People v. Ramey

• Decision Date: 21 July 1992
• Docket Number: No. 1-89-1580,1-89-1580
• Citation: 237 Ill.App.3d 1001,606 N.E.2d 39
• Parties: , 179 Ill.Dec. 207 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jonathan RAMEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 39

606 N.E.2d 39

237 Ill.App.3d 1001, 179 Ill.Dec. 207

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jonathan RAMEY, Defendant-Appellant.

No. 1-89-1580.

Appellate Court of Illinois First District, Second Division.

July 21, 1992.

Rita A. Fry, Public Defender of Cook County, Chicago (James S. Jacobs, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Michael Latz, and Michael Falagario, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant Jonathan Ramey was convicted by a jury of aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14(a)(2)), and sentenced to twelve years in the custody of the Illinois Department of Corrections.

On appeal Ramey raises four issues, the first of which charges that he was denied his Sixth Amendment right to a public trial, requiring reversal and a remand for a new trial. During the trial, just prior to closing arguments, the trial judge, sua sponte, had the microphones of the public address system turned off in the courtroom. For security reasons there was a substantial glass barrier between the working part of the courtroom and that part where spectators sit; thus only through loud speakers installed in the section reserved for them could members of the public hear the proceedings. The entire record made at trial of this incident is as follows:

"THE COURT: We'll have to cut the mike off. There are other jurors out there. I don't want to taint the minds of the jury.

MS. FITZSIMMONS [defense co-counsel]: Can they sit in the back in the maximum cell?

MR. O' REILLY [defense co-counsel]: There's a violation to the constitution of the open law [sic].

THE COURT: I've discussed it, I have thought about it. It's unfortunate, but I cannot have other jurors who are going to be coming in on the next case to be tainted by hearing that evidence.

MS. FITZSIMMONS: Is there any way that they can go and come back?

THE COURT: If this is a violation, so be it. We'll cut off the mike because there are some people that have to be accommodated. Across the hall there's a trial, down the hall there's a trial.

MR. O'REILLY: We object. We feel that Mr. Ramey is being denied of a fair and open trial.

THE COURT: You have objected. Let's bring in the jury. Let's bring in the jury."

Because of the inadequacy of the record, we ordered the trial judge, the State's Attorney, and defendant's counsel to inform this court whether or not members of the public were actually cleared from the courtroom, and all three agree that at least members of defendant's family, besides the venirepersons, were excluded.

There is a presumption that all trials are to be open to the public. (Press-Enterprise Co. v. Superior Court of California (1984), 464 U.S. 501, 508, 104 S.Ct. 819, 823, 78 L.Ed.2d 629, 637; People v. Holveck (1990), 141 Ill.2d 84, 100, 152 Ill.Dec. 237, 565 N.E.2d 919.) While this presumption is not absolute, it need yield only to "an overriding interest that is specifically articulated." (People v. Morgan (1987), 152 Ill.App.3d 97, 102, 105 Ill.Dec. 303, 504 N.E.2d 172, appeal denied (1987) 115 Ill.2d 547, 110 Ill.Dec. 462, 511 N.E.2d 434, cert. denied Morgan v. Illinois (1987), 484 U.S. 866, 108 S.Ct. 189, 98 L.Ed.2d 141.) In United States v. Griffin (5th Cir.1976), 527 F.2d 434, the court found that an impermissible closure implicitly occurred where the public address system in the courtroom was defective. However, because defendant did not object to the proceedings or request a continuance of the trial until the speaker system could be corrected, the court rejected his contention that he was denied his constitutional right to a public trial. In People v. Venters (1987), 124 A.D.2d 57, 511 N.Y.S.2d 283, the court held that an improper closure had occurred where the courtroom doors were locked during the charge to the jury.

Therefore, it cannot be successfully maintained that in the case at bar a closure, qua closure, did not occur, even though the microphones were turned off only during closing arguments. The issue, then, becomes one of whether the trial court abused its discretion (United States ex. rel. Latimore v. Sielaff (7th Cir.1977), 561 F.2d 691, 696, cert. denied Latimore v. Sielaff (1978), 434 U.S. 1076, 98 S.Ct. 1266, 55 L.Ed.2d 782; People v. Seyler (1986), 144 Ill.App.3d 250, 252, 98 Ill.Dec. 340, 494 N.E.2d 267) in shutting off the auditory part of the proceedings to the public portion of the courtroom during closing arguments.

In Waller v. Georgia (1984), 467 U.S. 39, 48, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31, 39, the United States Supreme Court adopted the four-part test of Press-Enterprise, which establishes when the "presumption of openness may be overcome": " an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding and it must make findings adequate to support the closure." Moreover, the doctrine of harmless error does not apply here. (Waller, 467 U.S. at 49, n. 9, 104 S.Ct. at 2217, n. 9, 81 L.Ed.2d at 40, n. 9.) More recently, albeit in dicta, the Supreme court was unanimous in declaring that violations of public trial rights are never subject to the harmless error analysis. Arizona v. Fulminante (1991), 499 U.S. 279, ----, 111 S.Ct. 1246, 1256-57, 113 L.Ed.2d 302, 321-331.

We hold that the trial court here abused its discretion in failing to meet the elements set forth in Press-Enterprise, for, assuming, without deciding, that an overriding interest existed, namely, the tainting of a venire from which a jury would be picked to hear the next trial, the closure was broader than necessary to protect this interest. As the record now shows, not only the venirepersons, but also the members of defendant's family were excluded from the courtroom and were thus prevented from hearing closing arguments. Accordingly, we conclude that on the facts of this case, the "presumption of openness" as set forth in Press-Enterprise was not overcome, and defendant was improperly denied his constitutional right to a public trial.

We also hold the proper remedy in this instance to be the granting of a new trial. As we have previously noted, Waller declares that "the defendant should not be required to prove specific prejudice in order to obtain relief for a violation of the public-trial guarantee." (Waller, 467 U.S. at 49, 104 S.Ct. at 2217, 81 L.Ed.2d at 40.) The remedy under Waller is required to be one which is "appropriate to the violation." (Waller, 467 U.S. at 50, 104 S.Ct. at 2217, 81 L.Ed.2d at 41.) We find that even though the instant violation came during closing arguments, it is impossible to separate that part from the rest of the trial--the Sixth Amendment protects all of its component parts, and not simply the right to publicly present evidence and witnesses. (See Waller, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (which involved a suppression hearing), Press-Enterprise, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629, (closure during voir dire ).) If the Sixth Amendment is to have any vitality, we cannot selectively decree which portions of a trial are insignificant, and are therefore eligible for closure. Thus, the remedy in this case is perforce a new trial.

Inasmuch as Ramey's three remaining issues may re-emerge in the retrial of this case, we shall treat with them as well.

In the first of these issues, Ramey maintains that he was denied his right to present a defense. He makes a two-pronged argument, in the first of which he contends that he was prejudiced when the trial court changed its initial ruling that it would allow the medical examiner's testimony regarding D.S.'s (the victim's) drug abuse. Although a judge's alleged change of mind is not bound to reoccur in a new trial, a discussion of the first part of this issue is necessary to an understanding of the second part of the argument Ramey makes.

Prior to trial, the State filed a motion in limine to preclude Ramey from introducing evidence regarding the victim's cause of death. On December 11, 1988, some five months after she was alleged to have been assaulted, the victim died of causes unrelated to the offense with which Ramey was charged. At the hearing on the motion, Ramey claimed that if the medical examiner, Dr. Kalelkar, were called to testify, she would state that (1) as a result of her physical examination of the body, there was evidence that indicated long-standing alcohol and drug abuse. Specifically, the evidence consisted of enlarged lymph glands which would have supported a finding that the victim was a drug abuser. The doctor would also testify, according to Ramey, that (2) the medical examiner's investigator interviewed members of the victim's family who said that the victim had been a "junkie" for several years, and (3) in Dr. Kalelkar's opinion, the victim died as a result of alcohol, cocaine and opiate intoxication.

In ruling on the motion the court made the following holdings:

"THE COURT: I would allow the testimony regarding the [doctor's] medical finding which supports that [the victim] was in fact a drug abuser during a several year period.

* * * * * *

I am not going to allow [the doctor] to say my investigator talked to such and such and he said that she said that she was a drug abuser. That's not necessary for the doctor's opinion to come in.

* * * * * *

I will allow as I have indicated the limited indication by the doctor that she did in fact perform a postmortem examination of the victim. I will not allow testimony as to the cause of death of the victim. But during the course of that postmortem examination, her findings along with her collection of data indicated that the victim was a long time drug abuser."

Accordingly, in opening...