State v. Ndina

¶ 1. The defendant, Dhosi J. Ndina, seeks review of a published decision of the court of appeals reversing an order of the Circuit Court for Milwaukee County, Dennis E Moroney, Judge.1 At the hearing on the defendant's post-conviction motion for a new trial, the circuit court reversed a judgment of conviction against the defendant and granted the defendant's postconviction motion for a new trial.2 The circuit court (Judge Moroney) concluded that the circuit court (Mary M. Kuhnmuench, Circuit Court Judge for Milwaukee County), had violated the defendant's right to a public trial under the Sixth Amendment to the United States Constitution by excluding the defendant's family from three days of the trial proceedings.

¶ 2. Three issues are presented on review to determine whether the circuit court erred in granting the defendant's postconviction motion for a new trial:

*661I. Did the defendant waive or forfeit his right to argue in an appellate court that the circuit court violated his Sixth Amendment right to a public trial? Did the State waive or forfeit its right to argue in an appellate court that the defendant waived or forfeited his right to argue that the circuit court violated his Sixth Amendment right to a public trial?

II. Did the circuit court's order excluding family members from three days of trial proceedings violate the defendant's Sixth Amendment right to a public trial?

III. If the circuit court did not violate the defendant's Sixth Amendment right to a public trial, what remedy, if any, does the defendant have?

¶ 3. On appeal, the court of appeals concluded that by failing to object timely to the circuit court's order excluding his family from the trial proceedings, the defendant had waived or forfeited his right to argue the Sixth Amendment issue in his postconviction motion and on appeal. The court of appeals then evaluated the defendant's public trial argument in the context of determining whether the defendant had received ineffective assistance of trial counsel. The court of appeals concluded that the defendant's claim for ineffective assistance of counsel failed because the defendant had not demonstrated that his trial counsel's failure to object to the exclusion of his family prejudiced him. The court of appeals reversed the order granting the defendant a new trial.

¶ 4. Because both parties failed to bring arguments to the circuit court in a timely manner and have briefed the substantive issue whether the circuit court's order excluding family members violated the defendant's Sixth Amendment right to a public trial, this court has decided to reach the merits of the issue presented, rather *662than to assess comparative blame and address the effect of the defendant's failure at trial to raise the Sixth Amendment issue and the State's failure at the postconviction hearing to raise the defendant's waiver/forfeiture at trial of the Sixth Amendment issue. We conclude that the exclusion of family members from three days of the trial implicated the defendant's Sixth Amendment right to a public trial but did not, under the circumstances of the instant case, violate the defendant's Sixth Amendment constitutional right.

¶ 5. We do not address whether the defendant is entitled to a new trial on any basis unrelated to the Sixth Amendment right to a public trial. We agree with the court of appeals that the matter is to be remanded to the circuit court for any additional postconviction proceedings required by law.

¶ 6. Accordingly, we affirm the court of appeals decision, although on different grounds, reversing the postconviction order granting the defendant a new trial, reinstating the judgment rendered by the jury, and remanding the matter to the circuit court for any additional postconviction remedies required by law. We remand the matter, as did the court of appeals, to the circuit court for additional postconviction proceedings required by law.

I

¶ 7. We briefly summarize the facts relating to the circuit court's order excluding members of the defendant's family from the courtroom for parts of the trial.

¶ 8. The State charged the defendant with attempted first-degree intentional homicide while using a dangerous weapon. The victim, the nephew of the *663defendant, was stabbed twice in the back with a knife during a family gathering. The case was tried to a jury.

¶ 9. Because the victim is related to the defendant and was injured during a family gathering, many witnesses for both the State and the defendant were members of the defendant's family. Defense counsel's initial witness list included the names of 13 individuals whom the record shows either to be related to the defendant or at least to bear the same surname as a confirmed relative of the defendant. The State included seven of the defendant's relatives on its initial witness list, including three individuals who also appeared on defense counsel's witness list. Nine family members eventually testified either for or against the defendant.

¶ 10. The defendant and his family are fairly recent immigrants from Albania. The defendant relied upon an Albanian-English interpreter during the course of his trial. The record also shows that many, and possibly all, members of the defendant's family who served as witnesses testified in Albanian with an Albanian-English interpreter. Four police officers testified in English.

¶ 11. Early in the trial, the circuit court issued a sequestration order applying to all potential witnesses except the defendant and a law enforcement officer testifying for the State. The circuit court ordered all persons subject to the order to "remain outside the courtroom until called in to testify." The circuit court further ordered such persons "not to discuss their testimony with each other or with anyone until directed to do so or unless directed to do so by [the] Court."

¶ 12. The circuit court specifically instructed both the prosecutor and defense counsel to communicate its sequestration order to potential witnesses. The circuit court also reminded defense counsel that he would need *664to utilize the services of an English-Albanian interpreter so that family members potentially testifying on the defendant's behalf could understand the circuit court's order.

¶ 13. On the trial's third day, the circuit court received testimony from the victim's father, who told the jury that he had witnessed the defendant stab his son. A disturbance occurred in the courtroom during this testimony. The circuit court observed that "individual family members in the gallery. . . were engaging in a level of conversation that not only the Court could hear" but that the circuit court "feared .. . the jury could hear as well." The circuit court stopped the proceedings and directed the bailiff and the court interpreter "to communicate to . . . those family members in the gallery that they must remain silent and not talk among each other while they are in the courtroom." The circuit court later observed that it had "not seen or heard anything from those family members in the gallery since that directive was made."

¶ 14. Near the end of the following day, the fourth day of trial, a second disturbance occurred as the victim's father continued to testify. The circuit court observed that there were people entering and leaving the courtroom and expressed concern about the sanctity of the circuit court's sequestration order. The prosecutor informed the circuit court that the victim's family had expressed concern that the persons entering and leaving the courtroom had been violating the order by conveying information to prospective witnesses. The circuit court asked defense counsel to identify three particular individuals in the gallery. Defense counsel identified these individuals as the defendant's mother and two of the defendant's sisters-in-law, at least one of whom was married to a person on defense counsel's witness list.

*665¶ 15. The circuit court issued an order "ban[ning] all family members from [the] court based on what [the court] believe[d] to be improper activities." The circuit court explained that its order was designed to "protect[] the integrity of [the] proceedings" and expressed particular concern about "those spouses who are married to potential witnesses in this case."

¶ 16. As an exception to its order, the circuit court permitted the defendant's mother to remain in the courtroom. The defendant swore in an affidavit that he filed with the circuit court that his mother does not speak English and therefore was unable to understand any of the witnesses who testified in English during his trial. The affidavit was not contradicted.

¶ 17. In excluding family members from the trial proceedings, the circuit court did not attempt to distinguish between those members of the defendant's family who were more closely related to the defendant and those who were more closely related to the victim. The circuit court expressly stated that its order would apply to family members on "both sides," with the single exception made for the defendant's mother. The circuit court also did not distinguish between those members of the defendant's family who were in the courtroom when the disturbances occurred and those members of the defendant's family who were not present. The order apparently applied as it was literally worded, that is, to "all family members."

¶ 18. The circuit court recounted the circumstances that led the circuit court to issue its order excluding family members from the courtroom. The circuit court observed that the defendant's mother "had already demonstrated a willingness to talk about the case to someone sitting next to her while she was in [the] *666gallery" on the day before. The circuit court further observed that "[t]here have been other family members that have been coming in and out and sitting and engaging in chitchat with each other while the trial is going on." The circuit court again expressed "serious concerns" that the "spirit" of its sequestration order was being violated.

¶ 19. The next day, the circuit court again explained the basis of its order excluding family members from the courtroom. The circuit court stated that it could not "allow what [it] believe[d] to be a violation of Lits] earlier ruling [imposing the sequestration order] to go unchecked." The circuit court stated that it had observed "the mother of the defendant, as well as other family members, both male and female ... discussing matters as witnesses were on the stand, oftentimes in a very animated and elevated fashion." The circuit court further stated that family members in the audience had been "nodding in approval or disapproval of witnesses' testimony, in full view of the jury" and were "loud, loud enough such that other members of my staff, as well as the parties, could hear it."

¶ 20. Defense counsel did not object to the circuit court's order excluding family members from the courtroom. Neither the circuit court nor counsel for either side explicitly raised the possibility that the circuit court's order might implicate the Sixth Amendment right to a public trial.

¶ 21. The circuit court permitted family members to return to the courtroom at the beginning of the trial's eighth day to hear the jury instructions and the closing arguments of counsel. Altogether, family members were excluded from the courtroom for approximately three *667days (the trial's fifth, sixth, and seventh days) of witness testimony.3

¶ 22. After his conviction, the defendant moved the circuit court to order a new trial. The defendant argued in principal part that the circuit court violated the defendant's Sixth Amendment right to a public trial when it excluded family members from the courtroom. The State did not argue at the postconviction hearing that the defendant had waived (or forfeited) his right to assert a violation of his Sixth Amendment right to a public trial.

¶ 23. The defendant also asserted in his postconviction motion that the circuit court had erred in *668admitting certain witness testimony; that his counsel was ineffective for failing to object to the exclusion of family members from the trial, for failing to move for a mistrial, and for failing to object to certain portions of the State's closing arguments; and that a new trial should be granted on the basis of newly discovered evidence.4

¶ 24. The court of appeals reinstated the judgment of conviction against the defendant and remanded the cause to the circuit court for any additional post-conviction proceedings required by law.

II

¶ 25. The first issue presented is waiver, that is, waiver by both the defendant and the State with regard to the claim that the defendant's Sixth Amendment right to a public trial was violated.

¶ 26. It is undisputed that defense counsel failed to object when the circuit court excluded family members from the courtroom. The State argues that because *669defense counsel never objected to the circuit court's order excluding family members from the trial, the defendant waived or forfeited his right to argue that the circuit court violated the defendant's Sixth Amendment right to a public trial. The defendant vehemently disagrees with the State's position.

¶ 27. It is also undisputed that the State failed to argue in the postconviction hearing that the defendant had waived or forfeited the Sixth Amendment public trial issue. For his part, the defendant argues that because the State never raised in the postconviction hearing the issue of the defendant's waiver or forfeiture of his right to argue the violation of his Sixth Amendment right to a public trial, the State waived or forfeited its right to assert in this court that the defendant waived or forfeited his right to argue that the circuit court violated his Sixth Amendment right to a public trial. As might be expected, the State vehemently disagrees with the defendant's argument.

¶ 28. The case law is rife with confusion about the words "waiver" and "forfeiture." Indeed, this court repeatedly has acknowledged its own imprecise use of these words. See Rao v. WMA Securities, Inc., 2008 WI 73, ¶ 24, 310 Wis. 2d 623, 752 N.W.2d 220 (acknowledging that "waiver" of the right of trial by jury under Article I, Section 5 of the Wisconsin Constitution sometimes "is more akin to 'forfeiture' than to 'waiver' in its strictest sense as an intentional relinquishment of a known right"); State v. Kelty, 2006 WI 101, ¶ 18 n.11, 294 Wis. 2d 62, 716 N.W.2d 886 (acknowledging that the "guilty-plea-waiver" rule could more accurately be called "the 'guilty-plea-forfeiture' rule, or something to that effect"); State v. Huebner, 2000 WI 59, ¶ 11 n.2, 235 Wis. 2d 486, 611 N.W.2d 727 (acknowledging that the rule of judicial administration known as the *670"waiver" rule might better be labeled "the 'forfeiture rule,' because it refers to the forfeiture of a right by silence rather than the intentional relinquishment of a known right.").

¶ 29. Although cases sometimes use the words "forfeiture" and "waiver" interchangeably, the two words embody very different legal concepts. "Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right." United States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks and citation omitted).

¶ 30. In other words, some rights are forfeited when they are not claimed at trial; a mere failure to object constitutes a forfeiture of the right on appellate review. The purpose of the "forfeiture" rule is to enable the circuit court to avoid or correct any error with minimal disruption of the judicial process, eliminating the need for appeal.5 The forfeiture rule also gives both parties and the circuit court notice of the issue and a fair opportunity to address the objection; encourages attorneys to diligently prepare for and conduct trials; and prevents attorneys from "sandbagging" opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal.6

¶ 31. In contrast, some rights are not lost by a counsel's or a litigant's mere failure to register an *671objection at trial. These rights are so important to a fair trial that courts have stated that the right is not lost unless the defendant knowingly relinquishes the right. As the court explained in State v. Huebner, 2000 WI 59, ¶ 14, 235 Wis. 2d 486, 611 N.W.2d 727, "a criminal defendant has certain fundamental constitutional rights that may only be waived personally and expressly," including "the right to the assistance of counsel, the right to refrain from self-incrimination, and the right to have a trial by jury. . . . Such rights cannot be forfeited by mere failure to object."

¶ 32. Similarly, the United States Supreme Court warned that "[a] strict standard of waiver has been applied to those rights guaranteed to a criminal defendant to insure that he will be accorded the greatest possible opportunity to utilize every facet of the constitutional model of a fair criminal trial. . . . The Constitution requires that every effort be made to see to it that a defendant in a criminal case has not unknowingly relinquished the basic protections that the Framers thought indispensable to a fair trial." Schneckloth v. Bustamante, 412 U.S. 218, 241, 242 (1973) (footnote omitted).

¶ 33. The court of appeals decision can be interpreted as concluding either that the defendant "waived" or that he "forfeited" his right to raise the merits of the alleged violation of his Sixth Amendment right to a public trial because he failed to object when the circuit court ordered his family members excluded.7 Counsel *672for the State astutely pointed out during oral argument to this court, however, that the substance of the court of appeals' holding was that the defendant had "forfeited" rather than "waived" his Sixth Amendment right to a public trial. Consistent with the definition of "forfeiture," the court of appeals concluded that the defendant had no right to assert his Sixth Amendment right to a public trial in his postconviction motion or on appeal because the defendant had failed to assert this right timely at trial.8

¶ 34. Thus the court of appeals decision leaves open the question whether the defendant's failure to *673object at trial to closure on the ground of a violation of the Sixth Amendment constitutional right to public trial should be analyzed as a "waiver" or as a "forfeiture" of the defendant's right to raise the issue on appellate review.

¶ 35. The defendant and State dispute whether a "waiver" or "forfeiture" standard applies to a defendant's assertion of a violation of the right to a public trial. The case law is divided regarding whether a defendant's failure to object timely to a trial court's alleged violation of the right to a public trial should be analyzed under the waiver or forfeiture standard. Some cases conclude that before a defendant is held to have waived the Sixth Amendment right to a public trial, there must be an intelligent relinquishment of the known right.9 Other cases conclude that a defendant loses (forfeits) the Sixth Amendment right to a public trial when the defendant or defense counsel fails to assert a timely objection at trial to the court's order of closure.10

*674¶ 36. The defendant and State also dispute whether the State may assert, as a matter of right, that the defendant has waived or forfeited his right to claim a violation of the Sixth Amendment. In other words, the parties disagree about whether the State has waived or forfeited its claim that the defendant waived or forfeited the Sixth Amendment argument.

¶ 37. The parties' statements of the deleterious effects of each other's alleged errors make sense. The State's brief explains that had the defendant objected timely before the circuit court to the exclusion of family members, the circuit court could have made a better record explaining its decision, could have narrowed its order, and could have considered alternative orders. The defendant's brief explains that had the State objected timely at the postconviction hearing that the defendant waived or forfeited his right to argue the violation of his right to a public trial, a better record would have been made in the circuit court, and multiple trips (as is now happening) between the circuit court, the court of appeals, and the supreme court could have been avoided.

¶ 38. Although two wrongs do not make a right, the circumstances in the present case make clear that this court should not spend time deciding this case *675either on the defendant's failure at trial to object timely to the exclusion of the family members or on the State's failure during the postconviction hearing to object to the defendant's lapse. The values protected by the forfeiture and waiver rules would not be protected in the instant case by applying a forfeiture or waiver rule to either the defendant or the State. Here both parties failed to make objections in a timely manner, but they have fully briefed the important substantive issue. This court should, under these circumstances, reach the merits of the issue presented, namely whether the circuit court's order violated the defendant's right to a public trial, rather than address whether either or both of the parties waived or forfeited their right to make certain arguments on review.

¶ 39. We therefore turn to the second issue, namely whether the circuit court's order excluding family members from several days of the trial violated the defendant's Sixth Amendment right to a public trial.

Ill

¶ 40. The Sixth Amendment to the United States Constitution guarantees that a criminal defendant shall enjoy the right to a public trial. The Sixth Amendment provides in full as follows:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense (emphasis added).

*676¶ 41. The Sixth Amendment right to a public trial is applicable to the States through the Due Process Clause of the Fourteenth Amendment!11

¶ 42. The Sixth Amendment right to a public trial is an important constitutional safeguard of a fair criminal trial. The United States Supreme Court has stated that the Sixth Amendment right to a public trial" 'has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution' " and that" '[t]he knowledge that every criminal *677trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on the possible abuse of judicial power.' "12 The Sixth Amendment guarantee of a public criminal trial" 'is for the protection of all persons accused of crime — the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they may be awarded a fair trial. . . .' "13 The public trial is premised on "[t]he principle that justice cannot survive behind walls of silence .. . ."14

¶ 43. If a defendant's right to a public trial is determined to have been violated, the defendant need not show prejudice; the doctrine of harmless error does not apply to structural errors.15

*678¶ 44. A "presumption of openness" exists.16 The right to a public trial is not, however, absolute. Despite a vast number of cases involving a myriad of fact situations exploring the Sixth Amendment right to a public trial, determining the contours of the right in a particular fact situation remains difficult.17

¶ 45. The parties' briefs do not clearly and directly set forth the standard of review an appellate court should use in reviewing a circuit court's decision regarding whether the defendant is entitled to a new trial *679because the defendant's Sixth Amendment right to a public trial has been violated. We apply the standard of review set forth in State v. Vanness, 2007 WI App 195, ¶ 6, 304 Wis. 2d 692, 738 N.W.2d 154. In Vanness, the court of appeals concluded that the issue whether the Sixth Amendment right to a public trial was violated presents the application of constitutional principles to historical facts.18 An appellate court upholds the circuit court's findings of evidentiary or historical fact unless those findings are clearly erroneous.19 The appellate court determines the application of constitutional principles to those evidentiary or historical facts independently of the circuit court and court of appeals but benefiting from those courts' analyses.20

*680¶ 46. An appellate court applies a two-step analysis to determine the question of law whether a defendant's Sixth Amendment right to a public trial has been violated. The appellate court first determines whether the closure at issue implicates the Sixth Amendment right to a public trial. If the closure does not implicate the Sixth Amendment right to a public trial, the appellate court need not reach the second step *681of the analysis. If a closure implicates the Sixth Amendment right to a public trial, the appellate court then must determine whether the closure was justified under the circumstances of the case. This type of analysis has been used in some federal cases.21

¶ 47. In performing these two analytical steps in resolving the present case, we conclude (A) that the circuit court's order excluding family members from the courtroom implicates the Sixth Amendment right to a public trial, and (B) that the circuit court's order excluding family members was justified under the circumstances of the instant case.

A

¶ 48. Although the "exclusion of any spectator runs the risk of violating the Sixth Amendment and, accordingly, of requiring a new trial,"22 some courts have recognized that "[e]ven an unjustified closure may, *682in some circumstances, be so trivial as not to implicate the right to a public trial."23

¶ 49. These courts conclude that a closure is trivial and does not implicate the Sixth Amendment if the closure "does not implicate the values served by the Sixth Amendment."24 The Supreme Court has described four values furthered by the Sixth Amendment guarantee of a public trial: "(1) to ensure a fair trial; (2) to remind the prosecutor and judge of their responsibility *683to the accused and the importance of their functions; (3) to encourage witnesses to come forward; and (4) to discourage perjury."25

¶ 50. The State contends that the circuit court's order excluding family members from the courtroom for three days of witness testimony does not implicate the values served by the Sixth Amendment right to a public trial. The State reasons that the trial remained open to all members of the public other than the defendant's family members; that the defendant's mother was permitted to remain in the courtroom gallery; that other family members were present when they took the witness stand to testify for or against the defendant; that the integrity of the witness sequestration order was preserved; that the trial was transcribed for review by the public and by appellate courts; and that a jury of twelve citizens and court personnel attended the trial.26 According to the State, the presence of the other members of the public sufficed to ensure that the four values served by the Sixth Amendment right to a public trial were protected.

¶ 51. Although the United States Supreme Court has stated that pursuant to the Sixth Amendment right to a public trial, "an accused is at the very least entitledto have his friends, relatives *684and counsel present,"27 federal appellate courts have recognized that "the exclusion of a family member or friend may, in rare circumstances . . . , not implicate the Sixth Amendment public trial guarantee."28

*685¶ 52. Such "rare circumstances" are not present in the instant case. The circuit court's exclusion of every family member except the defendant's mother (who did not understand English) plainly implicates the values served by the Sixth Amendment right to a public trial. A criminal defendant's family may play a critical role in verifying that the defendant "is fairly dealt with and not unjustly condemned"; in keeping the defendant's "triers keenly alive to a sense of their responsibility and to the importance of their functions"; and in "encouraging] witnesses to come forward and discouraging] perjury," particularly in a case in which many of the witnesses for either side are themselves members of the defendant's family.29

¶ 53. The facts of the instant case contrast sharply with the facts of cases in which courts have concluded that a closure was so trivial as not to implicate the Sixth Amendment right to a public trial. Cases holding that a closure is trivial are typically characterized by the exclusion of an extremely small number of persons from the courtroom30 or, alternatively, by a *686more general exclusion in effect for an extremely short period of time.31

¶ 54. In the instant case, the circuit court excluded the defendant's entire family, with the sole exception of the defendant's mother, for three full days of witness testimony. The closure encompassed several people, and it was not brief or inadvertent. The closure implicated the values of the right to a public trial. The closure implicated the values of (1) ensuring a fair trial; (2) reminding the prosecutor and judge of their responsibility to the accused and the importance of their functions; (3) encouraging witnesses to come forward; and (4) discouraging perjury.

¶ 55. For the reasons set forth, we conclude that the Sixth Amendment right to a public trial is implicated under the circumstances of the instant case. *687Unless properly justified, the circuit court's order ex eluding family members from the courtroom would constitute a violation of the defendant's right to a public trial under the Sixth Amendment.

B

¶ 56. Closure of a criminal trial is justified when four conditions are met: "(1) the party who wishes to close the proceedings must show an overriding interest which is likely to be prejudiced by a public trial, (2) the closure must be narrowly tailored to protect that interest, (3) alternatives to closure must be considered by the trial court, and (4) the court must make findings sufficient to support the closure."32 The case law typically refers to this four-part test as the "Waller test," referring to the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39 (1984).33

*688¶ 57. We consider each of the four applicable requirements separately in determining whether the defendant's Sixth Amendment right to a public trial was violated. We conclude that each condition was met under the circumstances of the present case.

(1)

¶ 58. The circuit court justified its order as necessary to ensure that family members attending the trial were not contributing to violations of the court's sequestration order. Although disruptions within the courtroom may be viewed as a justification for a trial court's order excluding family members from the trial, the circuit court in the instant case did not justify its order as necessary to prevent such disruptions or to maintain the dignity, order, and decorum of the courtroom.

¶ 59. The circuit court stated that it issued its order to "protect[] the integrity of [the] proceedings" and that the circuit court could not "allow what [it] believe[d] to be a violation of [its] earlier ruling [imposing the sequestration order] to go unchecked." The circuit court was persuaded that family members in the courtroom gallery were violating the "spirit" of the court's sequestration order by conveying the contents of witness testimony to potential witnesses outside the courtroom.

¶ 60. Sequestration orders serve the important interest of promoting truthfulness in witness testimony. A sequestration order "exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses"; "aids in detecting testimony that is less than candid"; and, when testimony is interrupted by a recess, also may "prevent[] improper attempts to influence [pro*689spective] testimony in light of the testimony already given."34

¶ 61. The circuit court reasonably concluded that the overriding interest of promoting truthfulness served by its sequestration order was imperiled by the conduct of the defendant's family members. The circuit court's determination that family members were contributing to violations of the sequestration order is supported by the following information that appears in the record: (1) the circuit court witnessed family members entering and leaving the courtroom; (2) members of the victim's family went to the prosecutor with concerns that the persons entering and leaving the courtroom had been conveying information to potential witnesses; and (3) the circuit court witnessed family members in the courtroom gallery talking loudly as witnesses were testifying and even "nodding in approval or disapproval of witnesses' testimony, in full view of the jury."

¶ 62. The defendant contends that the circuit court's findings are insufficient to show that the interests served by the circuit court's sequestration order *690were likely to be prejudiced by allowing the family members to remain. The defendant argues that the circuit court failed to confirm that any persons in the courtroom actually had contributed to a violation of its sequestration order. The defendant concludes that the circuit court's order excluding family members from the courtroom was based on "mere speculation" that the sequestration order had been or would be violated, not on a demonstrated threat to the order.35

¶ 63. We agree with Professor LaFave that "[generally, the best course of action is for the trial judge to hold an evidentiary hearing on the issue of closure" when an order of the trial court implicates the Sixth Amendment right to a public trial.36 We acknowledge that the circuit court could have taken testimony to justify its conclusion that family members in the courtroom were contributing to violations of its sequestration order by conveying the contents of witness testimony to potential witnesses outside the courtroom.

¶ 64. We do not agree, however, with the defendant's characterization of the record. The record shows that the overriding truth-seeking interests served by the circuit court's sequestration order would *691be prejudiced by allowing family members to attend the trial. We therefore conclude that the State has met the Waller test's first requirement of an overriding interest likely to be prejudiced by a public trial.37 Although it *692would have been better practice for the circuit court to make inquiry about the conduct of the defendant's family members and make findings of fact, the circuit court's concerns about the sequestration order were based on the facts the circuit court observed and reasonable inferences from the facts and not on "mere speculation," as the defendant contends.

(2)

¶ 65. The defendant contends that the circuit court's order was overbroad because it applied to the defendant's entire family (except the defendant's mother), even to family members not then present in the courtroom, and not to specific individuals shown to pose a threat to the circuit court's sequestration order.

*693¶ 66. We conclude, however, that under the circumstances of the present case the circuit court was justified in applying its order to all family members except for the defendant's mother. The prosecution and defense counsel collectively designated much of the defendant's family — apparently 17 individuals altogether — as potential witnesses at trial. Under these circumstances, it would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous family members slated to testify. Although some family members presumably were more closely related to potential witnesses than others, it is difficult to say where the line between family members could have been drawn. Every person excluded from the courtroom had a significant degree of kinship with the defendant, the victim, and the majority of the potential witnesses in the case.

¶ 67. Moreover, the circuit court lifted its exclusion order once all the witnesses had finished testifying and any threat to the circuit court's sequestration order had been extinguished. Family members were permitted to return to the courtroom to hear the jury instructions and the closing arguments of counsel.

¶ 68. We acknowledge again that the better course of action for the circuit court would have been to determine with more certainty how individual family members may have been contributing to violations of the court's sequestration order and to make more specific findings about the likelihood of violations. Under the circumstances of the present case, however, we cannot say that the circuit court's procedure rendered the circuit court's order broader than necessary to protect the overriding interests served by the circuit court's sequestration order.

*694¶ 69. The defendant cites three cases in support of his position that the circuit court's order was over-broad: English v. Artuz, 164 F.3d 105 (2d Cir. 1998); State v. Ortiz, 981 P.2d 1127 (Haw. 1999); and State v. Clifford, 733 N.E.2d 621 (Ohio Ct. App. 1999). Each case, however, is distinguishable from the one at bar.

¶ 70. In English v. Artuz, 164 F.3d 105 (2d Cir. 1998), English was accused of committing murder at the request of a drug dealer. The circuit court closed the courtroom to all members of the public, including English's family, in the interest of protecting a prosecution witness from the threat of harm.

¶ 71. The United States Court of Appeals for the Second Circuit held that the district court had erred in excluding English's family from the courtroom.38 The court of appeals stated that the prosecution's witness had testified unequivocally that he did not fear English's family and that the district court easily could have identified the members of English's family.39 The court of appeals therefore concluded that the closure was not narrowly tailored to protect the prosecution's witness against threat of harm.40

¶ 72. English is not instructive in the present case. The circuit court in the present case, unlike the district court in English, reasonably concluded that the defendant's family members posed a threat to the overriding interests served by the circuit court's sequestration order. The circuit court determined that members of the defendant's family, not other persons, were acting in a manner contrary to the circuit court's sequestration order forbidding communication between *695potential witnesses about the contents of their testimony. In contrast, the district court in English drew no connection between the exclusion of English's family members and the goal of protecting the prosecution's witness from the threat of harm posed by others.

¶ 73. The present case is additionally distinguishable from English because the district court in English could have fulfilled the request to narrow the court's closure order much more easily than the circuit court could have narrowed its order in the instant case. As we have already stated, it would have been difficult if not impossible for the circuit court in the instant case to determine which of the defendant's family members were likely to convey the contents of witness testimony to any of the numerous family members listed as potential witnesses in the trial. The district court in English, however, could have reasonably narrowed its closure order by making the simple determination of which persons were related to English and which were not.

¶ 74. In State v. Ortiz, 981 P.2d 1127 (Haw. 1999), the prosecutor moved to exclude Ortiz's family from the courtroom on the basis of "an ongoing investigation, involving at least some of Ortiz's family members, into jury tampering, witness tampering, intimidating a witness, and possible retaliation against a witness."41 The prosecutor made allegations against Ortiz's sister, mother, and brother-in-law but not against any other member of Ortiz's family.42 The trial court granted the prosecutor's motion over defense counsel's objection. The trial court also kept its exclusionary order in place after it had questioned members of the jury about *696possible jury tampering and apparently concluded that no tampering had occurred.43

¶ 75. The Supreme Court of Hawaii held that the trial court's order was broader than necessary to protect the prosecutor's interest in preventing jury tampering, witness tampering, or the intimidation of or retaliation against witnesses.44 The Hawaii supreme court first determined that the trial court had erred in excluding Ortiz's entire family when the prosecution had limited its allegations to Ortiz's sister, mother, and brother-in-law.45 The Hawaii supreme court also concluded that the trial court had further erred in leaving its exclusion order in place even after conducting a voir dire of all the jurors and satisfying itself that no jury tampering had taken place.46

¶ 76. The present case is distinguishable from Ortiz in each critical respect. The circuit court in the instant case reasonably concluded that the defendant's family members posed a threat to the court's sequestration order given that family members dominated the witness lists. The trial court in Ortiz had no basis on which to conclude that members of Ortiz's family other than Ortiz's sister, mother, and brother-in-law were contributing to any risk of jury tampering, witness tampering, or the intimidation of or retaliation against witnesses. In addition, the circuit court in the instant case narrowly tailored the temporal scope of its order by permitting the defendant's family members back in the courtroom once witness testimony had come to an end. The Ortiz trial court, in contrast, left its order in place even after questioning the jury and discovering no *697evidence supporting the prosecutor's allegations of jury tampering.

¶ 77. In State v. Clifford, 733 N.E.2d 621 (Ohio Ct. App. 1999), the trial court cleared one part of the courtroom of all spectators, apparently due to a disturbance that the record did not explain or describe.47 The trial court also rejected defense counsel's request to permit Clifford's mother and grandmother to remain in the courtroom.

¶ 78. The Ohio Court of Appeals concluded that the trial court had erred, in part because the trial court's order was broader than necessary.48 The court of appeals determined that the trial court was unjustified in removing Clifford's mother and grandmother because "there was no evidence concerning their involvement in any disturbance" in the courtroom.49

¶ 79. Clifford is distinguishable because in that case, the audience members' misconduct and threatened future misconduct all were within the view and control of the trial court. It would have been a simple matter for the trial court to determine who among the audience had been involved in a disturbance and to *698exclude such persons without excluding those audience members who were innocent of misconduct. Furthermore, if any persons not involved in the initial disturbance became involved in future disturbances, the trial court easily could have identified these individuals and added their names to the list of excluded persons.

¶ 80. In the present case, however, the defendant's family members posed a threat to the circuit court's sequestration order that the circuit court could not observe or control. It would have been difficult if not impossible for the circuit court to determine which family members were likely to convey the contents of witness testimony to any of the numerous other family members listed as potential witnesses. The present case thus is unlike Clifford, in which the trial court easily could have distinguished between individual members of Clifford's family in excluding disruptive persons from Clifford's trial.

(3)

¶ 81. The defendant asserts that the circuit court failed to consider any reasonable alternatives to its order excluding the defendant's family members from the courtroom. The defendant suggests that the circuit court should have considered the alternatives of "limiting] its exclusionary rule to those members of the public married to or living with anticipated witnesses" or of making inquiries "prior to the testimony of the various family members to determine whether they had received any information concerning courtroom proceedings in violation of the [sequestration] order."50

*699¶ 82. These alternatives were not suggested to the circuit court. The cases reasonably hold that "a trial judge need not consider alternatives to a limited closure sua sponte."51 Although we agree with the New York Court of Appeals that "it is surely the better practice for trial courts to explore the feasibility of possible alternatives to closing the courtroom with counsel on the record, even where it is not mandated,"52 we cannot conclude under the circumstances of the present case that the alternatives suggested by the defendant are reasonable or that the circuit court erred in failing to consider alternatives that no party asked it to consider.

¶ 83. Under the circumstances of the present case, where the circuit court's order was not overbroad and where the circuit court attempted to get compliance with the sequestration order, we conclude that in ordering the defendant's family members to remain outside the courtroom during the witnesses' testimony, the circuit court implicitly determined that no less restrictive alternative would protect its interest in ensuring the sanctity of its sequestration order.53 Accordingly, we *700conclude that the circuit court satisfied the requirement of considering reasonable alternatives to its closure order.

(4)

¶ 84. The defendant correctly notes that the fourth requirement of the Waller test is closely interrelated with the other three requirements.54 The gist of the fourth requirement is that the trial court's compliance with the first three requirements must be apparent from the trial court's findings in the record. In other words, the purpose of the fourth requirement "is simply to allow a reviewing court to determine whether the closure order was properly entered."55

¶ 85. We have stated that the circuit court could have done a better job in the instant case of explaining and justifying its order on the record. When the State or the circuit court seeks a nontrivial closure of the courtroom implicating the defendant's Sixth Amendment right to a public trial, the circuit court should ensure that it makes findings of fact on the record, that it applies the Waller test, and that the record demonstrates due regard for the defendant's Sixth Amendment right to a public trial. Both the prosecutor and defense counsel should bring the Sixth Amendment right to a public trial to the circuit court's attention and *701should assist the circuit court in crafting a closure order consistent with the Sixth Amendment's "basic tenet of our judicial system."56

¶ 86. Although we acknowledge that the circuit court's findings on the record are limited and no hearing was held, we nevertheless conclude that the record is sufficient to support the closure order. The closure was narrowly tailored to serve an overriding interest likely to be prejudiced unless the family members were excluded.

¶ 87. For the reasons set forth, we conclude that the circuit court did not violate the defendant's Sixth Amendment right to a public trial.

IV

¶ 88. The defendant asserted in his postconviction motion that he is entitled to a new trial on several bases unrelated to the Sixth Amendment right to a public trial. The defendant asserted that the circuit court had erred in admitting certain witness testimony; that his counsel was ineffective for failing to move for a mistrial and for failing to object to certain portions of the State's closing arguments; and that a new trial should be granted on the basis of newly discovered evidence.

¶ 89. At the hearing on the defendant's postconviction motion, the circuit court did not reach these other issues raised in the defendant's motion. We also do not address these issues but instead remand the cause to the circuit court for any additional postconviction proceedings required by law.

*702¶ 90. Our decision, however, precludes the defendant from arguing on remand, as he did in his briefs to this court, that his trial counsel was ineffective for failing to object to the exclusion of family members from his trial. The defendant's argument essentially is that his counsel was ineffective for failing to secure a public trial for the defendant. This argument is inconsistent with our holding that, regardless of defense counsel's performance at tried, the defendant received a public trial consistent with the guarantee in the Sixth Amendment of a public trial.

¶ 91. Because both parties failed to bring arguments to the circuit court in a timely manner and have briefed the substantive issue whether the circuit court's order excluding family members violated the defendant's Sixth Amendment right to a public trial, this court has decided to reach the merits of the issue presented, rather than to assess comparative blame and address the effect of the defendant's failure at trial to raise the Sixth Amendment issue and the State's failure at the postconviction hearing to raise the defendant's waiver/forfeiture at trial of the Sixth Amendment issue. We conclude that the exclusion of family members from three days of the trial implicated the defendant's Sixth Amendment right to a public trial but did not, under the circumstances of the instant case, violate the defendant's Sixth Amendment constitutional right.

¶ 92. We do not address whether the defendant is entitled to a new trial on any basis unrelated to the Sixth Amendment right to a public trial. We agree with the court of appeals that the matter is to be remanded to the circuit court for any additional postconviction proceedings required by law.

*703¶ 93. Accordingly, we affirm the court of appeals decision, although on different grounds, reversing the postconviction order granting the defendant a new trial, reinstating the judgment rendered by the jury, and remanding the matter to the circuit court for any additional postconviction remedies required by law. We remand the matter, as did the court of appeals, to the circuit court for additional postconviction proceedings required by law.

¶ 94. By the Court. — The decision of the Court of Appeals is affirmed and the cause remanded to the circuit court.