United States District Court, Southern District of New York
February 10, 2000
VERNON BOWDEN, PETITIONER,
JOHN KEANE, SUPERINTENDENT, WOODBURNE CORRECTIONAL FACILITY, DENNIS C. VACCO, ATTORNEY GENERAL OF NEW YORK, RESPONDENTS.
The opinion of the court was delivered by: Sprizzo, District Judge.
MEMORANDUM OPINION AND ORDER
Vernon Bowden ("petitioner" or "Bowden") brings the instant
petition pursuant to 28 U.S.C. § 2254 against the Superintendent
of Woodburne Correctional Facility and the Attorney General of
the State of New York. Petitioner challenges his state court
conviction on the ground that a closure of the courtroom to the
general public during the testimony of a government undercover
officer witness violated his right to a public trial under Sixth
and Fourteenth Amendments to the United States Constitution. For
the reasons set forth below, the instant petition is denied.
Petitioner's conviction arose out of a "buy and bust"*fn1
transaction in which he sold three vials of crack cocaine to
Detective Billingy ("Billingy"), an undercover police officer.
According to Billingy's testimony, which he gave in open court,
Billingy observed petitioner on July 2, 1993 outside of a
building near 126th Street in Manhattan. Trial Transcript ("Tr.")
at 288. As Billingy approached the building, petitioner "hissed"
at him and gestured for him to wait. Id. Billingy testified
further that petitioner then led him into the building and asked
what he wanted. Id. at 288-89, 339. Billingy told petitioner
that he wanted "three" and gave petitioner twelve dollars in
pre-recorded buy money. Id. at 289, 298, 339. Billingy then
testified that petitioner walked up several steps, lifted a
doormat, and removed three vials of crack cocaine from a bag
under the mat. He then descended the stairs and gave the vials to
Billingy. Id. at 289, 297.
Detective Weathers ("Weathers"), another undercover officer,
subsequently testified in closed court that he followed
Billingy from a half-block behind during the operation, acting as
his "ghost."*fn2 Id. at 367-69. He testified further that from
a distance of approximately 100 to 150 feet, he observed
petitioner leave and enter the building with Billingy, and that
thereafter, he transmitted a detailed description of petitioner
to the arrest team. Id. at 369-371. He subsequently joined
Billingy in an undercover car, where, according to both Billingy
and Weathers' testimony, they radioed in a description of
petitioner and did a drive-by identification while petitioner was
detained. Id. at 292. A member of the arrest team then
testified that he entered the building and recovered the buy
money and a vial of crack cocaine from under the mat on the
stairs. Id. at 388-89. The only other individual to testify was
a police chemist who stated that the three vials recovered from
petitioner did in fact contain crack cocaine. Id. at 427.
On January 13, 1994, the trial court held a Hinton*fn3
hearing on the government's motion to close the courtroom during
Detective Weathers' testimony. During the hearing, Weathers
testified that he was assigned to the North Manhattan Narcotics
District, where he was participating in several ongoing narcotics
investigations. Id. at 215-216. He also indicated that he had
been threatened by drug dealers who suspected that he was a
police officer, stating: "I've already been threatened by alleged
drug dealers for being a cop. I'm supposed to be killed or
whatnot [sic], mutilated, strangulated [sic]." Id. at 218,
216-20. Moreover, Weathers testified that he had approximately
twenty-five to thirty
"lost subjects," or suspects from whom he had bought drugs but
whom had not been arrested. Id. at 217. Defense counsel briefly
cross-examined Weathers, and after summation by the prosecution,
objected to the closure and rested on the record. Id. at 222.
The trial judge granted the prosecution's motion to close the
I believe the record now does substantiate closure of
the courtroom, and I am not going to summarize it. I
think it speaks for itself, not the least factor of
which is the way information circulates throughout
this system[.][It] is perfectly conceivable to me
that word will get out if I did not close the
courtroom that an undercover officer would be
testifying and that he will be identified, and it
isn't necessary for people to be sitting in the
Id. at 222-23.
At the conclusion of petitioner's trial, the jury found
petitioner guilty of one count of criminal sale of a controlled
substance in the third degree and not guilty of two counts of
criminal possession of a controlled substance. Id. at 533-534.
Petitioner appealed his conviction to the New York Supreme
Court, Appellate Division, First Department, arguing that closure
of the courtroom during Detective Weather's testimony violated
his Sixth Amendment right to a public trial, and that his
sentence was excessive. On December 17, 1996, the Appellate
Division affirmed petitioner's conviction. People v. Bowden,
234 A.D.2d 127, 651 N.Y.S.2d 453 (1st Dep't 1996). The New York
Court of Appeals denied petitioner leave to appeal on July 1,
1997. People v. Bowden, 90 N.Y.2d 891, 685 N.E.2d 215,
662 N.Y.S.2d 434 (1997). Bowden filed the present petition on June
16, 1998, claiming that closure of the courtroom violated his
Sixth Amendment right to a fair trial.
On May 28, 1999, Magistrate Judge Henry Pitman issued a Report
and Recommendation finding that under the relevant legal
standard: (1) the limited closure of the courtroom was justified
on the basis of Detective Weathers' safety; (2) the closure of
the Court was no broader than necessary; (3) the trial court had
no duty to consider alternatives to partial closure; and (4) the
trial judge's failure to make findings of fact was in good faith.
See Report and Recommendation dated May 28, 1999 ("Mag.Rep.")
at 22-23. On the basis of these findings, Magistrate Judge Pitman
recommended that petitioner's application for a writ of habeas
corpus be denied and that petitioner also be denied a certificate
of appealability. Id. at 23-24.
The Court agrees with Judge Pitman's conclusion that Bowden's
petition for a writ of habeas corpus must be denied. However,
since Judge Pitman's ruling relied heavily on the now vacated
decision in Brown v. Andrews, 1998 WL 293994 (S.D.N.Y. June 5,
1998), vacated by, Brown v. Andrews, 180 F.3d 403 (2d Cir.
1999), this Court must reexamine the petition without recourse to
that vacated decision.
In Waller v. Georgia, the Supreme Court articulated a
four-part test for courtroom closure: (1) the party seeking to
close the trial must advance an overriding interest that is
likely to be prejudiced in the absence of closure; (2) the
closure must be no broader than necessary to protect that
interest; (3) the trial court must consider reasonable
alternatives to closure; and (4) the trial court must make
findings of fact to support closure. 467 U.S. 39, 48, 104 S.Ct.
2210, 81 L.Ed.2d 31 (1984).
Petitioner contends that the first, second and fourth prongs of
the Waller test were not satisfied. The Court will address each
of these arguments in turn.
Waller's first prong may be met by a showing that closure is
necessary to preserve either an undercover officer's
effectiveness or his safety. See Ayala v.
Speckard, 131 F.3d 62, 72 (2d Cir. 1997); Ip v. Henderson,
710 F. Supp. 915, 918 (S.D.N.Y.), aff'd mem 888 F.2d 1376 (2d
Cir. 1989). As to an undercover's effectiveness, the Second
Circuit has held that, if the asserted risk "is that the officer
would return to an area of operation where trial audience members
might reside, that area must be defined with geographic
particularity." Andrews, 180 F.3d at 406 (2d Cir. 1999) (citing
Brown v. Kuhlmann, 142 F.3d 529, 537 (2d Cir. 1998)). Here,
Weathers indicated only that all of his ongoing narcotics
investigations and undercover drug purchases took place in New
York County. Tr. at 215-16, 219. This geographic area clearly is
not sufficiently specific to meet the standard articulated in
Kuhlmann. 142 F.3d at 537 (finding that the geographic area of
Brooklyn was not specific enough to justify closure).
Petitioner also argues that the record is insufficient to prove
that Weathers' safety was in danger under the recent Second
Circuit decision in Andrews. There, the Court considered
courtroom closure in a "core" buy and bust case where an
undercover officer's safety was presumably at risk because he
would return to the same area as a previous arrest.*fn4 As the
Court held, in these circumstances, "[t]he state must assert a
specific connection between the perceived threat to the officer
and the officer's public testimony in the particular proceeding."
Id. at 407-08. In presenting this finding, the Andrews court
specifically distinguished its decision in Kuhlmann, where it
found the "dangerous nature of the drug trade" was sufficient to
prove that an undercover's safety was in danger.*fn5 As the
Andrews court noted, the propriety of courtroom closure
turns in large measure on the significance of the
testimony during the closure itself. Specifically,
[Kuhlmann] did not involve the classic courtroom
closure during the testimony of an undercover police
officer who was a party to a buy-and-bust drug
transaction with the defendant. In such a case, the
prosecution invariably centers around the witness:
the undercover officer who purchased the drugs
provides the only testimony as to the defendant's
identity as the seller. The only additional testimony
is provided by the arresting officer and in some
cases, a police chemist. While [the officer] happened
to have been an undercover officer when he testified,
[Kuhlmann] did not involve a drug transaction with
the petitioner, nor did his testimony directly relate
to the criminal activity for which petitioner is
charged. . . . Under these circumstances, . . . the
closure did not violate the Public Trial Clause.
180 F.3d at 407 (emphasis added), quoting Kuhlmann, 142 F.3d at
The relative significance of the testimony at issue here
strongly parallels that at issue in Kuhlmann. Like the
undercover officer in Kuhlmann, all testimony presented by
Detective Weathers was cumulative to that presented by Detective
Billingy, the most important prosecution witness. Like the victim
in Kuhlmann, Detective Billingy testified in open court to
all the essential details of the crime at issue. These details
included that he
asked petitioner for drugs, that he accompanied petitioner inside
a building, and that petitioner took his money in exchange for
drugs placed under a doormat.
Detective Weathers, on the other hand, testified simply that he
saw Billingy meet with petitioner outside the building and leave
with him and that Billingy later informed him that it was
petitioner who had in fact had sold him the drugs. The nature of
such testimony hardly rises to the significance of that in
Andrews. Indeed, unlike that case, Detective Weathers was in no
way a party to the transaction, and in no way provided the only
direct testimony "as to the defendant's identity as the seller."
180 F.3d at 407 (quoting Kuhlmann, 142 F.3d at 534).*fn6
Accordingly, the more demanding safety standard of Andrews is
not warranted in the instant case. Rather, a general finding of
"the dangerous nature of the drug trade" under Kuhlmann is
sufficient to justify closure, a finding that is clearly
appropriate given Weather's testimony that he feared for his
safety because of his participation in ongoing drug prosecutions.
Petitioner next argues that the order of closure was broader
than necessary, making closure improper under Waller's second
prong. More specifically, petitioner argues that the trial court
should have mandated that Weathers enter the courtroom by a rear
door rather than order complete closure during his testimony.
This Court, however, is compelled to conclude that closure was
no broader than necessary to ensure the safety of Detective
Weathers, and that accordingly, Waller's second prong has been
met. As the Magistrate Judge found, the limited closure at issue
was no broader than necessary under the circumstances. Mag. Rep.
at 16. In particular, the Second Circuit has held that "closure
of the courtroom during the testimony of a single witness is
itself a narrow alternative to closure for the duration of the
proceeding," and that the trial judge has no further obligation
to "consider alternatives to th[at] alternative." Kuhlmann, 142
F.3d at 538, quoting Ayala v. Speckard, 131 F.3d at 71 (2d Cir.
1997). Here, the trial judge ordered the courtroom closed only
during Detective Weathers' testimony and left all other
witnesses, particularly Detective Billingy, the prosecution's
primary witness, to testify in open court. Moreover, as Judge
Pitman noted, petitioner gives no explanation of how the
alternative he only now suggests would diminish the safety risk
that originally justified closure. Mag. Rep. at 16.
Finally, under Waller's forth prong, the trial court must
make findings adequate to support closure. Waller, supra, 467
U.S. at 48, 104 S.Ct. 2210. While not extensive, the trial
court's findings are sufficient to meet Waller's fourth prong
under the standards articulated in this Circuit. In a situation
of a limited closure, "information gleaned" from the record will
satisfy the fact-finding requirement. See Woods v. Kuhlmann,
977 F.2d 74, 77-78 (2d Cir. 1992) ("information gleaned" from the
record was "sufficient to support the partial, temporary closure
of petitioner's trial"); see also United States v. Farmer,
32 F.3d 369, 371 (8th Cir. 1994) ("[S]pecific findings by the
district court are not necessary if we can glean sufficient
support for a partial temporary closure from the record."). In
the present case, as discussed above, testimony during the
closure hearing was adequate to support closure
under Waller's first three prongs. In turn, such testimony
necessitates a finding that Waller's fact finding requirement
has also been met.*fn7
In sum, the partial and temporary closure of petitioner's trial
during collateral and duplicative testimony of Detective Weathers
did not violate petitioner's right to a public trial under the
United States Constitution. Accordingly, for the reasons set
forth above, Bowden's petition for a writ of habeas corpus shall
be and is hereby denied. The Clerk of the Court is directed to
close the above-captioned action.
A certificate of appealability will issue.
It is SO ORDERED.