State v. Sams
| Decision Date | 02 October 1990 |
| Docket Number | No. C,C |
| Citation | 802 S.W.2d 635 |
| Parties | STATE of Tennessee, Appellee, v. Ricky SAMS, Appellant. C.A. 875. |
| Court | Tennessee Court of Criminal Appeals |
Charles W. Burson, Atty. Gen. & Reporter, Amy Tarkington, Asst. Atty. Gen., Nashville, Carl K. Kirkpatrick, Dist. Atty. Gen., Edward Wilson, Rebecca Davenport, Asst. Dist. Attys. Gen., Blountville, for appellee.
James S. Roach, Johnson City (appeal only), Kerry A. Musick, Blountville (trial only), for appellant.
The appellant, Ricky Sams, appealed as of right to this Court following his convictions for two counts of aggravated rape, one count of rape, and two counts of sexual battery. The victims of these offenses were the appellant's two minor children.
The appellant contends that he was denied a public trial. He argues that the assistant district attorney general used the subpoena power of the trial court as a subterfuge for removing his relatives from the courtroom.
This is a case of first impression. Our research has not revealed a case involving the precise issue raised by the appellant. 1
The state called the appellant's son as its second witness. Before the witness completed his testimony, the trial judge recessed the proceedings for lunch. During the recess, the assistant district attorney general issued subpoenas for the appellant's grandmother, aunt and brother. These relatives had attended the morning session of the trial. When the appellant's stepmother and a second aunt arrived for the afternoon session of the trial, the assistant district attorney general issued subpoenas for them.
After the trial judge reconvened the proceedings, the following colloquy occurred between counsel and the trial judge:
All five relatives were subsequently removed from the courtroom for the balance of the trial.
The statements made by the assistant district attorney general make it crystal clear that he used the subpoena power of the trial court as a subterfuge for excluding the appellant's relatives from the courtroom. He had no intention of calling these individuals as witnesses. They were never interviewed by the assistant district attorney general or a member of the district attorney general's staff. Moreover, it is highly doubtful that these individuals had knowledge of facts that would have been admissible as evidence. Of course, the assistant district attorney general did not call any of these individuals as witnesses.
The trial judge knew, or should have known, from the statement of the assistant district attorney general, the absence of any noticeable disturbance in the courtroom during the morning session, and the individuals for whom the subpoenas were issued that the assistant district attorney general was using the subpoena power of the court to do indirectly what he could not do directly, namely, exclude the appellant's relatives from the courtroom. Yet the trial judge made no effort to inquire into the motives of the assistant district attorney general in taking this unusual action nor the alleged disturbance supposedly created by the relatives. Ironically, two of the relatives excluded did not attend the morning session of the trial.
The assistant district attorney general's blatant abuse of the trial court's subpoena power for the exclusive purpose of removing the relatives from the courtroom constituted egregious prosecutorial misconduct. This state action violated the appellant's constitutional right to a public trial 2 as well as the constitutional right of the relatives to attend the trial. 3
Article I, Section 9 of the Tennessee Constitution affords the accused the right to a "speedy public trial." The origin and purpose of this right was ably stated in the case of In re Oliver: 4
This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. The exact date of its origin is obscure, but it likely evolved long before the settlement of our land as an accompaniment of the ancient institution of jury trial. In this country the guarantee of an accused of the right to a public trial first appeared in a state constitution [Pennsylvania] in 1776. Following the ratification in 1791 of the Federal Constitution's Sixth Amendment, which commands that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial ..." most of the original states and those subsequently admitted to the Union adopted similar constitutional provisions. Today almost without exception every state by constitution, statute, or judicial decision, requires that all criminal trials be open to the public.
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. 5
In summary, this right serves as a guarantee that the accused will be "fairly dealt with and not unjustly condemned." 6
The presence of citizens in the courtroom safeguards the accused against (a) the court being used as an instrument of persecution, 7 (b) the abuse of judicial power and discretion, 8 and (c) potentially perjurious and abusive testimony. 9 In addition, the public's presence may induce unknown witnesses to come forward with evidence relevant to the issues in controversy or facts which can be used to impeach a witness, 10 encourage the trial participants to perform their respective duties conscientiously, 11 and afford the citizens in the community an opportunity to observe the criminal justice system in progress, determine whether the system is functioning adequately, and express these findings in the form of public opinion. 12
The appellate courts of this State have never specified which citizens, exclusive of the media, 13 must be permitted to attend court proceedings in order to satisfy the minimum requirements of the right to a public trial. 14 However, courts have universally recognized that the right of an accused to have his family and friends present is an integral element of right to a public trial. 15 In the case of In re Oliver, supra, the United States Supreme Court said that "without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." 16 Other courts have been just as emphatic regarding the accused's right to have his family and friends present. In State v. Harding, supra, the Utah Supreme Court stated that "an accused is entitled to the presence of family and friends when facing serious criminal charges." 17 Later, the Utah Supreme Court stated in State v. Crowley, supra, that it could not conceive of a case "in which the near relatives and friends of the accused should not be permitted to be in attendance upon the trial for the purpose of seeing that the accused is fairly and justly dealt with by the officers of the court and not improperly condemned." 18
There is general agreement that the accused's family and friends are to be given priority over the general public when the courtroom is overcrowded. 19 Also, closure orders frequently exempt an accused's family and friends so that they can remain in the courtroom. 20 On occasion appellate courts note that a closure order made no exception for the accused's family and friends. 21
There are two classifications of closures: complete closures and partial closures. A complete closure has the effect of excluding everyone from the courtroom with the exception of the parties, the attorneys, court personnel, and the witnesses. A complete closure may be for the entire trial or proceeding, 22 or a portion of the proceedings such as the testimony of a particular witness. 23 A partial closure results in the exclusion of certain members of the public while other members of the public...
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