Petition for Writ of Certiorari — Charles C. Gore, Petitioner v. Illinois

No.

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

CHARLES C. GORE, Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

______________________________________

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

______________________________________

PETITION FOR WRIT OF CERTIORARI

______________________________________

JAMES E. CHADD

State Appellate Defender

PETER A. CARUSONA

Counsel of Record

Deputy Defender

Office of the State Appellate Defender

Third Judicial District

770 E. Etna Road

Ottawa, IL 61350

(815) 434-5531

3rdDistrict@osad.state.il.us

COUNSEL FOR PETITIONER

Of Counsel:

Sean Conley

Assistant Appellate Defender

QUESTION PRESENTED FOR REVIEW

Whether the right to a public trial is violated when the trial court closes the

courtroom while addressing questions posed by the jury during deliberations, a critical

stage of trial that implicates both the defendant’s substantial rights and the interests

of public accountability.

i

TABLE OF CONTENTS

Question Presented for Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Opinion Below . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constitutional and Statutory Provisions Involved . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Reason for Granting the Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

This Court should grant certiorari to resolve a split of authority on whether the

right to a public trial attaches to adversarial proceedings that happen to occur after the

jury has retired to deliberate, such as the formulation and delivery of answers to interdeliberational questions, and to determine whether that right is violated when a trial

court closes the courtroom during those proceedings.

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

INDEX TO APPENDIX

Appendix A:

Decision of Appellate Court of Illinois. People v. Gore, 2018 IL App

(3d) 150627

Appendix B:

Supreme Court of Illinois order denying Petitioner’s petition for

leave to appeal.

ii

TABLE OF AUTHORITIES

Cases:

Page

Federal Cases:

Duncan v. Louisiana, 391 U.S. 145 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Estes v. Texas, 381 U.S. 532 (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re Oliver, 333 U.S. 257 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Presley v. Georgia, 558 U.S. 209 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) . . . . . . 6, 8

Waller v. Georgia, 467 U.S. 39 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 8

State Cases:

Commonwealth v. Johnson, 828 A.2d 1009 (Penn. 2003). . . . . . . . . . . . . . . . . . . . . . 8

Commonwealth v. Patry, 722 N.E.2d 979 (Mass. 2000) . . . . . . . . . . . . . . . . . . . . . . . 9

Commonwealth v. Valentin, 23 N.E.3d 61 (Mass. 2014) . . . . . . . . . . . . . . . . . . . . . . 8

Crabtree v. Hagenbaugh, 76 Am. Dec. 694 (Ill. 1860). . . . . . . . . . . . . . . . . . . . . . . . 10

Dixon v. State, 605 P.2d 882 (Alaska 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Key v. People, 865 P.2d 822 (Colo. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Oahu Publications Inc. v. Ahn, 331 P.3d 460 (Haw. 2014) . . . . . . . . . . . . . . . . . . . 10

People v. Beck, 137 N.E. 454 (1922). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

People v. Childs, 636 N.E.2d 534 (Ill. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Gore, 2018 IL App (3d) 150627. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

People v. Hogan, 647 P.2d 93 (Cal. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

People v. Lujan, ___ P.3d ___, 2018 COA 95 (Colo. App. 2018) . . . . . . . . . . . . . . . . . 9

Ridley v. State, 690 N.E.2d 177 (Ind. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

iii

State v. Cooper, 366 P.3d 232 (Kan. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Crabtree, 482 S.E.2d 605 (W.V. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Herbel, 299 P.3d 292 (Kan. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

State v. Kaiser, 504 N.W.2d 96 (S.D. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Savage, 577 A.2d 455 (N.J. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Smuda, 419 N.W.2d 166 (N.D. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Sublett, 292 P.3d 715 (Wash. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Swanson, 145 P.3d 886 (Haw. Ct. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Tapson, 41 P.3d 305 (Mont. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Stouffer v. State, 147 P.3d 245 (Okla. Crim. App. 2006) . . . . . . . . . . . . . . . . . . . . . . 9

Whedon v. State, 765 N.E.2d 1276 (Ind. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Federal Constitutional Provisions:

U.S. Const. Amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

U.S. Const. Amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Federal Statutory Provision:

28 U.S.C. §1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

State Statutory Provision:

725 ILCS 105/10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

iv

No.

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

CHARLES C. GORE, Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

______________________________________

On Petition For Writ Of Certiorari

To The Appellate Court Of Illinois

______________________________________

The petitioner, Charles C. Gore, respectfully prays that a writ of certiorari

issue to review the judgment below.

OPINION BELOW

The decision of the Illinois Appellate Court (Appendix A) is reported at 2018 IL

App (3d) 150627, ___ N.E.3d ___ , and is published. The order of the Illinois Supreme

Court denying leave to appeal (Appendix B) is reported at 2018 WL 4699657(Table),

___ N.E.3d ___ .

JURISDICTION

On April 18, 2018, the Appellate Court of Illinois issued its decision. No petition

for rehearing was filed. The Illinois Supreme Court denied a timely filed petition for

leave to appeal on September 26, 2018. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1257(a).

-1-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. Amend. VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime shall have

been committed, which district shall have been previously ascertained by law, and to

be informed of the nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his defence.

U.S. Const. Amend. XIV, § 1

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall any State deprive any person of

life, liberty or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the law.

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STATEMENT OF THE CASE

Defendant Charles Gore was charged with the crimes of attempt first degree

murder, home invasion, and aggravated domestic battery. People v. Gore, 2018 IL App

(3d) 150627, ¶ 3. The charges alleged that Gore entered the dwelling place of Melissa

Stenger, a member of Gore’s family, knowing that she was home, and stabbed her in

the neck and chest. Id. at ¶ 3.

The State’s evidence tended to establish that Stenger and Gore, who had a 12year-old daughter together, had recently ended their 14-year relationship. Id. at ¶ 4.

Gore initially lived in the couple’s home, while Stenger and their daughter lived with

Stenger’s father. Id. at ¶ 4. Gore eventually moved out and Stenger moved back in. Id.

at ¶ 4. Stenger believed Gore owed her money, including for unpaid bills and for

personal property Gore had not returned to her. Id. at ¶ 4.

The night before the incident, Stenger had spent time with a man who

ultimately stayed the night at the home. Id. at ¶ 4. After the man left in the morning,

Gore entered the home, confronted her about the man, and attacked her. Id. at ¶ 5. He

hit her in the head, choked her, and dragged her through the home to the kitchen,

where he took a knife from a drawer. Id. at ¶ 5. The two struggled over the knife before

Stenger was able to escape. Id. at ¶ 5. She then realized she had been stabbed. Id. at

¶ 5.

Gore testified that he had gone to retrieve his property after Stenger told him

to remove all of his belongings remaining in the home. Id. at ¶ 7. While there, Stenger

demanded money. Id. at ¶ 7. She screamed at him and grabbed him by the shirt. Id.

at ¶ 7. When he said he was leaving, she grabbed a knife and attacked him. Id. at ¶ 7.

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In the ensuing struggle, Stenger pushed Gore over a chair. Id. at ¶ 7. When he got up,

he saw a pool of blood. Id. at ¶ 7. He speculated that Stenger had been stabbed or cut

while she was swinging the knife. Id. at ¶ 7. Gore eventually left the home. Id. at ¶ 7.

During deliberations, the jury asked a question. Id. at ¶ 8. The trial court stated:

“They have a question, and I’m reviewing that question in the presence of the

defendant and his counsel and the state’s attorney.” Id. at ¶ 8. The parties decided on

an answer to the question. Id. at ¶ 8. When the jury was brought into the courtroom

to receive the answer, the trial court announced that it had closed the courtroom

because it considered the question “a private matter.” Id. at ¶ 9. When the jury asked

a second question, the trial court again closed the courtroom, noting that the parties

and the jury were present, but that “everyone else” had been excluded. Id. at ¶ 10.

When the jury asked a third question, the trial court again closed the courtroom, and

in response to the questions, allowed the jury to listen to an audio recording of

Stenger’s testimony in the presence of the parties. Id. at ¶ 10; see also R1129 (closing

the courtroom).

The jury acquitted Gore of attempt murder, but found him guilty of aggravated

domestic battery and home invasion. Id. at ¶ 11. He was sentenced to seven years’

incarceration for aggravated domestic battery and eleven years’ incarceration for home

invasion. Id. at ¶ 16.

On appeal, the Illinois Appellate Court remanded for a hearing at which the

trial court will examine whether Gore is entitled to new counsel to argue certain

ineffective assistance of counsel claims Gore had raised pro se after his trial. Id. at ¶¶

36-39. However, it rejected Gore’s argument that the courtroom closures that occurred

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while the trial court and the parties resolved the jury’s questions denied him his right

to a public trial. According to the Appellate Court, because jury deliberations are

private, the right to counsel simply did not attach to answering inter-deliberational

questions. Id. at ¶¶ 22-35. The Illinois Supreme Court denied leave to appeal on

September 26, 2018. People v. Gore, No. 123566, order of Sept. 26, 2018 (Appendix).

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REASON FOR GRANTING CERTIORARI

Every criminal defendant is constitutionally guaranteed a personal right to a

public trial. U.S. Const. Amends. VI, XIV; Presley v. Georgia, 558 U.S. 209, 212 (2010);

Duncan v. Louisiana, 391 U.S. 145, 148 (1968). The right is not absolute, and may give

way in certain cases to other rights or interests. Presley, 558 U.S. at 213-14 (citing

Waller v. Georgia, 467 U.S. 39, 45 (1984)). However, “[c]losed proceedings, although not

absolutely precluded, must be rare and only for cause shown that outweighs the value

of openness.” Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 509

(1984).

Before excluding the public from any stage of a criminal trial, the trial court

must apply the following standards: (1) the party who wishes to close the proceedings

must show an overriding interest that is likely to be prejudiced by a public trial; (2) the

closure must be narrowly tailored to protect that interest; (3) alternatives to closure

must be considered by the trial court; and (4) the court must make findings sufficient

to support the closure. Presley, 558 U.S. at 213-14; Waller, 467 U.S. at 48. In applying

these standards, the trial court is obligated to take every reasonable measure to

accommodate public attendance, and must consider alternatives to closing the trial

even when none have been offered by the parties. Presley, 588 U.S. at 215. A trial

court’s “broad and general” findings will not justify closure. Waller, 457 U.S. at 48.

This Court explained the interests underlying the right to a public trial in

Waller:

“ ‘ “The requirement of a public trial is for the benefit of the accused; that

the public may see he is fairly dealt with and not unjustly condemned,

and that the presence of interested spectators may keep his triers keenly

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alive to a sense of their responsibility and to the importance of their

functions....” ’ ” Ibid. (quoting In re Oliver, 333 U.S. 257, 270, n. 25, 68

S.Ct. 499, 506, n. 25, 92 L.Ed. 682 (1948), in turn quoting T Cooley,

Constitutional Limitations 647 (8th ed. 1927)).

Waller, 467 U.S. at 46; see also id. at 46 n.4 (“Essentially, the public-trial guarantee

embodies a view of human nature, true as a general rule, that judges, lawyers,

witnesses, and jurors will perform their respective functions more responsibly in an

open court than in secret proceedings . . . The knowledge that every criminal trial is

subject to contemporaneous review in the forum of public opinion is an effective

restraint on possible abuse of judicial power,” quoting Estes v. Texas, 381 U.S. 532, 588

(1965), and Oliver, 333 U.S. at 270, citations and punctuation omitted).

All of these interests are present when the jury asks, and the trial court

answers, a question during deliberations. Answering the jury’s questions fairly and

correctly is a crucial goal undertaken by the defense, the prosecution, and the judge.

It is therefore important that those parties understand that their actions are public

and accountable to the community, and making the answering of jury questions public

serves that function in the same way as making any other part of the trial public.

Waller, 467 U.S. at 46. That is, it ensures that the project of answering the questions

is carried out responsibly. Waller, 467 U.S. at 46 n.4 (quoting Estes, 381 U.S. at 588).

The questions themselves, as well as the process of answering them, can reveal the

jury’s concerns about the case and the strengths and weaknesses of the evidence in a

way that keeps the jury insulated from undue influence. This, in turn, can encourage

public intervention, the same way that keeping the evidentiary portions of the trial

public can encourage new witnesses to come forward and discourage perjury. Imagine,

for example, a reluctant witness, having acquiesced to testifying in a certain way,

-7-

learning through the question answering process that his or her misleading testimony

is critical to the result. See Waller, 467 U.S. at 46 (“In addition to ensuring that judge

and prosecutor carry out their duties responsibly, a public trial encourages witnesses

to come forward and discourages perjury.”). And it vindicates both the defendant’s and

the public’s interest in transparency in proceedings that touch on the defendant’s guilt.

See Press-Enterprise Co., 464 U.S. at 509 (“Proceedings held in secret would deny this

outlet and frustrate the broad public interest; by contrast, public proceedings vindicate

the concerns of the victims and the community in knowing that offenders are being

brought to account for their criminal conduct by jurors fairly and openly selected.”).

Finally, there should rarely be a compelling need to close the courtroom to answer jury

questions. Written answers sent back to the deliberation room will almost always be

a reasonable alternative to shutting out the public, particularly since answering a

question in person could create a conflict between the right to a public trial and the

need to insulate the jury (a point the Appellate Court implicitly acknowledged in this

case). See Gore, 2018 IL App (3d) 150627, ¶¶ 33-34 (reviewing Illinois cases finding

error in allowing the jury to review evidence or otherwise deliberate in the presence

of third parties).

Furthermore, when the jury asks a question, a defendant’s substantive rights

are at stake, and the response can influence the outcome of the trial. Accordingly, the

highest courts of many jurisdictions have said that jury deliberations, at least in

certain circumstances, are a critical stage at which other fundamental constitutional

rights attach, such as the right to be present with counsel. See Com. v. Valentin, 23

N.E.3d 61, 70 (Mass. 2014); State v. Herbel, 299 P.3d 292, 297-98 (Kan. 2013); Com. v.

-8-

Johnson, 828 A.2d 1009, 1011, 1014-16 (Penn. 2003); People v. Childs, 636 N.E.2d 534,

538, 542 (Ill. 1994); Key v. People, 865 P.2d 822, 825-26 (Colo. 1994); State v. Savage,

577 A.2d 455, 466 (N.J. 1990); State v. Smuda, 419 N.W.2d 166, 168 (N.D. 1988);

People v. Hogan, 647 P.2d 93, 112-13 (Cal. 1982); Dixon v. State, 605 P.2d 882, 884-89

(Alaska 1980); cf. State v. Crabtree, 482 S.E.2d 605, 613-16 (W.V. 1996) (analyzing

prejudice after prosecution conceded right to be present while addressing questions

from jury); State v. Kaiser, 504 N.W.2d 96, 100 (S.D. 1993) (saying jury deliberations

are critical stage, but not addressing the rights involved); but see Stouffer v. State, 147

P.3d 245, 271 (Okla. Crim. App. 2006); Ridley v. State, 690 N.E.2d 177, 179-81 (Ind.

1997), overruled on other grounds, Whedon v. State, 765 N.E.2d 1276 (Ind. 2002).

A split of authority exists at the state level as to whether the right to a public

trial is among the rights that attach during jury deliberations. That split, however, is

not well-balanced. No right to a public trial during jury deliberations exists in

Washington. State v. Sublett, 292 P.3d 715, 721-25 (Wash. 2012). The state of the law

in Kansas is ambiguous: the Supreme Court of Kansas has generally addressed the

question in terms of the statutory and constitutional right to be present, but has

generally refused to analyze the question in terms of the right to a public trial. See,

e.g., State v. Cooper, 366 P.3d 232, 236 (Kan. 2016). Colorado, Montana, and

Massachusetts all recognize the constitutional right to a public trial during proceedings

related to jury deliberations. People v. Lujan, ___ P.3d ___, 2018 COA 95, ¶¶ 9-19 (Colo.

App. 2018); State v. Tapson, 41 P.3d 305, 309 (Mont. 2001); Com. v. Patry, 722 N.E.2d

979, 982-83 (Mass. 2000). While the Intermediate Court of Appeals of Hawai’i has

speculated in dicta that the public trial right does not attach during deliberations,

-9-

State v. Swanson, 145 P.3d 886, 897 (Haw. Ct. App. 2006), the Supreme Court of

Hawai’i has recognized that the corollary First Amendment right of the public to access

a criminal trial does attach to certain proceedings involving jury deliberations. Oahu

Publications Inc. v. Ahn, 331 P.3d 460, 471-82 (Haw. 2014). And until the Illinois

Appellate Court rejected the public trial right in this case, the Illinois Supreme Court

had clearly stated, in cases going back to the Civil War, that responses to questions

from the jury must be answered in open court. See, e.g., People v. Beck, 137 N.E. 454,

456 (1922) (“The policy of the law requires that all the proceedings of the court should

be open and notorious and in the presence of the party, so that, if he is not satisfied

with it, he may take exceptions to it in the mode pointed out by the law, and not be put

to extraneous proof to show that an error has been committed in a secret proceeding,

and, in fact, out of court,” quoting Crabtree v. Hagenbaugh, 76 Am. Dec. 694 (Ill. 1860)).

Gore’s case provides an ideal vehicle by which to resolve this important question

of constitutional law. In this case, after the jury retired to deliberate, it sent a series

of three questions to the trial court. People v. Gore, 2018 IL App (3d) 150627, ¶¶ 8, 10.

The trial court closed the courtroom in order to address the jury’s questions because

it considered the matter “private.” Id. at ¶ 9. Specifically, while it is unclear whether

the discussion leading to the first answer was in open court (the trial court said it was

holding the discussion “in the presence of the defendant and his counsel and the state’s

attorney”), the first answer was given to the jury in the closed courtroom, and the

entirety of the proceedings on the other two questions were held in the closed

courtroom. Id. at ¶¶ 8-10; R1129. The trial court made no other findings other than the

jury’s privacy to justify the closure, and no other interests or alternatives are obvious

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on the record. Thus, this case presents a pure question of law. Since the trial court did

not follow the proper procedures to justify the closure, and since the record does not

support a closure in spite of that, there are no questions of fact for this Court to resolve.

The only question is whether the right to a public trial attached to these proceedings.

If the right to a public trial attached, that right was violated. This Court should

therefore grant certiorari in this case in order to resolve this important question.

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CONCLUSION

For the foregoing reasons, petitioner, Charles C. Gore, respectfully prays that

a writ of certiorari issue to review the judgment of the Illinois Appellate Court.

Respectfully submitted,

PETER A. CARUSONA

Counsel of Record

Deputy Defender

Office of the State Appellate Defender

Third Judicial District

770 E. Etna Road

Ottawa, IL 61350

(815) 434-5531

3rdDistrict@osad.state.il.us

COUNSEL FOR PETITIONER

Of Counsel:

Sean Conley

Assistant Appellate Defender

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