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Haile S. Long v. State of Indiana
Case Number: 18A-CR-2140
Judge: Rudolph R. Pyle III
Court: COURT OF APPEALS OF INDIANA
Plaintiff's Attorney: Ellen H. Meilaender
Supervising Deputy Attorney
Defendant's Attorney: Dylan A. Vigh
In 2016, the Muncie Narcotics Unit (“MNU”) conducted an investigation of
Long using a confidential informant and four controlled drug buys. All of the
controlled buys occurred at Long’s auto business. After the fourth controlled
buy, the MNU applied for, and was granted, a search warrant for Long’s auto
 Based upon the controlled buys and what was recovered from the search, the
State charged Long with the following: Level 2 felony dealing cocaine; Level 2
felony dealing a narcotic drug; three counts of Level 3 felony dealing cocaine;
Level 5 felony dealing a Schedule IV controlled substance; Level 6 felony
maintaining a common nuisance; and Class A misdemeanor dealing marijuana.
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 Long’s jury trial began in May of 2018 and lasted three days. At the start of the
second day of trial, the trial court noted that it had “put a sign on the door
asking people not to enter and exit in the middle of testimony,” explaining that
it was “happening a lot yesterday and it was very distracting.” (Tr. Vol. II at
130). The trial court also asked counsel for both sides to “police your own to
the best of your ability” and asked the prosecutor’s staff to “try not to leave in
the middle of testimony.” (Tr. Vol. II at 130). Long did not object or otherwise
voice any concerns about this.
 Shortly after the first witness began testifying on the second day, spectators
entered the courtroom. The trial court interrupted the examination, stating,
“[s]ir, sir there’s a sign on the door that there’s not going to be people entering
and exiting during court, all right. So you guys can come in and have a seat but
you stay until there’s a break. I don’t want people coming in and out during
testimony today, all right. Thank you.” (Tr. Vol. II at 133). During a break
later that morning, the trial court stated:
All right, some folks came in during some of that testimony after I gave an earlier admonishment. So let me just say this one more time, I don’t want comings and goings during testimony today. It’s very distracting. Yesterday was very distracting. So you can leave and come during breaks. If you are outside the courtroom and testimony has already started, you are to stay outside the courtroom until we take our next break when you can come back in, okay. And I would appreciate you not leaving in the middle of testimony just because it takes, you know, the attraction [sic] away from the witness, okay.
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(Tr. Vol. II at 194-95). Long never objected or voiced any concerns about the
trial court’s statements.
 Following the presentation of evidence, the trial court took a recess before the
start of closing arguments. It advised those present that there would be a 15
minute break and that there would be an officer “standing at the door.” (Tr.
Vol. III at 228). The court continued, “[i]f you’re in here when closings start,
fine. You’re staying until they are over. If you’re not in here when closings
start, you’re not coming in to listen to closings, okay.” (Tr. Vol. III at 228-29).
Long again did not object or voice any concerns about this. Thereafter, the jury
found Long guilty as charged on all eight counts. The trial court sentenced
Long to an aggregate, executed term in the Department of Correction for
twenty-six-and-a-half (26½) years. Long now appeals.
 Long argues that the trial court violated his Sixth Amendment right to a public
trial.1 Long is correct that the United States Constitution provides him with
the right to a public trial. Specifically, the Sixth Amendment to the United
1 In addition to the Sixth Amendment, Section 13 of the Indiana Constitution provides that “[i]n all prosecutions, the accused shall have the right to a public trial . . . .” While Long cites the Indiana Constitution, he makes no separate argument under the Indiana Constitution. Our supreme court has held that when a party, though citing Indiana constitutional authority, presents no separate argument specifically treating and analyzing a claim under the Indiana Constitution distinct from its federal counterpart, we resolve the party’s claim “on the basis of federal constitutional doctrine and express no opinion as to what, if any, differences there may be” under the Indiana Constitution. Williams v. State, 690 N.E.2d 162, 167 (Ind. 1997).
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States Constitution provides that “[i]n all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial . . . .” The right to a public trial
has long been recognized as a fundamental right of the accused. Williams v.
State, 690 N.E.2d 162, 167 (Ind. 1997). It protects the accused by allowing the
public to assess the fairness of the proceedings. Id. A public trial helps ensure a
fair trial because “the presence of interested spectators may keep [the accused’s]
triers keenly alive to a sense of their responsibility and to the importance of
their functions . . . .” Waller v. Georgia, 467 U.S. 39, 47 (1984).
 The State argues that Long has waived his claim regarding his right to a public
trial because he did not raise an objection below in the trial court. We agree.
As a general rule, a party may not present an argument or issue on appeal
unless the party raised that argument or issue before the trial court. Washington
v. State, 808 N.E.2d 617, 625 (Ind. 2004). Because Long failed to object and
preserve the issue at trial, despite having multiple opportunities to do so, he has
waived consideration of this issue on appeal. See Williams, 690 N.E.2d at 166
(holding that because the defendant raised no objection to the use of a metal
detector and wand below, his claim that this violated his right to a public trial
was waived on appeal).
 Waiver notwithstanding, the record reveals no basis for Long’s argument that
there was a violation of his right to a public trial. Long argues that there was a
“total exclusion of the public during witness testimony and closing
arguments . . . .” (Long’s Br. 12). The State argues that the “trial court did not
exclude or bar any person, let alone the entire public, from observing any part
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of the trial.” (State’s Br. 20). We agree with the State. Both a common sense
reading of “exclusion,” and, more importantly, the cases interpreting the right
to a public trial, conceive of an exclusion as an affirmative act specifically
barring some or all members of the public from attending a proceeding.
Williams, 690 N.E.2d at 168 (citing Waller, 467 U.S. at 39). This exclusion
requires some showing that the court, “by order or otherwise, physically
prevented the public from attending.” Id. (citing United States v. Al-Smadi, 15
F.3d 153, 154 (10th Cir. 1994) (denial of a defendant’s Sixth Amendment right
to a public trial requires some affirmative act by the trial court meant to exclude
persons from the courtroom)).
 This case presents an issue of trial management, and a trial court is given
latitude to manage the courtroom and maintain order and decorum. Marcum v.
State, 725 N.E.2d 852 (Ind. 2000). Here, the trial court posted the sign asking
spectators to only enter or exit during breaks precisely because the “comings
and goings” of spectators proved to be “very distracting” and was “happening a
lot” during testimony on the first day of trial. (Tr. Vol. II at 133, 130). No one
was ever removed from the courtroom or prevented from entering. Indeed, the
record reveals that members of the public came into the courtroom when the
sign was on the door. Because the trial court did not engage in “an affirmative
act specifically barring some or all members of the public[,]” nor did it
physically prevent members of the public from attending, we hold that the trial
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did not exclude any members of the public. Williams, 690 N.E.2d at 168.
Accordingly, Long’s Sixth Amendment right to a public trial was not violated.2