State of Louisiana v. Jared Paul Pontiff

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

18-273
STATE OF LOUISIANA
VERSUS
JARED PAUL PONTIFF
FICC A AC A fae
APPEAL FROM THE

THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 627-13
HONORABLE STEVE GUNNELL, DISTRICT JUDGE

REEKREKKRRR KE

JUDGE
VAN H. KYZAR

KKK

Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.

WRIT DENIED.

Jared Paul Pontiff

Hunt Correctional Center
P. O. Box 174

St. Gabriel, LA 70776

In Proper Person

Michael C. Cassidy

District Attorney

Thirty-First Judicial District

P. O. Box 1388

Jennings, LA 70546

(337) 824-1893

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Relator, Jared Paul Pontiff, seeks review of the trial court’s denial of his post-
conviction relief application. For the reasons set forth herein, we deny the Relator’s
writ application.

FACTS AND PROCEDURAL HISTORY

On January 27, 2014, Relator was convicted of one count of sexual battery of
an eight-year-old child and sentenced to thirty years at hard labor, with twenty-five
years to be served without the benefit of probation, parole, or suspension of sentence.
Relator’s conviction and sentence were affirmed by this court on May 6, 2015, and
Relator’s writ application to the supreme court was denied on October 28, 2016.
State v. Pontiff, 14-1049 (La.App. 3 Cir. 5/6/15), 166 So.3d 1120, writ denied, 15-
1107 (La. 10/28/16), 209 So.3d 94.

Relator filed a post-conviction relief application in the trial court, which was
dismissed on February 15, 2018. On April 5, 2018, Relator filed the current writ
application in which he states that on September 27, 2017, he petitioned the trial
court for a copy of his trial transcript in order to file his post-conviction relief
application. According to Relator, the trial court granted Relator’s request as to
court minutes but denied his request as to the trial transcript. Relator sought review
by filing a writ application in this court. On July 24, 2018, this court denied Relator’s
request for a copy of his trial transcript, stating the following:

WRIT DENIED: Relator filed a writ application with this court

seeking review of the trial court’s September 27, 2017 “ORDER
GRANTING PRODUCTION IN PART AND DENYING IN PART.”
Relator is asking this court to order the trial court to provide him with
a copy of the transcript of his trial proceedings. The requested
document is not one Relator is entitled to free of charge. . Because
Relator does not allege that he made a showing of particularized need
by properly filing an application for post-conviction relief with the trial
court establishing a need to obtain the document, he is not entitled to a
free copy of the requested document. State ex rel. Bernard v. Criminal

Dist. Ct.’ Section “J.”, 94-2247 (La. 4/28/95), 653 So.2d 1 174.
Accordingly, Relator’s writ application is denied.

State v. Pontiff, 17-976 (La.App. 3 Cir. 7/24/18) (unpublished opinion).

In Relator’s current writ application, he relies upon the court minutes to set
forth his assignments of error and reserved his right to file a supplemental writ
application once he received the trial transcript. No supplemental writ application
was submitted regarding Relator’s need for the transcript.

DISCUSSION

In his writ application, Relator argues three allegations of error in his trial that
he claims entitle him to relief. First, he asserts that the trial court erred in partially
closing the courtroom during the testimony of the minor victims of his alleged
crimes, and alternatively, if this court deems the error waived in the absence of an
objection by his counsel to the closure, that such amounts to ineffective assistance
of counsel. He next asserts that the trial court erred in refusing to revisit the issue
raised on direct appeal wherein Relator challenged the trial court’s denial of his right
to subpoena and question a juror post-verdict about her omission of relevant
information during voir dire, the trial court’s denial of his right to subpoena and
question other jurors concerning the improprieties of the juror during deliberations,
and the trial court’s denial of Relator’s motion for new trial based on these
allegations.

Partial Courtroom Closure

Relator first argues that the trial court erred in partially closing the courtroom
without a hearing and without stating the reasons for the closure. Relator argues that
the denial of the right to a public trial is a structural due process claim, citing Arizona
v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246 (1991). In Fulminante, the Supreme

Court cited Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210 (1984), for the

proposition that the right to a public trial is a constitutional error not subject to the
harmless error analysis. In Wailer, the Supreme Court acknowledged that specific
prejudice need not be shown for such a violation.

In his second assignment of error, Relator acknowledges that his counsel did
not object to the partial closure of the courtroom, but argues, in the alternative, that
his counsel was ineffective for failing to object. Relator argues that if his claim was
waived by his counsel’s failure to object to the closure of the courtroom, then his
counsel was ineffective in failing to object and in preserving his right to a public
trial. See State v. Arisme, 13-269 (La.App. 3 Cir. 10/9/13), 123 So.3d 1259; Uniform
Rules—Courts of Appeal, Rule 1-3.

We first address Relator’s claim that the partial closure of the courtroom for
the minors’ testimony is a structural error, thus, calling for a reversal of the
conviction regardless of a showing of actual prejudice, or whether it should be
treated as a non-preserved error that must be relegated to an ineffective assistance of
counsel claim.

In Weaver v. Massachusetts, U.S. _, 137 S.Ct. 1899 (2017), the Supreme
Court recognized that in a direct review context, a courtroom closure has been
treated as a structural error, entitling a defendant to automatic reversal without any
inquiry into prejudice. The question before the Court in Weaver was whether the
“prejudice inquiry is altered when the structural error is raised in the context of an
ineffective-assistance-of-counsel claim.” Weaver, 137 S.Ct. at 1905. The Court
stated:

So although the public-trial right is structural, it is subject to
exceptions. See Simonson, The Criminal Court Audience in a Post-

Trial World, 127 Harv. L. Rev. 2173, 2219-2222 (2014) (discussing

situations in which a trial court may order a courtroom closure).

Though these cases should be rare, a judge may deprive a defendant of

his right to an open courtroom by making proper factual findings in
support of the decision to do so. See Waller, supra, at 45, 104 §.Ct.

3

2210. The fact that the public-trial right is subject to these exceptions
suggests that not every public-trial violation results in fundamental
unfairness.

A public-trial violation can occur, moreover, as it did in Presley
[v. Georgia, 558 U.S. 209, 130 S.Ct. 721 (2010)], simply because the
trial court omits to make the proper findings before closing the
courtroom, even if those findings might have been fully supported by
the evidence. See 558 U.S., at 215, 130 S.Ct. 721. It would be
unconvincing to deem a trial fundamentally unfair just because a judge
omitted to announce factual findings before making an otherwise valid
decision to order the courtroom temporarily closed. As a result, it
would be likewise unconvincing if the Court had said that a public-trial
violation always leads to a fundamentally unfair trial.

Indeed, the Court has not said that a public-trial violation renders
a trial fundamentally unfair in every case. In the two cases in which the
Court has discussed the reasons for classifying a public-trial violation
as structural error, the Court has said that a public-trial violation is
structural for a different reason: because of the “difficulty of assessing
the effect of the error.” Gonzalez-Lopez, 548 U.S., at 149, n. 4, 126
S.Ct. 2557; see also Waller, supra, at 49, n. 9, 104 S.Ct. 2210.

The public-trial right also protects some interests that do not
belong to the defendant. After all, the right to an open courtroom
protects the rights of the public at large, and the press, as well as the
rights of the accused. See, e.g, Press-Enterprise Co. v. Superior Court
of Cal., Riverside Cty., 464 U.S. 501, 508-510, 104 S.Ct. 819, 78
L.Ed.2d 629 (1984); Richmond Newspapers, Inc. v. Virginia, 448 U.S.
555, 572-573, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980). So one other
factor leading to the classification of structural error is that the public
trial right furthers interests other than protecting the defendant against
unjust conviction. These precepts confirm the conclusion the Court
now reaches that, while the public-trial right is important for
fundamental reasons, in some cases an unlawful closure might take
place and yet the trial still will be fundamentally fair from the
defendant’s standpoint.

The Court now turns to the proper remedy for addressing the
violation of a structural right, and in particular the right to a public trial.
Despite its name, the term “structural error” carries with it no talismanic
significance as a doctrinal matter. It means only that the government is
not entitled to deprive the defendant of a new trial by showing that the
error was “harmless beyond a reasonable doubt.” Chapman [v.
California], 386 U.S. [18], at 24, 87 S.Ct. 824 [967)]. Thus, in the case
of a structural error where there is an objection at trial and the issue is
raised on direct appeal, the defendant generally is entitled to “automatic
reversal” regardless of the error’s actual “effect on the outcome.”
Neder v. United States, 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35
(1999).

The question then becomes what showing is necessary when the
defendant does not preserve a structural error on direct review but raises
it later in the context of an ineffective-assistance-of-counsel claim. To
obtain relief on the basis of ineffective assistance of counsel, the
defendant as a general rule bears the burden to meet two standards.
First, the defendant must show deficient performance—that the
attorney’s error was “so serious that counsel was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Second, the defendant must show that the
attorney’s error “prejudiced the defense.” /bid.

The prejudice showing is in most cases a necessary part of a
Strickland claim. The reason is that a defendant has a right to effective
representation, not a right to an attorney who performs his duties
“mistake-free.” Gonzalez-Lopez, 548 U.S., at 147, 126 S.Ct. 2557. As
a rule, therefore, a “violation of the Sixth Amendment right to effective
representation is not ‘complete’ until the defendant is prejudiced.” /bid.
(emphasis deleted); see also Premo v. Moore, 562 U.S. 115, 128, 131
S.Ct. 733, 178 L.Ed.2d 649 (2011); Lockhart v. Fretwell, 506 U.S. 364,
370, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

That said, the concept of prejudice is defined in different ways
depending on the context in which it appears. In the ordinary Strickland
case, prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different.” [Strickland,] 466 U.S., at 694, 104 S.Ct. 2052. But the
Strickland Court cautioned that the prejudice inquiry is not meant to be
applied in a “mechanical” fashion. /d., at 696, 104 S.Ct. 2052. For
when a court is evaluating an ineffective-assistance claim, the ultimate
inquiry must concentrate on “the fundamental fairness of the
proceeding.” J/bid. Petitioner therefore argues that under a proper
interpretation of Strickland, even if there is no showing of a reasonable
probability of a different outcome, relief still must be granted if the
convicted person shows that attorney errors rendered the trial
fundamentally unfair. For the analytical purposes of this case, the Court
will assume that petitioner’s interpretation of Strickland is the correct
one. In light of the Court’s ultimate holding, however, the Court need
not decide that question here.

As explained above, not every public-trial violation will in fact
lead to a fundamentally unfair trial. See supra, at 1910. Nor can it be
said that the failure to object to a public-trial violation always deprives
the defendant of a reasonable probability of a different outcome. Thus,
when a defendant raises a public-trial violation via an ineffective
assistance-of-counsel claim, Strickland prejudice is not shown
automatically. Instead, the burden is on the defendant to show either a
reasonable probability of a different outcome in his or her case or, as
the Court has assumed for these purposes, see supra, at 1910 - 1911, to
show that the particular public-trial violation was so serious as to render
his or her trial fundamentally unfair.

5

The reason for placing the burden on the petitioner in this case,
however, derives both from the nature of the error, see supra, at 1910 -
1912, and the difference between a public-trial violation preserved and
then raised on direct review and a public-trial violation raised as an
ineffective-assistance-of-counsel claim. As explained above, when a
defendant objects to a courtroom closure, the trial court can either order
the courtroom opened or explain the reasons for keeping it closed. See
supra, at 1909 - 1910. When a defendant first raises the closure in an
ineffective-assistance claim, however, the trial court is deprived of the
chance to cure the violation either by opening the courtroom or by
explaining the reasons for closure.

Furthermore, when state or federal courts adjudicate errors
objected to during trial and then raised on direct review, the systemic
costs of remedying the error are diminished to some extent. That is
because, if a new trial is ordered on direct review, there may be a
reasonable chance that not too much time will have elapsed for witness
memories still to be accurate and physical evidence not to be lost.
There are also advantages of direct judicial supervision. Reviewing
courts, in the regular course of the appellate process, can give
instruction to the trial courts in a familiar context that allows for
elaboration of the relevant principles based on review of an adequate
record. For instance, in this case, the factors and circumstances that
might justify a temporary closure are best considered in the regular
appellate process and not in the context of a later proceeding, with its
added time delays.

When an ineffective-assistance-of-counsel claim is raised in
postconviction proceedings, the costs and uncertainties of a new trial
are greater because more time will have elapsed in most cases. The
finality interest is more at risk, see Strickland, 466 U.S., at 693-694,
104 §.Ct. 2052 (noting the “profound importance of finality in criminal
proceedings”), and direct review often has given at least one
opportunity for an appellate review of trial proceedings. These
differences justify a different standard for evaluating a structural error
depending on whether it is raised on direct review or raised instead ina
claim alleging ineffective assistance of counsel.

Id. at 1909-12.

In light of this rationale, we consider that Relator is confined to a review of
his claim only as an ineffective assistance of counsel claim even though the error
may have been considered a structural error if raised in the first instance.

In its ruling on Relator’s writ application, the trial court stated the following

regarding Relator’s claim of ineffective assistance of counsel:
g £

6

Finally, PONTIFF contends that the courtroom should not have
been closed and that his attorney should have objected to the closure.
The only time the courtroom was closed during the trial was during the
testimony of the two (2) minor victims. It is this Court’s custom to
close the courtroom when underage victims are testifying. Under
Strickland v. Washington, [466 U.S. 668, 104 S.Ct. 2052 (1984)], a
defendant must show that his counsel’s performance was deficient
(errors so serious that counsel was not functioning as the counsel
guaranteed by the Sixth Amendment) and that the deficient
performance prejudiced the defense, such that, the defendant was
deprived of a fair trial. After reviewing the record, the Court finds that
there was no error to closing the courtroom during the minor victims[’ ]
testimony. In addition, Mr. Oustalet’s performance at trial was
excellent. He filed several pre-trial motions on behalf of the defendant
and called several witnesses to support his case. Mr. Oustalet also filed
Motions for Acquittal and for New Trial after the trial resulted in a
conviction. PONTIFF was acquitted on one of the charges he was
facing as well. As a result, the Court cannot find that Mr. Oustalet was
deficient in any way in his representation of the defendant or that
PONTIFF’s defense was prejudiced in any way by Mr. Oustalet’s
actions.

Relator asserts that the Strickland standard should not be used. Rather,
Relator asserts that this court should find that he was denied counsel at a “critical
stage” of trial, making the error presumptively prejudicial. Defendant cites United
States v. Cronic, 466 U.S. 648, 104 8.Ct. 2039 (1984), which discussed situations
where a defendant was effectively denied the assistance of counsel and prejudice
was presumed. The facts of the present case do not warrant such a finding. To
determine whether counsel here acted deficiently in failing to object, it is necessary
to determine whether an objection was necessary, i.e., whether there was reason to
object to the trial court’s closure of the courtroom in this case. This court, in State
v. Loyden, 04-1558, pp. 18-19 (La.App. 3 Cir. 4/6/05), 899 So.2d 166, 178-79
(second alteration ours), rejected the defendant’s argument that the trial court’s
partial closure of the courtroom for the testimony of minor victims violated his right
to a public trial:

In a criminal case, the accused is afforded the right to enjoy a

public trial by both the United States Constitution and the Louisiana
Constitution. U.S. Const. amend. VI; La. Const. art. I, 16. “However,

7

this right to a public trial is not absolute, and it may give way to other
rights or interests[.]” State v. Sarrio, 01-543, p. 10 (La.App. 5 Cir.
11/27/01), 803 So.2d 212, 219, writ denied, 02-0358 (La.2/7/03), 836
So.2d 86.

In State v. Raymond, 447 So.2d 51, 53 (La.App. 1 Cir.), writ
denied, 449 So.2d 1347 (La. 1984), the trial court cleared the courtroom
of two non-witness adult children of the wife of the defendant who was
testifying about her husband’s sexual abuse of children. The first
circuit held:

In criminal cases, the accused is granted the right to
enjoy a public trial. U.S. Const.Amend. 6 and 14; La.
Const. Art. 1, sec. 16 (1974). The right to a public trial is
not a “limitless imperative”; the right is subject to the trial
judge’s power to keep order in the courtroom, or to prevent
unnecessary pressures or embarrassment to a witness.
United States ex rel. Smallwood v. La Valle, 377 F.Supp.
1148 (E.D.N.Y.1974), aff'd 508 F.2d 837 (1974); cert.
denied[,] 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788
(1975). A trial judge may, in his sound discretion, exclude
spectators from the courtroom while the testimony of a
witness in a criminal case is being taken, if such a step is
reasonably necessary to prevent embarrassment or
emotional disturbance of that witness or to enable that

witness to testify to facts material to the case. State v.
Poindexter, 231 La. 630, 92 So.2d 390 (1956).

Id. at 53.

Louisiana Revised Statutes 15:469.1, in pertinent part, provides
that “[i]n cases of .. . aggravated rape . in which the victim is a child of
fifteen years of age or younger, the trial court . . . may order that the
testimony of such victim be heard either in closed session of court or in
the judge’s chambers[.]”

In the present case, prior to the testimony of the minor victims
who were seven and eight years old at the time of trial, the trial court
cleared the courtroom of anyone other than reporters, social workers,
and anyone else who may have been “exempt[ed.]” We find that the
trial court did not violate the defendant’s constitutional right to a public
trial since he did not exclude the media and other essential parties. Our
review of the record indicates that the trial court sought to create an
atmosphere where the two minor children could testify about their
experiences with a minimum amount of embarrassment, in order to
facilitate more accurate testimony.

We also note that, according to the record, at the time of the
partial-closure of the courtroom, the defendant did not object to the
courtroom being cleared of nonessential people, thereby waiving the
right to raise the issue on appeal. La.Code Crim.P. art. 841.

8

In State v. Canales, 16-272, pp. 9-11 (La.App. 5 Cir. 12/7/16), 206 So.3d 458,
463-65, writ denied, 17-46 (La. 9/22/17), 227 So.3d 824 (footnote omitted) (first and
last alteration in original), the case cited by Relator in his writ application, the fifth
circuit addressed the issue as follows:

We next consider the issue of whether the trial court’s action in
removing the spectators during A.V.’s testimony resulted in an
infrigement [sic] of defendant’s constitutional right to a public trial.

As provided in the sixth amendment of the United States
Constitution, and Article |, section 16, of the Louisiana Constitution, in
a criminal case, the accused is afforded the right to enjoy a public trial.
However, the right to a public trial is not absolute. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The right to a
public trial is not a “limitless imperative[,]” the right is subject to the
trial judge’s power to keep order in the courtroom or to prevent
unnecessary pressures or embarrassment to a witness. United States ex
rel. Smallwood v. Lavalle, [377 F.Supp. 1148 (E.D.N.Y.), affirmed, 508
F.2d 837 (2nd Cir. 1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1586
(1975)]. A trial judge may, in his sound discretion, exclude spectators
from the courtroom while the testimony of a witness in a criminal case
is being taken, if such a step is reasonably necessary to prevent
embarrassment or emotional disturbance of that witness or to enable
that witness to testify to facts material to the case. State v. Poindexter,
[231 La. 630, 92 So.2d 390 (1956)].

Defendant urges this Court to apply the factors found in Waller
v. Georgia, supra, to determine the propriety of the trial court’s action
in removing some of the spectators from the courtroom during A.V.’s
testimony. Waller, however, dealt with a different set of circumstances.

We find that the U.S. Fifth Circuit’s opinion in United States v.
Osborne, [68 F.3d 94 (Sth Cir. 1995)], provides a more relevant
framework for analyzing this issue with respect to a partial closure of
the proceedings. In Osborne, the U.S. Fifth Circuit Court of Appeal
recognized that other circuit courts had adopted a modified version of
Waller, which was “a less demanding test requiring the party seeking
the partial closure to show only a ‘substantial reason’ for the closure.”

Prior to the Waller decision, this circuit addressed
the constitutionality of a partial closure in Aaron v. Capps
(S07 F.2d 684 (Sth Cir. 1975), cert. denied, 423 U.S. 878,
96 S.Ct. 153 (1975)]. In Aaron, this court held that, when
considering a partial closure, a trial court should look to
the particular circumstances of the case to see if the
defendant will still receive the safeguards of the public
trial guarantee. This court reasoned that the partial closing
of court proceedings does not raise the same constitutional

9

concems as a total closure, because an audience remains
to ensure the fairness of the proceedings.

Although this circuit has not had the opportunity to
reexamine the constitutionality of a partial closing since
the Waller decision, five other circuits have addressed the
issue. The Second, Eighth, Ninth, Tenth, and Eleventh
Circuits have all found that Waller’s stringent standard
does not apply to partial closures, and have adopted a less
demanding test requiring the party seeking the partial
closure to show only a “substantial reason” for the closure.
As in this circuit’s Aaron decision, these courts have all
based their decisions on a determination that partial
closures do not implicate the same fairness and secrecy
concerns as total closures.

We agree. We do not read Waller as altering this
court’s analysis of partial closings as discussed in Aaron.
We now, however, also adopt the “substantial reason” test
set forth by other courts as a method of determining if a
partial closure meets the constitutional standards of Aaron.

Applying this test to the instant suit, we find that the partial
closure was justified.

Id. at 98-99.

In the instant case, the State made the trial court aware of A.V.’s
concerns that she would have great difficulty testifying if the
defendant’s family members were present. As discussed supra, we find
that the State’s argument on this point, without any additional evidence
in the record, was sufficient for the court to consider a partial closure
of the trial for A.V.’s testimony. The only remaining question, then, is
whether the State’s argument regarding A.V.’s reluctance to testify
provided a substantial reason to the court to justify a partial closure.

In granting the partial closure, the trial judge explained her
ruling, in part:

THE COURT:

As far as I’m concerned, individuals in the back
really, in the gallery area, the family members have — don’t
have constitutional rights. He has to be here the whole
time but it’s not necessary that they be here the entire time.
And if she’s uncomfortable with them in the courtroom
while she testify, [sic] and we want the truth, and we want
her to testify truthfully, fully and truthfully, then I have to,

10

at least within reason making sure his constitutional rights
are protected, afford her the opportunity to do just that.

As the reviewing courts did in the cases discussed supra, we find the
trial court’s action of excluding certain persons from the courtroom for
the limited duration of A.V.’s testimony to be adequately supported.
The Louisiana Supreme Court has acknowledged that a trial judge has
the discretion to exclude persons from the courtroom if he or she deems
it to be reasonably necessary to prevent embarrassment or emotional
disturbance of that witness or to enable that witness to testify to facts
material to the case. State v. Poindexter, supra. In this case, the trial
court made a finding on the record that removing the relevant spectators
from the courtroom would assist the victim in testifying. As the court
did in United States v. Osborne, we infer that the trial court took such
action to help alleviate any impact that A.V. believed her testifying in
the presence of defendant’s family would have upon her emotional
state. The trial court also took care to have the defendant’s family leave
from and return to the courtroom outside of the presence of the jury.
Furthermore, the courtroom remained open to the general public during
the portion of the trial when A.V. testified. Defendant has not alleged
any prejudice resulting from the partial closure.

Based upon our review of the record, we cannot say that the trial
judge’s accommodations in this case to allow A.V. to testify with
minimum embarrassment or emotional disturbance was an error that
violated defendant’s constitutional right to a public trial. This
assignment is without merit.

In the present case, it appears the courtroom was closed on more than one
occasion. The first time was at the request of the State:
MS. NAQUIN:

I do have one quick request. Based on the CAC video aiming to
protect the child, I would ask that the courtroom be cleared of anybody
that’s not necessary to the trial.

THE COURT:

All right. The court- the courtroom will be cleared because it’s
dealing with minors. Unless you are officers of the courtroom, you
have to step out of the courtroom, all right.

During the testimony of one of the victims, the trial court cleared the
courtroom of everyone except officers of the court and the victim’s guardian. The

record is unclear as to who was considered an “officer of the court” and allowed to

stay in the courtroom. It is also not clear as to whether the media and other “essential

1]

parties” such as social workers were exempt from the closure as they were in Loyden.
Thus, the instant case is distinguishable from both Loyden and Canales, since there
was no specific discussion as to whether a closed courtroom was necessary for the
minor victims to feel comfortable testifying or that such was necessary for their
protection. However, the trial court did specifically state that it was clearing the
courtroom because of the minors testifying. As such, while we are unable, on this
record, to answer with any clarity the question of whether Relator’s counsel acted

deficiently in failing to object in this particular case, that deficiency does not end our
inquiry.

Even assuming arguendo that the conduct rose to the level of ineffective
assistance of counsel, we must next turn to the second prong of the two-part query
of Strickland, i.e., whether Relator has proven actual prejudice in that there was a
reasonable probability of a different outcome but for counsel’s failure to object or
that counsel’s failure to object led to a fundamentally unfair trial. In Weaver, 137
S.Ct. at 1913, the Supreme Court addressed these questions as follows:

In light of the above assumption that prejudice can be shown by
a demonstration of fundamental unfairness, see supra, at 1910 - 1911,
the remaining question is whether petitioner has shown that counsel’s
failure to object rendered the trial fundamentally unfair. See Strickland,
supra, at 696, 104 S.Ct. 2052[.] The Court concludes that petitioner
has not made the showing. Although petitioner’s mother and her
minister were indeed excluded from the courtroom for two days during
jury selection, petitioner’s trial was not conducted in secret or in a
remote place. Cf. Jn re Oliver, 333 U.S. 257, 269, n. 22, 68 S.Ct. 499,
92 L.Ed. 682 (1948). The closure was limited to the jury voir dire; the
courtroom remained open during the evidentiary phase of the trial; the
closure decision apparently was made by court officers rather than the
judge; there were many members of the venire who did not become
jurors but who did observe the proceedings; and there was a record
made of the proceedings that does not indicate any basis for concern,
other than the closure itself.

There has been no showing, furthermore, that the potential harms
flowing from a courtroom closure came to pass in this case. For
example, there is no suggestion that any juror lied during voir dire; no
suggestion of misbehavior by the prosecutor, judge, or any other party;

12

and no suggestion that any of the participants failed to approach their

duties with the neutrality and serious purpose that our system demands.

It is true that this case comes here on the assumption that the closure

was a Sixth Amendment violation. And it must be recognized that open

trials ensure respect for the justice system and allow the press and the

public to judge the proceedings that occur in our Nation’s courts. Even

so, the violation here did not pervade the whole trial or lead to basic

unfairness.

In sum, petitioner has not shown a reasonable probability of a
different outcome but for counsel’s failure to object, and he has not
shown that counsel’s shortcomings led to a fundamentally unfair trial.

He is not entitled to a new trial.

Likewise, we find that even if Relator could prove that his counsel’s failure to
object constituted deficient performance, he failed to prove that he was actually
prejudiced. First, Relator fails to prove that his counsel’s objection should have been
granted had it been raised. As reflected above, the trial court has the right to protect
the minor witnesses and may, on a proper finding, allow limited access to the
courtroom during such testimony. In this case, the trial court did specifically note
that the witnesses were minors, although giving no other reason for the closure.
Further, Relator simply argues that his father and the public were denied access to
the courtroom, but makes no direct allegation, much less offers any proof, that either
his father or the public would have caused the victims to testify differently.
Additionally, Relator makes no allegation that the witnesses lied.

As this court discussed in his direct appeal, Relator was found not guilty of
one of the two counts that he faced at trial. Obviously, Relator’s counsel adequately
represented him as to the count resulting in the not guilty verdict, under the same
procedural facts. For these reasons, Relator has not shown a reasonable probability
of a different outcome but for counsel’s failure to object and has not shown that
counsel’s failure to object led to a fundamentally unfair trial. Accordingly, we find

Relator’s assignments of error as to the trial court’s decision to close the courtroom

during certain testimonies at trial to be without merit.

13

Juror Impeachment

Relator next argues that the trial court erred in refusing to revisit the issue of
juror impeachment, which was raised on his direct appeal. In his appeal, Relator
challenged the trial court’s denial of his right to subpoena and question a juror about
her omission of relevant information during voir dire, the trial court’s denial of his
right to subpoena and question other jurors concerning the improprieties of the juror
during deliberations, and the trial court’s denial of Relator’s motion for new trial
based on these allegations. Pontiff; 166 So.3d 1120. As this court discussed, Relator
filed a motion for new trial, alleging that since the jury’s verdict, he had discovered
that Juror No. 46 failed to disclose during voir dire that she had been the victim of a
sexual assault. Jd. Relator also learned that Juror No. 46 disclosed the sexual assault
to the deliberating jury and broke down emotionally during deliberations. /d.
Relator issued subpoenas for four of the jurors to appear at the motion for new trial,
but the trial court granted the State’s motion to quash the subpoenas, relying upon
the “Jury Shield Law” as its authority. /d. Although this court agreed with Relator
that the “Jury Shield Law” did not prohibit Relator from questioning Juror No. 46 as
to whether she was truthful during voir dire, this court found that Juror No. 46’s
statements during voir dire were not untruthful. Jd. Accordingly, this court found
that the trial court did not err in quashing the subpoena of Juror No. 46, as far as it
alleged misconduct during voir dire. /d.

This court further addressed the issue as follows:

We find that any error that occurred because of Juror No. 46’s

failure to disclose a prior sexual assault during voir dire was harmless.

The jury’s vote as to count one, oral sexual battery, was not guilty, and

the jury’s vote as to count two, sexual battery, was guilty by a

unanimous vote. Considering the jury’s not guilty vote as to count one,

Defendant was obviously not prejudiced as to that count. As to count

two, the jury’s verdict was unanimous even though a vote of only ten

out of twelve was required. See La.Code Crim_P. art. 782(A). In State
v. Johnson, 32,910 (La.App. 2 Cir. 1/26/00), 750 So.2d 398, writ

14

denied, 00-91 1 (La. 11/3/00), 773 So.2d 140, the second circuit found
that because Johnson was convicted by a unanimous jury when only ten
out of twelve votes were required, Johnson could not show that he was
prejudiced by the jurors’ alleged false statements during voir dire. In
the instant matter, we find that Defendant has failed to show that he was
prejudiced by failure of Juror No. 46 to relate her experiences to the
trial court.

In State v. Ingram, 10-2274, pp. 6-8 (La.3/25/11), 57 So.3d 299,
302-03 (citations omitted)(alterations in original), the supreme court
discussed the jury shield law as follows:

Asa general rule, “[jJurors are not expected to come
into the jury box and leave behind all that their human
experience has taught them.” Individual jurors “bring to
their deliberations qualities of human nature and varieties
of human experience, the range of which is unknown and
perhaps unknowable.” For the most part, how jurors may
draw on their experience in the deliberative process
remains shielded from view and therefore largely
unknowable. Louisiana subscribes to the common law
rule, incorporated in La.C.E. art. 606(B), that jurors may
not impeach their verdict by evidence of their own
misconduct. The rule incorporates important systemic
values, including the finality of judgments, and allows
only the narrow exceptions for outside influences or
extraneous prejudicial information. ... As the trial court
in the present case was keenly aware, jurors generally
remain free to share what their experience and knowledge
has taught them, even in situations similar to the
circumstances of the crime for which they are empaneled,
without calling into question the validity of their verdict.
See, e.g., State v. Sanders, 33,778, pp. 4-5 (La.App.2d Cir.
10/4/00), 769 So.2d 183, 187 (in trial for a drive-by
shooting in which the victim lost his spleen, jury foreman
remained free to discuss his personal experience as the
victim of a drive-by shooting and conveyed information
gleaned from his wife, a nurse, about the difficulties of
living without a spleen).

However, in exceptional cases, jurors themselves
may be the source of extraneous prejudicial outside
information as well as third parties. See, e.g., Jeffries v.
Wood, 114 F.3d 1484, 1490 (9th Cir. 1997) (“When a juror
communicates objective extrinsic facts regarding the
defendant or the alleged crimes to the jurors, the juror
becomes an unsworm witness within the meaning of the
Confrontation Clause. That the unsworn testimony comes
from a juror rather than a court official does not diminish
the scope of a defendant’s rights under the Sixth
Amendment.”); United States v. Swinton, 75 F.3d 374, 381

15

(8th Cir.1996)(“[T]he inquiry is not whether the jurors
‘became witnesses’ in the sense that they discussed any
matters not of record but whether they discussed specific
extra-record facts relating to the defendant, and if they did,
whether there was a significant possibility that the
defendant was prejudiced thereby.”) (internal quotation
marks and citation omitted).

In [State v.] Austin, 11-2150, [(La.App. 1 Cir. 6/8/12)
(unpublished opinion), writ denied, 12-1595 (La. 2/8/13), 108 So.3d
77,) the first circuit faced a factually similar case wherein the jury
foreperson allegedly failed to disclose that he had close relationships
with two people that were murdered. Like the Defendant in the present
case, Austin sought to have the jury foreperson and another juror testify
at a motion for new trial hearing as to what they discussed in the jury
room. Austin’s defense counsel argued that if the foreperson mentioned
during deliberations that he was good friends with two people that were
murdered, there would be grounds for a new trial. The trial court in
Austin denied the motion for new trial without allowing the jurors to
testify. Affirming the trial court’s decision, the first circuit, citing the
jury shield law, found that it would have been improper for the two
jurors to testify. The first circuit first found that Austin failed to meet
the requirement of specificity in alleging juror misconduct. Further, the
first circuit found that Austin failed to allege that the jury was
prejudiced by any “outside influences” or “extraneous prejudicial
information|[:]”

There has been nothing alleged to suggest that the
jury based its verdict on prohibited factors, such as
coercion by a party or inadmissible evidence of other
crimes obtained from an out-of-court source. Moreover,
communications among jurors, even when violative of the
trial court’s instructions, do not amount to “outside
influences” or “extraneous prejudicial information” [State
v.] Emanuel-Dunn, {03-550 (La.App. 1 Cir. 11/7/03),] 868
So.2d [75,] at 82 [writ denied, 04-339 (La.6/25/04), 876
So.2d 829]. Because any intra-jury communications that
may have taken place were not improper outside
influences or extraneous prejudicial information, we find
that the trial court properly denied the defendant's motion
for new trial. See [State v.] Horne, [28,327 (La.App. 2 Cir.
8/21/96),] 679 So.2d [953,] at 958[, writ denied, 96-3245
(La.2/21/97), 688 So.2d 521].

Id. at p. 8.
Likewise, the improper communications alleged by Defendant in
the present case were not improper outside influences or extraneous

prejudicial information. Rather, the alleged communication involved
Juror No. 46’s own human experience. Thus, we find the trial court

16

correctly quashed Defendant’s subpoena of the jurors as to their
deliberations.

Id. at 1135-36 (fourth and fifth alteration ours).

In ruling on Relator’s writ application, the trial court found that Relator’s
claim regarding the juror was addressed by this court on appeal, and Relator failed
to introduce any evidence or argument that compelled the trial court to revisit the
issue. In so concluding, the trial court denied Relator’s claim as repetitive.

Louisiana Code of Criminal Procedure Article 930.4 provides, in pertinent
part: “Unless required in the interest of justice, any claim for relief which was fully
litigated in an appeal from the proceedings leading to the judgment of conviction
and sentence shall not be considered.” Relator asserts his claim regarding Juror No.
46 should be reconsidered “in the interest of justice” in light of the United States
Supreme Court’s holding in Pefia-Rodriguez v. Colorado, _ U.S. _, 137 S.Ct. 855
(2017). In Pefia-Rodriguez, 137 S.Ct. at 861-62 (alteration in original), the Supreme
Court addressed whether an exception to the “no impeachment rule” should be
recognized in the following situation:

State prosecutors in Colorado brought criminal charges against
petitioner, Miguel Angel Pefiia-Rodriguez, based on the following
allegations. In 2007, in the bathroom of a Colorado horse-racing
facility, a man sexually assaulted two teenage sisters. The girls told
their father and identified the man as an employee of the racetrack. The
police located and arrested petitioner. Each girl separately identified
petitioner as the man who had assaulted her.

The State charged petitioner with harassment, unlawful sexual
contact, and attempted sexual assault on a child. Before the jury was
empaneled, members of the venire were repeatedly asked whether they
believed that they could be fair and impartial! in the case. A written
questionnaire asked if there was “anything about you that you feel
would make it difficult for you to be a fair juror.” App. 14. The court
repeated the question to the panel of prospective jurors and encouraged
jurors to speak in private with the court if they had any concerns about
their impartiality. Defense counsel likewise asked whether anyone felt
that “this is simply not a good case” for them to be a fair juror. /d., at
34, None of the empaneled jurors expressed any reservations based on
racial or any other bias. And none asked to speak with the trial judge.

17

After a 3-day trial, the jury found petitioner guilty of unlawful
sexual contact and harassment, but it failed to reach a verdict on the
attempted sexual assault charge. When the jury was discharged, the
court gave them this instruction, as mandated by Colorado law:

“The question may arise whether you may now discuss
this case with the lawyers, defendant, or other persons.
For your guidance the court instructs you that whether you
talk to anyone is entirely your own decision. ... If any
person persists in discussing the case over your objection,
or becomes critical of your service either before or after

any discussion has begun, please report it to me.” /d., at
85-86.

Following the discharge of the jury, petitioner’s counsel entered
the jury room to discuss the trial with the jurors. As the room was
emptying, two jurors remained to speak with counsel in private. They
stated that, during deliberations, another juror had expressed anti-
Hispanic bias toward petitioner and petitioner’s alibi witness.
Petitioner’s counsel reported this to the court and, with the court’s
supervision, obtained sworn affidavits from the two jurors.

The affidavits by the two jurors described a number of biased
statements made by another juror, identified as Juror H.C. According
to the two jurors, H.C. told the other jurors that he “believed the
defendant was guilty because, in [H.C.’s] experience as an ex-law
enforcement officer, Mexican men had a bravado that caused them to
believe they could do whatever they wanted with women.” /d., at 110.
The jurors reported that H.C. stated his belief that Mexican men are
physically controlling of women because of their sense of entitlement,
and further stated, ‘I think he did it because he’s Mexican and Mexican
men take whatever they want.’ ” /d., at 109. According to the jurors,
H.C. further explained that, in his experience, “nine times out of ten
Mexican men were guilty of being aggressive toward women and
young girls.” /d., at 110. Finally, the jurors recounted that Juror H.C.
said that he did not find petitioner’s alibi witness credible because,
among other things, the witness was an illegal.” /bid. (In fact, the
witness testified during trial that he was a legal resident of the United
States.)

After reviewing the affidavits, the trial court acknowledged
H.C.’s apparent bias. But the court denied petitioner’s motion for a
new trial, noting that “[t]he actual deliberations that occur among the
jurors are protected from inquiry under [Colorado Rule of Evidence]
606(b).” /d., at 90. Like its federal counterpart, Colorado’s Rule 606(b)
generally prohibits a juror from testifying as to any statement made
during deliberations in a proceeding inquiring into the validity of the
verdict. See Fed. Rule Evid. 606(b).

18

After much discussion of the purpose behind the “no impeachment rule,” the
Supreme Court found that such a rule must give way when a juror makes a clear
statement that he or she relied upon racial stereotypes or animus to convict a
defendant:

For the reasons explained above, the Court now holds that where

a juror makes a clear statement that indicates he or she relied on racial

stereotypes or animus to convict a criminal defendant, the Sixth

Amendment requires that the no-impeachment rule give way in order

to permit the trial court to consider the evidence of the juror’s statement

and any resulting denial of the jury trial guarantee.

Id. at 869.

We find that Pefia-Rodriguez does not warrant reconsideration of the juror
issue in the present case. First, as previously discussed, this court did not rely upon
the “jury shield law” or “no impeachment rule” in upholding the trial court’s decision
to quash Relator’s subpoena of Juror No. 46 and other relevant jurors. Moreover,
even if this court had relied upon such rule, the juror in the present case did not make
any statement indicating that she relied upon racial stereotypes or animus to convict
Relator. During deliberations, Juror No. 46 revealed only that she had been the
victim of a sexual assault. Not only is this revelation devoid of any racial content,
this court also found Juror No. 46 did not lie in failing to reveal this information
during voir dire. Thus, the trial court’s denial of this claim as repetitive was not in
error.

CONCLUSION

Relator seeks review of the trial court’s February 15, 2018 ruling dismissing
Relator’s Uniform Application for Post-Conviction Relief. While Relator’s counsel
failed to object to the trial court’s partial closure of the courtroom during certain

portions of trial, the burden is on Relator to show either a reasonable probability of

a different outcome in his trial but for counsel’s failure to object or that the particular

19

violation was so serious as to render his trial fundamentally unfair. Weaver v.
Massachusetts, U.S. _, 137 S.Ct. 1899 (2017). We find that Relator has failed to
meet his burden of proof of ineffective assistance of counsel. Finally, the Supreme
Court’s holding in Pefia-Rodriguez v. Colorado, U.S._, 1378.Ct. 855 (2017), does
not warrant reconsideration of Relator’s claim regarding Juror No. 46 as Juror No.
46 made no statement that she relied upon racial stereotypes or animus to convict
Relator. Thus, the trial court did not err in dismissing that claim as repetitive.
Accordingly, Relator’s writ application is denied.

WRIT DENIED.