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State v. Lormor

July 21, 2011

STATE OF WASHINGTON, RESPONDENT,
v.
DEAN MARTIN LORMOR, PETITIONER.



The opinion of the court was delivered by: C. Johnson, J.

EN BANC

This case asks us to determine whether the removal of a person from the courtroom, under the facts in this case, was a closure in violation of the right to a public trial, and, if so, whether such "closure" can be considered too trivial as to implicate a defendant's constitutional rights. We hold that the exclusion of one person is not a closure that violates the defendant's public trial right but instead is an aspect of the court's power to control the proceedings. In this case, under an abuse of discretion standard, the trial court judge's removal of the defendant's young daughter was not unreasonable. Because there was no closure and no abuse of discretion, we affirm the conviction. Finally, we reject, under these facts, the Court of Appeals' holding that embraced a trivial standard in regard to court closures and reserve such a discussion for another day.

FACTS AND PROCEDURAL HISTORY

Dean Lormor was arrested following a domestic disturbance, and during his jail intake, a small bag was found in his pants pocket. The bag contained methamphetamine residue. Lormor was charged with unlawful possession of a controlled substance.

Lormor's daughter, who was four days shy of her fourth birthday, was excluded from the courtroom before trial. The daughter, who was terminally ill, was confined to a wheelchair and required a ventilator to breathe. Before trial, the prosecutor brought the matter up, because Lormor had either talked to or near one of the jurors regarding his daughter. This conversation followed:

MR. SMITH: Your Honor, thank you. The first issue is -- we talked at sidebar about this, and just for the record, there was some indication that the defendant either talked to or talked in front of one of the potential jurors and members of the panel regarding his daughter, and so I -- I know the defendant has some criminal history, but I don't know whether he's ever been through a trial or not. I'd ask the Court to instruct him to not discuss this or anything around the jurors that have been chosen. That's my first issue.

THE COURT: Ms. Murphy, do you wish to be heard?

MS. MURPHY: No, Your Honor. I have no objections to that request.

THE COURT: Okay. Mr. Lormor, I didn't really particularly in the presence of all the jurors want to inquire into the report that you were overheard making some comment in disappointment that your daughter was excluded from the courtroom. I simply want to emphasize to you what I think I've already said, the response to that, and that is you can't have direct contact with or discuss any aspect of your predicament in the presence of others outside of court session unless you're given permission to do so. I would ask that you respect that limitation, and I understand that your daughter was initially here. She is unfortunately in a medical condition that requires her to be in a wheelchair and to be on apparently breathing assistance.

THE DEFENDANT: Ventilator, yes.

THE COURT: I don't know how old she is, but she appears to me to be of adolescent years, but I don't know what her age is.

THE DEFENDANT: She'll be four on the 29th.

THE COURT: So she is even younger than adolescent years. I made the decision she should not be in the courtroom for a number of reasons: Number one, at that age I don't know how much she would understand of the proceedings. Two, given the setup I could even hear at the bench the ventilator operating, and I concluded that would be an inappropriate distraction and frankly difficult for her as it would be potentially distracting for the jury.

And so that's the decision I've made. And I have empathy for her circumstances as well as yours in that regard, but I just don't think it's appropriate for a young person to be in this kind of a controlled setting, and I did hear some sounds from her which are perfectly understandable. I don't want in any way to limit her need to express herself for assistance or how she's feeling or anything else, but I just believe that would serve as an inappropriate distraction to the process and so that's why I've excluded her, and I want you to know that I don't take that lightly but I would do that in any type of case under the ...


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