1. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. The right to a public trial, while fundamental, is not inviolate and may give way in rare cases to other rights or interests.
2. In evaluating whether the Sixth Amendment right to a public trial has been violated, Kansas courts employ the four-part test set out in Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), which held that the party seeking to close the hearing must advance an overriding interest likely to be prejudiced, that the closure must be no broader than necessary to protect the interest, that the district judge must consider reasonable alternatives to closing the proceeding, and that the judge must make findings adequate to support the closure.
3. A defendant is not required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee.
4. In this case, the district judge's wholesale closing of courtroom doors during the presentation of a sexual assault nurse examiner's testimony concerning her examination of the child-victims' genitalia violated the public-trial guarantee.
5. A district judge's failure to meet any of the requirements set out in Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)—i.e., articulation of the interests at stake and the alternatives considered—prevents an appellate court from conducting a proper review of the propriety of the judge's decision to close a courtroom; and it constitutes structural error requiring reversal. An appellate court will not retain jurisdiction and remand for the district judge to manufacture an after-the-fact, constitutionally defensible rationale to support closure of a courtroom during testimony in a criminal trial.
6. Generally, evidence of the motive of a third party to commit a charged crime, standing alone, is not relevant, but such evidence may be relevant if there is other evidence connecting the third party to the crime. A district judge must evaluate the totality of facts and circumstances in a given case to determine whether a defendant's proffered evidence effectively connects the third party to the crime charged. A district judge's decision is reviewed for abuse of discretion.
7. A mother's statement that if anyone had abused her children it was probably her father, without more than a vague reference to a past accusation of him by another young girl and her father's mere opportunity to commit the crimes at issue in trial, was mere speculation and did not qualify as admissible third-party evidence.
8. In this case, the district judge did not err in excluding the defendant's requested non-PIK instruction on character evidence because the requested instruction had the potential to overemphasize character evidence and mislead the jury.
Appeal from Labette District Court; Jeffry L. Jack, judge.
Rebecca L. Kurz, of Morgan Pilate LLC, of Olathe, argued the cause and was on the briefs for appellant.
Kristafer R. Ailslieger, deputy solicitor general, argued the cause, and Lee J. Davidson, assistant attorney general, was with him on the brief for appellee.
This is defendant Ryan Cox's direct appeal from jury convictions of two counts each of aggravated criminal sodomy and aggravated indecent liberties with a child. He was sentenced to concurrent prison terms of 165 months on each sodomy count and 61 months on each indecent liberties count. Because his constitutionally protected right to a public trial was violated when the district court closed the courtroom during display and discussion of photographs of the victims' genitalia, we must reverse the convictions and remand for a new trial. In addition to analyzing the public-trial claim, we review only those among Cox's other appellate issues that are likely to arise again upon retrial.
Factual and Procedural Background
Cox began dating the mother of the two victims (Mother) in April 2000, when he was 18 and she was 19. During the course of their ensuing 7-year relationship, they had various residences, sometimes together and sometimes apart. Mother had two daughters from a prior relationship, C.W. and M.W. Since their birth, the girls had resided with Mother's mother (Grandmother). In 2004, Mother and Cox had a son together. In March or April of 2007, they purchased a house and, for the first time, began living together with the three children. Four months later, C.W. and M.W. told Grandmother that Cox had been sexually abusing them.
At trial, Grandmother testified that the girls were complaining one night that they did not want to go home with Cox. When Grandmother asked them why, M.W., 9 years old at the time, told her, "[Cox] hurts us." C.W., then 7 years old, made a similar statement, and the girls told Grandmother that Cox made them "watch dirty stuff on his computer" and put his "thingy" in their mouths and in their "girl parts." Grandmother called Mother at work and relayed what the girls had said.
After learning of the girls' accusations, Mother immediately called Cox and told him generally what the girls had said. He denied the accusations and told Mother that the girls were making them up. When Mother got off work early the next morning, she picked the girls up and took them to the police station. There, Tammy Hinman, a social worker with the Department of Social and Rehabilitation Services (SRS), now the Department of Children and Families, interviewed the girls individually. These interviews were videotaped, and the tapes were played to the jury at trial.
In her interview, M.W. was reticent; but she identified Cox as the person who had been hurting her and indicated that she was afraid of him. She responded affirmatively when asked if he had touched her on her girl parts, if he had touched her with his hands, and if he had touched her with another part of his body. She responded affirmatively when asked if Cox had put his boy parts into her mouth and on her girl parts. She said that one time Cox had put his boy part into her bottom, but she screamed and he stopped. She said Cox would take her sister out of the room the two girls shared, and she had heard her sister protest that Cox promised he would not do it anymore.
C.W. was more forthcoming about Cox "doing some bad stuff to us." She said, "[Cox] makes us suck his penis." A few times, she said, she saw "white stuff" come from his penis. She also said Cox had tried to put his penis in her bottom once and got "a little bit inside"; but she screamed, so he just put it in her mouth. She said that one night Cox came for her sister and "tried to go inside her, " but she screamed.
Both girls said that Cox made them watch bad movies, some depicting grown-ups and some depicting men and little girls.
A few days after the girls made their accusations, sexual assault nurse examiner (SANE) Jan Owens examined them. Owens took photographs during the examinations. At the State's request and over a defense objection at trial, the district court judge closed the courtroom to spectators while pictures of the girls' genitalia were exhibited and discussed. The judge attributed the closure to "the personal nature of the photographs." As soon as the photographs were removed from view, members of the public were allowed back into the courtroom.
At trial, Owens described how the photographs of the victims' genitalia compared to diagrams of the genitalia of typical girls about the same age. Owens found no acute or healed trauma, but she did find an unusual "lack of hymenal tissue"; she testified that she had never examined a child with such limited amount of tissue. On both girls, the hymenal tissue was "thinned"; the vaginal wall was "exposed"; and there was "narrowing." Owens testified that these are three of four possible signs that raise suspicions of sexual abuse, and they could be consistent with penetration or rubbing.
KBI Special Agent Steve Rosebrough conducted interviews with each of the girls immediately after their SANE exams. His interviews also were videotaped, and the tapes were played for the jury. In the Rosebrough interviews, the girls repeated their previous allegations against Cox. Rosebrough testified on cross-examination that he did not do any follow-up investigation into possible motives for the girls' allegations, because he did not believe they were lying.
Rosebrough also testified that he interviewed Cox and executed a search warrant at Cox's house. The search uncovered a single disc containing adult pornography; it was later suggested that it belonged to Cox's friend. Rosebrough discovered no child pornography in the home or on Cox's computer. He testified that Cox was ...