Appeal from the Superior Court of the District of Columbia (M-13194-99) (Hon. Evelyn C. Queen, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before RUIZ, Associate Judge, and KING and TERRY, Senior Judges.*fn1
After a non-jury trial, appellant was convicted of misdemeanor sexual abuse of a child*fn2 and was sentenced to a term of three years' probation. On appeal he contends that the trial court erred by temporarily closing the courtroom to the public during the testimony of the victim, J.J., a twelve-year-old girl who suffered from severe social disorders and borderline mental retardation and, in addition, exhibited physical discomfort while speaking in a courtroom setting. We conclude that the record does not provide sufficient support for the court's decision to close the courtroom, and accordingly we reverse appellant's conviction.
A. Preliminary Proceedings
Prior to trial, appellant challenged J.J.'s competency to testify. Appellant's challenge was based on a Children's Hospital record from 1997, which stated that J.J. "suffers from a depressive disorder, NOS [not otherwise specified], parent/child relationship problems, and borderline intellectual functioning," in addition to being hydrocephalic*fn3 and having attention deficit disorder and poor vision. The court held a hearing to determine whether J.J.'s limited mental capacity and psychological problems would interfere with her ability to tell the truth at trial. At that hearing, J.J.'s therapist, Carrie Trauth, testified that J.J. currently had the same diagnosis as she did in 1997, but that her condition did not affect her ability to tell the truth. Following Ms. Trauth's testimony, the court "accept[ed] the clinical opinion of Ms. Trauth that [J.J.] has nothing that interferes with her ability from her mental health aspects . . . to testify in this matter."
After both counsel gave their opening statements, the court conducted a further voir dire hearing at which J.J. herself testified. At the end of that hearing, the court concluded that J.J. "has an appreciation of the consequences of disobeying her oath, she has an understanding between what is true and what is false, what is fantasy and what is real, and she has sufficient though not perfect recollection as to remote and near memory." On the basis of those findings, the court found her "competent to testify," even though the court was aware that J.J. had anger management problems and mood swings that often surfaced in a group environment.
B. The Evidence of Sexual Abuse
J.J. testified that on Friday morning, October 22, 1999, she accompanied her father ("Mr. J.") to the apartment of appellant, who was Mr. J.'s neighbor.*fn4 During that visit Mr. J. left the apartment to run some errands, and while he was gone, J.J. fell asleep on appellant's couch. She was awakened by her father's knocking on appellant's door. As J.J. awoke, she was alarmed to find her pants pulled down and appellant's fingers inside her vagina, "and so was his mouth." She immediately stood up and pulled up her pants, while appellant admonished her not to "tell anyone" or he would "use that" on her, pointing to a knife that was lying on a nearby table. He also offered J.J. twenty dollars to keep silent about the incident. After J.J. opened the door to let her father in, she and her father left and returned to his apartment. Once they were safely inside Mr. J.'s apartment with the door closed, J.J. told her father what had happened. Mr. J. promptly called the police, and when they responded, they interviewed J.J. and then took her to Children's Hospital. A nurse who examined her at the hospital testified that she found redness at the entrance of J.J.'s vagina.
C. The Closure of the Courtroom
The trial began on Thursday, February 24, 2000. After opening statements and with the courtroom open to the public, the government began its case in chief with the direct examination of the complainant, J.J. While on the stand, J.J. was very timid, often having to be reminded to speak louder and not to "worry about the other people." The court noticed that to help her maintain her composure and avoid these problems while on the stand, J.J. gripped "anger balls." In addition, whenever J.J. seemed distressed, the court sought to allay her discomfort. At the end of the day, the court noted during a bench conference that J.J. "seems to be uncomfortable with the excess people, so in the morning we'll try to have as few people here as possible. . . . She may in the morning with fewer people here be less uncomfortable."
The next morning, before resuming the direct examination of J.J., the prosecutor asked the court to close the courtroom during J.J.'s testimony:
MS. HOSTIN [the prosecutor]: Your Honor, we'd invoke . . . again the rule on witnesses and ask that because we have a very young complainant in this case that has indicated a certain degree of, rather being uncomfortable with a lot of people in the courtroom, we'd ask that the Court clear the courtroom other than for people who are absolutely necessary.
MS. SUMPTER [defense counsel]: Your Honor, the only people that I know of who are in the courtroom are people from my office and support people for Mr. McIntosh [appellant].
THE COURT: Are they necessary for the questioning of the witness?
MS. SUMPTER: No, they're not, Your Honor, but we would ask for them to be allowed to remain.
THE COURT: I will clear the courtroom. In balancing the matter relative to support for Mr. McIntosh and support for a 12-year-old child on the witness stand. I'll opt to support the 12-year-old child because she is, in fact, in a more vulnerable position. Clear it.
Defense counsel then asked the court to allow two attorneys to remain. Because the attorneys were not essential for the questioning of J.J., the court asked these attorneys to leave, and then said, "Courtroom is now cleared. Usually to clear the courtroom is to try to get a screen . . . to protect the minor child in this type of case." After the courtroom had been cleared, the only persons present were the judge, the courtroom clerk, the ...