RENDERED: OCTOBER 20, 2016
TO BE PUBLISHED
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2015-SC-000620-MR
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ANTHONY WAYNE CRUTCHER JR. APPELLANT
ON APPEAL FROM FAYETTE CIRCUIT COURT
V. HONORABLE PAMELA GOODWINE, JUDGE
NO. 12-CR-01332-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING
A Circuit Court jury convicted Anthony Wayne Crutcher of first-degree
robbery and of being a first-degree persistent felony offender (PFO I). The jury
recommended a sentence of 15 years' imprisonment for the robbery conviction,
enhanced to 35 years for the PFO I conviction. Crutcher appeals as a matter of
right, arguing the trial court violated his right to a public trial when it removed
all spectators during the victim's testimony and when it denied Crutcher's
motion to suppress a photo identification. Having reviewed the record and the
arguments of the parties, we affirm the judgment of the trial court.
I. BACKGROUND.
Ricky Goldsmith testified that three men - later identified as Jamaur
Yocum, Crutcher, and a man known only by the nickname "SD" - approached
him in an apartment breezeway and asked him to sell them marijuana.
Goldsmith went into the apartment he shared with his girlfriend, got a "dime
bag," and returned to the breezeway. Crutcher pulled out a handgun and
pointed it at Goldsmith. Yocum and Crutcher went through Goldsmith's
pockets, taking $100, the marijuana, and other items. Yocum then ran and
Crutcher told Goldsmith to turn around and run. 1 Goldsmith did so and, when
he was about two steps away, Crutcher shot him in the shoulder. Goldsmith
then ran to a nearby apartment building, and a neighbor called the police and
EMS. Emergency personnel transported Goldsmith to a hospital where he was
treated for his wound and released. SD did not participate in the robbery.
In an interview with police that night, Goldsmith stated that someone
named "Yocum," whom he had seen around the neighborhood, had
participated in the robbery. Goldsmith could not identify either Crutcher or
SD. Shortly thereafter, Goldsmith, who said he was too afraid to stay in town,
moved to away.
Months later, another police officer, Kyle Toms, tracked down Goldsmith
and asked him to come to the department to try to identify "Yocum." Officer
Toms put together a six-picture photo lineup from which Goldsmith identified
Yocum as one of the men who robbed him.
While talking to Officer Toms, Goldsmith stated that a relative told him
that someone named "Little Anthony" had been the shooter. Officer Toms
1 At trial, Yocum testified that he did not participate in the robbery but ran
away as soon as Crutcher pulled out his gun.
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found Crutcher's photo by using that nickname to search the department's
database. Officer Toms then used the department's database to put together a
photo lineup that included Crutcher's photo. Goldsmith picked Crutcher's
photo from the lineup and identified him as the shooter.
Yocum and Crutcher were arrested and charged with the robbery.
Yocum pled guilty, but Crutcher, who insisted that he was not present during
the robbery, went to trial. After hearing testimony from Yocum, the two police
officers, Goldsmith's emergency room physician, and Goldsmith, a jury
convicted Crutcher of first-degree robbery and of being a PFO. We set forth
additional facts as necessary below.
II. STANDARD OF REVIEW.
The issues raised by Crutcher have different standards of review, which
we set forth as necessary when addressing those issues.
III. ANALYSIS.
A. Denial of Public Trial.
When the Commonwealth called Goldsmith as a witness, the trial court's
bailiff and counsel approached the bench. The bailiff stated that an officer who
was outside the courtroom advised him that Goldsmith was reluctant to testify
because a person in the courtroom had threatened Goldsmith. The bailiff
stated that he did not know who had allegedly made the threat and that he was
reluctant to investigate Goldsmith's statement without some direction from the
trial court. The Commonwealth's attorney stated that: someone had
threatened Goldsmith and "his family," Goldsmith was "terrified," and "[they]
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had a hard time getting him down here." The trial court then suggested
clearing the courtroom while Goldsmith testified. The bailiff asked if people
would be re-admitted after Goldsmith testified, and the trial court responded
affirmatively. Crutcher's attorney stood silent while this conversation took
place. The bailiff then cleared visitors from the courtroom and Goldsmith
testified. Crutcher now argues that this violated his right to a public trial as
guaranteed by the U.S. and Kentucky Constitutions. The Commonwealth
argues that, by failing to object, Crutcher waived this argument for appeal and,
in the alternative, that any error was not palpable. And we agree.
The Sixth Amendment to the United States Constitution guarantees all
criminal defendants the ability to "enjoy the right to a speedy and public trial."
A similar protection is included in Section 11 of the Kentucky Constitution,
boldly declaring that "in all prosecutions by indictment or information, he [the
accused] shall have a speedy public trial by an impartial jury of the vicinage."
The right to public trial is, of course, primarily for the benefit of the accused,
allowing the public to see that 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 their responsibility and to the importance of their
functions." Waller v. Georgia, 467 U.S. 39, 46 (1986). And we agree that public
trials are foundational prerequisites to any American notion of due process of
law, guaranteeing defendants a serious and fair tribunal, and disincentivizing
courts of law from devolving into dystopian kangaroo courts. But we simply
hold that this right may be waived through a defendant's failure to object.
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In Waller v. Georgia, the United States Supreme Court articulated its
four-part test for trial courts to administer when considering whether to close
the courtroom over a defendant's objection. In other words, the Supreme Court
held that if the courtroom is closed over the accused's objection, and the Waller
test is not satisfied, the constitutionally enshrined right to public trial is
violated. Under Waller, a court, when considering whether to close a trial or a
portion of a trial to the public must consider three factors: (1) whether the
party seeking to close the proceedings has "an overriding interest that is likely
to be prejudiced;" (2) what the narrowest method of protecting that interest is;
and (3) whether there are "reasonable alternatives to closing the proceedings."
Id. at 48. Once the court makes the determination to close the proceedings or a
portion of the proceedings, "it must make findings adequate to support the
closure." Id.
In this case, the trial court clearly did not engage in a Waller colloquy
and did not address the prerequisite factors before ordering the courtroom
briefly closed for Goldsmith's testimony. But unlike Waller, Crutcher failed to
object to the closure. Waller is noticeably silent about instances where the
defendant fails to object to the closure at all.
Despite Waller's silence, Crutcher argues that waiver is unavailable in
this situation, but he fails to present any federal or state case law in support of
that proposition. And he ignores the plain reading of the Sixth Circuit's
opinion in Johnson v. Sherry, authority we find highly persuasive, holding that
a defendant may waive his right to public trial absent any express objection or
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compliance with the Waller test. 586 F.3d 439, 444 (6th Cir. 2009). In
Johnson, not only did defense counsel fail to object, he actually consented to
closing the courtroom. The panel-majority accordingly held that, "While we
agree that the right to a public trial is an important structural right, it is also
one that can be waived when a defendant fails to object to the closure of the
courtroom..." Id. (emphasis added). Obviously, Crutcher's attorney did not
consent to closure. But this difference in form does not undermine the
substance behind the Johnson Court's central holding that a defendant may
waive his right to public trial through failure to preserve the issue for review.
This position is not limited to a single panel of a federal appellate court.
In fact, the United States Supreme Court has at least implicitly endorsed the
Johnson proposition that, like most criminal trial rights under the
Constitution, the right to public trial is subject to the defendant's waiver
through failing to enter an objection. See Peretz v. United States, 501 U.S. 923,
926 (1991) (citing Levine v. United States, 362 U.S. 610, 619 (1960), for the
proposition that "failure to object to closing of [the] courtroom is waiver of [the]
right to public trial" affirms its general conclusion that "the most basic rights of
criminal defendants are similarly subject to waiver").
Crutcher's understanding of waiver not only misreads Johnson, but it
also undermines the Supreme Court's holding in Waller. If we are to accept his
view that this right cannot be waived absent a knowing, voluntary, and
intelligent waiver personally executed by the defendant, the Waller test itself
may be unconstitutional. Assuming this right belongs in the company of others
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that require express waiver—right to counsel, Miranda warnings, etc.—the trial
court is powerless to close the courtroom under any circumstances,
particularly over a defendant's objection. Unless Crutcher also contends that
the express-waiver characterization is also the improper measurement for
public-trial rights, his understanding of the Sixth Amendment would preclude
any type of deprivation of the right, without regard to whether the defendant
chooses to object to the closure or not.
Other state appellate courts have already held that if the public-trial
right were among those requiring personal waiver, "then a judge would be
unable to close the courtroom over the defendant's objection despite satisfying
the Waller test." Stackhouse v. People, P.3d , 2015 WL 3946868 *5 (Colo.
June 29, 2015), cert denied by Stackhouse v. Colorado, 136 S.Ct. 1513 (2016).
See also Robinson v. State, 976 A.2d 1072, 1082 n. 6 (Md. 2009) (for the
proposition that if "the right to public trial cannot be waived by the defendant's
`inaction"' then a "defendant's refusal to make an 'intelligent and knowing'
waiver of the right would preclude a trial judge from ever closing a courtroom,
no matter the circumstances warranting closure.").
We understand that denial of a defendant's right to a public trial is
considered a structural error. See McCleery v. Commonwealth, 410 S.W.3d
597, 604 (Ky. 2013). Structural errors, to be sure, undermine the overall
integrity of the proceeding, and such mistakes warrant automatic reversal. Id.
But the Sixth Circuit recognized that while denial of a defendant's right to
public trial is quite clearly structural and worthy of automatic reversal, that
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standard has no bearing on whether that right may be waived, either through
agreeing to the closure or by failing to raise an objection in the record. The
structural-error analysis is only relevant once a defendant's right is denied;
there is no denial of right when the defendant is complicit in its abrogation.
In effect, Crutcher's characterization of this right subtly undermines the
validity of Waller in Kentucky law. The only way we can imagine reconciling
this position with Kentucky law is essentially to declare that, in Kentucky, an
accused's right to public trial is more robust than its federal counterpart. And
that is something we are free to decide as a matter of state constitutional law, if
we can conclude that our constitution includes a more expansive liberty than
the baseline the Sixth Amendment requires. We are often receptive and
interested in such arguments, but one was not presented to us today.
As the matter stands today, we see no reason for this issue to depart
from our time-honored paradigm requiring parties who feel aggrieved by some
action taken at the trial court to expend the minimal energy required to
preserve that issue in the record. Excluding spectators from the courtroom is
not an action of judicial legerdemain that can catch even an attentive attorney
off balance. Rather, it is unmistakable; any attorney not asleep in his chair
would understand the change in scenery and face the conscious decision of
whether to state an objection to the trial court's decision. Defense counsel
obviously chose not to object here, and we see no reason why it is our duty to
do his job for him.
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There is understandably extreme caution when it comes to waiving
constitutional rights, and we express no hostility toward those rights already
requiring express waiver. But there is nothing in today's case, in light of
federal Sixth Amendment precedent, suggesting a defendant's right to public
trial may not be waived by failure to object.
B. Out-of-Court Identification.
Sometime before Goldsmith met with Officer Toms, a relative told
Goldsmith that the rumor circulating through the neighborhood was that a
man identified as "Little Anthony" was the shooter. The relative then showed
Goldsmith a photo of the man known as "Little Anthony." When he saw the
photo, Goldsmith stated that Little Anthony was the man who shot him.
Goldsmith then told Officer Toms that he believed a man known as Little
Anthony had shot him. Officer Toms searched the police department's
database using the nickname Little Anthony and discovered only one match -
Crutcher. Officer Toms then took Crutcher's photo from that database and put
it with five other photos that he believed were similar. When Officer Toms
showed the photos to Goldsmith, he picked out Crutcher's photo and stated
that Crutcher was the man who shot him. Crutcher moved to suppress this
identification.
In his motion, Crutcher argued that the photo lineup was impermissibly
suggestive, noting that Goldsmith had initially described the man who shot
him as being a light skinned African American with dreadlocks. Crutcher
agreed that all of the men in the photo lineup were African Americans with
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dreadlocks. However, he argued the lineup was skewed because he had the
lightest skin tone. Following a hearing, the trial court noted that it can be
difficult to define skin tone with precision and what one person might describe
as light skin tone another might describe as dark skin tone. Putting aside the
issue of skin tone, the court found that all of the men had dreadlocks and
relatively similar facial features and that all of the photos were taken against
the same background. Based on those findings, the court determined that the
photo lineup was not impermissibly suggestive, and it denied Crutcher's
motion. On appeal, Crutcher raises the same arguments as he did before the
trial court.
We review a trial court's ruling on a motion to suppress an out-of-court
identification, as we do a ruling regarding the admissibility of any evidence, for
an abuse of discretion. King v. Commonwealth, 142 S.W.3d 645, 649 (Ky.
2004). A court abuses its discretion when its "decision [is] arbitrary,
unreasonable, unfair, or unsupported by sound legal principles."
Commonwealth v. English, 993 S.W.2d 941 (Ky. 1999).
When a defendant questions the validity of an out-of-court identification,
the trial court must first determine if that identification was unduly or
impermissibly suggestive. Grady v. Commonwealth, 325 S.W.3d 333, 353 (Ky.
2010). If it was not, then the analysis stops. Id. Minor differences in photos
are not sufficient to establish that a photo lineup was unduly or impermissibly
suggestive. As we stated in Jacobsen v. Commonwealth, 376 S.W.3d 600, 607
(Ky. 2012), as corrected (Sept. 11, 2012):
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It is inevitable, after all, that separate photos of different
individuals will all be unique in one way or another. What matters
is not that a suspect's photo is different from the others, but that
the differences are such as to suggest police suspicion or
culpability, such as stark irregularities suggesting that the other
pictures were selected together as controls, whereas the odd
picture is apt to be the suspect, or differences that mark the
suspect's photo as singularly like the witness's description of the
perpetrator.
(Internal citation omitted).
Here, the only difference Crutcher can point to is skin tone. As the trial
court noted, the description "light skinned African American" is subjective.
After reviewing the photos, the court determined that any variation in skin tone
among the photos was not unnecessarily suggestive. Having reviewed the
record, we cannot say that the court abused its discretion in making this
determination. Therefore, we discern no error in the court's denial of
Crutcher's motion.
IV. CONCLUSION.
For the foregoing reasons, we affirm the trial court's judgment below on
both issues.
All sitting. Minton, C.J., Cunningham, Hughes and Noble, JJ., concur.
Venters, J., concurs by separate opinion in which Keller, and Wright, JJ., join.
VENTERS, J., CONCURS: I fully concur with the Majority opinion
including the conclusion that Crutcher is entitled to no relief with respect to
his belated discovery that the right to a public trial was somewhat abridged. I
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also agree that this is not the case to parse the difference between the public
trial right protected by the Sixth Amendment of the United States Constitution
and the corresponding right set forth in Section 11 of the Kentucky
Constitution, but I write separately to highlight an important but subtle
difference between the two.
Section 11 may not be "more robust than its federal counterpart," but it
is different in a way that is worth noting. I suggest that under the Kentucky
Constitution, the right to a public trial belongs to the people, the general
citizenry; it does not belong exclusively to the defendant, and so the right to a
public trial is not his to waive. A criminal defendant cannot waive the right to
a public trial, although he may waive his right to complain on appeal about the
denial of a public trial.
The Sixth Amendment provides in pertinent part, "In all criminal
prosecutions, the accused shall enjoy the right to a . . . public trial." That
language presents a clear manifestation of a right that is the defendant's to
enjoy. In contrast, Section 11 of the Kentucky Constitution provides that "in
all prosecutions . . . [the accused] shall have a speedy public trial." I take that
language to mean the trial shall be public whether the defendant wants it that
way or not. Section 11 makes it imperative that criminal trials are to be open
to the public. It creates a right that belongs to the people, anyone of the
general citizenry, to assure that no criminal adjudications take place behind
closed doors regardless of the defendant's preference on the subject.
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I do not diminish the usual interest of the accused to have a public trial.
But in my view, the greater menace averted by Section 11 is the secret
disposition of criminal cases without the public's knowledge. Section 11
protects the greater good of assuring that the public business of administering
justice is done in the open for all to see. To that extent, I submit that Crutcher
had no ability to waive the right to a public trial, but he certainly could, and he
certainly did waive his right to complain about it.
Keller, and Wright, JJ., join.
COUNSEL FOR APPELLANT:
Karen Shuff Maurer
Department of Public Advocacy
COUNSEL FOR APPELLEE:
Andy Beshear
Attorney General of Kentucky
Emily Lucas
Assistant Attorney General
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