People v. Zachary Orion Roper

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 25, 2024

2024COA9

No. 21CA0309, People v. Roper — Constitutional Law — Sixth
Amendment — Right to Public Trial — Partial Courtroom
Closure — Waller Test — Findings

A division of the court of appeals resolves an open issue,

concluding that when a trial court’s findings under Waller v.

Georgia, 467 U.S. 39 (1984), are not sufficient to support a partial

courtroom closure, but a remand for further findings does not

appear to be futile, a limited remand is an appropriate remedy.
COLORADO COURT OF APPEALS 2024COA9

Court of Appeals No. 21CA0309
Boulder County District Court No. 19CR447
Honorable Thomas F. Mulvahill, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Zachary Orion Roper,

Defendant-Appellant.

ORDER OF LIMITED REMAND

Division VII
Opinion by JUDGE TOW
Brown and Schock, JJ., concur

Announced January 25, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 The COVID-19 pandemic had far-reaching effects on every

aspect of life, and the criminal justice system was certainly no

exception. Courts had to grapple with the difficult question of how

to conduct a jury trial in a manner that simultaneously protected

the defendant’s rights to a speedy and fair trial, while safeguarding

the health of the participants and the public. In particular, the

virus necessitated certain social distancing requirements, making

the task of providing a public trial even more challenging.

¶2 One common method adopted by courts was to provide an

audio and video livestream of the proceedings to the public. In

many cases, this included permitting the public to view the

proceedings while sitting, socially distanced, in a different

courtroom in the courthouse.

¶3 The trial court invoked this procedure when defendant,

Zachary Orion Roper, was tried for and convicted of sexual

assault (victim helpless) and sexual assault (victim incapable of

appraising the nature of their conduct). On appeal of his

conviction, Roper contends, among other things, that this

arrangement was a partial courtroom closure that was not

supported by sufficient findings. See Waller v. Georgia, 467 U.S.

1
39, 48 (1984) (holding that a trial court “must make findings

adequate to support the closure”). He further contends that the

failure to make adequate findings to justify the partial courtroom

closure constitutes structural error requiring automatic reversal of

his convictions.

¶4 Roper’s challenge requires us to resolve a question that has

often been mentioned but never conclusively resolved by a Colorado

appellate court: Does the trial court’s failure to make sufficient

findings at the time of the court closure amount to structural error

or can that insufficiency be remedied by remanding to the trial

court for further findings? We conclude that, where the trial court’s

findings are incomplete, but it appears that a remand would not be

futile, an appellate court is not precluded from remanding to the

trial court for more findings. We further conclude that such a

remand is appropriate here.

I. Background

¶5 Roper’s trial was originally scheduled for April 2020, but he

requested a continuance due to the COVID-19 pandemic. The

People agreed, and the case was continued. After a second

continuance, Roper’s trial was rescheduled for October 2020.

2
Roper asked for a third continuance because of the pandemic,

stating that he would waive his speedy trial right. Roper also

requested that four family members and four friends be permitted

to attend his trial in person. He asserted that not allowing these

people to be present in the courtroom during his trial would violate

his right to a public trial.

¶6 At the pretrial hearing, the trial court denied Roper’s request

for a third continuance. The trial court and parties then discussed

the modified trial procedures in place as a result of the pandemic.

The trial court noted that these procedures were “formulated with

the input of the district attorney, the office of the public defender,

probation, [and] security, and [were] ultimately vetted and approved

by Boulder County Public Health.”

¶7 The trial court also mentioned Waller and stated that “[w]e are

not going to be able to accommodate family members or friends in

the actual courtroom during the trial.” Instead, the trial court

advised the parties that, due to current COVID-19 health and safety

regulations, jury selection would be done in one of two essentially

identical courtrooms that could hold twenty-two potential jurors

with appropriate social distancing, and the jury assembly room

3
could hold twenty-eight additional potential jurors who would

observe the jury selection via Webex. The court informed the

parties that the trial would be in a smaller courtroom, and that the

public could observe the trial proceedings via Webex, either online

or from the public viewing area located in another courtroom in the

courthouse. The court said that during the trial, the twelve jurors

would be seated in the gallery bench seats. The court also agreed

— at Roper’s request — to advise each witness that the trial was

being observed via Webex.1

¶8 Both during the pretrial hearing and at the start of trial, Roper

objected to restricting the public’s access to the courtroom. In

response to the latter objection, the trial court said, “With respect to

your position about the public in the courtroom, the court facilities

aren’t sufficiently large to allow the public to be in the physical

courtroom where the trial is taking place. So public access to the

courtroom is being provided through Webex.” The court also stated

1 The trial court denied Roper’s request to notify the jury that his

friends and family were watching the trial and to have a screen in
the courtroom showing the participants who were watching. The
court also denied Roper’s suggestion to display pictures of his
family and supporters in the courtroom as a way of informing the
jurors and witnesses of their presence on the livestream.

4
that Roper’s family could watch the livestream in the adjacent

courtroom and could have contact with Roper during breaks.

¶9 After the trial, in a written and signed minute order describing

the trial proceedings, the trial court noted that the trial

“proceedings were held pursuant to the health and safety provisions

of the 20th Judicial District Court’s Administrative Order 20-110 –

Resumption of Jury Trials.” The trial court also noted the

applicability of “the 20th Judicial District Court’s Plan for Resuming

Jury Trials Safely During Covid-19 Health Emergency.” Neither of

those documents is in the record.

II. Courtroom Closure

¶ 10 Roper contends that the trial court’s exclusion of all members

of the public from the courtroom, despite their being able to view

the trial in a separate courtroom via a live audio and video stream,

constituted a complete closure of the courtroom. Further, Roper

contends that the closure, whether complete or partial, was not

justified under Waller and thus violated his right to a public trial

under the Sixth Amendment to the United States Constitution and

article II, section 16 of the Colorado Constitution, resulting in

structural error requiring automatic reversal. We conclude —

5
consistent with other divisions of this court — that the separate

courtroom livestream arrangement constituted a partial closure and

further agree that the trial court’s findings were insufficient to

support that partial closure. But we disagree that the mere

inadequacy of the court’s findings rises to structural error.

A. The Right to a Public Trial

¶ 11 The United States and Colorado Constitutions guarantee

criminal defendants the right to a public trial. See U.S. Const.

amends. VI, XIV; Colo. Const. art. II, § 16. “This right ‘is for the

benefit of the accused; that the public may see he is fairly dealt with

and not unjustly condemned, and that the presence of interested

spectators may keep his triers keenly alive to a sense of their

responsibility and to the importance of their functions.’” People v.

Jones, 2020 CO 45, ¶ 16 (quoting Waller, 467 U.S. at 46).

¶ 12 Courtroom closures, whether total or partial, can violate a

defendant’s right to a public trial. Id. at ¶ 27. But a defendant’s

right to a public trial is not absolute, and at times it must yield to

competing interests. People v. Lujan, 2020 CO 26, ¶ 15 (citing

Waller, 467 U.S. at 45). As the United States Supreme Court

articulated in Waller, for a courtroom closure to be justified,

6
the party seeking to close the hearing must
advance an overriding interest that is likely to
be prejudiced, the closure must be no broader
than necessary to protect that interest, the
trial court must consider reasonable
alternatives to closing the proceeding, and it
must make findings adequate to support the
closure.

467 U.S. at 48.

¶ 13 In some circumstances, even if the trial court fails to make the

necessary Waller findings, “some closures are simply so trivial that

they do not rise to the level of a constitutional violation.” Lujan,

¶ 16. In determining whether a closure was trivial, we “consider

whether it implicated the protections and values of the public trial

right.” Id. at ¶ 28. These values include ensuring a fair trial,

reminding the prosecutor and judge of their responsibility to the

accused and the importance of their functions, encouraging

witnesses to come forward, and discouraging perjury. Id. at ¶ 14.

In analyzing whether a closure implicates the public trial right, the

court must consider the duration of the closure, the substance of

the proceedings that occurred during the closure, whether the

proceedings were later memorialized in open court or placed on the

record, whether the closure was intentional, and whether the

7
closure was total or partial. Id. at ¶ 19. This inquiry considers the

totality of the circumstances, and no single factor is dispositive. Id.

B. Standard of Review

¶ 14 “Because a trial court’s decision to close the courtroom

presents a mixed question of law and fact, we review the court’s

legal conclusions de novo and its findings of fact for clear error.”

People v. Turner, 2022 CO 50, ¶ 19 (citation omitted).

C. Closure

¶ 15 The People argue that the livestream arrangement constitutes

a fully public trial and, thus, is not a closure at all. Initially, we

note that it is not clear that the People should be permitted to

advance this argument, given that the prosecutor at trial

characterized the arrangement as a partial closure. Regardless, we

find no merit in the contention. If the livestreaming of a trial were

not at least a partial closure, all future trials could be conducted in

this fashion for any reason — or, indeed, for no reason whatsoever.

While advancements in technology allow what is essentially a

televised trial to serve — under proper circumstances — as an

alternative to a complete closure, we do not believe the Sixth

8
Amendment permits an unfettered shift to televised, but otherwise

closed, trial proceedings.

¶ 16 After briefing in this matter closed, a division of this court held

that the exclusion “of the entire public . . . from the physical

courtroom constituted a partial closure — despite the availability of

a live video and audio stream of the proceedings.” People v. Bialas,

2023 COA 50, ¶ 15.2 We acknowledge that in Bialas, some

members of the public were permitted in the courtroom at the

beginning of the trial but were later removed, id. at ¶¶ 3-4, where,

here, the livestream arrangement was the only way any member of

the public was permitted to view the proceedings from the outset.

Thus, one might argue — as Roper does — that the closure here

was a complete, not a partial, closure. We need not decide — and

indeed express no opinion on — that issue, however, because we

agree that, consistent with Bialas, there was at least a partial

closure, and whether that closure was partial or complete does not

alter our analysis.

2 Roper referenced this opinion in a notice of supplemental

authority filed pursuant to C.A.R. 28(i).

9
¶ 17 Further, to the extent the People refer to this closure as trivial,

we disagree. The closure was for the entire duration of the trial. It

was also intentional and precluded in-person attendance by Roper’s

family. As our supreme court held in Jones, ¶ 41, such an

exclusion weighs against deeming a closure trivial because

excluding the defendant’s family from the courtroom removes a

reminder to the judge, the prosecutor, and the jury of their

collective responsibility for treating the defendant fairly. Thus, even

if we assume the closure was partial, and noting that the closure

was placed on the record, every other factor points toward a

nontrivial closure. See Bialas, ¶¶ 18-20. Therefore, we conclude

that a closure occurred sufficient to implicate Roper’s right to a

public trial.

D. Waller Findings

¶ 18 We turn next to whether the trial court properly applied and

made adequate findings on the Waller factors.

¶ 19 Regarding the first factor, although Roper contends that he

does not know what the overriding interest for the closure was, the

trial court found, with record support, that it was the protection of

all trial participants and spectators from contracting or spreading

10
COVID-19. The court and both counsel referred to COVID-19 and

the global pandemic while discussing the trial procedures. The

court explained that the jury trial procedures had been adopted by

the judicial district after input from all stakeholders and had been

approved by county health officials. The court found that following

these procedures was a reasonable plan that “provide[d] for a

reasonable degree of safety for all of the trial participants, including

the jurors.” Therefore, we conclude that the court made adequate

findings on the first Waller factor. See Turner, ¶ 41 & n.4 (exclusion

“to ensure . . . the safety of all trial participants” satisfied first

Waller factor).

¶ 20 At least under the circumstances presented here, the second

and third Waller factors — addressing, respectively, whether the

closure was broader than necessary and whether the court

considered reasonable alternatives to closure — overlap. For

example, could the jury have been arranged in such a way as to

permit a small number of spectators to sit in the back row of the

courtroom, like in Bialas?3 Or, if not, could the trial have been

3 We acknowledge that Bialas’s trial took place in a different judicial

district.

11
moved to a courtroom large enough to accommodate some members

of the public once the jury was selected — perhaps one of the two

courtrooms that were large enough to accommodate the jury

selection process? If the answer to either question is yes, then it

could be said either that the closure was too broad or that there

were reasonable alternatives that were not considered. Similarly, if

a continuance of the trial, which Roper requested, would have

removed the impediments to conducting a trial with the public’s

attendance, that might also have been a reasonable alternative.

¶ 21 True, the trial court considered at least some of these issues.

The trial court began by considering and rejecting Roper’s request

for another continuance. The court noted that the offense was a

sex offense (and thus the victim had the right to object to further

delay) and that the case was “getting on to be two years old.” Thus,

the court found that another continuance was not appropriate.

Under the circumstances, based on the court’s specific findings, we

agree with the trial court in this regard.

¶ 22 The court then acknowledged Roper’s request to have four

family members and four friends attend the trial, but said, “We are

not going to be able to accommodate family members or friends in

12
the actual courtroom during the trial.” The court also stated that

“the court facilities aren’t sufficiently large to allow the public to be

in the physical courtroom where the trial is taking place.” To the

extent these statements could be construed as findings, they are

conclusory and the record lacks sufficient detail for us to review

them. For example, we do not know if using a different seating

arrangement within the courtroom or using a different courtroom

with a higher seating capacity could have safely accommodated

some spectators.

¶ 23 Indeed, though there was a mention that one of the two larger

courtrooms the court had referenced when discussing where jury

selection would be conducted might be unavailable because of a

homicide trial going on at the same time, there is no explanation for

why Roper’s trial could not have been conducted in the other such

courtroom. As noted, those larger courtrooms could accommodate

twenty-two prospective jurors, with some seated in the jury box and

others seated in the gallery; thus, once a twelve-person jury was

seated, and even assuming two alternates, there would still have

been room for eight spectators. While the record shows that the

trial court gave a reason for using the smaller courtroom —

13
permitting the jurors to be “in much closer proximity to the witness

stand” — the court did not explain, for instance, whether a different

seating arrangement in the larger courtroom could have allowed the

jurors to sit similarly close to the witness stand while also allowing

some spectators to be seated toward the back of the room.

¶ 24 In short, the court’s statements do not provide us with an

adequate picture of whether the closure could have been narrower

or whether other reasonable alternatives existed. And the record is

devoid of other evidence describing the physical layout of the trial

courtroom or availability of other courtrooms.

¶ 25 The People’s arguments to the contrary are unpersuasive. The

People assert that the second Waller factor was satisfied: due to the

public health interest, courtroom size, and need to reduce the risk

of transmission, limiting access to the courtroom was required,

even for Roper’s family. But the portions of the record to which the

People cite do not provide support for this claim. Nor do the People

cite record support for their conclusory assertion that “allowing

Roper’s family members to be in the courtroom was not a

reasonable alternative.”

14
¶ 26 As to the fourth Waller factor — whether the court made

adequate findings — our review of the record suggests that,

although the trial court mentioned Waller, it ultimately deferred to

the jury trial procedures adopted for the judicial district, without

articulating how the Waller factors applied to the specific trial it was

about to conduct. As a result, the court did not make adequate

findings that the closure was no broader than necessary and that

there were no reasonable alternatives to the steps taken. See

Waller, 467 U.S. at 48.

E. Remedy

¶ 27 The question then arises what the proper remedy is. Roper

contends that the insufficiency of the trial court’s findings

constitutes structural error and that a remand would be an exercise

in futility because the trial court did not make contemporaneous

Waller findings. The People contend that we should not reverse

Roper’s conviction but, rather, remand to the trial court to make

additional Waller findings. We agree with the People.

¶ 28 We begin, however, by acknowledging that the guidance from

our supreme court on this point is not entirely clear. In its first

opportunity to directly apply Waller, our supreme court

15
characterized the opinion’s holding as creating a four-part test: “In

Waller, the Court articulated four requirements that a trial court

must meet in order to validly close the courtroom.” People v. Hassen,

2015 CO 49, ¶ 9 (emphasis added). The fourth requirement was

that the trial court “must make findings adequate to support the

closure.” Id. (quoting Waller, 467 U.S. at 48).

¶ 29 In the Colorado Supreme Court’s next opportunity to address

a Waller issue, the court said, in relatively sweeping fashion, “Under

Waller, the public trial right is violated when a defendant objects to

a closure and the court does not satisfy the four factors of the Waller

test.” Stackhouse v. People, 2015 CO 48, ¶ 7 (emphasis added).

The supreme court went on to unequivocally say that “[s]uch a

violation is structural error that requires automatic reversal without

individualized prejudice analysis.” Id.

¶ 30 These early authorities appear to establish a hard and fast

rule: because the requirement of sufficient supporting findings is a

prong of the Waller test, inadequate findings mean the test is failed

— and a failed test results in automatic reversal.

¶ 31 But more recent case law suggests that the supreme court did

not intend such a strict reading of its earlier pronouncements.

16
¶ 32 In Jones, ¶ 36, the supreme court concluded that the trial

court’s exclusion of the defendant’s parents from the courtroom

“without first making any Waller findings” was an unjustified partial

closure. But rather than immediately concluding that reversal was

required, the supreme court acknowledged that “some courts have

chosen to remand cases where the trial court violated the

defendant’s right to a public trial to allow the trial court to make the

required findings.” Id. at ¶ 45. The court declined to do so in that

case, however, because remand would have been futile — both

because the judge who had presided over the trial could not make

further findings because he had died and because the information

from a related dependency and neglect case the People argued

would support the closure would not satisfy the second and third

Waller factors. Id. at ¶ 46.

¶ 33 Most recently, in Turner, ¶ 1, the trial court excluded the

defendant’s friend (who was also his codefendant’s wife) from the

courtroom for the remainder of the trial after the friend had a

confrontation with the victim advocate and a prosecution witness

just outside the courtroom. In doing so, the trial court did not

apply the Waller test at all. The supreme court reiterated the Waller

17
test as it had been stated in Jones and Hassen. Id. at ¶ 19. The

court further concluded that excluding the individual was a

nontrivial partial courtroom closure. Id. at ¶ 32. And it

acknowledged that an unjustified closure is structural error. Id. at

¶ 34.

¶ 34 But the supreme court went on to say that “structural error

doesn’t flow simply from the trial court’s failure to employ the

precise language found in Waller.” Id. at ¶ 35. It explained that

nothing in Waller requires a reviewing court “to evaluate the trial

judge’s closure order solely on the basis of the explicit factual

findings.” Id. at ¶ 36 (quoting Bell v. Jarvis, 236 F.3d 149, 172 (4th

Cir. 2000)). And it cited cases concluding that the Waller test was

satisfied where the record supported the closure despite the lack of

comprehensive findings on each factor. Id. (first citing Tinsley v.

United States, 868 A.2d 867, 877-80 (D.C. 2005); and then citing

State v. Ndina, 2009 WI 21, ¶ 86). Ultimately, the court concluded

that the findings the trial court had made — albeit not specifically

in reference to Waller — combined with what could be gleaned from

the record as a whole justified the closure. Id. at ¶ 47. The court

expressly referenced the possibility of remanding for further

18
findings, but because the existing findings and record justified the

closure, it determined that a remand was unnecessary. Id. at ¶ 40.

¶ 35 In the wake of Jones and Turner, then, it is less clear that the

mere fact that the findings were inadequate necessitates reversal.4

And a deeper analysis of the development of the Waller test, along

with reference to how other jurisdictions have resolved the question,

strongly suggests that a remand for further findings is not

categorically prohibited.

¶ 36 First, we note that we are aware of no other multi-prong test

that includes as a prong of the test the requirement that there be

adequate findings. Rather, adequate findings are usually required

for an appellate court to properly review a claim of error. See

Turner, ¶ 36 (“Ultimately, a trial court need only make ‘findings

specific enough that a reviewing court can determine whether the

4 Interestingly, in one case, the Colorado Supreme Court granted

certiorari on the question of “[w]hether a remand is an appropriate
remedy when the trial court fails to make findings consistent with
Waller v. Georgia, 467 U.S. 39 (1984).” People v. Lujan, No.
18SC582, 2019 WL 189366 (Colo. Jan. 19, 2019) (unpublished
order). But the court never actually resolved the question,
concluding instead that the closure in that case was trivial and
thus the Waller test did not need to be satisfied. People v. Lujan,
2020 CO 26, ¶ 37 & n.4.

19
closure order was properly entered.’” (quoting Davis v. Reynolds,

890 F.2d 1105, 1109 (10th Cir. 1989), in turn quoting Waller, 467

U.S. at 45)).

¶ 37 For example, in challenges involving suspected racial

motivation in the exercise of peremptory challenges, a trial court is

required to conduct a three-part inquiry that culminates in the trial

court making a finding of fact regarding the prosecutor’s motivation

in exercising the strike. Batson v. Kentucky, 476 U.S. 79, 98 &

n.21 (1986). Yet, with fair regularity, appellate courts remedy a

trial court’s insufficient findings during a Batson analysis by

remanding for further findings. See, e.g., People v. Rodriguez, 2015

CO 55, ¶ 21. The mere inadequacy of the finding does not, by itself,

establish the constitutional violation.

¶ 38 Second, although the United States Supreme Court in Waller

included the adequate findings requirement in a single sentence

that also included the other three components of what has become

known as the Waller test, see Turner, ¶ 9, it is noteworthy that

Waller did not explicitly refer to a “four-prong” test. Indeed, the

language in Waller was presented as a reiteration of the test from

Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). See

20
Waller, 467 U.S. at 45, 48. In Press-Enterprise, the Supreme Court

had held,

The presumption of openness [of criminal
proceedings] may be overcome only by an
overriding interest based on findings that a
closure is essential to preserve higher values
and is narrowly tailored to serve that interest.
The interest is to be articulated along with
findings specific enough that a reviewing court
can determine whether the closure order was
properly entered.

Press-Enterprise, 464 U.S. at 510. It does not appear, then, that

the Waller Court intended for the adequacy of the findings to be a

prong of the test itself.5 Indeed, our supreme court’s reiteration of

this language in Turner, ¶ 36, suggests a recognition of this.

5 True, in Waller, the Supreme Court rejected what it called the

Georgia Supreme Court’s “post hoc assertion” that the trial court
had conducted the proper balancing. 467 U.S. at 48-49, 49 n.8.
Some have suggested that this is an admonition against remedying
inadequate findings. See People v. Turner, 2022 CO 50, ¶ 69
(Gabriel, J., dissenting). But in context, the Supreme Court at least
arguably only rejected that post hoc rationalization because it found
no support in the record and was insufficient in any case. Waller,
467 U.S. at 48-49, 49 n.8. We do not read this language as
proscribing any effort to remedy inadequate findings, particularly
where that remedy would come not from an appellate court
reviewing a cold record but, rather, from the judicial officer who has
direct knowledge of all of the circumstances leading to the closure.

21
¶ 39 And we note that several jurisdictions have concluded that a

remand for further findings may be an appropriate remedy.6 For

example, the Tenth Circuit has opined that

[t]he lack of findings prevents us from
determining whether the defendant’s right to a
public trial was outweighed by the interest
asserted by the government in protecting the
complaining witness. But to grant appellant a
new trial under these circumstances without
making that determination would constitute a
windfall and would not be in the public
interest.

United States v. Galloway, 937 F.2d 542, 547 (10th Cir. 1991); see

also State v. Rolfe, 2013 SD 2, ¶ 26 (remanding for the trial court to

“supplement the record with specific findings and reasoning”); State

v. Rollins, 729 S.E.2d 73, 79 (N.C. Ct. App. 2012) (“Given the

limited closure in the present case and the fact that the trial court

did not utilize the Waller four-part test, we hold that the proper

6 We acknowledge that the remedy in Waller was itself a remand.

But that is a red herring. In Waller, the proceeding that was closed
was not the trial but, rather, a hearing on a motion to suppress.
Thus, the remedy — which the United States Supreme Court said
“should be appropriate to the violation,” Waller, 467 U.S. at 50 —
was a remand not to supplement the findings justifying the closure
but, rather, to redo the hearing that was improperly closed. Thus,
the remand in Waller provides no support for the People’s request
for remand here.

22
remedy is to remand this case for a hearing on the propriety of the

closure.”); State v. Cote, 725 A.2d 652, 660 (N.H. 1999) (remanding

for findings to determine whether the defendant’s right to a public

trial was violated); Kendrick v. State, 661 N.E.2d 1242, 1244-45

(Ind. Ct. App. 1996) (remanding for findings to determine whether

defendant’s right to a public trial was violated). But see State v.

Cox, 304 P.3d 327, 335 (Kan. 2013) (declining to consider remand

for further findings).

¶ 40 Most recently, in State v. Bell, 993 N.W.2d 418 (Minn. 2023),

the Minnesota Supreme Court addressed a very similar fact pattern

to the one before us. To permit proper social distancing during the

pandemic, the trial court “excluded all spectators from the

courtroom but included a one-way video feed that would broadcast

[the] trial in an adjacent courtroom.” Id. at 420. The Minnesota

Supreme Court concluded that the trial court’s findings were

insufficient to show that it considered reasonable alternatives. Id.

at 427. But instead of reversing the conviction, the Minnesota

Supreme Court held that a remand for the trial court to remedy the

inadequate findings was the appropriate remedy under Waller. Id.

at 428.

23
¶ 41 As noted, in Jones our supreme court at least suggested that a

remand would be appropriate if it would not be futile. See Jones,

¶ 48. There, the court concluded that a remand would not be

helpful because the judicial officer had subsequently died. Id. at

¶ 46. Moreover, the court concluded that, as to the second and

third factors, it was clear from the record that other options had not

been “explored contemporaneously.” Id. at ¶¶ 48-49. Finally, the

court concluded that “even if findings by another judge based on

records from the dependency and neglect case and other

reconstruction methods were an option, supplemental findings

would still fail to adequately address the second and third factors.”

Id. at ¶ 50.

¶ 42 In contrast, the trial court judge in this case is still a district

court judge, and it would be possible for the same judge to make

more detailed findings about his reasoning at the time he closed the

courtroom. Cf. Jones, ¶¶ 46, 50. Further, although the local policy

regarding the conduct of trials during the pandemic is absent from

our record, the record does reflect that the policy was developed

with the input of stakeholders such as the offices of both the

district attorney and the public defender. Thus, it is entirely likely

24
that a record could be made about what options were considered

contemporaneously when developing the policy. See id. at ¶¶ 48-

50. Moreover, other necessary supplemental findings — such as

the size, shape, configuration (e.g., the number of rows and number

of seats per row in the gallery), and availability of the courtrooms at

the time of Roper’s trial — involve objective, easily verifiable

information that is largely not subject to shifting recollections or

interpretation. These supplemental findings could satisfy the

second and third factors.

¶ 43 In sum, the trial court’s findings supporting the closure are

insufficient. But this defect alone does not amount to structural

error. And because a remand for further findings would not be

futile, we conclude such a remand is appropriate in this case.7

III. Order for Remand

¶ 44 The case is remanded to the trial court for the limited purpose

of making supplemental Waller findings, including, without

limitation, what alternatives to excluding all members of the public

from the courtroom were considered, the basis for its determination

7 We do not address the merits of Roper’s remaining contentions at

this time.

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that no members of the public could be accommodated in the

courtroom, and whether any larger courtroom was available at the

time of Roper’s trial.

¶ 45 Within seven days of the entry of the trial court’s order making

further findings, Roper must forward a copy of the court’s order to

this court, and the case shall be recertified. Upon recertification, a

supplemental record consisting of the trial court’s order, any

pleadings filed on remand, and transcripts of any hearing held on

remand shall be ordered.

¶ 46 The court further orders Roper to notify this court in writing of

the status of the court proceedings in the event this matter is not

concluded within twenty-eight days from the date of this order, and

that Roper must do so every twenty-eight days thereafter until the

trial court issues its order on remand.

JUDGE BROWN and JUDGE SCHOCK concur.

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