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24735 - Ex parte First Charleston: State v. Mark Evans

Davis Adv. Sh. No. 3
S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

Ex parte:

First Charleston

Corporation, d/b/a

WCIV-News Channel

Four, Evening Post

Publishing Company,

d/b/a The Post and

Courier, Appellants

In re:

The State of South

Carolina, Respondent

v.

Mark Evans, Respondent

Appeal From Charleston County

Larry R. Patterson, Judge

Opinion No. 24735

Heard March, 18, 1997 - Filed January 12, 1998

VACATED

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

p. 3


EX PARTE: FIRST CHARLESTON CORPORATION

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

Carolina.

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.

FACTS

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

p. 4


EX PARTE: FIRST CHARLESTON CORPORATION

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

appealed.

ISSUE

Did the trial judge err in closing the hearing to the public?

DISCUSSION

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

hearings. Id.1

Secondly, to justify closure, the court must make specific

findings that closure is "essential to preserve higher values and is


1While Press-Enterprise II "dealt only with a preliminary hearing, the

[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 ยง 22.1 at 271 (2d ed. Supp.

1991).

p. 5


EX PARTE: FIRST CHARLESTON CORPORATION

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

VACATED.

FINNEY, C.J., TOAL, WALLER and BURNETT, JJ., concur.

p. 6