Vescuso v. Com.

• Decision Date: 17 March 1987
• Docket Number: No. 0710-85,0710-85
• Citation: 4 Va.App. 32,354 S.E.2d 68
• Parties: Richard Paul VESCUSO v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 68

354 S.E.2d 68

4 Va.App. 32

Richard Paul VESCUSO v. COMMONWEALTH of Virginia.

Record No. 0710-85.

Court of Appeals of Virginia.

March 17, 1987.

Robert A. Bruce, Farmville, for appellant.

Russell C. Williams, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BARROW, BENTON and COLE, JJ.

BENTON, Judge.

Richard Paul Vescuso was convicted by a jury of unlawfully and feloniously escaping from the Nottoway Correctional Center in violation of Code § 53.1-203. On appeal, he contends that holding his trial within the confines of the Nottoway Correctional Center was a denial of his constitutional rights to a public trial, to a fair trial, and to equal protection of the laws. He also contends that the limitation on his voir dire of the jury panel was a denial of the right to an impartial jury. We reverse the conviction because of violations of Vescuso's constitutional rights to a public trial and to a fair trial.

Vescuso escaped from the Nottoway Correctional Center while a prisoner there. Following his escape, Vescuso went to a house in the vicinity of the prison, identified himself as an escapee, and asked if he could enter to warm himself. The occupant of the house told Vescuso to sit on the porch and said he would get help; the occupant then telephoned the police department. Vescuso did not attempt to enter the house and was sitting on the front porch when the police arrived to return him to the prison.

Vescuso's trial on a charge of unlawfully and feloniously escaping from a correctional facility was held in a courtroom located within the Nottoway Correctional Center rather than in a courtroom at the Nottoway County Courthouse. ¹ Nottoway Correctional Center is a medium security prison which houses a multitude of individuals who have been convicted of various crimes. It is entirely surrounded by a perimeter wall. The courtroom in which Vescuso was tried is located within the confines of the prison's perimeter wall.

Vescuso was convicted and sentenced by the jury to five years in prison, the maximum penalty allowed.

I.

The right of one accused of a crime to receive a public trial is secured by the constitutions of the United States and Virginia. ² U.S. Const. amend. VI; Va. Const. art. I, § 8. The sixth amendment right to a public trial is a fundamental right and is protected through the fourteenth amendment against abrogation by state action. Argersinger v. Hamlin, 407 U.S. 25, 27-28, 92 S.Ct. 2006, 2007-08, 32 L.Ed.2d 530 (1972); In re Oliver, 333 U.S. 257, 272-73, 68 S.Ct. 499, 507-08, 92 L.Ed. 682 (1948); Cumbee v. Commonwealth, 219 Va. 1132, 1134, 254 S.E.2d 112, 114 (1979).

A criminal trial should be "a 'public trial' in the ordinary common-sense acceptation of the term." Jones v. Peyton, 208 Va. 378, 381, 158 S.E.2d 179, 181 (1967); see State ex rel. Varney v. Ellis, 149 W.Va. 522, 523-24, 142 S.E.2d 63, 65 (1965). See generally 21A Am.Jur.2d Criminal Law § 880 (1981). A public trial entails at least a requirement that attendance "is not limited or restricted to any particular class of the community, but is open to the free observation of all." Cumbee v. Commonwealth, 219 Va. at 1135, 254 S.E.2d at 115 (quoting Jones v. Peyton, 208 Va. at 380, 158 S.E.2d at 181). One measure of whether an accused has been deprived of his constitutional right to a public trial if the trial is held at a place other than an "open courtroom" is whether the public had freedom of access. Jones v. Peyton, 208 Va. at 380, 158 S.E.2d at 181. When measured against these standards, Vescuso's trial clearly was not a "public trial."

We believe it is manifest from the location of the courtroom behind the prison walls that Vescuso's trial was not "public" in the ordinary sense of that word. Persons desiring to enter the prison are subject to the various admittance and clearance precautions necessary to maintain the security of the prison. The very location of the courtroom setting, behind the prison walls, imposes a significant impediment to free public access. Penal institutions are by their very nature closed to the general public and are universally considered to be secure from visitation except by persons on official business or by families of inmates during strictly scheduled time limits. Prisons are not places where citizens are encouraged to visit or enter. They are generally considered by the populace to be places where a citizen may not freely enter. By definition, therefore, free and uninhibited access does not exist within the confines of a prison facility. The setting of the courtroom within the perimeter walls of the Nottoway prison is, therefore, rife with impediments to free access and open observation. The conduct of a criminal trial in such a setting unquestionably had the effect, if not the purpose, of discouraging public attendance. Attendance certainly would have been limited to those persons who were stout-hearted enough to endure the anxiety of entering the penal institution and submitting to the tense atmosphere of the custodial environment and to the security necessary to protect the custodial facility. See State v. Lane, 60 Ohio St.2d 112, 120, 397 N.E.2d 1338, 1343 (1979). These factors refute any assertion that the public had free access to Vescuso's trial.

The Commonwealth argues that, because the record contained no affirmative proof showing that the public was excluded from the trial, it was a public trial. In support of its argument, the Commonwealth cites Caudill v. Peyton, 209 Va. 405, 164 S.E.2d 674 (1968). In Caudill, the Supreme Court held that no abrogation of the public trial right occurred when the accused was tried in the judge's chambers adjoining the courtroom. Id. at 408, 164 S.E.2d at 676. We believe that the court found persuasive the fact that the door between the judge's chambers and the courtroom remained open during the entire trial. The court focused upon this factor in distinguishing Caudill from Jones v. Peyton, which held that the public trial right had been abridged when trial was held in the judge's chambers and the door between the chambers and the courtroom was closed. In that situation, there was sufficient evidence to find that the public did not have free access and had been effectively excluded.

We believe that Vescuso's trial situation was more akin to that in Jones than Caudill. Like the setting in Jones, there was a barrier separating Vescuso's trial from free public access. In Jones, the barrier was a closed door; in the present case, the barriers consisted of a perimeter wall, the varied security precautions inherent in a prison, and the factors discussed previously, all of which tend to discourage public attendance. Furthermore, the character of a prison facility is fundamentally different from that of an open judge's chambers adjoining a courtroom at the public courthouse. These differences are sufficient to justify the conclusion that the public was effectively excluded from attending Vescuso's trial. ³

A public trial is "not merely a method to assure that nothing untoward is done clandestinely but a guarantee against the very conduct of private hearings." Rovinsky v. McKaskle, 722 F.2d 197, 202 (5th Cir.1984). The right to a public trial "is a reflection of the notion, deeply rooted in the common law that 'justice must satisfy the appearance of justice.' " Levine v. United States, 362 U.S. 610, 616, 80 S.Ct. 1038, 1042, 4 L.Ed.2d 989 (1960) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13-14, 99 L.Ed. 11 (1954)). The public courtroom setting is an essential part of the fundamental conception of justice. The courtroom used in the trial of this case, located behind a perimeter wall and in the foreboding atmosphere of a prison, is the very antithesis of a public courtroom. The setting for the trial of this case substantially eroded the possibility that the trial process would be subject to public scrutiny and that the trial would provide a reliable and fair determination of guilt and punishment. See Rovinsky v. McKaskle, 722 F.2d at 201-02.

The defendant's right to public trial, however, is not absolute and is subject to limitation when sufficient justification exists to close the trial. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 2216, 81 L.Ed.2d 31 (1984); Rovinsky v. McKaskle, 722 F.2d at 200. To limit the public trial right, "the party seeking to close the [trial] ... must advance 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." Waller, 467 U.S. at 48, 104 S.Ct. at 2216. The defendant need not prove specific prejudice in order to obtain relief from a violation of his sixth amendment rights. Id. at 49, 104 S.Ct. at 2217.

In response to Vescuso's motion for a public trial, the trial judge ruled: "The motion for the public trial is not denied, but the premise of the motion is denied by the Court, because this is a public trial." The trial judge made no findings concerning the need to hold Vescuso's trial within the confines of the Nottoway prison. The Commonwealth, however, asserts as justification for holding the trial in the penitentiary courtroom the state's interest in security and maintaining custody over Vescuso. The argument is made that the need for maintaining such close watch over him is apparent from the fact of his prior escape.

We do not dispute that the Commonwealth had a weighty interest in retaining custody over Vescuso throughout his trial; however, there was little on this record to substantiate the fear that Vescuso would again attempt escape. Admittedly, Vescuso was being tried for having escaped from prison; however, the charge of escape, standing alone, does not justify the extraordinary procedure of trying Vescuso in prison. The circumstances of...