a factor
that needs to be considered by the [c]ourt, and
I'm going to be consistent and not have them in the
courtroom for the striking of the jury. They will be
permitted to be part of any and all other proceedings that
follow from this which would essentially be opening statement
parties then proceeded to select the jury by using their
respective peremptory challenges. This process concluded at
2:48 p.m., and defense counsel objected to the jury panel so
selected on the grounds that, inter alia, the
circuit court forbade appellant's family from being
present during the voir dire and jury selection
process. The jury was duly sworn, and the court took a short
returning from the recess at 3:03 p.m., the circuit court
heard other preliminary motions, and opening statements were
made by the parties. Although it is not clear from the
record, members of appellant's family were apparently
permitted in the courtroom at this time. At 5:09 p.m., the
court recessed for the day.
trial continued until April 19, 2016, when the jury convicted
him of second degree murder. On July 22, 2016, the circuit
court sentenced appellant to thirty years of incarceration,
which was later affirmed by a three-judge sentence review
panel. This timely appeal followed.
In re Oliver, 333 U.S. 257 (1948) the United States
Supreme Court traced the origins of the right to a public
trial provided by the Sixth Amendment of the United States
This nation's accepted practice of guaranteeing a public
trial to an accused has its roots in our English common law
heritage. The exact date of its origin is obscure, but it
likely evolved long before the settlement of our land as an
accompaniment of the ancient institution of jury trial. In
this country the guarantee to an accused of the right to a
public trial first appeared in a state constitution in 1776.
Following the ratification in 1791 of the Federal
Constitution's Sixth Amendment, which commands that
'In all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial * * *' most of the
original states and those subsequently admitted to the Union
adopted similar constitutional provisions. . . .
The traditional Anglo-American distrust for secret trials has
been variously ascribed to the notorious use of this practice
by the Spanish Inquisition, to the excesses of the English
Court of Star Chamber, and to the French monarchy's abuse
of the lettre de cachet. All of these institutions obviously
symbolized a menace to liberty. In the hands of despotic
groups each of them had become an instrument for the
suppression of political and religious heresies in ruthless
disregard of the right of an accused to a fair trial.
Whatever other benefits the guarantee to an accused that his
trial be conducted in public may confer upon our society, the
guarantee has always been recognized as a safeguard against
any attempt to employ our courts as instruments of
persecution. The knowledge that every criminal trial is
subject to contemporaneous review in the forum of public
opinion is an effective restraint on possible abuse of
Id. at 266-70 (footnotes omitted). "[A] public
trial [has also been determined to, among other things, ]
encourage witnesses to come forward and discourage
perjury." Waller v. Georgia, 467 U.S.
39, 46 (1984); Longus v. State, 416 Md. 433, 445
(2010). Because a public trial is a constitutional guarantee
that is essential to the "framework of any criminal
trial[, ]" the Supreme Court has deemed a violation of
this right to be a structural error that requires
"automatic reversal" when properly preserved and
raised on direct appeal. See Weaver v.
Massachusetts, 137 S.Ct. 1899, 1907-10 (2017) (internal
quotation marks omitted).
Sixth Amendment right to a public trial, however, is not
absolute, and as the Supreme Court has stated,
there are exceptions to this general rule. "[T]he right
to an open trial may give way in certain cases to other
rights or interests, such as the defendant's right to a
fair trial or the government's interest in inhibiting
disclosure of sensitive information." Waller,
467 U.S., at 45, 104 S.Ct. 2210. "Such circumstances
will be rare, however, and the balance of interests must be
struck with special care." Ibid. Waller
provided standards for courts to apply before excluding the
public from any stage of a criminal trial:
 "[T]he party seeking to close the hearing must
advance an overriding interest that is likely to be
prejudiced,  the closure must be no broader than necessary
to protect that interest,  the trial court must consider
reasonable alternatives to closing the proceeding, and  it
must make findings adequate to support the closure."
Id., at 48, 104 S.Ct. 2210.
Presley v. Georgia, 558 U.S. 209, 213-14 (2010)
(some alterations in original). Stated otherwise, the
exclusion of the public from any stage of a criminal trial
may be justified under the Sixth Amendment only if the above
four-factor test in Waller has been satisfied.
state and lower federal courts, however, have not reached the
issue of a closure's justification when the closure was
"too trivial" to constitute a violation of the
Sixth Amendment right to a public trial. See Gibbons v.
Savage, 555 F.3d 112, 121 (2d Cir. 2009) (exclusion of
defendant's mother from courtroom during afternoon of
first day of jury selection was too trivial to violate right
to public trial), cert. denied, 558 U.S. 932;
Peterson v. Williams, 85 F.3d 39, 41, 44 (2d Cir.
1996) (twenty minute closure while defendant testified was
"too trivial" to constitute Sixth Amendment
violation), cert. denied, 519 U.S. 878; People
v. Bui, 183 Cal.App.4th 675, 686-87, 689 (Cal.Ct.App.
2010) (exclusion of three people for forty minutes during
voir dire was de minimus). "A
triviality standard is different from a harmless error
standard; it looks to whether the closure implicated the
protections and values of the Sixth Amendment."
Kelly v. State, 195 Md.App. 403, 420 (2010),
cert. denied, 417 Md. 502, cert. denied,
563 U.S. 947 (2011).
as the de minimus doctrine, the Court of Appeals of
Maryland first acknowledged the same in Watters v.
State, 328 Md. 38, 49 (1992) ("Although we agree
with the State that not every technical violation of the
Sixth Amendment right of open trial requires a new proceeding
or trial, we would be hard pressed to declare a violation of
this magnitude de minimus, or otherwise not of
constitutional significance."), cert. denied,
507 U.S. 1024 (1993). Later, in Kelly, this Court
established that in determining whether a closure is de
minimus, an appellate court must weigh the following
factors: " the length of the closure,  the
significance of the proceedings that took place while the
courtroom was closed, and  the scope of the closure,
i.e., whether it was a total or partial
closure." 195 Md.App. at 421-22.
when an appellate court is called upon to determine whether
an appellant's Sixth Amendment right to a public trial
has been violated, the court must first determine whether the
closure was de minimus, and thus does not implicate
the Sixth Amendment right to a public trial by weighing the
three factors set forth in Kelly. If the closure was
not de minimus, the court proceeds to the
four-factor test set forth in Waller to determine
whether such closure was justified. If the closure was not
justified, the error is structural, and the appellant is
entitled to a new trial.
De minimus closure
clear that the Sixth Amendment right to a public trial
extends to the voir dire of prospective jurors, the
selection of the jury, and the swearing-in of the members of
the jury. See Presley, 558 U.S. at 212-13;
Watters, 328 Md. at 49; Kelly, 195 Md.App.
at 418. Because the State argues that the exclusion of
appellant's family from a portion of the voir
dire and the entire selection and swearing-in of the
jury was de minimus, we shall begin by examining the
de minimus doctrine in Maryland and its
applicability to the instant appeal.
mentioned above, the Court of Appeals in Watters,
328 Md. at 49, first acknowledged that a closure could be
de minimus and thus not implicate the Sixth
Amendment right to a public trial. In Watters,
"[w]ithout the knowledge or consent of the trial judge
or the parties, a deputy sheriff excluded the public,
including members of [Watters's] family and possibly
representatives of the press, from the courtroom during
[voir dire] and jury selection[.]" Id.
at 42. Defense counsel discovered that the courtroom had been
closed to members of the public including Watters's
family members during a lunch recess, which took place after
the selection of the jury. Id. at 42. Defense
counsel promptly moved for a mistrial on the grounds that
Watters's Sixth Amendment right to a public trial had
been violated. Id.
hearing on the issue revealed that the deputy sheriff closed
the courtroom "'[b]ecause of the nature of the
number of people involved in the case and the courtroom would
not handle all the persons who wanted to get into the
courtroom.'" Id. (alteration in original).
"The deputy [sheriff] admitted . . . that there were
'some seats' available [in the courtroom], but he
could not estimate how many." Id. Watters's
mother also testified that she was denied admittance at 9:30
a.m. and was only admitted after the lunch break at 1:30 p.m.
Id. at 43. The trial court concluded that the
closure was done for security purposes, and therefore, denied
the motion for a mistrial. Id. After Watters's
conviction and appeal to this Court, we affirmed the judgment
of the circuit court, prompting Watters to file a petition
for certiorari, which the Court of Appeals granted.
Id. at 41.
Court of Appeals stated that, "although [the]
'benefits of a public trial are frequently intangible,
difficult to prove, or a matter of chance, the Framers
plainly thought them nonetheless real.'"
Id. at 47 (quoting Waller, 467 U.S. at 49,
n.9). The Court noted that there were harms in addition to
"the inability of the public to judge for itself and to
reinforce by its presence the fairness of the process,"
such as "the inability of [Watters's] family to
contribute their knowledge or insight to the jury selection
and the inability of the venirepersons to see the interested
individuals." Id. at 48. The Court held that
the closure violated Watters's right to a public trial,
The scope of the closure in this case was
substantial. The courtroom was open only to court
personnel, the venirepersons, and witnesses. All other
members of the public, including members of [Watters']
family and the press, were barred. The closure extended over
a significant period of time-an entire morning of trial
during which the [voir dire] and selection and
swearing of the jury were accomplished. Although we agree
with the State thatnot every technical violation of the Sixth
Amendment right of open trial requires a new proceeding or
trial, we would be hard pressed to declare a violation of
this magnitude de minimus, or otherwise not of
constitutional significance. We conclude that this violation
of [Watters's] Sixth Amendment right carries with it the
presumption of specific prejudice mandated by
Waller, and thus requires the granting of
appropriate relief. Under the particular facts of this case,
that relief is necessarily the granting of a new trial.
Id. at 49 (emphasis added).
years later, in Kelly, we determined, for the first
time, that a closure of a trial was de minimus and
thus did not implicate the appellant's Sixth Amendment
right to a public trial. 195 Md.App. at 428. In
Kelly, the first day of trial began at approximately
10:12 a.m. Id. at 412. Because of the small size of
the courtroom, the prospective jurors filled every seat and
some were standing. Id. at 413. At approximately
2:05 p.m. and "[a]fter completing the strikes of
prospective jurors for cause," Kelly's counsel moved
for a mistrial on the grounds that the sheriff prohibited
Kelly's father from being in the courtroom during the
voir dire process. Id. at 413-14. The
circuit court questioned the sheriff about the exclusion of
Kelly's father, and the sheriff informed the court that
family members were excluded due to the limited space in the
courtroom. Id. at 415. The court preliminarily
denied the motion for a mistrial and the selection of the
jury began. Id.
selecting the jury,  the circuit court revisited Kelly's
motion for a mistrial and denied the motion. Id. The
court reasoned that the family may have been excluded by the
sheriff during the morning session of voir dire but
that did not mean that they were prohibited from attending
the afternoon session, which included the selection of the
jury. Id. at 416. Moreover, the court explained that
"[d]uring the entire [voir dire], we did not
have enough seats for all of the jurors. We had a couple of
jurors who were standing throughout the whole thing . . .
." Id. at 415.
appeal to this Court, we first looked to the de
minimus doctrine as articulated by the Court of Appeals
in Watters. Id. at 420-21. With the aid of
case law from our sister states and the federal courts, we
were able to identify three factors that are involved in the
determination of whether a courtroom closure was de
minimus. Id. at 421-22. We held a closure could
be de minimus if the following three factors weighed
favorably toward a closure that did not impinge upon the
values embodied in the Sixth Amendment: " the length
of the closure,  the significance of the proceedings that
took place while the courtroom was closed, and  the scope
of the closure, i.e., whether it was a total or
partial closure." Id.
the first factor, "the length of the closure," this
Court stated that such factor was significant but not
dispositive. Id. at 422. In looking to other
jurisdictions, we ascertained that the shorter the length of
time, the more likely that this factor weighed in favor of a
de minimus closure. Id. at 423-24. In
Kelly, the court closure was for two to three hours
during the morning of voir dire. Id. at
427. We recognized that "[t]his amount of time is not
extensive, but it clearly is not inconsequential, and it
falls within the time frame in which courts have ...