State v. Lawrence

167 N.W.2d 912, 1969 Iowa Sup. LEXIS 834

• Court: Supreme Court of Iowa
• Decided: May 6, 1969
• Docket: 52826
• Status: Published

Opinions

LARSON, Justice.

The defendant, Richard Paul Lawrence, was indicted by a grand jury for the crime of murder in violation of section 690.1, Code of 1966, committed in Linn County, Iowa, on or about December 20, 1966. Subsequent to a plea of not guilty, a trial by jury was had commencing on June 5, 1967. On June 13 the jury found defendant guilty of murder in the second degree. Pursuant to hearing on defendant’s motion for new trial on June 20, which was overruled, the court on June 22 entered its judgment sentencing defendant to the Iowa State Penitentiary at Fort Madison, Iowa, for a term of 90 years. Notice of appeal was timely filed on August 14, 1967.

Since the vital question presented by this appeal does not concern the facts and circumstances surrounding the crime, they will be omitted in the interest of brevity. In his assignment of error the defendant contends the trial court erred (1) in excluding the public from the courtroom during the reading of the instructions to the jury, in violation of his right to a public trial, (2) in authorizing the county attorney to subpoena defendant’s witnesses after indictment, the effect of which was to allow discovery techniques not in accordance with the law in this jurisdiction, and (3) . in abusing its discretion in sentencing defendant.

The record discloses that, through mistake or misunderstanding, the public, including the press, was excluded from the courtroom during the reading of the instructions to the jury. Therefrom we learn that during a recess, when everyone had left the courtroom, the judge instructed the bailiff to see to it that no spectators entered the courtroom during the reading of the instructions to the jury prior to their retiring- to deliberate. The bailiff carried out his orders to the extent that no member of the general public was inside the courtroom during that time, although several persons attempted to enter. Defendant’s position, then as now, was that the exclusion required a new trial and that it was not necessary for him to show in what manner, if any, he was prejudiced by the exclusion of the public during that time.

I. Of uncertain origin, but nevertheless deeply rooted in the common law, the right to public trial has long been regarded as a fundamental right of the defendant in a criminal prosecution. See 1 Bentham, Rationale of Judicial Evidence (1827), Book II, ch. X; 2 Bishop, New Criminal Procedure, 2d ed. (1913), p. 767; 3 Blackstone’s Comm., Lewis ed. (1897), pp. 372-373 ; 2 Hale, History of the Common Law of England, Sth ed. (1794), pp. 141-142; 2 Coke’s Institutes (1797), pp. 103-104; Radin, The Right to a Public Trial, 6 Temple L.Q. 381.

This common law concept, whether guaranteed by constitutional or statutory provision, is universally regarded by state and federal courts as basic and substantial, and the language declaring it as mandatory. State v. Schmit, 273 Minn. 78, 139 N.W.2d 800, 803. Accordingly, it is protected by constitution, statute, or decision in almost every state. Amendment 6, United States Constitution; Article I, Section 10, Iowa Constitution. As to this application, see Matter of Oliver, 333 U.S. 257, 267, 68 S.Ct. 499, 504, 92 L.Ed. 682, 691.

Although this exact question’ has not been presented in this state, we have recognized that the right to public trial is guaranteed by Article I, Section 10, of the Iowa constitution, which provides in part: “In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial * * (Emphasis added.) See State v. Worthen, 124 Iowa 408, 410, 100 N.W. 330, 331.

A number of reasons have been ascribed to the privilege of public trial, but perhaps foremost is providing the accused greater security in the administration of justice. In contrast to Star Chamber techniques, which are alien in a free society, publicity serves as a buttress against unjust prosecution and aids greatly in insuring the accused the fair trial to which he is entitled. See 1 Bentham, supra, pp. 523-524; 1 Cooley, Constitutional Limitations, 8th ed. (1927), p. 647; State v. Worthen, supra. “The knowledge that every criminal trial is subject to contemporaneous review in the form of public opinion is an effective restraint on possible abuse of judicial power.” Matter of Oliver, supra, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682, 692. “Secrecy, where events of public importance are involved, always suggests suppression, and suppression, in its own turn, generates rumors; and rumors, which are planted in the soil of suspicion eventually send forth the ugly plant of perverted truth.” In re Mack, 386 Pa. 251, 277, 126 A.2d 679, 691-692. “In publicity of the procedure and the trials lie the true safeguards of individual liberty.” 24 Locre 21, quoted in Esmein, A History of Continental Criminal Procedure, 483-484.

Publicity has also been deemed to play an important role in assuring testimonial trustworthiness by inducing fear of exposure of testimony falsely given. 6 Wig-more on Evidence, 3d ed. (1940), section 1834; 1 Bentham, supra; 3 Blackstone, supra, p. 373. In addition, publicity brings notice of the proceedings to the attention of possible witnesses who might be unknown to the parties. See Tanksley v. United States (9th Cir.), 145 P.2d 58, 59, 156 A.L.R. 257, 10 Alaska 443; 6 Wig-more, supra. Publicity may also be said to discourage undue emphasis by the court when charging the jury. When instructing the jury as to the law applicable to a given case, overemphasis by repetition or voice inflection could, of course, materially affect jury consideration of the matter, and such undue emphasis would not be reflected by the printed copy of the instructions later available to the public.

II. The right to a public trial has never existed as a rigid, inflexible straight jacket upon the courts. It has generally been viewed as a right subject to the inherent power of the court to limit attendance as the conditions and circumstances reasonably require for the preservation of order and decorum in the courtroom, and to reasonably protect the rights of parties and witnesses. Annotation, 48 A.L.R.2d 1436, 1448; annotation, 4 L.Ed.2d 2128, 2144. Logically, it has been held restrictions on attendance may be imposed because of limited seating capacity in the courtroom. Davis v. United States (8th Cir.), 247 F. 394, 395, L.R.A. 1918C, 1164; People v. Jelke, 308 N.Y. 56, 123 N.E.2d 769, 48 A.L.R.2d 1425; Tate v. Commonwealth, 258 Ky. 685, 693, 80 S.W.2d 817, 821; Payne v. State, 226 Ark. 910, 295 S.W.2d 312. Likewise, to prevent overcrowding, see State v. Schmit, supra, 273 Minn. 78, 139 N.W.2d 800; Myers v. State, 97 Ga. 76, 98, 25 S.E. 252, 260; and to preserve health or sanitary conditions, see People v. Jelke, supra, 308 N.Y. 56, 63, 123 N.E.2d 769, 772, and citations, and People v. Miller, 257 N.Y. 54, 60, 177 N.E. 306, 308. See also Wendling v. Commonwealth, 143 Ky. 587, 601, 137 S.W. 205, 211; State v. Saale, 308 Mo. 573, 579-581, 274 S.W. 393, 395-396.

It is also of paramount importance that order and decorum be preserved in the courtroom. Thus, a judge may exclude anyone from the courtroom who does not conduct himself properly. United States ex rel Orlando v. Fay (2nd Cir.), 350 F.2d 967; Myers v. State, supra; United States v. Kobli (3d Cir.), 172 F.2d 919, 921, 924; State v. Copp, 15 N.H. 212, 214; State v. Genese, 102 N.J.L. 134, 142, 130 A. 642, 646. It is also generally held that minors deserve special attention and may be excluded from the courtroom in trials of a salacious nature. State v. Schmit, supra; State v. Adams, 100 S.C. 43, 84 S.E. 368; People v. Byrnes, 84 Cal.App.2d 72, 190 P.2d 290, 291. In other words, courts generally hold that part of the public may for good and sufficient reason be excluded from the courtroom during trial, but no more persons than are necessary to secure those proper objectives may be excluded. Davis v. United States, supra; United States v. Kobli, supra.

In State v. Worthen, supra, 124 Iowa 408, 100 N.W. 330, our court has also recognized the exclusion of a portion of the public for good cause. Therein the trial court ordered the exclusion of defendant’s witnesses because it felt their exclusion would be more conducive to a fair and impartial trial. The defendant appealed alleging he was denied his right to a public trial. In finding no merit in this contention, our court held that a sequestration of defendant’s witnesses did not infringe upon his constitutional right to a public trial.

In any event, spectators who conduct themselves properly may not be excluded from any major portion of a trial. Such an arbitrary exclusion would fail to meet our constitutional provision requiring a public trial.

III. All authorities agree that, in the absence of legitimate reasons for limiting public attendance in criminal trials, the concept of public trial includes the entire trial from the impaneling of the jury to the rendering of its verdict. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966); United States v. Sorrentino (3d Cir.), 175 F.2d 721, cert. denied 338 U.S. 868, 70 S.Ct. 143, 94 L.Ed. 532, rehearing denied 338 U.S. 896, 70 S.Ct. 238, 94 L.Ed. 551; People v. Teitelbaum, 163 Cal.App.2d 184, 329 P.2d 157 (1958), cert. denied and appeal dismissed 359 U.S. 206, 79 S.Ct. 738, 3 L.Ed.2d 759; People v. Micalizzi, 223 Mich. 580, 194 N.W. 540; 21 Am.Jur.2d, Criminal Law, § 260. See also People v. Harris, 182 Misc. 787, 50 N.Y.2d 745, 763.

In Sirratt v. State, supra, defendant was charged with second degree murder. The trial commenced on January 18, 1965, and ended on January 20, 1965. Sometime in the afternoon on January 19 an altercation took place outside the courtroom. As a result, the court ordered the courtroom cleared of all spectators with the exception of those necessary to the trial. At the time of the exclusion 24 witnesses had already testified, and the exclusion only involved a part of defendant’s cross-examination, final arguments, and instructions to the jury. In ordering a new trial the Supreme Court stated at page 67 of 398 S. W.2d: “The state says, ‘The fact remains that most of the trial had been concluded before exclusion of spectators.’ * * * As stated in 21 Am.Jur.2d 299, Section 260: ‘The constitutional guaranty of public trial applies to the entire trial and may be violated by exclusion of the public from a part of the trial. The trial, for this purpose, consists of the proceedings for im-panelment of the jury, the opening statements of counsel, the presentation of evidence, the arguments, the instructions to the jury, and the return of the verdict.’ * * * we think reversible error was committed when the public was excluded on January 19.” (Emphasis added.)

In United States v. Sorrentino, supra, the defendant was convicted of conspiracy to violate the Mann Act and he appealed alleging he did not receive a public trial. The facts revealed that the trial court had excluded the public only during the selection of the jury. The court, in holding this was reversible error unless defendant waived his right to public trial, stated at page 722 of 175 F.2d: “From the certificate and testimony it appears that the exclusionary order of the trial judge was relaxed on the last three days of the trial but that it was enforced on the first day during which the .jury was selected. The Government argues that since the public was admitted on the three days during which testimony was taken the defendant actually had a public trial within the meaning of the Sixth Amendment. The constitutional guarantee, however, applies to the entire trial, including that portion devoted to the selection of the jury." (Emphasis added.)

People v. Teitelbaum, supra, dealt with a prosecution for conspiracy to commit grand theft, attempted grand theft, and the filing of a false and fraudulent insurance claim. Defendant was convicted and appealed alleging inter alia he was not accorded his right to public trial. The basis of this contention was that the public was not allowed to hear some 34 conferences between the judge and counsel for the parties out of the hearing of the jury. In finding no merit in this contention, the court found that the public heard everything the jury did and the 34 conferences were on matters which could not have been properly heard in the presence of the jury. In holding the defendant was not denied his right to public trial, the court stated at page 172 of 329 P.2d: “The trial of the action, so far as the term ‘public trial’ is concerned, consists in the proceedings for the impanelment of the juryj the opening statements of counsel, the presentation of evidence, the arguments, the instructions to the jury and the return of the verdict, and from none of these proceedings was the public excluded.” (Emphasis added.)

Finally, in People v. Micalizzi, supra, the court was also faced with the question of whether defendant had been denied his right to public trial. The facts reveal that before the court charged the jury, one of the court officers announced that those desiring to leave should do so as the doors of the courtroom were to be locked. Subsequent to this announcement they were locked and remained locked during the reading of the instructions to the jury. One of defendant’s attorneys as well as members of the public sought admittance but were denied. There was no apparent reason for the exclusion, there were many available vacant seats, and except by inference it was not made to appear that this course was taken by order of the court. In holding that defendant was denied his right to public trial, the appellate court, commenting on the exclusion during only the charge to the jury, stated at page 542 of 194 N.W.: “If a portion of the trial may be conducted behind barred doors, it may all be conducted behind barred doors. If one constitutional right may be violated with impunity, all may be, and the Bill of Rights becomes but a scrap of paper. The defendant has not had the public trial guaranteed him by the Constitution.”

A careful review of the record in the case at bar makes it readily apparent that no justifiable reason or reasons existed for the limitation or exclusion of the public during the reading of the instructions to the jury. The court itself so found. In explaining the exclusion the trial court said what it thought it told the bailiff was, “do not permit any spectators to leave the courtroom until after the jury had departed to go to the jury room,” but apparently it was misunderstood by the bailiff, who was positive that his instructions were to exclude the public after the recess. This he did.

Of course, defendant’s counsel did not object to the exclusion during the trial. It appears both counsel for the defendant and counsel for the State had their backs to the courtroom and were at the time unaware that the public was excluded. Objection by defendant was registered promptly upon being advised of this fact by the court, and his objection was timely.

We are satisfied the State failed to show any justifiable cause for this exclusion and must conclude that the public was improperly excluded during the reading of the instructions to the jury. Failure to admit the public at that time was error.

IV. It is contended by the State that, even if there was error in excluding the public during a portion of the trial, it was harmless error, and that it was incumbent upon the defendant to show he was prejudiced or harmed thereby. We cannot agree.

The State relies heavily upon the case of Reagan v. United States (9th Cir.), 202 F. 488, 44 L.R.A.,N.S., 583, to sustain its position. A careful review of the cases in this area reveals that the Reagan case has not been followed on the issue of prejudice, hut rather is repudiated by later cases including at least one case in that same circuit. See Tanksley v. United States (9th Cir.), supra, 145 F.2d 58, 59; Davis v. United States (8th Cir.), supra, 247 F. 394, 398; United States v. Kobli (3d Cir.), supra, 172 F.2d 919, 921.

The better-reasoned and presently-recognized rule by the overwhelming weight of authority is that a violation of defendant’s constitutional right to a public trial necessarily implies prejudice and more than that need not appear. Davis v. United States, supra; Tanksley v. United States, supra; United States v. Kobli, supra; Sirratt v. State, supra, 398 S.W.2d 63, 67; State v. Schmit, supra, 139 N.W.2d 800, 807; State v. Haskins, 38 N.J.Super. 250, 256, 118 A.2d 707, 710, and cases cited therein; State v. Keeler, 52 Mont. 205, 214, 156 P. 1080, 1082, L.R.A.1916E, 472; People v. Byrnes, supra, 190 P.2d 290, 294; People v. Jelke, supra, 308 N.Y. 56, 67, 123 N.E.2d 769, 775; State v. Osborne, 54 Or. 289, 103 P. 62; People v. Hartman, 103 Cal. 242, 37 P. 153. See also annotation, 156 A.L.R. 296; annotation 48 A.L.R.2d 1436, 1454; annotation 4 L.Ed.2d 2128; 2136; Quick, “A Public Criminal Trial”, 60 Dickinson L.Rev. 21; 49 Columbia L. Rev. 110; 41 N.Y.U.L.Rev. 1138.

In Davis v. United States, supra, near the conclusion of the trial which lasted several days, a night session of the court was held for final arguments. Prior to the final arguments the courtrrom had become overcrowded and the trial judge ordered it cleared of all spectators' because of the possibility of trouble, except relatives of the defendants, members of the bar, and newspaper reporters. A bailiff at the door had been instructed to admit none but those of the excepted class. Others not in this class sought admission but were denied. There were about 75 vacant seats after the exclusion. On appeal the trial court was reversed on the basis that its exclusionary order violated defendants’ right to a public trial. One of the contentions of the prosecution was that no affirmative showing of prejudice was made by the defendants. As to this the court stated at page 398 of 247 F.: “It is urged that no prejudice to defendants was shown. A violation of the constitutional right necessarily implies prejudice and more than that need not appear. Furthermore, it would be difficult, if not impossible, in such cases for a defendant to point to any definite, personal injury. To require him to do so would impair or destroy the safeguard.” (Emphasis added.)

In State v. Schmit, supra, a sodomy case, after the jury was sworn and the State had concluded its opening statement, on the State’s motion the trial judge excluded all witnesses and the general public, allowing only members of the bar, counsel for both sides, and the press, to remain because of the nature of the testimony. The appellate court, in holding that this exclusion violated defendant’s right to a public trial, stated at page 807 of 139 N.W.2d: “It follows that a new trial must be granted even though defendant has not shown any specific prejudice. A violation of fundamental rights implies prejudice. To require an affirmative showing, often difficult if not impossible, would impair or destroy the right, and thereby render the constitutional guarantee illusory. [Citations]” (Emphasis added.)

In Sirratt v. State, supra, on the question of whether an affirmative showing of prejudice was required, the court stated at page 67 of 398 S.W.2d: “As set forth in 21 Am.Jur.2d 304, Section 269: ‘When a defendant’s right to public trial has been violated over his timely objection, it has generally been held that he is not required to show that he suffered actual prejudice as a result. Some cases state that prejudice is presumed. Others say that when the constitutional right is violated, prejudice is conclusively presumed, or that such a violation necessarily implies prejudice and more than that need not appear.” (Emphasis added.)

State v. Haskins, supra, was a case involving charges of various sex offenses against the defendant. Before the trial began, because of the nature of the subject matter, the trial judge ordered the courtroom cleared of the general public. In holding this error the appellate court next dealt with the problem of prejudice and, concerning this problem, stated at page 710 of 118 A.2d: “But according to the State, the law requires the defendant to establish prejudice. We think not. If this were so, the guaranty of a public trial would be practically destroyed; for, as it has been said repeatedly, it would be difficult, if not impossible, for a defendant to make out prejudice. [Exhaustive citations.]”

Commenting upon whether it is necessary for a defendant claiming a denial of his right to public trial to affirmatively show prejudice, the following was said at page 1149 of 41 N.Y.U.L.Rev.: “A showing that an accused has been denied a public trial and that there has been no waiver of this right is generally sufficient to reverse his conviction. * * * it is the duty of the state to provide a trial at which certain minimal standards are respected and it should not relieve itself of this obligation by requiring the accused to show how he was harmed by its misconduct. Moreover, if actual prejudice were required, the public trial guaranty might become illusory for many defendants, since in most cases ‘it should be difficult, if not impossible * * * to point to any definite, personal injury.’ [Citing cases.] The protections accorded to the accused by a public trial are intangible and not easily measurable. A similar problem arises in right to counsel cases, where it is difficult for an appellate court to determine retrospectively what benefits might have been secured by the presence of counsel. [Citing authority.] In both situations, a showing that the proceeding was one in which the defendant was entitled to his constitutional guaranty and that the guaranty was denied should be sufficient to warrant reversal.”

Similarly, commenting on the question of prejudice, it was said at page 25 of 60 Dickinson L.Rev.: “* * * it may well be impossible to determine just in what way the accused was hurt. One doesn’t normally condone a violation of fundamental constitutional rights because the individual cannot show specific damage — the violation of the right itself constitutes the damage. To compel production of specific damage items in most cases in fact amounts to a total deprivation of the right. The correct view would seem to be that the accused should not be deprived of his right unless it is demonstrated that granting of the right will interfere with the administration of justice. This is so because the right itself is held to be productive of great benefits to the accused.”

Finally, at page 1454 of annotation in 48 A.L.R.2d it is stated: “Where a trial court has erred in excluding the public or a portion thereof from the courtroom during a criminal trial and the accused has made timely objection to such exclusion, it has generally been held that prejudice will be presumed without the burden being placed upon the accused to show actual prejudice.”

Some courts have even gone further by stating that prejudice in these cases will be conclusively presumed. People v. Murray, 89 Mich. 276, 50 N.W. 995, 14 L.R.A. 809; State v. Osborne, 54 Or. 289, 103 P. 62; People v. Micalizzi, supra, 223 Mich. 580, 194 N.W. 540. See also annotation, supra, 21 Am.Jur.2d, Criminal Law, § 269.

In People v. Micalizzi, supra, the court was confronted with the problem of whether the defendant, to sustain his allegation that he was denied his right tó public trial, must show prejudice. The court therein, quoting with approval from People v. Murray, supra, stated at page 541 of 194 N.W.: “* * * when he [defendant] shows that his constitutional right has been violated, the law conclusively presumes that he has suffered an actual injury. I go further, and say that the whole body politic suffers an actual injury when a constitutional safeguard, erected to protect the rights of citizens, has been violated in the person of the humblest or meanest citizen of the state.”

In any event, even if we adopt the implied prejudice view rather than the conclusive presumption view, we find the State here made no effort to overcome the inference of prejudice. It erroneously contends that was not its burden.

In the cases of State v. Wallace, Iowa, 152 N.W.2d 266, and State v. Jensen, 245 Iowa 1363, 1369, 66 N.W.2d 480, 483, cited by appellee, we find no constitutional issues involved and do not consider them in point. We are satisfied, where the provision of the constitution such as we have here is violated, the burden to show a lack of prejudice must be assumed by the State.

As pointed out in the many cases and authorities above set out, it would be difficult, if not impossible, in such situations to prove any definite personal injury or to prove a public injury had occurred, and to require a defendant in a criminal prosecution to do so would impair or destroy the very right that is sought to be safeguarded. In the light of these decisions we must hold the exclusion of the public during the reading of the instructions, even though done through mistake or misunderstanding, deprived defendant of his right to public trial and, in view of the State’s failure to overcome the implied prejudice resulting from the above, it must be held reversible error.

V. In light of our holding in the preceding division, little consideration need be given the other assignments. Appellant seems to concede there is statutory authority for the county attorney to subpoena witnesses under the provisions of section 769.-19 of the Code. This section provides:

“The clerk of the district court, on application of the county attorney, shall issue subpoenas for such witnesses as the county attorney may require, and in such subpoenas shall direct the appearance of said witnesses before the county attorney at a specified time and place; provided that no subpoena shall issue unless an order authorizing same shall have been first made by the court or a judge thereof. After preliminary information, indictment, or information the defendant shall be present and have the opportunity to cross-examine any witnesses whose appearance before the county attorney is required by this section.”

It is appellant’s contention that section 769.19 relates only to the investigatory efforts by the county attorney in advance of the filing of a county attorney’s true information and cannot be used for discovery, citing State v. McClain, 256 Iowa 175, 125 N.W.2d 764, 4 A.L.R.3d 134; State v. District Court, 253 Iowa 903, 114 N.W.2d 317, and 13 Iowa Law Review 264, 287. He argues the use of this power subsequent to indictment or information is, in effect, tantamount to making the rules of civil procedure relating to discovery applicable to criminal causes without statutory direction. We cannot agree. There is nothing before us to indicate the county attorney used the power granted to him under this statute to discover, but rather used it for its intended purpose, perpetuation of evidence, and, in the absence of a showing to the contrary by the party asserting the objection, the actions of the county attorney are presumed proper. See State v. Meyers, 256 Iowa 801, 803, 129 N.W.2d 88, 90, and citations.

VI. Due to errors previously considered, the case must be remanded for a new trial.

Reversed and remanded.

MOORE, RAWLINGS, BECKER and LeGRAND, JJ., concur. GARFIELD, C. J., and SNELL, STUART and MASON, JJ., dissent.