IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
June 21, 2000
THE PEOPLE OF THE STATE OF ILLINOIS,
STEVEN R. GOSTELE,
Appeal from the Circuit Court of Kane County. No. 95--CF--2407 Honorable John L. Petersen and Grant S. Wegner, Judges, Presiding.
The opinion of the court was delivered by: Justice Rapp
Defendant, Steven R. Gostele, appeals his first-degree murder conviction, alleging a violation of his constitutional right to a public trial (U.S. Const., amend VI; Ill. Const. 1970, art. I, §8). We affirm.
The facts necessary for a sufficient understanding of this appeal are as follows. In November 1995, defendant was indicted for, among other things, first-degree murder (720 ILCS 5/9--1(a)(2) (West 1994)) in the stabbing death of his estranged wife, Cathie Gostele. The case proceeded to trial in June 1998.
On the fourth day of trial, the trial judge, Judge John L. Petersen, outside the presence of the jury, had the following exchange with a courtroom security officer:
"THE COURT: Lieutenant Johnson, in this type of case is it the policy that there be two security officers in the courtroom?
LIEUTENANT JOHNSON: Yes, sir.
THE COURT: Okay. Then I have to do one of two things. The issues in this case are such that they require the undivided attention of the jury as well as myself and the lawyers. People pay no attention to the signage in what I call the vestibule. So, we have two options, either to have an additional officer outside to enforce that, or to close the door. Can we do either?
LIEUTENANT JOHNSON: Let me check with what I have goin' on downstairs. We have been real busy this morning.
THE COURT: There have been all kinds of people standing at the window for various lengths of time.
One time I asked the officer in the back of the courtroom to have people step out, and what happens is every time somebody, out of curiosity, peers through the window, the eyes of all the jurors, the lawyers can't see this, switch to who is that, what are they doing, that's the facial expression, and I do the same thing myself, it's an automatic reflex.
And given the nature of the case, we need to avoid that, whichever action it takes.
LIEUTENANT JOHNSON: See what I can do for you."
The next day, the trial court addressed the courtroom. Again outside the presence of the jury, the judge stated:
"Before we have the jury, be seated Mr. Gostele, I want to be sure that all of the potential spectators understand the rules that we're gonna follow, and they apply across the board without exception.
Issues being tried in this case have serious consequences to the participants. The Supreme Court of the United States some years ago in a case entitled Ohio versus Shepard [sic] quite clearly set forth the responsibilities of the Trial Court Judge to maintain an orderly courtroom. Every time we take a recess I announce when we're gonna resume, it's never sooner than what I announce. Everyone has a right to be in the courtroom, but they do not have a right to turn the courtroom door into a revolving door at a department store that's having a sale.
When a witness is being examined, people in the courtroom when we start are allowed in to the extent that there are seats. If you leave during a period of time when the Court's in session, understand that you will be readmitted only after we take the next recess.
And in a point in time when we have reached final arguments by the attorneys, fundamental fairness requires that the attorneys be allowed to make their arguments to the jury without distraction in the back of the courtroom, and when we get to the point that there are final arguments, if you are not in the courtroom when those start, you will not be admitted until there's a recess. That will apply to everyone involved."
No objection was made by either side. Later, during a break in the jury instructions conference, the trial court reiterated its policy, stating:
"As I hope I made clear this morning, that while final arguments are in process, no one will be allowed to enter the courtroom, and I would urge that unless there is a serious need, that no one leave the courtroom. That is only fair to the attorneys that they have the undivided attention of the jury while making their final arguments.
If you were a participant in the trial directly, I'm sure you would want and expect the same consideration."
Again, no objection was made by either side. The next day, prior to closing arguments, the trial court asked the courtroom security officer to make an announcement in the hall that, once final arguments started, no one would be allowed in the courtroom until the arguments were completed. Pursuant to the trial court's policy, several spectators were prohibited from entering the courtroom while court was in session. Spectators were permitted to enter the courtroom during each recess until the proceedings recommenced. Closing arguments were presented, and the jury convicted defendant.
Defendant filed a posttrial motion, arguing, among other things, that the trial court improperly closed the courtroom to the media and the public without the knowledge or consent of defense counsel. Thus, according to defendant, his right to an open and public trial was violated.
A hearing was held on this issue before Judge Grant S. Wegner. At the hearing, three witnesses testified that they were denied entry to the courtroom while court was in session because they arrived late. Each witness testified, however, that he or she was allowed to enter the courtroom at a recess and remain throughout the proceedings if he or she wished. Two of the witnesses were members of the media; the other was not. After hearing arguments, Judge Wegner denied defendant's posttrial motion with regard to the public trial issue. The remainder of defendant's posttrial motion was also denied, and defendant was sentenced to 55 years' imprisonment. Defendant timely appealed.
The sole issue raised by defendant is whether his constitutional right to a public trial (U.S. Const., amend VI; Ill. Const, 1970, art. I, §8) was violated by the trial court's policy of prohibiting entry into the courtroom except during breaks in the proceedings. The State contends that defendant has waived this issue by failing to contemporaneously object at trial, even though the issue was included in a written posttrial motion. We agree with the State.
Our justice system presumes that criminal trials are to be open to the public. Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508, 78 L. Ed. 2d 629, 637, 104 S. Ct. 819, 823 (1984). Because the right to a public trial belongs to the defendant and not to the public (see Waller v. Georgia, 467 U.S. 39, 46, 81 L. Ed. 2d 31, 38, 104 S. Ct. 2210, 2215 (1984)), the right may be intentionally or inadvertently waived by the defendant's failure to contemporaneously object at trial to the closure of the courtroom (see Levine v. United States, 362 U.S. 610, 619, 4 L. Ed. 2d 989, 996-97, 80 S. Ct. 1038, 1044 (1960)). Thus, except in limited circumstances, the failure to both object at trial to an alleged deprivation of the right to a public trial and to raise the allegation in a written posttrial motion waives consideration of the issue on review. People v. Enoch, 122 Ill. 2d 176, 190 (1988).
Here, there is no dispute that defendant failed to object at trial to the trial court's stated policy of prohibiting entry into the courtroom once proceedings had started until a recess was called. The trial court made its policy clear to everyone in the courtroom on at least two occasions. There is no allegation that defendant and his counsel were not present during these times. In fact, at the outset of one of the trial court's iterations it specifically addressed defendant, stating:
"Before we have the jury, be seated Mr. Gostele, I want to be sure that all of the potential spectators understand the rules that we're gonna follow, and they apply across the board without exception." (Emphasis added.)
A reasonable inference can be drawn that, because defendant was present, defendant's counsel was also present. Defense counsel testified at the posttrial motion hearing that during breaks she regularly consulted with the defendant and was with him throughout the proceedings. Moreover, the trial court would not have made a statement in the presence of defendant without defense counsel being present. Yet, in the face of the trial court's clear statement of its policy regarding movement into and out of the courtroom while court was in session, no objection was lodged by defendant. Thus, the issue of the deprivation of the defendant's right to a public trial was not properly preserved.
However, in a criminal case, an improperly preserved issue may be reviewed under the plain error doctrine (see 134 Ill. 2d R. 615(a)). The plain error doctrine is applicable (1) where the evidence was closely balanced or (2) where the alleged error was so grave that the defendant was denied a fair trial. People v. Redd, 173 Ill. 2d 1, 27 (1996). Neither condition exists in this case.
Our review of the record indicates that the evidence overwhelmingly established defendant's guilt. Defendant admitted at trial that he told several people that he would rather kill his wife than lose his kids. According to an Elgin police officer, defendant made a statement after being read Miranda warnings. In the statement defendant confessed to stabbing his wife twice in the torso with a knife during a heated argument. Afterward, defendant abandoned the knife in a garbage can on a street near his house. The evidence against defendant simply was not closely balanced.
Neither was the alleged error so grave as to deny defendant a fair trial. In fact, there was no error at all. The record clearly contradicts defendant's assertion that his trial was not open to the public. Testimony presented at the posttrial hearing established that the courtroom was generally filled to capacity during the proceedings.
There was not a general prohibition of the public. Granted, a few spectators were denied entry during times when court was in session, based on the trial court's desire to avoid "a carnival atmosphere" (see Sheppard v. Maxwell, 384 U.S. 333, 358, 16 L. Ed. 2d 600, 618, 86 S. Ct. 1507, 1520 (1966)) in the courtroom. This does not, however, rise to the level of depriving defendant of his constitutional right to a public trial. See, e.g., Commonwealth v. Jubilee, 403 Pa. Super. 589, 593, 589 A.2d 1112, 1113 (1991). A trial court has discretion to place reasonable restrictions upon spectators' entrance or exit from the courtroom while court is in session, in order to avoid unnecessary distractions. See, e.g., Sheppard, 384 U.S. at 358, 16 L. Ed. 2d at 618, 86 S. Ct. at 1520. Nothing in the record before us indicates that the trial court abused its discretion in this regard. Because the trial court did not commit error, the plain error doctrine is inapplicable in this case. Defendant's contention on review that he was deprived of his constitutional right to a public trial is therefore deemed waived.
For the foregoing reasons, the circuit court of Kane County's denial of defendant's posttrial motion with respect to his constitutional right to a public trial is affirmed.
BOWMAN, P.J., and GALASSO, J., concur.
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