APPEAL from the Circuit Court of Vermilion County; the Hon.
RALPH S. PEARMAN, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
The defendant, Douglas March, and Donald Dupree, an off-duty deputy sheriff for Vermilion County working as a bouncer at a nightclub, engaged in a gun battle at the Danville club where Dupree was working. Each shot the other. Dupree died. The defendant was charged with murder, unlawful use of a weapon, and criminal trespass to land. The defendant's motion for a change of place of trial was granted, and the defendant's jury trial was held in Coles County. The jury returned verdicts finding the defendant guilty of all charges. Judgment was entered on the murder verdict. The defendant was sentenced to 22 years' imprisonment.
On appeal, he contends: (1) The State failed to prove guilt of murder beyond a reasonable doubt; (2) the prosecutor's conduct denied him a fair trial; (3) error was committed when the trial court refused the defendant's tendered instruction concerning the use of force by an initial aggressor; (4) error was committed when the trial court refused certain defense instructions on voluntary manslaughter; (5) he was denied due process of law because the trial court refused the defense instruction on the elements of murder, which would have instructed the jury that the State, in order to prove murder, must negate beyond a reasonable doubt the elements of voluntary manslaughter; (6) the trial court erred when it refused the defendant's motion in limine requesting that the State be precluded from making any reference to the fact that the victim, Donald Dupree, was an off-duty sheriff of Vermilion County; and (7) the defendant was deprived of his constitutional right to a public trial when, over his objection, the press was barred from reporting matters which the jury was not allowed to hear.
The shoot-out occurred in the "Every Now and Thens Club" during early morning hours. Between the defendant and Dupree, 11 shots were fired. During the shoot-out, loud music was playing and strobe lights were swirling in the otherwise dimly lit club. There were 100 to 200 people inside the club — many of them dancing — when the shooting began. Apparently, the conflict arose because the defendant, who had been "barred" from the club, tried to enter while Dupree tried to keep him out.
Given the factual setting of the shoot-out, it is not surprising that the trial testimony of numerous eyewitnesses was often contradictory, confusing, and voluminous.
The defendant contends that he was deprived of his constitutional right to a public trial when, over his repeated strong objections, the press was barred from certain proceedings during trial.
As noted, the place of trial was changed from Vermilion County to Coles County because of considerable pretrial publicity. The trial court judge was obviously attempting to reduce the possibility of nonadmissible material reaching the nonsequestered jury. Thus, during two offers of proof the court excluded the members of the press. The first instance related to exclusion during defendant's offer of proof concerning the date on which he was given written notice that he was "barred" from the Every Now and Thens Club. At that time, the following occurred:
"THE COURT: The Press will leave the Court room.
THE PRESS: Are all of the other spectators going to leave the room also?
THE COURT: Not at this point, no.
THE PRESS: I don't see how you can ask the Press to leave, if you don't ask the rest of the spectators to leave also.
THE COURT: Mr. Sheriff, will you escort the Press out of the Court room.
May the record show that this is being done because the Press has refused to cooperate by not publishing matters that occur outside the presence of the Jury.
THE COURT: At the beginning of the trial, I talked to the Reporters and told them that as far as I'm concerned, they could sit in when we sent the jury out, but they weren't to put anything in the newspapers or on radio about what went on when the Jury was sent out of the room — in other words, when we were hearing arguments by the lawyers or testimony that I was going to decide whether the jury could hear or not hear, because I didn't want them to put something in the newspaper or on T.V. where the jury might accidentally hear that I had ruled that the jury couldn't hear. This goes both to your benefit or to the State's, depending on which way — what we're talking about. I told them they could print it after the trial was over, but not until the jury had decided the case. I'm talking now just about what goes on when we send the jury back into Chambers. You're there, you hear what's going on. So, they said that they would go along with that. This morning they came in and told me that their Editor had said that they couldn't go along with that. You know there were several times this last week that I sent the jury out and let the Press stay there. That was because they had agreed not to print anything of that nature. This morning they told me they couldn't honor their word any longer — they were going to have to print anything that was said, so that was why we changed procedure today. So now they've called their Editor and are going back to what originally happened, so we won't have to kick them out again. Does that explain to you what has been going on, as far as the Reporters are concerned?
MR. MARCH: I understand what he says. Can I comment on it?
MR. MARCH: Thank you, Your Honor.
THE COURT: In other words, there's some things happened here a few days ago that you wouldn't have wanted that jury to hear, that I ruled they couldn't hear. Right?
MR. MARCH: No, it wouldn't have made me not [sic] a bit of difference.
THE COURT: Well, your lawyers thought they shouldn't hear it anyway, so that's why —
MR. MARCH: From what all has been going on from the start of this that they have printed without a jury present and the benefit of the State's Attorney, I wouldn't care whether the jury printed and released whatever is going on.
THE COURT: I told them they could print anything of the testimony that the jury heard, but I didn't want them to print the arguments or any testimony we said the jury was not supposed to hear because it was improper testimony.
[Defense counsel]: Do you still want to register an objection?
MR. MARCH: Yes, I'd really like to register an objection on that."
The court indicated that after the reporters discussed the situation with their editors, it was decided that they would abide by the limitations imposed. Later this was changed and a reporter was removed, again over the objection of the defendant and over the objections for counsel for the Gannett Publishing Company and the Commercial News of Danville, a Danville newspaper. Specifically, Mr. David Nelson, on behalf of the newspaper, objected "to any exclusion of newspaper reporters in the trial * * * pursuant to the first amendment, the sixth amendment, and the fourteenth amendment of the U.S. Constitution" and cited portions of the Illinois Constitution. Counsel's objection was based upon the reporter being excluded and not being allowed to report the trial events when members of the general public were allowed in the courtroom.
• 1 Thus, the issue was joined. There were objections by the defendant and objections on behalf of the press and a partial closing of trial proceedings. The jury was not sequestered. There is nothing to indicate that sequestration of the jurors would not have guarded against their being subjected to any improper information. The action of the trial court was error. The defendant has a constitutional right to a public trial. The press, as surrogate for the public, has a constitutional right to be present and fully report the events of the trial. The following quotes from the various opinions filed in the watershed case of Richmond Newspapers, Inc. v. Virginia (1980), ___ U.S. ___, 65 L.Ed.2d 973, 100 S.Ct. 2814, apply:
"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:
`The educative effect of public attendance is a material advantage. Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.' [Citation.]
In earlier times, both in England and America, attendance at court was a common mode of `passing the time.' See, e.g., 6 Wigmore, supra, at 436; Mueller, supra, at 6. With the press, cinema, and electronic media now supplying the representations or reality of the real life drama once available only in the courtroom, attendance at court is no longer a widespread pastime. Yet `[i]t is not unrealistic even in this day to believe that public inclusion affords citizens a form of legal education and hopefully promotes confidence in the fair administration of justice.' State v. Schmit, 273 Minn. 78, 87-88, 139 N.W.2d 800, 807 (1966). Instead of acquiring information about trials by firsthand observation or by word of mouth from those who attended, people now acquire it chiefly through the print and electronic media. In a sense, this validates the media claim of functioning as surrogates for the public.
In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees. `[T]he First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.' First National Bank of Boston v. Bellotti, 435 U.S. 765, 783, 55 L Ed 2d 707, 98 S Ct 1407 (1978). Free speech carries with it some freedom to listen. `In a variety of contexts this Court has referred to a First Amendment right to "receive information and ideas."' Kleindienst v. Mandel, 408 U.S. 753, 762, 33 L Ed 2d 683, 92 S Ct 2576 (1972).
We hold that the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and `of the press could be eviscerated.' Branzburg, supra, at 681, 33 L Ed 2d 626, 92 S Ct 2646.
Until today the Court has accorded virtually absolute protection to the dissemination of information or ideas, but never before has it squarely held that the acquisition of newsworthy matter is entitled to any constitutional protection whatsoever.
Because I believe that the First Amendment — of itself and as applied to the States through the Fourteenth Amendment — secures such a public right of access, I agree with those of my Brethren who hold that, without more, agreement of the trial judge and the parties cannot constitutionally close a trial to the public.
More importantly, public access to trials acts as an important check, akin in purpose to the other checks and balances that infuse our system of government. `The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power,' In re Oliver, supra, at 270, 92 L Ed 682, 68 S Ct 499 — an abuse that, in many cases, would have ramifications beyond the impact upon the parties before the court. Indeed, `"[w]ithout publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account."' Ibid., at 271, 92 L Ed 682, 68 S Ct 499, quoting 1 Bentham, Rationale of Judicial Evidence 524; see 3 Blackstone, Commentaries, [*]372; Hale, History of the Common Law 344; 1 J Bryce, The American Commonwealth 514 (1931)." ___ U.S. ___, ___, 65 L.Ed.2d 973, 986-1002, 100 S.Ct. 2814, 2825-38.
Although this court has failed to reach a consensus on this issue, I would hold under the authority of the Richmond Newspapers, Inc. case that absent an overriding interest articulated in express findings, the trial of a criminal case must be open to the public. This trial was not open and no ...