COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73060 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : KENNETH E. BROWN : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 25, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-345161 JUDGMENT: Reversed and Remanded DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES, ESQ. CUYAHOGA COUNTY PROSECUTOR BY: LISA REITZ WILLIAMSON ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DARIN THOMPSON, ESQ. ASSISTANT PUBLIC DEFENDER 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113 -2- DYKE, P.J.: Defendant Kenneth Brown appeals from his convictions for trafficking in cocaine and possession of criminal tools. Defendant complains that he is entitled to a new trial because the trial court closed the trial to the public during the testimony of a police informant. For the reasons set forth below, we find this assignment of error to be well taken and we reverse and remand the matter for a new trial. On November 26, 1996, defendant was indicted for three counts of trafficking in more than one but less than five grams of cocaine and one count of possession of criminal tools. Defendant pleaded not guilty and the matter proceeded to a jury trial on June 16, 1997. The witnesses against defendant included a confidential police informant who participated in a controlled drug purchase from defendant. The state subsequently moved to amend the trafficking charges to state an amount less than one gram. The trial court permitted the amendment and defendant was convicted of all charges. At the sentencing hearing, the trial court determined that a prison term should be imposed and it sentenced defendant to concurrent terms of twelve months for each offense. Defendant now appeals and assigns a single error for our review. Defendant's assignment of error states: APPELLANT WAS DENIED HIS RIGHT TO A PUBLIC TRIAL WHERE THE COURT DID NOT BALANCE DEFENDANT'S RIGHT AGAINST ANY REASON FOR CLOSING THE COURTROOM OR CONSIDER ANY LESS RESTRICTIVE ALTERNATIVES TO COMPLETE CLOSURE BUT MERELY ACCEDED TO THE WISHES OF THE STATE. -3- Within this assignment of error, defendant complains that the trial court deprived him of his constitutional right to a public trial by ordering that spectators were barred from the courtroom during the testimony of the state's informant. The right to a public trial is set forth in the Sixth Amendment of the Constitution of the United States which provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. This provision applies to the states through the Fourteenth Amendment. In re Oliver (1984), 333 U.S. 257, 273. Likewise, Section 10, Article I of the Constitution of the State of Ohio guarantees an accused a public trial. As explained in Oliver, supra, at 268-270, this guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. Accord United States v. Cojab (C.A.2, 1993), 996 F.2d 1404, 1407, wherein the court observed: Criminal proceedings conducted in secret have had from time immemorial an odious tinge that carries with it a scent of grave injustice reminiscent of the Spanish Inquisition and the English Star Chamber. In marked contrast to the openness in which the common law jury functioned, the Lords of the Star Chamber proceeded as inquisitors. A defendant's trial was based on charges made by persons whose identities were not disclosed, and -4- he could be examined under torture, with the ultimate decision left to a court sitting without a jury. See Geoffrey Radcliffe and Geoffrey Cross, The English Legal System 107-08 (5th ed. 1971); 8 John H. Wigmore, On Evidence S2250, at 282-84 (1961). Thus, the right accorded the press and the public to be present at a criminal trial is rooted in history and derived from English common law in response to the Star Chamber. Nonetheless, the right to a public trial is not absolute and an order barring spectators from observing a portion of an otherwise public trial does not necessarily introduce error of constitutional dimension. See, e.g., Brown v. Kuhlmann (C.A.2, 1998), ___ F.3d ___, WL 195528; Douglas v. Wainright (C.A.11, 1984), 739 F.2d 531, cert. denied, 469 U.S. 1208. See, also, Press-Enterprise Co. v. Superior Court of California (1984), 464 U.S. 501, 509 ( Closed proceedings, although not absolutely precluded, must be rare and only for cause shown that outweighs the value of openness ). On appeal from such order, the reviewing court is to determine whether the lower court abused its discretion. United States v. Rios Ruiz (C.A.1, 1978), 579 F.2d 670, 674; United States v. De Los Santos(C.A.5, 1987), 810 F.2d 1326, 1332; United States v. Eisner (C.A.6, 1976), 533 F.2d 987, 994 (en banc); United States v. Lucas (C.A.8, 1991), 932 F.2d 1210, 1216-1217 cert. denied, 502 U.S. 949; United States v. Hernandez (C.A.9, 1979), 608 F.2d 741. See, also, State v. Cockshutt (1989), 59 Ohio App.3d 87, 89 (trial judge has discretion to issue reasonable orders excluding spectators in order to prevent intimidation of a witness). In Waller v. Georgia (1984), 467 U.S. 39, 48, the Supreme Court of the United States formulated the standards for courtroom -5- closure into a four-part test: [1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure. With regard to the first and second of these factors, we note as a general matter that in United States ex rel. Lloyd v. Vincent (C.A.2, 1975), 520 F.2d 1272 the court upheld an order excluding the public from the courtroom during the testimony of an undercover agent. Accord Brown v. Kuhlmann, supra, (undercover police officers); Alaya v. Speckard (C.A.2, 1997), 131 F.3d 62 (en banc) (undercover police officers). Similarly, in United States v. Farmer (C.A.8, 1994), 32 F.3d 369, 376, the court upheld an order barring the public (except for the victim's family and psychologist) from a portion of the victim's testimony. Other courts have likewise determined that spectators may be briefly barred from a courtroom where the witness is afraid to testify. See United States v. Eisner (C.A.6, 1976), 533 F.2d 987, 993-994; and cases cited therein; see, generally, 48 A.L.R.2d 1436. More specifically, we note that courts have repeatedly acknowledged the dangerous nature of the drug trade and the genuine need of law enforcement agents to protect themselves from the deadly threat it may pose. Brown v. Kuhlmann, supra, at 2, citing United States v. Alexander (C.A.2, 1990), 907 F.2d 269, 273, cert. -6- denied 498 U.S. 1095. Accord United States v. Raffoul (C.A.3, 1987), 826 F.2d 218, 226 ( The risk of physical harm *** is the best example one could imagine of an overriding interest [sufficient to overcome the right of a public trial] ). As to the third factor which requires the trial court to consider alternatives to the proposed closure, we presume that the parties could explore all reasonable alternatives at the pre- closure hearing. Under an emerging view, however, the trial court is not required to consider alternatives unless the party opposing the closure so urges; this duty does not arise sua sponte. Alaya v. Speckard, supra. The fourth factor, mandating factual findings, reflects the rule promulgated by the supreme court that the trial court make findings specific enough that a reviewing court can determine whether the closure order was properly entered. See Press- Enterprises Co. v. Superior Court of California, supra, at 510. This hearing need not constitute an evidentiary hearing and need not encompass extended legal argument that results in delay United States v. Raffoul (C.A.3, 1987), 826 F.2d 218, 225, quoting Gannet Co. v. DePasquale (1979), 443 U.S. 368, 446 (Blackmun J., concurring in part and dissenting in part). Rather, it is sufficient to hold a brief hearing wherein the circumstances surrounding the proposed closure are considered. Id.; Nieto v. Sullivan (C.A.10, 1989), 879 F.2d 743, 752-754. Accord United States v. Eisner, supra (Although better course would have been for the trial judge to hold an evidentiary hearing prior to -7- deciding that there was sufficient reason to exclude spectators , record did not demonstrate that the trial court abused its discretion in so ordering); United States v. Hernandez, supra. But, see, Douglas v. Wainright, supra (opportunity to be heard and requirement of findings is triggered where the defendant objects and requests an opportunity to be heard ). Applying all of the foregoing to this matter, we note that the following transpired herein: MR. RAUSER: Your Honor, we have the confidential informant on the floor, and he's worried about --- THE COURT: Is it possible we can clear the court- room? He's afraid family members could be here and doesn't want I'll put it in an order. MR. WILLIS: I object. I think the public has every right -- THE COURT: Well, Jimmy, your objection is noted. Let's bring them out. (Tr. 103). Thus, defense counsel objected but did not demand a hearing and did not have an opportunity to demand a hearing on the issue of closing the courtroom. Moreover, there is no independent factual basis in the record from which we may determine whether there was an overriding interest for the order of partial closure. Cf. Waller v. Georgia, supra. We therefore are unable to conclude that the order was the result of the proper exercise of -8- the court's discretion and we are therefore unable to uphold that order herein. As to the remedy to be imposed, the Waller court observed that pursuant to the settled rule, a showing of prejudice is not necessary in order to obtain a reversal where there has been an infringement of the right of public trial. Id., at 49, fn.9. Accord Rovinsky v. McKaskle (C.A.5, 1984), 722 F.2d 197 (even absent a showing of prejudice, reversal is the proper remedy). Accord Davis v. Reynolds (C.A.10, 1989), 890 F.2d 1105. While the state urges that a remand is the correct remedy, and there is support for this view, see United States v. Galloway (C.A.10, 1991), 937 F.2d 542, 546-547; Brown v. Kuhlmann, supra, we conclude that this approach fails to consider that it was the admittedly incomplete record which preceded the court's ruling. Thus, to remand for further proceedings misses the essential question of whether the ruling was proper when made and allows time for post hoc rationalizations. We therefore do not remand this matter. In accordance with the foregoing, defendant's conviction is reversed and the matter is remanded for a new trial. -9- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., AND MCMONAGLE, J., CONCUR ANN DYKE PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App. R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App. R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .