Petitioner appeals from the judgment of the United States District Court for the Southern District of New York (Brieant, J.), denying his petition for habeas corpus. The state trial court's decision to exclude the public from the jury selection process for one afternoon was not justified in view of Waller v. Georgia, 467 U.S. 39 (1984). Nevertheless, the temporary closure of the courtroom was too brief and trivial to justify overturning Petitioner's conviction where the only rulings of the court during the courtroom closure - the dismissal of certain jurors by reason of inability to serve - were done with the consent of both parties, and the court's introductory remarks to jurors were without objection. While the harmless error standard is not applicable to denial of the constitutional right of public trial, a violation which is brief and trivial does not necessarily require a mistrial.
The opinion of the court was delivered by: Leval, Circuit Judge
Before: McLAUGHLIN, LEVAL, POOLER, Circuit Judges.
Petitioner-Appellant Robert Gibbons appeals from a judgment of the United States District Court for the Southern District of New York (Brieant, J.) denying his petition for habeas corpus pursuant to 28 U.S.C. § 2254, seeking to overturn his New York State conviction for rape, incest, and endangering the welfare of a child. Gibbons claims that he is entitled to retrial because (1) he was deprived of his right to a public trial guaranteed by the Sixth Amendment, (2) he was denied a fair trial due to juror misconduct, (3) the receipt in evidence of tape-recorded conversations between Gibbons and his daughter violated his due process rights, and (4) he was denied effective assistance of counsel. The last-mentioned claims have no colorable merit; we discuss them only briefly. On the other hand, his claim of denial of the right to a public trial raises serious questions which call for some discussion. Although the trial court's decision to exclude the only spectator (the defendant's mother) on the first afternoon of jury selection was unjustified and the rule of harmless error is not applicable to denial of the right to a public trial, we nonetheless conclude that the incident was too trivial to require overturning the conviction.
Petitioner Robert Gibbons was convicted after a jury trial of Rape in the Third Degree, Incest, and Endangering the Welfare of a Child. Each of these offenses was based on his having had sexual relations, including intercourse, with his fifteen-year-old daughter. He was sentenced on October 6, 2004 to 2 to 4 years imprisonment on the rape and incest convictions, to run concurrently with a 1-year sentence of imprisonment on the endangering charge.
The trial evidence showed the following: After Gibbons and his wife divorced in 1992, Gibbons retained visitation rights to his son and daughter who continued to live with their mother. On October 2, 1999, Gibbons picked up his daughter from a school event, brought her to his home, and had sexual relations with her, which included intercourse. Gibbons drove his daughter home and implored her not to tell her mother.
Three years later, the daughter told her mother. The mother reported this incident to the police who began an investigation. As part of the investigation, the police placed a recorder on the daughter's telephone and had her contact Gibbons. The tape recorder did not function on the first call. The daughter called again, and this call was captured on the recorder, with the exception of the beginning of the conversation.
Two days later, Gibbons agreed to answer questions about the incident at the police barracks. After Miranda warnings, the officers asked Gibbons about the incident. Gibbons responded by saying "yeah, I fucked my daughter." (It was disputed at trial whether the response was intended as an admission that he had done so or was spoken sarcastically to ridicule and deny the charges). The officers continued to ask Gibbons questions and eventually arrested him for the rape of his daughter. Soon thereafter, he said, "It was mutual, I didn't rape her. Did she say this was mutual. I didn't rape her." Gibbons was then indicted on the charges described above.
I. Voir Dire and Public Trial
Jury selection was conducted over several days, beginning in the afternoon of the first day. Before allowing prospective jurors to enter the courtroom, the trial judge closed the courtroom to all spectators, and expelled the only spectator, who was Gibbons's mother. The judge said, "[A]lthough this is an open courtroom, I cannot have spectators during jury selection." As explanation, the judge added that because of the small size of the courtroom, the large number of prospective jurors, and the court's desire not to have jurors in close proximity to spectators, closure to spectators was required. Defense counsel objected, telling the court that the lone spectator was Gibbons's mother, and arguing that Gibbons was entitled to a public proceeding. In response, the judge said that he was not "going to taint the entire jury pool," which would happen if he "put a relative right next to a potential juror." Defense counsel suggested that Gibbons's mother could sit in the well of the courtroom directly behind counsel. The judge rejected that solution, stating that "[n]o one goes in the well unless it's their attorneys or part of the defense team." The judge expressed concern that such an arrangement would cause a security problem and would make the jurors wonder who was sitting there. It was simply "going to cause more problems." The court adhered to its ruling, and refused to allow spectators in the courtroom for that afternoon's jury selection proceedings.
During that afternoon session of the jury selection proceedings, the judge gave general instructions to the prospective jurors and asked if anyone had family emergencies that would prevent them from serving. Together with the prosecutor, defense counsel, Gibbons, and a court reporter, the judge went into an adjacent room to talk privately with each prospective juror who claimed inability to serve. Several jurors were excused with the consent of both parties. After the conclusion of those private hearings with individual jurors, the judge addressed all the prospective jurors in the courtroom, reading the indictment and explaining the duties of jurors. The judge also questioned individual jurors as to whether they could be impartial. Upon the conclusion of this questioning, several prospective jurors were excused, in each case with the consent of both parties.
The next day, as the dismissal of some of the jurors on the first day had left some vacant seats in the spectator section of the courtroom, the judge opened the courtroom to the public, allowing Gibbons's mother to attend the remainder of the proceedings, during which Gibbons was tried and convicted.
II. Appeal and Collateral Attack
On direct appeal to the New York Supreme Court, Appellate Division after his conviction, Gibbons asserted, among other claims, a violation of his Sixth Amendment right to a public trial. The court affirmed his conviction, reasoning that there was insufficient seating for all prospective jurors, and therefore the trial court's decision to exclude the public temporarily was not a violation of Gibbons's right to public trial. People v. Gibbons, 795 N.Y.S.2d 700, 701 (App. Div. 2d Dep't 2005). Leave to appeal was denied by the New York Court of Appeals. People v. Gibbons, 5 N.Y.3d 828 (2005) (Rosenblatt, J.).
After his unsuccessful attempt to overturn his conviction in the New York trial court pursuant to C.P.L. 440.10 on the ground of ineffective assistance of counsel, Gibbons filed his petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the district court. Judge Brieant denied the petition, but issued a Certificate of Appealability (COA), because, in his view, reasonable minds could disagree "with respect to the total ...