The opinion of the court was delivered by: Magistrate Judge E.A. Preston Deavers
REPORT AND RECOMMENDATION
Petitioner, a state prisoner, brings the instant Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the Court on the instant Petition, Respondent's Return of Writ, Petitioner's Reply, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that this action be DISMISSED.
FACTS and PROCEDURAL HISTORY
The Ohio Tenth District Court of Appeals summarized the facts and procedural history of this case as follows:
Appellant was indicted on one count of aggravated murder, in violation of R.C. 2903.01, with a firearm specification. Appellant pled not guilty and the case was tried to a jury. Appellee presented the following evidence.
Ahman Fares testified on behalf of appellee as follows. Fares worked as a cashier at Kelly's Carryout located at 1521 North 4th Street ("4th") at the corner of 11 th Avenue ("11th") in Columbus, Ohio. On the evening of April 18, 2005, he was standing outside the front door of the carryout talking to Jimon Jones. An SUV pulled up directly across the street from the carryout and stopped. Neither Fares nor Jones recognized the SUV; they noticed it only because it had distinctive wheel rims.
A man who had been standing on the sidewalk across the street from the carryout approached the passenger side of the SUV and conversed with the occupants for approximately 30 seconds. The SUV then pulled away and turned right onto 11th; the man crossed the street and walked toward the carryout. According to Fares, Jones did not appear to recognize the man, and said nothing about him as the man approached the carryout. Thereafter, Fares, presuming the man to be a potential customer, entered the carryout and stood behind the counter, which Fares estimated to be "maybe 15 feet at the most" from the front door. (Tr. 420.)
The man, whom Fares had never seen before, then entered the carryout, approached the counter, purchased a cigar, and walked toward the door. At the same time, Jones entered the carryout. According to Fares, Jones again did not appear to recognize the man, and the two did not communicate in any way as they passed one another. As Fares turned away from the door, he heard several gunshots. He ducked behind the counter and heard two more gunshots. Thereafter, he looked up and saw Jones lying on the floor. Although Fares did not actually see who fired the shots, he saw "someone" with a gun, and was "pretty sure" it was the man who purchased the cigar, because "nobody else came into the store" and "it happened too fast for it to be anybody else." (Tr. 422.) He then observed the man run down a nearby alley.
Fares immediately called 911; police and emergency medical personnel arrived shortly thereafter. Fares told the police that the man who purchased the cigar was a dark-skinned African-American, 5' 11" to 6', with a full beard, wearing dark pants and a green shirt with a yellow picture on the front of it. At trial, Fares described the man's beard as "full," i.e., "covering his entire face * * * not like a goatee." (Tr. 427.) Two days after the shooting, the police showed Fares two separate photo arrays, both of which included a photograph of appellant, and asked him if he could identify the person who shot Jones. Fares could not identify the shooter from either of the arrays.
At trial, Fares admitted that the man who purchased the cigar stood close to him during the transaction; indeed, he testified he was "face-to-face" with the man. (Tr. 427.) However, he did not pay particularly close attention to the man because he was just "another customer" (Tr. 425); in addition, he had to turn away from the man in order to retrieve the cigar from under the counter. When presented with the photo arrays at trial, he could not identify the man who purchased the cigar from him. Indeed, he testified that the man in the carryout did not resemble any of the photographs in either of the arrays. Fares testified that he probably would not be able to recognize the man if he saw him again because the incident happened so quickly and the man had a full beard which covered most of his face.
On cross-examination, Fares admitted that he paid at least "some attention" to the man as he processed the cigar purchase; as such, he "had him in [his] view for at least a reasonable period of time." (Tr. 447.) He described the man's beard as "very obvious," i.e., two to three inches long around his entire face. (Tr. 455)
Columbus Police Officer John Haley testified on behalf of appellee as follows. Officer Haley arrived at the carryout shortly after receiving a radio dispatch about the shooting. Upon arrival, he observed a group of individuals standing across the street from the carryout. He then interviewed Fares, who provided a description of a man who had been in the store immediately prior to the shooting.
On cross-examination, Officer Haley testified that he arrived at the carryout "within a minute" after receiving the radio dispatch. (Tr. 479.) In addition to the group of people he observed standing across the street from the carryout, he also observed a group of individuals running in that general direction; he did not, however, interview any of those persons. On redirect, Officer Haley testified that it is not unusual to encounter a large group of people at the scene of a shooting.
Crime Scene Search Unit ("CSSU") Detective Phillip Walden testified on behalf of appellee as follows. CSSU collected, among other items, seven spent shell casings just inside the door of the carryout. CSSU did not collect DNA evidence from the counter or any articles on or near the counter, as the information provided about the shooting indicated that no physical confrontation other than the shooting of the victim had transpired; hence, there would likely be no DNA evidence at the scene other than the victim's blood. Detective Walden also testified that CSSU did not recover any fingerprints of value from either the counter or the SUV.
On cross-examination, Detective Walden admitted that DNA evidence, if present, can be obtained from "almost any surface." (Tr. 545.) He further testified that CSSU did not dust the door or doorframe for fingerprints because the information provided about the shooting indicated that the door remained open throughout the entire incident.
The driver of the SUV, Anthony Crump, testified on behalf of appellee as follows. On the evening of April 18, 2005, he and his cousin, Andre Brown, were riding around smoking marijuana. Enroute to purchase more marijuana from a friend on 11th, Crump drove northbound on 4th, stopping twice along the way. Crump first stopped near Ninth Avenue; he then continued northbound on 4th and stopped in front of an apartment building at 1504 North 4th, "a little before" 11th. (Tr. 592, 594.) He spoke to some people at each of the stops, including a man named "Shawn" (Tr. 595), whom he had known "slightly" from "out in the neighborhood" for approximately ten years. (Tr. 583.) At first, Crump was "not all the way sure" at which of the two stops he spoke to Shawn. (Tr. 595.) However, after reviewing a videotape of his interview with police the night of the shooting, he testified that he stopped and "talked to a few people" including Shawn while driving on 4th (Tr. 600) and that he spoke to Shawn near a house "right across from the market." (Tr. 601.) He identified appellant as the "Shawn" with whom he conversed during the second stop.
Crump further testified that following the conversation with appellant, he drove northbound on 4th and turned right onto 11th; he had "no idea" what happened to appellant after he drove away. (Tr. 602.) Crump continued on 11th for two blocks; he stopped on the side of the street to purchase more marijuana. As he exited his vehicle, he heard shots fired "in the neighborhood." (Tr. 605.) He completed the marijuana purchase, returned to the SUV, drove Brown home, and then went to a bar. Sometime after he left the bar, the police stopped him; they later questioned him and seized his SUV.
On cross-examination, Crump testified that he was "high" the night of April 18, 2005 because he had smoked several marijuana "blunts," some of which were laced with cocaine. (Tr. 625-626, 628, 630, 635, 662.) During his testimony, he suddenly recalled that a man named "Little C" was also in the SUV with him and Brown. Crump assumed "Little C" was "young," somewhere "between 18 and 22," because he "[did] not have a mustache like [Crump's]." (Tr. 628.) He admitted that he had never mentioned "Little C" to the police.
Crump further testified that he stopped somewhat south of the carryout, not directly across from it, and that there were several people outside when he stopped, including appellant. He also averred he told the police that appellant approached the SUV from the middle of the street because he was scared after police told him they believed he and Brown were involved in the murder. He admitted, however, that he could not recall if appellant was in the street or on the sidewalk.
Crump also testified that police told him during the interview that he and Brown were both implicated in the crime, i.e., that even if they did not do it, they had either provided the shooter with the gun or gave him the "A[-]ok" to shoot Jones (Tr. 645); accordingly, he was scared and thus tried "to satisfy" the police by telling them anything he thought they wanted to hear. (Tr. 646, 659.) He also testified that he was "high" that night and was "not one hundred percent sure" about anything he told the police. (Tr. 643-644.)
Crump further averred he did not describe appellant to the police; rather, he essentially adopted the description police provided to him, i.e., a male black with a beard, dressed in a dark shirt with a yellow image on the front of it. However, at trial, he could not recall if appellant had a beard on the night of the shooting. He further testified that appellant did not have a gun, that he had never seen appellant with a "real" or "full" beard (Tr. 648), and that he did not witness the shooting.
On redirect, the prosecution showed Crump a slightly larger version of the photograph that was included in the first photo array shown to Fares ("State's Exhibit 1") on April 20, 2005. Crump identified the photograph as one of appellant and noted that appellant had what "look[ed] like a beard that was "not that long." (Tr. 678.) Crump admitted he had never seen appellant wear such a beard.
Lead homicide Detective James Porter testified on behalf of the state as follows. Detective Porter corroborated Detective Walden's testimony regarding the processing of the crime scene. He further testified that he interviewed Crump, whom he described as "evasive," but not "high" during the interview. (Tr. 708.) Based upon the information provided by Crump, Detective Porter assembled two separate photo arrays, each including a different picture of appellant. Detective Porter corroborated Fares' testimony that he was unable to positively identify appellant from either of the arrays as the man who shot Jones.
Approximately one month after the murder, Detective Porter interviewed Brown, who provided information which led Detective Porter to file a warrant for appellant's arrest. Appellant turned himself in to the police two days after the warrant was issued.
According to Detective Porter, appellant had a "light beard and mustache" at the time. (Tr. 717.)
On cross-examination, Detective Porter testified that he mentioned during the interview with Crump that he had certain information which suggested that the person who committed the murder resembled Brown. Detective Porter further testified that Crump did not mention "Little C" during the interview. Detective Porter identified "Defendant's Exhibit A" as a slate card photograph of appellant taken May 19, 2005, the day appellant turned himself in to the police.
On redirect, Detective Porter described Brown as approximately 5' 7" with a "thick build." (Tr. 734.) On recross, Detective Porter admitted that he never obtained a physical description of "Little C."
Joshua Zachrich, appellee's final witness, testified as follows. Zachrich is employed by a company that provides inmate telephone systems to prisons and jails, including the Franklin County Jail. The system permits inmates to make outgoing telephone calls, which are tracked via pin number to the particular inmate who initiated the call. At the start of each call, both the inmate and call recipient are informed that the call is being monitored and recorded.
Prior to trial, at the prosecutor's request, Zachrich retrieved two sets of telephone calls appellant made during his pre-trial incarceration in the Franklin County Jail. The first set encompassed calls placed between May 20, 2005 and May 30, 2005; the second set included calls made between July 13, 2005 and July 26, 2005. Zachrich provided a recording of the calls to the prosecutor on a compact disc ("CD"). Over appellant's objection, appellee played the CD ("State's Exhibit J-1 a") for the jury. We will set forth more detail about these telephone calls in our discussion of appellant's third assignment of error.
Following Zachrich's testimony, appellee rested. Appellant did not testify and did not call any witnesses. He submitted only "Defendant's Exhibit A," his May 19, 2005 slate card photograph, as evidence. The trial court then granted appellant's Crim.R. 29 motion to dismiss the allegation that appellant committed the offense with prior calculation and design. Accordingly, the trial court charged the jury on the offense of murder, in violation of R.C. 2903.02, with a firearm specification. The jury found appellant guilty of murder, with a firearm specification, and the trial court sentenced him accordingly.
State v. Sowell, No. 06AP-443, 2008 WL 2600222, at *1-5 (Ohio App. 10th Dist. June 30, 2008).
Petitioner filed a timely appeal in which he raised the following assignments of error:
ASSIGNMENT OF ERROR NO. I:
THE TRIAL COURT COMMITTED STRUCTURAL ERROR WHEN IT PERMITTED A PERSON TO BE THROWN [OUT] OF THE COURTROOM WITHOUT A HEARING OR EVIDENCE OF DISRUPTION AND WHEN IT BARRED A PERSON FROM THE COURTROOM AND COURTHOUSE FOR THE REMAINDER OF THE TRIAL. THESE ORDERS VIOLATED SHAWN SOWELL'S RIGHT TO A PUBLIC TRIAL AS GUARANTEED BY THE FIRST, FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND ARTICLE I, §§ 2, 10 AND 16 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. II:
THE REPRESENTATION PROVIDED TO SHAWN SOWELL FELL FAR BELOW THE PREVAILING NORMS FOR COUNSEL IN A CRIMINAL CASE, WAS UNREASONABLE, AND AFFECTED THE OUTCOME IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS AS WELL AS ART. I, § [§ ]2, 9, 10, AND 16 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. III:
THE ADMISSION OF PORTIONS OF JAIL CALLS HAD LITTLE IF ANY RELEVANCE, DID NOT INDICATE CONSCIOUSNESS OF GUILT AS ARGUED BY THE PROSECUTOR AND WERE MORE PREJUDICIAL THAN PROBATIVE, DENYING SOWELL HIS RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §§ 2, 10, AND 16 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. IV:
SOWELL'S CONVICTION IS BASED ON EVIDENCE THAT IS INSUFFICIENT AS A MATTER OF LAW. IN ADDITION, THE CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
Id. at *5. On June 30, 2008, the state appellate court affirmed the trial court's judgment. On December 3, 2008, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Sowell, 120 Ohio St.3d 1421 (2008).
Petitioner also pursued post conviction relief.
[O]n April 2, 2007, appellant filed his petition for post-conviction relief. Therein, he asserted five claims: (1) ineffective assistance of counsel for failing to object to the ejection of certain spectators from the courtroom; (2) ineffective assistance of counsel for failing to request to voir dire the jury after a spectator allegedly threatened a witness; (3) void conviction due to the jury being fearful of appellant;
(4) void conviction because the trial court failed to voir dire the jury; and (5) ineffective assistance of counsel for failing to call witnesses to assert an alibi. In support of his petition, appellant attached the affidavits of Joseph Sowell, Stephan Sowell, Muhammed Diab, and Tia Conley.
By judgment entry journalized September 5, 2007, the trial court made findings of fact and conclusions of law and dismissed appellant's petition without a hearing. The court dismissed appellant's first four claims as barred by res judicata and on their merits, and it dismissed his fifth claim on the merits.
State v. Sowell, No.07AP-809, 2008 WL 852601, at *2 (Ohio App. 10th Dist. March 31, 2008).
Petitioner filed a timely appeal in which he raised the following claims:
THE TRIAL COURT ERRED IN DISMISSING CLAIM ONE OF SOWELL'S POST-CONVICTION PETITION WHERE SUFFICIENT OPERATIVE FACTS WERE PRESENTED TO MERIT RELIEF OR, AT LEAST WARRANT, AN EVIDENTIARY HEARING.
THE TRIAL COURT ERRED IN DISMISSING CLAIM TWO OF SOWELL'S POST-CONVICTION PETITION WHERE SUFFICIENT OPERATIVE FACTS WERE PRESENTED TO MERIT RELIEF OR, AT LEAST WARRANT, AN EVIDENTIARY HEARING.
THE TRIAL COURT ERRED IN DISMISSING CLAIMS THREE AND FOUR OF SOWELL'S POST-CONVICTION PETITION WHERE SUFFICIENT OPERATIVE FACTS WERE PRESENTED TO MERIT RELIEF OR, AT LEAST WARRANT, AN EVIDENTIARY HEARING.
THE TRIAL COURT ERRED IN DISMISSING CLAIM FIVE OF SOWELL'S POST-CONVICTION PETITION WHERE SUFFICIENT OPERATIVE FACTS WERE PRESENTED TO MERIT RELIEF OR, AT LEAST WARRANT, AN EVIDENTIARY HEARING.
Id. at *3. On March 31, 2008, the appellate court affirmed the trial court's judgment. Id. On August 6, 2008, the Ohio Supreme Court dismissed Petitioner's subsequent appeal. State v. Sowell, 119 Ohio St.3d 1414 (2008).
On November 30, 2009, Petitioner filed the instantPetition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation of the Constitution based upon the following grounds:
1. Shawn Sowell's right to a public trial as guaranteed by the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution is violated when the trial court barred Stefan Sowell from the courtroom without a hearing or evidence of disruption. The state court resolution of this ground was an unreasonable application of or contrary to United States Supreme Court precedent.
2. The failure of counsel to :(a) move to replace a juror that indicated she was fearful of the defendant; (b) contest the removal of Stefan Sowell, Petitioner's brother, from the courtroom without a hearing; (d) contest the removal of a Sowell family friend who wiped sweat from his face from the courtroom without a hearing; (e) request the trial court to voir dire the jury after a spectator allegedly threatened a witness;
(f) present available witnesses that offered exculpatory alibi evidence relating to Petitioner's actions; (g) present available witness that offered evidence of Petitioner's incapability or at a minimum, extremely diminished capacity to murder the victim, constitutes ineffective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution. The state court resolution of this ground was an unreasonable application of or contrary to United States Supreme Court precedent.
3. Petitioner was denied his right to a fair trial as guaranteed by the fifth, Sixth, and Fourteenth Amendments to the United States Constitution when the prosecution was permitted to play before the jury out-of-context excerpts of recordings instead of the entire conversation. The state court resolution of this ground was an unreasonable application of or contrary to United States Supreme Court precedent.
4. Petitioner's Fourteenth Amendment right to Due Process was violated because his conviction for murder is based on insufficient evidence. The state court resolution of this ground was an unreasonable application of or contrary to United States Supreme Court precedent.
5. Petitioner was denied due process and a fair trial because his conviction was rendered by a fearful non-impartial jury. The state court resolution of this ground was an unreasonable application of or contrary to United States Supreme Court precedent.
6. The trial court failed to convey impartiality and failed to voir dire the jury to determine if they were affected in any manner by alleged gestures by spectators, or action or comments made by deputy sheriffs present in the courtroom and in the area outside the courtroom during the trial in violation of Sowell's rights to: (1) substantive due process and other unenumerated rights as guaranteed by the Ninth Amendment;
(2) the due process and equal protection clauses of the Fourteenth Amendment; (3) the right to effective assistance of counsel guaranteed by the Sixth Amendment; (4) the right to a fair and impartial jury guaranteed by the Fifth and Fourteenth Amendments; (5) the right to a fair and impartial tribunal guaranteed by the Fifth and Fourteenth Amendments; and (6) guarantees of procedural and substantive due process protected by the fifth Amendment. The state court resolution of this ground was an unreasonable application of or contrary to United States Court precedent.
It is the position of the Respondent that Petitioner's claims are without merit.
In claim one, Petitioner asserts that he was denied his right to a public trial because the trial court barred his brother from the proceedings in violation of Waller v. Georgia, 467 U.S. 39, 46 (1984). The state appellate court rejected this claim as follows:
Appellant asserts in his first assignment of error that the trial court committed structural error when it approved a courtroom deputy's removal of a member of appellant's family from the courtroom, and then issued its own order barring that family member from the courtroom and the courthouse for the remainder of the trial. Appellant contends the trial court's order violated his right to a public trial as guaranteed by the First, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 2, 10, and 16, Article I, Ohio Constitution. We disagree.
During a recess taken in Crump's testimony, the prosecutor, outside the presence of the jury, notified the trial court that a courtroom deputy had informed him that while Crump was testifying, a person believed to be a member of appellant's family made a threatening gesture toward Crump, i.e., he pointed toward Crump "with both fingers simulating like he had a weapon in his hand" (Tr. 598) and that the deputy had removed that person from the courtroom. Immediately thereafter, the trial court averred that "[t]hat family member will not be permitted back into this courtroom for the balance of the trial or at any time relative to these proceedings of the trial." (Tr. 599.)
Defense counsel responded, "[o]bviously, [the prosecutor] and I, neither one of us were aware of any of this going on until just when we came back in, and I have not talked to [the deputy] myself, but I am cautioning my people-." Id. The trial court cautioned that "[a]nybody making any kind of gestures or anything like that or anything construed in that way, that person will be removed from the courthouse, not only from the courtroom, but from the courthouse.
So anybody who is in here and wants to do that, bear that in mind." Id. Following this admonition, trial resumed; no further expulsions occurred.
Appellant argues that the trial court erred in excluding his family member from the trial based solely upon the hearsay representation of the prosecutor. Appellant maintains that the court should have investigated the matter further, i.e., held a hearing and questioned both the deputy and the family member, in order to substantiate the prosecutor's claim. Appellant further asserts that the trial court should have determined whether the jury was aware of the incident and, if so, whether it affected its deliberations. Appellant further contends the trial court erred in failing to consider any alternatives to excluding the family member from the remainder of the trial. In addition, appellant asserts the trial court erred in failing to enter any factual findings on the record to support its decision. Appellant avers the trial court's error was structural, mandating reversal of his conviction without a demonstration of prejudice.
The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Section 10, Article I, Ohio Constitution also guarantees an accused the right to a public trial. Historically, the right to a public trial has been recognized as a safeguard against possible infringements against the accused. State v. Grant, Cuyahoga App. No. 87556, 2007-Ohio-1460, at ¶ 12. "An open courtroom is necessary to preserve and support the fair administration of justice because it encourages witnesses to come forward and be heard by the public, discourages perjury by the witnesses, and ensures that the judge and prosecutor will carry out their duties properly." Id., citing State v. Lane (1979), 60 Ohio St.2d 112, 119, 397 N.E.2d 1338, and Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31. Further, a public trial permits the general public to observe that the accused is " 'fairly dealt with and not unjustly condemned, and that the presence of the interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.' " Id., quoting Waller at 43. The public's right to attend criminal trials is also implicit within the guarantees of the First Amendment. State v. Morris, 157 Ohio App.3d 395, 398, 811 N.E.2d 577, citing State ex rel. The Repository, Div. of Thompson Newspapers, Inc. v. Unger (1986), 28 Ohio St.3d 418, 420, 504 N.E.2d 37.
"The violation of the right to a public trial is considered structural error and not subject to harmless-error standard." State v. Drummond, 111 Ohio St.3d 14, 854 N.E.2d 1038, 2006-Ohio-5084, at ¶ 50, citing Waller, supra, at 49-50, fn. 9. "A structural error is a 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Id., citing Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302.
However, " 'the right to a public trial is not absolute and an order barring spectators from observing a portion of an otherwise public trial does not necessarily introduce error of constitutional dimension.'" State v. Bragg, Franklin App. No. 05AP100, 2006-Ohio-1903, ¶ 24, quoting State v. Whitaker, Cuyahoga App. No. 83824, 2004-Ohio-5016, ¶ 11. A trial court has the authority to exercise control over the proceedings and may exclude those courtroom spectators whose conduct is likely to interfere with the administration of justice or to denigrate the protection of public health, safety, and morals. Grant, at ¶ 13, citing Drummond. "A trial court's decision to remove spectators from a courtroom is reviewed under an abuse of discretion standard." Bragg, supra, citing State v. Brown (Nov. 25, 1998), Cuyahoga App. No. 73060.
In Waller, supra, the seminal case regarding the public trial guarantee, the trial court, over the defendant's objection, closed a suppression hearing to all persons other than witnesses, court personnel, the parties, and counsel. The Supreme Court of the United States set forth the following four-prong test to determine the need for a courtroom closure: first, the party seeking to close the trial or some portion of it must advance an overriding interest that is likely to be prejudiced; second, the closure must be no broader than necessary to protect that interest; third, the trial court must consider reasonable alternatives to closing the courtroom; and fourth, the court must make findings adequate to support the closure. Id. at 48.
Initially, we must first consider appellee's contention that appellant waived his right to a public trial by failing to object to the trial court's removal order. There is some authority for appellee's position. See Drummond, supra, at ¶ 59 ("counsel's failure to object to the closing of the courtroom constitutes a waiver of the right to a public trial * * * "). See, also, Whitaker, supra, at ¶ 13, citing Peretz v. United States (1991), 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 ("Failure to object to closing of the courtroom constitutes a waiver of the right to a public trial."). However, the Supreme Court of Ohio has more recently held that the right to a public trial cannot be waived by silence. See State v. Bethel, 110 Ohio St.3d 416, 854 N.E.2d 150, 2006-Ohio-4853, at ¶ 81 ("Although Bethel did not object to the closing of the hearing, the right to a public trial under Section 10, Article I of the Ohio Constitution cannot be waived by the defendant's silence."). Therefore, appellant did not waive his right to a public trial by his failure to object. Id. Accordingly, we turn to the merits of appellant's argument.
Citing Shepard v. Artuz (S.D.N.Y.2000), 99 Civ.1912 (DC) and United States v. Perry (C.A.D.C., 2007), 479 F.3d 885, appellee urges that Waller does not apply to partial courtroom closures and, as such, the trial court was not required to engage in the Waller four-part closed-courtroom analysis. We agree.
In Shepard, a court officer reported to the trial court during the defendant's state court trial that he observed a woman whom he believed to be the ...