Opinion
No. 60089-3-I.
Filed: December 20, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-00044-8, Steven J. Mura, J., entered May 23, 2007.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Grosse, J.
Patrick Dixon contends the court violated his right to public trial by conducting individual voir dire of several prospective jurors in chambers. He also argues the court abused its discretion by excluding certain evidence and by giving a nonstandard alternative jury instruction on reasonable doubt. We reject Dixon's challenge to the evidentiary ruling. But because the court improperly excluded the public from a portion of voir dire, we reverse Dixon's convictions, remand, and direct the court to use the standard reasonable doubt instruction in any retrial.
BACKGROUND.
The State charged Dixon with unlawful imprisonment and rape in the second degree. Dixon's first trial resulted in a deadlocked jury. On retrial, prospective jurors were provided a questionnaire to facilitate jury selection. The questionnaire cover sheet invited prospective jurors to indicate a preference for discussing sensitive or embarrassing matters "in private." The questionnaires allowed jurors to list by number those questions the prospective juror preferred to discuss privately. Based upon their responses, five jurors were questioned individually in chambers. The court, counsel, the defendant and a court reporter were present.
Clerk's Papers at 93 ("Some of these questions may call for information of a personal nature that you may not want to discuss in public. If you feel that your answer to any question might be embarrassing to you, you may indicate that you would prefer to discuss your answer in private. You will find instructions for this on the questionnaire.").
Defense counsel participated in questioning some of the prospective jurors, but there is no indication in the record that Dixon was informed this procedure implicated his right to public trial, that he was given an opportunity to object, or that he affirmatively agreed to the procedure.
At trial, Monica Spencer testified that on January 7, 2007, she was staying with her boyfriend Howard Hall in a Bellingham motel. Spencer and Hall were alcoholics, and spent the day drinking and arguing. Around 10:30 p.m., Hall told Spencer to go buy beer at a nearby store. On her way, Spencer ran into Dixon, whom she knew from a homeless outreach program that sometimes provided her and Hall clothes and food. Dixon had a room at the same motel, and Spencer agreed to go to his room to drink beer and talk. Once there, Dixon locked the door, ignored Spencer when she said she wanted to go home, and physically prevented her from leaving. He undressed and asked Spencer to perform oral sex. She refused. Dixon then removed her coat and clothes from the waist down and attempted both vaginal and anal intercourse. Spencer testified Dixon penetrated her vagina "partway" and "evidently" penetrated her anus, because she was bleeding. Dixon allowed her to leave, and she ran back to her room, hysterical.
Report of Proceedings (RP) (May 9, 2007) at 89.
Hall testified that when Spencer was late returning with the beer, he went looking but did not find her. He returned to their room and waited an hour or more. Spencer finally "ran in and jumped on the bed" and immediately reported the rape. She was wearing some of her clothes, carrying others, and had dropped some along the way. Hall saw blood on her long underwear. Over Spencer's protest, he called the police. A rape examination revealed injuries and an emotional state consistent with sexual assault.
RP (May 10, 2007) at 92.
Dixon's defense was that he and Spencer had consensual sex. He sought to admit evidence of Hall's history of domestic violence to support his theory that Spencer fabricated the rape because she was afraid that Hall would hurt her if he knew she had been with another man. On the State's motion, the court excluded that evidence.
The jury convicted Dixon as charged. He appeals.
DISCUSSION Public Trial
Dixon contends the court violated his constitutional right to a public trial by conducting a portion of jury selection in chambers. Whether a defendant's constitutional right to a public trial has been violated is a question of law, which we review de novo.
State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).
A defendant's right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. These provisions ensure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. "While the right to a public trial is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances."
State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009). The public also has a right to open administration of justice under article I, section 10 of the Washington State Constitution and the First and Fourteenth Amendments to the United States Constitution. Id. at 225-26. The public's right is not at issue in this case.
Brightman, 155 Wn.2d at 514; Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 P.3d 861 (2004).
Strode, 167 Wn.2d at 226.
In State v. Bone-Club and In re Personal Restraint of Orange, the Washington Supreme Court set out the standards for closing all or a portion of criminal trials, including voir dire. A trial court must undertake the five-part Bone-Club analysis before conducting voir dire outside the public forum of the courtroom.
128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
152 Wn.2d 795, 805, 100 P.3d 291 (2004).
Strode, 167 Wn.2d at 223; Orange, 152 Wn.2d at 812; State v. Duckett, 141 Wn. App. 797, 802-03, 173 P.3d 948 (2007). 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 accused'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).
In State v. Strode, a plurality of the Supreme Court held that conducting a portion of voir dire in chambers without engaging in a Bone-Club analysis violated the defendant's right to a public trial, constituted structural error, and required reversal and remand for a new trial. Though disagreeing with the lead opinion concerning the defendant's ability to waive the right through conduct and to raise the public's right on appeal, the concurring justices agreed that the trial court's failure to weigh competing interests before closing voir dire required automatic reversal and remand.
Strode, 167 Wn.2d at 231.
Id. at 235-36 (Fairhurst, J., concurring).
The facts surrounding the private, in-chambers voir dire in this case are indistinguishable from those in Strode. In both cases, the court employed a voir dire practice wherein prospective jurors were privately questioned in chambers about sensitive matters to preserve their privacy and avoid embarrassment. In both cases, the court followed this practice without affording the defendant an opportunity to object and without undertaking a Bone-Club analysis. And in both cases, defense counsel participated in the private voir dire. Under Strode, Dixon's convictions must be reversed and his case remanded for a new trial.
Id. at 223-24.
Id. at 224.
Id.
See also Presley v. Georgia, ___ U.S. ___, 130 S. Ct. 721, 725, ___ L. Ed. 2d ___ (2010) (holding that closing voir dire without considering alternatives and making specific findings violates the Sixth Amendment right to public trial and requires automatic reversal and remand).
Relying on State v. Momah, the State disagrees. Momah's case had been widely publicized and the defense had grave concerns that prospective jurors with knowledge of the case would contaminate the entire venire if questioned in open court. Accordingly, Momah affirmatively agreed to privately question in chambers those prospective jurors indicating prior knowledge. Momah's counsel argued to expand the process to everyone, actively participated in the private questioning, and exercised numerous challenges for cause. Although the court failed to conduct a precise Bone-Club analysis before initiating the in-chambers voir dire, the record indicated the court recognized and balanced the competing interests in a public trial and an impartial jury and narrowly tailored the closure to accommodate only those jurors who indicated they might not be impartial. The record further indicated Momah was aware of his rights and made a deliberate and tactical decision "to achieve what he perceived as the fairest result."
167 Wn.2d 140, 217 P.3d 321 (2009), cert. denied, 131 S. Ct. 160 (2010).
Id. at 146.
Id. at 147.
Id. at 155-56.
Id. at 155.
Under these circumstances, which were "significantly different from those presented by our previous [closure] cases," the Momah court held the failure to conduct a Bone-Club analysis was not structural error and remand "cannot be the remedy." The court thus affirmed Momah's conviction.
Id. at 156.
The State argues Dixon's case is like Momah because Dixon actively participated in the private voir dire and benefited from learning sensitive information relevant to jury selection, which he used to challenge potential jurors for cause. But these similarities do not distinguish Dixon's case from Strode, nor do they approach the unique circumstances in Momah. Significantly, there is no indication the court considered Dixon's right to a public trial as in Momah and no facts to suggest Dixon's right to an impartial jury was imperiled by questioning individuals in front of the entire venire.
The State initially raised three additional arguments, which it appears to have abandoned in its supplemental briefing. First, it argued there was no closure because the court never so expressly ruled. This argument is based upon this court's decision in Momah, and was evidently rejected by the Supreme Court. The State also argued Dixon waived his ability to challenge any closure when he acquiesced and participated in private questioning of jurors. In Strode, the lead and concurring opinions agreed the defendant did not effectively waive his public trial right under indistinguishable circumstances. Finally, the State argued that any closure was de minimis and had such a trivial impact upon Dixon's public trial right that reversal is unwarranted. Although federal courts have adopted a de minimis trial closure standard, there is no support in Washington Supreme Court decisions for finding any deliberate closure a de minimis violation.
141 Wn. App. 705, 171 P.3d 1064 (2007).
See, e.g., 167 Wn.2d at 145 ("we hold the closure in this case was not a structural error").
167 Wn.2d at 229, 235 (Fairhurst, J., concurring).
See State v. Easterling, 157 Wn.2d 167, 183, 137 P.3d 825 (2006) (Madsen, J., concurring) (citing numerous, mostly federal cases in support of a de minimis trial closure standard).
See, e.g., Strode, 167 Wn.2d at 230 (refusing to consider closure de minimis because it was neither "brief" nor "inadvertent"); State v. Erickson, 146 Wn. App. 200, 209, 189 P.3d 245 (2008) ("Because the decision to remove individual questioning of prospective jurors outside the courtroom has more than an inadvertent or trivial impact on the proceedings, we hold that it acts as a closure for purposes of Bone-Club.") (petition for review pending); Duckett, 141 Wn. App. at 809 ("The closure here was deliberate, and the questioning of the prospective jurors concerned their ability to serve; this cannot be characterized as ministerial in nature or trivial in result.") (petition for review pending); State v. Leyerle, No. 37086-7-II, 2010 WL 4489420, at *4 (Wash. Ct. App. Nov. 10, 2010) (rejecting argument that a two-minute, videotaped voir dire with a prospective juror in a public hallway was a de minimis violation of public trial right).
Because the court improperly excluded the public from a portion of jury selection without applying the Bone-Club test, we reverse Dixon's conviction and remand for a new trial.
Given this disposition, we need not reach Dixon's argument that the court's nonstandard jury instruction on reasonable doubt constitutes reversible error. On retrial, the court is instructed to use only the approved pattern instruction WPIC 4.01 to instruct juries that the government has the burden of proving every element of the crime beyond a reasonable doubt. See State v. Bennett, 161 Wn.2d 303, 318, 165 P.3d 1241 (2007).
Exclusion of Hall's Domestic Violence History
Hall had previously been found guilty of assaulting Spencer because he did not like the way she was looking at another man, and Spencer indicated there were many occasions when Hall's "jealousy turned violent."
RP (March 20, 2007) at 151.
On the State's motion before the first trial, the court excluded the evidence. Dixon contends the court thereby violated his constitutional rights to put on a defense and to confront and cross-examine witnesses. We address this issue because it may arise again on remand. We review the court's decision to exclude evidence for abuse of discretion. Similarly, we will not disturb a court's limitation of the scope of cross-examination absent manifest abuse of discretion.
The court adhered to its ruling at the second trial.
State v. Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006). An abuse of discretion occurs if a court's decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). A decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard. Id. A decision is based on untenable grounds if the factual findings are unsupported by the record. Id. A decision is based on untenable reasons if it is based on an incorrect standard or if the facts do not meet the requirements of the correct standard. Id.
State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
The rights to put on a defense and to cross-examine witnesses are not absolute. "`[A] criminal defendant has no constitutional right to have irrelevant evidence admitted in his or her defense.'" Evidence is relevant only if it has any tendency to make any fact of consequence to the case more or less likely than without the evidence.
State v. Maupin, 128 Wn.2d 918, 925, 913 P.2d 808 (1996) (quoting State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983)).
ER 401; State v. Thomas, 150 Wn.2d 821, 858, 83 P.3d 970 (2004).
After a lengthy argument and detailed offers of proof, the court concluded Hall's history of violence and jealousy was not relevant to Spencer's motive to fabricate the rape unless Dixon could establish that Hall was actually jealous on this occasion. He could not. Dixon offered evidence that Hall was a jealous person generally and did not like Spencer looking at other men, but no evidence that Hall was aware Spencer had been with another man or that Spencer had any reason to believe he would find out. And there was no evidence that Spencer reported the rape in response to any threat or suggestion by Hall that he suspected her of being with someone else. To the contrary, the evidence was that Spencer reported the rape instantly: "[S]he busted in, I mean, just ran in and jumped on the bed and says, `I've been raped. I've been raped.'"
RP (May 10, 2007) at 92.
Dixon argues "[i]t was inevitable Hall would learn Spencer had been in Dixon's room," because she had been gone for so long with no explanation. "He would fail to learn where Spencer had been only if Spencer lied to him. That Spencer might lie about her interaction with another man was precisely the point the defense intended to assert." But this is merely speculation. The court did not abuse its discretion by excluding the evidence and limiting Dixon's cross-examination in this area.
Appellant's Br. at 21 (emphasis in original).
Id.
Darden, 145 Wn.2d at 620-21 (courts may deny cross-examination if the evidence sought is vague, argumentative, or speculative).
Reversed and remanded.
WE CONCUR