State v. Hartzog

Decision Date29 October 1981
Docket NumberNo. 47265-3,47265-3
Citation635 P.2d 694,96 Wn.2d 383
PartiesThe STATE of Washington, Respondent, v. Herman Donald HARTZOG, Petitioner.
CourtWashington Supreme Court

Institutional Legal Services, Wayne Lieb, Seattle, Craig J. Davenport, Walla Walla, for petitioner.

Arthur R. Eggers, Walla Walla County Prosecutor, Walla Walla, for respondent.

WILLIAMS, Justice.

Petitioner Hartzog challenges the constitutionality of a security order applicable to all defendants and witnesses who are penitentiary inmates and who come before the Walla Walla Superior Court. He also seeks reversal of that portion of a Court of Appeals decision upholding his conviction for possession of a controlled substance. State v. Hartzog, 26 Wash.App. 576, 615 P.2d 480 (1980).

At the time of his trial, petitioner was an inmate of the Washington State Penitentiary at Walla Walla. On May 12, 1977, 7 months prior to petitioner's trial, the Walla Walla Superior Court issued a general courtroom security order requiring certain security measures be taken with all penitentiary inmates appearing before the court. See Appendix I. Petitioner challenges the security order, specifically those portions which require rectal probe searches prior to entry into the courtroom; physical restraints during trial; and limitations on consultation during trial between defendants and counsel. He also claims that several searches of witnesses, jurors and the courtroom violated his right to a fair and impartial trial, because they were made in the jury's presence.

Background of the courtroom security order. As the Court of Appeals explained, the penitentiary at Walla Walla is a maximum security prison which ordinarily houses convicted felons considered high risks to institutional security. Many of the prisoners are repeat offenders serving longer sentences for more serious crimes than inmates of other penal institutions in the state. The Walla Walla County Superior Court has jurisdiction over those cases which arise from felonies committed within the penitentiary.

In late March and early April of 1977, inmates Gilcrist and Agtuca were tried by jury in Walla Walla on a charge of first degree assault stemming from an incident in which another inmate was stabbed 31 times. The misconduct at the trial of the defendants and their inmate witnesses is recounted in State v. Gilcrist, 91 Wash.2d 603, 590 P.2d 809 (1979), and in the security order at issue in this case. One of the incidents involved a "Bic" lighter left in a defense conference room. A corrections officer conducted a search of the room for contraband and found the lighter on the floor. When he attempted to light the lighter, it exploded, and the officer lost three fingers on his right hand. The prison administration later informed the trial court that an inmate witness had made a bomb out of the lighter and had it on his person the day he testified. Finding no opportunity to use it, he passed it to a defendant who left it on the conference room floor the next day. The superintendent also testified that the bomb had been brought into the courtroom in a "keister (cache)", a metal device which can be inserted in the rectum and used for carrying both contraband and weapons.

On May 12, 1977, Judge Tuttle of the Walla Walla Superior Court issued a blanket security order as a result of the court's experience in Gilcrist and other cases. The stated reasons for the blanket order were the court's belief that there is no reliable way to distinguish violent from nonviolent prisoners and that all inmates are potentially dangerous because of the nature of the prison setting itself. The order provides, in part:

1. Inmates will be searched at the prison before departure. They will be brought to the Walla Walla County Jail where they will be skin and probe searched under the supervision of the sheriff's personnel. As needed, they will be brought to the courtroom in the joint custody of the sheriff's personnel and penitentiary custodial staff.

2. Inmates will remain in arm and leg restraints.

3. Defendants will not sit at the counsel table. Security officers will remain sufficiently close to defendants to control their actions. Confidential matters will be discussed with counsel either in the courthouse hallway or the County Jail, depending on the duration of the conference.

Report of Proceedings, at 52-53; see Appendix I.

Some months after the blanket security order was issued, petitioner, a Walla Walla inmate, was charged with possession of a controlled substance. Petitioner had been convicted in 1972 of two counts of armed robbery and burglary in the second degree. In 1969 he had been convicted of escape from a reformatory honor camp. His penitentiary record shows that he has incurred one or more infractions of prison rules every year of his incarceration, dealing primarily with drugs or drug paraphernalia. Shortly after his incarceration, a routine cell check disclosed 11 rounds of .22 caliber ammunition and a knife. In 1976 he was found in possession of a diagram of a handgun. Many of these infractions, including the one in which the ammunition and knife were found, were "cell tags": in multi-occupant cells, possession of contraband and weapons found in a cell are attributed to all occupants. Petitioner's record of convictions and prison infractions was set out by the Court of Appeals in an appendix. Hartzog, 26 Wash.App. at 598, 615 P.2d 480.

On October 27, 1977, petitioner was arraigned in Superior Court on the controlled substance charge. In an affidavit dated January 18, 1978, petitioner stated that prior to leaving the penitentiary for his court appearance, he had been required to surrender his clothing and put on a jumpsuit. He was then shackled and transported approximately 3 miles to a small room that he believed was in the county courthouse. A sheriff ordered him to take off his jumpsuit. He was told to bend over a radiator, and a prison hospital staff member used his finger to probe defendant's rectum. Petitioner was then allowed to dress and was escorted to court.

After he returned from his arraignment, Hartzog stated that the member of the hospital staff who conducted the probe search ridiculed him in front of 4 or 5 other inmates about the probe search. 1 Petitioner alleged that he was embarrassed and humiliated by this statement. Petitioner also affirmed that he would not appear personally in court to testify on his own behalf at trial if he were ordered to submit again to a rectal probe search before being allowed to appear in court. 2

On January 19, 1978, the court denied petitioner's motion to set aside the courtroom security order. Petitioner then sought and obtained in Federal District Court a temporary restraining order which enjoined the Walla Walla County Superior Court from conducting body cavity inspections pursuant to the blanket security order on petitioner, or on any inmate witness that might be called in his criminal trial, except for those searches conducted upon an individualized showing of probable cause.

On January 25, 1978, the Walla Walla Superior Court held a probable cause hearing. The court considered petitioner's criminal and institutional records, which are summarized above, and those of his two witnesses, Manuel Rosalez and Lanny Sergeant. The prosecutor also submitted, for illustrative purposes only, a 4-inch by 11/16-inch machined aluminum "keister cache" which can be inserted in the rectum and used both for carrying contraband or as a weapon. 3 Exhibit 4. There was no allegation that such a device had ever been used by petitioner or his witnesses.

At first reserving its ruling on the body cavity search, the court ordered that all other measures contemplated by the security order, including strip searches, magnetometer searches, and the use of shackles be employed at petitioner's trial. The court later found probable cause for the probe searches of petitioner and his two witnesses.

Petitioner and his witnesses chose not to submit to shackling and probe searches and were therefore absent during trial, although their testimony was viewed by the jury on videotape. Before trial began, the court, over defense objection, ordered a search of everyone who went into the courtroom, including jurors. During the trial, defense attorneys and courtroom visitors were searched in the jury's presence. The record is not clear, but some of these searches appear to have been magnetometer searches, while others were pat-downs. On the morning of the second day of trial, two sheriff's officers searched the courtroom in the presence of some jurors, despite the fact that the defendant and his witnesses were not expected to attend the trial. The court denied a defense motion for a mistrial, and the jury eventually returned a verdict of guilty.

The Court of Appeals reversed the trial court in several respects. State v. Hartzog, 26 Wash.App. 576, 615 P.2d 480 (1980). The court held that a probe search conducted within the prison is reasonable if, on balance, the State's interest in order and security outweighs the prisoner's rights to privacy and to freedom from unreasonable searches and seizures. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Although it is unclear whether the court meant that prison probe searches must rest on an individualized showing, it held that probe searches conducted pursuant to courtroom security orders can be enforced only on a case-by-case basis. Hartzog, 26 Wash.App. at 584, 615 P.2d 480. The court read the security order to require two searches, one at the prison and another at the jail, and concluded that it could not assume that the prison search would not include a probe search. Since the record did not set forth the independent necessity for a second search at the courthouse, the court held that, should a breach of security occur between the departure from the penitentiary and the arrival at the courthouse, a...

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