*1 20399. Nо. Thompson v. Robert People State of Colorado. (399 776) P.2d 8, 1965. Decided March *2 S. Arthur in error. Bowman, plaintiff Frank E. Hickey, Dunbar, Attorney General, Duke W. in Moore, Assistant, John P. for defendant error. Deputy, En Banc. of Moore delivered the the Court. opinion
Mr. Justice whom refer the de- error, in we will as Plaintiff first-degree of crime of guilty found fendant, was court cause the district of Gunni- originated The rape. an filings information in which upon county son defendant: alleged that the it was * * “* make forcibly did and an feloniously wilfully Keltz, one Sue Kitty assault fеmale person and and there wife, and there his did then felonious- then and violently forcibly by threats of and ly, immediate harm him, accompanied ap- to her from great bodily execution, her power against will, and she parent resisted and her having resistence been over- having immediate and threats of violence said force, come forcibly rape bodily her, know great and harm, did and Kitty Keller did then and Alfred Keltz, Sue the said wilfully feloniously aid, abet stand and and there perpetrating Thompson assist the Robеrt said rape, against Kitty Keltz, Sue aforesaid crime of the said ** contrary form to the of the Statute Thompson entry pleas guilty by Upon Keller, and his co-defendant a motion for severance was by each each Al- defendant, filed was denied. charged guilty fred Keller was found not the crime against finding jury him. The returned a verdict the de- guilty charged fendant entered court judgment that he a term serve of not than seven less years penitentiary. nor more than fourteen in the state argument plaintiff presented of counsel for eight separate captions this court under follows: “A. The Court erred in denying defendant’s motion *3 separate trial. closing public. The “B. Court erred in trial to the refusing “C. The Court erred in to set aside verdict as contrary to and law evidence. instructing jury.
“D. Court The erred in striking testimony “E. The Court erred in of defend- ant’s character witness. declaring
“F. The Court erred in not a mistrial jury’s return for further instructions. arbitrary capricious The “G. Court was denying and
probation. arbitrary The capricious Court “H. was impos- and ing an punishment.” excеssive and unwaranted only arguments warranting pre- discussion are sented this court under “B” Sections and “D.” A care- study clearly ful of the record reveals that the other as- signments of are error without merit. argument first We consider of counsel that closing court erred “in public.” trial to the In this following:
connection the record discloses the At the impaneled, jury and before trial, outset of the Knous) (Mr. court attorney addressed prosecuting following proceedings and forth, hereinafter set occurred: spec- рlease, your I move at this time Honor
“If purpose legitimate court- to be in the no have who tators rape case. the trial. This excluded room be testimony, testi- and also medical certain There mony bewill prosecuting think would witness permitted spectators not be should idle such that especially fact that the al- courtroom, leged in view of prosecutrix, Western State victim, attended college might College stu- be certain here, and my opin- In interest in this matter. that have some dents properly type case the Court could it is the where ion, special reason for have no lis- exclude tening to the trial. you give
“THE the Court a brief state- COURT: Will evidence in- ment nature of troduced? testify prosecutrix, will course, KNOUS: The
“MR. alleged rape go concerning detail, into some testify to some con- medical doctors will extent two anatomy, cerning hy- refer to the female vagina such as that. men and and matters any there be evidence introduced Will “THE COURT: concerning removal clothes? either side prоsecuting testi- witness will Yes, “MR. KNOUS: fy as to that. what extent?
“THE COURT: To Virtually your clothes, of her Honor. “MR. KNOUS: girl? is this “THE COURT: How old *4 might And there also KNOUS: some testi- “MR. language concerning particular mony in this obscene words. four-letter age girl? What is the of this “THE COURT: girl 20is at this time. KNOUS: The “MR. age boys? And about the
“THE COURT: what boy, know I don’t believe, I is 22. One KNOUS: “MR. age boy’s is. what the other boys, were two I understand, As
“THE COURT: present two of them defendants, two place, alleged rape how old taken was to have when boy? other is the January, girl this be 21 in
“MR. KNOUS: The will month. boy 24th 20 on the BRATTON: The other
“MR. of December. girl 21 in understand, I will be KNOUS: As
“MR. Jаnuary, I that there would month, but do think this college quite here at the a number of students being present since be interested girl parties involved are known defendants here in Gunnison. attorneys for the I assume that the
“THE COURT: among yourselves, discussed this defendants have two your po- you the Court make, care to to advise do motion? sition Your defendant Honor, KLINGSMITH:
“MR. objects Thompson strongly to an exclusion Robert public 16 of the Con- II, this trial. Article Section guarantees in crim- Colorado defendants stitution of trial. inal trial the but course, “THE COURT: am familiar with that, you the sound consent discretion of do Court? I think that I think the
“MR. KLINGSMITH: is true. discretion, whether to does have the exclude some Court spectators point from a trial, but or all of want to guarantee believe should the Constitutional out lightly considered but other Court, not be on the only in- Court should most serious of hand, from a Mr. Knous Now, stances exclude trial. statement said that idle in his who have no at the should be business We excluded. wish point public, your public’s pres- out that the Honor, the *5 very salutory ence effect. at triаl has a and beneficial public’s By point con- that is the wish to out that it public’s It is the is the all, cern. business. After it plaintiff they case, who is in this are entitled to the procedure the courtroom, watch that is carried in anything lightly and it is not that should denied to public. point view the defend- Now, from many particularly we feel in ants, this case there are might likely exaggerate witnesses more or to perhaps story color stretch their a little bit if it is private proceeding they more or less a closed, than would glare publiсity, you be in the white will, if shining strongly rights on this trial. We feel that Thompson seriously our client Robert here would be prejudiced many feeling if of these witnesses had private testimony this awas affair and if their is given public. not tested the fact that it were in By agree you “THE COURT: token, the same with do me that under certain circumstances insofar as deli- testimony especially by cacies certain is concerned, might give the victim, that she be inclined to a little story more truthful of some of the sordid details that general public she unravel if was excluded. way your “MR. KLINGSMITH: we look at is, alleged Honor, we think that the victim would be con- siderably likely stay more to with truth if present. everybody strongly were her I think Now, considers feeling in this but we wish to the Court’s call right liberty attention to of our client Robert Thompson, say, he stands, know, as we all being penitentiary chance of sentenced from three years fight open to life, and when his to an trial, his rights trial, fair and his to a fair and full dis- against pos- of the facts are closure considered some rights sible her, embarrassment think that his are particular rights thing instance, his to have this public, outweigh slight far made embarrassment, may that additional embarrassment, be caused her idle citizens, spec- interested a few more having tators, at this trial. present sure, I am agree, Of course, you
“THE COURT: will case is The ultimate object with this statement. done, prosecution’s justice regardless to see *6 I don’t the defendants. of victim, regardless and alleged the excluding general public how just understand quite how it trial, the I don’t see courtroom from the if all of the client, the of rights your jeopardize would have a to in put in parties evidence was which the how that to, would testify the themselves which people the client. injure rights your would of Honor, that state- We think, your KLINGSMITH: “MR. fact, in trial, this made in to be going ments are are made. to be conflicting going statements know that not going these statements are that some of We know of these untrue state- feel that some true, and we to be made, be will be closer I feel to going ments are to them than listening is here public the truth if the to that this a chamber the idea is get if these witnesses pub- if glare would the white of they than proceeding We their remarks. think this is to licity given were taken from defend- away to be the lightly not something additional slight the embarrass- we think and ants, result, it would much better be might ment which this and that courtroom, in people few extra have a be might witness prosecuting embarrassment slight being with the that are nothing compared rights to is put having pro- a closed by the defendants from away taken of con- As the doctors is testimony far as ceeding. are to be certainly they going embarrassed cerned, going There are affected persons publicity. courtroom, Knous, concerning the whole Mr. and it in away base, off be- public, the protection in course, there is the law that cause, nothing says of and, from protected listening should be the ex- only possible that could reason for course, from the doctors, cluding testimony certainly way going because it not to affect them one listening testimony.” or another toas who is to their reserved, ruling jury after a had court until thereupon bеen and ruled follows: sworn, selected as respect “THE Let record show that with COURT: yesterday attorney motion made the district concerning spectators exclusion of all court- thought given room, that I have this matter considerable quite day yester- I interested consideration. was day type people to the who attended the sessions. jury Most were those who were panel. younger people However, I numerous observed recognized audience, of whom I one at least college student. This student was other with others, knowing young people, they whether college, position course, am not in occupation to state what their business or be, or they whether were students. However, feel in this type type going testimony case that is *7 particu- be introduced and elicited witnesses, from the larly prosecuting the accuser, witness or the it good permit purpose public gen- would no serve erally during in the be courtroom the course of trial. public. I realize that trial should be I have no thought exсluding press. thought I have no ex- cluding primarily the relatives or others who are inter- parties in ested case, actual relatives of the them- prosecuting selves, or the am witness. Therefore, granting the motion under these one, conditions. Number degree that all near relatives within at least the third prosecuting of both the defendants witness be permitted to remain in the courtroom, and that all mem- press permitted bers of the be to remain in the court- necessary room police and, course, all cоurt officials, attorneys bailiff, officers, excluded at All law. others be shall during the course of the trial. employees
“MR. KLINGSMITH: How about of the at- torneys’ offices?
424 attorneys have employees of the If the
“THE COURT: assist bring in courtroom to be occasion or reason papers, delivery employers such as with may they and out come in etc., office, back to the books, only, they be will courtroom, but of the everyone else. excluded like ruling friends Will this exclude “MR. WHITTINGTON: transportation?” provided parties who have of the par- friends of exclude “THE COURT: This will talking you about friend- friends, about start ties. When might ship, must area, a broad as to who that covers they will friend, but a are relatives. be a friend * * *” say, they unless, as be excluded People, attorney general relies on Benedict v. supporting contention that 637, Pac. his Colo. right to his constitutional not denied defendant was “public alia, inter that: In that case was said, trial.” a public, trial not secret. case the must
“In a criminal necessarily contemplate trial does But every person curiosity de- for indecent morbid whose curiosity grati- him thither shall have that tails draws presеnt being permitted court to be room fied disgusting facts.” the recital of listen to presented Benedict far different case However In in the instant case. than is shown situation factual that the accused support claim in case, the appeared was denied in of the court officials, form of “affidavits of some clerk were filed which it is certifies excluding the court made an order from the stated progress persons court room except bar, courts, members of the officers of the stu- law, at in thе case.” dents and witnesses *8 axiomatic that an order the court which It is assignment properly the basis of an of error is forms appellate court for consideration when it is an before presented person form of an
in the affidavit of some to have heard the order made. claims Court orders are certi- a matter of must record and the record as made be appellate fied Benedict court. Moreover in any any no kind that the defendant made objection to refer- the сlaimed order of exclusion. With point opinion ence states: “* * * by attempt is no made the defendant to show objection by him at to the order was made showing, contrary under time, and absence of a general proceedings rule a court of record presumed regular, assuming justified are we are request, that it was made at consent, with the the accused himself.”
Article II, 16, Section Constitution of Colo provides, alia, rado that: inter prosecutions “In criminal the accused shall have the * *
right proсess compel *; to have the attendance of speedy public witnesses impartial jury his an behalf, and (Emphasis supplied.) Substantially provision same is to be found in the Sixth Amendment to the Constitution United States.
We hold that under the facts disclosed record in this case the defendant was denied consti right Many tutional to a trial. authorities support cited in of our think conclusion. it suf We ficient to make reference to United Kobli, States v. F.2d in which will be found annotations to numer throughout ous tion, of courts of last decisions resort the na approve opin most which we have read. We ion quote in the Kobli case, from which we as follows: “* * * necessary At the outset we note that is not appellant prejudiced for the to show that she in fact judge. the action of If that action violated right agree her constitutional with the Courts of Appeals Eighth and Ninth Circuits a ‘viola implies tion necessarily preju of the constitutional appear. more dice, and than need not Furthermore, impossible, it would be if difficult, in such cases for *9 To definite, injury. a to personal to point defendant safe- destroy or impair him to would require do so guard.’
[*] [*] [*] decide, there- we have to narrow question “The such Amendment permitted Sixth is whether fore, from public all the members of exclusion of general contrary, on the whether, or of the defendant trial those of exclusion was limited to judge’s power not was available space of the for whom public members inter- conduct such to courtroom or whose in the ought or who justice the administration fere with been permitted morals to have interest of public In be given. which was to testimony likely to hear the to exclude words, judge power did the trial have other those except special all of the public having members trial or should his order of exclusion concern with the classes of persons been limited those or persons have have specific reasons proper should not for door attend, leaving the courtroom been permitted all who desired for other members open for available in attend and whom there seats courtroom? con- reached the consideration have
“After mature two with the views of present in accord clusion, which have passed upon of Appeals United States Courts Amendment the Sixth pre- question, precise indiscriminate exclusion the public general cludes the case in federal court over a criminal defendant and limits the trial judge objection classes of persons to the exclusion of those persons lack of justified by exclusion particular whose them. or for space particularly applicable reasons the view in earlier been an may have Moreover whatever modest we think that franker age, formally and more attitude of the toward present day more realistic mem- a determination sex precludes matters of public, experienced bers of the as well mature impressionable, may reasonably as the immature and excluded from the trial of a sexual
offense ground reaching morals. In our conclusion we passing upon are, course, different situation prosecution statutory which arises in a such *10 rape, prosecuting in which the such witness is of tender years seriously giving as to be embarrassed in her testi- mony by presence the of not concerned with the trial. It has been held that in a such case the trial judge prevent miscariage justice may in order to a of testimony the witness’ exclude all members of directly not the concerned with trial.” argued refusing
It is court erred in give by an instruction tendered defendant, follows:
“INSTRUCTION BNO. chаrge rape against “The of made Rob- defendant, Thompson, by ert its nature a most heinous and one strong prejudice against calculated to create well the ac- jury cused, the attention of the is directed to the difficulty, growing out of the nature of the unusual cir- cumstances connected with the commission of such a defending against rape, crime, the accusation of though ever so innocent. charge rape easily
“The of made difficult to disprove; testimony prosecutrix, thereforе, Kitty Keltz, Sue should be examined with caution.” given such an
Whether instruction should be in a of case largely kind is matter which rests in the sound People, discretion trial court. Slocum v. 120 Colo. 207 P.2d say 970. In the instant case we cannot was an abuse of discretion court in re- fusing give People instruction. The case of the did wholly upon unsupported rest pros- word ecuting particulars witness. In several relevant her testi- mony was corroborated admitted circumstances evidence from other witnesses. judgment remanded is reversed аnd the cause
a new trial. dissents. Justice McWilliams
Mr. participating. Mr. Justice Schauer Frantz concurring: Mr. Justice everything is said with am in accord make opinion I would However, Mr. Justice Moore. give perspective to believe some observations my the fact I am motivated appellate so concurrence. opinion, my have, in courts state number right meaning ato of the constitutional inverted public trial. Bill our of Colorado is II of Constitution
Article Rights provides: Rights. Bill Section prosecutions, have the accused shall “In criminal * ** speedy trial...” *11 right guaranteed constitutional is a substantial This only charged crime and to be waived to one with accused. part appellate tendency on the has been a
There public only to admit to order exclusion courts of the persons hear the trial criminal cases where to certain brought may unsavory details be out evidence. clearly important of this constitu- an inversion is This provision. tional public firmly that a trial means that am convinced open exclusion, trial shall (such necessаry the ten-
if because of circumstances as years a der of one who would like to hear sensational case), apply properly only ex- should to individuals i.e., should not be the cludable; the converse only and the admission of of the the exclusion persons hear the trial. certain Mr. Justice dissenting: McWilliams portion respectfully must dissent from Thompson opinion majority was de- which holds “public guaranteed right Ar- nied his to a trial” § con- In this 16 of Colorado Constitution. II, ticle Thompson claim that he denied neсtion makes no was any right guaranteed Consti- him United States being denied the tution, contention that he was his “public required by trial” the Colorado Constitution. judicial uniformity just lack what is a as to
There
seq.
“public
p.
a
trial.” In Am. Jur.
et
constitutes
appears
following:
harmony
question
are
decisions
on
“The
right
public or a
the court has
whether
a
exclude
prog-
part
public from
courtroom
According
it
to some decisions
criminal
a
trial.
ress of
may
may
According
it
....
not.
others
$
H*
$
$
necessarily
does
have to
“A defendant
show
actually
appeal
prejudiced
an
on account of
that he was
public trial,
his
to a
be-
invasion of
constitutional
presumes
an
cause when such
invasion occurs the law
impartial
However,
not have
that he did
a fair and
trial.
held not to
reversible error to exclude
been
has
spectators
no
whatever that
when there is
thereby
deprived
prejudiced
defendant
person
any
presence
presence, aid, or counsel of
whose
advantage
to him.”
have been of
“public
constitutes
trial”
the issue
to what
a
Hence,
“public
a
because
less
trial”
whether
judge
courtroom dur-
excludes
ing
example,
sex
there is
trial,
one
diversity
judicial thinking. Accordingly,
if this
impression
*12
a matter of first
be
Colorado,
would
we
adopt
appeals
as be-
the construction which
free to
to us
ing
logical.
and
But
not a matter
more reasonable
this is
already
impression in Colorado, as this
of first
Court has
People,
spoken
23 Colo.
Benedict v.
on this matter in
this
said:
126,
As Court this have just overruled Benedict what “public trial,” constitutes a but hаve also overruled that part declaring Benedict case that a defendant must prejudice resulting show actual from the exclusion order. recognize majority that the of this Court have at- tempted distinguish Benedict case from the one at my hand, but in view these are inconse- distinctions quential in nature and in nowise detract from the funda- regard mental rule enunciated in that case. In this it is Ap- of interest to note that the United States Court of peals, Third Circuit in United States Kobli, v. 172 F.2d authority primarily upon by relied majority support Benedict case in Court, cites the of the fol- lowing: courts, however, state taken have
“Some the further involving position per- cases sexual that in offenses it guarantee pub- not in violation missible, of a general public entirely exclude the trial to lic from permitting, in addition to the courtroom, court officers jurors, only parties involved in the trial, their present.” counsel, witnesses, relatives and friends to be agreement appraisal I am in substantial with this Benedict case made in United Kobli, States v. supra.
431 Reagan My general thinking subject in found on this the Court of States, United Circuit v. F. where Appeals, Ninth Circuit stated: revers-
“We think better is that the doctrine it is not by ible the error to as was exclude the done order the there no bar, court in case when at prejudiced whatever that the defendant was thereby, deprived presence, or counsel of aid or advantage any person presence might whose have been of provision public him. The trial to constitutional for a construed a should be in reasonablе and in view sense, object thereby intended The mere to be subserved. ground denial of the literal should not held for judgment, reversing perceived a unless it can deprived the defendant been of some benefit or ad- has vantage thereby. only
“The conceivable benefit defendant deprived been have order of court in this presence was the case in the courtroom of a crowd of gaping curiosity idle, ioafers, whose morbid would lead consequent such a trial, them to attend and the embar- annoyance presence might their rassment cause to girl testify unfortunate who was called to to story of the defendant’s and her crime shame. Of deprival legal benefit the defendant has no ground complain. to not, The was the order of court, rendered secret trial. In a still sense was jury, trial. In addition the court and present courtroom the officers the court, government for the the witnesses and for the defendant, respective parties, counsel and the and mem- no of the bar were excluded. Thеse bers ficient constituted a suf- plaintiff
number of the see that the fairly unjustly dealt with and not error condemned.” Applying the result and rationale of the Benedict controversy, I case to the instant am of definite view “public Thompson received a trial” and further totally resulting any prejudice he show has failed to judge. exclusion entered from the order as The exclu- “secret trial.” Most this was certainly had real attend who sion order permitted relatives including interest to be legitimate present, defendant, the third of both the victim and the degree for all practical well of course. order press, spectators, who were mere purposes excluded those college included some students. apparently *14 though that a trial trial” even “public would hold or- by appropriate sufficient judge from the courtroom a “sex trial” der excludes those who are mere or only gaping sight- error excluding seers. In the instant case find no In courtroom all those who fall into this persons category, including young college students, whose interest 20a old tell how hearing year girl just the defendant her would forcibly raped satisfy be to their morbid curiosity prurient longings.
I would affirm this judgment.