January 16, 2014 – State of New Mexico v. Robert Hood, No. 31,568

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number:

Filing Date: January 16, 2014

NO. 31,568

STATE OF NEW MEXICO,
Plaintiff-A ppellee,

V.

ROBERT HOOD,

Defendant- Appellant.

APPEAL FROM THE DISTRICT COURT OF SANJUAN COUNTY
John A. Dean, District Judge

Gary K. King, Attomey General

Margaret McLean

Santa Fe, NM

for Appellee

Jorge A. Alvarado, Chief Public Defender

Kathleen T. Baldridge, Assistant Appellate Defender
Santa Fe, NM

for Appellant

OPINION
HANISEE, Judge.
{1} 	At Robert Hood’s (Defendant) trial on charges of trafficking cocaine, the
district court excluded, over Defendant’s objection, all members of the public from
the courtroom during the testimony of an undercover officer. On appeal, Defendant
contends that this courtroom closure violated his Sixth Amendment right to a public
trial. Applying our Supreme Court’s recent decision in State v. Turrietta, 2013-
NMSC-036, 308 P.3d 964, we conclude that the closure was unconstitutional because
although the disclosure of an undercover identity may constitute an overriding interest
likely to be prejudiced by open-court testimony, the trial record indicates that the
district court proscriptively closed the courtroom to all members of the public during
the undercover officer’s testimony without inquiring into the nature or circumstances
of individuals to be excluded. Further, the trial record is devoid of findings regarding
inquiry into whether there existed reasonable alternatives to the closure of the
proceedings. Accordingly, pursuant to the exacting standard articulated in Turrietta,
and to which we are bound, we reverse Defendant’s conviction and remand for a new
trial.
BACKGROUND
{2} 	An undercover officer and a confidential informant arranged to buy crack
cocaine from Defendant. As a result of the purchase, Defendant was charged with

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trafficking cocaine. The jury found him guilty, and the State filed a supplemental
information, listing several prior offenses for purposes of a habitual offender
enhancement pursuant to NMSA 1978, Section 31-18-17 (2003). Defendant was
sentenced to eighteen years for the trafficking conviction, which the district court
reduced by four years pursuant to NMSA 1978, Section 31-18-15.1 (2009). He was
additionally sentenced to four years pursuant to the habitual offender enhancement,
resulting in a total term of incarceration of eighteen years. Defendant appeals, raising
three claims of error: that he was denied his Sixth Amendment right to a public trial,
that his conviction was not supported by substantial evidence, and that his sentence
subjected him to cruel and unusual punishment. Because Turrietta compels that we
reverse and remand on Sixth Amendment grounds, we do not consider Defendant’s
remaining claims of error.
{3} 	Prior to trial, the State filed a motion to clear the courtroom during the
testimony of Officer Nick Bloomfield. Officer Bloomfield worked undercover, and
although the State had listed his real name on its witness list, it did not want his
undercover identity to be disclosed to members of the public in the courtroom, as there
might be someone who would recognize him during his ongoing undercover
operations. At the hearing on the State’s motion, Officer Bloomfield did not testify,
nor did the State present evidence supporting its motion to close the courtroom to all

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spectators during the officer’s testimony. Thus, specific information about Officer
Bloomfield’s operations and the need for the courtroom to be closed during his
testimony was based solely upon the State’s representations to the court. In addition,
the district court asked the State to submit a sealed document containing the number
of cases that Officer Bloomfield was working on, along with information about how
many of his cases had been filed and how many had been resolved. The district court
asked that the list not contain any details about the law enforcement operations.
{4} 	As directed, the State submitted the responsive document under seal and
provided a copy to defense counsel. The document has since been unsealed by consent
of the parties, and it represents that Officer Bloomfield had been involved in twenty
investigations as an undercover officer. From these, five criminal cases were still
pending at the time of the hearing. Those investigations had been resolved at the time
of the State’s motion, but Officer Bloomfield’s involvement had not yet been
revealed. 	As 	well, 	the 	document 	revealed 	that 	Officer 	Bloomfield 	was 	still
participating in two investigations in which he was operating undercover.
{5} 	On the day of trial, prior to voir dire, the district court asked the State whether
Officer Bloomfield had ever testified in open court. The State represented that Officer
Bloomfield had testified once in district court and at a few preliminary hearings in
magistrate court, and that, in each instance, the courtroom was closed during his

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testimony. The district court then ruled that it would close the courtroom during
Officer Bloomfield’s testimony because it thought that “there [was] a legitimate public
safety issue” as Officer Bloomfield had “some ongoing investigations.”
DISCUSSION
The Sixth Amendment Right to a Public Trial
{6} 	Defendant argues that the district court erred in closing the hearing to the public
during Officer Bloomfield’s testimony because the Sixth Amendment to the United
States Constitution guarantees the right to a public trial. In a criminal prosecution,
“the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. amend.
VI.; N.M. Const. art II, § 14. We review this claim of error de novo. Turrietta, 2013-
NMSC-036, ¶ 14. If a hearing is closed in violation of the Constitution, the denial of
the right to a public trial is a structural error; thus, it is not subject to a harmless error
analysis. Id.
{7} 	One purpose of the right to a public trial is to benefit the accused, “that the
public may see he is fairly dealt with and not unjustly condemned[.]” Id. ¶ 15 (internal
quotation marks and citation omitted). Although the right to a public trial serves to
protect important interests, the right is not absolute and “may give way in certain cases
to other rights or interests, such as . . . the government’s interest in inhibiting
disclosure of sensitive information.” Id. (internal quotation marks and citation

1“There are two types of courtroom closures, total courtroom closures and
partial courtroom closures. Turrietta, 2013-NMSC-036, ¶ 16. A total closure occurs
when only the attorneys and courtroom personnel are permitted to remain in the
courtroom, at the exclusion of all other spectators. Id. In the case of a partial closure,
some spectators are permitted in the courtroom while others are excluded. Id. The
State argues that the closure in this case was a partial closure and should be subjected
to a more lenient “substantial reason” standard rather than the Waller “overriding
interest” standard. Our Supreme Court’s decision in Turrietta, adopting the Waller
“overriding interest” standard to all courtroom closures, renders this argument moot.
Turrietta, 2013-NMSC-036, ¶ 19 (internal quotation marks omitted).
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omitted). However, circumstances such as these are rare and “the balance of interests
must be struck with special care.” Id. (internal quotation marks and citation omitted).
It is now settled in New Mexico that, when a party seeks courtroom closure, whether
it be partial or total, the “overriding interest” standard, as adopted by our Supreme
Court in Turrietta and articulated in Waller v. Georgia, 467 U.S. 39 (1984), will
apply.1 Turrietta, 2013-NMSC-036, ¶ 19. The Waller standard is a four-pronged
inquiry requiring that:
[(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 district court must consider reasonable
alternatives to closing the proceeding, and [(4)] it must
make findings adequate to support the closure.
Turrietta, 2013-NMSC-036, ¶ 19 (alteration, internal quotation marks, and citation
omitted).
{8} 	In Turrietta, our Supreme Court was faced with deciding the constitutionality

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of a courtroom closure during the testimony of four cooperating witnesses. Id. ¶¶ 1, 5.
The cooperating witnesses were former gang members set to testify against the
defendant, a member of two gangs, who shot and killed a member of another gang. Id.
¶¶ 2, 5. The prosecution sought to close the courtroom during the testimony of the
witnesses out of fear that individuals affiliated with the defendant would fill the
courtroom and attempt to intimidate the witnesses. Id. ¶ 5. Over the defendant’s
objections, the district court conducted a limited voir dire of the cooperating
witnesses. Id. ¶ 6. During these proceedings, one such witness testified that after he
began informing against the defendant in an unrelated case, he was subjected to
threats and was physically assaulted on two occasions. Id. ¶ 7. A second witness
testified that after the gang learned of his status as a confidential informant, he
received a death threat. Id. Further, the district court recognized a gang presence in the
courtroom after a gang moniker was twice found etched outside the courtroom doors.
Id. ¶ 8. Accordingly, over the defendant’s objections, the district court closed the
courtroom during the testimony of two of the cooperating witnesses and excluded all
members of the public, with the exception of the immediate family of the defendant
and the victim, attorneys, court staff, and members of the press. See id. The defendant
appealed, and this Court affirmed the district court. Id. ¶ 9. After granting certiorari,
our Supreme Court adopted the Waller “overriding interest” test. Turrietta, 2013-

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NMSC-036, ¶¶ 4, 19. Based on the failure of the first Waller prong, the closure was
deemed to be unconstitutional, and the case was remanded to the district court for a
new trial. Id. ¶¶ 22, 40.
{9} 	We now apply the Waller standard to determine whether the district court
committed error in granting the State’s motion to close the courtroom during Officer
Bloomfield’s testimony. For the purposes of our analysis, we assume, without
deciding, that the State’s objective to conceal the identity of an active undercover
officer constitutes an overriding interest that is likely to be prejudiced by open-court
testimony. 	Even 	with 	this 	assumption, 	however, 	under 	Turrietta’s 	stringent
requirements, the courtroom closure in this case was nonetheless unconstitutional. Not
then having the benefit of the holding articulated in Turrietta, the basis for the district
court’s closure in the case before us failed to comport with prongs two, three, and four
of the Waller test. See Turrietta, 2013-NMSC-036, ¶ 22 (indicating that, under the
Waller test, a courtroom closure is unconstitutional based on the failure of one of the
four prongs). Because no record exists regarding inquiry or findings pertaining to the
second and third prongs, we do not address the initial “overriding interest” Waller
factor.
{10} 	When an overriding interest is established by the prosecution, a courtroom
closure 	is 	nonetheless 	only 	constitutional 	if 	it 	meets 	the 	remaining 	Waller

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requirements. The second commands that the closure “be no broader than necessary
to protect the overriding interest.” Turrietta, 2013-NMSC-036, ¶ 25 (alteration,
internal quotation marks, and citation omitted). A district court’s closure is not overly
broad if it first strikes a “careful balance of interests” that results in the exclusion of
only those persons thought to be responsible for the existence of the basis of prejudice
to the overriding interest. Id. The State argues that the closure in this case was only
as broad as necessary to protect Officer Bloomfield’s identity, safety, and the integrity
of his investigations. However, the record reveals that the State provided no evidence
regarding identification of any persons whose presence during Officer Bloomfield’s
testimony may have imperiled ongoing investigations or have threatened the officer’s
safety in those investigations. Had the district court sought or the State provided such
information, the closure could perhaps have been tailored to exclude only those
persons who posed a threat to the officer’s identity, safety, or the viability of his
undercover work. Instead, however, the district court ordered a closure that generally
precluded the attendance of all members of the public without evidence showing and
any finding that the disallowed observers were potentially a threat to law enforcement,
or otherwise justifying the officer’s concerns in connection with ongoing undercover
narcotics investigations. Accordingly, we determine that the exclusion was broader
than necessary to protect any overriding interest and, thus, was unconstitutional. See

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id. (expressly concluding courtroom closure was overly broad and unconstitutional
when the court excluded some spectators without a finding that the excluded
individuals posed a threat).
{11} 	In conjunction with the second prong, the third Waller factor requires that the
district court consider reasonable alternatives to closing the proceedings. 	See
Turrietta, 2013-NMSC-036, ¶ 28. This consideration encompasses a requirement that
the “district court . . . take every reasonable measure to accommodate public
attendance at criminal trials.” Id. (internal quotation marks and citation omitted). Here,
the State argues that the alternatives that Defendant proposes in his brief in chief
“cannot be taken seriously” nor would they have been effective to protect an
overriding interest from being prejudiced at trial. The State further takes issue with the
fact that Defendant did not suggest these alternatives to the district court in the
proceedings below. However, in Turrietta, our Supreme Court indicated that it was
the prosecution’s burden to present a case coming within the Waller factors. See id.
¶¶ 20, 25 (stating that, with respect to overriding interest, the prosecution had
“advance[d] an overriding interest that is likely to be prejudiced” and that, with
respect to the second prong, “the [prosecution] did not satisfy the second prong of
Waller” (internal quotation marks and citation omitted)). Further, the Court articulated
that the district court “must consider, sua sponte, all alternatives to any type of

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closure.” Id. ¶ 30. Therefore, although Defendant did not propose any suggested
alternatives to the district court, the State bore the burden and the district court bore
an obligation under Turrietta to independently engage in the consideration of potential
options to prophylactic closure.
{12} 	At the hearing on the State’s motion to close the courtroom, the State suggested
that the only alternative to the closure to the public would be to inquire of those seated
in the courtroom whether they were drug dealers and ask those who identified
themselves as such to leave the courtroom. The State added that no one in the
courtroom would likely oblige such a request. In any event, pursuant to the third
Waller factor, such a limited inquiry too would have been deficient. Considered in
whole, the record does not indicate that the district court screened any spectators to
any degree, nor does it demonstrate that the court considered pursuing alternatives to
closure. As Defendant now suggests and Turrietta discussed, there were several other
alternatives to closure that the district court did not consider. See id. Defendant’s
suggestions on appeal include conducting a screening of spectators by security
personnel, recording the spectators’ identities, and removing any photographic, audio,
or video recording equipment during the officer’s testimony. Likewise, in Turrietta,
the court noted spectator screening, name recording, increases in security, and the
“wait and see” method as areas of inquiry suitable to review under the “reasonable

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alternative” prong of Waller. See Turrietta, 2013-NMSC-036, ¶ 30 (citing United
States v. Sherlock, 962 F.2d 1349, 1356-57 (9th Cir. 1989) (describing method that
involves district court’s observance of witness demeanor and capacity to testify prior
to closure determination). Because the district court here did not consider all
reasonable alternatives to excluding all observers from the proceedings, we conclude
that the third Waller prong was not satisfied. See Turrietta, 2013-NMSC-036, ¶ 30
(concluding that the third Waller prong was not satisfied where the district court failed
to consider all reasonable alternatives when options in lieu of the exclusion of
spectators were mentioned at trial and in the defendant’s brief).
{13} 	With regard to the final Waller requirement that the district court make findings
adequate to support the closure, we recognize that the district court in this case did not
undertake a full analysis of the Waller test, quite possibly because Turrietta had not
yet been issued, but our Opinion, which affirmed the closure, had been filed. Thus,
district court findings on the factors had not yet been compelled by precedent.
Although we sympathize with the State and the district court’s desire to ensure Officer
Bloomfield’s safety and the integrity of his investigations, under Turrietta, specific
findings on the Waller factors were required. See Turrietta, 2013-NMSC-036, ¶ 31.
Accordingly, as the district court did not issue findings as to any specific threats to
Officer Bloomfield’s identity, safety, or the viability of his undercover operations, nor

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as to the breadth of or reasonable alternatives to closure, the district court did not
comply with the fourth Waller prong. See Turrietta, 2013-NMSC-036, ¶ 34. Thus,
because prongs two, three, and four of the Waller test were not satisfied, we conclude
that the courtroom closure in this case amounted to a violation of Defendant’s
constitutional rights.
CONCLUSION
{14} 	For the foregoing reasons, we reverse and remand to the district court for a new
trial. To our holding today, we add our suggestion that our Supreme Court Criminal
Procedure Rules Committee be requested to consider adoption of a rule that requires
motions for closure of trial to be filed and heard considerably in advance of the trial
setting. Further, in regard to the development of law in the area of closure, it seems
clear that our Supreme Court in Turrietta contemplated that future cases would work
through, on a case-by-case basis, what may constitute an “overriding interest,” a
“closure . . . no broader than necessary to protect that interest,” “reasonable
alternatives,” and “adequate findings” to support a closure. 	Having to resolve
complex factual inquiries and make findings that support closure, if closure is called
for, should be pursuant to a district court inquiry conducted prior to trial.
{15} 	IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JAMES J. WECHSLER, Judge

JONATHANB. SUTIN, Judge

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