State of Missouri v. Willis Jackson Hartman III

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD77622
)
v. ) OPINION FILED: October 27, 2015
)
WILLIS JACKSON HARTMAN III, )
)
Appellant. )

Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Patrick K. Robb, Judge

Before Division Three: Joseph M. Ellis, Presiding Judge, Gary D. Witt, Judge and
Zel M. Fischer, Special Judge

Appellant Willis Hartman ("Hartman") appeals his conviction following a jury

trial in the Circuit Court of Buchanan County, Missouri, for the Class C felony of use of a

child in a sexual performance, under Section 568.080.1 Hartman raises two points on

appeal. In his first point, Hartman argues the trial court erred in refusing to grant a

mistrial because the presence of members associated with the group Bikers Against Child

Abuse ("BACA") around the courthouse deprived him of his rights to due process, a fair

trial, and the presumption of innocence. In his second point, Hartman argues that the trial

court abused its discretion when it permitted the two child witnesses to wear vests with

1
All statutory references are to RSMo 2000 cumulative as currently supplemented unless otherwise noted.
"BACA" inscribed on the back while testifying. For the reasons explained herein, we

affirm.

Factual Background

Hartman was convicted by a jury of the Class C felony of use of a child in a sexual

performance. § 568.080. The children involved in the offense were ages five and seven.

Hartman does not challenge the sufficiency of the evidence to support his conviction, and

Hartman's argument does not involve the underlying factual allegations but rather the

events surrounding the trial. Therefore, we do not need to detail the facts giving rise to

the conviction.

Hartman's case was tried to a jury on Tuesday, April 22 and Wednesday, April 23,

2014. Prior to trial, on Wednesday, April 16, the trial court heard a motion from Hartman

requesting that a number of signs placed around the Buchanan County Courthouse be

removed. These signs had been placed on the courthouse lawn for child abuse awareness

month by the Children's Advocacy Center ("CAC"), with the approval of the County

Commission. Hartman argued the messages on the signs, which discussed child abuse

statistics, could influence potential jurors reporting for duty and would be fundamentally

unfair to Hartman. Hartman also noted that several members of the CAC staff were

endorsed to testify at trial as witnesses for the State. The trial court agreed with Hartman

that the signs should not remain on the lawn during trial as they could impermissibly

influence the jury. The court was satisfied that the signs were to be removed by Friday,

before the beginning of voir dire the following Monday, and the court also indicated it

2
would allow the parties to voir dire the potential jury on the subject of the materials on

the courthouse lawn. From the record it appears that the signs were removed.

On Friday, April 18, a pretrial hearing was held at which the prosecutor informed

the court that BACA, a child abuse victim advocacy organization, intended to have

members present at the trial. Hartman's counsel expressed concern at the presence of the

BACA members and the potential prejudicial effect that their anti-child abuse message

could have on the jury. The trial court agreed and directed the prosecutor to inform

BACA members that they were not allowed to wear their BACA vests, which had on

them child-abuse prevention messages, in the courthouse or courtroom during the trial.

The prosecutor also indicated that she had requested that no more than four members of

BACA actually attend the trial at any one time. The prosecutor then informed the court

that the child victims wanted to wear their own vests that had "BACA" on the back and

agreed that she would not explain to the jury what "BACA" means.2 The court stated that

it would allow the victims to wear their vests. Hartman made no objection to the vests

being worn by the victims.

On Tuesday, April 22, voir dire was concluded and the venire panel was released

for lunch with instructions to return at 1:00 p.m. When the parties returned from lunch,

Hartman moved for a mistrial based on the allegation that members of BACA were

congregating on the courthouse steps at approximately 12:55 p.m. with the victims who

were holding teddy bears. Hartman alleged that this occurred while members of the jury

2
The vests only had the acronym "BACA" on the back and not the full name "Bikers Against Child
Abuse."

3
were returning to the courthouse from lunch. Hartman, in support of his motion for a

mistrial, called Public Defender Michelle Davidson ("Davidson") to testify. Davidson

was not involved with Hartman's case but was at the courthouse merely to observe the

trial. Davidson testified, in relevant part, as follows:

[DIRECT EXAMINATION BY HARTMAN'S COUNSEL]

Q. Ms. Davidson, can you describe what you saw out in front of the
courthouse before you got here?

A. I wanted to watch the trial, so I arrived about five till 1:00 and I was
coming in. And as I was coming in, I saw a large group of people. Some
of them are sitting here in the courtroom. There were several others with
them. They came with two children carrying teddy bears.
They congregated in the front of the courthouse for quite a while and
then they probably came in about five minutes later. I think they were
waiting for their full group to get there.

Q. Were they wearing any identifying clothing?

A. I think they were probably the Bikers Against Child Abuse.

Q. What would make you think that?

A. They were wearing – some of them had something around their
neck, I think, that involved motorcycles. And there's some that didn't come
up. They stayed down with the children. And they were obviously – or at
least they had the appearance of being bike riders.

Q. What were they – were they saying anything?

A. I think they were just kind of making sure all of their party was
together and everyone was there. There was some introducing themselves.
And then when they all got there – I don't know what they were doing.
They were outside, like I said, for about five minutes and then they came
in.
And I think the children went towards the prosecuting attorney's
office and some came upstairs and some followed the children.

4
Q. And do you know of any other entrance to the courthouse?

A. No.

[CROSS-EXAMINATION BY THE STATE]

Q. Did you see any of these individuals speaking with any jurors?

A. I do not know what they were talking about. When I saw the big
group, I mean, it was – it was a very big group and it was – it drew my
attention because of the two small children with the teddy bears outside in
front of the courthouse.
So I asked Amy Cloud, I think it is now, to come out with me
because I wanted to see what was going on. I don't know what they were
talking about and I don't know who all they were talking to, if it was just
among themselves or what. I cannot say.

Q. So you don't know if any jurors even saw this congregation? The
jurors could have all been in the courthouse by then, correct, as far as you
know?

A. I don’t know. It was about five till 1:00. That's all I know.

[EXAMINATION BY THE COURT]

Q. Ms. Davidson, let me ask questions so I'm clear on what I – when
you say they were standing – they were standing outside the courthouse?

A. On the courthouse steps.

Q. On the courthouse steps, so right when you come in the public
entrance to the courthouse?

A. That's correct.

Q. Is that what you're describing, those first couple steps coming in the
entrance? And when you say a big group, what are you talking – five, six?

A. Oh, no. It was probably 15 to 20.

5
 Q. 15 to 20 people standing there? [3] So if you wanted to walk into the
courthouse, you had to walk around them or through them or were they
over to the side?

A. They were – I don't – it didn't look like they were intentionally
blocking people. But they were a large group, so you would have had to
either go around them or kind of make your way through them.

Q. All right. And did you see any signs or anything displayed on their
clothing or any bumper – I mean, not bumper – stickers or buttons or
anything like that?

A. I saw around their necks – it was similar to – it would be similar to a
juror's badge, but – and that's what I thought. I was like "Is that the jurors
congregating out there?"
But it had "Ride" – it was in reference to riding. That's why I
assume – and also – there were a couple of gentlemen that were obviously –
if you saw them you would say, "They are bikers" because they had the
appearance of bikers.

Q. Okay. And you saw two children with them in that group?

A. There was two small children and they were holding teddy bears.

Q. Okay. Anything else?

A. (Shakes head.)

Q. That's it? So you just walked in past them?

A. I walked in first. And then I saw the big group and it drew my
attention because usually you don't see a big group out there.
So I asked Amy, I said, "I wonder if that's the jurors congregating."
And I just know that that's probably improper. So I said, "Will you go out
there with me and we can see what's going on" just to be nosey.
And I went out there. And I did not hear them talking about, you
know, the case. I heard one person make a comment, "I thought the jurors
went in the side door" or something like that. I did hear that comment.
But mostly I think they were just waiting for their party to all get there.
They were introducing themselves, things like that.
3
After the trial court heard the evidence, the prosecutor represented to the trial court that only six or seven
of the individuals in front of the courthouse were associated with BACA and the rest were the victims' family
members.

6
The court found no basis to declare a mistrial. The court explained that steps were taken

to prevent any demonstrations or attempts to influence jurors and, from the evidence, the

court did not find that any impropriety had occurred. The court also found that the

prosecution had taken appropriate steps to ensure BACA members did not influence the

jury or affect the trial.

Hartman then requested that the court prevent the victims from wearing their vests

that had "BACA" inscribed on the back during their testimony. The court denied that

request, reasoning that vests were not going to be worn by any other people in the

courtroom, in the hallways, or outside of the courthouse per the direction of the court. In

addition, there was no indication that the meaning of "BACA" would be presented to the

jury. Accordingly, the trial court denied Hartman's request. Hartman was convicted by

the jury of the Class C felony of use of a child in a sexual performance.

Hartman now raises two points on appeal regarding the presence of BACA

members in and around the courthouse and the decision by the trial court to allow the

victim witnesses to wear vests with "BACA" inscribed on the back while testifying.

I.

In his first point on appeal, Hartman argues that the trial court abused its discretion

when it denied Hartman's motion for a mistrial in response to the BACA members'

visible presence outside the courthouse with the child victims when the jurors were

returning because it denied Hartman of his rights to due process, a fair trial, and the

presumption of innocence, in that the trial court had already ruled that BACA members

7
should not be around the courthouse wearing items identifying them with their anti-child

abuse message because of that message's likelihood of adversely influencing the fairness

of Hartman's trial.

Standard of Review

"A mistrial is a drastic remedy to be exercised only in those extraordinary

circumstances in which the prejudice to the defendant cannot otherwise be removed."

State v. Ward, 242 S.W.3d 698, 704 (Mo. banc 2008) (citing State v. Goff, 129 S.W.3d

857, 866 (Mo. banc 2004)). "This decision is left to the discretion of the trial court, as it

is in the best position to determine whether the incident had a prejudicial effect on the

jury." Id. Appellate review of the trial court's refusal to grant a mistrial is for abuse of

discretion. Id. "A trial court abuses its discretion when its ruling is clearly against the

logic of the circumstances before it and when the ruling is so arbitrary and unreasonable

as to shock the appellate court's sense of justice and indicate a lack of careful

consideration." Id.

Analysis

Hartman claims that the presence of identifiable BACA members with the child

victims outside of the courthouse prior to trial, in a location where it was extremely likely

members of the jury saw them, deprived Hartman of the opportunity to have a fair trial.

Hartman does not attempt to show he was actually prejudiced but rather argues the

circumstances were such that inherent prejudice must be presumed. There is no dispute

that the BACA members were private spectators only and not directed or endorsed by the

State.

8
 The right to a fair trial, guaranteed by the Sixth Amendment to the United States

Constitution, is a fundamental liberty. Estelle v. Williams, 425 U.S. 501, 503 (1976).4

The presumption of innocence in favor of the accused is an essential component of a fair

trial. Id. "To implement the presumption, courts must be alert to factors that may

undermine the fairness of the fact-finding process." Id. In addition, the defendant must

be tried in an atmosphere undisturbed by public passion. See Irvin v. Dowd, 366 U.S.

717, 728 (1961); State v. Peacock, 725 S.W.2d 87, 90 (Mo. App. S.D. 1987) (elemental

that due process includes the right to have a fair trial before an impartial jury

uninfluenced by anything other than evidence, court instructions, and attorneys'

arguments). Unfortunately, the actual impact of certain practices on jurors cannot always

be known. Williams, 425 U.S. at 504. Accordingly, the United States Supreme Court has

recognized that "certain courtroom practices are so inherently prejudicial that they

deprive the defendant of a fair trial." Carey v. Musladin, 549 U.S. 70, 72 (2006) (citing

Williams, 425 U.S. at 503-06).

The test for whether a state-sponsored courtroom practice is so inherently

prejudicial that it deprives a defendant of a fair trial is well settled. For example, in

Williams, the Supreme Court considered whether an accused person, compelled to wear

identifiable prison attire at his trial, is denied due process or equal protection of the laws.

425 U.S. at 502. The Court explained that a state-sponsored practice is inherently

prejudicial and deprives a defendant of his right to a fair trial if "an unacceptable risk is

4
The Sixth Amendment is binding upon the States through the due process clause of the Fourteenth
Amendment. See Duncan v. Louisiana, 391 U.S. 145, 158-59 (1968),

9
presented of impermissible factors coming into play" in the decision of the jury.

Williams, 425 U.S. at 505. The Court held that it was inconsistent with the Fourteenth

Amendment to compel an accused to stand trial while dressed in identifiable prison attire.

Id. at 512. Based on "reason, principle, and common human experience" it was possible

that forcing a defendant to wear prison attire would impair the basic presumption of

innocence in favor of the accused and there was no essential state policy served in forcing

him to do so. Id. at 503-05. Similarly, in Holbrook v. Flynn, the Supreme Court

considered whether seating four uniformed police officers in the row of spectators

immediately behind the defendant deprived him of a fair trial. 475 U.S. 560, 562 (1986).

In that case, the Court held that the presence of the officers was not so inherently

prejudicial that it denied the defendant the right to a fair trial, in that the Court did not

believe it would brand the defendant with "an unmistakable mark of guilt." Id. at 571. In

addition, even a slight degree of prejudice as a result of police presence would be

justified by the State's legitimate interest in maintaining custody and security. Id. See

also Deck v. Missouri, 544 U.S. 622, 628-29 (2005).

In contrast to state-sponsored courtroom practices, the United States Supreme

Court has not squarely addressed whether private-actor conduct can be so inherently

prejudicial that it creates a presumption that the defendant was deprived of a fair trial.

Carey, 549 U.S. at 76. Indeed, the Court has never applied the test for inherent prejudice

from Williams or Flynn to the conduct of private spectators. Id. Absent guidance from

10
the Supreme Court, lower courts have gone on a number of different paths. See id. at 76-

77.5

One path taken by the lower courts is the path that Hartman urges this court to

follow: the precedent from the United States Court of Appeals for the Ninth Circuit in

Norris v. Risley that applied the Williams and Flynn test to spectator conduct. See Norris,

918 F.2d 828 (9th Cir. 1990); see also In re Woods, 114 P.3d 607 (Wash. 2005) (applying

Flynn test to conduct of a private party). In Norris, an inmate in a habeas petition alleged

that the jurors in his case were exposed to a large number of women wearing "Women

Against Rape" buttons in public areas of the courthouse, in the courtroom, on their way to

and from the courtroom, and while serving refreshments outside the courthouse. Norris,

918 F.2d at 829. He argued that this presence was inherently prejudicial and deprived

him of a fair trial. Id. at 829-30. According to the Ninth Circuit, the question was

whether the presence of the spectators wearing the buttons was "'so inherently prejudicial

as to pose an unacceptable threat' to the right to a fair trial." Id. at 830 (quoting Flynn,

475 U.S. at 572). "A courtroom practice or arrangement is inherently prejudicial if 'an

unacceptable risk is presented of impermissible factors coming into play.'" Id. (quoting

Estelle, 425 U.S. at 505). The Ninth Circuit found that the buttons conveyed an implied

message encouraging jurors to find the defendant guilty and, because the message

5
Despite the lack of a definitive answer from the United States Supreme Court regarding private spectator
conduct, it has at least been suggested that it is likely a similar test would be used to address the conduct of private
parties. In Carey, Justice Souter indicated that the test in Williams and Flynn, clearly established by the Court,
would apply to conduct by private parties. 549 U.S. at 82 (Souter, J., concurring). This likely application of the
Williams and Flynn test to at least certain classes of private spectators was suggested by a concurrence of Judge
Breckenridge of the Missouri Supreme Court in Johnson v. State, 406 S.W.3d 892, 909-14. Johnson is not directly
analogous, however, as it involved off-duty police officers in uniform observing trial, which is a "hybrid of the state-
sponsored courtroom practice cases and those cases making spectator-conduct claims." Id. at 912.

11
conveyed could not be confronted or cross-examined at trial, the buttons were an

impermissible factor. Id. at 830. Further, the court found the risk that jurors might be

influenced by these impermissible factors was unacceptable, as they undermined the

defendant's presumption of innocence and the right of confrontation and cross-

examination. Id. at 831-33.

Other courts have refused to extend Williams and Flynn to cover spectators'

conduct. Carey, 549 U.S. at 76; see also, Billings v. Polk, 441 F.3d 238, 246-47 (4th Cir.

2006) ("These precedents do not clearly establish that a defendant's right to a fair jury

trial is violated whenever an article of clothing worn at trial arguably conveys a message

about the matter before the jury"); Davis v. State, 223 S.W.3d 466, 474-75 (Tex. App.

2006) (no authority holds that a display of victim medallions by spectators creates

inherent prejudice).

Still other courts consider spectator conduct claims without relying on or

distinguishing Williams or Flynn. Carey, 549 U.S. at 77; see State v. Speed, 961 P.2d 13,

29-30 (Kan. 1998) (trial judge is charged with preservation of order and duty to see that

justice is not obstructed and discretion will not be disturbed unless it appears that

prejudice resulted from the denial of a legal right); Buckner v. State, 714 So.2d 384, 389

(Fla. 1998) ("a judge may objectively look to the extrinsic factual matters disclosed to the

jury and then determine whether there was a reasonable possibility that the breach was

prejudicial to the defendant").

Neither Hartman nor the State have identified any Missouri cases directly on point

discussing what standards have developed in Missouri applicable to the conduct of purely

12
private parties not taking part in the trial and whether certain conduct by private parties

can be inherently prejudicial to a defendant. Indeed, most cases in Missouri that have

discussed Williams and Flynn do so in the context of state-sponsored courtroom

practices. For example, a number of cases discuss claims by defendants that they were

deprived of the right to a fair trial because they were forced to wear prison clothing or

shackles in front of the jury. See State v. Harris, 868 S.W.2d 203, 207-08 (Mo. App.

W.D. 1994); Neal v. State, 99 S.W.3d 571, 576-77 (Mo. App. S.D. 2003); State v.

Sonnier, 422 S.W.3d 521, 524 (Mo. App. S.D. 2014). There are also a number of cases

which discuss a "hybrid" scenario in which a defendant claims the presence of off-duty

uniformed police officers observing trial results in the deprivation of fair trial. See

Johnson v. State, 406 S.W.3d 892, 903 (Mo. banc 2013); Bello v. State, 464 S.W.3d 284,

289 (Mo. App. W.D. 2015). These cases include the conduct of private spectators but

spectators who are coated with the authority of the State. In addition, the Eastern District

of this court has applied the inherent prejudice test in cases where a "courtroom

arrangement" is challenged. For example, where individuals associated with child

victims are allowed to be present with the victim while testifying, see State v. Gollaher,

905 S.W.2d 542, 546-47 (Mo. App. E.D. 1995) and where a witness is allowed to hold a

teddy bear while testifying, see State v. Dickson, 337 S.W.3d 733, 742-44 (Mo. App.

E.D. 2011). Both of these cases only pertain to "courtroom arrangements" and do not

address conduct of private parties not taking part in trial.

Although the cases above are not exactly on point, we are not without guidance.

The Southern District of this court in Peacock considered a claim by the defendant that

13
he was denied a fair trial because comments and gestures of trial spectators indicated

their belief that defendant was guilty and may have influenced the jury. 725 S.W.2d at

89-90. As no objection was made at the time of trial, the court reviewed the claim under

plain error review. Id. The court stated in Peacock that:

[i]t is elemental that due process includes the right to have a fair trial before
an impartial jury that has not been influenced by anything other than
properly introduced evidence, the court's instructions, and the attorneys'
arguments. That right is threatened if self-appointed guardians of the
public's morals are permitted, through speech, gestures, demonstrations and
the like, to make a calculated attempt to improperly coerce the jury into
adopting the watchdog group's point of view. Courts should be extremely
vigilant to ensure that such demonstrations do not occur, and, if they do, to
take immediate corrective action.

Id. at 90. The court found that neither the judge nor bailiff noticed any alleged improper

spectator behavior. Id. Further, the fact that defense counsel did not object during trial

suggested he also did not notice any improper conduct. Id. The court reasoned that

because the jury only imposed a nine-month sentence rather than the maximum penalty

of five years suggested to the court that, even if the jury had seen or heard the alleged

conduct, they were evidently not influenced by it. Id. Finding no manifest injustice or

miscarriage of justice, the court found no plain error. Id.

In State v. Muldrow, the defendant claimed he was deprived of a fair trial as a

result of an anti-domestic violence display located in the courthouse lobby, as the charges

against him arose from the brutal murder of his former girlfriend and domestic partner.

145 S.W.3d 471, 473 (Mo. App. W.D. 2004). The defendant had requested that the court

quash the entire jury panel. Id. The defendant did not argue actual prejudice, as he never

attempted to prove that any members of the panel saw the display, but rather that the

14
circumstances were so outrageous that prejudice was inherent. Id. at 474. The court

found that no such inherent prejudice was illustrated, explaining that "[t]he environment

of a trial must give jurors, who may have been otherwise carefully selected, a sense or

appearance of neutrality." Id. (quoting State v. Baumruk, 85 S.W.3d 644, 649 (Mo. banc

2002)). The court did not believe, in these circumstances alone, that the display, put in

place for National Domestic Violence Awareness Month, conveyed that the court was

either connected to the State in a positive way or defendant in a negative way and, as

such, it did not manifest an inherently prejudicial environment. Muldrow, 145 S.W.3d at

474-75.

There are also a number of cases by our courts which consider conduct by

spectators in the contexts of emotional outbursts in front of the jury. In State v. Brooks,

the defendant claimed the emotional outburst of a spectator in front of the jury, in which

the spectator screamed that defendant would "burn in hell for this," merited a mistrial.

960 S.W.2d 479, 489-90 (Mo. banc 1997). In response, the trial court barred the

spectator from the courtroom and stated that, as the disruption was brief and the outburst

spontaneous and unprompted by the prosecution, no mistrial was mandated. Id. at 490.

In addition, the court discussed with the prosecution how to control any further outbursts

for the remainder of the trial. Id. In analyzing the defendant's claim of error, the

Missouri Supreme Court stated that such outbursts should be "prevented insofar as

possible." Id. at 491. However,

[w]here outbursts occur, the trial court may exercise broad discretion in
minimizing or eliminating the prejudicial impact of an hysterical witness or
gallery member. In determining whether to declare a mistrial, the trial

15
 court may consider the spontaneity of the outburst, whether the prosecution
was at fault, whether something similar, or even worse, could occur on
retrial, and the further conduct of the trial.

Id. (citations omitted). The Court found that the steps taken by the trial court after the

outburst and its refusal to declare a mistrial were a proper exercise of discretion. Id.

These cases, taken together, provide the standards by which we review Hartman's

claim of error. Every defendant has the right to a fair trial and to be judged only by the

evidence presented at trial, the instructions of the court, and the arguments of the

attorneys. Baumruk, 85 S.W.3d at 650-51; Peacock, 725 S.W.2d at 90. The jury must be

a neutral arbiter, and the courtroom a place of neutrality and free of coercion. Baumruk,

85 S.W.3d at 649. Another way of stating this would be that impermissible factors

should not be permitted to influence the jury insomuch as they can be controlled.6 The

trial court should be extremely vigilant and take appropriate steps to minimize the

possibility that a defendant will be prejudiced. Peacock, 725 S.W.2d at 90. Further, the

trial court sits as an intimate observer of events at trial and is in the best position to judge

whether certain conduct or messages are such that they risk depriving the accused of a

fair trial. Ward, 242 S.W.3d at 704. Finally, the "[f]ailure to give the accused a fair

hearing violates the minimal standards of due process." Baumruk, 85 S.W.3d at 650

(citing Irvin, 366 U.S. at 722).

6
It is important to recognize that the public also has a qualified right to attend a criminal trial. See Bello,
464 S.W.3d at 290; Waller v. Georgia, 467 U.S. 39, 44–45 (1984). There are, of course, both attendant benefits and
risks to having open trials. Waller, 467 U.S. at 46. Such benefits include that the public is available to ensure the
accused is not unjustly condemned, can keep triers interested in their roles, and discourage perjury. Id. Risks
include outbursts, commotion, shaming, and both deliberate and unintentional influences on the jury. "Where fair
trial rights are at significant risk [ . . . ] the first amendment rights of trial attendees can and must be curtailed at the
courthouse door." Norris, 918 F.2d at 832 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564
(1980)).

16
 The question remains, however, in the absence of a showing of actual prejudice,

whether a defendant may demonstrate inherent prejudice resulting from the action of

private parties. Put another way, must prejudice be presumed where the court finds that

private parties have created an unacceptable risk that impermissible factors may influence

the jury? Missouri precedent, cited above, suggests strongly that conduct by private

actors or messages conveyed by them could be so inherently prejudicial as to deprive the

accused of a fair trial,7 but that is an issue that we need not decide today.

Assuming arguendo that Hartman could show that conduct by a private party

could be inherently prejudicial to his right to a fair trial, Hartman has made no such

showing here. The facts here fall well short of facts in Norris, the primary case upon

which Hartman relies. In Norris, the court found that three of the six jurors had actually

observed multiple women seated approximately sixteen feet from the nearest juror during

trial wearing large buttons that highlighted the word "Rape." Norris, 918 F.2d at 831.

The spectators conveyed the message that the defendant had raped the complaining

witness and were a reminder that the spectators believed defendant's guilt before it was

proven. Id. Further, the presence of the women during trial with their message

"constituted a statement, not subject to cross-examination that in the opinion of the

members of the Rape Task Force the complaining witness had been raped by the

defendant." Id. at 833.

Hartman argues he was deprived of a fair trial because the child victims were

likely seen by jurors while standing outside of the courthouse with teddy bears

7
See also note 5.

17
surrounded by BACA members and family. Hartman also states that the children were

escorted to the prosecutor's office by BACA members. Davidson, the attorney who

viewed the scene and provided the entirety of the evidence upon which Hartman relies,

did not actually see that any child abuse messages were being displayed or

communicated. Rather, Davidson assumed that the individuals were BACA members

because they had something around their necks involving a motorcycle and they looked

like bikers. This is the entirety of the evidence by Hartman in support of an "inherently

prejudicial" environment. There is no evidence BACA members were wearing anything

with a message that pertained to child abuse prevention. There is no evidence BACA

members communicated any message whatsoever to any member of the jury either inside

or outside of the courtroom. Further, there was no evidence that the BACA organization

was well known in the community or that any person, who did not have prior knowledge

of the organization, would have had any idea that these "bikers" near the courthouse had

anything to do with child abuse. Certainly, there was no evidence that any member of the

jury knew what the BACA organization was or that any person they may have seen in or

around the courthouse was in any way associated with that organization. We are not

prepared to say that the mere presence of members of BACA creates an inherently

prejudicial environment in the absence of a showing that an anti-child abuse message was

actually being affirmatively communicated, whether it is through the wearing of items

displaying a message or another form of communication.

As acknowledged by Hartman, the trial court took multiple affirmative steps to

ensure that Hartman received a fair trial. The trial court agreed with Hartman that child-

18
abuse prevention signs located in and around the courthouse should be removed prior to

trial and permitted questions regarding the signs during voir dire.8 In addition, the trial

court specifically informed the prosecutor to instruct BACA members that they could not

wear their vests, buttons, or have any other items with child-abuse prevention messages

in the courtroom, inside the courthouse, or around the courthouse and instructed the court

martial to enforce that prohibition. There is nothing in the record to suggest that this

order was not fully complied with in every respect. There is no allegation whatsoever

that any improper behavior occurred in the courtroom or that any messages were

communicated to the jury. Further, the court suggested that in the future BACA members

should refrain from gathering in front of the court but rather go down and wait by the

prosecutor's office, so as to avoid this potential issue in the future.

The trial court here should be commended for its extreme vigilance to guarantee

that Hartman received a fair trial in an atmosphere free from impermissible factors.

Hartman has presented no evidence to suggest there was not a "sense or appearance of

neutrality" throughout his trial. Johnson, 406 S.W.3d at 903 (quoting Baumruk, 85

S.W.3d at 644). There is no evidence, beyond speculation, that any impermissible

influence reached or could have reached the jury. These facts do not merit a finding of

inherent prejudice such that Hartman was incapable of receiving a fair trial.9

8
Hartman asserts he was prejudiced prior to trial by the presence of these signs, but was afforded the relief
he requested in his motion for the removal of those signs and was given the opportunity to question the venire panel
about the presence of those signs. It is unclear what more relief Hartman argues he was entitled to.
9
In Point II, Hartman argues that it was error for the trial court to allow the child victims to wear vests that
had "BACA" on the back and the cumulative effect of the allegations in Point I combined with the wearing of the
vests denied him his right to a fair trial. As explained in Point II, this added fact does not change our finding that no
inherent prejudice was demonstrated by Hartman.

19
 Accordingly, as no inherent prejudice has been established and no actual prejudice

demonstrated, the trial court did not abuse its discretion in refusing to grant Hartman's

request for a mistrial. See Flynn, 475 U.S. at 572 ("if the challenged practice is not found

inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is

over").

Point I is denied.

II.

In his second point on appeal, Hartman claims the trial court abused its discretion

when it denied Hartman's request to preclude the child victims from wearing their vests

that displayed "BACA" on the back because it deprived Hartman of due process, a fair

trial, and presumption of innocence in that the exposure of the jury to BACA members

outside of the courthouse combined with the message on the children's vests conveyed

that Hartman was guilty of the charge.

Standard of Review

"The trial court has considerable discretion in matters regarding examination of

witnesses." State v. Powell, 318 S.W.3d 297, 302 (Mo. App. W.D. 2010) (citing

Gollaher, 905 S.W.2d at 546). "The exercise of that discretion should not be disturbed

on appeal unless it has been abused or substantial harm has been improperly done to the

complaining party." Id. (citing Gollaher, 905 S.W.2d at 546-47).10

10
Hartman asserts that the appropriate standard of review here is the standard the court uses regarding the
admission of evidence at trial. The issue presented is not what evidence the court has allowed in at trial, but whether
it was appropriate to allow the children to wear a comfort item and whether the court abused its discretion in
allowing the children to do so.

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 Analysis

Hartman argues that the cumulative effect of the presence of BACA members

around the children prior to trial, considered in Point I, with the children wearing the

vests while testifying was inherently prejudicial and deprived him of the right to a fair

trial. Missouri courts have applied the "inherent prejudice" test for "courtroom

arrangements," such as the utilization of non-standard procedures for minors while

testifying. See, e.g., State v. Dickson, 337 S.W.3d 733, 742-45 (Mo. App. S.D. 2011);

Gollaher, 905 S.W.2d at 546-47. These cases then consider whether the non-standard

procedure presents the unacceptable risk that impermissible factors will come into play in

the minds of the jurors that would erode the accused's presumption of innocence. See

Dickson, 337 S.W.3d at 742; Gollaher, 905 S.W.2d at 547.

But, in dealing with minors involved in sexual abuse, courts are given more

leeway to utilize non-standard procedures. Powell, 318 S.W.3d at 303.

Young children, who are victims of sexual abuse, have great difficulty in
recounting to juries the sordid details of their painful experience. Wide
latitude should be granted to trial courts so that such victims can recount
their experiences without being overwhelmed by crippling emotional strain.
Their testimony is often of critical importance since they are often the only
occurrence witness.

Id. (quoting State v. Pollard, 719 S.W.2d 38, 42 (Mo. App. E.D. 1986)). "However,

behavior or argument designed solely to appeal to the jury's emotional sympathy for a

witness is irrelevant and, therefore, improper." Id. (citing State v. Knese, 985 S.W.2d

759, 774 (Mo. banc 1999)). Essentially, when determining whether a courtroom practice

presents the unacceptable risk that impermissible factors would come into play in the

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minds of the jurors, the special status and needs of a child sexual abuse victim must be

considered in the balance.

In Powell, the defendant, accused of child molestation, argued that the trial court

abused its discretion in overruling his objection to child victims holding teddy bears

during trial testimony. Id. at 302. Because Missouri courts had not directly addressed

this issue, this court considered a number of cases from other jurisdictions and found

persuasive their practice of weighing the beneficial effects of such comfort items against

potential prejudice. Id. at 303.11 We analogized the claim of error to other decisions

involving the testimony of minor witnesses regarding traumatic events. Id. In Pollard,

"we found no prejudicial harm to the defendant when the trial court permitted the mother

of the six-year-old sexual assault victim to sit near the counsel table while the victim

testified." Id. (citing Pollard, 719 S.W.2d at 42). Similarly, in Gollaher, "we declined to

find plain error when the trial court permitted the grandfather of an eight-year-old girl,

who had witnessed the defendant sodomize her young brother, to stand by the witness

box and hold the girl's hand while she testified." Id. (citing Gollaher, 905 S.W.2d at

546). Therefore, in Powell, we found that the trial court considered the usefulness of the

comfort items against the possibility of prejudice. Id. The trial court determined that the

items were a source of familiarity and comfort and there was nothing to suggest the items

were used in an attempt to elicit emotional sympathy from the jury. Id. Accordingly, we

found no abuse of discretion in overruling defendant's objection. Id. at 304. See also

11
In Powell, Section 491.725.3 was not yet in effect, which provides for the procedure to be followed if a
child wants to testify with a comfort item. 318 S.W.3d at 303. In this case, no argument was made before the trial
court or on appeal about potential applicability of Section 491.725.3. Accordingly, we decline to consider whether
the statute was applicable or whether the procedures therein should have been followed. See Rule 84.13(a).

22
Dickson, 337 S.W.3d at 742-44 (trial court did not abuse its discretion in allowing child

victim to testify while holding a stuffed animal).

As explained supra in Point I, the trial court took numerous precautions to make

sure the presence of BACA members did not prevent Hartman from receiving a fair trial.

There was no evidence beyond speculation that any member of BACA could have had an

impermissible influence on the jury and no evidence that the environment at trial was

anything other than one of neutrality. There is actually no evidence that inside or outside

of the courtroom any juror ever saw or heard any message from a BACA member. We

cannot say that the mere presence of members of BACA alone would create an inherently

prejudicial environment.

The question now is whether the trial court's decision to allow the child victims,

ages five and seven, to wear vests with "BACA" on the back while testifying changes this

result. The court allowed the victims to do so because the victims felt supported by

BACA. The trial court ensured that "BACA" would not be explained to the jury and that

no other individuals would be allowed to wear the vests where they could be exposed to

jurors, either inside or outside of the courthouse. The record shows that no questions

were asked regarding the meaning of BACA, there is no indication that any effort was

made to focus attention on the vests, and nothing indicates that the jury was informed

regarding the meaning. There is also no indication that the use of vests was calculated to

elicit emotional sympathy from the jury. Accordingly, we also find that the trial court did

not abuse its discretion in allowing the child victims to wear the vests while testifying.

23
 Courts are given significant discretion when it comes to the examination of

children during trial, especially where the issues pertain to sexual abuse. We cannot say

the trial court abused its discretion here in allowing the victims to wear vests inscribed

with "BACA," where the trial court was extremely diligent and successful in ensuring

that there was no unacceptable risk that impermissible factors influenced the jury.

Point Two is denied.

Conclusion

For the reasons described herein, the judgment of the trial court is affirmed.

__________________________________
Gary D. Witt, Judge

All concur

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