NOTICE: This opinion is subject to formal
correction before publication in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JOHN BRIGHT, )
) Court of Appeals No. A-4670
Appellant, ) Trial Court No. 3KN-91-1707
Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, ) CORRECTED
)
Appellee. ) [No. 1353 - June 10, 1994]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, Charles K. Cranston,
Judge.
Appearances: Gordon G. Goodman, Robinson,
Beiswenger, & Ehrhardt, Soldotna, for Appel
lant. W.H. Hawley, Assistant Attorney Gener
al, Office of Special Prosecutions and
Appeals, Anchorage, and Charles E. Cole,
Attorney General, Juneau, for Appellee.
Before: Coats and Mannheimer, Judges, and
Wolverton, District Court Judge.* [Bryner,
Chief Judge, not participating.]
MANNHEIMER, Judge.
John Bright appeals his conviction for first-degree
assault, AS 11.41.200(a)(1). He contends that the grand jury
heard insufficient evidence to support his indictment, that he
was not brought to trial within the time limits of Alaska
Criminal Rule 45, and that he was denied his right to a public
trial because his trial was held in a prison (the Spring Creek
Correctional Center in Seward). We uphold Bright's indictment,
and we conclude that he was brought to trial within the time
limits of Rule 45, but we conclude that the superior court's
decision to hold Bright's trial in the Spring Creek prison
violated Bright's right to a public trial. We therefore reverse
Bright's conviction and remand this case for a new trial.
Bright is an inmate at the Spring Creek Correctional
Center near Seward. He was indicted for assaulting a fellow
inmate at the prison. The victim of Bright's assault testified
at grand jury that Bright threw a caustic liquid into his eyes,
then hit him on the side of his head with a heavy object,
shattering his skull. As the victim tried to escape from the
room, Bright caught him and choked him until he lost
consciousness. As a consequence of this attack, the victim
suffered long-term damage to his eyes and severe facial injuries
(fractures of the jaw and the orbit of the eye).
Based on this testimony, the grand jury indicted Bright
for first-degree assault under AS 11.41.200(a)(1), "recklessly
caus[ing] serious physical injury to another by means of a
dangerous instrument". Bright asserts that the grand jury
evidence failed to establish that Bright had used a dangerous
instrument, and that the evidence likewise failed to establish
that Bright had inflicted serious physical injury. We reject
Bright's arguments.
Under AS 11.81.900(b)(11), a "dangerous instrument" is
"anything that, under the circumstances in which it is used, ...
is capable of causing death or serious physical injury". The
victim of Bright's assault testified that Bright struck him with
"a chunk of metal or something". An ophthalmologist testified
that the victim's injuries appeared to have been caused by
repeated blows from a blunt object. The ophthalmologist also
testified that the liquid Bright threw into his victim's eyes was
"high[ly] alkaline". Under the circumstances of this case, the
grand jury could properly find that both the blunt object and the
caustic liquid were "dangerous instruments" within the statutory
definition. See Wettanen v. State, 656 P.2d 1213, 1217-18
(Alaska App. 1983) (whether an object is a "dangerous instrument"
depends on whether it is "used in such a way as to be capable of
causing death or serious physical injury").
Under AS 11.81.900(b)(51), "serious physical injury"
includes "physical injury that causes serious and protracted
disfigurement, protacted impairment of health, [or] protracted
loss or impairment of the function of a body member or organ".
The grand jury could properly find that the injuries to the
victim's eyes and skull were "serious physical injuries" within
this statutory definition.
For these reasons, we uphold the grand jury indictment.
We now turn to Bright's contention that he was denied his right
to a speedy trial under Criminal Rule 45.
Because of his attack on a fellow inmate, Bright was
placed in administrative segregation on October 18, 1991. The
superior court (employing the 1991 version of Criminal Rule
45(c)(1)), ruled that the time for bringing Bright to trial began
running 15 days later, on November 2, 1991.1
On January 17, 1992 (the 76th day), Bright filed a
motion to dismiss his indictment. The superior court denied this
motion 34 days later, on February 20, 1992. Bright concedes that
this 34 days is properly excluded from the Rule 45 calculation.
See Rule 45(d)(1). Thus, February 21, 1992 was the 77th day for
purposes of calculating the time for bringing Bright to trial
under Rule 45.
On that day (February 21), Bright filed a pleading that
he styled a "motion in limine".2 In this pleading, Bright sought
to have the site of his trial moved from the Spring Creek Correc
tional Center to the Seward courthouse.3 Bright also asked the
superior court to decide whether Bright would be restrained
during his trial, whether the State would be allowed to present
certain evidence at trial, and whether Bright would be allowed to
impeach the State's witnesses with certain other evidence.
The superior court denied the site-of-trial portion of
Bright's motion on March 6, 1992. Contemporaneously, the
superior court ruled that the 14 days between the filing of
Bright's motion and the court's decision would be excluded from
the Rule 45 calculation. Thus, under the trial court's calcula
tion, March 7, 1992 was the 78th day for Rule 45 purposes, and
Bright's trial had to be held on or before April 18, 1992 (the
120th day). Bright's trial began on April 13, 1992.
On appeal, Bright argues that the superior court should
not have excluded the 14 days between February 21 and March 6
from the Rule 45 calculation. Bright contends that none of the
issues raised in his "motion in limine" needed to be decided
before trial, that he could have waited until the first day of
trial to raise all of these issues, and that his pre-trial filing
of these motions was merely an act of courtesy for which he
should not be penalized.
We reject Bright's characterization of his pleading.
Bright's "motion in limine" included, among other things, a
request for a change in the site of his trial. Such a motion, as
a practical matter, had to be raised before the jury was
empaneled. If Bright had waited until the first scheduled day of
trial to raise this motion, the trial would have been delayed
while the superior court deliberated on the motion, and this
delay would have been chargeable to Bright under Criminal Rule
45(d)(1). We see no reason why Bright's filing the motion before
trial should change this result.
Moreover, both the supreme court and this court have
consistently interpreted Rule 45(d)(1) in a literal manner: the
running of the Rule 45 clock is tolled by any proceeding
involving the defendant, whether or not it leads to ascertainable
delay. See State v. Clouatre, 516 P.2d 1189, 1190-91 (Alaska
1973); State v. Angaiak, 847 P.2d 1068, 1072-73 (Alaska App.
1993). Regardless of the name Bright gave his motion, that
motion called upon the superior court to make several
discretionary rulings before Bright's trial started. Under Rule
45(d)(1), Bright's motion tolled the running of Rule 45 until the
superior court decided where the trial would be held. We
therefore hold that Bright's trial date of April 13, 1992 was
within the limits of Criminal Rule 45. (The facts of this case
do not require us to decide whether Rule 45 could potentially
have remained tolled while the superior court decided the
remainder of the issues Bright raised.)
We now address Bright's final point on appeal: that his
trial should have been held at the Seward courthouse, not the
Spring Creek Correctional Center. The issue of whether Bright's
trial should be held in the prison was first raised by the
prosecutor at the omnibus hearing on January 23, 1992. Bright's
attorney and the attorney representing Bright's co-defendant both
stated that they intended to subpoena several Spring Creek
inmates to testify at trial; they asked the court for some
assurance that these witnesses would be allowed to testify in
person rather than telephonically. The prosecutor then
suggested, "as a possible alternative", that the trial be held at
the prison. The prosecutor declared that the prison had "far
better facilities ... in terms of space" than the Seward
courtroom, and she argued that all security problems would be
cured by holding the trial in the prison. Bright's co-defen
dant's attorney immediately objected "strenuously" to holding the
trial in prison. Superior Court Judge Charles A. Cranston told
the parties that he would not rule on the prosecutor's suggestion
until the extent of the prisoner-witness problem was clarified.
The next hearing in Bright's case took place on January
30, 1992. During that hearing, Bright's attorney told the court
that he had subpoenaed various Spring Creek prisoners, but that
prison authorities had declared that the subpoenas, by
themselves, were insufficient to procure these witnesses'
attendance at trial - the prison authorities would also need
transport orders signed by the court. The prosecutor then again
suggested that the trial be held at Spring Creek:
PROSECUTOR: Your Honor, ... there are a
lot of security [concerns] that need to be
taken into account by the court in making
such a decision. Spring Creek Correctional
Facility ... is a maximum-security facility.
... [T]he people out there are not the kind
of people that you can just haul around in a
station wagon en masse. The defense wishes
... to have them present for trial. I think
that this just goes to the fact
(indiscernible) request the trial in this
matter should be held at Spring Creek
Correctional Facility. The inmates are all
available there. There's no transport issue.
And, more importantly, there's no security
issue. Clearly, a trial anywhere but Spring
Creek presents a security issue, and, given
the nature of the security issue, I think the
trial should take place at Spring Creek, and
certainly no further away than Seward.
BRIGHT'S ATTORNEY: I believe trial is
[already] calendared in Seward, Your Honor.
. . . .
THE COURT: [A]bsent further order of
the court, the case will take place in the
court facility in Seward rather than [in] the
correctional facility. If there are motions
relative to transport of witnesses or
anything, I'll have to deal with those
[later].
However, later that same day, Judge Cranston reversed himself in
a one-sentence written order: "Upon further reconsideration by
the Court[,] it is ordered that [t]he jury trial in [this] matter
... will be held in the Spring Creek Correctional Center and not
the Seward Courthouse as previously announced."
On February 21, Bright filed his "motion in limine",
which, among other things, asked the court to hold the trial at
the courthouse rather than the prison. Bright noted that the
court had issued its written order "without allowing defense
counsel the opportunity to present any argument". Bright argued
that the searches and screening of visitors normally conducted by
prison authorities, as well as the general atmosphere of the
prison itself, would be "coercive" to jurors and those members of
the public wishing to attend the trial. Bright also argued that
the constantly visible security measures at the prison would
create or reinforce the jurors' perception that Bright was a
dangerous criminal. For these reasons, Bright argued that
holding his trial at the prison would violate the guarantee of
public trial contained in Article I, Section 11 of the Alaska
Constitution.
The State urged the court to maintain the trial site at
Spring Creek because "the defendants ... are dangerous [and] many
of the potential witnesses are also prisoners ... housed at the
Spring Creek facility". The State argued that holding the trial
at the prison would eliminate "[t]he burden and expense of
transporting the defendants and all of the proposed prisoner
witnesses" as well as "the danger that prisoners might escape".
The State suggested, however, that Judge Cranston "should list
all of [his] reasons for conducting the trial at Spring Creek"
"to make certain that the record is clear".
On March 5, 1992, Judge Cranston denied Bright's
request to move the trial back to the Seward courthouse. Acting
upon the State's suggestion, Judge Cranston issued detailed
findings supporting his decision to hold the trial at the prison:
[1]. Courtroom facilities at the Seward
Courthouse are not suitable for trying a case
with an "in-custody" defendant. The problem
is [exacerbated] in this case because there
are two defendants, each of which poses a sub
stantial security risk.
[2]. The only holding cells in Seward
are located on the first floor of the
City/State Building. The courtroom is on the
second floor [of this building]. It is
impossible to transport "in-custody"
defendants to the second floor without doing
so in front of the jury. In this case the
defense intends to call ten or more inmates
of [the Spring Creek Correctional Center] as
defense witnesses. The Seward Jail has two
cells available to house male inmates.
Department of Corrections policies prohibit
housing two convicted felons in the same cell
in a facility such as Seward's. This means
that there are no holding facilities
available for potential witnesses. [D]efense
witnesses must be transported one at a time
from [Spring Creek]. This, by necessity,
means that there will be a one- to two-hour
time lag between defense witnesses.
[3]. Since all inmate witnesses from
[Spring Creek] constitute security risks they
will, by necessity, have to appear in notice
able restraints.
[4]. Under the circumstances[,]
requiring the defense to present their
witnesses in this fashion is more prejudicial
to the defendants than holding the trial at
[Spring Creek].
[5]. Assuming the trial were held in
the Seward Courthouse[,] the defendants would
be seated approximately ten feet in front of
the first row of jurors. Those jurors would
be sitting in ordinary chairs with nothing be
tween them and the defendants except counsel
tables. Witnesses, including inmate witness
es, would be closer still - approximately
four feet. These circumstances would consti
tute an extreme security risk and likely
raise "juror apprehension" beyond what it
would be at the secure Spring Creek setting.
[6]. Realistic "bench conferences" are
impossible in Seward unless the table exhib
its are normally kept on is removed from the
courtroom. "Chambers conferences" are possi
ble but tedious - requiring security person
nel to move through the courtroom with the
defendants.
[7]. It is not possible to send the
jury to the "jury room" and conduct court out
of the presence of the jury in Seward.
Conversations in the courtroom made in a
"normal" tone of voice can be easily
overheard in the jury room.
[8]. This alleged assault took place at
[Spring Creek] and involves [Spring Creek]
inmates. The jury will be aware of these
facts no matter where the case is tried.
[9]. Virtually everyone in Seward is
familiar with [Spring Creek] and view[s] it
as a local industry. Most people know one or
more individuals employed there. Thus, the
[potential prejudice] of holding a felony
trial inside a correctional institution is
not nearly as great in Seward as it might be
elsewhere.
Bright's trial began on April 13, 1992. Bright wore
civilian clothing. Before voir dire of the jury began, Judge
Cranston explained to the prospective jurors that the case was
being tried at Spring Creek due to "many factors". Judge
Cranston instructed the prospective jurors not to draw any
inference con-cerning the guilt of either Bright or his co-
defendant from the fact that the trial was being held at the
prison.
During voir dire, several prospective jurors indicated
that they were uncomfortable at Spring Creek and that they
believed the trial should not be held at that location. After
hearing the reactions of these jurors to the prison setting,
Bright renewed his motion to change the trial site. This motion
was denied.
After jury selection was completed, Judge Cranston told
the surplus jurors that the trial was public and that they were
free to remain in the prison to attend the trial.
As trial progressed to the summation stage, Bright
requested that closing argument be held in the Seward courthouse
and that the jury be allowed to deliberate in the courthouse.
Judge Cranston granted the request. The jury subsequently hung
on the charge against Bright.
Shortly before Bright's second trial, Bright requested
that the trial be held at a place other than Spring Creek because
the jurors from the first trial had felt uncomfortable at the
facility. Judge Cranston denied Bright's request, and the second
trial began on July 14, 1992 at Spring Creek. Bright again wore
civilian clothing, and Judge Cranston again explained to the
prospective jurors that the case was being tried at Spring Creek
for "many reasons", one of them being that most of the witnesses
were inmates at the prison. The court again told the prospective
jurors not to infer anything concerning Bright's guilt from the
location of the trial. And, following jury selection, the court
again invited the surplus jurors to remain and hear the rest of
the case.
Near the conclusion of trial, Judge Cranston indicated
he would be willing to hold final argument and jury deliberations
at the Seward courthouse. Bright asked to have final argument at
the prison, given the conditions under which he would be
transported to the courthouse. Thus, the parties' summations
were delivered at Spring Creek; however, the jury deliberated and
announced its verdict at the Seward Courthouse.
On appeal, Bright challenges the superior court's
decision to hold his trial at the Spring Creek prison. The State
urges us to find that Bright failed to preserve this issue in the
trial court. We reject the State's contention. As can be seen
from the recitation of the procedural history of the case, Bright
objected both to the way in which Judge Cranston reached his
decision and to the merits of that decision. We therefore
address the merits of the superior court's decision to hold
Bright's trial in the prison.
For a thousand years, Anglo-American law has embodied
the doctrine that trials should be open to the public. The
history of this precept is chronicled in Chief Justice Burger's
opinion in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,
100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), and in this court's
opinion in Renkel v. State, 807 P.2d 1087 (Alaska App. 1991).
Both the Sixth Amendment to the United States Constitution (made
applicable to the states by the Fourteenth Amendment) and Article
I, Section 11 of the Alaska Constitution guarantee criminal
defendants a public trial. And, while the Sixth Amendment
guarantees only a defendant's personal right to a public trial,
Gannett Co. v. DePasquale, 443 U.S. 368, 379-80, 99 S.Ct. 2898,
2905, 61 L.Ed.2d 608 (1979), society also has a protected right,
conferred by the First and Fourteenth Amendments, to attend and
obtain information about criminal trials. Richmond Newspapers,
448 U.S. at 580, 100 S.Ct. at 2829 (main opinion), 448 U.S. at
581-82, 100 S.Ct. at 2830 (White, J., concurring), 448 U.S. at
584, 100 S.Ct. at 2831 (Stevens, J., concurring), 448 U.S. at 584-
85, 100 S.Ct. at 2831 (Brennan and Marshall, JJ., concurring),
448 U.S. at 604, 100 S.Ct. at 2842 (Blackmun, J., concurring).
The guarantee of public trials has been said to foster
and preserve at least three important societal values. Two of
these primarily protect a defendant's right to a fair trial,
while the third involves society's broader interest in preserving
social cohesion and the public peace by allowing citizens to
assure themselves that justice is being done.
First, constant public scrutiny motivates judges,
prosecutors, jurors, and witnesses to adhere more strictly to
their oaths of public duty. "[P]ublicity serves as a safeguard
against unjust persecution of an accused and goes far toward
insuring him the fair trial to which he is entitled." People v.
Jelke, 123 N.E.2d 769, 771 (N.Y. 1954). The possibility of
comment and criticism by an informed public has the power to
restrain whatever tendencies judges, prosecutors, and jurors
might feel to indulge their emotions, their political agendas, or
their self-interest to the detriment of their oaths and public
trusts. See In re Oliver, 333 U.S. 257, 270 & n.25; 68 S.Ct.
499, 506; 92 L.Ed. 682 (1948). And witnesses are more likely to
tell the unembroidered truth when they know that their testimony
is exposed to public scrutiny. See Jelke, 123 N.E.2d at 772;
Wigmore on Evidence (Chadbourn rev'n 1976), 1834, Vol. 6, pp.
435-36.
Second, public observation and reporting of trial
testimony will, from time to time, enhance the truth-finding
process by creating the possibility that someone who attends the
trial or who learns of the testimony through the media may be
able to furnish additional evidence, either to further elucidate
the events being litigated or to contradict the testimony of
previous witnesses. Wigmore quotes an example in which media
dissemination of trial testimony prompted an important
corroborating witness to come forward. Wigmore, 1834, Vol. 6,
p. 437-38.4
An instance in which media coverage of an Alaska trial
prompted an impeaching witness to come forward was described in
Cheely v. State, 861 P.2d 1168, 1172 (Alaska App. 1993): a high
school counselor who was acquainted with one of the witnesses was
"stunned" when he read a newspaper account of that witness's
testimony; believing that the witness had committed perjury, the
counselor came forward to offer his own competing testimony.
Professor Wigmore gives other examples of similar occurrences;
Wigmore on Evidence, 1834, Vol. 6, p. 436 & n.2.
The third value derived from the public trial guarantee
is its beneficial effect on our democratic institutions. Public
observation of criminal justice proceedings fosters public
acceptance of the criminal justice system. If citizens are able
to observe that justice is being dispensed fairly and even-
handedly, then the citizenry will support or at least accept the
decisions of the courts. Social tranquility often depends on the
public's willingness to accept the verdict in a debatable or
emotion-laden criminal case rather than turning to extralegal
avenues for expressing community outrage, frustration, or desire
for retribution. If the people are denied access to the criminal
justice process, they may well lose faith in its results. As the
Supreme Court said in Richmond Newspapers,
People in an open society do not demand
infallibility from their institutions, but it
is difficult for them to accept what they are
prohibited from observing. When a criminal
trial is conducted in the open, there is at
least an opportunity both for understanding
the system in general and its workings in a
particular case[.]
448 U.S. at 572, 100 S.Ct. at 2825.
[W]here the trial has been concealed from
public view[,] an unexpected outcome can
cause a reaction that the system at best has
failed and at worst has been corrupted. To
work effectively, it is important that
society's criminal process satisfy the
appearance [as well as the fact] of justice.
448 U.S. at 571, 100 S.Ct. at 2824.
Notwithstanding these constitutional interests of both
the defendant and the public, judges have the authority to
restrict the access of some or all members of the public to some
or all portions of criminal trials. "The public trial concept
has ... never been viewed as imposing a rigid, inflexible
straitjacket on the courts. It has uniformly been held to be
subject to the inherent power of the court to preserve order and
decorum in the courtroom, to protect the rights of parties and
witnesses, and generally to further the administration of
justice." People v. Jelke, 123 N.E.2d at 772. However, this
judicial power to restrict or deny public access to court proceed
ings may be exercised only when unusual circumstances imperil a
more important societal value, and then only when alternative
measures have been considered and found wanting.
[S]ince the concept of a secret trial is
anathema to the social and political
philosophy which motivates our society, the
discretion to limit the public nature of
judicial proceedings is to be sparingly
exercised and, then, only when unusual
circumstances necessitate it.
People v. Jones, 391 N.E.2d 1335, 1338 (N.Y. 1979).
Does holding a trial inside a prison violate a
defendant's right to a "public trial"? Perhaps on account of our
strong tradition of holding trials in public courthouses, there
are few published decisions on this question.
In State v. Lane, 397 N.E.2d 1338 (Ohio 1979), the
three defendants were prison inmates charged with escape. For
"reasons of security and convenience", id. at 1339, the
defendants' trials were held in an improvised courtroom within
the maximum security prison. Id. at 1340. The Ohio Supreme
Court ruled that holding the trials in prison necessarily
violated the defendants' right to a public trial.
We ... hold ... that such trials offend
due process as being fundamentally unfair
because of the inherent potential for
prejudice arising [from having a prison as
the site of the trial]. ... [S]uch a trial
setting violates the spirit of neutrality
which serves as a cornerstone to modern
notions of due process. As has been aptly
stated, "the courtroom in Anglo-American
jurisprudence is more than a location with
seats for a judge, jury, witnesses, [parties
and their attorneys], and public observers;
the setting that the courtroom provides is
itself an important element in the
constitutional conception of [a] trial, con
tributing a dignity essential to the
integrity of the trial process."
State v. Lane, 397 N.Ed.2d at 1342-43, quoting Estes v. Texas,
381 U.S. 532, 561; 85 S.Ct. 1628, 1642; 14 L.Ed.2d 543 (1965).
In Vescuso v. Commonwealth, 360 S.E.2d 547 (Va. App.
1987) (en banc), the defendants were likewise prison inmates
charged with escape whose trials were held in a courtroom inside
the prison. Parting company with the Ohio Supreme Court, the
Virginia Court of Appeals did not flatly rule that any trial held
in prison was a trial held in violation of the constitution.
Rather, the Virginia court declared that extraordinary
circumstances might justify moving a criminal trial from the
traditional setting of a courthouse to a prison. Id. at 551.
However, the court also ruled that the act of holding a criminal
trial in a prison presumptively violates the defendant's right to
a public trial, and that the state bears the burden of producing
evidence to justify the transfer of the trial. Id. at 550. The
court explained its decision this way:
The practice of removing trials from the
courthouse to a penitentiary, in the absence
of any showing of overriding public necessity
or justification, offends traditional notions
of fairness and basic precepts of our
criminal justice system. The public trial
provisions of the [federal and state
constitutions] envision that our trials will
be held under circumstances which do not
inhibit public attendance or freedom of
access. We cannot think of any location
within the Commonwealth that gives less
freedom of access than ... a prison. ...
Furthermore, the character of a prison
facility is fundamentally different from that
of a courtroom at the public courthouse.
Vescuso, 360 S.E.2d at 551.
In Vescuso, the only explanation of the circumstances
that ostensibly justified holding the defendants' trials in
prison was a letter written by the trial judge in response to the
defendants' motion to move the trials to the courthouse. The
judge's letter contained what the court of appeals called
"conclusory statements" in which the judge found that prison
inmates were "no more reluctant to testify in a [prison]
courtroom than [in] a courthouse courtroom", that jurors'
apprehension about attending a trial inside a prison would not be
"significantly greater than [the apprehension] experienced when
[jurors are] called to serve at the courthouse", and that
courthouse security would be "greatly compromised when a county
courthouse is swamped with vans carrying inmates from various
[penal] institutions to be tried or to testify". Id. at 548-49.
The Virginia Court of Appeals found that the trial
judge's statements were wholly inadequate to justify holding the
defendants' trials in the prison:
[T]he Commonwealth did not produce any
evidence to show the necessity of
transferring the [defendants' trials] from
the Nottoway Courthouse to the correctional
center. The letter of the trial judge is not
evidence and[,] even if we consider the
letter, no facts or circumstances are
disclosed concerning the [defendants'] trials
... to justify [holding] their trial in a
prison. At most, the letter contains general
conclusions of the trial judge. There were
no findings of fact specifically related to
[the defendants,] and neither [defendant] was
given an opportunity to present evidence
regarding the justification for holding their
trial in a prison.
Vescuso, 360 S.E.2d at 551.
We do not mean to imply that a trial may
never be transferred from the courthouse to a
penitentiary. However, before the constitu
tional right of a defendant to a public trial
can be jeopardized, the record must contain
findings of fact showing some clear and
present overriding public interest or
justification. ... [Moreover, when the
trial court transfers a trial] from the
courthouse to another location, the trial
court must adopt and implement adequate
measures [so that the transfer] will not
unduly infringe upon the public trial
guarantee and will assure freedom of access
to the trial. Provision should be made for
reasonable notice [regarding the change in
trial site] to the parties and general popula
tion who have a right to expect the trial to
be held at the courthouse[.] Furthermore,
administrative convenience is insufficient,
standing alone, to justify a transfer of a
criminal trial from the courthouse.
Vescuso, 360 S.E.2d at 551.5
In a society that wishes to remain free, it is
imperative "that justice ... not be done in a corner nor in any
covert manner". Richmond Newspapers, 448 U.S. at 567, 100 S.Ct.
at 2822 (quoting the 1677 Concessions and Agreements prescribing
the governance of West New Jersey). By their nature, prisons are
places where deeds can more easily be done out of the public eye.
Not only is access to prisons restricted, but prisons are
perfused with physical manifestations of the coercive power of
the state. Many citizens who would otherwise attend a trial
might not willingly enter a prison. Jurors might find themselves
unable to set aside the constant reminder of the dangerousness of
any defendant incarcerated there. In trials with political
overtones, jurors and spectators alike might be intimidated by
the prison's implicit message that similar treatment awaits those
who thwart the government. These intangible factors insidiously
undermine the values supported by the guarantee of a public
trial. And these factors are at their strongest within the walls
of maximum security prisons such as Spring Creek.
Like the Virginia Court of Appeals, we are unwilling to
flatly declare that the Alaska Constitution prohibits holding a
criminal trial in a prison under any and all circumstances.
However, any decision to hold a trial in a prison must be
subjected to the strictest scrutiny, and that decision must be
supported by compelling reasons.
We initially note that, from the record in this case,
it is debatable whether Bright's trial was open to the public.
The record does show that, when jury selection was completed,
Judge Cranston invited the extra venire persons to stay and
observe the trial. And it appears that a friend or colleague of
one of the defense attorneys attended the trial. But the venire
persons were summoned to the trial by court order, and prison
officials were presumably instructed to let them enter. The
defense attorney's friend presumably learned of the trial from
the defense attorney and may well have entered the prison in the
company of the attorney. There is nothing in the record to
indicate that any measures were taken to make sure that
interested persons who came to the Seward courthouse looking for
Bright's trial would be directed to Spring Creek, nor is there
any indication that these interested persons (or casual
observers) would have been allowed entry to the prison.
Moreover, even assuming that the public was notified of
the change in the trial site and that prison officials freely
allowed members of the public to enter and observe the trial, we
rule that the superior court's decision to hold Bright's trial in
prison violated Bright's right to a public trial.
As described above, when Judge Cranston issued his
written order moving Bright's trial to Spring Creek, there had
been only perfunctory in-court discussion of the trial site. At
the omnibus hearing, the prosecutor briefly mentioned the
possibility of holding the trial at Spring Creek. One week
later, at the pre-trial hearing on January 30, 1992, the
prosecutor formally asked the court to move Bright's trial to the
prison. The defendants objected, and Judge Cranston denied the
State's request. The issue received only cursory consideration;
Judge Cranston denied the State's motion without calling for a
substantive response from the defendants.
Then, later that same day, without additional notice
and without additional input from the parties, Judge Cranston
issued a written decision moving the trial to the prison. The
judge's decision was supported by a series of nine findings.
These findings addressed several aspects of the Seward court
facilities: the physical layout of the courtroom, the ease of
holding bench conferences, the suitability of the sound
insulation in the jury room, and the manner in which in-custody
defendants and witnesses would be transported to the courtroom
from the holding cells. In addition, Judge Cranston's findings
addressed the physical capacity of the Seward jail and the
Department of Corrections' rules respecting the housing of
convicted felons in that jail. The judge's findings also
included assessments of the Seward community's attitude toward
the Spring Creek prison and of jurors' expected degree of
apprehension at having to sit a few feet from convicted felons in
the witness box if the trial was held in the courthouse.
Bright received no notice that Judge Cranston was
considering any of these factors. Moreover, as Bright points
out, most of the factors cited by Judge Cranston involve
perceived inadequacies of the Seward court facility that would
apparently apply with equal force to any criminal trial in which
either a defendant or a witness is in custody. If these factors
were sufficient to justify holding a trial in the prison rather
than in the courthouse, a great percentage of criminal trials
could be moved from the courthouse. Such a result would be
wholly inconsistent with the guarantee of a public trial and the
societal goals it serves.
Equally important, the record contains neither
testimony nor substantive discussion by the parties to support
any of Judge Cranston's findings. Many of the judge's findings
rest on debatable conclusions that were not the proper subject of
judicial notice. See Alaska Evidence Rule 201(b). The judge's
assertions about the Seward jail facilities and the Department of
Corrections' rules governing them may be true, but these findings
appear to have been gleaned either from the judge's personal
knowledge obtained earlier in other contexts or from the judge's
personal investigation in this case, an investigation whose
results were not revealed to the parties until the judge issued
his ruling. Further, the record discloses no basis for the
judge's findings regarding community attitudes in Seward toward
the Spring Creek prison.
We therefore conclude that the decision to move
Bright's trial to the Spring Creek prison was an abuse of
discretion in four respects. First, Bright's procedural rights
were violated by the manner in which the superior court reached
its decision. Bright was entitled to advance notice of the
judge's proposed findings, and Bright was entitled to respond to
those proposed findings - to test them in an adversary process -
before the judge made his final decision on the question of the
trial site. Second, there is little or nothing in the record to
support the trial judge's findings. Because this issue was never
litigated or even substantively discussed in open court, the
record contains neither testimony nor attorneys' statements to
provide an underpinning for the judge's conclusions of fact.
Third, the trial judge's findings hinge primarily on factors that
are not specific to Bright's case; rather, these findings address
the difficulties of holding any trial in which a defendant or a
witness is in custody. Instead of proving that Bright's case
presented extraordinary circumstances, these factors point out
generic problems in the design of court facilities. A great
number of criminal trials involve defendants or witnesses who are
in custody; the factors relied on by the trial judge in this case
could theoretically justify holding all of these trials in
prisons or jails - an unconstitutional result. And fourth, there
is nothing in the record to indicate that the trial judge
considered or investigated alternative measures that might have
alleviated some of the perceived drawbacks of the Seward
courthouse, so that trial could take place in the courtroom
without undue security risk while at the same time preserving the
order, decorum, and openness of the trial proceedings.
For all these reasons, we conclude that holding
Bright's trial at the Spring Creek Correctional Center violated
Bright's right to a public trial under the United States
Constitution and the Alaska Constitution. When a defendant's
right to a public trial has been unlawfully abridged, the
defendant need not show prejudice. Rather, the result is
automatic reversal. Renkel v. State, 807 P.2d at 1094. We
therefore REVERSE the judgement of the superior court; Bright is
entitled to a new trial.
_______________________________
* Sitting by assignment of the chief justice made pursuant
to Article IV, Section 16 of the Alaska Constitution.
1 In 1991, the pertinent portion of Criminal Rule 45(c)(1)
stated that, when a prison inmate committed a crime, the time for
bringing the defendant to trial commenced running "15 days from
the time action [was] instituted in the correctional facility to
impose administrative segregation" on the defendant. Criminal
Rule 45(c) was amended effective July 15, 1993; a prisoner's
placement in administrative segregation no longer triggers the
rule. See Rule 45(c)(4).
In his brief to this court, Bright argues - without citing
any authority - that administrative segregation is the equivalent
of an "arrest" for a prison inmate, that Bright was therefore
"arrested" when he was placed in segregation on October 18, 1991,
and that the Rule 45 clock began to run on that day. The supreme
court explicitly rejected this argument in Aldridge v. State, 602
P.2d 798, 800-01 (Alaska 1979).
2 Neither the Alaska Criminal Rules nor the Alaska Civil
Rules contain any reference to a "motion in limine". The term is
generally defined as any "written motion[,] usually made before
or [during] a jury trial[,] for a protective order against
prejudicial questions and statements". Black's Law Dictionary
(5th ed. 1979), p. 914.
3 As explained in more detail below, the superior court had
ruled on January 30, 1992 that Bright's trial should be held at
the Spring Creek prison rather than in the Seward courthouse.
4 A woman was on trial for murdering her husband. She took
the stand in her own defense and testified that her husband had
repeatedly subjected her to brutality and had often threatened to
kill her. In particular, the defendant "described with great
care and particularity a scene that had occurred ... about two
years earlier in Nagasaki, Japan, where [she and her husband] had
had one of these quarrels in the course of which, in a loud
voice, he had threatened to kill her". The defense attorney
continues the account:
The daily papers had quite full accounts
of this testimony. On the evening those
accounts appeared[,] I was eating dinner ...
when I was called to the telephone, and a
very genteel voice inquired if I was the
lawyer for the defendant in this murder
case[.] When I said that I was, the lady on
the phone said she had read in the New York
"Evening Post" the defendant's account of the
Nagasaki incident; that she was the wife of a
naval officer and had happened ... to be in
the hotel in Nagasaki on the evening when the
quarrel occurred; and that as her room
adjoined that in which the quarrel was taking
place, and the partitions were very thin, she
could hear, and had plainly heard, the man
threaten to kill his wife, and she felt she
ought to bring this to my attention. I asked
her if she would come out and testify, and
she volunteered to do so. ...
Her evidence, given in a resolute and
convincing manner, was very damaging to the
State and helpful to the accused. She was
vigorously cross-examined ... but her story
remained unbroken, and I always felt that it
had great weight in bringing the acquittal
that followed[.]
Wigmore, 1834, Vol. 6, p. 438.
5 Seven months later, in Howard v. Commonwealth, 367
S.E.2d 527 (Va. App. 1988), the Virginia Court of Appeals upheld
a trial judge's decision to hold a prison inmate's trial in a
courtroom housed in an administrative building on prison grounds
but approximately 40 yards outside the prison's front gate.
The defendant in Howard was charged with conspiring to
murder another inmate. The trial judge found that normal
security measures at the courthouse would not be adequate to
provide for the twenty-two prison inmates who had been subpoenaed
as witnesses. Id. at 529. Instead, the defendant's trial was
moved to the administrative building, which, according to the
record, was
totally outside of the [prison] compound.
The jurors [did] not have to come through any
bars or any gates. There [were] no bars on
any windows [or] on any doors. ... The
courtroom [was] set up with a Judge's bench,
with counsel table, with chairs for
witnesses, and a jury bench on an elevated
dais. And in all respects it resemble[d] a
courtroom.
Howard, 367 S.E.2d at 529.
Howard did not assert that this trial site violated his
right to a public trial. He did, however, raise the related
claim that holding his trial in the prison administrative
building prejudiced him by creating an atmosphere that implicitly
communicated his dangerousness and guilt to the jurors. The
Virginia Court of Appeals concluded that "the trial location did
not erode Howard's right to a presumption of innocence". Id. at
531.
[T]he record before us shows that Howard was
tried outside of the prison compound[,] in a
courtroom that "in all respects resemble[d] a
courtroom". ... The jury did not have to
pass through gates or other security devices
to reach the courtroom. The courtroom itself
was not of a makeshift character. Since
Howard was being tried for the murder of
another inmate, the jury necessarily had to
know that he was an inmate of the Powhatan
Correctional Center. We find that the jury
could reasonably have concluded that Howard's
trial was being conducted in the
administrative building for reasons of
efficiency and convenience[, inasmuch as]
[m]any of the witnesses at the trial either
worked at or were incarcerated in the
adjacent [Correctional] Center. Therefore,
we conclude that the location of Howard's
trial did not impermissibly suggest that he
was guilty ... or otherwise operate to
inherently prejudice him.
Howard, 367 S.E.2d at 531-32.
