People of Michigan v. Donald Wayne Davis Jr

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Syllabus Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis

PEOPLE v DAVIS

Docket No. 161396. Argued on application for leave to appeal November 10, 2021.
Decided March 14, 2022.

Donald W. Davis, Jr., was convicted following a jury trial in the Genesee Circuit Court of
multiple felonies in connection with the shooting death of Devante Hanson. During a recess on
the second day of the trial, the mother of the victim’s child made contact with a juror in the hallway.
When the trial resumed, the court, Geoffrey L. Neithercut, J., ordered the woman and all other
spectators, with the exception of the victim’s mother, removed from the courtroom and directed
them not to return for the remainder of the trial. After his conviction, defendant appealed and
moved to remand for an evidentiary hearing, arguing that he had been denied his constitutional
right to a public trial and that his trial counsel had been ineffective for failing to object to the
closure of the courtroom. The Court of Appeals granted the motion. On remand, following the
evidentiary hearing, the trial court denied defendant’s motion for a new trial, stating that it had not
actually closed the courtroom to the public and that the doors were never locked. In addition, the
court concluded that while it had poorly worded its directive to the spectators not to return during
the trial, defendant was not prejudiced by the removal because no one supporting defendant had
been affected by the removal order. The Court of Appeals, MARKEY, P.J., and REDFORD, J.
(SWARTZLE, J., concurring in part and dissenting in part), affirmed, stating that the courtroom had
been “cleared” rather than closed, that defendant had waived his right to a public trial when defense
counsel failed to object to the clearing of the courtroom, and that even if the courtroom had been
closed and the error had been forfeited rather than waived, defendant would not have been entitled
to relief because any error in this regard would not have warranted reversal. 331 Mich App 699
(2020). Defendant applied for leave to appeal, and the Supreme Court ordered and heard oral
argument on whether to grant the application or take other action. 507 Mich 853 (2021).

In an opinion by Justice CLEMENT, joined by Chief Justice MCCORMACK and Justices
VIVIANO, BERNSTEIN, CAVANAGH, and WELCH, the Supreme Court, in lieu of granting leave to
appeal, held:

The trial court’s closure of the courtroom for nearly the entirety of defendant’s trial after a
single, benign interaction between an observer and a juror constituted plain error. Because the
deprivation of a defendant’s public-trial right is a structural error, the error necessarily affected
defendant’s substantial rights. This structural error presumptively satisfied the plain-error
standard’s requirements for reversal, and neither the prosecution’s arguments nor the record
evidence rebutted that presumption. The Court of Appeals judgment was reversed, and the case
was remanded to the trial court for a new trial.

1. Appellate review was not precluded on the ground that defendant had waived the
argument regarding the closure of the courtroom by failing to object. In order to waive a known
right, a party must clearly express satisfaction with a trial court’s decision, which defense counsel
did not do in this case. The Court of Appeals erred by considering defense counsel’s posttrial
statements at the evidentiary hearing to supplement defense counsel’s silence at trial to conclude
that the issue had been waived rather than forfeited. A failure to object—even when purposeful
or strategic—does not constitute the clear, outward expression of satisfaction with a trial court’s
decision that is necessary to find waiver, and defense counsel’s testimony detailing his motivation
behind the lack of objection, elicited months after trial when defense counsel was no longer
representing defendant, did not retroactively transform defense counsel’s silence into an
affirmative approval. Further, after the trial, a defense counsel’s interests are no longer necessarily
aligned with those of the defendant and defense counsel may no longer make decisions on the
defendant’s behalf. Accordingly, an attorney’s posttrial testimony about the reason for a lack of
objection cannot retroactively transform the forfeiture of a client’s right at trial into a waiver of
the same.

2. The United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a public trial. This right allows the public to see that a defendant is fairly
dealt with and not unjustly condemned, reminds defendant’s triers of their responsibility and the
importance of their functions, helps ensure that judges and prosecutors fulfill their duties ethically,
encourages witnesses to come forward, and discourages perjury. However, a courtroom may be
closed during any stage of a criminal proceeding if there is an overriding interest that is likely to
be prejudiced, if the closure is no broader than necessary to protect that interest, and if the trial
court has considered reasonable alternatives to closing the proceeding and made findings adequate
to support the closure.

3. The trial court and the Court of Appeals clearly erred by finding that the courtroom was
not closed to the public. The trial court ordered everyone in the gallery to leave the courthouse
and not come back, told the observers that they were not allowed to return for the remainder of the
trial, and stated that the only person allowed to watch the trial was the victim’s mother. The trial
court’s posttrial interpretation of this oral order as a temporary “clearing” of the courtroom ignored
its own explicit instruction that the observers were not allowed to return for the remainder of trial,
not just the remainder of that particular day. Even accepting as true the trial court’s posttrial
assertions that it did not lock the courtroom or eject any observers during the remainder of trial,
the trial court’s failure to enforce or otherwise effectuate the order did not undo it. The observers
who were removed from the courtroom on the day of the order were directed not to return for the
remainder of the trial, and they did not. It was not necessary for the trial court to have ejected
potential observers or taken actions to bar entry of potential observers to find that a closure order
was in place.

4. When preserved, the erroneous denial of a defendant’s public-trial right is considered a
structural error that defies analysis by harmless-error standards and results in automatic relief to
the defendant. When such an error is forfeited, a defendant must prove that error occurred, that
the error was plain, and that the plain error affected substantial rights. Reversal is warranted only
when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when
an error seriously affected the fairness, integrity or public reputation of judicial proceedings
independent of the defendant’s innocence.

5. The trial court’s decision to close the courtroom was plain error. The observer’s
prohibited interaction with the juror implicated the impartiality of the jury, and given defendant’s
constitutional right to be tried by an impartial jury, preventing interference with the jury was an
overriding interest that the trial court was justified in attempting to safeguard. However, the
closure was broader than necessary to protect the impartiality of the jury, the trial court failed to
consider reasonable alternatives to closing the proceeding, and the trial court failed to make
adequate factual findings to support the closure. The trial court’s failure to comply with these
requirements constituted plain error, given that these requirements are well established and the
trial court’s failure to comply with them was readily apparent from the record.

6. The trial court’s plain error in closing the courtroom affected defendant’s substantial
rights. Because structural errors such as this affect the framework within which the trial proceeds
rather than a single piece of evidence or aspect of the trial, the harm they cause is substantial but
often difficult to quantify, and they are thus particularly ill-suited to an analysis of whether the
error affected the outcome of the trial court proceedings. The United States Supreme Court has
held that structural errors involve constitutional rights so basic to a fair trial that their infraction
can never be treated as harmless error and that the proper remedy for a preserved structural error
is automatic reversal. The Michigan Supreme Court has previously suggested that structural errors
satisfy the third prong of the plain-error standard. The harmless-error and plain-error standards
require the same kind of inquiry because they both require appellate courts to assess the effect of
the error on the outcome of the trial court proceedings. Just as preserved structural errors defy
analysis by harmless-error standards, forfeited structural errors defy analysis under the third prong
of the plain-error standard. Because structural errors often render a trial fundamentally unfair and
an unreliable vehicle for determining guilt or innocence and also affect the framework within
which the trial proceeds, they necessarily affect a defendant’s substantial rights. Therefore, the
existence of a forfeited structural error alone satisfies the third prong of the plain-error standard,
and a defendant need not also show the occurrence of outcome-determinative prejudice. Because
the deprivation of the public-trial right is a structural error, defendant satisfied the third prong of
the plain-error standard.

7. The fourth prong of the plain-error standard requires consideration of whether the error
seriously affected the fairness, integrity or public reputation of judicial proceedings independent
of the defendant’s innocence. A forfeited structural error creates a formal presumption that this
prong of the plain-error standard has been satisfied. A trial that has been rendered fundamentally
unfair or had its framework affected by structural error is generally one whose fairness, integrity,
or public reputation has been damaged. Given this conceptual overlap between the third and fourth
prongs of the plain-error standard and that a forfeited structural error automatically satisfies the
third prong of the plain-error standard, a forfeited structural error is very likely to also satisfy the
fourth prong of the plain-error test. Recognizing a formal rebuttable presumption creates a better
framework for future courts applying the plain-error standard to forfeited structural errors. Just as
defendants face difficulty in proving prejudice from structural errors, they also face difficulty in
identifying specific facts on the record showing that the forfeited structural error seriously affected
the fairness, integrity, or public reputation of the trial. The formal rebuttable presumption in cases
of forfeited structural error will shift the burden of demonstrating that the error did not seriously
affect the fairness, integrity, or public reputation of the judicial proceeding to the prosecution,
which is better positioned to marshal record facts supporting the overall fairness of the trial
proceedings.

8. The denial of defendant’s public-trial right, as a structural error, presumptively
establishes that the error had a serious effect on the fairness, integrity, or public reputation of the
trial. The prosecution did not rebut this presumption with its argument that the closure reduced
the perception that the gallery supported the victim while defendant had no supporters in
attendance. The public-trial right does not serve only defendant’s interest in the presence of
community support; rather, the existence of public observers, no matter their affiliation, helps to
ensure a fair trial, to ensure that attorneys and judges do their jobs responsibly, to encourage
witnesses to come forward, and to discourage perjury. Further, the prosecution’s focus on the
supposed absence of harm to defendant himself failed to consider the harm rendered to the integrity
and public reputation of the trial. Having satisfied the plain-error standard, defendant is entitled
to relief.

Reversed and remanded for a new trial.

Justice ZAHRA, concurring in the result only, agreed that the closure of the courtroom for
the majority of defendant’s trial violated his constitutional right to a public trial and amounted to
plain structural error warranting reversal. He disagreed, however, with the majority’s decision to
modify the existing plain-error standard for reviewing unpreserved structural errors on its own
initiative and with no warning to the bench and the bar, notwithstanding the Court’s prior precedent
rejecting the rule that the majority adopted. He stated that the majority opinion’s framework erodes
the preservation standard by undermining the reasons for requiring errors to be preserved for
appellate review, which are to allow trial courts the opportunity to correct the error, to prevent the
administrative and social costs of further proceedings that could have been avoided with a timely
objection, and to deter defendants and their counsel from harboring error as an appellate parachute.
He further noted that the majority need not have adopted a new standard in order to provide relief
in this case given that defendant could demonstrate that he was entitled to a reversal under all four
prongs of the current plain-error standard.
 Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

OPINION Bridget M. McCormack Brian K. Zahra
David F. Viviano
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
Elizabeth M. Welch

FILED March 14, 2022

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 161396

DONALD WAYNE DAVIS, JR.,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

CLEMENT, J.
At issue in this case is whether defendant, Donald W. Davis, Jr., was deprived of

his constitutional right to a public trial. After a benign interaction between a courtroom

observer and a juror on the second day of trial, the trial court removed all but one observer

from the courtroom, instructed the removed observers not to return, and stated that the

courtroom would be closed for the remainder of trial. Although the trial court did not take
any further action to effectuate this closure, we hold that the unjustified closure nonetheless

violated defendant’s public-trial right and constituted plain error requiring reversal.

I. FACTS AND PROCEDURAL HISTORY

This case arises from the murder of Devante Hanson. In 2016, a security guard

found Hanson’s body in the driver’s seat of a running car parked outside an apartment

complex. Hanson had been shot to death. On the basis of surveillance-camera footage,

defendant and Spencer Holiday were identified as the parties who might have been

responsible for Hanson’s death. As part of a plea deal, Holiday testified against defendant

at trial. According to Holiday, defendant lured Hanson to the apartment complex by

offering to purchase marijuana from Hanson, but actually intended to rob Hanson. When

defendant and Holiday entered Hanson’s vehicle, defendant brandished a gun at Hanson

and demanded money and marijuana. Hanson reached for defendant’s gun, and defendant

fatally shot him. Defendant then demanded at gunpoint that Holiday shoot Hanson as well,

and Holiday complied.

The prosecutor charged defendant with first-degree murder, based on alternate

theories of premeditated murder and felony murder. 1 On the second day of trial, the trial

court became aware that a courtroom observer had spoken to a juror during a break in the

proceedings. The trial court identified the courtroom observer as Daundria Frye, who

explained that she was attending the trial because Hanson was the father of her child. The

following exchange then took place:

1
The prosecutor also charged defendant with assault with intent to commit armed robbery,
being a felon in possession of a firearm, being a felon in possession of ammunition, and
four counts of carrying a firearm during the commission of a felony.

2
 The Court: So you know, counselors, the jury has complained that
that woman has tried to talk to them.

Ms. Frye: No. I didn’t try to talk, I just saw a lady and I asked—I’m
like did you—do you work at Hurley’s? I know I’m not supposed to talk to
them.

The Court: I’ve got two choices. One is to find you in contempt of
court and lock you up.

Ms. Frye: [Are] you serious?

The Court: I’m serious. The other is to order everyone in the gallery
to leave the courthouse and not come back. What we’re going to do is this;
in order to lock you up I’d have to get you a lawyer first and that wastes time
because we have things to do here. So instead, I’m going to bar everyone
from this courthouse except for the mother of Devante [Hanson]. The rest of
you leave. Don’t you come back.

Ms. Frye: Okay.

The Court: Shame on you trying to subvert the justice system.

Shortly thereafter, a person unidentified in the trial transcript sought clarification of the

trial court’s verbal order:

Unidentified Speaker: Judge, you did mean for the remainder of the
trial correct?

The Court: For the remainder of the trial, all the way in to next week.

Unidentified Speaker: All right.

The Court: The only person allowed to watch this trial is the mother
of the young man who died. What foolishness.

The prosecutor asked the trial court whether the “jurors who have a complaint” regarding

the interaction with Frye should be questioned to determine whether they were prejudiced

by the interaction. The trial court responded that this was not necessary, reasoning that

3
Frye had merely asked one juror whether that juror worked at Hurley Hospital and that this

interaction was merely “a short comment.”

The trial continued, and, over the course of several days, the jury heard from 14

additional witnesses, including the key testimony from Holiday described above.

Ultimately, the jury found defendant guilty as charged.

Defendant appealed by right in the Court of Appeals, and he included in his appeal

a motion to remand for an evidentiary hearing and to allow him the opportunity to file a

motion for a new trial based on a variety of issues. The Court of Appeals granted this

motion in part, ordering a remand for the sole purpose of “expand[ing] the factual record

regarding [the trial court’s] decision to close the trial to all members of the public except

for the victim’s mother, and to allow defendant to file a motion for new trial based on his

claim that trial counsel was ineffective for failing to object to the court’s decision.” People

v Davis, unpublished order of the Court of Appeals, entered November 13, 2018 (Docket

No. 343432).

On remand, testimony was elicited regarding the factual circumstances of the

courtroom closure. Defense counsel testified that, before the courtroom closure, there were

between 3 and 10 people observing the trial on the side of the prosecution, and no observers

on defendant’s side. 2 After the closure, only the decedent’s mother and an employee from

the prosecutor’s office remained in the gallery. Defense counsel also testified that he did

not know of any members of the public who tried to view the trial but were stopped, that

2
Defense counsel acknowledged on redirect examination that it was never made clear to
the jury that there was a defense side and a prosecution side of the courtroom.

4
he did not recall there being a sign on the door telling people the trial was closed, and that

he did not believe there was a deputy posted outside the courtroom to stop people from

entering. 3

Defendant’s sister testified that she came to the courthouse during the trial and found

the courtroom door locked, but she was unsure whether her attempted entry occurred

during a break in the proceedings. 4 She returned the next day but left before entering the

courtroom after feeling threatened by the decedent’s family.

Finally, Bryan Wooten, who attempted to view the trial in support of defendant, also

testified. He stated that there was no sign at the courtroom door indicating that he could

not enter, and Wooten was able to enter the courtroom without interference from the

courtroom deputy. However, after he entered, defendant gestured toward the door and

indicated that Wooten should leave, and Wooten did so. 5

3
Defense counsel also testified regarding his decision not to object to the trial court’s
decision to close the courtroom. Defense counsel explained that when the trial court made
its decision, none of the trial observers was there to support defendant. When asked
whether “it was actually better to only have the victim’s mother here as opposed to having
a large group of people,” defense counsel answered, “Absolutely.”
4
She testified that she arrived at 1:30 p.m., which was during the period in which the court
was in recess.
5
The record does not reflect the reason for defendant’s gesture, and, on appeal, the parties
have put forth competing arguments regarding the basis behind this gesture. Defendant
argues that he asked Wooten to leave to comply with the courtroom closure order; the
prosecutor argues that defendant’s request was based instead on defendant’s desire that
Wooten not observe the trial.

5
 After evaluating this testimony, the trial court denied defendant’s motion for a new

trial. The court reasoned that it had not actually closed the courtroom, explaining as

follows:

But I did not lock the courtroom, I did not close it to the public, I just kicked
out three to ten people. And I admit I poorly worded it because I said don’t
come back and I probably should have said don’t come back today. That’s
my error.

The trial court also determined that defendant had not suffered prejudice from this clearing

of the courtroom, reasoning that there was no evidence that defense supporters were cleared

from the courtroom or later prevented from observing the trial.

Defendant appealed, and the Court of Appeals affirmed in a split, published

decision. The majority succinctly agreed with the trial court that the courtroom had been

“cleared,” not closed. Further, the majority held that defendant had waived his right to a

public trial when defense counsel intentionally—according to his hearing testimony—

declined to object to the trial court’s clearing of the courtroom. In the alternative, if the

trial court’s order was instead understood to be a closure and defendant was deemed to

have forfeited, rather than intentionally waived, the argument, the Court held that defendant

would still not have been entitled to relief because he could not have satisfied the plain-

error standard. Specifically, defendant could not have demonstrated that the courtroom

closure seriously affected the fairness, integrity, or public reputation of the judicial

proceedings because the effect of the courtroom closure was merely to limit the presence

of observers supporting the prosecution. Because no observers supporting defendant were

removed or prevented from observing the trial, the courtroom closure was to defendant’s

6
benefit, and he was not entitled to relief. People v Davis, 331 Mich App 699; 954 NW2d

552 (2020). 6

Defendant subsequently applied for leave to appeal in this Court, and we ordered

oral argument on the application on the following issues:

(1) whether [defendant] was denied his right to a public trial pursuant to US
Const, Am VI, and Const 1963, art 1, § 20 where the Genesee Circuit Court
stated that it was barring everyone, but the decedent’s mother, from the
courtroom for the remainder of the trial and told others in the courtroom to
leave and not return; (2) whether, despite the court’s statement, the
courtroom remained open to the public because the courtroom door was
unlocked, no sign was posted advising members of the public that the
courtroom was closed, and court personnel did not prevent persons from
entering the courtroom; (3) whether the appellant waived his right to a public
trial; (4) whether trial counsel rendered ineffective assistance in failing to
object; see Weaver v Massachusetts, 582 US ___; 137 S Ct 1899, 1913
(2017); and (5) whether the trial court committed plain error entitling the
appellant to a new trial. [People v Davis, 507 Mich 853 (2021).]

II. ANALYSIS

A. WAIVER AND FORFEITURE

As a threshold issue, the prosecutor argues that defendant has waived this argument

and that, accordingly, appellate review is precluded. We disagree. Waiver is “ ‘the

intentional relinquishment or abandonment of a known right,’ ” and one who waives an

6
Judge SWARTZLE, concurring in part and dissenting in part, would have held that
defendant satisfied the plain-error standard and, accordingly, was entitled to a new trial.
Regarding the fourth prong of the plain-error standard, Judge SWARTZLE determined that
the closure seriously affected the fairness, integrity, and reputation of the judicial
proceedings because a majority of defendant’s trial—the testimony of 14 witnesses, closing
arguments, and the rendering of the verdict—was not subject to public view. He reasoned
that the public-trial right serves several interests beyond demonstrating community support
for a defendant or a prosecution and that defendant was denied these benefits without
sufficient justification.

7
issue cannot later seek appellate review of that issue. People v Carines, 460 Mich 750,

752 n 7; 597 NW2d 130 (1999), quoting United States v Olano, 507 US 725, 733; 113 S

Ct 1770; 123 L Ed 2d 508 (1993) (some quotation marks omitted). In order to waive a

known right, a party must “clearly express[] satisfaction with a trial court’s decision . . . .”

People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011). In contrast, a party merely

forfeits rather than waives an issue when that party fails to timely assert a right. Id. at 504

n 27.

As applied to the public-trial right, this Court has held that mere silence in the face

of a courtroom closure results in forfeiture, not waiver, of the public-trial right. People v

Vaughn, 491 Mich 642, 663-664; 821 NW2d 288 (2012). Similarly, here, defense counsel

did not object to the courtroom closure, but also did not “clearly express[] satisfaction”

with the closure, so the alleged error was forfeited. Kowalski, 489 Mich at 503.

In so holding, we reject the Court of Appeals’ use of defense counsel’s posttrial

statements at the evidentiary hearing to supplement defense counsel’s silence at trial and

its resultant conclusion that the issue was waived rather than forfeited. The failure to

object—even when purposeful or strategic—does not constitute the clear, outward

expression of satisfaction with a trial court’s decision that is necessary to find waiver. See

Vaughn, 491 Mich at 663-664. And defense counsel’s testimony detailing his motivation

behind the lack of objection, elicited months after trial when defense counsel was no longer

representing defendant, does not retroactively transform defense counsel’s silence into an

affirmative approval. Eliciting testimony from defense counsel regarding his motivations

for not objecting at trial is not the same as defense counsel’s waiving an issue at trial on

behalf of his client. Further, the majority’s analysis ignores the reality that, posttrial,

8
defense counsel’s interests are no longer necessarily aligned with those of the defendant

and that defense counsel may no longer make decisions on behalf of the defendant. It

places defendants who seek posttrial evidentiary hearings in an unequal position with those

defendants who do not, as the former risk having their arguments deemed waived and

prohibited from appellate review by virtue of their defense counsel’s testimony at the

hearing, whereas the latter class of defendants is not exposed to such a risk. Accordingly,

an attorney’s posttrial testimony as to the reason for the attorney’s lack of objection cannot

retroactively transform the forfeiture of a client’s right at trial into a waiver of the same.

B. THE PUBLIC-TRIAL RIGHT

Having determined that defendant has not waived this argument, we must now

consider whether the alleged courtroom closure violated defendant’s right to a public trial.

Both the United States Constitution and the Michigan Constitution guarantee a criminal

defendant the right to a public trial. US Const, Am VI; Const 1963, art 1, § 20. “The

requirement of a public trial is for the benefit of the accused; that the public may see he is

fairly dealt with and not unjustly condemned, and that the presence of interested spectators

may keep his triers keenly alive to a sense of responsibility and to the importance of their

functions . . . .” Gannett Co v DePasquale, 443 US 368, 380; 99 S Ct 2898; 61 L Ed 2d

608 (1979) (quotation marks and citations omitted). The public-trial right also helps ensure

that judges and prosecutors fulfill their duties ethically, encourages witnesses to come

forward, and discourages perjury. Vaughn, 491 Mich at 667.

Despite serving these important interests, the public-trial right is not unlimited, and

circumstances may exist that warrant the closure of a courtroom during any stage of a

9
criminal proceeding. Id. at 653. In order to justify a courtroom closure, there must be “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

653, quoting Waller v Georgia, 467 US 39, 48; 104 S Ct 2210; 81 L Ed 2d 31 (1984)

(quotation marks omitted).

1. STANDARD OF REVIEW

When preserved, the erroneous denial of a defendant’s public-trial right is

considered a structural error. Weaver v Massachusetts, 582 US ___, ___; 137 S Ct 1899,

1908; 198 L Ed 2d 420 (2017). Structural errors “are structural defects in the constitution

of the trial mechanism, which defy analysis by ‘harmless-error’ standards.” Arizona v

Fulminante, 499 US 279, 309; 111 S Ct 1246; 113 L Ed 2d 302 (1991). Because the harm

rendered by these errors is extensive but intrinsic and difficult to quantify, preserved

structural errors result in automatic relief to the defendant to “ensure insistence on certain

basic, constitutional guarantees that should define the framework of any criminal trial.”

Weaver, 582 US at ___; 137 S Ct at 1907.

Although preserved structural errors are subject to automatic reversal, the alleged

error here was forfeited. 7 In order to receive relief on a forfeited claim of constitutional

error, a defendant must prove that (1) error occurred, (2) the error “was plain, i.e., clear or

7
Although the term “structural error” was coined in the context of preserved claims of
errors exempt from the harmless-error standard, for brevity’s sake, and for the sake of the
bench and bar moving forward, we will also use the term “structural error” to include the
same type of errors, even when unpreserved.

10
obvious,” and (3) “the plain error affected substantial rights.” People v Carines, 460 Mich

750, 763; 597 NW2d 130 (1999). Further, “[r]eversal is warranted only when the plain,

forfeited error resulted in the conviction of an actually innocent defendant or when an error

seriously affected the fairness, integrity or public reputation of judicial proceedings

independent of the defendant’s innocence.” Id. (quotation marks, brackets, and citation

omitted). However, as discussed later in this opinion, there are special considerations

relevant to this analysis when a forfeited structural error is at issue.

Finally, we review a trial court’s factual findings for clear error. Vaughn, 491 Mich

at 650. “Clear error exists when the reviewing court is left with the definite and firm

conviction that a mistake has been made.” People v Kurylczyk, 443 Mich 289, 303; 505

NW2d 528 (1993) (opinion of GRIFFIN, J.).

2. FACTUAL ISSUE OF CLOSURE

To begin, we disagree with the lower courts’ finding that the courtroom was not

closed to the public.

Here, the trial court ordered “everyone in the gallery to leave the courthouse and not

come back.” 8 And it further specified that the observers were not allowed to return “[f]or

the remainder of the trial, all the way in to next week” and that “[t]he only person allowed

to watch this trial is the mother of the young man who died.” There is no ambiguity in this

language: The trial court had ordered the courtroom closed to all observers except Hanson’s

8
The court made an exception for Hanson’s mother, whose presence was expressly
permitted by statute. MCL 780.761; MCL 780.752(1)(m)(ii)(C).

11
mother for the remainder of the trial. We are “left with a definite and firm conviction” that

the trial court was mistaken in concluding otherwise. Kurylczyk, 443 Mich at 303.

The trial court’s posttrial interpretation of this oral order as a temporary “clearing”

of the courtroom ignores its own explicit instruction that the observers were not allowed to

return for the remainder of trial, not just the remainder of that particular day. 9 Moreover,

even accepting as true the trial court’s posttrial assertions that it did not lock the courtroom

or eject any observers during the remainder of trial, the trial court’s failure to enforce or

otherwise effectuate the order does not undo it. 10 The observers who were removed from

the courtroom on the day of the order were directed not to return for the remainder of the

trial, and they did not. The parties understood that no observers would be allowed for the

9
Specifically, at the close of the evidentiary hearing, the trial court stated, “I admit I poorly
worded [the order] because I said don’t come back and I probably should have said don’t
come back today,” but the trial court actually directed the observers not to return “[f]or the
remainder of the trial.”
10
While the Court of Appeals found that the courtroom was not closed, it proceeded in the
alternative with a plain-error analysis as follows:

The trial court stated that it did not actually close the courtroom to the
public and that the doors were never locked, and no one was ejected from the
courtroom after Frye and the victim’s other supporters were ejected. We
decline to call into question the highly respected jurist’s credibility, so we
shall proceed with our analysis on the assumption that the courtroom was
closed for the remainder of the trial. [People v Davis, 331 Mich App at 712
n 1.]

There are established standards for reviewing the trial court’s findings of fact and
conclusions of law, and none of these standards involves an assessment of the presiding
judge’s professional reputation. See People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). The presence of legal error does not depend on a jurist’s respectability, and to
the extent that the Court of Appeals adopted the trial court’s rulings and findings of fact on
that basis, it erred.

12
remainder of the trial, and the trial court did not later advise them otherwise. We do not

require the trial court to have ejected potential observers or taken actions to bar entry of

potential observers to find that a closure order was in place. Such requirements would

expose potential observers to the risk of being held in contempt of court for violating the

previously rendered closure order. It would also treat defendants inequitably on the basis

of the level of community interest in their prosecution, as those whose cases lack potential

interested observers would be unable to meet this standard.

In sum, pursuant to the plain language of the trial court’s verbal order, we find that

the trial court’s order rendered the courtroom closed to the public for a majority of the trial.

3. APPLICATION OF THE PLAIN-ERROR STANDARD

Having found that the courtroom was factually closed, we hold that the decision to

close the courtroom was plain error.

a. PLAIN ERROR OCCURRED

As discussed, to justify a courtroom closure, there must be “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.” Vaughn, 491 Mich at 653, quoting

Waller, 467 US at 48 (quotation marks omitted). Here, Frye’s prohibited interaction with

the juror implicated the impartiality of the jury. Given defendant’s constitutional right to

be tried by an impartial jury, US Const, Am VI; Const 1963, art 1, § 20, preventing

interference with the jury is undoubtedly an overriding interest. The trial court thus was

justified in attempting to safeguard that interest.

13
 However, the trial court failed to comply with the remainder of the requirements set

forth in Vaughn and Waller. First, the closure was broader than necessary to protect the

impartiality of the jury. See Waller, 467 US at 48. The trial court could have banned only

Frye from the courtroom, given that no other member of the public attempted to interact

with the jury. It could have repeated its previous instructions to observers regarding the

prohibition on juror interaction or given more detailed instructions. Or it could have had

the deputy escort the jury to and from the courtroom to prevent any potential interaction

with members of the public. Any of these alternatives on their own or in combination

would have safeguarded the jury’s impartiality while still maintaining a public trial under

the circumstances of this case.

Second, the trial court failed to consider reasonable alternatives to closing the

proceeding. See id. As discussed, there were several alternatives to closure available to

the trial court. But the trial court considered only the option of holding Frye in contempt

of court.

Third, the trial court also failed to make adequate factual findings to support the

closure. See id. The trial court did not find that Frye’s interaction with the juror was for

the purpose of interfering with court proceedings or tampering with the jury. It did not find

that the result of Frye’s interaction with the juror was a biased juror. And it did not find

that a closure was necessary to protect the impartiality of the jury. To the contrary, the trial

court concluded that it was unnecessary to question the jurors to determine whether any

were prejudiced by Frye’s interaction with the juror because it was merely a “short

comment.” Without factual findings to support its conclusion, the trial court’s decision to

close the courtroom was unjustified.

14
 The trial court’s failure to comply with the requirements set forth in Vaughn and

Waller constituted error. We also conclude that the error was plain, as these requirements

are well established and the trial court’s failure to comply with them is readily apparent

from the record. See Carines, 460 Mich at 763.

b. THE ERROR AFFECTED DEFENDANT’S SUBSTANTIAL RIGHTS

Having found that plain error occurred, we must now consider whether the plain

error affected defendant’s substantial rights. See id. This prong of the plain-error analysis

is typically satisfied by demonstrating that the plain error likely affected the outcome of

the trial court proceedings. See Olano, 507 US at 734; Carines, 460 Mich at 763. We

readily apply that standard in the context of nonstructural error—for example, by

concluding that wrongly admitted evidence likely caused the jury to reach a guilty verdict.

See Fulminante, 499 US at 307-308. But this prong presents special difficulty when

presented with a structural error. Because structural errors by definition “affect[] the

framework within which the trial proceeds” rather than a single piece of evidence or aspect

of the trial, the harm rendered by structural errors is substantial but often difficult to

quantify. Id. at 310. Given these difficulties, structural errors are particularly ill-suited to

an analysis of whether the error affected the outcome of the trial court proceedings.

The United States Supreme Court faced similar difficulty in the context of applying

the harmless-error standard to preserved structural errors. Generally, preserved errors are

subject to the harmless-error rule, under which a defendant is denied relief only if the

complained-of error was harmless beyond a reasonable doubt. Chapman v California, 386

US 18, 24; 87 S Ct 824; 17 L Ed 2d 705 (1967); Carines, 460 Mich at 774. But when faced

15
with applying this prejudice standard to preserved structural errors, the Court was met with

the same difficulties we described earlier; specifically, that errors in the framework of the

trial cause serious, but usually unquantifiable harm. Fulminante, 499 US at 289-290. The

Court ultimately determined that these structural errors involved “constitutional rights so

basic to a fair trial that their infraction can never be treated as harmless error,” Chapman,

386 US at 23, and held that the proper remedy for a preserved structural error is automatic

reversal, Fulminante, 499 US at 309.

This Court has previously suggested that structural errors satisfy the third prong of

the plain-error standard. See Vaughn, 491 Mich at 666; see also Cain, 498 Mich 108, 145;

869 NW2d 829 (2015) (VIVIANO, J., dissenting) (advocating for this Court to expressly

recognize that structural errors satisfy the third prong). The harmless-error and plain-error

standards require “the same kind of inquiry,” because they both require appellate courts to

assess the effect of the error on the outcome of the trial court proceedings. Olano, 507 US

at 734. Accordingly, just as preserved structural errors “defy analysis by ‘harmless-error’

standards,” Fulminante, 499 US at 309, we conclude that forfeited structural errors defy

analysis under the third prong of the plain-error standard. Just as the United States Supreme

Court jettisoned the prejudice analysis for preserved structural errors, we similarly jettison

the prejudice analysis for forfeited structural errors. Instead, we hold that because

structural errors often “render a trial fundamentally unfair” and an “unreliable vehicle for

determining guilt or innocence,” Neder v United States, 527 US 1, 8-9; 119 S Ct 1827; 144

L Ed 2d 35 (1999) (quotation marks and citations omitted), 11 and affect the framework

11
Although the United States Supreme Court in Weaver reasoned that “not every public-
trial violation will in fact lead to a fundamentally unfair trial,” the Court continued to

16
within which the trial proceeds, Fulminante, 499 US at 310, they necessarily affect a

defendant’s substantial rights. 12 Accordingly, the existence of a forfeited structural error

alone satisfies the third prong of the plain-error standard, and a defendant need not also

show the occurrence of outcome-determinative prejudice. 13 As applied here, because the

deprivation of the public-trial right is a structural error, defendant has satisfied the third

prong of the plain-error standard. Vaughn, 491 Mich at 666; Weaver, 582 US at ___; 137

S Ct at 1908.

c. REVERSAL IS WARRANTED

We must now consider whether “the plain, forfeited error . . . seriously affected the

fairness, integrity or public reputation of judicial proceedings independent of the

recognize that some structural errors do always result in fundamental unfairness, “either to
the defendant in the specific case or by pervasive undermining of the systematic
requirements of a fair and open judicial process.” Weaver, 582 US at ___; 137 S Ct at
1911. In the specific context of the public-trial right, the Court further recognized that its
violation may result in fundamental unfairness, that the harm rendered by such a violation
is difficult to quantify, and that the public-trial right protects interests of people beyond the
defendant. Id. at ___; 137 S Ct at 1910. Although the violation of the public-trial right
may not always result in fundamental unfairness, it does affect the framework within which
the trial proceeds, and the harm rendered is sufficiently significant to support our
conclusion that violation of this right necessarily affects a defendant’s substantial rights.
12
This holding is consistent with the United States Supreme Court’s decision in Olano,
507 US at 735, in which the Court suggested, but did not affirmatively hold, that forfeited
structural errors may constitute “a special category of forfeited errors that can be corrected
regardless of their effect on the outcome” of the trial court proceedings.
13
In so doing, we join multiple federal circuits who have held similarly. See United States
v Adams, 252 F3d 276, 285-286 (CA 3, 2001); United States v Ramirez-Castillo, 748 F3d
205, 215 (CA 4, 2014); Robinson v Ignacio, 360 F3d 1044, 1061 (CA 9, 2004).

17
defendant’s innocence.” Carines, 460 Mich at 763 (quotation marks, citation, and brackets

omitted). 14

We take this opportunity to hold that a forfeited structural error creates a formal

presumption that this prong of the plain-error standard has been satisfied. 15 “[T]here is

substantial overlap between the characteristics of structural errors (i.e., they ‘necessarily

render a trial fundamentally unfair’) and the standard under the fourth Carines prong

(‘serious effect on the fairness, integrity, or public reputation of the proceedings’).” Cain,

498 Mich at 148 (VIVIANO, J., dissenting). A trial that has been rendered fundamentally

unfair or had its framework affected by structural error is generally one whose fairness,

integrity, or public reputation has been damaged. See Vaughn, 491 Mich at 667 (reasoning

that “any error that is structural is likely to have an effect on the fairness, integrity or public

reputation of judicial proceedings”) (quotation marks and citation omitted); United States

v Recio, 371 F3d 1093, 1103 n 7 (CA 9, 2004) (“We note that structural error is particularly

likely to satisfy [the] fourth prong [of the plain-error standard].”). Given this conceptual

overlap between the third and fourth prongs of the plain-error standard and that a forfeited

14
Defendant does not argue that the error resulted in the conviction of an actually innocent
defendant.
15
The concurrence asserts that this part of our holding is a sua sponte modification of the
law. We disagree. Defendant prompted us to take this approach as a responsive suggestion
to the part of our order that asked the parties whether a plain error occurred below. Davis,
507 Mich 853. Given that this modification of the prior plain-error standard was made at
a party’s prompting, we do not view this as a sua sponte change to the law. See, e.g.,
Black’s Law Dictionary (11th ed) (defining “sua sponte” as “[w]ithout prompting or
suggestion; on [the court’s] own motion”).

18
structural error automatically satisfies the third prong of the plain-error standard, a forfeited

structural error is very likely to also satisfy the fourth prong of the plain-error test.

Recognizing a formal rebuttable presumption creates a better framework for future

courts applying the plain-error standard to forfeited structural errors. Just as defendants

face difficulty in proving prejudice from structural errors, they also face difficulty in

identifying specific facts on the record showing that the forfeited structural error seriously

affected the fairness, integrity, or public reputation of the trial. The formal rebuttable

presumption in cases of forfeited structural error will shift the burden to the prosecutor to

demonstrate that the error did not seriously affect the fairness, integrity, or public

reputation of the judicial proceeding. The prosecutor is better positioned to marshal record

facts supporting the overall fairness of the trial proceedings. For example, in the context

of courtroom closures, a prosecutor may successfully rebut the presumption when the trial

court failed to sufficiently articulate the basis for the closure under Waller, but sufficient

justification for the specific closure was present elsewhere in the record. A prosecutor may

also successfully rebut such a presumption when an unjustified closure was limited and the

courtroom remained open during most of the critical stages of trial. In those hypothetical

situations, specific facts could affirmatively demonstrate that, despite the error, the overall

fairness, integrity, and reputation of the trial court proceedings were preserved. 16

16
The ability to rebut this presumption is consistent with our historical differentiation
between preserved and unpreserved errors. “This Court disfavors consideration of
unpreserved claims of error,” and the mere occurrence of error is insufficient for relief if
the defendant failed to object to the error in the trial court. Carines, 460 Mich at 761-762.
Enforcing a higher standard to achieve relief for unpreserved error encourages defendants
to identify error at trial, as the trial court is “ordinarily in the best position to determine the
relevant facts and adjudicate the dispute,” and resolution at the trial court level prohibits

19
 As applied in the present case, the denial of defendant’s public-trial right—as a

structural error—presumptively establishes that the error had a serious effect on the

fairness, integrity, or public reputation of the trial, and the prosecutor has not rebutted this

presumption. The prosecutor, with whom the Court of Appeals agreed, argues that this

prong is not satisfied because the closure “reduced the perception that the gallery was pro-

victim and against defendant, and it made less glaring the fact that no one was there who

supported defendant.” Davis, 331 Mich App at 716. But the public-trial right does not

serve only defendant’s interest in the presence of community support. The existence of

public observers, no matter their affiliation, helps to ensure a fair trial, to ensure that

attorneys and judges do their jobs responsibly, to encourage witnesses to come forward,

and to discourage perjury. Vaughn, 491 Mich at 667. Further, this focus on the supposed

absence of harm to defendant himself fails to consider the harm rendered to the integrity

and public reputation of the trial. While we agree with the prosecutor that jurors are

presumed to follow their instructions and that the jurors in this case were instructed to base

their decisions on the evidence, that alone is not enough to rebut the presumption where

the defendant from using the alleged error as an appellate parachute. Puckett v United
States, 556 US 129, 134; 129 S Ct 1423; 173 L Ed 2d 266 (2009). Here, although the
fundamental and unquantifiable harm rendered by forfeited structural errors is sufficient to
satisfy the third prong of the plain-error standard and presumptively satisfy the fourth, the
prosecutor’s ability to rebut the latter presumption means that the defendant is not
guaranteed relief for a forfeited structural error. Accordingly, defendants remain
encouraged to object to structural errors at the trial court, where the trial court may
contemporaneously cure the error, or, upon appeal, the defendant will receive automatic
relief. Those defendants who forfeit their argument continue to face a higher threshold for
relief on appeal than those who preserved their argument. Under these circumstances, we
find unlikely the concurrence’s concern that litigants will strategically choose not to object
to potential structural error in order to harbor that error as an appellate parachute.

20
the vast majority of the critical parts of this trial occurred behind closed doors. 17 Therefore,

we hold that the prosecutor has failed to rebut the presumption that the deprivation of

defendant’s public-trial right had a serious effect on the fairness, integrity, or public reputation

of the trial. Having satisfied the plain-error standard, defendant is entitled to relief.

III. CONCLUSION

The trial court’s closure of the courtroom for nearly the entirety of trial after a single,

benign interaction between an observer and a juror constituted plain error. Because the

deprivation of a defendant’s public-trial right is a structural error, it necessarily affected

defendant’s substantial rights. This structural error presumptively satisfies the plain-error

standard’s requirements for reversal, and here, neither the prosecutor’s arguments nor the

record evidence rebuts that presumption. Accordingly, we reverse the Court of Appeals

judgment and remand to the trial court for a new trial.

Elizabeth T. Clement
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch

17
While the courtroom was closed in this case, “the jury heard the testimony of 14
witnesses, 13 of whom testified for the prosecution. Counsel then presented their closing
arguments, the trial court instructed the jury, and the jury returned its verdict—all in
private.” Davis, 331 Mich App at 724 (SWARTZLE, P.J., concurring in part and dissenting
in part). “If a portion of the trial may be conducted behind barred doors, it may all be
conducted behind barred doors. If one constitutional right may be violated with impunity,
all may be and the bill of rights becomes but a scrap of paper. The defendant has not had
the public trial guaranteed him by the Constitution.” People v Micalizzi, 223 Mich 580,
585; 194 NW 540 (1925).

21
 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 161396

DONALD WAYNE DAVIS, JR.,

Defendant-Appellant.

ZAHRA, J. (concurring in the result).
I concur with the majority opinion that the closure of the courtroom for the majority

of defendant’s trial violated his constitutional right to a public trial and amounted to plain

structural error warranting reversal. I disagree, however, with this Court’s sua sponte

decision to modify the existing plain-error standard of review adopted by this Court in

People v Carines 1 for reviewing unpreserved structural errors. With no warning to the

bench and the bar, the majority opinion opportunistically concludes that structural errors

defy plain-error review and that the prosecution must bear the burden of proving that an

unpreserved structural error did not result in the conviction of an actually innocent

defendant or seriously affect the fairness, integrity, or public reputation of a defendant’s

trial so as to warrant reversal—notwithstanding this Court’s prior precedent rejecting such

a rule. The majority opinion’s newfound framework erodes the preservation standard in

this state by undermining the very reasons for which we require errors to be preserved for

1
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
appellate review—to allow trial courts the opportunity to correct the error, to prevent the

administrative and social costs of further proceedings that could have been avoided with a

timely objection, and to deter defendants and their counsel from harboring error as an

appellate parachute. Further still, the majority opinion casts aside our jurisprudence

without any apparent need to do so in this case. That is, because defendant can demonstrate

that he is entitled to a reversal under all four prongs of the current plain-error standard, this

Court fashions a rule it need not even apply to afford defendant relief. Accordingly, while

I concur in the result reached by the majority opinion, I very much disagree with its

reasoning.

I. THE PLAIN-ERROR STANDARD

Time and again, this Court has emphasized “ ‘ “the importance of preserving issues

for appellate review” ’ ” and expressed its disfavor of considering “ ‘ “unpreserved claims

of error,” even unpreserved claims of constitutional error.’ ” 2 “As a general rule, appellate

courts will not grant relief on belated claims of error unless the proponent establishes,

among other things, that the unpreserved error seriously affected the fairness, integrity, or

public reputation of the judicial proceedings.” 3 This general rule exists for good reason:

“ ‘ “[A]nyone familiar with the work of courts understands that errors are a constant in the

trial process, that most do not much matter, and that a reflexive inclination by appellate

2
People v Cain, 498 Mich 108, 115; 869 NW2d 829 (2015), quoting People v Vaughn, 491
Mich 642, 653-654; 821 NW2d 288 (2012). See also Carines, 460 Mich at 761-762, citing
People v Grant, 445 Mich 535; 520 NW2d 123 (1994).
3
Cain, 498 Mich at 112 (emphasis added).

2
courts to reverse because of unpreserved error would be fatal.” ’ ” 4 “Preservation serves

‘the important need to encourage all trial participants to seek a fair and accurate trial the

first time around[.]’ ” 5

It is with this basic understanding of appellate law that this Court in Carines adopted

the plain-error standard set forth by the Supreme Court of the United States in United States

v Olano for forfeited constitutional errors. 6 “[I]n order to receive relief on his forfeited

claim of constitutional error, defendant must establish (1) that the error occurred, (2) that

the error was plain, (3) that the error affected substantial rights, and (4) that the error either

resulted in the conviction of an actually innocent defendant or seriously affected the

fairness, integrity, or public reputation of judicial proceedings.” 7 Although the third prong

generally requires a defendant to establish “prejudice,” i.e., that the error affected the

outcome of the proceedings, there exists a special “category of cases, yet to be clearly

defined, where prejudice is presumed or reversal is automatic.” 8 Errors in these cases are

referred to as “structural errors” because “they ‘affect the framework within which the trial

4
Id. at 115, quoting Puckett v United States, 556 US 129, 134; 129 S Ct 1423; 173 L Ed
2d 266 (2009).
5
People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006), quoting Grant, 445 Mich at
551.
6
Carines, 460 Mich at 763-764, citing United States v Olano, 507 US 725; 113 S Ct 1770;
123 L Ed 2d 508 (1993).
7
Vaughn, 491 Mich at 664-665 (quotation marks omitted; emphasis added), citing Carines,
460 Mich at 763.
8
Vaughn, 491 Mich at 666 (quotation marks and citation omitted).

3
proceeds’ and are not ‘simply an error in the trial process itself.’ ” 9 As we stated in People

v Vaughn, another case involving an unpreserved claim of error regarding a defendant’s

right to a public trial:

While the Supreme Court of the United States has specifically
reserved judgment on whether an unpreserved structural error automatically
affects a defendant’s substantial rights, this Court’s decision in People v
Duncan[10] has explained that structural errors are intrinsically harmful,
without regard to their effect on the outcome. Accordingly, our caselaw
suggests that a plain structural error satisfies the third Carines prong.

Nevertheless, even if defendant can show that the error satisfied the
first three Carines requirements, we must exercise discretion and only grant
defendant a new trial if the error resulted in the conviction of an actually
innocent defendant or seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Although denial of the right to a public
trial is a structural error, it is still subject to this requirement. While any error
that is structural is likely to have an effect on the fairness, integrity or public
reputation of judicial proceedings, the plain-error analysis requires us to
consider whether an error seriously affected those factors.[11]

In People v Cain, this Court reaffirmed Vaughn’s holding that even with respect to

unpreserved structural errors, “a defendant is still not entitled to relief unless he or she can

9
United States v Gonzalez-Lopez, 548 US 140, 148; 126 S Ct 2557; 165 L Ed 2d 409
(2006) (brackets omitted), quoting Arizona v Fulminante, 499 US 279, 309-310; 111 S Ct
1246; 113 L Ed 2d 302 (1991). Structural errors are distinguishable from “trial error[s],”
which are errors that “occur[] during presentation of the case to the jury” and “may be
quantitatively assessed in the context of other evidence presented in order to determine
whether [they are] harmless beyond a reasonable doubt.” Gonzalez-Lopez, 548 US at 148
(quotation marks and citation omitted).
10
People v Duncan, 462 Mich 47, 51; 610 NW2d 551 (2000).
11
Vaughn, 491 Mich at 666-667 (quotation marks, citations, and ellipses omitted).

4
satisfy the four requirements set forth in Carines.” 12 “While meeting all four prongs is

difficult, as it should be, the plain-error test affords defendants sufficient protection

because . . . [a]pplication of a plain-error analysis to unpreserved structural error does not

deny that error close consideration . . . .” 13 Reviewing courts must “ ‘consider carefully

whether any forfeited error either resulted in the conviction of an actually innocent

defendant or seriously affected the fairness, integrity, or public reputation of judicial

proceedings.’ ” 14 “[T]he fourth Carines prong is meant to be applied on a case-specific

and fact-intensive basis.” 15

II. PROBLEMS WITH THE MAJORITY OPINION’S FRAMEWORK

Rather than follow the traditional plain-error framework outlined in Carines and

applied in Vaughn, the majority opinion carves out an exception for unpreserved structural

errors. The Court concludes that all structural errors defy the third prong of Carines

because they render a trial fundamentally unfair, undermine the reliability of the guilt-

determining process, and affect the framework within which the trial proceeds. As to the

fourth Carines prong, the majority opinion shifts the burden to the prosecution to show

why the forfeited structural error did not result in the conviction of an actually innocent

defendant or seriously affect the fairness, integrity, and public reputation of defendant’s

trial. I discern a number of problems with the Court’s newfound framework.

12
Cain, 498 Mich at 116.
13
Id. (quotation marks, citations, and brackets omitted).
14
Id. at 116-117, quoting Vaughn, 491 Mich at 655 n 42.
15
Id. at 121.

5
 As an initial matter, I am troubled by this Court’s sua sponte decision to modify the

current plain-error standard with absolutely no notice to the bench and the bar. Nothing in

this Court’s order for supplemental briefing even hinted at the notion that this Court was

considering altering our traditional framework, nor did our order invite traditional interest

groups, such as the Prosecuting Attorneys Association of Michigan, to file briefs amicus

curiae. 16 Also, defendant did not request such a change in the law in his application for

leave to appeal. Instead, defendant’s supplemental brief advocates for this new standard

in the alternative; that is, only if this Court concludes that defendant cannot satisfy his

burden under all four Carines prongs. By adopting a new standard of appellate review for

unpreserved structural errors without notice to the bench and the bar, this Court deprives

interested parties from weighing in on this jurisprudentially significant issue, which has

far-reaching ramifications in our state’s criminal law jurisprudence.

These prudential concerns are particularly heightened considering that the majority

opinion goes further than the Supreme Court of the United States or this Court has

previously been willing to go. “Despite its name, the term ‘structural error’ carries with it

no talismanic significance as a doctrinal matter. It means only that the government is not

entitled to deprive the defendant of a new trial by showing that the error was harmless

beyond a reasonable doubt.” 17 As we stated in Vaughn, the Supreme Court of the United

States “has expressly distinguished plain-error analysis from harmless-error analysis” by

16
See People v Davis, 507 Mich 853 (2021).
17
Weaver v Massachusetts, 582 US ___, ___; 137 S Ct 1899, 1910; 198 L Ed 2d 420 (2017)
(quotation marks and citation omitted; emphasis added).

6
“repeatedly with[holding] judgment on whether a structural error automatically satisfies

the third prong of plain-error analysis, implying that structural errors do not entirely defy

plain-error analysis, even if they do defy harmless-error analysis.” 18 We also explained in

Vaughn that the Supreme Court’s decision in Johnson v United States “rejected the

argument that Olano does not apply to a claimed structural error because it had ‘no

authority’ to create ‘out of whole cloth’ an exception to the traditional forfeiture analysis

simply because the claimed error was structural.” 19 By concluding that all unpreserved

structural errors defy the traditional plain-error framework, automatically satisfy the third

Carines prong, and presumptively satisfy the fourth Carines prong, the majority opinion

breaks new ground with little discussion of this Court’s previous concerns about keeping

harmless-error review and plain-error review conceptually separate.

Further, this Court in Cain specifically rejected the majority opinion’s new burden-

shifting framework, stating:

The dissent’s theory that the structural nature of the error presumptively
establishes the fourth prong is inconsistent with this Court’s recent holding
in Vaughn, that even with regards to a structural error, a defendant is not
entitled to relief unless he can establish that the error seriously affected the
fairness, integrity, or public reputation of judicial proceedings and that while
any error that is structural is likely to have an effect on the fairness, integrity
or public reputation of judicial proceedings, the plain-error analysis requires
us to consider whether an error seriously affected those factors.[20]

18
Vaughn, 491 Mich at 656 n 42 (emphasis omitted), citing Puckett, 556 US at 140.
19
Id. at 655, quoting Johnson v United States, 520 US 461, 466; 117 S Ct 1544; 137 L Ed
2d 718 (1997).
20
Cain, 498 Mich at 118 n 4 (quotation marks, citations, and ellipses omitted). Although
the majority opinion recognizes that “not every public-trial violation will in fact lead to a
fundamentally unfair trial,” Weaver, 582 US at ___; 137 S Ct at 1911, it fails to give due

7
This Court now adopts the dissent’s theory in Cain and overrules Vaughn’s application of

the plain-error standard for unpreserved structural errors without any mention of the

doctrine of stare decisis. 21

weight to this principle in its articulation of its rebuttable presumption under the fourth
Carines prong. The majority states that “[t]here is substantial overlap between the
characteristics of structural errors (i.e., they necessarily render a trial fundamentally
unfair) and the standard under the fourth Carines prong (serious effect on the fairness,
integrity, or public reputation of the proceedings).” Ante at 18 (quotation marks and
citation omitted; emphasis added). However, “[a]n error can count as structural even if the
error does not lead to fundamental unfairness in every case.” Weaver, 582 US at ___; 137
S Ct at 1908; see also Gonzalez-Lopez, 548 US at 149 n 4 (rejecting the notion that
“fundamental unfairness” is the sole criterion of structural error and stating that structural
errors do not “always or necessarily render a trial fundamentally unfair and unreliable”).
Indeed, we recognized in Vaughn that “[t]he right to a public trial is of a different order
because the violation of that right does not necessarily affect qualitatively the guilt-
determining process or the defendant’s ability to participate in the process.” Vaughn, 491
Mich at 657 (quotation marks and citation omitted). Therefore, while there may be some
overlap between the characteristics of structural error and the “fairness” principles
encompassed in the fourth Carines prong, this will not always be the case, as there are
other considerations unrelated to the fairness or reliability of the proceedings that can
contribute to an error being labeled “structural” such that it defies harmless-error analysis.
See Weaver, 582 US at ___; 137 S Ct at 1908-1910 (explaining that there are at least three
broad, nonexclusive rationales for why an error may be deemed “structural”—(1) “if the
right at issue is not designed to protect the defendant from erroneous conviction but instead
protects some other interest”; (2) “if the effects of the error are simply too hard to measure”;
or (3) “if the error always results in fundamental unfairness”—and that public-trial
violations have characteristics of all three).
21
People v Feezel, 486 Mich 184, 212; 783 NW2d 67 (2010) (“Deciding to overrule
precedent is not a decision that this Court takes lightly. Indeed, this Court should respect
precedent and not overrule or modify it unless there is substantial justification for doing
so.”). See Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000) (establishing a
three-part test to determine whether to depart from stare decisis).

8
 The majority opinion’s new framework also largely ignores the broader teachings

of the United States Supreme Court’s recent decision in Weaver v Massachusetts. 22 The

issue in Weaver was whether the burden of proving prejudice for an unpreserved public-

trial violation changed when the defendant raised that claim of structural error on collateral

review via an ineffective-assistance-of-counsel claim rather than on direct review. 23 The

Court ultimately concluded that the burden remained on the defendant to show prejudice

under either the traditional ineffective-assistance-of-counsel standard articulated in

Strickland v Washington (i.e., “ ‘a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different’ ”), or a less

“ ‘mechanical’ ” framework that focused on “ ‘the fundamental fairness of the

proceeding’ ” (i.e., that the attorney’s error rendered the defendant’s trial fundamentally

unfair). 24 Particularly relevant is the Court’s discussion as to why placing the burden on

the defendant, who failed to preserve the claimed error on direct appeal, was appropriate:

The reason for placing the burden on the [defendant] in this
case . . . derives both from the nature of the error and the difference between
a public-trial violation preserved and then raised on direct review and a
public-trial violation raised as an ineffective-assistance-of-counsel claim. . . .

22
Weaver, 582 US ___; 137 S Ct 1899.
23
Id. at ___; 137 S Ct at 1905.
24
Id. at ___; 137 S Ct at 1911, quoting Strickland v Washington, 466 US 668, 694, 696;
104 S Ct 2052; 80 L Ed 2d 674 (1984). The Court in Weaver accepted, “for analytical
purposes,” the defendant’s argument “that under a proper interpretation of Strickland, even
if there is no showing of a reasonable probability of a different outcome, relief still must
be granted if the convicted person shows that attorney errors rendered the trial
fundamentally unfair.” Weaver, 582 US at ___; 137 S Ct at 1911. The Court ultimately
deemed it unnecessary to decide whether the defendant’s interpretation of Strickland was
correct.

9
 [W]hen a defendant objects to a courtroom closure, the trial court can either
order the courtroom opened or explain the reasons for keeping it closed.
When a defendant first raises the closure in an ineffective-assistance claim,
however, the trial court is deprived of the chance to cure the violation either
by opening the courtroom or by explaining the reasons for closure.

Furthermore, when state or federal courts adjudicate errors objected
to during trial and then raised on direct review, the systemic costs of
remedying the error are diminished to some extent. That is because, if a new
trial is ordered on direct review, there may be a reasonable chance that not
too much time will have elapsed for witness memories still to be accurate
and physical evidence not to be lost. . . .

* * *

In sum, “an ineffective-assistance claim can function as a way to
escape rules of waiver and forfeiture and raise issues not presented at trial,”
thus undermining the finality of jury verdicts.[25]

In this way, the majority opinion’s burden-shifting framework for unpreserved

structural errors subverts the many reasons we require litigants to preserve their claims of

error for appellate review. Requiring litigants to preserve their claims of error with a

contemporaneous objection provides trial courts the opportunity to correct the error,

thereby obviating the need for further proceedings and avoiding the costs of new trials that

could have been rendered unnecessary by timely objections. 26 “ ‘And of course the

25
Id. at ___; 137 S Ct at 1912 (brackets omitted; emphasis added), quoting Harrington v
Richter, 562 US 86, 105; 131 S Ct 770; 178 L Ed 2d 624 (2011).
26
Cain, 498 Mich at 114; Grant, 445 Mich at 551 (“ ‘The reversal of a conviction entails
substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the
defendants to expend further time, energy, and other resources to repeat a trial that has
already once taken place; victims may be asked to relive their disturbing experiences. The
passage of time, erosion of memory, and dispersion of witnesses may render retrial
difficult, even impossible. Thus, while reversal may, in theory, entitle the defendant only
to retrial, in practice it may reward the accused with complete freedom from prosecution,
and thereby cost the society the right to punish admitted offenders.’ ”) (quotation marks

10
contemporaneous-objection rule prevents a litigant from “sandbagging” the court—

remaining silent about his objection and belatedly raising the error only if the case does not

conclude in his favor.’ ” 27 Indeed, this case illustrates the precise problem with the Court’s

new rule. Not only did defendant not object to the closure, but defense counsel testified at

the postconviction evidentiary hearing that his decision not to object was intentional and

that he believed the courtroom closure inured to defendant’s benefit by decreasing the

number of supporters on the victim’s side of the courtroom. Also, although not argued by

the prosecution, defense counsel appeared to express some level of agreement with the trial

court’s decision to close the courtroom. At the time the trial court ordered the courtroom

closed, the following exchange occurred:

The Court: . . . Who is in the gallery that works at Hurley
Hospital? . . .

* * *

Member of the gallery: I work there.

* * *

The Court: Where do you work at Hurley Hospital?

Member of the gallery: Housekeeping. Environmental Services.

The Court: And are you here watching this trial why?

* * *

Member of the gallery: Because [the victim] was my kid’s father.

and brackets omitted), quoting United States v Mechanik, 475 US 66, 72; 106 S Ct 938; 89
L Ed 2d 50 (1986).
27
Cain, 498 Mich at 115, quoting Puckett, 556 US at 134 (quotation marks omitted).

11
 The Court: So you know, counselors, the jury has complained that
that woman has tried to talk to them.

Member of the gallery: No. I didn’t try to talk. I just saw a lady and
I asked[,] . . . do you work at Hurley’s? I know I’m not supposed to talk to
them.

The Court: I’ve got two choices. One is to find you in contempt of
court and lock you up.

* * *

. . . The other is to order everyone in the gallery to leave the
courthouse and not come back. . . . I’m going to bar everyone from this
courthouse except for the mother of [the victim]. The rest of you leave.
Don’t come back.

Member of the gallery: Okay.

The Court: Shame on you trying to subvert the justice system.

* * *

The Court: The only person allowed to watch this trial is the mother
of the young man who died. What foolishness.

[Defense Counsel]: Your Honor, may we approach?

The Court: Yes. Do you want this on the record or off the record?

[The Prosecutor]: It probably should be on because I think it’s for
both of our benefit here.

The Court: Okay.

[The Prosecutor]: Do you want to have the jurors who have a
complaint to come in to double check to make sure that there has been no
comment that has been made that’s go[ing to] prejudice the—anything?

The Court: No.

[The Prosecutor]: Okay. Fair enough.

The Court: No. It was a short comment. What she asked one juror
was, do you work at Hurley Hospital[?]

12
 [The Prosecutor]: Okay. So, there’s nothing about the case itself that
was implicated?

The Court: Right.

[Defense Counsel]: Well it’s still enough to . . . cause some concerns,
but I guess you worked it out. I understand why the concern (inaudible).

The Court: Sure.

[The Prosecutor]: It’s up to you. Do you want him—are you okay
with it?

[Defense Counsel]: (inaudible) with the Judge’s decision.

[The Prosecutor]: I don’t have a need for a hearing if that’s all that
was said.

The Court: I don’t think it’s necessary.

[The Prosecutor]: Okay. Thank you.

The Court: I don’t want to make the jury nervous. Now we’ll bring
the jury out.

Admittedly, the record is cryptic and difficult to discern. Nonetheless, defense

counsel’s statement that the trial court “worked it out” can arguably be interpreted as an

express approval of the courtroom closure, particularly when coupled with counsel’s later

testimony that his decision not to object was intentional. These facts make it a close

question as to whether defendant waived, rather than forfeited, his claim that his right to a

public trial was violated. 28 Had the record been developed on this point, the result here

could have been very different. In any event, accepting the notion that the underlying

record is so unclear it cannot establish that defendant waived this claim of error, I seriously

28
See Olano, 507 US at 733 (“Whereas forfeiture is the failure to make the timely assertion
of a right, waiver is the intentional relinquishment or abandonment of a known right.”)
(quotation marks and citation omitted).

13
question the logic behind shifting the burden of proving the fourth Carines prong to the

prosecution when, under these circumstances, the record is crystal clear that defense

counsel intentionally did not object to the closure. This case presents a classic example in

which silent acquiescence to an erroneous decision leads to the litigant “sandbagging” the

court and harboring error—which is significant enough to be deemed “structural”—as an

appellate parachute. 29

Finally, this Court’s sua sponte modification of the plain-error standard for

unpreserved structural errors is completely unnecessary in this case because defendant can

satisfy the current standard. As the majority opinion concludes, the trial court was certainly

justified in taking some action in response to the prohibited interaction between the mother

of the victim’s child and the juror. But the court’s closure of the courtroom to everyone

except the victim’s mother for the remainder of defendant’s trial was overbroad, and the

court failed to consider other reasonable alternatives in lieu of closing the courtroom. 30

29
The majority opinion also contends that recognizing a rebuttable presumption that shifts
the burden of proving the fourth Carines prong to the prosecution is appropriate because
the prosecution “is better positioned to marshal record facts supporting the overall fairness
of the trial proceedings.” Ante at 19. Not only is this reasoning unfounded, it ignores the
fact that the burden was on defendant to object in the first place.
30
Although the majority opinion applies the test articulated in Waller v Georgia, 467 US
39, 48; 104 S Ct 2210; 81 L Ed 2d 31 (1984), for complete closures, I agree with the
prosecution that the courtroom was only partially closed. “[A] total closure involves
excluding all persons from the courtroom for some period while a partial closure involves
excluding one or more, but not all, individuals for some period.” United States v Simmons,
797 F3d 409, 413 (CA 6, 2015). See also People v Kline, 197 Mich App 165, 170 n 2; 494
NW2d 756 (1992) (“A partial closure occurs where the public is only partially excluded,
such as when family members or the press are allowed to remain . . . .”). “Whether a
closure is total or partial depends not on how long a trial is closed, but rather who is
excluded during the period of time in question.” Simmons, 797 F3d at 413 (quotation
marks, citation, and ellipsis omitted). Here, the court’s closure order did not preclude all

14
Thus, the violation of defendant’s right to a public trial amounted to plain structural error.

And given this Court’s decision in Vaughn, this type of structural error satisfies the third

prong of Carines. 31 Further, defendant has shown that the closure here seriously affected

the fairness, integrity, and public reputation of his trial. During the closure, 14 witnesses

testified, including the prosecution’s star witness, whose testimony implicated defendant

in the murder; the parties gave closing arguments; the trial court instructed the jury; and

the jury rendered its verdict. This stands in marked contrast to the closure that occurred in

Vaughn, in which the courtroom was closed only during voir dire; no witnesses testified

during the closure; no objections were made to either party’s peremptory challenges; each

party was satisfied with the jury chosen; and the venire represented the public. 32 Here, the

members of the public from attending the trial, as the victim’s mother was notably
excluded. Further, Bryan Wooten, a friend of defendant, testified at the postconviction
evidentiary hearing that he entered the courtroom unencumbered and only left because of
an ambiguous gesture given by defendant, not because of any state action by a court officer.

Although this Court has not distinguished between total and partial courtroom
closures, courts that have made that distinction “modify the Waller test so that the
‘overriding interest’ requirement is replaced by requiring a showing of a ‘substantial
reason’ for a partial closure, but the other three factors remain the same.” Simmons, 797
F3d at 414 (“[U]nder the modified Waller test . . . , (1) a party seeking a partial closure of
the courtroom during proceedings must show a ‘substantial reason’ for doing so that is
likely to be prejudiced if no closure occurs; (2) the closure must be no broader than
necessary or must be ‘narrowly tailored’; (3) the trial court must consider reasonable
alternatives to closing the proceeding; and (4) the trial court must make findings adequate
to support the closure.”). See also Kline, 197 Mich App at 170-171. Even applying this
slightly more lenient standard, however, I conclude that the partial closure violated
defendant’s right to a public trial for the reasons discussed earlier.
31
Vaughn, 491 Mich at 666.
32
Id. at 668-669.

15
courtroom was closed for the majority of defendant’s trial and at critical points when the

constitutional protections of a public trial are at their zenith. 33 Therefore, because

defendant can satisfy all four prongs of the current plain-error standard articulated in

Carines, there is no need for this Court to shift the burden to the prosecution to show why

reversal is not appropriate.

III. CONCLUSION

Until now, this Court has not wavered in its position that simply labeling an error as

“structural” does not place it outside the strictures of the traditional plain-error standard.

Unbothered by our precedent, this Court now casts that framework aside with respect to

unpreserved structural errors in favor of a new burden-shifting framework that this Court

has expressly rejected. For the reasons explained in this opinion, this change in the law is

unwarranted. Accordingly, I concur in result only.

Brian K. Zahra

33
Id. at 667 (The protections conferred by the Sixth Amendment right to a public trial
“include (1) ensuring a fair trial, (2) reminding the prosecution and court of their
responsibility to the accused and the importance of their functions, (3) encouraging
witnesses to come forward, and (4) discouraging perjury.”).

16