Robinson v. State

Appellant, Cecil Robinson, was tried before a jury in the Circuit Court for Caroline County, on charges of attempted robbery and related offenses. At the outset of the trial, the court learned that members of Appellant’s family might have been attempting to intimidate witnesses. After discussing the matter in the presence of counsel and Appellant, the court ordered the members of Appellant’s family and at least two other persons to leave the courtroom. The jury ultimately found Appellant guilty of two counts of attempted robbery and other offenses. Sentencing followed in due course.

Appellant noted a timely appeal to the Court of Special Appeals, asking “[wjhether the trial judge violated the appellant’s constitutional right to a public trial when she ordered members of the appellant’s family and other spectators to leave the courtroom.” In his brief before that court, Appellant contested the court’s decision to order those persons out of the courtroom without first undertaking the analysis required by Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), and its Maryland progeny.

*95We granted a writ of certiorari before consideration by the Court of Special Appeals, to resolve the merits of the question Appellant presents on appeal. Robinson v. State, 406 Md. 448, 959 A.2d 793 (2008). We cannot reach the merits of the claim, however, because Appellant did not object to the court’s order and thereby failed to preserve the claim for appellate review. Moreover, the state of the record precludes review, even were we to consider overlooking the failure to object. We therefore affirm the judgments of conviction.

I. The Trial

The events precipitating this appeal arose during voir dire of the prospective jurors. One prospective juror responded to a voir dire question by advising the court that he could not decide the case impartially after overhearing a group of four or five persons discussing the case in the hallway. The prospective juror did not elaborate on what he had heard, but he observed that the persons he overheard discussing the case might have been witnesses at trial. The court dismissed the juror for cause, voir dire continued, and eventually a jury was selected and sworn.

At that time, the court directed the jury to retire to the jury room and ordered the potential witnesses sequestered. The court then addressed the spectators in the courtroom:

Now for those of you who are not potential witnesses, and I’m sort of primarily looking at Mr. Robinson’s family and Mr. Arline’s[1] family, you’re not permitted to leave the courtroom and talk to any of these witnesses about what’s going on. And quite frankly in light of what one of the jurors told me that there was a lot of chitchat or chatter out in the lobby about this case, I’m going to ask Deputy North and Mr. Lovelace,[2] you need to watch this. I want you all *96just staying in the courtroom, so then there won’t be any issue about whether you all aré chatting or not chatting in front of other people. So just stay in the courtroom and then I’m not going to have any issue. Okay? No, you’re going to have to not even take a smoke, okay? Now that means at lunchtime and if I take a break, like a 15 minute break, I mean you can leave the courtroom, but you just have to understand you can’t go out in the lobby, you can’t go out in front of the courthouse.

The court then took a short recess.

. When proceedings resumed, the prosecutor told the court about a conversation one of Appellant’s family members had just had with a witness in the prosecutor’s office. It is clear from the record that spectators were in the courtroom as the following events unfolded:

[PROSECUTOR]: Your Honor, before we bring the jury back out, or anyone else in. I have an issue I’d like to raise. When I left the office, I’m sorry when I left the courtroom during the break, went in to my office and was approached by one of our witnesses. The witness said to me that while jury selection was going on, one of Mr. Robinson’s family members had gone into the office and told her to lie. I’ve asked Ms. Shore to be here because she was present during that conversation and so I would, I know it’s highly unusual' and family’s allowed to be here, but my understanding of the conversation is that it’s someone who represented herself as Mr. Robinson’s sister, said her mother said to tell her to lie.

[APPELLANT]: Who?

[PROSECUTOR]: I would really like the family excluded at this point.

THE COURT: Bring them on in. Bring, I, bring the young lady in right now.

*97[APPELLANT]: Who? Call my sister in here, I don’t know what you’re talking about.

[PROSECUTOR]: She has a pink bag is how she was described to me. I understand it was before the rule on witnesses, but, even so, Your Honor, this is ridiculous.

The court directed the deputy sheriff to locate Appellant’s sister and bring her into the courtroom. As that was happening, the court and prosecutor continued discussing the situation:

[PROSECUTOR]: Your Honor, I’m not making the allegation that it was a threat, but it certainly was improper and trying to incite false testimony.

THE COURT: Well, the problem is there’s a, isn’t there a crime, intimidation of a witness or trying to, what is it, subordinate, subordinate [sic] perjury?

[PROSECUTOR]: Yes, yes.

The transcript reflects that the prosecutor and defense counsel then had a discussion off the record. Proceedings resumed on the record, with the following:

[APPELLANT]: You can’t find her? She didn’t come in.

THE COURT: One problem is that excluding his family from the courtroom then puts them out with the public and I’ve got concerns about whether they can keep their mouths shut while sitting outside the Courthouse and not somehow

[PROSECUTOR]: Your Honor, my issue was that testifying is difficult and uncomfortable enough when confronting someone, but to then have that ...

THE COURT: Oh, okay, all right, okay. I see what you’re saying.

[APPELLANT]: Your Honor, that’s not true. They can question my sister about this when she come in.

THE COURT: I am.

MR. LOVELACE: Would you like to put her on the witness stand?

*98THE COURT: Well, first of all, I’m just going to have them bring her inside then while, I’m going to tell her what has been ...

MR. LOVELACE: Okay.

THE COURT: Well, because if I put her on the witness stand, I mean there’s a potential for her to be criminally charged as a result of what she is alleged to have done.

Appellant’s sister was then brought into the courtroom and the judge questioned her about the conversation:

THE COURT: Okay, the young lady with the pink purse, I need you to come on up here please. Okay you can just stand, you can just stand right, right there. What’s your name?

Appellant’s sister identified herself as Susan Price and gave her age as seventeen years old. The exchange continued:

THE COURT: Seventeen. Susan, it’s been brought to my attention by members of the State’s Attorney’s Office that you went into the State’s Attorney’s Office and attempted to talk to one of the State’s -witnesses.

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me, ma'am. And encouraged them not to tell the truth. Now if this [is] in fact true ...

MS. PRICE: I said hi to my friend.

THE COURT: Excuse me. If that is, in fact, true, that is a crime, but additionally you were instructed that you were not to have any contact with any of the witnesses. So what business you had going into the State’s Attorney’s Office, I don’t know. I am just bringing this to your attention as a result of what has been reported to me.

[APPELLANT]: What’d you say, Susan?

THE COURT: Mr. Robinson.

MS. PRICE: I just wanted to say hi to her.

THE COURT: Mr. Robinson, excuse me, Mr. Robinson.

MS. PRICE: Cause that’s my friend from school.

*99THE COURT: As I said, excuse me, excuse me. Did you not under, what part of you [sic] cannot have contact with any of the witnesses did you not understand?

MS. PRICE: I didn’t know that, you didn’t say that before I left.

THE COURT: Excuse me, Ms. Robinson, Ms. Price. All right, what I’m going to end up doing is I’m excluding the entire family from the courtroom. Now 1 don’t know where they’re going to go that they don’t have contact with anybody else in this case.

The court discussed with courtroom personnel the possibility of placing the family spectators in a separate courtroom by themselves, away from the public. The court then advised Ms. Price that she could “go back and sit with your mom.”

At that point, Appellant’s mother, Ms. Thomas, addressed the court about being forced to leave the courtroom:

MS. THOMAS: Your Honor?

THE COURT: I don’t want to hear from anybody. Everyone’s going to be, you’re going to leave the courtroom. I have to find some place to put you all.

MS. THOMAS: Right.

THE COURT: Where you will not interfere with this case today ...

MS. THOMAS: I understand, Your Honor, I was just saying she had said that before.

THE COURT: Okay, I don’t want to hear, maybe what you’re doing is not malicious, Ms. Thomas, but I just don’t think you all understand ...

MS. THOMAS: No, I understand, I do.

THE COURT: Nor respect the decorum that is needed in this particular proceeding. So it’s better to just put you all out of the courtroom. So with that said, I’m just going to get you all to leave the courtroom, I just need one of the deputies to maybe sit out there with them, to make sure, I don’t know, just to make sure they’re not talking to anybody inappropriately---- So why don’t you all have a seat out *100there. Just going to have a deputy sit out there with you so if you end up wandering into some conversation that you shouldn’t be having.

MS. THOMAS: Can they sit out there and I’ll sit in, I won’t say anything. I just ...

THE COURT: Everybody’s sitting out there. He’s not a juvenile any more. Everybody sit on out there. Maybe if you behave well, in the next hour or two, Ms. Thomas, I’ll reconsider, but right now. Everybody in the back, I want everybody out.

UNIDENTIFIED: We not his family.

THE COURT: I don’t care. You’re out.

The record does not reflect precisely who left the courtroom as the result of the court’s order, but we shall assume for present purposes that Appellant’s family members and at least two other spectators left. The court then asked both attorneys if they were ready to proceed with the trial, and both acknowledged being ready. As trial proceeded, nothing more was said or done on the record concerning the exclusion of the spectators.

The jury found Appellant guilty of two counts of attempted robbery, two counts of assault in the second degree, two counts of attempted theft of less than $500, disorderly conduct, and disturbance of the public peace by hindering free passage. The court sentenced Appellant to concurrent terms of five years’ imprisonment for each count of attempted robbery, with all but one year and three months of those sentences suspended, and to a concurrent term of 80 days’ incarceration for disorderly conduct.

II. The Parties’ Contentions

Appellant claims that the court violated his constitutional right to a public trial by excluding his family and other spectators from the courtroom during the trial. Appellant relies on Waller v. Georgia, supra, and its Maryland progeny, Watters v. State, 328 Md. 38, 612 A.2d 1288 (1992), and Walker v. State, 125 Md.App. 48, 723 A.2d 922 (1999). It was in *101Waller that the Supreme Court identified four factors that must be present before the court can close a criminal trial to the public: (1) a “party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced”; (2) “the closure must be no broader than necessary to protect that interest”; (8) “the trial court must consider reasonable alternatives to closing the proceeding”; and (4) the trial court “must make findings adequate to support the closure.” 467 U.S. at 48, 104 S.Ct. at 2216, 81 L.Ed.2d at 39; see Watters, 328 Md. at 45, 612 A.2d at 1291 (applying the Waller factors); Walker, 125 Md.App. at 69-70, 723 A.2d at 933 (same).

Appellant, citing the Waller factors, asserts that “there is nothing on the record to indicate that a total closure order was necessary!,]” given the prosecutor’s allegation that Appellant’s sister, and not others, had spoken with a witness during jury selection. Appellant argues: “[T]here is nothing to illustrate that a total closure was narrowly tailored to fulfill the court’s concerns. Conversely, the court imposed the most restrictive order possible.” (Emphasis in original.) Appellant evidently does not quarrel with the prosecutor’s stated interest that the witnesses might be intimidated by the presence of his family and other certain persons in the courtroom. Nor does he argue that the court failed to make the requisite factual findings in support of closure.

The State’s primary rejoinder to Appellant’s claim of error is that he did not preserve the claim for appellate review because he did not object to the court’s ordering the family and other spectators out of the courtroom. On the merits of the claim, the State acknowledges the demands of Waller but argues that what occurred in the present case was a mere “partial closure” of the courtroom. The State maintains that in such instances “a ‘less stringent standard [for exclusion of persons from trial] is justified because a partial closure does not implicate the same secrecy and fairness concerns that a total closure does.’ ” See Walker, 125 Md.App. at 72-73, 723 A.2d at 934 (citations omitted). The State also acknowledges the need for evidentiary support for courtroom closure, wheth*102er partial or complete. The State argues that the record here satisfies that requirement.

Appellant opted not to file a reply brief. At oral argument, however, Appellant responded to the State’s argument that his appellate claim is not properly preserved for review. Appellant did not deny the lack of defense objection to the court’s order. He suggested that the trial court has the obligation, even in the absence of objection, to adhere to the Waller analysis, and the failure to do so is a “structural error” that cannot be waived by a failure to object. He also asked, in the alternative, that we exercise our discretion to take cognizance of “plain error” which, he argues, was material to his right to a fair trial.

III. Discussion

The question Appellant presents, and which we granted certiorari to review, implicates the constitutional right to a public trial. See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ... ”). See also Tharp v. State, 362 Md. 77, 92-93, 763 A.2d 151, 158-59 (2000) (tracing the right of criminal defendants to a public trial in Maryland to its common law roots, and noting that the right to “[t]he openness of criminal trials also finds penumbral support in Article 21 of the [Maryland] Declaration of Rights”). Consequently, criminal trials are to be open to the public as a matter of course, and any closure of the courtroom for even part of the trial and only affecting some of the public must be done with great caution. This is because the right to a public trial “has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682, 692 (1948).

That said, a criminal defendant’s right to a public trial is not absolute. We agree with the Court of Special Appeals’ observation in Walker, supra, that

[t]he Sixth Amendment does not require a court to forfeit its legitimate and substantial interest in maintaining securi*103ty and order in the courtroom. To the contrary, prophylactic measures, including closure, may be warranted under some circumstances, in order to maintain order, to preserve the dignity of the court, and to meet the State’s interests in safeguarding witnesses and protecting confidentiality.

125 Md.App. at 69, 723 A.2d at 932.

Notwithstanding the importance of the question presented, we find that, for a number of reasons, we cannot reach the parties’ arguments for and against the merits of the court’s order. First and foremost, Appellant has not preserved his complaint for appellate review.

Maryland Rule 8-131 (a) provides, in pertinent part: “Ordinarily, the appellate court will not decide any [ ] issue unless it plainly appears by the record to have been raised in or decided by the trial court[.]” The purpose of Md. Rule 8-131(a) is “ ‘to ensure fairness for all parties in a case and to promote the orderly administration of law.’ ” State v. Bell, 334 Md. 178, 189, 638 A.2d 107, 113 (1994) (quoting Brice v. State, 254 Md. 655, 661, 255 A.2d 28, 31 (1969)). Fairness and the orderly administration of justice is advanced “by ‘requiring counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.’ ” Bell, 334 Md. at 189, 638 A.2d at 113 (quoting Clayman v. Prince George’s County, 266 Md. 409, 416, 292 A.2d 689, 693 (1972)). For those reasons, Md. Rule 8-131(a) requires an appellant who desires to contest a court’s ruling or other error on appeal to have made a timely objection at trial. The failure to do so bars the appellant from obtaining review of the claimed error, as a matter of right.

From time to time, however, an appellant will ask the appellate court to excuse the failure of a timely objection by resorting to the language of Md. Rule 8-131 (a) that the appellate court “ordinarily” will not decide an issue “unless it plainly appears on the record to have been raised in or decided by the trial courtf.J” We have made clear that the word “ordinarily” has the limited purpose of granting to the *104appellate court the prerogative to address the merits of an unpreserved issue, in the appropriate case. See Bell, 334 Md. at 188, 638 A.2d at 113. Such prerogative to review an unpreserved claim of error, however, is to be rarely exercised and only when doing so furthers, rather than undermines, the purposes of the rule. Jones v. State, 379 Md. 704, 714, 843 A.2d 778, 784 (2004); see Conyers v. State, 354 Md. 132, 150-51, 729 A.2d 910, 919-20 (1999) (discussing the narrow circumstances under which this Court will exercise its discretion to review an unpreserved issue).

We have said that the appellate court should exercise the discretion to review an unpreserved claim of error “only when it is clear that it will not work an unfair prejudice to the parties or to the court.” Jones, 379 Md. at 714, 843 A.2d at 784. Unfair prejudice may result, for example, when counsel fails to bring the position of her client to the attention of the trial court so “that court can pass upon and correct any errors in its own proceedings.” Id. It would be unfair to the trial court and opposing counsel, moreover, if the appellate court were to review on direct appeal an un-objected to claim of error under circumstances suggesting that the lack of objection might have been strategic, rather than inadvertent. See id,.; Conyers, 354 Md. at 150, 729 A.2d at 919 (observing that “[t]he few cases where we have exercised our discretion to review unpreserved issues are cases where prejudicial error was found and the failure to preserve the issue was not a matter of trial tactics”). Moreover, if the failure to object is, or even might be, a matter of strategy, then overlooking the lack of objection simply encourages defense gamesmanship. See, e.g., State v. Rose, 345 Md. 238, 250, 691 A.2d 1314, 1320 (1997) (observing that excusing the requirement of a contemporaneous objection by defense counsel “would allow defense attorneys to remain silent in the face of the most egregious and obvious instructional errors at trial”).

In addition, the appellate court should evaluate whether the exercise of the discretion provided by Md. Rule 8-131(a) to address an unpreserved claim “will promote the *105orderly administration of justice,” by “prevent[ing] the trial of cases in a piecemeal fashion, thereby saving time and expense and accelerating the termination of litigation.” Jones, 379 Md. at 715, 843 A.2d at 784. Thus, the appellate court might address an unpreserved issue for guidance to the court and parties, when for other reasons the case is remanded for further proceedings.

None of these policy reasons warrants our reviewing the trial court’s order notwithstanding Appellant’s failure to object to it. Appellant cannot deny that his silence resulted in the court’s “not passing upon and correct[ing] any errors in its own proceedings.” Indeed, we are confident that, had defense counsel brought to the attention of the court the lack of a full Waller v. Georgia analysis before exclusion of persons from the courtroom, the court would have undertaken the on-the-record fact-finding and analysis required by that decision.

Furthermore, Appellant makes no attempt to argue that the lack of defense objection was mere oversight, rather than the deliberate decision of defense counsel not to object. To be sure, no one can know from this record why defense counsel stood silent as the events unfolded. We can be virtually certain, however, given the lengthy discussion that preceded the court’s issuance of its order, that defense counsel had ample opportunity to object. And, though we may not at this juncture attempt to assign a reason for the lack of defense objection, we cannot ignore the possibility that defense counsel did not object because he believed it better for his client to have his family members and others out of the courtroom during trial.3 Under these circumstances, it would be unfair to the court and prejudicial to the State to review Appellant’s unpreserved claim of error. See Jones, 379 Md. at 714, 843 A.2d at 784. Finally, this is not a case in which interest in the orderly administration of justice augurs in favor of reviewing *106the unpreserved issue, particularly given that the lack of objection leaves us with a less than fully developed record on the issue. See id. at 715, 843 A.2d at 784.

That Appellant’s claim of error implicates a constitutional protection, moreover, does not excuse his failure to make a contemporaneous objection to the court’s order. We have made it abundantly clear that “ ‘[e]ven errors of Constitutional dimension may be waived by failure to interpose a timely objection at trial.’ ” Taylor v. State, 381 Md. 602, 614, 851 A.2d 551, 558 (2004) (quoting Medley v. State, 52 Md.App. 225, 231, 448 A.2d 363, 366, cert. denied, 294 Md. 544 (1982)). And we have applied that proposition in a number of situations. See, e.g., Taylor, 381 Md. at 626-27, 851 A.2d at 565 (applying Md. Rule 8-131(a) and holding that the petitioner’s claim of a double jeopardy violation was not raised at trial and therefore was not preserved for appellate review); Walker v. State, 338 Md. 253, 262-63, 658 A.2d 239, 243 (citing Md. Rule 8-131(a) and holding that issues related to the denial of due process because of prosecutorial misconduct and denial of the Sixth Amendment right to counsel during pre-trial proceedings would not be considered because they were not properly raised below), cert. denied, 516 U.S. 898, 116 S.Ct. 254, 133 L.Ed.2d 179 (1995); cf. White v. State, 324 Md. 626, 640, 598 A.2d 187, 194 (1991) (citing Md. Rule 8-131(a) and stating that a claim of deprivation of the constitutional right to present defense witnesses was not properly before the Court because the argument had not been made to the trial court, but also finding no error on the part of trial court, “[e]ven if the issue had been preserved for appellate review”).

Further, the fact that the Sixth Amendment right to a public trial can be characterized as “fundamental” does not change the requirement that any claimed violation of that right be preserved by contemporaneous objection.4 We held in Rose, 345 Md. at 248-49, 691 A.2d at 1319, that a postcon*107vietion petitioner is not excused from the requirement of timely objection to an allegedly incorrect reasonable doubt jury instruction, notwithstanding that the instruction bears on the defendant’s due process entitlement to have the State prove its case beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970). Pertinent here, we rejected Rose’s argument that, because the right to be convicted only upon proof beyond a reasonable doubt is “fundamental,” the applicable waiver standard is the standard set forth in Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). We said in that regard: “[A]n intelligent and knowing relinquishment of a right is not required for a waiver of that right to occur simply because the right is of constitutional origin.” Rose, 345 Md. at 248, 691 A.2d at 1318. We continued:

Our cases make it clear that, simply because an asserted right is derived from the Constitution of the United States or the Constitution of Maryland, or is regarded as a “fundamental” right, does not necessarily make the “intelligent and knowing” standard of waiver applicable. Rather, most rights, whether constitutional, statutory or common-law, may be waived by inaction or failure to adhere to legitimate procedural requirements.

Id., 691 A.2d at 1319.

The right to a public trial, though “fundamental,” is not within the “narrow band of rights that courts have traditionally required an individual knowingly and intelligently [to] relinquish or abandon in order to waive the right or claim.” Hunt v. State, 345 Md. 122, 138, 691 A.2d 1255, 1262 (1997). Unlike, say, the rights to a jury trial, to counsel, and to require the State to prove its case, which are absolute and can only be foregone by the defendant’s affirmative “intelligent and knowing” waiver,5 the right to a public trial is subject to *108the balance of competing concerns. Indeed, the Waller test itself evinces, see 467 U.S. at 48, 104 S.Ct. at 2216, 81 L.Ed.2d at 39, a defendant’s right to a public trial can be foreclosed when the circumstances warrant it.6

For the same reasons, we reject the proposition that Appellant is entitled to review of the court’s order simply because the deprivation of the right to a public trial is a “structural error,” not subject to review for harmless error. See Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35, 46 (1999) (citing Waller, supra, for the proposition that the denial of a public trial is structural error); Carter v. State, 356 Md. 207, 224, 738 A.2d 871, 880 (1999). In that regard, we are in accord with the majority of the federal and state courts that a claimed deprivation of the right to a public trial can be waived by counsel’s failure to lodge a contemporaneous objection to the closure.

The Supreme Court, for example, has held that defense counsel’s failure to request that a courtroom previously closed for grand jury proceedings be re-opened for the defendant’s criminal contempt proceeding waived the defendant’s due process right to a public proceeding, which the Court stated is akin to the Sixth Amendment right to a public trial. See Levine v. United States, 362 U.S. 610, 618-19, 80 S.Ct. 1038, 1043-44, 4 L.Ed.2d 989, 1000 (1960). Closer still to the present case is United States v. Hitt, 473 F.3d 146 (5th Cir.2006), cert. denied, 549 U.S. 1360, 127 S.Ct. 2083, 167 L.Ed.2d 802 (2007). In Hitt, the United States Court of Appeals for the Fifth Circuit refused to consider the merits of the claim of the two appellants that the court committed *109reversible error by closing the courtroom during the suppression hearing and the victim’s trial testimony, without first considering the Waller prerequisites. Id. at 155. The court, recognizing that denial of a public trial is “structural error,” stated nonetheless that “[wjhere a defendant, with knowledge of the closure of the courtroom, fails to object, that defendant waives his right to a public trial.” Id. The Court therefore held that, because the appellants’ trial counsel had not objected to the closure at trial, the appellants had waived the right to complain on appeal that the closure was not done in accordance with Waller. Id.

Cases from federal courts of appeal are to like effect. See United States ex rel. Bruno v. Herold, 408 F.2d 125, 128-29 (2d Cir.1969) (holding that the federal habeas corpus petitioner was not entitled to a new trial on the grounds that he was denied his right to a public trial, given that his trial counsel had not objected to the courtroom being cleared of some spectators during a portion of the trial), cert. denied sub nom. Bruno v. Herold, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970); United States v. Sorrentino, 175 F.2d 721, 723-24 (3d Cir.1949) (rejecting the appellant’s contention that his counsel’s waiver did not bind him and concluding that the appellant had validly waived his right to a public trial); cf. Hutchins v. Garrison, 724 F.2d 1425, 1431 (4th Cir.1983) (holding that the habeas petitioner had affirmatively waived his right to a public trial by agreeing to have the trial court consider his motion to dismiss counsel in a closed hearing); Martineau v. Perrin, 601 F.2d 1196, 1200 (1st Cir.1979) (holding that the habeas corpus petitioner, through counsel’s actions and his own inaction upon learning of the fact that doors to the courtroom had been locked for a time, had effectively waived the right to a public trial).

State courts similarly hold. See, e.g., Wright v. State, 340 So.2d 74, 79-80 (Ala.1976) (holding that defense counsel’s assertion that excluding the public during the appellant’s trial “is within the [cjourt’s discretion,” coupled with counsel’s failure to object to the closure, amounts to the appellant’s waiver of the right to claim a violation of the entitlement to a *110public trial); People v. Lang, 49 Cal.3d 991, 264 Cal.Rptr. 386, 782 P.2d 627, 651 (1989) (restating prior decisions of California courts for the proposition that the right to a public trial can be waived by a failure to object, and holding that defense counsel waived the appellant’s claim of a denial of the right to a public trial by agreeing at trial to the exclusion of the public from a reading of certain trial testimony to the jury during its deliberations); Alvarez v. State, 827 So.2d 269, 274-76 (Fla.Dist.Ct.App.2002) (holding that the failure to object to courtroom closure constitutes a waiver of the right to challenge the closure on appeal); People v. Marathon, 97 A.D.2d 650, 650, 469 N.Y.S.2d 178 (N.Y.App.Div.1983) (stating that a defendant can waive his right to a public trial by failing to object to the closure of the courtroom, and holding that “[t]hat is precisely what defendant did in the instant case”); State v. Butterfield, 784 P.2d 153, 155-57 (Utah 1989) (holding that the appellant’s failure to make a contemporaneous objection to a closure order precluded appellate review of the issue). But see State v. Bethel, 110 Ohio St.3d 416, 854 N.E.2d 150, 170 (2006) (holding that, under the Ohio Constitution, the right to a public trial cannot be waived by the appellant’s failure to object that the hearing at which his plea agreement was discussed was closed to the public); State v. Bone-Club, 128 Wash.2d 254, 906 P.2d 325, 327 (1995) (holding that the appellant could complain on appeal about closure of the courtroom during the testimony of an undercover police officer at the suppression hearing, notwithstanding the lack of objection at the hearing).

Consistent with the vast majority of the courts that have spoken on the subject, we hold that a claimed violation of the right to a public trial must be preserved for appellate review by a timely objection at trial, notwithstanding that the allegation implicates structural error. Therefore, Appellant is not excused from his failure to object to the court’s order excluding his family and certain other persons from trial simply because the claimed error is “structural.”

*111Further, none of the cases we have discussed and nothing in this record presents a reason to exercise our discretion under Maryland Rule 8-131(a) to address Appellant’s unpreserved claim that the court erred when it excluded his family and other spectators from trial. We are particularly loath to do so, given the possibility that Appellant’s lack of objection may have been the product of design, and the fact that the very analysis Appellant complains was not done by the trial court likely would have been done had he brought the matter to the court’s attention.

Finally, we reject Appellant’s invitation, made for the first time in oral argument before us, to take cognizance of the issue under the guise of “plain error.” Such review is reserved for those errors that are “compelling, extraordinary, exceptional or fundamental to assure the defendant of [a] fair trial.” See Rubin v. State, 325 Md. 552, 588, 602 A.2d 677, 694 (1992) (citation and internal quotation marks omitted). We will intervene “in those circumstances only when the error complained of was so material to the rights of the accused as to amount to the kind of prejudice which precluded an impartial trial.” Id. In that regard, we “review the materiality of the error in the context in which it arose, giving due regard to whether the error was purely technical, the product of conscious design or trial tactics or the result of bald inattention.” Id.

Appellant did not file a reply brief arguing why he is entitled to such extraordinary review. Moreover, the reasons why we have declined to overlook Appellant’s failure to preserve the issue by contemporaneous objection, including the lack of a fully developed record on the claim, demonstrate why this is not remotely a case that cries out for review under the guise of “plain error.”

JUDGMENTS AFFIRMED. COSTS TO BE PAID BY APPELLANT.

BELL, C.J., BATTAGLIA and GREENE, JJ., Dissent.