IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2023 ND 115

State of North Dakota, Plaintiff and Appellee

v.

Susan Kaye Coons, Defendant and Appellant

No. 20220289

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Gary H. Lee, Judge.

REVERSED.

Opinion of the Court by Tufte, Justice, in which Chief Justice Jensen and 

Justice Bahr joined. Justice Crothers filed a dissenting opinion, in which 

Justice McEvers joined.

Tiffany M. Sorgen, Assistant State’s Attorney, Minot, N.D., for plaintiff and 

appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

JUNE 21, 2023 

STATE OF NORTH DAKOTA
1

State v. Coons

No. 20220289

Tufte, Justice.

[¶1] Susan K. Coons appeals from a criminal judgment finding her guilty of 

forgery, in violation of N.D.C.C. § 12.1-24-01(1)(b). She argues the district court 

erred by closing the courtroom without making sufficient findings and making 

a prejudicial and biased statement in front of the jury. We reverse.

I

[¶2] During jury selection, the district court informed the jury panel that the 

potential jurors had the option to speak with the court “in private” in a separate 

room if they had information to share that might be embarrassing or intrusive. 

After general questioning of the panel, the court, Coons, the attorneys for both 

Coons and the State, and an officer met in a private room and conducted 

individual questioning of three prospective jurors on the record. Coons argues 

on appeal that this procedure for individual questioning constituted a trial 

closure and violated her right to public trial.

[¶3] At trial, defense counsel asked a witness about a probate proceeding in 

which Coons had been involved. The district court interjected, commenting 

that “[y]our client lost in the probate proceeding,” and prevented further 

testimony about the proceeding. On appeal, Coons argues that this statement 

demonstrated bias and prejudice against her.

II

[¶4] Coons argues that the district court violated her right to public trial 

under the Sixth Amendment of the United States Constitution. When 

considering a claimed violation of the right to a public trial,

we first consider whether the claim of error was preserved at trial. 

We then consider the threshold question of whether there was a 

closure implicating the public trial right. If we determine there 

was a closure, we determine whether the trial court made preclosure Waller findings sufficient to justify the closure.
2

State v. Davis-Heinze, 2022 ND 201, ¶ 4, 982 N.W.2d 1 (quoting State v. 

Pendleton, 2022 ND 149, ¶ 4, 978 N.W.2d 641). This Court reviews a trial 

court’s Waller findings for clear error and “its application of the law to those 

findings de novo.” State v. Martinez, 2021 ND 42, ¶¶ 3, 19, 956 N.W.2d 772 

(citing State v. Rogers, 2018 ND 244, ¶ 3, 919 N.W.2d 193). “‘[T]he Sixth 

Amendment public trial right attaches from the beginning of adversarial 

proceedings through sentencing.’” Id. at ¶ 19 (quoting State v. Morales, 2019 

ND 206, ¶ 16, 932 N.W.2d 106). The defendant bears the burden of 

demonstrating a public trial violation occurred. State v. Frederick, 2023 ND 77, 

¶ 7, 989 N.W.2d 504.

[¶5] This Court reviews forfeited errors for obvious error. Id. (citing

N.D.R.Crim.P. 52(b)). To establish obvious error, the appellant must 

demonstrate “(1) an error, (2) that was plain, and (3) affected his substantial 

rights.” Davis-Heinze, 2022 ND 201, ¶ 6. The structural error doctrine applies 

to the public trial right. Rogers, 2018 ND 244, ¶ 5. “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. at ¶ 4 (quoting Johnson v. United 

States, 520 U.S. 461, 468 (1997)). When the claim of error is one of structural 

error, the appellant need not demonstrate element three of obvious error, that 

the error affected his substantial rights, because such errors “defy analysis by 

harmless-error standards.” Davis-Heinze, 2022 ND 201, ¶ 7 (cleaned up).

III

A

[¶6] During general questioning of the panel, one prospective juror indicated 

she preferred to respond to a question in private. That juror and two other 

prospective jurors indicated they knew something about the case, and the 

district court and both attorneys agreed to defer further questioning of those 

jurors. Coons did not object to the court’s stated intent to hold further 

questioning in a separate room. Although there was no objection or other 

indication of disagreement with the court’s procedure for private questioning, 

Coons did not waive her right to a public trial according to the requirements 

we described in Martinez. 2021 ND 42, ¶ 18. On this record, we conclude Coons 
3

did not preserve the claimed public trial error at trial, nor did she waive it. We 

review this forfeited error for obvious error. Id. at ¶ 4.

B

[¶7] The right to a public trial applies during jury selection. Presley v. 

Georgia, 558 U.S. 209, 213-14 (2010) (per curiam). A typical public trial claim 

asserts the public was excluded from the courtroom where the trial was being 

held. Frederick, 2023 ND 77, ¶ 8. In contrast, here the trial proceedings were 

removed from the public courtroom to a different room. For the reasons stated 

below, we conclude there was a closure for purposes of the public trial right 

because individual questioning of prospective jurors occurred in private 

without opportunity for public observation.

[¶8] Addressing a First Amendment claim, the United States Supreme Court 

explained that individual questioning of jurors described by the trial court as 

“in private” was a closure triggering constitutional scrutiny. Press-Enterprise 

Co. v. Superior Court of Cal., 464 U.S. 501, 503 (1984). In that case, three days 

of general questioning were conducted in open court while six weeks of 

individual questioning of prospective jurors were closed to the public. Id. When

a prospective juror indicates a belief that a response will be damaging or 

embarrassing, the individual “may properly request an opportunity to present 

the problem to the judge in camera but with counsel present and on the record.” 

Id. at 512. The Court explained, however, that such a “limited closure” must be 

no broader than necessary and supported by adequate findings. Id. The Sixth 

Amendment right at issue here is “no less protective” than the First 

Amendment right at issue in Press-Enterprise. Martinez, 2021 ND 42, ¶ 39.

[¶9] The District of Columbia Court of Appeals wrote that jury selection 

conducted in open court is not a closure but a reasonable alternative to closure 

even if some members of the public have an obstructed view, or if the court 

employs a “husher” to prevent some in attendance from hearing what is being 

said. Blades v. United States, 200 A.3d 230, 238-41 (D.C. 2019). The court 

distinguished this procedure from a closure because individual questioning 

was held “within the view” of the public. Id. at 239-40 (concluding this process 

is an alternative to closure rather than a closure subject to the requirements 
4

of Waller). “When questioning occurs at the bench, the public can still observe 

the proceedings, thus furthering the values that the public trial right is 

designed to protect, and can hear the general questions posed to the jury 

panel.” Id. at 238 (cleaned up); see also Copeland v. United States, 111 A.3d 

627, 633 (D.C. 2015) (“Appellant cites no authority, and we can find none, 

holding that the practice of conducting a limited amount of individual [jury 

selection] at the bench with a ‘husher’ on violates a defendant’s right to a public 

trial.”).

[¶10] “[C]ourts have found there to be full or partial courtroom closures only 

where some or all members of the public are precluded from perceiving 

contemporaneously what is transpiring in the courtroom, because they can 

neither see nor hear what is going on.” Blades, 200 A.3d at 239. The court cited 

five cases in support of this proposition. Id. (citing Presley, 558 U.S. 209; Cable 

News Network, Inc. v. United States, 824 F.2d 1046 (D.C. Cir. 1987); Barrows 

v. United States, 15 A.3d 673, 679 (D.C. 2011); Williams v. United States, 51 

A.3d 1273, 1283 (D.C. 2012) (perceiving “no difference of significance for Sixth 

Amendment purposes between excluding the public from the courtroom during 

voir dire, as in Presley and Barrows, and removing the voir dire proceedings

from the courtroom to another location from which the public is excluded”); 

ABC, Inc. v. Stewart, 360 F.3d 90, 95 (2d Cir. 2004) (concluding that individual 

questioning of prospective jurors in a private room with a transcript available 

the next day was a closure triggering constitutional scrutiny)). See also 

Copeland, 111 A.3d at 633 (explaining that a closure occurs when the court 

excludes persons from the courtroom during jury selection or by moving 

portions of jury selection outside of the courtroom “to a location not observable 

by the public, such as a jury room”).

[¶11] In State v. Morales, we considered two California appellate cases which 

distinguished between peremptory challenges held in open court and in view 

of the public, which was not a closure, and similar proceedings held in 

chambers, which was a closure. 2019 ND 206, ¶ 17. In People v. Harris, the 

appellate court concluded the trial court closed the defendant’s trial by holding 

the peremptory challenge portion of jury selection in chambers. 10 Cal. App.

4th 672, 682-687, 12 Cal. Rptr. 2d 758 (1992). The court stated that the 
5

proceedings were not “public” for purposes of the public trial right because a 

record of the proceedings was later made available to the public. Id. at 684. In 

contrast, the court in People v. Williams distinguished Harris and concluded 

no closure had occurred because the parties first made preemptory challenges 

in public view at sidebar and then announced them to the open court. 31 Cal. 

Rptr. 2d 769, 772-73 (Cal. App. Dep’t Super. Ct. 1994) (citing Harris, generally).

[¶12] Massachusetts appellate courts have concluded similarly regarding a 

defendant’s public trial right under the Sixth Amendment of the United States 

Constitution. Com. v. Grant, 940 N.E.2d 448, 454 (Mass. App. Ct. 2010). In 

Grant, the court initially conducted jury selection in an open courtroom and 

asked the venire members if any of them had any bias towards or knew the 

parties to the case and whether serving on the jury would pose a hardship. Id. 

at 450. Some potential jurors answered affirmatively, and the court conducted 

individual questioning in chambers. Id. at 451. These proceedings were

transcribed, and only the judge, prosecutor, and defense counsel were present. 

Id. at 451, 454. The court concluded that “[c]onducting the individual 

questioning in the judge’s chambers constituted a full closure in the 

constitutional sense.” Id. at 454-55. See also Com. v. Jaynes, 55 Mass. App. Ct. 

301, 311-13, 770 N.E.2d 483 (2002) (concluding courtroom closure for 

individual questioning was supported by sufficient findings on the required 

factors).

[¶13] Here, the district court initially conducted jury selection on the record 

and in open court. During questioning of the panel, the parties and court 

agreed to visit with three prospective jurors in private after each indicated a 

desire to answer certain questions in private or indicated prior knowledge of 

the case which prompted an objection to further public questioning. The State 

argues that no closure occurred because the court conducted the individual

questioning “outside the hearing of the rest of the jury pool so as to not 

prejudice the remaining venire” and because no member of the jury pool was 

asked to exit the courtroom. The transcript shows individual questioning

occurred in a separate room, rather than simply outside the hearing of the 

panel. At the beginning of jury selection, the court told the panel that if any of 

them had sensitive information that they did not want to share “in front of the 
6

whole group,” then they had the option of going into “another courtroom just 

across the hall there” where they could share their information “in private.” 

After general questioning of the panel in the courtroom, the court explained 

that it was going to conduct individual questioning “with some of the 

prospective jurors in private. We’ll go to the room across the way.... But we 

should be back in no more than about 10 or 15 minutes.”

[¶14] Although it is possible the district court could have conducted individual 

questioning in a different public courtroom, the court’s repeated 

characterization of those proceedings as “private” is sufficient on appeal to 

establish that they were what the court said they were: private as opposed to 

public. These statements would reasonably communicate to anyone present 

that they were not welcome to follow to the other courtroom in order to continue 

observing the proceedings. By referring to the brief proceedings in the other 

room as “in private,” the court committed essentially the same error we 

identified in Martinez, 2021 ND 42, ¶¶ 29-32, using the other courtroom as 

private chambers for jury selection. We conclude this record shows there was 

a closure because the court conducted individual jury selection in a different 

room announced to the public as “in private” and thus not open to the public. 

Press-Enterprise Co., 464 U.S. at 512.

C

[¶15] Because the district court closed part of Coons’ trial, we must consider 

whether the court sufficiently considered the Waller factors. See Rogers, 2018 

ND 244, ¶ 14; Davis-Heinze, 2022 ND 201, ¶ 4. These factors are:

(1) the claiming party must advance an overriding interest that is 

likely to be prejudiced, (2) the closure must be no broader than 

necessary to protect that interest, (3) the trial court must consider 

reasonable alternatives to closing the proceeding, and (4) it must 

make findings adequate to support the closure.

Rogers, at ¶ 15 (citing Waller v. Georgia, 467 U.S. 39, 48 (1984)). “Trial courts 

are strictly required to make findings before a trial closure, and failure to make 

each of the findings requires reversal.” Martinez, 2021 ND 42, ¶ 22 (citing 

Rogers, at ¶ 19). Although we require findings sufficient to satisfy Waller, we 
7

do not necessarily require that the court expressly references that or any other 

case so long as the findings themselves are sufficient. See State v. Modtland, 

970 N.W.2d 711, 721-723 (Minn. Ct. App. 2022). Here, the court did not refer 

to Waller or generally to the threshold requirements before closing a trial 

proceeding but did make some findings that we now consider under the Waller

framework.

1

[¶16] To satisfy the first Waller factor, the district court must find “an 

overriding interest that [would likely have been] prejudiced” without the 

closure. Waller, 467 U.S. at 48. “The presumption of openness may be overcome 

only by an overriding interest based on findings that closure is essential to 

preserve higher values and is narrowly tailored to serve that interest.” PressEnterprise Co., 464 U.S. at 510. A defendant’s right to a fair trial is such an 

overriding interest. Morales, 2019 ND 206, ¶ 21 (citing Rogers, 2018 ND 244, 

¶ 14); Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 393 (1979); Waller, at 45

(dicta). “To preserve fairness and at the same time protect legitimate privacy, 

a trial judge should inform the prospective jurors, once the general nature of 

sensitive questions is made known to them, that those individuals believing 

public questioning will prove damaging because of embarrassment, may 

properly request an opportunity to present the problem to the judge in camera

but with counsel present and on the record.” Press-Enterprise Co., 464 U.S. at 

502. A prospective juror has an interest in avoiding disclosure of deeply 

personal and legitimately private matters. Cable News Network, Inc. v. United 

States, 824 F.2d 1046, 1048 (D.C. Cir. 1987). This interest is distinct from the 

defendant’s right to a fair trial, which would be implicated by a juror’s 

reluctance to disclose personal knowledge about the defendant that may 

influence the other jurors if answered in their presence.

[¶17] Here, the district court articulated its reasoning that Coons’ fair trial 

right was an overriding interest and was likely to be prejudiced without a 

closure of the proceedings. The district court informed the potential jurors that 

they had the option to answer questions in a different room if they didn’t want 

to share certain information in front of the whole jury panel. The court 

conducted individual jury selection of potential juror numbers 11, 15, and 18.
8

[¶18] In open court, Juror 15 requested to talk in private and stated that she 

had previously heard information about the case. Defense counsel objected to 

further questioning to prevent juror taint, and the court sustained. In open 

court, Juror 18 stated that he had previously read about the case. The State 

inquired whether he had any preconceived notions about the case when defense 

counsel objected to prevent juror taint, and the court deferred further 

questioning on the topic until it could be addressed in private. Finally, Juror 

11 stated that he also had read about the case, and the State, the defense 

counsel, and the court agreed to visit with Juror 11 in private for the same 

reason as with Jurors 15 and 18.

[¶19] The record shows the district court closed the proceedings to protect 

Coons’ fair trial right, and the fact that defense counsel objected to further 

questioning while in front of the other jurors and thus avoiding tainting the 

entire pool supports the fact that Coons’ fair trial right was the interest 

asserted in support of closing part of the proceedings. The district court 

articulated sufficient reasoning to support an overriding interest under Waller

factor one.

2

[¶20] Second, “the closure must be no broader than necessary to protect that 

interest.” Waller, 467 U.S. at 48. Whenever a trial court requires a “prospective 

juror to make an affirmative request [to speak in private], the trial judge can 

ensure that there is in fact a valid basis for [an overriding interest that is likely 

to be prejudiced]. This process will minimize the risk of unnecessary closure.” 

Press-Enterprise Co., 464 U.S. at 512. To analyze whether a closure is no 

broader than necessary to protect the asserted overriding interest, the court 

must evaluate the breadth of closure against the overriding interest it

identified in step one. Whether individual questioning is requested to avoid 

potential embarrassment to a juror or instead to avoid tainting the entire pool 

may justify a different scope of closure.

[¶21] Before beginning voir dire, the district court made this statement to the 

entire panel:
9

The lawyers get to ask you some questions about further 

qualifications. These are not meant to be embarrassing or 

intrusive. They’re meant to be informative. If a lawyer asks you a 

question that you don’t want to share in front of the whole group, 

we can go—there’s another courtroom just across the hall there. 

We can go over there, and we can talk to you in private, so please 

keep that in mind. And as I say, they’re meant to be informative, 

not intrusive.

[¶22] This context shows the district court’s statement to jurors that they could 

talk with the court and counsel in private was to avoid their being asked 

embarrassing or intrusive questions in a public setting. That offer of privacy 

was very different from the objection leading to the separate interviews of three 

jurors—that the defense did not want to contaminate the entire jury pool. The 

record quoted above clearly supports this conclusion for Jurors 11 and 18 

because they were interviewed separately only after responding to a question 

about their knowledge of facts, and only after an objection from the defense.

[¶23] Initially, the record is less clear regarding Juror 15. But after review, it 

too is clear the entire separate discussion with Juror 15 related to her 

knowledge of potentially criminal conduct committed by Coons. To start with, 

the defense objected to Juror 15 openly responding to a question about what 

she might have heard about the case. The following dialog occurred:

MR. BOUGHEY: Your Honor, at this time, I think we should delay 

any further inquiry. We were already planning on visiting with this 

person outside the presence of the panel. I think she’s treading on 

dangerous waters and could really goof things up if we continue on 

this line of questioning.

THE COURT: I believe that’s a[n] objection that’s well taken. We’ll 

visit with Juror 15 in private. She’s already asked that we do that.

The early record does not explicitly state why Juror 15 was already being 

questioned outside the presence of the panel before the defense objection. The 

purpose and subject matter of Juror 15’s request is made clear by what followed 

during questioning while in the second courtroom:
10

MR. BOUGHEY: Well, I’ll just cut [to] the chase. You had 

mentioned you had concerns, and you wanted to visit outside the 

presence of the panel, which is what we’re doing now. What were 

those concerns?

PROSPECTIVE JUROR NO. 15: I didn’t want to say it in front of 

everybody because I didn’t want to—

MR. BOUGHEY: Of course.

PROSPECTIVE JUROR NO. 15: —sway anybody’s opinion, but I 

do believe she forged my friend’s notary stamp, so.

[¶24] Taken in context, and when accounting for the details of the objections, 

only one reason existed for the separate questioning. The three jurors were 

interviewed in a separate courtroom to avoid contaminating the remaining jury 

pool. The separate interviews were for protection of the jury pool, and not to 

avoid embarrassing individual jurors by disclosure of deeply personal or 

embarrassing information. The district court may protect an overriding 

interest in avoiding contamination of the entire pool without closing the 

proceedings to the public, but only the other potential jurors needed to be 

excluded from the individual questioning.

[¶25] Here, the district court conducted private individual questioning of three 

potential jurors whose testimony in open court indicated that their answers to 

a question risked tainting the jury pool. The court treated the situation as if it 

were to avoid embarrassing or intrusive questions, as suggested by its general 

instructions, rather than to avoid tainting the pool, as the juror’s initial 

responses indicated. The district court failed to satisfy Waller’s requirement 

that any closure be no broader than necessary because the record shows the 

court conducted this questioning “in private” outside the presence of the public 

and the rest of the jury pool, when only the rest of the jury pool needed to be 

excluded to protect the interest in a fair trial.

3

[¶26] Trial courts are obligated to consider reasonable alternatives to closing 

a proceeding and “take every reasonable measure to accommodate public 
11

attendance at criminal trials.” Presley, 558 U.S. at 214-15. Here, the district 

court initially informed the potential jurors that the court could conduct 

private jury selection in a courtroom across the hall if any of them had 

information that they did not want to share in open court. The record shows 

that the court conducted much of jury selection in open court. It ceased to do 

so only when a potential juror requested to speak in private or indicated prior 

knowledge of the case. The court announced that it would visit “in private”

with three prospective jurors for “no more than about 10 or 15 minutes.” It is 

the court’s obligation to consider alternatives to closure even when the parties 

do not suggest any. Presley, 558 U.S. at 214; Minot Daily News v. Holum, 380 

N.W.2d 347, 350 (N.D. 1986). Here, the district court narrowed the closure to 

include only a brief portion of jury selection using a procedure approved by the 

United States Supreme Court to protect against juror embarrassment. PressEnterprise, 464 U.S. at 511-13. But the court erred by failing to consider 

alternatives to closure in the context of an overriding interest in avoiding

contamination of the jury pool rather than an interest in avoiding juror 

embarrassment. Here, the jurors indicated they had information that should 

not be shared in front of the rest of the prospective jurors because it was about 

the defendant or the case and not because it was personal or embarrassing.

4

[¶27] We conclude that the district court’s findings were sufficient to show an 

overriding interest but that the court’s limited consideration of the scope of 

closure and failure to consider alternatives to closure were erroneous.

Although the court identified one interest that may support closure, it did not 

narrowly tailor to that interest. We conclude this error is obvious error.

IV

[¶28] Although the public trial error we identified in the previous section is 

sufficient to reverse the conviction, we address Coons’ claim of bias, because if 

meritorious, it may require assignment of a different judge on retrial. See State 

v. Craig, 2019 ND 123, ¶¶ 8-10, 927 N.W.2d 99. Coons argues that during her 

trial the district court made a prejudicial and biased statement that the jury 

could have used as evidence to convict her. She did not raise the issue of judicial 
12

bias at trial. “‘The failure to raise the issue of judicial bias in the trial court 

precludes our review on appeal.’” Wisnewski v. Wisnewski, 2020 ND 148, ¶ 65, 

945 N.W.2d 331 (quoting Wenzel v. Wenzel, 469 N.W.2d 156, 158 (N.D. 1991)). 

The court may, however, review an unpreserved claim of judicial bias for 

obvious error. State v. Majetic, 2017 ND 205, ¶¶ 13-15, 901 N.W.2d 356 (citing 

State v. Tresenriter, 2012 ND 240, ¶ 12, 823 N.W.2d 774). “‘[W]e exercise the 

power to notice obvious error cautiously and only in exceptional circumstances 

where the defendant has suffered serious injustice.’” Majetic, at ¶ 14 (quoting 

Tresenriter, at ¶ 12). Error is obvious when the appellant demonstrates (1) an 

error, (2) that was plain, and which (3) affected his substantial rights. Id. at 

¶ 15 (citation omitted).

[¶29] Coons argues that the district court prejudiced her trial by making a 

prejudiced and biased statement against her. At the trial, defense counsel 

asked a witness about a civil proceeding that Coons was a party to, and the 

trial court sustained a relevance objection. Immediately thereafter, defense 

counsel again inquired about the civil case, and the court interjected: “Let me 

stop this. That probate file, that is over. It’s done. Your client lost in the probate 

proceeding, and she did not appeal it. It is a final judgment.” Coons now argues 

that this statement is evidence of bias or prejudice. We disagree. We conclude

the trial court was ensuring that the trial would proceed efficiently and not 

deviate into irrelevant or collateral matters.

[¶30] A trial court has great discretion over how to conduct a trial and to keep 

“questioning within bounds” “where counsel for the defendant [goes] into 

collateral and immaterial matters.” State v. Bilbrey, 349 N.W.2d 1, 4 (N.D. 

1984) (citing Haugen v. Mid-State Aviation, Inc., 144 N.W.2d 692, 696 (N.D. 

1966)). A trial court may remind counsel to refrain from further incursions into 

collateral and immaterial matters. Majetic, 2017 ND 205, ¶ 25 (quoting State 

v. Foard, 355 N.W.2d 822, 823-24 (N.D. 1984)). See also N.D.R.Ev. 403 (a trial 

court has discretion to exclude relevant but confusing, time-wasting, or 

cumulative evidence).

[¶31] Here, the district court was explaining its basis for halting further 

questioning into the civil proceeding and keeping the trial in bounds. Before 

trial, the court sent a letter to the parties announcing that it was uncertain 
13

about how much they should discuss the civil or probate code in Coons’ criminal 

trial. On the first day of trial, outside the jury’s presence, the court explained 

that it wanted to avoid introducing discussion of civil law in a criminal trial to 

prevent juror confusion.

[¶32] After the district court made the statement, which Coons argues was 

biased or prejudiced, the court stated, “We’ve had these discussions outside the 

presence of the jury and I’ll say it now. I don’t know how far we can get into 

these civil matters, and I don’t want this to become a trial within the trial of 

the civil proceeding.” Here, the trial court’s comments were not biased or 

prejudiced against Coons, but the court was keeping the witness interrogation 

“within bounds.” Bilbrey, 349 N.W.2d at 4; N.D.R.Ev. 403. We conclude these 

statements do not establish bias and thus there was no error, obvious or 

otherwise.

V

[¶33] Coons also argues the trial judge violated Rule 605, N.D.R.Ev., by acting 

as a witness at the trial. Because we reverse on the basis of the public trial 

violation, we need not reach this argument.

[¶34] We reverse the judgment.

[¶35] Jon J. Jensen, C.J.

Jerod E. Tufte

Douglas A. Bahr

Crothers, Justice, dissenting.

[¶36] I respectfully dissent from the majority’s holding Coons has shown she 

was denied her right to a public trial. I do not join the majority’s decision the 

district court did not make prejudicial or biased statements in front of the jury 

because that portion of the decision is not likely to reoccur on remand and 

therefore is dicta.
14

[¶37] The resolution of this case turns on the judge’s meaning of the word 

“private,” and whether his use of that word as a matter of law commands a 

conclusion that limited voir dire of three potential jurors was not open to the 

public. On this record, I do not agree with the majority’s conclusion it does. See

majority opinion, ¶ 14 (“Although it is possible the district court could have 

conducted individual questioning in a different public courtroom, the court’s 

repeated characterization of those proceedings as ‘private’ is sufficient on 

appeal to establish that they were what the court said they were: private as 

opposed to public.”).

[¶38] The appellant bears the burden of establishing her rights were violated. 

In the context of a public trial claim, this Court held:

We now clarify that an appellant bears the burden of proving this 

error. See State v. Rademacher, 2023 ND 9, ¶ 8, 984 N.W.2d 660 

(quoting L.C. v. R.P., 1997 ND 96, ¶ 18, 563 N.W.2d 799) (“On 

appeal, the appellant bears the burden of showing error.”); see also 

Commonwealth v. Williams, 401 N.E.2d 376, 378 (Mass. 1980) 

(“The burden is clearly on the defendant to demonstrate that the 

public was excluded from his trial[.]”); Cameron v. State, 490 

S.W.3d 57, 69 (Tex. Crim. App. 2014), on reh’g (Mar. 2, 2016) 

(noting “the burden to show that a trial is closed to the public is on 

the defendant”). In the instance of an alleged public trial violation, 

this means the appellant must demonstrate the public was 

excluded from a proceeding and the proceeding was of a nature 

that the public had a right to be present.

State v. Frederick, 2023 ND 77, ¶ 7, 989 N.W.2d 504.

[¶39] Here, Coons failed to establish that the public was excluded from the 

limited separate voir dire of three potential jury members. Rather, she 

assumes, and the majority agrees it is possible, that is what happened. See

majority opinion, ¶ 14. However, Coon’s duty on appeal is to do more than 

assume—she “must demonstrate the public was excluded from a proceeding” 

before she can obtain appellate review of the claimed constitutional error. 

Frederick, 2023 ND 77, ¶ 7.
15

[¶40] The jury selection transcript confirms the district court offered to discuss 

any “embarrassing or intrusive” matters “in private.” The transcript also 

confirms the separate voir dire of three potential jurors actually was conducted 

to avoid contaminating the larger jury pool, rather than to discuss a juror’s 

intimate or embarrassing matters.

[¶41] Voir dire of the three prospective jurors was held in a separate courtroom 

“across the hall” from where the remaining jury pool was assembled. The 

district court moved to the other courtroom to separately voir dire three jurors 

regarding what they knew about the case. Notwithstanding the actual and 

known reason for the separate voir dire, much is made of the district court’s 

use of the phrase “in private,” seemingly to suggest the “private” discussions 

support a conclusion the district court improperly excluded the public from the 

second courtroom. See majority opinion, ¶¶ 2, 8, 13, 14, 25 and 26.

[¶42] Because the separate interviews were for protection of the jury pool, and 

not to avoid embarrassing individual jurors by disclosure of intimate or 

salacious information, I do not believe it is reasonable to infer the district court

conducted “private jury selection” from which the public was excluded. See

majority opinion, ¶ 26. Rather, absent a clearer record establishing exclusion 

of the public, we should infer no more than that the separate questioning was 

moved to a different courtroom than the one containing the rest of the jury 

pool.

[¶43] I also do not agree the record otherwise supports concluding the second 

courtroom was closed to the public. The transcript shows the district court 

never said the public was included or excluded from voir dire of the entire panel 

in the main courtroom. The majority concludes that proceeding was public. See,

e.g., majority opinion, ¶ 13 (“Here, the district court initially conducted jury 

selection on the record and in open court.”); id. at ¶ 19 (“In open court, Juror 

15 requested to talk in private with the district court and parties and stated 

that she had previously heard information about the case.”). Yet in the face of 

a similar record for the voir dire in the second courtroom, the majority reaches 

the opposite conclusion—that the courtroom across the hall was closed to the 

public.
16

[¶44] When the limited voir dire of the three potential jurors was moved to the 

adjacent courtroom, the transcript contains no indication that the public was 

included or excluded. In the absence of a clearer record, and with only the 

judge’s use of the word “private” to describe voir dire outside of the presence of 

the whole panel, I would not presume the public was excluded from the 

proceedings in the second courtroom.

[¶45] Finally, I note limited voir dire of the three jurors was not merely 

conducted “in a separate room,” or in “a different room,” as the majority writes.

Majority opinion, ¶¶ 7 and 14. It was conducted in a courtroom, and not in the 

judge’s chambers, or in the jury assembly room, or in another controlled access 

or limited capacity room in the courthouse. Courtrooms ordinarily are public 

spaces, and absent a record to the contrary, conducting the voir dire in a 

courtroom strongly suggests to me that the location was open to the public. 

Therefore, under the mandate of our Frederick decision, I would hold Coons to 

her burden of establishing as a threshold matter that the proceeding actually

excluded the public. If Coons cannot meet her burden on direct appeal, she has 

the opportunity to do so through post-conviction relief proceedings. See

N.D.C.C. ch. 29-32-1.

[¶46] In this case, Coons has failed to meet her burden. I therefore would reject 

her claim that the district court violated her Sixth Amendment right to a public 

trial, and I would not engage in the further analysis entertained by the 

majority.

[¶47] Daniel J. Crothers

Lisa Fair McEvers