State v. Sinclair, 21375

• Decision Date: 15 January 1981
• Docket Number: No. 21375,21375
• Citation: 275 S.C. 608,274 S.E.2d 411
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Paul SINCLAIR, Jr., Appellant.

Page 411

274 S.E.2d 411

275 S.C. 608

The STATE, Respondent, v. Paul SINCLAIR, Jr., Appellant.

No. 21375.

Supreme Court of South Carolina.

Jan. 15, 1981.

J. Edward Bell, III, and Rodney M. Sprott, both of Weinberg, Brown & McDougall, Sumter, for appellant.

Atty. Gen. Daniel R. McLeod and Asst. Atty. Gen. Lindy Pike Funkhouser, Columbia, for respondent.

HARWELL, Justice:

Paul Sinclair was convicted for committing a lewd act upon a female child under fourteen years of age. We affirm.

The prosecuting witness testified that she went to a neighborhood park with her younger brother to play. While there she was accosted by a freckled, nervous-appearing, middle-aged man attired in a tan shirt, green shorts and socks and black boots. He had a blue bicycle. Several days later the police detained Sinclair. He matched the description, was wearing clothes similar to those described and was riding a blue bicycle.

The police took a photograph of Sinclair and combined this with the photographs of six other individuals to form a photographic display or line-up. The prosecuting witness was then called to the station to view the photographs. At the display, she immediately and without any delay picked out the photograph of Sinclair.

Sinclair's primary defense at trial was alibi. He and his witnesses testified that he spent the afternoon of the incident at his and his wife's place of employment.

Appellant contends first that he was impermissibly prejudiced at trial when the solicitor questioned him on cross-examination about his post-arrest silence. Appellant relies upon Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), for the rule that the use for impeachment purposes of his silence at the time of arrest and after receiving Miranda warnings violated the Due Process Clause of the Fourteenth Amendment. The rule established by Doyle v. Ohio, supra, is not applicable to the facts of this case.

On direct examination, Sinclair's counsel asked him whether he had ever had any opportunity, prior to trial, to state his story. He said he had not. Then on cross examination, the solicitor questioned along this line, asking Sinclair if the police gave him a chance to tell his side. Sinclair responded affirmatively. Several questions later when the solicitor persisted in this vein, counsel for the defense objected. The trial judge sustained the objection. The matter was later discussed at length among trial counsel and the trial judge. The defense sought no further relief below. Inasmuch as the appellant obtained the only relief he sought, this court has no issue to decide. State v. Brown, 274 S.C. 48, 260 S.E.2d 719 (1979). We also note that in Doyle v. Ohio, supra, unlike here, the prosecution delved into the post-arrest silence area sua sponte and when counsel for the defense entered timely objections the trial court overruled them.

The appellant next argues that the solicitor impermissibly introduced new matter into evidence in his closing argument to the jury and that the trial judge erred by not sustaining the defense's motion for a mistrial at that point. We disagree.

The colloquy which we are concerned with took place as follows:

THE SOLICITOR: The police even went to the trouble, when they were showing it, to cover up the fact that this man, of all the men that photographs were taken of, was wearing short pants, by putting that strip of paper over them so as not to suggest

DEFENSE COUNSEL: Objection, Your Honor

THE COURT: All right, sir, I sustain the objection with regard to DEFENSE COUNSEL: I would like to make a motion, Your Honor

THE COURT: All right, sir, I'll note it.

Appellant's motion for a mistrial was subsequently denied.

While we agree with the general statement that the solicitor may not introduce matters into the trial in closing which were not admitted properly into evidence, State v. Gaines, 271 S.C. 65, 244 S.E.2d 539 (1978); State v. Bottoms, 260 S.C. 187, 195 S.E.2d 116 (1973), we do not view the solicitors statement as having that effect here. The prosecuting witness testified that her assailant was wearing green shorts. Appellant stated that he was wearing green trunks the day he was arrested. He also stated he was photographed at the station that same day. The arresting officer said that Sinclair had on green cut-off pants the day he was arrested. The substance of the solicitor's remark, as can be seen, was already in evidence. The denial of the motion was therefore proper.

The appellant also takes the position that the trial judge erred by excluding the public from the trial during the prosecuting witness's testimony. He contends that by this he was denied his rights to a public trial and due process of law and that the exclusion worked to place undue attention and significance on the witness's testimony in the eyes of the jury. We disagree.

The Sixth Amendment to the Federal Constitution and Article I, Section 14 of the State Constitution provide one accused in a criminal matter the guarantee of a public trial. This substantial right was established in the common law when our constitutions were adopted. See, 39 A.L.R.3d 852. There is some disagreement, however, in the cases as to the limits of the public trial right and this in turn relates to the permissible extent to which the public trial guarantee may be qualified under certain conditions. See, 156 A.L.R. 265, 48 A.L.R.2d 1436. In general, though, any order affecting or relating to the public trial right must be closely scrutinized to assure that there is no impermissible infringement of the right.

Exclusions of members of the public from criminal trials are ordered for a number of reasons, one of which is to prevent emotional disturbance and embarrassment of a witness in order to facilitate the taking of testimony. See, 23 C.J.S. Criminal Law § 963(3). Cases which deal with exclusion for the protection of the witness rather than out of concern for the spectators focus on the propriety and duration of the exclusion rather than its scope. See 156 A.L.R. 265; 48 A.L.R.2d 1436. Thus the exclusion of members of the public from trials while a young victim of a sexual battery is testifying is not impermissible if the trial court is convinced of the necessity for doing so after balancing the interests of all parties. The exclusion, however, must only be as broad as are the needs of the witness under the peculiar circumstances of the case. See, United States ex rel. Smallwood v. Lavalle, 377 F.Supp. 1148 (E.D.N.Y.) aff'd., 508 F.2d 837 (2d Cir. 1974), cert. denied, 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975).

The United States Supreme Court recognized the state of the law recently in Gannett Company, Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979):

"Even with respect to trials themselves, the tradition of publicity has not been universal. Exclusion of some members of the general public has been upheld, for example, in cases involving violent crimes against minors. Geise v. United States, 262 F.2d 151 (CA9 1958). The public has also been temporarily excluded from trials during testimony of certain witnesses. E.g., Beauchamp v. Cahill, 297 Ky. 505, 180 S.W.2d 423 (1944) (exclusion justified when children forced to testify to revolting facts); State v. Callahan, 100 Minn. 63, 110 N.W. 342 (1907) (exclusion justified when embarrassment could prevent effective testimony). Hogan v. State, 191 Ark. 437, 86 S.W.2d 931 (1935) (trial judge properly closed trial to spectators during testimony of 10-year old rape victim); ....

Approximately half the States also have statutory provisions containing limitations upon public trials. E.g., Ala.Code § 12-21-202 (1975) (public can be excluded in rape cases); Ga.Code § 81-1006 (1978) (public can be excluded where evidence is vulgar); Mass.Gen.Laws Ann., ch. 278, § 16A (West 1972) (no person under 17 who is not a party shall be present in a criminal trial); Va.Code § 19.2-266 (1975) ('In the trial of all criminal cases ... the court may, in its discretion, exclude ... any persons whose presence would impair the conduct of a fair trial ...')." 443 U.S. at 388, 99 S.Ct. at 2910, 61...