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State v. Andrew Gorman-Lykken

Court of Appeals of Washington, Division 2

August 13, 2019


          MAXA, C.J.

         James Gorman-Lykken appeals his conviction of second degree rape. He argues that the trial court erred in overruling his objection to having a corrections officer stationed next to the witness stand while he testified.

         We agree that the trial court abused its discretion in allowing the corrections officer to be stationed next to the testifying defendant without analyzing whether case-specific reasons supported the need for that security measure. Accordingly, we reverse Gorman-Lykken's conviction and remand for further proceedings.[1]


         The State charged Gorman-Lykken with one count of second degree rape - domestic violence. As charged, the State was required to prove that Gorman-Lykken engaged in sexual intercourse with his girlfriend when she was incapable of consent. RCW 9A.44.050.

         At trial, Gorman-Lykken elected to testify. Before Gorman-Lykken testified, defense counsel objected to the proximity of the corrections officer assigned to Gorman-Lykken while he was on the witness stand. Defense counsel suggested that this procedure was the "usual protocol." 4 Report of Proceedings (RP) at 341. The trial court responded, "Let me just touch base with the corrections officer." 4 RP at 341. The officer stated that "If he's up here, we're up here." 4 RP at 342.

         The trial court then observed that sometimes one to three corrections officers were assigned to a defendant in court and that "[s]ometimes those individuals are large, larger than average." 4 RP at 342. By contrast, the court noted that the corrections officer assigned to Gorman-Lykken was "not one of [our] largest corrections officers, and there's only one of her." 4 RP at 342. The court also stated that "the policy [of] the corrections staff is that . . . they are to be in close proximity to somebody who is testifying that's been accused of a crime." 4 RP at 342.

         The trial court's only other discussion of the objection was as follows:

I don't think it's any surprise to the jurors that with the corrections officer what she's doing here, they've seen her throughout the trial. So with his repositioning . . . to the witness stand - - I'm sensitive to the concern of - - the concern is I think that, well, we have to have this officer nearby because this person is dangerous, this person is going to run.
I mean, the jury could think many different things, and I think that's the concern that [defense counsel] in part is expressing by bringing the motion to change the position of the corrections officer.

4 RP at 342-43. The court concluded, "I think on the whole I'm comfortable having the officer stay where she's at." 4 RP at 343.

         The jury found Gorman-Lykken guilty of second degree rape. Gorman-Lykken appeals his conviction.


         Gorman-Lykken argues that the trial court erred in allowing the corrections officer to be stationed next to the witness stand during his testimony as a security measure. We agree.

         A. Standard of Review

         The trial court has broad discretion to make trial management decisions, including "provisions for the order and security of the courtroom." State v. Dye, 178 Wn.2d 541, 547-48, 309 P.3d 1192 (2013). Therefore, we review for an abuse of discretion a trial court's ruling regarding security measures. Id. at 548; see also State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (2010). And the abuse of discretion standard applies even if the challenged courtroom procedure allegedly is prejudicial. Dye, 178 Wn.2d at 548.

         However, the trial court is required to actually exercise discretion in determining whether a security measure is necessary. State v. Damon, 144 Wn.2d 686, 692, 25 P.3d 418 (2001). Therefore, an abuse of discretion exists if the trial court relies solely on the concerns of a corrections officer in approving a security measure. Id.

Courts have specifically found reversible error where the trial court based its decision solely on the judgment of correctional officers who believed that using restraints during trial was necessary to maintain security, while no other justifiable basis existed on the record.

State v. Finch, 137 Wn.2d 792, 853, 975 P.2d 967 (1999).

         B. Legal Principles - Courtroom Security Measures

         The presumption of innocence is a basic component of a fair trial under our criminal justice system. Jaime, 168 Wn.2d at 861. To preserve the presumption of innocence, the defendant is" 'entitled to the physical indicia of innocence which includes the right of the defendant to be brought before the court with the appearance, dignity, and self-respect of a free and innocent [person].'" Id. at 861-62 (quoting Finch, 137 Wn.2d at 844). Courtroom security measures that single out defendants as particularly dangerous or guilty threaten their right to a fair trial because those measures erode the presumption of innocence. Jaime, 168 Wn.2d at 862.

         Courts have recognized that certain courtroom security measures are inherently prejudicial. Finch, 137 Wn.2d at 845-46 (shackling, handcuffing, or other physical restraints; gagging the defendant); Jaime, 168 Wn.2d at 864 (holding a trial in a jail). Courts must closely scrutinize such measures to ensure that they further essential state interests. Id. at 865.

         Before allowing an inherently prejudicial security measure, the trial court must make a factual determination that the measure is" 'necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape.'" Finch, 137 Wn.2d at 846 (quoting State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694 (1981)). This determination must be based on specific facts in the record that relate to the particular defendant. Jaime, 168 Wn.2d at 866. And inherently prejudicial security measures should be allowed only in "extraordinary circumstances." Finch, 137 Wn.2d at 842. As a result, the court must consider less restrictive alternatives. Id. at 850.

         However, these rules apply only to security measures that are inherently prejudicial. No Washington case has imposed a requirement that the trial court make specific findings of necessity of the type mandated in Jaime, Finch, and Hartzog when a security measure is not inherently prejudicial.

         The routine use of security personnel in a courtroom during trial generally is not an inherently prejudicial practice. Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). In Holbrook, the United States Supreme Court "counsel[ed] against a presumption that any use of identifiable security guards in the courtroom is inherently prejudicial." Id. at 569. The Court noted that "the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable." Id. "Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long as their numbers or weaponry do not suggest particular official concern or alarm." Id.; see also Jaime, 168 Wn.2d at 863 (quoting Holbrook, 475 U.S. at 569). As a result, the Court held that the presence of four officers sitting in the front row of the spectator section during trial was not inherently prejudicial. Holbrook, 475 U.S. at 570-72.

         The Court acknowledged that under certain conditions, the presence of security officers in the courtroom might convey the impression that the defendant is dangerous or untrustworthy. Id. at 569. But the Court concluded, "In view of the variety of ways in which such guards can be deployed, we believe that a case-by-case approach is more appropriate." Id.; see also State v. Butler, 198 Wn.App. 484, 494, 394 P.3d 424, review denied, 189 Wn.2d 1004 (2017) (quoting Holbrook, 475 U.S. at 569).

         C. Stationing a Security Officer Next to a Testifying Defendant

         The question here is whether the trial court erred in allowing the corrections officer to be stationed next to the witness stand during Gorman-Lykken's testimony. We hold that the trial court abused its discretion by failing to analyze whether any case-specific reasons other than the officer's preference supported the need for the security measure.

         1. Not Inherently Prejudicial

         Initially, we must determine whether stationing the corrections officer next to the witness stand during Gorman-Lykken's testimony was inherently prejudicial. See Jaime, 168 Wn.2d at 862. The test is whether the security measure presented an unacceptable risk of impermissible factors coming into play. Id. This test requires consideration of the" 'range of inferences that a juror might reasonably draw'" from the measure. Id. (quoting Holbrook, 475 U.S. at 569). Our consideration is based on" 'reason, principle, and common human experience.'" Butler, 198 Wn.App. at 493 (quoting Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976)).

         No published Washington case has considered whether stationing a corrections officer next to the witness stand is inherently prejudicial. In Butler, the court held that the presence of a second jail officer during the victim's testimony was not inherently prejudicial, and instead was innocuous. 198 Wn.App. at 494. But that case is not helpful because it involved a different factual scenario. Therefore, we turn to cases from other jurisdictions.

         The California Supreme Court held that an officer's "presence at the witness stand during a defendant's testimony is not inherently prejudicial," reasoning under Holbrook that "jurors have become accustomed to seeing security officers in public places such as the courtroom . . . and there is a wide range of inferences they may draw from an officer's presence near a testifying defendant." People v. Stevens, 47 Cal.4th 625, 638, 218 P.3d 272 (2009) (citing Holbrook, 475 U.S. at 569). In Stevens, the court rejected the contention that this practice impermissibly singled out the defendant: "Although [an officer's] presence next to a testifying defendant may be viewed as a defendant-focused practice when officers do not accompany other witnesses to the stand, the Supreme Court has made it clear that not 'every practice tending to single out the accused from everyone else in the courtroom must be struck down.'" Id. ...

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