State of Arizona v. Robert Guy Dayton, Jr.

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellee,

v.

ROBERT GUY DAYTON JR.,
Appellant.

No. 2 CA-CR 2022-0087
Filed February 8, 2024

Appeal from the Superior Court in Pima County
No. CR20200910001
The Honorable Brenden J. Griffin, Judge

REVERSED

COUNSEL

Kristin K. Mayes, Arizona Attorney General
Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee

Megan Page, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
 STATE v. DAYTON
Opinion of the Court

OPINION

Vice Chief Judge Staring authored the opinion of the Court, in which Judge
Sklar concurred and from which Judge O’Neil dissented.

S T A R I N G, Vice Chief Judge:

¶1 Defendant Robert Dayton Jr. was convicted of six counts of
sexual conduct with a minor under the age of fifteen, as well as one count
of indecent exposure to a minor under the age of fifteen. Dayton contends
the trial court violated his constitutional right to a public trial when it
excluded all “nonessential people” from the courtroom during a portion of
the victim’s testimony. Because the court committed structural error by
closing the courtroom without satisfying the requirements set forth in
Waller v. Georgia, 467 U.S. 39 (1984)—the test the state urged as the only one
we should apply—we reverse Dayton’s convictions and sentences. See State
v. Ring, 204 Ariz. 534, ¶ 45 (2003) (structural error “automatically” results
in reversal of guilty verdict); State v. Hancock, 240 Ariz. 393, ¶ 7 (App. 2016)
(“Where error is structural, prejudice is presumed and reversal is mandated
regardless of whether an objection [wa]s made below.”). Given this
reversal, we refrain from addressing Dayton’s other arguments on appeal.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the
jury’s verdicts and resolve all reasonable inferences against Dayton. State
v. Fierro, 254 Ariz. 35, ¶ 2 (2022). Dayton was the sporadic boyfriend of
S.K.’s mother, A.K., between 2014 and 2020. From 2018 to 2020, Dayton
would frequently stay overnight at A.K.’s home in Sahuarita, Arizona. A.K.
often worked overtime and would leave Dayton in charge of S.K. and her
siblings for ten to twelve hours at a time.

¶3 Dayton rented a storage unit in South Tucson. He
occasionally took S.K. with him to retrieve items from the storage unit. S.K.
testified the first instance of sexual conduct had occurred in August 2019,
when she was thirteen. Dayton took her to the storage unit and made her
perform oral sex on him and have vaginal sex. S.K. testified sexual conduct
then occurred multiple times at the storage unit. The sexual acts continued
into the following year and began occurring in S.K.’s home.

2
 STATE v. DAYTON
Opinion of the Court

¶4 During this time, S.K. began having behavioral problems and
skipping classes and school assignments. She refused to talk to her mother
about friends and ran away from home more than once. She also suffered
from worsening depression.

¶5 In February 2020, S.K. told her grandmother, C.W., about
Dayton’s actions. S.K. became upset and frightened after telling C.W., and
C.W. took S.K. to her Green Valley home. C.W. reported the abuse to
authorities the next day. A sexual assault examination was performed on
S.K., which revealed male DNA on the folds of skin where her thigh
attached to her genitals. The DNA found during the examination matched
the DNA profile later obtained from Dayton.

¶6 Dayton was indicted on eight counts of sexual conduct with a
minor under fifteen and one count of indecent exposure to a minor under
fifteen. After a five-day jury trial, he was acquitted of two counts of sexual
conduct but convicted of the remaining charges. The trial court sentenced
Dayton to six consecutive twenty-year prison terms for the sexual conduct
convictions and a one-year consecutive term for the indecent exposure
conviction—a combined total of 121 years. This appeal followed. We have
jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and
A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Discussion

¶7 Dayton argues the trial court committed structural error by
closing the courtroom to “non-essential people” during S.K.’s testimony, in
violation of his right to a public trial as guaranteed by the United States and
Arizona Constitutions. “We review both constitutional and structural error
claims de novo.” Hancock, 240 Ariz. 393, ¶ 7. We defer to the court’s factual
findings, but we review de novo its ultimate legal determination. State v.
Gonzalez-Gutierrez, 187 Ariz. 116, 118 (1996).

¶8 The United States Constitution and the Arizona Constitution
guarantee a criminal defendant the right to a public trial. See U.S. Const.
amend. VI; Ariz. Const. art. II, §§ 11, 24; Presley v. Georgia, 558 U.S. 209,
211-12 (2010) (Sixth Amendment right to public trial applies to states). “A
‘public trial’ is ‘a trial which is open to the general public at all times.’” State
v. Tucker, 231 Ariz. 125, ¶ 8 (App. 2012) (quoting People v. Woodward,
14 Cal. Rptr. 2d 434, 436 (1992)). Because “the value of the public trial
guarantee to the judicial system is incalculable,” we carefully scrutinize any
court orders that deny or restrict public access to a trial. Ridenour v.
Schwartz, 179 Ariz. 1, 3 (1994).

3
 STATE v. DAYTON
Opinion of the Court

¶9 The denial of a public trial is one of the “relatively few
instances” that are regarded as structural error. Hancock, 240 Ariz. 393, ¶ 7
(quoting Ring, 204 Ariz. 534, ¶ 46). Structural errors “deprive defendants
of basic protections without which a criminal trial cannot reliably serve its
function as a vehicle for determination of guilt or innocence.” Ring, 204
Ariz. 534, ¶ 45 (quoting Neder v. United States, 527 U.S. 1, 8-9 (1999)).
Structural errors require reversal as a matter of law. Hancock, 240 Ariz. 393,
¶ 7.

¶10 A criminal defendant’s right to a public trial is not absolute,
however. See Waller, 467 U.S. at 45 (“[T]he right to an open trial may give
way in certain cases to other rights or interests . . . .”); Tucker, 231 Ariz. 125,
¶ 8 (“[B]oth federal and Arizona courts have recognized that the right to a
public trial may be limited under some circumstances.”). “Courts have
generally upheld limitations on public access to criminal proceedings when
there has been a need to protect victims, witnesses, or jurors from
embarrassment or intimidation.” Tucker, 231 Ariz. 125, ¶ 14. See Ariz.
Const. art. II, § 2.1(A)(1) (victim has the right “[t]o be treated with fairness,
respect, and dignity, and to be free from intimidation, harassment, or abuse,
throughout the criminal justice process”). But see Globe Newspaper Co. v.
Superior Court for Norfolk Cnty., 457 U.S. 596, 610 (1982) (mandatory closure
of sex crime trials involving minor victims violated First Amendment).

¶11 In Tucker, we determined the test set forth by the Supreme
Court in Waller “applies to both complete and partial closures of Arizona
criminal trials.” 231 Ariz. 125, ¶ 13. Under that test, to overcome the
“presumption that criminal proceedings will be open to the public,” id. ¶ 8,
“the party seeking to close the hearing must advance an overriding interest
that is likely to be prejudiced; the closure must be no broader than necessary
to protect that interest; the trial court must consider reasonable alternatives
to closing the proceeding; and the court must make findings to support the
closure,” KPNX-TV Channel 12 v. Stephens, 236 Ariz. 367, ¶ 11 (App. 2014)
(quoting Waller, 467 U.S. at 48); Tucker, 231 Ariz. 125, ¶ 9. The elements of
the Waller test are conjunctive; all of them must be satisfied. 467 U.S. at 48;
Presley, 558 U.S. at 213-16.

¶12 S.K. testified on the second day of trial. She was sixteen years
old at the time and had never testified in court. The court allowed S.K.’s
personal service dog, which “helps her with anxiety and anticipating
anxiety attacks and calming her,” to sit beside her, outside the view of the
jury. She stated she was “a little nervous” and testifying in court was “a
little scary.” The state began asking S.K. about her first sexual encounter

4
 STATE v. DAYTON
Opinion of the Court

with Dayton, and when asked to describe what had happened, she did not
verbally respond initially. The state asked her whether “this [was] hard to
talk about,” and S.K. nodded her head before saying, “Yes,” and indicating
she “need[ed] a minute.” After eliciting testimony from S.K. that Dayton
had taken her to a storage unit and told her to take off her clothes, the state
asked S.K. what had happened next. S.K. indicated she was having
difficulty remembering details. S.K. testified Dayton had “[t]old [her] to get
on [her] knees and start,” after which the transcript indicates she trailed off.
The state asked S.K. if it was “difficult to say out loud,” and S.K. again
responded, “Yes.” The state told S.K. to take her time, and S.K. indicated
she needed some water.

¶13 When questioning resumed, S.K. began to speak softly and
mumble. The state asked S.K. if Dayton had said anything else to her, and
she testified he had told her to “suck his D word” before stating she did not
“want to say” what Dayton had told her. S.K. further testified Dayton had
“put his penis in [her] mouth,” and when the state asked her what had
happened after that, S.K. did not respond. The state asked S.K. if she
needed to take a break, and S.K. nodded her head and said, “Yeah.” The
state asked the trial court if S.K. could take a break, and the court agreed.

¶14 Outside the presence of the jury, the state requested that,
“[g]iven the nature of the testimony” and “how [S.K.] is struggling,” the
trial court remove “any unnecessary parties” from the courtroom “to limit
the number of people that have eyes on her in terms of comfort level and
that nature.” Dayton objected, arguing the “courtroom is not ch[oc]k full
of people. There is a long-standing public policy, as well as it’s part of due
process, to hold open a public court.” Defense counsel continued, “I know
sometimes judges will have everyone leave if there [are] exploitive images
shown, that’s not the case here. In addition, we are not broadcasting over
YouTube anymore. So in light of those considerations, I would object.”
Finally, in the event the court granted the state’s request, counsel asked the
court to allow his paralegal to remain in the courtroom as “part of [his]
staff.” The state did not object to this request.

¶15 The trial court asked the state whether S.K. had said that
removal of unnecessary parties “would help her in this situation,” and the
state responded, “Not specifically, but right now she is nodding her head.
I have had conversations with her prior to this asking her . . . you know,
who do you want in the courtroom? Would it be easier if there are less
people? And she has said that to me before.” The court noted that it had
seen S.K. nod her head and granted the state’s request, “through the victim,

5
 STATE v. DAYTON
Opinion of the Court

that any nonessential people in the courtroom be excluded from the
courtroom during her testimony.” It further stated that if “there is anybody
that is excluded from the courtroom that would like to participate either by
streaming or by video, let [the] bailiff know when she’s asking you to leave
and we will try to set that up, and she will let you know how you can do
that.” The bailiff reported that four people in the courtroom requested
access to a live stream of S.K.’s testimony.

¶16 After the bailiff informed the trial court that streaming had
been activated, the state again resumed its direct examination of S.K. When
S.K.’s testimony concluded, the live streaming was turned off and the
courtroom was reopened. It is unclear from the record whether the live
stream included video or was only audio, and the parties were unclear on
this point when asked about it at oral argument in this court.

¶17 Dayton asserts the trial court erred in closing the courtroom
to “non-essential people” without engaging in a sufficient analysis to
determine if the closure satisfied the four elements of the Waller test. In
response, the state initially argued that before applying Waller, courts
“must first assess whether the conditions constitute a complete, partial, or
. . . ‘de minimis’ closure.” At oral argument in this court, however, the state
withdrew its argument that the closure was de minimis or otherwise
constitutionally irrelevant, repeatedly requesting that we not address those
questions. Instead, the state elected to proceed relying entirely on its
argument that the requirements of Waller were fully satisfied.

¶18 There is little Arizona law applying Waller’s four-part test to
determine the constitutionality of a courtroom closure in a criminal case.
See Tucker, 231 Ariz. 125, ¶ 13 (“[I]t appears no Arizona court has applied
the Waller test in any context . . . .”). In determining whether the Waller test
was satisfied here, we examine each element below.

I. First Waller Element

¶19 Before a courtroom is closed to the public, “the party seeking
to close the hearing must advance an overriding interest that is likely to be
prejudiced.” Waller, 467 U.S. at 48. The physical and psychological
well-being of a victim of a sex crime may be an overriding interest. Globe
Newspaper Co., 457 U.S. at 607; State v. Smith, 123 Ariz. 243, 249 (1979)
(“[P]rotection of the dignity of the complaining witness in a rape case is a
substantial justification for excluding spectators.”); Ariz. R. Crim. P. 9.3(c);
Ariz. Const. art. II, § 2.1(A)(1). “The ordeal of describing an unwanted
sexual encounter before persons with no more than a prurient interest in it

6
 STATE v. DAYTON
Opinion of the Court

aggravates the original injury,” and “[m]itigation of the ordeal is a
justifiable concern of the public and of the trial court.” Smith, 123 Ariz. at
249-50 (quoting United States ex rel. Latimore v. Sielaff, 561 F.2d 691, 694-95
(7th Cir. 1977)).

¶20 Dayton argues the state’s assertion that S.K. “would be ‘more
comfortable’ testifying with only essential people in the courtroom” was
insufficient to satisfy the first Waller element, which requires specificity.
See 467 U.S. at 48. Dayton asserts neither the state nor the trial court
mentioned S.K.’s “embarrassment or intimidation” as a reason for the
closure. He further argues the state did not mention, and thus the court did
not consider, S.K.’s age or maturity, her desires, or the interests of her
parents, citing Globe Newspaper Co., 457 U.S. at 608 (“trial court can
determine on a case-by-case basis whether closure is necessary to protect
the welfare of a minor victim” by weighing factors including the “victim’s
age, psychological maturity and understanding, the nature of the crime, the
desires of the victim, and the interests of parents and relatives”).

¶21 The state counters that the trial court’s order was based on an
overriding interest, as “[t]he circumstances clearly indicate . . . that the
court issued the order to prevent the minor victim from suffering
embarrassment or emotional disturbance by testifying to embarrassing
details in front of spectators.” The state admits the court “did not make
express findings in support of its decision” but asserts “the record here is
sufficiently detailed such that this Court can determine the compelling
interests at stake.” In support of its argument, the state points to the court’s
knowledge of S.K.’s age, anxiety attacks, nervousness about testifying in
court, difficulty describing details of Dayton’s sexual conduct, and
indication that testifying would be easier if there were fewer people in the
courtroom.

¶22 Dayton disagrees with the state’s assertion that we may infer
findings of fact and conclusions of law reasonably supported by the record.
He argues that, “[w]hile this is true in other contexts, when reviewing the
constitutionality of a partial closure of the courtroom during trial, the State
bears the burden of proving its necessity and substantiating that finding
with evidence.”

¶23 The first element of Waller requires only that an “overriding
interest” justifying closure is articulated “along with findings specific
enough that a reviewing court can determine whether the closure order was
properly entered.” 467 U.S. at 45 (quoting Press-Enter. Co. v. Superior Court,
464 U.S. 501, 510 (1984) (Press-Enter. I)); see Tucker, 231 Ariz. 125, ¶ 22.

7
 STATE v. DAYTON
Opinion of the Court

Further, the first Waller element does not require that the state prove the
necessity of closure or even that the trial court make its findings explicit.
See Tucker, 231 Ariz. 125, ¶¶ 4, 14 (court’s implicit interest in protecting
jurors from intimidation satisfied first Waller element). Indeed, at oral
argument in this court, Dayton acknowledged that compliance with Waller
does not require the use of any specific language.

¶24 Here, however, neither the state nor the trial court made a
meaningful record concerning the presence of an overriding interest.
Nothing in the record suggests either the state or the court engaged in any
Waller-based analysis—including with regard to overriding interest.
Neither the state nor the court explicitly mentioned the victim’s
embarrassment or psychological well-being when discussing whether
closure of the courtroom was appropriate. Nor did the court balance those
interests against Dayton’s right to a public trial. See Press-Enter. I, 464 U.S.
at 510 (requiring that closure be “essential to preserve higher values”)
(emphasis added). The entire discussion of the request for closure, which
encompassed approximately two pages of the trial transcript, focused on
the number of people in the courtroom without any indication of how many
people were actually present, whether any were Dayton’s family members,
or whether any were members of the media. See Tucker, 231 Ariz. 125, ¶ 15
(“The Supreme Court has noted a special concern for accommodating the
attendance at trial of an accused’s family members.”); see also Ariz. R. Crim.
P. 9.3(c) (court may “exclude all spectators, except news media representatives,
during a witness’s testimony . . . to protect the witness from embarrassment
or emotional disturbance” (emphasis added)). The court merely employed
the term “nonessential” to describe the people who had to leave without
defining what the term meant or otherwise indicating the persons to whom
it applied. Accordingly, unless we conclude the undeniable difficulty of
testifying to details as a minor victim of a sex crime categorically suffices as
an overriding interest justifying closure—an approach rejected by the
Supreme Court in Globe Newspaper Co., 457 U.S. at 610—the record here is
insufficient to establish an “overriding interest . . . likely to be prejudiced”
absent closure. Waller, 467 U.S. at 48. The first element of Waller was not
satisfied.

II. Second Waller Element

¶25 The second Waller element requires “the closure . . . be no
broader than necessary to protect” the interest advanced. Id. Dayton
appears to contend the closure in this case was broader than necessary
because “there were not many people in the courtroom” and only four

8
 STATE v. DAYTON
Opinion of the Court

observers requested live streaming access after the closure. He asserts that,
“compared to the large number of necessary people in the courtroom . . .
four extra people is insignificant,” and removing “a few ‘unnecessary’
people was never likely to fix the problem.” Additionally, Dayton asserts,
despite the court’s exclusion of “non-essential people,” S.K. “continued to
have trouble remembering things and was unwilling to say ‘vagina’ and
needed to take another break.”

¶26 The state responds “it is unclear how many observers were
removed from the courtroom,” and the record reflects only that “four
decided to watch the livestream.” It also contends, contrary to Dayton’s
assertion, the Waller analysis does not require the closure of the courtroom
to have fixed the problem for the order to have been proper.

¶27 We agree Waller does not require that the court closure be
successful in fulfilling the interest advanced. See id. But, as noted in our
discussion of the first Waller element, for example, the record is insufficient
for us to determine whether any of Dayton’s family members were
excluded, see Tucker, 231 Ariz. 125, ¶ 15. Therefore, we are unable to
conclude whether the trial court’s closure of the courtroom during S.K.’s
testimony was no broader than necessary. See Waller, 467 U.S. at 48; see also
Presley, 558 U.S. at 215 (“Trial courts are obligated to take every reasonable
measure to accommodate public attendance at criminal trials.”). The
second Waller element was not satisfied.

III. Third Waller Element

¶28 To satisfy the third Waller element, “the trial court must
consider reasonable alternatives to closing the proceeding.” 467 U.S. at 48;
see Press-Enter. I, 464 U.S. at 511. And a court must consider alternatives to
closure regardless of whether the parties suggest them. Presley, 558 U.S. at
214. Alternatives may include “closing only those parts of the hearing that
jeopardized the interests advanced.” Waller, 467 U.S. at 48-49.

¶29 Dayton argues the trial court failed to consider alternatives to
closure, proposing for the first time on appeal alternatives including
“closing the court for only th[e] portion of [S.K.]’s testimony on direct and
cross examination that involved sexual matters.” Further, he contends the
court failed to consider excluding “only certain people” who might have
been making S.K. “uneasy” during her testimony “about sexual matter[s],”
such as “her mother or grandmother or other close family members, or
those on [Dayton]’s side.” And, Dayton asserts, although the court made a
live stream of S.K.’s testimony available “to those who asked,” it “did not

9
 STATE v. DAYTON
Opinion of the Court

consider whether others might show up during [S.K.]’s lengthy testimony
or how to make the trial available to them.”

¶30 The state argues the trial court not only considered, but
adopted, an acceptable alternative to closing the courtroom during S.K.’s
testimony by agreeing to live stream the testimony to the public in another
room, citing KPNX, 236 Ariz. 367, ¶ 17. The state points to Dayton’s
objection that the court was “not broadcasting over YouTube anymore” and
the court’s apparent response to that assertion by making live streaming
available.

¶31 Dayton counters the state’s reliance on KPNX “to suggest that
this court approved of . . . livestreaming as a permissible alternative under
the Sixth Amendment” is misplaced because, in that case, our analysis was
focused on Rule 9.3(b), Ariz. R. Crim. P., and not the Sixth Amendment. He
asserts that “[f]inding error in disallowing the media to observe even by
livestream in one case does not mean that allowing livestream viewing
without access to the courtroom is proper.”

¶32 Like the case before us, KPNX involved review of a trial
court’s closure of a courtroom. 236 Ariz. 367, ¶¶ 3-5, 15. There, the trial
court granted the defendant’s motion to close the courtroom to the press
and public during her testimony in the penalty phase of trial. Id. ¶¶ 3-5.
Accepting special action jurisdiction, we noted the court’s application of the
Waller elements and concluded its suggested alternative to closure—
“having the press and public view [the defendant’s] testimony from a
different courtroom”—satisfied Rule 9.3. Id. ¶¶ 2, 10-17. Rule 9.3(b)
provides, “All proceedings must be open to the public, including news
media representatives, unless the court finds, on motion or on its own, that
an open proceeding presents a clear and present danger to the defendant’s
right to a fair trial by an impartial jury.” As Dayton argues, however, we
did not resolve KPNX on constitutional grounds; there was simply no need
for us to complete a full constitutional analysis there when the
circumstances did not create a “clear and present danger” to the
defendant’s right to a fair trial by an impartial jury. Id. ¶¶ 6, 11, 16-17 (“If
the court finds a clear and present danger, the court must then consider four
constitutional factors before closing the proceedings . . . .” (emphasis
added)). We concluded the defendant’s concerns did not rise to the level
required for court closure under Rule 9.3(b) and vacated the trial court’s
ruling. KPNX, 236 Ariz. 367, ¶¶ 10-18.

¶33 While the trial court implemented the alternative mentioned
by counsel, the record before us is, once again, insufficient to allow us to

10
 STATE v. DAYTON
Opinion of the Court

determine whether the court adequately considered reasonable alternatives
to closure as it was required to do by Waller. Presley, 558 U.S. at 214. Thus,
we cannot conclude the third Waller element was satisfied.

IV. Fourth Waller Element

¶34 Finally, when closing a courtroom to the public, a trial court
“must make findings adequate to support the closure.” Waller, 467 U.S. at
48. “[T]he function of a determination requirement is to provide this court
with a sufficient record of the superior court’s reasoning such that we may
make an informed review of its decision.” State v. Perez-Gutierrez, 255 Ariz.
232, ¶ 21 (App. 2023). “[A] court cannot neglect to make findings altogether
or base its closure order only on broad or general observations.” Tucker,
231 Ariz. 125, ¶ 21; see also Press-Enter. Co. v. Superior Court, 478 U.S. 1, 13-14
(1986) (Press-Enter. II) (“[P]roceedings cannot be closed unless specific, on
the record findings are made demonstrating that ‘closure is essential to
preserve higher values and is narrowly tailored to serve that interest.’”
(quoting Press-Enter. I, 464 U.S. at 510)).

¶35 Dayton asserts there “were no findings here” nor any
“evidence that the trial court had determined the extent of [S.K.]’s distress
and whether it was sufficient to justify closure, and whether it had
considered alternatives.” He argues “[t]he problem . . . is not that the trial
court failed to make exhaustive findings; it is that the trial court failed to
make any findings beyond conclusory assumptions.” In support of his
argument, Dayton relies on Tucker for the proposition that, under Waller’s
fourth element, “[b]road and general findings are insufficient” to support a
closure order. 231 Ariz. 125, ¶ 19 (alteration in Tucker).

¶36 Relying on People v. Turner, 519 P.3d 353, ¶ 35 (Colo. 2022), the
state contends “structural error doesn’t flow simply from the trial court’s
failure to employ the precise language found in Waller.” Quoting Bell v.
Jarvis, it asserts “[c]learly established Supreme Court precedent governing
courtroom closures does not require appellate courts to review closure
orders in isolation of the record, nor does it mandate a conclusion that [a
defendant’s] public trial right was violated simply because the trial judge
failed to recite exhaustively every fact and inference which justified the
obvious.” 236 F.3d 149, 174 (4th Cir. 2000) (alterations in original). Thus,
the state argues, the record before us is sufficient for us to determine that
the trial court’s order was properly entered because the “Waller factors were
implicitly rather than explicitly satisfied.” State v. Modtland, 970 N.W.2d
711, 723 (Minn. Ct. App. 2022).

11
 STATE v. DAYTON
Opinion of the Court

¶37 In Tucker, the trial court closed the courtroom to the public,
including the defendants’ families, over concerns that observers might have
been taking photos of the jurors and intimidating them. 231 Ariz. 125, ¶¶ 4,
7, 15, 23. The court’s decision was based on second-hand complaints from
unidentified jurors that had been relayed to the bailiff. Id. ¶¶ 4, 23. The
court never questioned the jury about these complaints, and the record
contained “no testimony or evidence to support a finding that observers
had been photographing witnesses or jurors.” Id. ¶ 23. Further, court
officers examined many observers’ cell phones and found no evidence of
juror photos. Id.

¶38 We concluded that “[b]road and general findings are
insufficient” to satisfy Waller’s fourth element. Id. ¶ 19 (alteration in Tucker)
(quoting English v. Artuz, 164 F.3d 105, 109 (2d Cir. 1998)); see Guzman v.
Scully, 80 F.3d 772, 775 (2d Cir. 1996) (trial court relied solely on
unsubstantiated statements by prosecutor that witness felt intimidated);
Commonwealth v. Penn, 562 A.2d 833, 838 (Pa. Super. Ct. 1989) (trial court
made “no findings whatsoever” regarding intimidation of witness and
relied entirely on prosecutor’s “second-hand, hearsay, rendition”);
McIntosh v. United States, 933 A.2d 370, 379-80 (D.C. 2007) (court’s general
reference to child’s vulnerability, alone, was not sufficient to satisfy fourth
Waller element). Accordingly, in view of the trial court’s failure to ensure a
proper record to detail and demonstrate the threat to the jurors’ and
witnesses’ security, we determined the closure was unconstitutional under
Waller. Tucker, 231 Ariz. 125, ¶¶ 23-24.

¶39 We reach the same conclusion here. This case is not one in
which the trial court merely failed to make exhaustive findings. To the
extent the record can be viewed as containing any findings at all, they were
at best general and conclusory in nature, and of the sort disapproved in
Tucker. The fourth element of Waller was not satisfied. Further, the court’s
failure to make meaningful findings proved an insurmountable obstacle to
our ability to fully assess whether the court had satisfied any of the Waller
elements.

¶40 Our dissenting colleague agrees that the courtroom closure
created structural error, but he disagrees with the remedy—the reversal of
Dayton’s convictions. Instead, he asserts the proper remedy is to remand
this case to the trial court so it may determine in the first instance whether
the Waller elements can be satisfied. If they can be satisfied, the dissent
asserts, granting Dayton a new trial would amount to a “windfall.”

12
 STATE v. DAYTON
Opinion of the Court

¶41 The dissent relies heavily on the fact the Waller Court ordered
a remand, and it cites United States v. Galloway, 937 F.2d 542 (10th Cir. 1991),
which also resulted in a remand. Both are distinguishable. Additionally,
the dissent asserts Ring, 204 Ariz. 534, ¶ 46, does not categorically prohibit
remands in cases of structural error.

¶42 Waller arose from a Georgia trial court’s decision to close a
suppression hearing to “all persons other than witnesses, court personnel,
the parties, and the lawyers” in order to protect sensitive information
obtained by wiretaps. 467 U.S. at 41-42. In fact, the Court granted certiorari
in Waller for the purpose of deciding “whether the defendant’s Sixth
Amendment right to a public trial applies to a suppression hearing.” Id. at
43. After concluding the closure violated the Constitution, the Waller Court
concluded a new trial was not required in Waller’s case, stating, “If, after a
new suppression hearing, essentially the same evidence is suppressed, a
new trial presumably would be a windfall for the defendant, and not in the
public interest.” Id. at 49-50.

¶43 In this case, however, we assess the remedy for a structural
error that occurred during the trial itself—not a pretrial hearing—and
affected the conduct of the trial. The very fact that the structural error
occurred during a jury trial requires us to presume the outcome of that trial
was tainted—a circumstance that cannot be fixed without a new trial. See
Ring, 204 Ariz. 534, ¶ 45. Notably, Waller logically required that the trial
court entirely reconduct the very proceeding that had been affected by the
improper closure of the courtroom. Here, that proceeding was the trial
itself. Accordingly, full compliance with Waller compels the remedy of a
new trial.

¶44 Further, a retrospective hearing of the variety suggested by
the dissent would not involve merely conducting a second pretrial
suppression hearing, which “often resembles a bench trial.” Waller, 467 U.S.
at 47. We see a marked difference between addressing the discrete issues
in a second suppression hearing and attempting to reconsider a motion to
close the courtroom made almost two years ago, during the victim’s
testimony in a jury trial, where the trial court failed to preserve an
articulate, contemporaneous record of either the persons excluded or the
witness’s precise motivation for seeking their exclusion. Given the
specificity required in assessing and weighing the Waller elements, the
paucity of the record, and the passage of time, we are skeptical that the trial
court could reliably conduct such a hearing.

13
 STATE v. DAYTON
Opinion of the Court

¶45 Neither does Galloway support the dissent. There, the court
remanded the “matter to the district court with directions to supplement
the record with the findings upon which the partial closure of the trial was
based.” 937 F.2d at 549 (emphasis added). Because the case involved a
partial closure, the court did not apply the Waller test in determining
whether the closure was improper. Id. at 546 (applying different, less
demanding standard “where the courtroom is only partially closed to the
public”). As noted, Arizona applies Waller “to both complete and partial
closures of Arizona criminal trials,” Tucker, 231 Ariz. 125, ¶ 13, and here the
state has withdrawn its partial closure argument. Further, in Galloway, the
court concluded “the district court undoubtedly considered” the applicable
“factors” in ordering the partial closure, 937 F.2d at 546, a conclusion we
are not comfortable reaching given the lack of a record in this case.

¶46 Finally, assuming without deciding that our supreme court’s
unequivocal discussion of structural error in Ring, 204 Ariz. 534, ¶¶ 45-46,
does not categorically prohibit the remedy of a remand for findings, as
discussed above, such a remedy in this instance would be inherently
unreliable. Thus, it would be inappropriate.

Disposition

¶47 For the foregoing reasons, we reverse Dayton’s convictions
and sentences.

O’ N E I L, Judge, dissenting:

¶48 Any violation of the right to a public criminal trial is structural
error. Ring, 204 Ariz. 534, ¶ 46. The trial court closed this criminal trial
without findings, and we must therefore presume prejudice as required by
the United States Supreme Court in Waller. 467 U.S. at 48-50 & 49 n.9; see
also Tucker, 231 Ariz. 125, ¶ 7. This closure was no mere technical violation
of the public trial right. When S.K. struggled to testify, the prosecutor asked
the court to remove “unnecessary” people and exclude the public from the
courtroom during S.K.’s testimony. She argued, “If they’re not necessary
to be here, I don’t know that they should be.” The prosecutor cited no legal
authority to support closure under the circumstances, simply urging that
“it’s still your courtroom, Your Honor.” After defense counsel objected on
“public policy” and “due process” grounds, the prosecutor admitted that
S.K. had “[n]ot specifically” told her whether a closure would help, but
avowed that in previous conversations S.K. had said it would “be easier if
there are less people.” On that record, and with a nod of S.K.’s head, the
trial was closed.

14
 STATE v. DAYTON
Opinion of the Court

¶49 Leaving aside Waller’s particular requirements, the state’s
argument for closure trivialized the right to a public trial. Judges are not
free to close proceedings simply by virtue of their right to control the
courtroom. Cf. Waller, 467 U.S. at 45, 48 (circumstances when “right to an
open trial may give way . . . to other rights or interests” are rare “and the
balance of interests must be struck with special care”). A public criminal
trial is a right expressly guaranteed by the United States and Arizona
Constitutions. U.S. Const. amend. VI; Ariz. Const. art. II, § 24. It requires
no further reason.

¶50 Everyone involved treated the closure too casually. To its
credit, the trial court limited its closure order to S.K.’s testimony and
permitted partial public access through internet streaming of some kind.
And to his credit, defense counsel objected to the closure. But the right to
trial in open court is neither some obscure application of general due
process principles nor a judicially crafted public policy provision. It is an
explicit constitutional guarantee. U.S. Const. amend. VI; Ariz. Const. art.
II, § 24.

¶51 Trials are not public only for those whose presence is
somehow necessary to the proceedings, and the public may not be excluded
just because a witness—victim or otherwise—finds it easier. Cf. Waller, 467
U.S. at 48 & 49 n.9 (“While the benefits of a public trial are frequently
intangible, difficult to prove, or a matter of chance, the Framers plainly
thought them nonetheless real.”). As our supreme court has put it, “the
value of the public trial guarantee to the judicial system is incalculable.”
Ridenour, 179 Ariz. at 3. Any restriction of public access to the court during
a criminal trial should produce a reflexive discomfort and healthy suspicion
among courts and practitioners alike. It apparently failed to do so here.
Dayton is entitled to relief. I dissent, but only to the form of that relief.

¶52 We treat violations of the constitutional right to a public trial
as structural error because in Waller, the Supreme Court concluded that a
“defendant should not be required to prove specific prejudice in order to
obtain relief for a violation of the public-trial guarantee.” 467 U.S. at 49; see
also Tucker, 231 Ariz. 125, ¶¶ 7-8. Citing Waller, therefore, our supreme
court noted in Ring that denial of a public criminal trial is one of “relatively
few instances” in which the Supreme Court “regard[s] error as structural,”
such that “the error infect[s] ‘the entire trial process’ from beginning to
end.” 204 Ariz. 534, ¶ 46 (quoting Neder, 527 U.S. at 8).

¶53 In the course of that discussion, our supreme court
acknowledged the general rule that in instances of structural error, “we

15
 STATE v. DAYTON
Opinion of the Court

automatically reverse the guilty verdict entered.” Id. ¶ 45. But although it
included violations of the right to a public criminal trial in a list of structural
errors, Ring did not otherwise discuss how the rule in Waller would apply
to public trial violations in individual cases—especially when the principal
error concerns a lack of findings. See id. ¶¶ 46-47, 53. Ring did not suggest
that the Arizona Constitution treats either the concept of structural error or
the denial of a public criminal trial differently than its federal counterpart.
See id. ¶ 45. In Tucker, we likewise did not purport to expand, contract, or
otherwise alter either the scope of the right or the appropriate remedy from
what Waller requires. 231 Ariz. 125, ¶¶ 7-9, 24. Instead, we applied the
requirements of Waller to the facts of that case. Id. ¶¶ 14-15, 17, 19, 24.

¶54 In both Ring and Tucker, our courts treated the denial of a
public criminal trial as structural error solely because Waller defines it as
such. See Ring, 204 Ariz. 534, ¶ 46 & n.16; Tucker, 231 Ariz. 125, ¶ 7; see also
Waller, 467 U.S. at 49-50 & 49 n.9. Both cases simply adopted Waller’s
interpretation of the public trial guarantee in the United States Constitution,
and neither case redefined the right or the remedy according to any
provision of Arizona law. See Ring, 204 Ariz. 534, ¶ 46 & n.16; Tucker, 231
Ariz. 125, ¶¶ 7-9, 24. There is no textual reason to treat either the right or
the remedy differently under our state constitution. See U.S. Const. amend.
VI; Ariz. Const. art. II, § 24. And as interpreted by Waller, the United States
Constitution does not always or necessarily require a new trial as a remedy
for a violation of the public trial right. 467 U.S. at 49-50.

¶55 In Waller, despite stating that a public trial violation requires
relief even without a showing of prejudice, the Supreme Court expressly
rejected the contention that the relief must always take the form of a new
trial. Id. Rather, the Court concluded that “the remedy should be
appropriate to the violation.” Id. at 50. Relying on this portion of Waller,
the Supreme Court has since noted again that “[i]n some circumstances, a
constitutional violation may not require retrial.” Smith v. United States, 599
U.S. 236, 242 n.2 (2023). In Waller, because the violation had occurred at a
pretrial suppression hearing, the Supreme Court remanded the case for “a
new, public suppression hearing.” 467 U.S. at 48-50 & 50. And even though
it was “clear” that “significant portions of a new suppression hearing must
be open to the public,” the Court “remand[ed] to the [trial court] to decide
what portions, if any, may be closed.” Id. at 50. The Court reasoned that
“[i]f, after a new suppression hearing, essentially the same evidence is
suppressed, a new trial presumably would be a windfall for the defendant,
and not in the public interest.” Id. Only if the new hearing resulted in a
different outcome would a new trial be required. Id.

16
 STATE v. DAYTON
Opinion of the Court

¶56 The Supreme Court’s approach in Waller is consistent with its
other decisions related to the public trial right. In Globe Newspaper Co., the
Court stated that in order “to deny the right of access . . . it must be shown
that the denial is necessitated by a compelling governmental interest, and
is narrowly tailored to serve that interest.” 457 U.S. at 606-07. Addressing
a trial court’s improper closure of voir dire and refusal to release transcripts
in Press-Enterprise I, the Court applied that standard and explained that
closure requires “findings specific enough that a reviewing court can
determine whether the closure order was properly entered.” 464 U.S. at
509-11. Similar to its remand in Waller, the Court did not order a new trial
to correct the error. See id. at 513. Instead, it directed the trial court to make
proper findings, consider reasonable alternatives to closure, and “seal only
such parts of the transcript as necessary to preserve the anonymity of the
individuals sought to be protected.” Id.

¶57 Thus, when a trial court has made insufficient findings to
allow for appellate review as required by the fourth element of the Waller
test, the “appropriate remedy” is not necessarily a new trial but a remand
to the court for appropriate findings. See 467 U.S. at 44, 48, 50. The first
three elements of the test describe the substantive requirements for closure:
the closure must protect an overriding interest that would likely be
prejudiced without closure, the closure must be no broader than necessary,
and the court must consider reasonable alternatives to the closure. Id. at 48.
But the fourth element differs from the rest. See id. It requires the court to
make specific findings on the record, sufficient to allow a reviewing court
to determine whether the closure was constitutionally permissible under
the first three elements. See Tucker, 231 Ariz. 125, ¶¶ 17, 19, 22-23. Where,
as here, the court fails to make such findings, we are not permitted to
“provide a post hoc rationale for why the trial judge would have closed the
trial had it held a hearing and made findings.” Id. ¶ 22. In this case, as the
majority has aptly noted, “the court’s failure to make meaningful findings
proved an insurmountable obstacle to our ability to fully assess whether the
court had satisfied any of the Waller elements.”

¶58 The majority therefore concludes that the record is
insufficient to identify an overriding interest under the first Waller element.
Because the trial court made no findings to indicate the existence of an
overriding interest likely to be prejudiced, I agree. The court’s failure to
identify an overriding interest means we are not free to supply one on
appeal, but it does not mean no such interest existed. See id. The majority
also concludes, under the second Waller element, the record is insufficient
for us to determine whether the closure was broader than necessary. Again,

17
 STATE v. DAYTON
Opinion of the Court

for similar reasons, I agree. But the closure was limited in time and scope,
and had the court made a record as required under Waller, it is at least
conceivable that the closure was appropriately narrow. Finally, as to the
third Waller element, the record is silent as to whether the court considered
alternatives. Absent findings on the record, only the court can know.

¶59 The situation here differs from Tucker, where, although the
trial court also failed to make adequate findings to satisfy the fourth Waller
element, we were able to determine from the record that the closure would
not have satisfied other elements of the Waller test anyway. See 231 Ariz.
125, ¶¶ 15-19, 22-23. Thus, in that case, no other remedy short of a new trial
would have sufficed to cure the violation. See id. ¶ 24. Tucker did not
address a situation like this one, where the record is inadequate to
determine whether the closure might have been justified upon a proper
analysis of the three substantive elements of the Waller inquiry.

¶60 Under similar circumstances, where a public trial violation
had occurred based on a trial court’s failure to make findings on the record,
the Tenth Circuit relied on Waller and concluded that “the appropriate
course is to remand the case . . . with directions to supplement the record
with the facts and reasoning upon which the partial closure of the
courtroom was based.” Galloway, 937 F.2d at 546-47 & 547. I would do the
same here. Although we must presume prejudice from structural error,
Waller calls for a remedy appropriate to the violation. 467 U.S. at 49-50 &
49 n.9. The majority points out that the improper closure in Waller occurred
at a pretrial suppression hearing, and the Supreme Court ordered a new
suppression hearing as a remedy. But the error in Waller went deeper than
an absence of findings. It was substantive: “the closure was far more
extensive than necessary.” Id. at 49. Although Waller allowed the trial court
discretion “to decide what portions, if any, may be closed” at a new
suppression hearing, it foreclosed any possibility that the court might order
the same closure that had applied to the previous suppression hearing. Id.
at 50. As in Tucker, because the closure could not have been justified
substantively even if the court had made findings, the appropriate remedy
required a new, more open hearing. Id.

¶61 In this case, had the trial court conducted an adequate
inquiry, the limited closure it ordered might have been justified. Our
reversal for a new trial in no way precludes the court on remand from
engaging in the required analysis under Waller and ordering the same
partial closure it ordered the first time. The reasoning in Waller is equally
compelling here. If the court makes detailed findings as required and

18
 STATE v. DAYTON
Opinion of the Court

orders essentially the same closure after our remand, our order for a new
trial will be a windfall. See id. at 50. As interpreted by the Supreme Court
in Waller, the United States Constitution does not require that result. See id.
Neither does any provision of our constitution or laws in Arizona. See Ring,
204 Ariz. 534, ¶ 46 & n.16; Tucker, 231 Ariz. 125, ¶ 7.

¶62 Remanding to the trial court for appropriate factual findings
would protect the right to a public trial, avoid a potential windfall, and
respect the trial court as the better venue for a proper case-specific analysis
to determine the appropriate extent of any closure. The failure to make
findings can be remedied on remand, supplying us with a basis for
meaningful substantive review of whatever closure the court orders, if any.
As in Waller, if the court enters different orders regarding closure after
conducting the required analysis, Dayton would be entitled to a new trial.
See 467 U.S. at 50. But if the court orders essentially the same closure after
conducting a full analysis under Waller, complete with specific findings on
the record, a new trial need not be held. The sole error having been
remedied, no error would remain from which to presume prejudice. And
in that case, the court’s findings would permit future review.

¶63 Given the paucity of the record in support of closure here, it
is doubtful the trial court could support its closure order merely by making
findings based on the prior proceedings. More likely, an evidentiary
hearing would be required. See Tucker, 231 Ariz. 125, ¶ 21. The majority is
“skeptical that the trial court could reliably conduct such a hearing.” But
that is what trial courts do. If the court determines the closure cannot be
reliably supported even with additional evidence, it can set a new trial. But
the factual inquiries necessary for a Waller inquiry are well defined, and the
trial court is in the better position to discern the reliability of whatever
evidence might be introduced at a hearing. Such a hearing may pose any
number of difficulties, as many evidentiary hearings do. It is far from
certain that the evidence would ultimately support the closure as
previously ordered. We must trust the court, however, to make that
determination in the first instance. See id. ¶ 22. Indeed, after our remand
for a new trial, it will do so anyway.

19