APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD LaCIEN, PRESIDING.
McNAMARA, Rakowski, Giannis
The opinion of the court was delivered by: Mcnamara
JUSTICE McNAMARA delivered the opinion of the court:
Following a bench trial, defendant, William Garrett, 28 years of age, was found guilty of criminal sexual assault and aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, pars. 12-13 and 12-16, respectively), and was sentenced to a prison term of four years. On appeal, defendant contends that: (1) the trial court violated his Sixth Amendment right to a public trial by excluding his parents from the courtroom while the complainant testified; (2) he was deprived of a fair trial by the improper admission into evidence of several prior consistent statements made by the complainant; (3) he was not proved guilty beyond a reasonable doubt; (4) he was deprived of effective assistance of counsel; and (5) the trial court erred in admitting into evidence a statement allegedly made by him where the existence of that statement was not disclosed to defense counsel prior to trial. In view of our Disposition of this appeal, a detailed recitation of the facts is unnecessary.
At trial, the complainant testified that she resided with her mother and defendant, her mother's live-in boyfriend. On the evening of August 29, 1991, while her mother was at work, she was lying on a couch. Defendant sat down, began rubbing her thigh, and then inserted his finger into her vagina. The complainant remained on the couch pretending to be asleep, when defendant kissed her thigh, and again placed his finger into her vagina.
Defendant testified that the incident never occurred.
Defendant contends that he was improperly denied his Sixth Amendment right to a public trial, requiring reversal and a remand for a new trial. Prior to trial, the State made a motion pursuant to section 115-11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-11) to exclude defendant's parents from the courtroom while the complainant testified. The State asserted that the complainant, a 15-year-old girl at the time of trial, was of "tender years," and that the presence of defendant's parents would adversely affect her "emotional well-being." The trial court accepted the State's representations and ordered the exclusion of defendant's parents from the courtroom during the complainant's testimony. Defendant argues that the trial court committed reversible error in ordering the removal of his parents during this portion of the trial without first applying the test established by the United States Supreme Court for determining whether closure of a trial, or a portion thereof, is justified. We agree with defendant. Accordingly, we reverse and remand for a new trial.
There is a presumption that all criminal trials are to be open to the public. ( Press-Enterprise Co. v. Superior Court of California (1984), 464 U.S. 501, 508, 104 S. Ct. 819, 823, 78 L. Ed. 2d 629, 637; People v. Holveck (1990), 141 Ill. 2d 84, 100, 565 N.E.2d 919, 925, 152 Ill. Dec. 237.) The public trial guarantee was created for the benefit of defendants; it was and is believed that a public trial discourages perjury and ensures that Judges, lawyers and witnesses carry out their respective functions responsibly. ( Waller v. Georgia (1984), 467 U.S. 39, 46, 104 S. Ct. 2210, 2215, 81 L. Ed. 2d 31, 38; People v. Taylor (1993), 244 Ill. App. 3d 460, 612 N.E.2d 543, 183 Ill. Dec. 891.) The presumption of openness, however, is not absolute and may be rebutted by "'an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.'" ( Waller, 467 U.S. at 45, 104 S. Ct. at 2215, 81 L. Ed. 2d at 38, quoting Press-Enterprise, 464 U.S. at 510, 104 S. Ct. at 824, 78 L. Ed. 2d at 638.) The Supreme Court in Waller emphasized that a defendant's right to an open trial is to give way only in "rare" circumstances. ( Waller, 467 U.S. at 45, 104 S. Ct. at 2215, 81 L. Ed. 2d at 38.) Where an overriding interest is found by a trial court to exist, "[that] interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Press-Enterprise, 464 U.S. at 510, 104 S. Ct. at 824, 78 L. Ed. 2d at 638.
In the present case, the burden was on the State, as the party seeking closure, to advance an overriding interest that was likely to be prejudiced by the presence of defendant's parents in the courtroom during the complainant's testimony. ( Taylor, 244 Ill. App. 3d at 467, 612 N.E.2d at 548.) It was then the duty of the trial court to determine whether the proferred interest was legitimate and whether the exclusion of defendant's parents during this portion of the trial was essential to protect that interest. In resolving the latter question, the trial court was obligated to consider whether reasonable alternatives to closing the proceeding existed which would have served equally well to protect the interest. The trial court was also obligated to make findings on the record adequate to support the closure.
As previously noted, the State asserted that the complainant was of "tender years," and that her emotional well-being would be adversely affected by the presence of defendant's parents in the courtroom while she testified. The trial court merely accepted the State's representations and ordered defendant's parents excluded without first determining whether the asserted interest was legitimate or whether the parents' presence in fact threatened that interest. In Globe Newspaper Co. v. Superior Court for Norfolk County (1982), 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248, the Supreme Court noted that safeguarding the physical and psychological well-being of a minor isa compelling interest, but concluded that "the circumstances of [a] particular case may affect the significance of that interest." ( Globe Newspaper, 457 U.S. at 607, 102 S. Ct. at 2620, 73 L. Ed. 2d at 258.) In this regard, the Court stated:
"A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim. Among the factors to be weighed are the minor victim's age, psychological maturity and understanding, the nature of the crime, the desires of the victim, and the interests of parents and relatives." Globe Newspaper, 457 U.S. at 608, 102 S. Ct. at 2621, 73 L. Ed. 2d at 258.
We conclude that the presumption of openness was not overcome in this case, and consequently, defendant was denied his constitutional right to a public trial. The trial court first failed to determine whether the "overriding interest" advanced by the State was indeed legitimate. The record reveals that the court did not give due consideration to the complainant's psychological maturity and understanding, notwithstanding factors raised by defendant which tended to show that she possessed a level of sophistication exceeding that of others her age. Moreover, the court did not inquire as to why or to what degree the complainant felt uncomfortable at the presence of defendant's parents. Significantly, the record reveals that the trial court expressed some skepticism as to the State's claim that closure was necessary to protect the complainant's interests, as the following comments of the court reveal:
"Problem I have is she doesn't seem to feel uncomfortable, not trying to--maybe physically, if I had seen her, she doesn't seem to be--she seems to be uncomfortable in the presence of the mother's boyfriend [defendant], I can understand that.
If her age were younger I'd have no problem with that, but the fact that she's fourteen, you know, but then again, some girls are more sensitive than others. Sometimes wonder if she would be more embarrassed saying what happened in front of her father ...