State v. Hanna

• Decision Date: 17 February 1989
• Docket Number: No. 17238,17238
• Citation: 378 S.E.2d 640,180 W.Va. 598
• Court: West Virginia Supreme Court
• Parties: , 17 Media L. Rep. 1411 STATE of West Virginia v. Mark Francis HANNA.

Page 640

378 S.E.2d 640

180 W.Va. 598, 17 Media L. Rep. 1411

STATE of West Virginia v. Mark Francis HANNA.

No. 17238.

Supreme Court of Appeals of West Virginia.

Feb. 17, 1989.

Syllabus by the Court

1. "Article III, Section 14 of the West Virginia Constitution, when read in light of our open courts provision in Article III, Section 17, provides a clear basis for finding an independent right in the public and press to attend criminal proceedings. However, there are limits on access by the public and press to a criminal trial, since in this area a long-established constitutional right to a fair trial is accorded the defendant." Syllabus Point 1, State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980).

2. A criminal conviction will not ordinarily be reversed on the ground that the trial court abused its discretion in allowing the use of cameras or sound recording or broadcasting equipment at trial absent a showing that the defendant's right to a fair and impartial trial, as required under the Due Process Clause of both the federal and West Virginia Constitutions, was adversely affected thereby.

3. "In order to secure a conviction the State must prove each and every element of the crime charged beyond a reasonable doubt." Syllabus Point 3, State v. Knight, 168 W.Va. 615, 285 S.E.2d 401 (1981).

4. Where force or compulsion is an element of the offense of kidnapping under W.Va.Code, 61-2-14a, or abduction with intent to defile under W.Va.Code, 61-2-14, the State need not show that the accused used actual physical force or express threats of violence to accomplish the crime. It is sufficient if the victim submits because of a reasonable fear of harm or injury from the accused.

5. Where an offense consists of an act of the accused combined with a particular intent, such specific intent is an essential element of the offense which the State must prove beyond a reasonable doubt.

6. A sexual purpose or motivation is an essential element of the offense of abduction with intent to defile contained in W.Va.Code, 61-2-14.

Orville L. Hardman, Parkersburg, Mark Francis Hanna.

Harry G. Deitzler, Pros. Atty., Parkersburg, for State.

MILLER, Justice:

This is an appeal by the defendant, Mark Francis Hanna, from his conviction in the Circuit Court of Wood County of the crimes of kidnapping, abduction with the intent to defile, and burglary. The defendant contends that the trial judge erred in allowing cameras in the courtroom during trial and in allowing the State to introduce evidence of uncharged crimes. He also challenges the sufficiency of the evidence for conviction of the crime of abduction with intent to defile. We find error on this latter ground, and we remand for correction of sentence.

The charges against the defendant arose out of the disappearance of his girlfriend, twenty-year-old Leslie Marty, on July 30, 1983. The evidence most favorable to the State ¹ showed that the defendant and Leslie had lived together intermittently for about one year. The relationship began to deteriorate after about six months, however, resulting in frequent arguments and episodes of domestic violence. In June of 1983, Leslie began dating Dwight Norman and told friends that she intended to break off her relationship with the defendant.

The defendant spent the night of July 29, 1983, with Leslie. The following morning they argued over her plans to go waterskiing with Norman in the afternoon. Leslie had arranged to meet Norman at around noon, but did not keep the appointment. Instead, at approximately 1:00 p.m., she arrived at Norman's Wood County home with the defendant, apparently in the midst of an argument. Before leaving Leslie there, the defendant introduced himself to Norman and stated that Leslie was "pissed off" because he had "kidnapped" her. Leslie said nothing, but appeared upset and later told Norman that she never wanted to see the defendant again.

Leslie and Norman returned to Leslie's house at about 6:00 p.m. The defendant subsequently arrived and presented Leslie with flowers and a card of apology. ² In the course of the conversation, Leslie was heard to tell the defendant to "stay out of my life." She then left with Norman and spent the evening at his home.

At approximately 9:00 p.m., the defendant kicked in the locked front door of Norman's house and demanded to speak to Leslie. During the ensuing argument, the defendant stated that he "had a contract out on" Leslie and Norman and that they were "dead meat." Leslie retreated to a bedroom and locked the door. The defendant then pulled a pistol from his pocket, pointed it at Norman, and told him to get Leslie to come out into the living room. Norman explained the situation to Leslie through the locked door and told her she had better come out. Leslie opened the bedroom door and, without speaking, left with the defendant, wearing only a bathing suit and leaving behind the rest of her belongings. Leslie's family and friends have not seen or heard from her since. Extensive efforts by the police to locate her have been unsuccessful.

In October of 1983, the defendant was indicted in Wood County on charges of burglary, kidnapping, and abduction with intent to defile. A jury trial in the Circuit Court of Wood County in March of 1985 resulted in verdicts of guilty. By order dated July 12, 1985, the circuit court sentenced the defendant to a term of not less than one nor more than fifteen years imprisonment upon the burglary conviction, a consecutive term of life imprisonment with a recommendation of mercy upon the kidnapping conviction, and a concurrent term of not less than three nor more than ten years imprisonment upon the abduction conviction.

I.

The defendant contends that the trial court erred in overruling his objection to the use of still photographic cameras in the courtroom during trial. The defendant's counsel twice objected at trial that the noise made by the camera shutters was distracting and asked the court to prohibit photography during trial. The trial court overruled these objections.

We have promulgated administrative rules governing the presence and use of cameras and electronic media in the courtrooms of this State. Among other things, these guidelines place restrictions on the sound that can be produced by still cameras. Objections to media coverage of the proceedings, or to any portion thereof, are addressed to the sound discretion of the trial judge, who may exclude recording or broadcasting equipment from the proceedings or terminate coverage if, at any time, he determines that it will impede justice. ³ Except as permitted by these rules, "the taking of photographs in the courtroom during the progress of judicial proceedings or radio broadcasting of judicial proceedings from the courtroom shall not be permitted by the court." Rule 53, West Virginia Rules of Criminal Procedure.

It is generally accepted that the presence or use of cameras or sound recording or broadcasting equipment in the courtroom during a criminal trial is not inherently inconsistent with the defendant's right to a fair and impartial trial. Chandler v. Florida, 449 U.S. 560, 101 S.Ct. 802, 66 L.Ed.2d 740 (1981); People v. Spring, 153 Cal.App.3d 1199, 200 Cal.Rptr. 849 (1984); People v. Wieghard, 727 P.2d 383 (Colo.App.1986); Petition of Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979); State v. Newsome, 177 N.J.Super. 221, 426 A.2d 68 (1980); State ex rel. Grinnell Communications Corp. v. Love, 62 Ohio St.2d 399, 16 Ohio Op.3d 434, 406 N.E.2d 809 (1980); State v. Wixon, 30 Wash.App. 63, 631 P.2d 1033 (1981). However, the media does not have an absolute constitutional right to photograph, record, or broadcast judicial proceedings if such activity would impose a serious threat to the defendant's constitutional right to a fair trial. Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); United States v. Edwards, 785 F.2d 1293 (5th Cir.1986); United States v. Hastings, 695 F.2d 1278 (11th Cir.), cert. denied, Post-Newsweek Stations, Florida, Inc. v. United States, 461 U.S. 931, 103 S.Ct. 2094, 77 L.Ed.2d 303 (1983); KARK-TV Channel 4, Inc. v. Lofton, 277 Ark. 228, 640 S.W.2d 798 (1982); Petition of Post-Newsweek Stations, Florida, Inc., supra; In re Extension of Media Coverage, 472 A.2d 1232 (R.I.1984).

In State ex rel. Herald Mail Co. v. Hamilton, 165 W.Va. 103, 267 S.E.2d 544 (1980), decided by this Court under the West Virginia Constitution before the United States Supreme Court had decided Chandler, ⁴ we addressed a related issue. In Syllabus Points 1 and 2 of Herald Mail Co., we stated:

"1. Article III, Section 14 of the West Virginia Constitution, when read in light of our open courts provision in Article III, Section 17, provides a clear basis for finding an independent right in the public and press to attend criminal proceedings. However, there are limits on access by the public and press to a criminal trial, since in this area a long-established constitutional right to a fair trial is accorded the defendant."

"2. On a closure motion, the ultimate question is whether, if the pretrial hearing is left open, there is a clear likelihood that there will be irreparable damage to the defendant's right to a fair trial. Factors bearing on the issue of irreparable damage include the extent of prior hostile publicity, the probability that the issues involved at the pretrial hearing will further aggravate the adverse publicity, and whether traditional judicial techniques to insulate the jury from the consequences of such publicity will ameliorate the problem."

See also State v. Franklin, 174 W.Va. 469, 327 S.E.2d 449 (1985); Daily Gazette Co., Inc. v. Committee on Legal Ethics, 174 W.Va. 359, 326 S.E.2d 705 (1984); State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

These considerations apply to the determination of whether and under what circumstances to allow cameras and electronic ...