People v. Jones

• Decision Date: 28 September 1981
• Citation: 442 N.Y.S.2d 999,82 A.D.2d 674
• Parties: , 7 Media L. Rep. 2096 The PEOPLE, etc., Respondent, v. Barron JONES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 999

442 N.Y.S.2d 999

82 A.D.2d 674, 7 Media L. Rep. 2096

The PEOPLE, etc., Respondent, v. Barron JONES, Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 28, 1981.

William E. Hellerstein, New York City (Philip L. Weinstein, New York City, of counsel), for appellant.

Eugene Gold, Dist. Atty., Brooklyn (Michael L. Boxer, Brooklyn, of counsel), for respondent.

Before DAMIANI, J. P., and TITONE, GIBBONS and WEINSTEIN, JJ.

TITONE, Justice.

After a jury trial, the defendant was convicted of attempted rape in the first degree and sexual abuse in the first degree. The principal issue raised on appeal is whether the Trial Judge violated the defendant's right to a public trial when he cleared the courtroom of all spectators, including the defendant's family, during a portion of the alleged victim's testimony.

The complaining witness testified at the trial that on December 6, 1977 at about 8:30 A.M. she left her Manhattan apartment to go to work in East New York. She traveled by subway to the Broadway and East New York station, where she disembarked to change trains. She boarded the next to last car of a CC train and sat down. Initially she did not see anyone else in the car. However, shortly after the doors closed, she felt someone's presence, looked up, and saw a man identified as the defendant standing very close to her. He leaned over her. When she attempted to push him away, defendant grabbed her arm, yanked her out of her seat and started dragging her into the last car of the train. She began to scream, at which point defendant threatened to kill her if she did not quiet down.

Before commencing her description of what occurred next, the witness asked permission to make a request. Following an off-the-record discussion, the prosecutor requested, on-the-record, that the courtroom be cleared. The witness was at the point in her testimony where it was necessary to describe the explicit details of the alleged rape. The prosecutor indicated that up to that point the witness had appeared very upset and had cried several times. The prosecutor stated that the testimony was very embarrassing to the witness, and that without the exclusion of spectators he was not sure if the witness would be capable of completing her story in a coherent fashion.

Defense counsel did not disagree with the prosecutor's description of the difficulties the witness was having. He indicated that he had no objection to the exclusion of spectators, excepting defendant's family. In regard to the latter, defense counsel strenuously maintained that defendant was entitled to the presence and support of members of his family throughout the trial.

The court ruled that all spectators, including defendant's family but excluding court personnel and persons "connected with this case", would be excluded from the courtroom during the witness' description of the incident itself. The courtroom would be reopened to the public for the remainder of the trial.

Upon returning to the stand, the witness testified that after defendant dragged her into the last car, he threw her face down onto the floor of the subway car. Defendant ripped off her pants and proceeded to engage in sexual conduct. Without going into the actual testimony about the sexual assault, suffice it to say that it was necessarily explicit in detail.

When defendant was finished he walked back into the other car. A few seconds after his departure the witness sat up; she was crying and in a state of confusion, wondering what she should do. Her slacks were on the floor, her panties around her ankles. At that point, defendant, escorted by a transit police officer, Officer Byrne, entered the car. The complaining witness screamed that she had been raped, and defendant was arrested.

The prosecution called several more witnesses, including the transit officer who arrested the defendant. Expert testimony was also presented.

Defendant testified that the complaining witness approached him on the train, and propositioned him. The two of them walked into the last car of the train, and the complaining witness pulled down her slacks and got on her hands and knees. Defendant then got down on his knees, and while getting himself ready, prematurely ejaculated. The woman was moaning, and blacked out. When she failed to respond to his attempts to wake her up, defendant got up and walked to the next car, where he met Transit Officer Byrne.

DETERMINATION ON APPEAL

The right to a public trial is deeply rooted in the common law (People v. Jelke, 308 N.Y. 56, 61-64, 123 N.E.2d 769; Matter of Oliver, 333 U.S. 257, 266-271, 68 S.Ct. 499, 504-506, 92 L.Ed. 682). In New York that right has been guaranteed in statutory law since 1829 (People v. Jelke, supra, 308 N.Y. p. 62, 123 N.E.2d 769; see Civil Rights Law, § 12; Judiciary Law, § 4). It has a constitutional basis in the Sixth Amendment, made applicable to the states through the due process clause of the Fourteenth Amendment (Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491; Matter of Oliver, supra; People v. Jones, 47 N.Y.2d 409, 411, n.1, 418 N.Y.S.2d 359, 391 N.E.2d 1335).

Commentators and jurists have pointed out several kinds of interests supporting the policy of keeping trials open. Primary, of course, is the accused's interest in insuring that he is not persecuted by some sort of inquisition or star chamber (People v. Jelke, supra, 308 N.Y. p. 62, 123 N.E.2d 769). The accused's interest is also the public's interest: "that the public may see he is fairly dealt with and not unjustly condemned" (1 Cooley, Constitutional Limitations p. 647).

Another consideration supporting open trials is that generally it is assumed that a public presence plays "an important role in assuring 'testimonial trustworthiness', 'by inducing the fear of exposure' of testimony falsely given" ( People v. Jelke, supra, pp. 62-63, 123 N.E.2d 769; citing 6 Wigmore, Evidence § 1834, p. 332, as well as other authorities). Similarly, public scrutiny serves to impress upon the judge, court officers, and the jury that theirs is a serious task which must be performed responsibly. "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" (Matter of Oliver, 333 U.S. 257, 270, 68 S.Ct. 499, 506, 92 L.Ed. 682, supra).

It has also been pointed out that because a trial is public, notice of the proceedings may come to the attention of possible witnesses previously unknown to the parties (People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769, supra). Finally, the public has an interest in knowing the substance of legal controversies, of learning about their government and how the law works in a democratic society, and in acquiring confidence in its judicial remedies ( Matter of Oliver, supra, p. 270, n.24, 68 S.Ct. at 506, n.24).

While deeply embedded in our law, and supported by strong policy considerations, the right to a public trial is not without limitation. "right to a public trial must be balanced against other interests which might justify the closing of the courtroom to the public" (United States ex rel. Lloyd v. Vincent, 520 F.2d 1272, 1274, cert. den. 423 U.S. 937, 96 S.Ct. 296, 46 L.Ed.2d 269). However, because the right to a public trial must be carefully guarded, the discretionary power to exclude the public must be "sparingly exercised and then, only when unusual circumstances necessitate it" (People v. Hinton, 31 N.Y.2d 71, 76, 334 N.Y.S.2d 885, 286 N.E.2d 265). The judicial power to exclude the public is delimited by carefully charted principles (People v. Jones, 47 N.Y.2d 409, 413, 418 N.Y.S.2d 359, 391 N.E.2d 1335, supra). There must be an evaluation and balancing of several factors: the defendant's rights and interests; the public interests described above; the need to preserve order and decorum in the courtroom; the protection of the parties and witnesses involved; the promotion of present and future law enforcement endeavors; and the need to encourage full and truthful testimony (People v. Jones, supra, 47 N.Y.2d p. 413, 418 N.Y.S.2d 359, 391 N.E.2d 1335; People v. Hinton, supra, 31 N.Y.2d p. 76, 334 N.Y.S.2d 885, 286 N.E.2d 265). Accordingly, it has been recognized that spectators can be excluded throughout a trial where they are unruly and disruptive, or to prevent overcrowding, or to insure healthy and sanitary conditions (United States ex rel. Orlando v. Fay, 350 F.2d 967, cert. den. 384 U.S. 1008, 86 S.Ct. 1961, 16 L.Ed.2d 1021; People v. Jelke, 308 N.Y. 56, 63, 123 N.E.2d 769, supra). Temporary exclusion has been allowed where necessary to protect juvenile parties or witnesses, or to facilitate the testimony of an intimidated or emotionally disturbed witness (People v. Jelke, supra, p. 63, 123 N.E.2d 769; People v. Smallwood, 31 N.Y.2d 750, 338 N.Y.S.2d 433, 290 N.E.2d 435; People v. Hagan, 24 N.Y.2d 395, 300 N.Y.S.2d 835, 248 N.E.2d 588; Geise v. United States, 262 F.2d 151, cert. den. 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80; United States ex rel. Bruno v. Herold, 408 F.2d 125, cert. den. 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141). Temporary exclusion is also proper during the testimony of undercover police agents where their appearance in court would, if publicly known, impair present or future police investigations and endanger their lives (People v. Hinton, 31 N.Y.2d 71, 334 N.Y.S.2d 885, 286 N.E.2d 265, supra).

We are of the opinion that the Trial Judge did not abuse his discretion by excluding the public during the alleged victim's testimony. Although the issue is essentially a constitutional one, we are mindful that the Legislature has provided for the discretionary exclusion of the public in rape cases (Judiciary Law, § 4). While the law should not patronize women, it cannot be blind to the very real problems that they may face in describing the lurid details of an alleged sexual assault.

The Supreme...