Opinion
No. 64158-1-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Whatcom County, No. 09-1-00618-3, Steven J. Mura, J., entered September 15, 2009.
Reversed and remanded by unpublished opinion per Grosse, J., concurred in by Ellington and Lau, JJ.
Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. The court in this case violated Benito Rodriguez's right to a public trial when it conducted a portion of voir dire in chambers without weighing the factors required by State v. Bone-Club. Because a failure to conduct an adequateBone-Club analysis requires reversal in all but the most exceptional circumstances, we reverse Rodriguez's convictions and remand for further proceedings.
128 Wn.2d 254, 906 P.2d 325 (1995).
FACTS
The State charged Rodriguez with vehicle prowl, theft, and malicious mischief. At the beginning of jury selection, the court informed the jury pool that individual questioning in chambers was available "[if] for any reason you're hesitant or unwilling to give an answer in front of this large group of people." The court later asked whether there was anything in the jurors' personal or professional lives that would make it difficult for them to sit on the jury given the trial's anticipated length. Juror 12 asked if she could answer in private.
At the end of voir dire, the court and counsel discussed Juror 12's request in open court:
THE COURT: . . . Ladies and gentlemen, I know Juror Number 12 indicated there were some issues on a conflict she had with hearing the case and she prefers to talk in chambers. Anybody have a problem with us going back in chambers with Juror Number 12? Apparently no one has a problem. We'll meet with Juror Number 12 in chambers real briefly.
[PROSECUTOR]: Is the court finding this is the least restrictive way to accomplish this?
THE COURT: It is.
[PROSECUTOR]: No objection by defense either?
[DEFENSE COUNSEL]: No.
The court and the prosecutor proceeded to briefly question the juror in chambers concerning her hardship and her ability to focus on the trial. Defense counsel asked no questions.
Juror 12 was not seated on the jury, which found Rodriguez guilty as charged. He appeals.
ANALYSIS
Rodriguez contends the court violated his right to a public trial under article I, section 22 of the Washington State Constitution by conducting a portion of jury selection in chambers without first applying and weighing the fiveBone-Club factors. We agree.
Section 22 provides: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial." While the public trial right is not absolute, Washington courts strictly guard it to assure that proceedings occur outside the public courtroom in only the most unusual circumstances. To protect the right, our Supreme Court held in Bone-Club that a trial court must apply and weigh five factors before closing a portion of a criminal trial. Also, the court must enter specific findings justifying its closure order. These requirements extend to closure of jury selection, and in all but the most exceptional circumstances, closing voir dire without employing an explicit Bone-Club analysis is reversible error requiring a new trial.
State v. Easterling, 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006); State v. Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005); In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 258-59.
Under Bone-Club,
"1. The proponent of closure . . . 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 v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
Easterling, 157 Wn.2d at 175 (citingBone-Club, 128 Wn.2d at 258-59).
Orange, 152 Wn.2d at 804 (quotingPress-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
State v. Strode, 167 Wn.2d 222, 223, 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); see Easterling, 157 Wn.2d at 174, 181 (citingBone-Club, 128 Wn.2d at 261-62) (violation of right is presumptively prejudicial and requires a new trial). Our review is de novo. Easterling, 157 Wn.2d at 173-74.
Here, the court closed voir dire without adequately addressing the Bone-Club factors. Although the record reflects concern for the juror's privacy and perfunctory consideration of the "least restrictive means" factor, it fails to demonstrate that the "court engaged in the detailed review that is required in order to protect the public trial right." Closure in the absence of such review was error.
We recognize that a distinction might be drawn for public trial purposes between the jury selection process and excusing jurors from the venire for hardship. Cf. State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011) (noting that, for purposes of a defendant's right to be present, courts have distinguished between preliminary hardship inquiries and substantive voir dire). But the State has not asked us to make that distinction here. Nor would we be inclined to make such a distinction when, as here, the hardship inquiry occurs in chambers and takes place after, not before, the lawyers have conducted their voir dire and communicated the nature of the case to the jury.
Strode, 167 Wn.2d at 228; State v. White, 152 Wn. App. 173, 181, 215 P.3d 251 (2009) ("The trial court must consider alternatives and balance the competing interests on the record.").
The State argues, however, that Rodriguez waived any error when his counsel told the court he had no objection to questioning the juror in chambers. But "the court must ensure that any waiver of Section 22 rights is knowing, intelligent, and voluntary — which means the court must be sure the defendant knew he possessed such a right and knowingly waived it." As there was no mention of Rodriguez's public trial right below or any indication that defense counsel's assent reflected Rodriguez's knowing and intelligent waiver of that right, the record does not establish waiver.
Ticeson, 2011 WL 167476, at 4 (citingStrode, 167 Wn.2d at 229 n. 3); see also Duckett, 141 Wn. App. at 806-07 (finding no waiver where "the court never advised [the defendant] of his public trial right or asked him to waive it.").
The State also argues that reversal is not warranted because the in-chambers voir dire was extremely brief and therefore a de minimis violation of the public trial right. But as we noted inIn re Ticeson, Washington courts, including our Supreme Court, have repeatedly declined to find violations of the public trial right de minimis. We decline to adopt a de minimis exception here. That question is best addressed to our State Supreme Court.
No. 63122-5, 2011 WL 167476, at 5 (Wash. Ct. App. Jan. 18, 2011).
Finally, the State contends reversal is not warranted because the circumstances in this case are analogous to those before the court in State v. Momah. Again, we disagree.Momah was characterized by wide publicity and grave concerns that prospective jurors with knowledge of the case would contaminate the entire venire if questioned in open court. Momah affirmatively agreed to private questioning in chambers and his counsel sought to expand the process to all potential jurors, actively participated in the private questioning, and exercised numerous challenges for cause. The Supreme Court concluded that this conduct indicated deliberate, tactical choices to protect Momah's right to an impartial jury. And while the trial court inMomah failed to conduct a precise Bone-Club analysis, the record showed that it recognized and "carefully considered" the competing interests in a public trial and an impartial jury. The Supreme Court found these circumstances distinguished Momah from the court's previous public trial cases. They distinguishMomah from this case as well. Accordingly, we must reverse Rodriguez's convictions.
167 Wn.2d 140, 217 P.3d 321 (2009).
Momah, 167 Wn.2d at 145-46.
Momah, 167 Wn.2d at 147.
Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) ("the defendant intentionally relinquished a known right.").
Momah, 167 Wn.2d at 156.
Momah, 167 Wn.2d at 151.
We reject Rodriguez's contention that his malicious mischief conviction is not supported by sufficient evidence and that the underlying charge must therefore be dismissed. Evidence is sufficient to support a conviction if, viewing all of the evidence in the light most favorable to the State, any rational juror could have found all the elements of the crime proved beyond a reasonable doubt. A defendant challenging the sufficiency of the evidence admits the truth of the evidence and all rational inferences that may be drawn from it.
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
Rodriguez contends there was insufficient evidence for the jury to find that he broke the window on the victim's truck. The evidence established that the truck's back window was locked and in good condition several hours before Rodriguez entered the truck through the rear slider pane. After Rodriguez's entry, there was a hole in the window next to the slider pane that allowed access to the locking clasp on the pane. Rodriguez possessed a small flashlight that could have been used to break the window, and a witness testified that Rodriguez was using the flashlight inside the truck. Viewed in the light most favorable to the State, this evidence was sufficient for the jury to infer that Rodriguez broke the window.
Citing State v. Bencivenga, 137 Wn.2d 703, 708, 711, 974 P.2d 832 (1999), Rodriguez argues that the jury could not draw that inference because there were other reasonable inferences implicating someone else. But as theBencivenga court noted, the reasonableness of inferences is a matter for the trier of fact.
Reversed and remanded for further proceedings.