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State v. Dixon6/3/2005
ework of the trial itself and is not subject to harmless error review. But see [United States v.] Huntley, 535 F.2d [1400,] 1404 [(5th Cir. 1976)] (pre-Fulminante case subjecting trial court's failure to announce verdict publicly to harmless error analysis)." Canady, 126 F.3d at 363-64.
Here, the trial court considered the advocated interests and the alternatives. The trial court exercised care in striking a balance of those interests. But the court's decision was made in response to intervention by area newspapers, whose interests were the First Amendment interests of media freedom. Although defense counsel made a simple statement of objection to closing the courtroom, the Sixth Amendment interest in a public trial seems not to have been pressed. The trial judge's statement of the interests balanced was that "it appears to me that there is a greater danger that a disclosure of the jury verdict would prejudice [Griffin's] right to a fair trial than there is a danger to the rights of the public to receive this information." However, it was Dixon's right to a public trial that is at issue here.
Because the reasonable and seemingly obvious alternative of empaneling and swearing Griffin's jury was available but not utilized, the closure was not warranted and thus the trial court erred. As previously noted, an error of constitutional magnitude may not be held to be harmless unless the appellate court can declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Boldridge, 274 Kan. 795, 808, 57 P.3d 8 (2002), cert. denied 538 U.S. 950 (2003). As the federal court noted in Canady, there is no question that the error would not have changed the verdicts because the verdicts had already been reached. The lack of effect on the verdicts, however, should not necessitate the conclusion that the error was harmless where the trial court's closing the courtroom was inconsistent with substantial justice. We find the rationale of the court in Canady persuasive and conclude that the closure was inconsistent with the substantial right of Dixon to a public trial and not harmless error.
7. JURY INSTRUCTIONS FOR THE BURGLARY CHARGES.
Dixon was charged with two counts of burglary, one for each time he entered Alicia Shaw's apartment in the early morning hours of July 29. For each count, the jury was instructed as follows:
"To establish this charge, each of the following claims must be proved:
"1. That Mr. Dixon knowingly entered or remained in a building which is a dwelling;
"2. That Mr. Dixon did so without authority;
"3. That Mr. Dixon did so with the intent to commit a theft, and/or aggravated arson, a felony, and/or criminal damage to property, a felony, therein; and
"4. That this act occurred on or about the 29th day of July 2001 in Lyon County, Kansas."
For the instruction on the first burglary, defense counsel objected on two grounds--that there was no evidence of any intent to commit aggravated arson and that a multiple acts instruction was needed. The State responded with regard to evidence of an intent to commit aggravated arson that defendant's statements about stuff going up in flames were sufficient to show his intent to enter Alicia's apartment to commit arson. The trial judge refused to give a multiple acts instruction on the ground that the burglary presented an alternative means issue rather than a multiple acts issue. He also rejected defendant's objection to the lack of evidence:
" he evidence of an intent to commit aggravated arson on the first burglary is extremely weak. As I recall, there was a lot
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