Davis Adv. Sh. No. 3
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Four, Evening Post
d/b/a The Post and
The State of South
Mark Evans, Respondent
Appeal From Charleston County
Larry R. Patterson, Judge
Opinion No. 24735
Heard March, 18, 1997 - Filed January 12, 1998
Thomas S. Tisdale, Jr., Stephen P. Groves, and
Stephen L. Brown, all of Young, Clement, Rivers &
Tisdale, for Appellant First Charleston Corporation.
D.A. Brockington, Jr., and John J. Kerr, of
Brockington, Brockington & Kerr, of Charleston, for
STATE V. EVANS
Appellant Evening Post Publishing Company.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Salley W. Elliott,
Assistant Attorney General G. Robert DeLoach, III,
all of Columbia, for Respondent State of South
Andrew J. Savage, III, and Lionel S. Lofton, both of
Charleston, for Respondent Mark Evans.
MOORE, A.J.: Appellants appeal the trial judge's closure of a
bond hearing. We vacate the order.
This case involves the trial judge's sua sponte closing of a bond
hearing in a criminal trial. On March 7, 1996, the trial judge closed a
bond hearing for attorney Mark Evans. Evans was charged with felony
driving under the influence, reckless homicide, murder, and leaving the
scene of an accident. This case was being closely followed by the media
and general public. Following the closed hearing, Evans was released on a
bond of $125,000 contingent on house arrest daily from 9:00 p.m. till 6:00
a.m., random drug testing, and counseling.
Prior to the closed hearing, the trial judge stated he had
spoken with the attorneys for the State and Evans in chambers. He then
stated he believed information which may come out at the bond hearing
may be prejudicial and inadmissible at trial. The trial judge denied
WCIV-TV News Channel Four's (WCIV's) motion to allow public access.
WCIV requested a continuance which was also denied. After the closed
hearing, WCIV filed a written motion seeking a full evidentiary hearing on
the issue of closure; attendance at all proceedings in this case; and
recision of orders limiting press access. Alternatively, WCIV requested a
transcript of the closed bond hearing. On March 21, 1996, WCIV and
appellant Evening Post Publishing Company (Post Courier) filed a notice of
appeal of the trial judge's oral order. A written order was issued on May
13, 1996. In his written order, the trial judge denied the press access to
transcripts of the closed hearing and entered a gag order on those persons
who were present at the closed hearing. Finally, the trial judge stated a
STATE V. EVANS
transcript of the hearing would not be made available until after Evans'
trial or when it would no longer prejudice him. WCIV and Post-Courier
Did the trial judge err in closing the hearing to the public?
During the closed hearing, the State presented evidence that
five days after the accident and two days after Evans was initially
released on a $5,000 bond, blood and urine analysis by SLED revealed
that Evans had used cocaine within the previous forty-eight hours. The
State argued Evans was a danger to the community because he had used
cocaine after he was released on bond without restrictions. Evans did not
dispute this information. In fact, he proposed that he be placed on house
arrest, his driving restricted, and a higher bond set.
In Ex parte Island Packet, 308 S.C. 198, 417 S.E.2d 575
(1992), we addressed whether the family court erred in denying appellants
access to transcripts of two hearings held in a juvenile matter and closing
a pending hearing in the same case. We applied the United States
Supreme Court's decision in Press-Enterprise Co. v. Superior Court of
California, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)( Press-
Enterprise II) wherein the United States Supreme Court set out the
analysis to be applied in determining whether the first amendment
requires public access to a criminal proceeding when the accused opposes
it. The threshold inquiry is whether there exists a right of access to the
particular type of proceeding in question. Press-Enterprise II, 106 S. Ct. at
2740. There is a presumption of openness applied to preliminary pre-trial
Secondly, to justify closure, the court must make specific
findings that closure is "essential to preserve higher values and is
[U.S. Supreme] Court's reasoning appears applicable to a wide range of
pretrial hearings, including ball hearings, suppression hearings, and the
evidentiary hearings held on various motions (e.g., change of venue)." 2
W. LaFave & J. Israel, Criminal Procedure § 22.1 at 271 (2d ed. Supp.
STATE V. EVANS
narrowly tailored to serve that interest." Where the accused asserts his
right to a fair trial to justify closure, the court must make specific findings
(1) that there is a substantial probability of prejudice from publicity that
closure would prevent and (2) there are no reasonable alternatives to
closure that would adequately protect the defendant's fair trial rights.
Press-Enterprise (II), 106 S.Ct. at 2743. Whether a trial judge erred in
closing a hearing depends on the particular facts of each case. Further,
through voir dire, a trial judge could identify those jurors whose prior
knowledge would disable them from rendering an impartial verdict. Id.
Here, the trial judge stated he was closing the bond hearing
because publicity of the information regarding Evans' drug usage following
the accident "most probably would have prejudiced [Evans] or influenced
public opinion" and the evidence would probably be inadmissible at trial.
The trial judge then ruled he did not know of any other alternatives.
However, the trial judge could have used voir dire to determine any jurors
who may have been prejudiced by the information disclosed during the
hearing. Further, the record does not support a finding of a substantial
probability of prejudice from publicity since extensive details had already
been disclosed in the press regarding the defendant and the crime with
which he was charged.
In addition, the trial judge did not make any specific findings
of fact as set forth in Island Packet and Press-Enterprise (II). In several
cases, we have vacated orders closing hearings when the trial judge has
failed to set forth specific findings on the record. See eg. Ex parte
Columbia Newspapers, Inc., 286 S.C. 116, 333 S.E.2d 337 (1985)(family
court's conclusory statement that openness would have an adverse effect
upon rehabilitation is not a sufficient finding); Ex parte Columbia
Newspapers, Inc., 281 S.C. 52, 314 S.E.2d 321 (1984)(general statements
that potential jurors would be biased if exposed to information are not
specific findings); Steinle v. Lollis, 279 S.C. 375, 307 S.E.2d 230
(1983)((trial judge must make specific findings on record).
We take this opportunity to admonish the bench and bar that
the procedures we set forth in Island Packet, supra, and reiterate in this
opinion, must be followed for a trial judge to properly order-the closure of
a hearing. Because the trial judge did not follow the procedure set forth
in Island Packet and did not make specific findings of fact on the record
as required, the order of the trial judge is
FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.