Appeal from the Superior Court of the District of Columbia. (No. F-3022-99). (Hon. Judith E. Retchin, Trial Judge).
Before Schwelb and Glickman, Associate Judges, and STEADMAN,*fn1 Senior Judge.
Argued September 16, 2003
Opinion of Associate Judge GLICKMAN, concurring in part and dissenting in part, at p. 30.
The issue in this appeal is whether Ronald Tinsley's Sixth Amendment right to a public trial was infringed upon when the trial judge ordered certain spectators out of the courtroom.*fn3 The judge excluded the spectators to protect an intimidated prosecution witness and enable her to testify truthfully. We affirm.
Ronald Tinsley was charged with the fatal stabbing of Carlis Walker on a public sidewalk in the presence of several witnesses. One of those witnesses, Renee Sadler-Wilson ("Sadler"), identified Tinsley to both the police and the grand jury as the person whom she saw punch Walker and then plunge a knife into his chest after Walker refused to buy heroin from him.
Sadler proved to be a reluctant witness, however, when the government sought to elicit her inculpating testimony at Tinsley's trial.
Although she answered preliminary questions and acknowledged being present when Tinsley had "some words" with Walker, Sadler became evasive and non-responsive when she was asked to state what she heard and to describe what happened next. "I don't know what you're referring to," Sadler claimed at one point; "I'm not saying. I'm not obligated to say anything," she insisted at another. Confronted with her grand jury testimony, Sadler professed not to remember it. She then flatly refused to answer when the prosecutor asked her whether anything had happened to cause her to forget what she had said in the grand jury. Repeatedly, Sadler stated that she "didn't want to come in here and testify," "[didn't] want to be involved," "[didn't] want to be here period." The prosecutor asked Sadler whether "anything in this courtroom" was making her "nervous." "Everything in this courtroom is making me nervous," she replied, but added, "I don't feel like talking about it." Sadler remained unresponsive even though she believed she would be "locked up" for failing to answer.*fn4
In short, as the trial judge succinctly put it during a bench conference, Sadler "clammed up." Eventually the judge called a ten-minute recess, after observing that Sadler was sitting with her head down and covering part of her face. During this break, Sadler remained in the courtroom. When proceedings resumed, the judge noted on the record that Sadler was crying.
At this juncture, the prosecutor asked for a conference at the bench so that he could report on his exchange with Sadler during the break. The prosecutor had asked Sadler if everything was okay, and in response she "just shook her head and she said, 'The people in the back. That's the problem, the people in the back.'"*fn5 The prosecutor identified "the people in the back" as Tinsley's brother and his brother's friends.*fn6 According to the prosecutor, Sadler's "demeanor completely changed when the Defendant's brother walked in the courtroom," and she was "probably even more concerned" by the appearance of his friends. "She thinks that . . . the Defendant's brother puts his friends up to do certain things. . . . The moment they walked in the courtroom, her eyes became wide and she closed down at that moment. . . ." Sadler was fearful, the prosecutor explained, because prior to trial several unknown persons had broken into her apartment, attacked her, stabbed her in the arm, and told her not to testify against Tinsley. Although the perpetrators of the break-in had not been identified, Sadler "said she believed it was the Defendant's brother or his boys." Noting that Tinsley's mother also was attending the trial, the prosecutor added that she too reportedly had threatened Sadler "at one point," although he furnished no details.
Based on the foregoing proffer, the prosecutor requested that "the Defendant's brother and his friends be barred from the courtroom." Tinsley's mother could stay, the prosecutor said, since despite the alleged threat, "she's not going to be a physical danger [to Sadler], I don't think."
Tinsley's counsel opposed the prosecutor's request as unjustified. Defense counsel did not dispute that Sadler had been attacked and threatened prior to trial, and he did not request a voir dire of the witness to determine whether she really was intimidated. Counsel argued, rather, that the spectators had behaved appropriately in the courtroom (a fact not in dispute) and that Sadler had not been affected by their entrance and continuing presence. Her demeanor on the witness stand, defense counsel contended, had "remained [the same] throughout." On this latter point, the trial judge disagreed. While the judge could not say that Sadler's "clear . . . change of demeanor" was related to the entrance of specific people into the courtroom, the judge found it obvious that the witness became increasingly "hesitant and reluctant" to testify as her examination progressed.
Stating that she "had no intention of excluding anyone from the courtroom unless there were extreme circumstances,"*fn7 the judge pronounced herself satisfied by the proffer and decided to "exclude [Tinsley's] brother and his associates who have posed a threat."*fn8 "Based on the proffer," the judge also decided, again over defense objection, to exclude Tinsley's mother. The judge placed no explicit temporal or other limitations on her exclusion of these individuals; specifically, she did not state that they could return to watch the trial after Sadler finished her testimony or at any other time, nor, on the other hand, did she state the contrary, i.e. that the exclusion was for the duration of trial.
The record is less than clear as to how the order of exclusion was implemented. It appears that an unidentified courtroom marshal was delegated the task of communicating the order of exclusion to some or all of its intended subjects.*fn9 No record was made of the identities of the persons associated with Tinsley's brother or of the directions the marshal gave to the spectators in telling them to depart. In particular, the record does not reveal whether the marshal told the spectators that they could return after Sadler left the witness stand. There also is no indication in the record that any of the excluded persons ever did return.
The bar order effectively cleared the courtroom of all spectators except for two court employees. Asked whether she was prepared to continue with her direct examination, Sadler said in a faint voice, "I don't want to be here. No, I don't want to answer no more questions." For a few more minutes the examination proceeded haltingly, with Sadler reiterating her wish to "get out of this courtroom." The prosecutor then observed to Sadler that she had been keeping her head down; "have you looked around the courtroom," he asked her, "since you started testifying?" She confirmed that she had not:
If I look around the courtroom to see who's here, would it help my testimony? No, it won't help at all. It would make it worse, if anything.
The judge made a suggestion: "Why don't you tell the witness what it is you wish to tell her, Mr. [Prosecutor]? There are two court employees seated in the courtroom." "And only those two ...