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.
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.
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
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.
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.
trial court's only other discussion of the objection was
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.
jury found Gorman-Lykken guilty of second degree rape.
Gorman-Lykken appeals his conviction.
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.
Standard of Review
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.
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
Legal Principles - Courtroom Security Measures
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.
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.
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.
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.
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.
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).
Stationing a Security Officer Next to a Testifying Defendant
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
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)).
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.
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. ...