Opinion
No. 59525-3-I.
November 8, 2010.
Appeal from a judgment of the Superior Court for Whatcom County, No. 06-1-01139-5, Steven J. Mura, J., entered February 6, 2007.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Grosse, J.
Gregg Belyeu appeals his convictions for first degree burglary, second degree assault, attempted murder in the first degree, and violation of a no-contact order. He contends the information charging burglary was insufficient, the jury instructions pertaining to self-defense were inadequate, and the court violated his right to public trial by conducting individual voir dire in chambers. We reject Belyeu's claims concerning the information, but agree the court improperly excluded the public from a portion of jury selection. Accordingly, we reverse Belyeu's convictions, remand for a new trial, and do not reach his jury instruction issue.
BACKGROUND
Belyeu and Gabrielle Knotts were romantically involved and had lived together for several years. They had one child together. Belyeu was abusive, and the couple eventually separated. Knotts obtained a no-contact order.
In violation of the order, Belyeu went to Knotts' home late one night. Though testimony about what ensued differed in many respects, it was undisputed that Belyeu stabbed Knotts and John Pearson inside Knotts' home.
The State filed an information charging Belyeu with violating the no-contact order, first degree burglary, attempted murder in the first degree for his attack on Knotts, and first degree assault for stabbing Pearson. Belyeu raised no objection to the information and stipulated to violating the no-contact order.
At the beginning of jury selection, the judge and parties convened in the judge's chambers for private, individual questioning of potential jurors based on their answers to a questionnaire. The court, prosecutor, and defense counsel questioned four panel members in chambers, on the record. Defense counsel challenged one of the prospective jurors because he was a police officer who knew the prosecutor and several of the State's witnesses. The court heard arguments and made its ruling granting the challenge in chambers. After proceeding with jury selection in open court, the judge and parties returned to chambers to privately question three more panel members. The first two recalled reading about the case in the newspaper some months earlier, and the third said a case was pending against her brother-in-law for sexually assaulting her two daughters. The defense and prosecutor agreed to excuse the last panelist lest she realize that Belyeu's defense counsel also represented her brother-inlaw. The jury was then selected in open court, eventually convicting Belyeu as charged except that as to the charge involving Pearson, the jury found him guilty of the lesser offense of second degree assault.
DISCUSSION Public Trial
Belyeu contends the court violated his constitutional right to a public trial by conducting a portion of jury selection in chambers. We agree.
The state and federal constitutions guarantee the right to a public trial. Article I, section 22 of the Washington Constitution provides: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial. . . ." The Sixth Amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . . ." These provisions assure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. While the public trial right is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances.
Additionally, article I, section 10 of the Washington Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision secures the public's right to open and accessible proceedings, and is not at issue here.
State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005); Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 P.3d 861 (2004).
State v. Easterling, 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006); Brightman, 155 Wn.2d at 509; In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004); State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
To protect the defendant's right to a public trial, our Supreme Court held in State v. Bone-Club that a court must apply a five-part test before closing part of a criminal trial. This requirement applies to closure of jury selection.
The Bone-Club analysis provides: "`1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an acused's right to a fair trial, the proponent must show a `serious and imminent threat' to that right. 2. Anyone present when the closure motion is made must be given an opportunity to object to the closure. 3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests. 4. The court must weigh the competing interests of the proponent of closure and the public. 5. The order must be no broader in its application or duration than necessary to serve its purpose.'" Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers of Washington v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)); see also Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five-part analysis under article I, section 10).
State v. Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004).
In all but the most exceptional circumstances, closing voir dire without employing the Bone-Club analysis is reversible error in which prejudice is presumed and remand for a new trial is required. Further, the First and Sixth Amendment to the United States Constitution also require that voir dire of prospective jurors be open to the public. In Presley v. Georgia, the United States Supreme Court held that a court must consider reasonable alternatives and make articulate findings specific enough to permit review before closing jury selection proceedings. In the absence of such consideration and findings, the proper remedy is reversal of the defendant's conviction.
State v. Strode, 167 Wn.2d 222, 223, 231, 217 P.3d 310 (2009); see also State v. Momah, 167 Wn.2d 140, 156, 217 P.3d 321 (2009) (under the unusual facts of the case, failure to employ Bone-Club analysis held not to be structural error requiring reversal).
Presley v. Georgia, ___ U.S. ___, 130 S. Ct. 721, 723, 175 L. Ed. 2d 675 (2010).
Id. at 725.
Id.
Here, the court commenced jury selection by questioning several potential jurors in chambers. While the record indicates the court took this action to protect the prospective jurors' privacy, there is no indication the court undertook the required Bone-Club analysis or otherwise considered less restrictive alternatives to accomplish this purpose, and the court made no findings. We therefore conclude the court violated Belyeu's right to an open trial.
Nevertheless, the State argues reversal and remand for a new trial is not required. It relies on the Supreme Court's decision in State v. Momah to argue that the error here is not structural and caused no prejudice. In Momah, the defendant affirmatively agreed to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in the closed proceeding, and benefited from the closure by ensuring that individuals with knowledge of the heavily publicized case did not contaminate the entire venire. Further, the trial court recognized the competing interests of a public trial and an impartial jury, and narrowly tailored the closure to accommodate only those who indicated they might not be impartial. The court concluded Momah's conduct also indicated deliberate, tactical choices to protect his right to an impartial jury. Because the closure "occurred to protect Momah's rights and did not actually prejudice him," the court held no structural error occurred and reversal was not appropriate.
Momah, 167 Wn.2d at 151-52.
Id. at 156.
Id. at 155-56; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) (the record in Momah showed a knowing and intelligent waiver of the public trial right).
Id. at 156.
The State argues this case is like Momah. We disagree. Although Belyeu participated in the closed proceedings and encouraged prospective jurors to indicate if there were matters they would rather discuss privately, this merely reflects that he cooperated with the procedure already established by the court. There is no indication in the record that Belyeu was given the opportunity to object or that the court recognized and balanced competing interests. The State insists Belyeu benefitted from the procedure because two potentially biased jurors were excused. But this assumes the same result would not have occurred absent the closure. Without a finding that no less restrictive alternative would suffice, we cannot so conclude.
In all relevant respects, this case is indistinguishable from Strode. There, as here, the court initiated the in-chambers voir dire to preserve juror privacy, giving the defendant no opportunity to object. Like Belyeu, Strode participated in the private voir dire, after which some prospective jurors were excused for cause. Even so, six justices of the Washington Supreme Court agreed the closure violated Strode's public trial right, constituted structural error, and necessitated automatic reversal and remand for a new trial. There being no basis to distinguish Belyeu's case, the same result must obtain.
Strode, 167 Wn.2d at 224.
Id.
Id. at 231, 236 (Fairhurst, J. concurring).
Closing a portion of jury selection violated Belyeu's state and federal constitutional rights to a public trial. Under both Strode and Presley, the remedy is a new trial. We reverse and remand.
Sufficiency of the Information
Belyeu asserts for the first time on appeal that the information was insufficient because it failed to allege either ownership or occupancy of the building. Though we reverse on other grounds, we address the issue to confirm that Belyeu may be retried on the burglary charge.
Charging documents must include all of the essential statutory and nonstatutory elements of a crime. The purpose of the requirement is to give notice to the accused of the nature of the crime in order to prepare a defense. Where an issue is raised for the first time on appeal, the charging document is construed liberally in favor of validity. The information is sufficient if (1) the necessary facts appear in any form, or by fair construction can be found in the charging document; and (2) the defendant cannot show actual prejudice from lack of notice.
State v. Goodman, 150 Wn.2d 774, 784, 83 P.3d 410 (2004); U.S. Const. amend. VI; Wash. Const. art. I, §§ 22.
State v. Tandecki, 153 Wn.2d 842, 846-47,109 P.3d 398 (2005) (citing State v. Kjorsvik, 117 Wn.2d 93, 101, 812 P.2d 86 (1991)).
Id. at 848-49.
Id. (citing Kjorsvik, 117 Wn.2d at 105-06).
The first degree burglary statute under which Belyeu was charged provides:
A person is guilty of burglary in the first degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building and if, in entering or while in the building or in immediate flight therefom, the actor or another participant in the crime is (a) armed with a deadly weapon, or (b) assaults any person.
The information mirrored this language, alleging that Belyeu "with intent to commit a crime against a person or property therein, did enter or remain unlawfully in the building located at 8395 Holly Lane, Maple Falls." The information sufficiently apprised Belyeu of the building he was accused of unlawfully entering.
Clerk's Papers at 152.
Belyeu argues that under State v. Klein, occupancy is an essential element of burglary. Klein held that an information that failed to allege ownership but named the building's occupant was sufficient to charge burglary under the criminal code at that time. Klein and other cases have held that ownership is not an essential element of burglary, and is only material for two purposes: "To show on the record that the building burglarized is not the property of the accused, and . . . to identify the offense to such an extent as to protect the accused from a second prosecution for the same offense."
195 Wash. 338, 80 P.2d 825 (1938).
Id. at 341.
Id. at 343-44.
Under the current statute, unlawfully entering or remaining in a building is an essential element of burglary. While ownership or occupancy may be necessary to prove that entry was unlawful, neither is an essential element of the crime. The information here properly stated all essential elements.
Further, Belyeu does not argue and cannot show that the information's failure to allege ownership or occupancy caused any actual prejudice. The "prejudice" prong of the analysis looks beyond the face of the charging document to determine whether the accused actually received notice of the charges. The information contained the address of Knott's home, the building he was alleged to have entered, and Belyeu stipulated to violating a no-contact order that prohibited him from entering Knotts' residence. There is no question that Belyeu actually received notice of the charges.
Kjorsvik, 117 Wn.2d at 106.
Belyeu may be retried on that charge.
CONCLUSION
Because the court improperly excluded the public from a portion of jury selection without applying the Bone-Club test, we reverse Belyeu's convictions and remand for a new trial.
In light of this disposition, we do not reach Belyeu's argument that the court's instructions failed to set forth the elements of murder and self-defense. On retrial, Belyeu may propose instructions that properly explain the law.
WE CONCUR: