Marshall v. State

Decision Date27 May 1970
Docket NumberNo. 769,769
Citation254 Ind. 156,258 N.E.2d 628
PartiesCarl Lynn MARSHALL, Appellant, v. STATE of Indiana, Appellee. S 156.
CourtIndiana Supreme Court

John M. Lyons, Valparaiso, for appellant.

Theodore L. Sendak, Atty. Gen., Aaron T. Jahr, Deputy Atty. Gen., for appellee.

HUNTER, Chief Justice.

Appellant was charged by affidavit with the crime of rape. Upon a plea of not guilty, trial was had before a jury which returned a verdict of guilty. Thereafter, appellant was sentenced to the custody and control of the Superintendent of the Indiana Reformatory at Pendleton for a period of not less than two (2) nor more than twenty-one (21) years.

Two questions are raised on this appeal by the trial court's overruling of appellant's motion for new trial, the first concerning the constitutional guarantee to a public trial and the second involving the question of newly discovered evidence. We shall deal first with defendant's right to a public trial.

The Indiana Constitution at Art. 1, § 13 provides that:

'In all criminal prosecutions, the accused shall have the right to a public trial, * * *'

The federal counterpart to this state guarantee is found in the Sixth Amendment to the United States Constitution. Unlike many of the rights conferred by the first eight amendments to the United States Constitution, it would appear that the Sixth Amendment right to a public trial has not been specifically incorporated under the due process clause of the Fourteenth Amendment. This statement is made notwithstanding the case of Duncan v. Louisiana (1968), 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 which purports to list the rights contained in the first eight amendments which have been held to be protected against state action under the Fourteenth. Although the right to a public trial was included in that listing, the case relied on, Re Oliver (1948), 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682, merely held that a deprivation of the right might be violative of due process; the Sixth Amendment per se was not the basis of the decision nor was there any indication in the opinion that the court intended to specifically incorporate the amendment as it has subsequently done with regard to other rights contained in the first eight amendments.

We make note of this 'accidental incorporation' for the purpose of establishing that this court is not, as of yet, bound by the United States Supreme Court's interpretation of the right except insofar as it might be said that there was a deprivation of due process under the Fourteenth Amendment.

The importance of the right and the reasons for its jealous preservation were noted by Justice Black in the case of Re Oliver, supra, wherein it was said:

'The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power. One need not wholly agree with a statement made on the subject by Jeremy Bentham over 120 years ago to appreciate the fear of secret trials felt by him, his predecessors and contemporaries. Bentham said: '* * * suppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge,--that judge will be at once indolent and arbitrary: how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance." 333 U.S. at 268--271, 68 S.Ct. at 505--506, 92 L.Ed. at 691--693.

Although opinion is unanimous that the right to a public trial is basic to this country's criminal jurisprudence, there is less agreement as to exactly what constitutes such a 'public' trial. Various questions have been raised over the years in regard to the nature of the right and the extent to which it must be preserved in special circumstances. It is generally conceded that portions of the general public may, in certain instances, be excluded but courts normally have demonstrated a reluctance to do so unless it be required for the proper administration of justice. See annotations at 48 A.L.R.2d 1436; 4 L.Ed.2d 2128; also 21 Am.Jur.2d, Criminal Law § 257 et seq. (1965).

In the trial for a sex offense, as is here the case, there has been some disagreement as to the extent the 'public' may be excluded. Although it might be said that there is no general rule in this regard, many courts have held that, because of the nature of the offense and the type of evidence which will be elicited, youthful spectators may be excluded. See numerous cases cited at 48 A.L.R.2d 1436; 4 L.Ed.2d 2128. Even this approach may be carried too far, however, as noted by the Alabama court in the case of Reynolds v. State (1961), 41 Ala.App. 202, 126 So.2d 497.

In the instant case the judge ordered all members of the 'public' except the press excluded. Although there is a substantial question in this court's mind as to whether or not such action constituted a deprivation of the right to a public trial, especially where none of the appellant's relatives or friends were apparently admitted, we deem it unnecessary to decide that question. It is clear from the record that the appellant in this case waived the right. The record shows the following discussion between the trial court and attorneys:

'Comes now the state and makes motion to exclude everyone from the court room and for separation of witnesses, which said oral motion was in the words and figures as follows, to-wit:


For the record, I did so in chambers, but again I move at this time that the public be excluded from the trial in that the victim, our evidence will show, is 14 years of age and that she will be submitted to imtimidation, (sic) harassment and undue embarrassment if the public is permitted to be in attendance at this hearing. We ask that the press, of course, not be excluded and that this trial be limited in it's (sic) observation to members of the press, the jury, the court officers and the defendant and there will also be a motion for separation of witnesses, not only from this courtroom, but from each other. And, we so move at this time.


May it please the court. My understanding of the Constitution is that a defendant is entitled to a trial which, among other things, is to be public. The defendant would like to ask the court to protect all of his constitutional rights.


In the light of the age of the prosecuting witness and the possibility of there being untoward results from a public, an open public trial in this case, not excluding the press, the court at this time sustains the motion of the State that all persons other than members of the press, members of the court attendants be excluded from this courtroom during the taking of evidence and during the voir dire. The court also sustains the Motion for Separation of Witnesses not only in the courtroom, but also elsewhere during the time that this trial takes place.


May it please the court, may I ask that the court's ruling not exclude from the courtroom assistants of mine. I have specifically a law clerk who is present who I may require and a detective.


We will amend the order to permit the persons that Mr. Lyons has mentioned.


Also the State would make the same motion as regards assistants of its selection.




Thank you, Your Honor.


Thank you.'

Several comments are appropriate in regard to this exchange. First of all, no objection was made to the court's ruling. Immediately following the state's motion, attorney for the appellant indicated that he desired to have all of his client's constitutional rights protected. Following these remarks, the trial judge entered his order as above set out. Defense counsel made no objection to this order, except to request that certain specified individuals be allowed to remain, which request was promptly granted. In view of the fact that appellant made no further comment or objection, it would seem reasonable to conclude that such silence constituted a waiver insofar as the right to the presence of other individuals was concerned. Although we do not deem this factor conclusive, when coupled with the following indicia a waiver is apparent. That the right may be waived has already been established by this court. Irwin v. State (1942), 220 Ind. 228, 41 N.W.2d 809.

Secondly, the tenor of the remarks above set out clearly indicates appellant's satisfaction with the ruling. Coupled with the fact that no objection was made following the court's order is the fact that he requested that the court only except two...

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