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Campbell v. State

Court of Special Appeals of Maryland

March 29, 2019


          Nazarian, Friedman, [*]Woodward, JJ.

          OPINION [**]

          WOODWARD, J.

         On 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 follows:[1]

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, [2] 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.


         Evidence 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 abuse.

         Officer 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.

         Later 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.

         The 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 mostly."

         While 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.

         On July 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.

         On July 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

          Craig 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.

         Upon 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 statements.

         Shortly 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 Grubb.

         Before 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.

         On 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.

         The next day, the voir dire recommenced at 9:38 a.m. Shortly thereafter, the clerk informed the trial judge that appellant's son[3] 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 jury box.
[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 anybody.
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.

(Emphasis added).

         The 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 forward.

(Emphasis added).

         The 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 recess.

         After 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.

         Appellant's 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.


         I. Courtroom Closure

         In 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 Constitution:

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 judicial power.

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).

         The 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:
[1] "[T]he party seeking to close the hearing 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] 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.

         Many 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).

         Known 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: "[1] the length of the closure, [2] the significance of the proceedings that took place while the courtroom was closed, and [3] the scope of the closure, i.e., whether it was a total or partial closure." 195 Md.App. at 421-22.

         In sum, 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.

         A. De minimus closure

         It is 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.

         As 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.

         A 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.

         The 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, explaining:

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).

         Eighteen 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.

         After selecting the jury, [4] 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.

         On 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: "[1] the length of the closure, [2] the significance of the proceedings that took place while the courtroom was closed, and [3] the scope of the closure, i.e., whether it was a total or partial closure." Id.

         As to 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 ...

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