*1 Wisconsin, STATE Plaintiff-Respondent,†
v. WEBB, L. Richard Defendant-Appellant.† Appeals
Court of 11, September No. 89-0593-CR. Submitted on briefs January 1989. Decided 1990.
(Also 628.) reported in 453 N.W.2d pending. petition Petition review and cross review This † disposed was not press. of at the time the volume went to Its disposition reported will be in a later volume.
For defendant-appellant the cause was submit- *3 ted on of Cushing, the briefs Glenn L. assistant state public defender.
For plaintiff-respondent the cause was submit- ted on Hanaway, Donald J. attorney briefs general, O'Brien, and Daniel J. attorney general. assistant Eich, C.J., Gartzke, P.J., Before Sundby, and J. GARTZKE, P.J. appeals Richard Webb from a judgment of conviction for first-degree sexual assault. 940.225(l)(d), Sec. Stats. 1985. The victim is Webb's eleven-year-old stepdaughter. dispositive The issue whether Webb's sixth right1 public amendment to a was violated when this preliminary hearing was closed to public except for "support two of the victim's per-
1 The sixth amendment to the States United Constitution provides prosecutions, all criminal the accused shall "[i]n enjoy right speedy public "public to a This trial." trial" right 757.14, Stats., is reinforced in Wisconsin sec. which sittings every public every states that court be shall "[t]he may same, freely except expressly citizen attend the if otherwise provided by law."
322 erred, sons." We conclude that the trial court the error harmless, reversed, was not and the conviction be must subject request if to reinstatement defendant does not preliminary properly second a second conducted findings justifying results in a bindover for trial. purpose preliminary hearing of a is to deter- probable
mine whether there is cause to believe the felony. has defendant committed a Sec. Stats. probable exists, If the court finds that such cause it must bind the defendant over for trial. The court made that finding preliminary. at defendant's He was bound over prosecutor's trial, tried, for But and convicted. at the objection, pre- and over defendant's defendant's liminary hearing public general except was closed rape- for the victim's mother and a member the local crisis unit. The court excluded defendant's mother and niece. undisputed,
Because the facts are whether defen- dant's sixth amendment to a trial was vio- question lated the closure order is a of law which we deference the trial decide without court's decision. Ct., 239, 244, Stevens v. Manitowoc Cir. 414 Wis. 2d (1987). N.W.2d
Relying argues Stevens, on defendant that the trial by excluding general public court erred and his *4 preliminary mother and niece from the examination 970.03(4), provides: Stats., under sec. which If the defendant is accused of a crime under s. ., shall, judge . . 940.225 at the [sexual assault] witness, request complaining of the exclude from the [preliminary] hearing persons all not officers of the court, members of the witness's or defendant's fami- supportive lies or others deemed the court to be
323 them, required or otherwise judge may to attend. The exclude all any such from the case where defendant is accused of a crime under s. against 940.225 ... chastity, morality or a crime decency.
The Stevens
court held that
"a
sixth
public
amendment
right" applies
trial
to preliminary
hearings and "must adhere
when closure is sought
complainant
Stevens,
under sec.
Stats."
141
248-49,
Wis. 2d at
Id. at
The Waller Court held: party seeking hearing to close must [T]he likely overriding interest that is to be advance an than prejudiced, the closure must be no nec- broader interest, essary protect the trial court must to closing pro- reasonable alternatives to consider findings adequate sup- ceeding, and it must make port the closure.
Waller, Press-Enterprises II Court The at 48. 467 U.S. first amendment right since a said that California, such preliminary hearings applies access specific, on the proceedings cannot be closed unless demonstrating that "closure findings are made record narrowly preserve higher values and is essential to If interest interest." tailored to serve that trial, a fair right is the of the accused to asserted only specific if hearing preliminary shall be closed that, first, demonstrating there is a findings are made right to a probability that the defendant's substantial publicity prejudiced by that closure trial will be fair and, second, alternatives to prevent reasonable would fair adequately protect the defendant's cannot closure rights. (citations II, U.S. at 13-14 Press-Enterprise omitted). Stevens that the quali-
We conclude on the basis trial, applied to a as to a fied constitutional state, only both is satisfied this First, comply with closure must exist. of two conditions complains assault a sexual applies a nonwitness latter when involv- case, complains in a case or nonwitness or when a witness provisions decency. chastity, morality, against ing crime . are not redundant. *6 970.03(4), Second, sec. Stats. the trial court must make Waller and Press-Enterprise II. findings required by the The closure order in the case before us does not comply prosecu- with sec. Stats. the Because closure, requested tor the second sentence of the statute applies. persons" The words "all such sen- the second of only tence the statute can refer to the class described not the first sentence: "all officers court, of the members witness's or families defendant's or supportive others deemed the court to be of them." [Emphasis meaning sentence, The of the first added.] well, and therefore as second is that the court cannot from the hearing court, exclude officers of the families, members of the witness's or defendant's others deemed supportive court to be of the wit- ness or the wrongly defendant. The tried court excluded at least member one of defendeuit's family, his mother. the tried
Because court's closure order violates sec. 970.03(4), Stats., qualified defendant's constitutional Stevens, right 248-49, was violated. 141 Wis. 2d at N.W.2d at 836. We need not decide whether court's findings the requirements Waller meet established eind Press-Enterprise II.
Befendemt's
to a
preliminary
violated,
having
examination
been
he is
to relief.
entitled
The federal view is that
defendant
prove
a
need not
specific
prejudice
obtain relief for a violation of the
Waller,
public-trial
guarantee.
&
49-50. was violated at a suppression hearing. The Waller Court remanded new, public suppression hearing, case for and for a only new the results of that differed sub- stantially from the improperly results of the conducted Id. at hearing. 50. case,
In this
the constitutional violation occurred at
A
hearing.
to appel-
defendant
entitled
validity
late review of the
of the bindover for trial even
Olson,
after trial and conviction. State v.
75 Wis. 2d
*7
584,
12,
Sorenson,
(1977);
N.W.2d
17
250
State v.
135
468, 471,
508,
(Ct.
Wis.
App. 1986),
2d
400 N.W.2d
510
grounds,
226,
rev'd on other
2d
143
However, an unqualified inappropriate reversal is in this in remedy case view of the Waller granted the Court suppression for of in right public violation the to a trial By the hearing. analogy remedy., to Waller we reverse the judgment of conviction and remand to the trial court to if preliminary hearing, conduct a second defendant the requests. hearing satisfy so The must the con- public comply stitutional to a otherwise with If hearing the law. the evidence at that satisfies the probable felony court that cause exists to believe a was defendant, judgment committed then the of con- judgment viction should be should reinstated. The also days be reinstated fails within after defendant request preliminary hearing. remittitur second By Judgment reversed and cause Court. — for consistent with this proceedings remanded further opinion. my (dissenting). respectfully I
EICH,
record
C.J.
majority opinion
I
case because
this
dissent from
970.03(4),
complied
Stats.,
and,
with
was
believe sec.
further,
its discretion to
the trial court exercised
spectators
conformity
with the
the two
exclude
requirements
Ct., 141
Stevens v. Manitowoc Cir.
Wis.
of
(1987),
related cases. I
Recognizing the rule that statutes should be con results, strued to avoid irreconcilable conflicts or absurd DHSS, 574, 579, Thelen v. 143 Wis. 2d 422 N.W.2d (Ct. 1988), App. persons" 148 I read "all such in sec. 970.03(4), referring affirmatively, Stats., as to those negatively, immediately before; rather than is, named court, "officers of the members of the witness's or supportive defendant's families or . . . others of them my Thus, view, . . .." the statute's first sentence requires proper request, court, on to exclude all those categories; who are "not" those named and the second gives sentence the court discretion to exclude those who Any discretionary exclusion, course, are. such must meet a constitutional test as well. overruling past Stevens,
In
court,
cases,
held for
the first time that "a
sixth amendment
right" applies
preliminary hearings
and "must
sought by
complainant
adhere when closure is
under
Stevens,
sec.
248-49,
Stats."
141 Wis. 2d at
procedure
psychological the nature of and victim and the victim's crime, desires of the and the the give great Finally, family not should but . . the court weight is of the victim to the desires exclusive since by policy proper public "clearly as evidenced shown to be 970.03(4)." Stevens, 141Wis. 2d at of sec. the enactment 254, 414 at 838-39. N.W.2d properly discre- exercised its
I the trial court believe charged First, was of a most crime in this case. tion stepfather on his assault nature —sexual sensitive stepchild. likely of a crime more It is difficult to conceive possible child trauma to a emotional stress to cause parent. Second, the assault witness than sexual why the record it excluded articulated on court hearing. The court asked relatives from the defendant's relationship, attorney "[w]hat is the the defendant's present people any, who are between the two that exists they Upon learning that in this case?" and the victim and niece—and thus also the defendant's mother were given the court stated that relatives of the victim—the people people [the victim] who she is that these are "fact being associated with the defendant familiar with as grant case, I and will ask that these this will the motion from the courtroom as two individuals will be excluded well." support findings of its
The court made additional prosecutor old the com- court asked the how order. The " representation plainant [u]pon was and found that being prosecutor] made at [the of request that the age alleged given victim, of the grant I motion . . .." The [twelve] victim ... will emphasized dealing that, "If here with an we were court my victim, would be other adult then determination than it has." *10 appears grounded
It thus that the court its closure (1) age order on: the crime; victim's the nature of the (2) request the fact that the for closure came from the prosecution (3) behalf; on the victim's the fact that the defendant, excluded were relatives of the the stepfather, victim's and were thus familiar to implicitly, finding which, least, at amounts to a her— presence embarrassing that their court would be or traumatic to victim.
Finally, sufficiently narrowly I believe the order was (and victim's) tailored to meet the state's to desire upon avoid the embarrassment and trauma attendant hearing unduly burdening nature, of this without Webb's First, to trial. I note that the transcript part public record; remained of the it was neither Second, sealed nor otherwise restricted. it appears objection that Webb's order was not that proceedings only public, it closed the to the but it permit did not his mother and niece to remain attorney's courtroom. After the district initial courtroom," clear "to and close the defense counsel your they're me, stated: "That's fine with going If Honor. not any support people here, have that's fine." prosecutor Then, when the he stated wished to have the rape present, victim's mother and the counselor defense position that, statute, counsel took the under the court] none, "[e]ither [the excludes all he excludes except support people" .. . for for both the victim and the defendant. specta- statute,
Under exclusion including "support persons" discretionary tors— with the trial court. In —is light circumstances dis- including relationships above, cussed the familial defendant, between the the victim and the defendant's explanation relatives, I believe the trial court's of its decision, sketchy, unfortunately minimally ade- while Stevens. quate under