FILED APRIL 30, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 31487-1-III Respondent, ) ) v. ) UNPUBLISHED OPINION ) ADAM EDWIN POWELL, ) ) Appellant. )
FEARING, J. — Adam Powell assigns constitutional infirmity to his trial on
the theory that the trial court violated his public trial rights when engaging in
unrecorded sidebar conferences during jury selection. He also contends
insufficient evidence supports his conviction for second degree murder and an
aggravated domestic violence exceptional sentence. We disagree with all
assignments of error and confirm Powell’s conviction and sentence.
FACTS
This prosecution of Adam Powell for murder arises from the death of Sabrina
Flores from a gunshot wound on October 23, 2010, while inside Powell’s Tieton home.
The two were romantically involved. Since Powell challenges, in part, the sufficiency of No. 31487-1-III State v. Powell
the evidence, we draw facts from lengthy trial testimony.
During trial, Adam Powell testified on his own behalf. According to Powell, he
and Sabrina Flores met in March 2010 and started a dating relationship within a month.
In July 2010, Flores began residing with Powell in one side of a duplex at 905 Tieton
Avenue, Tieton. Powell described the relationship with Flores as volatile.
During trial, the State presented testimony of alleged abuse of Adam Powell,
preceding Sabrina Flores’ death, inflicted on Flores in order for the State to prove an
aggravated domestic violence sentencing factor. Brenda McCoy testified that, on
September 12, 2010, she observed a young lady sobbing as she walked on the street in
front of McCoy’s residence. A car then struck the woman from the rear. The young
woman flew five feet off the street. McCoy ran from her house and helped the victim
from the pavement. McCoy implored the woman to enter McCoy’s house. The victim
declined, and the offending car returned minutes later. The driver ordered the victim into
the car. McCoy called law enforcement. During trial, McCoy identified Powell as the
driver of the car, but only because he sat in the courtroom and she knew he was the
defendant.
On September 12, 2010, Yakima Police Officer Juan Ceja responded to 905 Tieton
Avenue, Adam Powell’s residence, to investigate a report of domestic violence. Officer
Ceja heard a female screaming inside the residence, and he immediately entered the
home. Officer Ceja saw a female sitting on the couch with ripped pants and fresh scrapes
2 No. 31487-1-III State v. Powell
on her knees. Ceja escorted Powell from the residence, and Powell informed the officer
that he and the woman were driving in Naches when she jumped from the car. The
woman got in front of the car and he “tapped her” with the vehicle. Report of
Proceedings (RP) at 851-52.
Griselda Vaca and Ernesto Amonzo, wife and husband, resided in the other side of
the duplex in which Adam Powell and Sabrina Flores lived. At trial, Vaca testified that
she sometimes heard “mumbling” coming from the other side of the duplex walls and a
loud male using the “F” word. RP at 920-21. She also often heard the male talking and
the female sobbing in the living room. Vaca was not home at the time of the October 23
shooting. Ernesto Amonzo, at trial, averred that he heard yelling and crying on an
average three times weekly in Powell’s side of the duplex.
Adam Powell testified that, earlier on October 23, 2010, he went shooting with his
.40 caliber hi-point handgun. When he arrived home, Sabrina Flores told him she was
preparing for a shower and would later return a computer to her father. Powell answered
a cell phone ring. Flores’ father was the caller, and Powell handed the phone to Flores.
After ending the call, Flores showered, and Powell walked to the post office two blocks
away. According to Powell, when he returned home, Flores accused him of spying on
her. He sat on the couch, removed his firearm from his pants, and placed the gun on the
coffee table. Powell intended to walk upstairs to change his pants, but became distracted
by a pile of Flores’ belongings in the kitchen. He noticed his pants on top of the pile,
3 No. 31487-1-III State v. Powell
and, as he retrieved them, he found a methamphetamine pipe. An argument ensued, and
both Powell and Flores screamed at each other. Powell exclaimed: “since your stuff is
packed, you can go live with your father because I’m done with this.” RP at 1425.
According to Adam Powell’s trial testimony, he threw the pipe away and
proceeded up the stairs to change his pants. When Powell returned downstairs, he saw
Sabrina Flores, in the living room, with his handgun to her forehead. He yelled at her to
stop. When she told him to leave, Powell lunged at her in an attempt to remove the gun.
Flores and Powell fought over the firearm, fell to the floor, and Flores shot herself.
Powell did not explain whether Flores shot herself accidently or on purpose. Powell
rolled Flores over and checked her breathing. She did not breathe and lacked a pulse.
Powell moved the firearm from her, but he did not try to put the gun in her hand.
Duplex neighbor Ernesto Amonzo was home at the time of the shooting. Amonzo
testified that he heard Powell yelling and a female crying for one half hour before hearing
a gunshot. He overheard Powell shout: “[S]hut the fuck up. Fuck you, fuckin’ bitch,
stupid.” RP at 895. After hearing a gunshot, Amonzo listened and heard Powell talking
and pacing from one side to the other in his duplex.
After the shooting, Adam Powell first called a friend and then his grandmother.
He later called 911 and reported that Sabrina Flores committed suicide. During trial,
Powell admitted that he lied when reporting the shooting as a suicide because he feared
law enforcement would blame him for murder, when he did not shoot Flores.
4 No. 31487-1-III State v. Powell
Apparently, he considered the story he told at trial consistent with an accidental shooting,
rather than suicide. Powell testified that he never intended the gun to discharge and never
wished the death of Flores.
Officer Juan Ceja of the Tieton Police Department responded to Adam Powell’s
emergency call of a suicide at Powell’s residence. As Officer Ceja entered the dwelling,
he saw Adam Powell kneeling on the ground while speaking on the phone with a 911
operator. Sabrina Flores lay on her back on the living room floor with left hand over her
face and left foot crossed over the right foot. Blood puddled to the right side of her head.
After ending the call, Powell sobbed hysterically and sweated. Powell told Officer Ceja
that Flores shot herself.
Officer Juan Ceja escorted Adam Powell from the residence and into the backseat
of his patrol car because the .40 caliber hi-point firearm rested next to Sabrina Flores’
body. Officer Ceja returned to the residence to process the scene. He photographed the
scene and secured the firearm. The officer did not reposition Flores’ body and did not
see anyone else move her.
Officer Juan Ceja found the positioning of Sabrina Flores’ body on the floor
suspicious. Officer Ceja concluded that someone had likely rolled over the body after the
death. The blood stains on the firearm also raised Ceja’s suspicions.
Detective Brian Jackson of the Yakima County Sheriff’s Office traveled to Adam
Powell’s Tieton residence to investigate the death of Sabrina Flores. Detective Jackson
5 No. 31487-1-III State v. Powell
spotted a bullet hole on the right side of Sabrina Flores’ head. Jackson also observed that
blood drained from a wound on the left side of Flores’ face and across her nose. Gravity
would not have permitted the blood to move across the nose if Flores had always lay on
her back. Jackson also concluded that someone had rolled Flores’ body because feet
cross if the body is limp and moved in that manner. Jackson also noticed blood on
Flores’ left palm, but not on her right hand.
Sergeant Jeff Gillespie arrived at the Tieton home and approached Adam Powell
as the latter sat unrestrained in the patrol vehicle. Sergeant Gillespie read Powell his
Miranda rights and briefly interviewed Powell. Powell told Gillespie that Sabrina Flores
held the handgun to the side of her head, and, as he ambled toward her, she fired the gun
and fell to the floor. After viewing the crime scene, Sergeant Gillespie spoke again with
Powell and asked him with which hand Flores shot herself. After a long pause, Powell
replied that the gun was in Flores’ left hand and in direct contact with the side of her
head.
Detectives from the Yakima County Sheriff’s Office interviewed Adam Powell at
10:30 p.m. on October 23, 2010. At the conclusion of the interview, law enforcement
arrested Powell on an unrelated felony warrant and transported him to the Yakima
County jail. Authorities later announced to Powell that he was also under arrest for the
murder of Sabrina Flores.
Dr. Gina Fino, a forensic pathologist, conducted an autopsy on Sabrina Flores. Dr.
6 No. 31487-1-III State v. Powell
Fino found evidence of a gunshot wound to the head and a gunshot wound to the right
arm. The body contained an entrance wound to the left side of the head and an entrance
wound to the right anterior upper arm. The entrance wound on the head was located
behind the left ear with an exit wound on the right side of the face near the right eyebrow.
Dr. Fino testified at trial that she found soot on soft tissue, evidence that someone held
the gun muzzle close to the entrance wound. Fino noticed no skin splitting or stippling
near the wound, such that she opined that fabric came between the muzzle and scalp. Dr.
Fino also found an oval defect in the jacket worn by Flores.
Based on the blood pattern, Dr. Gina Fino concluded that Sabrina Flores did not
stand and fall on her back when shot. Dr. Fino opined that, based on the evidence, Flores
could not have held the gun in her left hand. Fino found the gunshot wound to be
inconsistent with a self-inflicted shot.
On cross-examination during trial, Dr. Gina Fino conceded that Sabrina Flores
may have fallen and hit the floor shortly before or as the gun fired. Fino could not
“absolutely positively exclude” a scenario under which the gun fired when between
Flores and someone on top of her. RP at 1302. On redirect examination, Dr. Fino
testified that the hypothetical presented to her by Adam Powell’s counsel was “not
likely.” RP at 1301. She opined that, given this hypothetical, the trajectory of the bullet
would go from front to back. She further explained:
7 No. 31487-1-III State v. Powell
[b]ut with this trajectory the muzzle of the weapon has to be behind the ear. Because it’s a contact wound and it’s behind the ear. And then the weapon has to be positioned as such that the trajectory can come from back to front.
RP at 1301. According to Fino, the hypothetical that Powell and Flores fell down
together, causing the gun to discharge, defied gravity because of the bullet trajectory.
Anthony Jennings met Adam Powell, in October 2010, while both resided in jail.
According to Jennings, Powell informed him he employed the name “Twisted.” RP at
1144. Within twenty-four hours of meeting Powell in prison, Powell told Jennings that
he killed Sabrina Flores, and Powell described the murder in detail. Powell disclosed that
he and Flores fought the night of the murder. Flores angered Powell by wanting to leave
and soliciting her father’s assistance. Powell pushed her head down, placed the gun to
her head, and “blew her head off.” RP at 1147. Powell added that he used a .40 caliber
chrome Smith and Wesson. Powell described in detail the crime scene to Jennings.
During trial, Jennings depicted Powell’s demeanor when Powell described the killing:
[a]rrogant…[a] smile on your (sic) face saying, Ha, ha that’s what the bitch gets Ha, I had her like this, and . . . [t]here was no remorse . . . [t]here wasn’t no tears or nothing . . . [i]t was a smile on his face thinking he was cool.
RP at 1150.
During trial, Anthony Jennings further testified that Adam Powell told the story of
the murder of Sabrina Flores over thirty times. In addition, Powell admitted mistakenly
placing the gun in Flores’ wrong hand, the opposite hand from where the bullet entered
8 No. 31487-1-III State v. Powell
her head. Powell told Jennings he attempted to make the killing appear as a suicide.
Jennings also testified that Powell spoke of a time when he attempted to run Flores over
with a car and the neighbor came outside yelling. Powell claimed to have choke
slammed Flores, punched her, and bounced her head off the walls on other occasions.
PROCEDURE
The State of Washington charged Adam Powell with one count of murder in the
second degree with a firearm enhancement. The State later amended the information to
charge Powell with one count of murder in the first degree with a domestic violence
aggravator. Still later, the State filed another amended information that returned the
firearm enhancement to the information. Before trial, the trial court ruled as admissible
certain ER 404(b) evidence as to domestic violence and Adam Powell’s statements to
police.
Because Adam Powell’s major contention involves events that occurred during
jury selection, we outline some of the voir dire. During voir dire, the trial court
conducted six unrecorded sidebar conferences with counsel. On the first day of trial,
January 30, 2013, the court conducted a sidebar at 12:21 p.m. and another at 12:22 p.m.
Immediately after the first unrecorded bench conference, the following colloquy
occurred:
JUDGE: Is Sylvie Perrault here? JUROR: Yes. JUDGE: Sylvie Perrault?
9 No. 31487-1-III State v. Powell
JUROR: Yes. JUDGE: Yes, I, I think someone related to you is going to testify in this case so I’m going to excuse you right now, okay? Thank you. Call in tonight and just give your questionnaire to the bailiff. Thank you.
RP at 525. Twelve lines later on page 525 of the report of proceedings, the trial court
memorialized what occurred in the two sidebars:
JUDGE: Sure. I’ll also put on the record that we had a brief side bar during the time that the jurors were filling out the instructions. We discussed one of our potential jurors who is related to one of the witnesses and was excused. Juror Perrault. And, see if I can find the number. [STATE]: Number forty-eight, Your Honor. JUDGE: Thank you. Number forty-eight. Yes, Sylvie Elsie Perrault has been excused. Also we discussed timing and agreed the jurors will come back tomorrow at nine and then we will meet before we bring them back in here to discuss the questionnaires or make any challenges for cause.
RP at 525-26.
On the afternoon of the second day of trial, January 31, 2013, juror 23 spoke
during voir dire. Juror 23 reported that his daughter was raped and eventually committed
suicide. He added that some events or conversations trigger “ambushes,” and he might
miss some testimony if sitting on a jury. The trial court then conducted the third
unrecorded sidebar on January 31, 2013. Immediately after the sidebar, the court excused
juror 23. The State’s attorney later addressed the sidebar:
[STATE]: Your Honor, I just remembered one other thing. We had a side bar earlier? JUDGE: Yes. [STATE]: And I guess my understanding is, and it’s a concern for me because of the, the Bone-Club analysis and cases from that, when we’re
10 No. 31487-1-III State v. Powell
having these side bars, it’s my understanding a lot of the judges in our superior courts aren’t even doing those anymore— JUDGE: Right. [STATE]:—because of those cases and it causes concern about what’s said there, even if it’s being recorded over there versus just putting it on the record here, that people in, you know, these courtrooms are open to the public, that we shouldn’t even be doing that at all anymore. That if we’re gonna say something, we just do it outside the presence of the jury on the record instead of doing the side bar kind of how we did the last one. JUDGE: And I have no problem at all with that once we get the jury we can send them out, but when we have this group of people I don’t know how we do that. But I do appreciate what you’re saying and I’m, and I don’t disagree with it. Basically what we did during that side bar, and I’ll put it on the record right now, and also another point to that is that the defendant is sitting over here and can’t necessarily hear what we’re saying although I trust that counsel would have reviewed it. I believe it had to do with letting one of our jurors go, which one was it? [STATE]: [Juror 23], I think. JUDGE: [Juror 23], oh yes, it was [Juror 23] who[se] daughter had been raped and then committed suicide and everyone agreed that he’d be a great juror but, on the other hand, it was a very emotional and traumatic experience for him and that there was high likelihood really that it would sidetrack him and distract him from the presentation of the evidence and everyone agreed to take him off. So, thank you for bringing that to my attention, I appreciate it. [STATE]: Thank you, Your Honor.
RP at 703-04.
On the third day of trial, February 1, 2013, the trial court conducted, during voir
dire, three additional unrecorded sidebars. Immediately after the first sidebar, Adam
Powell’s counsel forwarded a lengthy challenge, on the record, to a juror seated on the
panel. Following the second sidebar, the State’s attorney raised outside the presence of
11 No. 31487-1-III State v. Powell
the jury but in open court a Batson challenge. Following the third sidebar, the trial court
stated, “[a]ll right, ladies and gentlemen. We have our panel.” RP at 760.
Trial witness Anthony Jennings, who befriended Adam Powell in jail, testified that
he was serving a fourteen-year prison sentence for robbery at the time of trial. Evidence
of Anthony Jennings’ prior crimes of dishonesty were admitted to impeach his
credibility. Jennings acknowledged that he would be labeled a “jailhouse snitch,” but he
denied receiving a deal from the State for his testimony. Jennings declared that he
testified because he did not value Powell’s shooting of Sabrina Flores.
Jeffrey Kelso testified for the defense. Kelso declared that he knew Anthony
Jennings and that Jennings knew Sabrina Flores and her family. During cross-
examination, Kelso admitted that Jennings and the Flores family were merely
acquaintances. The State impeached Kelso with evidence that he had been convicted of a
crime of dishonesty.
The trial court gave a jury instruction for the lesser included offense of second
degree murder. The jury returned a verdict of guilty of the lesser included offense of
murder in the second degree. The jury also returned a special verdict that Adam Powell
was armed with a firearm when he committed the crime and a special verdict that the
crime constituted an aggravated domestic violence offense.
The trial court sentenced Adam Powell to an exceptional sentence upward of 340
months’ confinement, including sixty months for the firearm enhancement. The trial
12 No. 31487-1-III State v. Powell
court also based the exceptional sentence on the domestic violence aggravator. During
the sentencing hearing, the trial court commented about aggravated domestic violence:
He [Adam Powell] would say but they [Sabrina Flores and him] were s[oul] mates but admitted to calling her a fucking bitch. The neighbors heard that. If you want to know what this relationship was like because Sabrina can’t tell us, we can hear about it from people that witnessed it. And like a lot of acts of domestic violence there often are not very many witnesses and that’s done by design. People get are isolated, people are cut off from family from friends they’re not allowed to leave. In this case it’s pretty clear that she was packed up. All of her belongings her personal effects were out of the bedroom, they were piled in a bags and suitcases and plastic bags in the kitchen. She’d been apparently looking for a way to get her stuff out of the house. The yellow pages were turned to a page that showed U-Haul if I’m not mistaken. So she intended to leave. Mr. Powell testified that she was free to go anytime; that he never stopped her didn’t ring true. Obviously she wanted to leave that’s why her things packed up and she never was able to get out. The neighbors testified that and they lived in a duplex so there was close as neighbors can possible be, thin walls between the living room and they heard screaming and crying as often as three times a week. The gentlemen that lived in the house actually heard the incident that led up to this homicide. And heard screaming crying he turned up the TV and tried to get away from it.
RP at 1704. The sentencing court continued:
So we know that there is an ongoing pattern of abuse here by what was heard by the neighbors. But we also have an incident that is very interesting and that’s the incident with the car. Where Miss McCoy was so concerned that she called the police and then came in to testify. .... I think it says a lot about Sabrina’s state of mind and her relationship with Mr. Powell because she was terrified and she was not she didn’t think that anybody could help her. Apparently she didn’t think that her parents could help her, she didn’t think that Miss McCoy could help her, she was terrified of Mr. Powell. And there’s lots of evidence to support that.
RP at 1705-06.
13 No. 31487-1-III State v. Powell
The trial court entered findings of fact and conclusions of law justifying an
exceptional sentence. In its findings of fact, the trial court wrote:
Under the domestic violence aggravator the jury found that Mr. Powell committed second degree murder when he and the victim were in a dating relationship and as part of an ongoing pattern of psychological or physical abuse of the victim manifested by multiple incidents over a prolonged period of time. Based on the jury’s finding of the aggravated domestic violence offense, the court concludes, considering the purposes of the Sentencing Reform Act (SRA), that the facts found by the jury are substantial and compelling reasons justifying an exceptional sentence, a sentence above the standard range is in the interest of justice and is consistent with the purposes of the Sentencing Reform Act, and the exceptional sentence is appropriate to ensure that punishment is proportionate to the seriousness of the offense.
Clerk’s Papers (CP) at 268.
After Adam Powell filed an appeal, the superior court conducted a hearing to
determine the content of the unrecorded sidebar conferences during voir dire. Powell’s
trial defense counsel submitted a declaration that stated he lacked specific recollection of
the sidebar discussion, but he inferred the subject of the discussion from the context of
the record. The trial prosecutor filed a sworn statement, wherein he averred he also
lacked recall of comments uttered during the sidebars. The trial court concluded that the
sidebar conferences on February 1, 2013, entailed discussions of a challenge to a juror,
the State’s Batson challenge, and confirming members of the jury.
14 No. 31487-1-III State v. Powell
LAW AND ANALYSIS
Sufficiency of Evidence for Murder
On appeal, Adam Powell assigns error to the sufficiency of evidence to convict
him of second degree murder and to impose an aggravated domestic violence increased
sentence. He also contends the trial court violated his public trial rights when conducting
unrecorded sidebar conferences during voir dire. We address the sufficiency of evidence
for the conviction first, because acceptance of this assignment of error would moot the
other challenges.
When reviewing a challenge to the sufficiency of the evidence, this court asks
whether, viewing the evidence in a light most favorable to the State, any rational trier of
fact could find the essential elements of the crime beyond a reasonable doubt. State v.
Green, 94 Wn.2d 216, 220-21, 616 P.2d 628 (1980). We draw all reasonable inferences
from the evidence in favor of the State and interpret the evidence most strongly against
the defendant. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). The
elements of a crime can be established by both direct and circumstantial evidence. State
v. Kroll, 87 Wn.2d 829, 842, 558 P.2d 173 (1976). This court must defer to the trier of
fact on issues of conflicting testimony, witness credibility, and the persuasiveness of the
evidence. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).
Adam Powell contends that the State failed to prove, beyond a reasonable doubt,
that the homicide was not excusable. The to-convict instruction for the lesser crime of
15 No. 31487-1-III State v. Powell
second degree murder read:
To convict the defendant of the lesser crime of Second Degree Murder, each of the following elements of the crime must be proved beyond a reasonable doubt: (1) That on or about October 23, 2010, the defendant shot Sabrina Flores; (2) That the defendant acted with intent to cause the death of Sabrina Flores; (3) That Sabrina Flores died as a result of the defendant’s acts; and (4) That the acts occurred in the State of Washington.
CP at 224. The trial court then instructed the jury on the defense of excusable homicide:
It is a defense to a charge of Murder in the First Degree and to a charge of Murder in the Second Degree that the homicide was excusable as defined in this instruction. Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, or without any unlawful intent. The State has the burden of proving the absence of this defense beyond a reasonable doubt. If you find that the State has not proved the absence of this defense beyond a reasonable doubt, it will be your duty to return a verdict of not guilty.
CP at 225.
Adam Powell highlights that, although a jury decides credibility, the jury cannot
resort to guess and speculation. State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037
(1972). Powell contends that, since Dr. Gina Fino could not conclusively rule out an
accidental gunshot wound, the State did not establish beyond a reasonable doubt that the
homicide was not excusable. Powell also labels Anthony Jennings’ testimony as
unreliable.
We conclude that the jury had sufficient evidence to reject the excusable homicide
16 No. 31487-1-III State v. Powell
defense and to convict Adam Powell of second degree murder. When testifying at trial,
Powell admitted to lying to law enforcement about a suicide. His story evolved from
suicide to an accidental shooting when he and Flores wrestled over the firearm and the
gun fired, striking Flores in the head. Anthony Jennings provided damning testimony
about Powell admitting to intentionally killing Flores. Jennings declared that Powell told
him he put the gun in the wrong hand when he tried to stage a suicide. Powell boasted
thirty times of murder. The jury could accept or reject Jennings’ testimony at its
discretion.
Forensic pathologist, Dr. Gina Fino, testified that Sabrina Flores likely did not die
from a self-inflicted wound. Dr. Fino added that the shooting scenario presented by
Adam Powell defied science. Adam Powell presented no countering expert testimony.
Powell cites no authority for the proposition that an expert must rule out all possibility of
an accidental shooting in order to convict the accused of murder.
Public Trial Right
Adam Powell contends the trial court violated his right to a public trial when it
entertained unrecorded sidebars without conducting a Bone-Club analysis. State v. Bone-
Club, 128 Wn.2d 254, 906 P.2d 325 (1995). The State argues no violation occurred, and,
assuming any violation, the violation was de minimis under State v. Schierman, 192
Wn.2d 577, ___ P.3d ___ (2018). We agree no violation occurred and thus do not
address the de minimis contention.
17 No. 31487-1-III State v. Powell
Under our state and federal constitutions, criminal defendants have a right to a
public trial. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011); U.S. CONST.
amend. VI; WASH. CONST. art. I, § 22. Whether a right to a public trial has been violated
is a question of law. State v. Wise, 176 Wn.2d 1, 9, 288 P.3d 1113 (2012). The error
may be raised for the first time on appeal. State v. Wise, 176 Wn.2d at 9.
Washington courts have devised a three-part inquiry when determining if a trial
procedure violated an accused’s right to a public trial: (1) Did the proceeding implicate
the public trial right? (2) If so, was the proceeding closed? (3) And if so, was the closure
justified? State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014). The accused
carries the burden of establishing “yes” as the answer to the first two questions. State v.
Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015). The proponent of the closure carries
the burden of justification. State v. Love, 183 Wn.2d at 605.
We first ask whether the voir dire sidebars, during Adam Powell’s trial, implicated
the public trial right. Courts apply an “experience and logic” test to determine whether
the public trial right attaches to a particular proceeding. State v. Smith, 181 Wn.2d at
511. Under the experience prong, this court considers whether the challenged proceeding
has historically been open to the public. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715
(2012). Under the logic prong, this court asks “whether public access plays a significant
positive role in the functioning of the particular process in question.” State v. Sublett,
176 Wn.2d at 73. If we answer “yes” to both questions, the public trial right attaches.
18 No. 31487-1-III State v. Powell
State v. Whitlock, 188 Wn.2d 511, 521, 396 P.3d 310 (2017).
When clear precedent has been set by prior case law, this court need not engage in
an independent “experience and logic” analysis. State v. Love, 183 Wn.2d at 605. We
confront two competing lines of cases, one dealing with jury selection, and the other
dealing with sidebar conferences.
Adam Powell emphasizes the nature of voir dire. The right to a public trial
extends to jury selection, including for cause and preemptory challenges. State v. Love,
183 Wn.2d at 605; State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005).
Unlike administrative or hardship excusals, for cause and peremptory challenges can
raise questions about a juror’s neutrality and a party’s motivation for excusing a juror that
implicate the core purpose of the right, and questioning jurors in open court is critical to
protect that right. State v. Love, 183 Wn.2d at 606 (2015). Open and transparent
questioning fosters public confidence in subsequent challenges to jurors and the
composition of juries in criminal trials. State v. Love, 183 Wn.2d at 606.
The State highlights the nature of sidebar conferences. After applying the
experience and logic test, our Supreme Court, in State v. Smith, held that traditional
sidebar conferences do not implicate the public trial right. The Smith court defined
“[p]roper sidebars” as proceedings that “deal with the mundane issues implicating little
public interest.” State v. Smith, 181 Wn.2d at 516. The court also cautioned that “[t]o
avoid implicating the public trial right, sidebars must be limited in content to their
19 No. 31487-1-III State v. Powell
traditional subject areas, should be done only to avoid disrupting the flow of trial, and
must either be on the record or be promptly memorialized in the record.” State v. Smith,
181 Wn.2d at 516 n.10.
We must navigate between decisions involving sidebar conferences and decisions
entailing jury selection. The State asserts that each sidebar during Adam Powell’s voir
dire process involved ministerial matters, avoided disrupting the flow of jury selection,
and was contemporaneously memorialized for the record. We partially agree with the
State. The second conference held on January 31 and the final conference held on
February 1, functioned as traditional sidebars involving scheduling. The February 1
conference confirmed that selection had ended for purposes of proceeding further with
the trial. Thus, those two conferences do not implicate Powell’s public trial right.
Nevertheless, we agree with Adam Powell that the remaining four bench conferences
addressed more than mundane scheduling questions and thereby implicated the public
trial right. The remaining conferences involved challenges to potential jurors.
We must next analyze whether a closure occurred during the four remaining
sidebars. Adam Powell fails to explicitly analyze this second inquiry of closure. He may
argue that a closure must have occurred since the trial court did not record or later
memorialize the purpose of the sidebars. The State fails to address this second prong of
the inquiry.
We disagree with Adam Powell that the trial court failed to memorialize all four
20 No. 31487-1-III State v. Powell
remaining sidebar conferences. After the first sidebar, the trial court confirmed on the
record that the first conference on January 30 involved dismissal of a juror because of a
relationship with a witness. The trial court confirmed, on January 31, that the sidebar
involved dismissing the juror who explained on the record his disability resulting from
the rape and suicide of his daughter. We agree with Powell that the trial court failed to
place on the record, at the time of trial, the reasons for the three sidebar conferences on
February 1. Nevertheless, the trial court later found, during a special hearing after the
commencement of the appeal, that the conferences dealt with a for cause challenge, a
Batson challenge, and scheduling.
Under Washington law, the trial court may discuss for cause challenges outside
the hearing of the jury panel and the public and perform preemptory challenges on paper
without an appellate court declaring a closure. State v. Love, 183 Wn.2d at 607. The
Love court stated:
Yet the public had ample opportunity to oversee the selection of Love’s jury because no portion of the process was concealed from the public; no juror was questioned in chambers. To the contrary, observers could watch the trial judge and counsel ask questions of potential jurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneled jury. The transcript of the discussion about for cause challenges and the struck juror sheet showing the peremptory challenges are both publicly available. The public was present for and could scrutinize the selection of Love’s jury from start to finish, affording him the safeguards of the public trial right missing in cases where we found closures of jury section
State v. Love, 183 Wn.2d at 607.
21 No. 31487-1-III State v. Powell
We deem State v. Anderson, 194 Wn. App. 547, 377 P.3d 278 (2016) controlling.
In Anderson, questioning of jurors occurred in open court, but the defendant challenged
prospective jurors for cause at a sidebar conference, and the judge dismissed those jurors.
The court made no verbatim record of the sidebars and instead summarized the sidebar
proceedings on the record. This court, after remand from the Supreme Court, held no
courtroom closure occurred because counsel questioned jurors in open court, courtroom
attendees could observe the parties’ exercise of juror challenges, and the trial court
summarized the sidebar proceedings on the record and in open court. The court
concluded that a lack of a transcript did not necessarily render the sidebars a closure.
The only distinction between Anderson and our facts is that the trial court did not
contemporaneously declare for the record what occurred at the final three sidebars.
Nonetheless, one can infer from the record preceding and succeeding the sidebar
conferences the subject of the conferences. The trial court later confirmed those
purposes.
The Supreme Court, in State v. Love, determined important factors in determining
a closure to be questioning of jurors in public, exercising challenges on the record, and
allowing challenges to be observed. All occurred in Adam Powell’s voir dire. Counsel
questioned jurors in public, a record exists as to for cause and preemptory challenges, and
trial attendees could observe who the parties excused. We prefer that the trial court
immediately declare on the record the nature of a sidebar conference after completion of
22 No. 31487-1-III State v. Powell
the conference. Nevertheless, we discern no error in failing to memorialize the content of
a sidebar when we may determine the content by the conference’s context.
Aggravated Domestic Violence
Finally, Adam Powell contends the trial court erred when imposing an exceptional
sentence when the State’s evidence failed to show beyond a reasonable doubt aggravated
domestic violence. The trial court gave the following jury instruction number 20:
To find that either of these crimes is an aggravated domestic violence offense, each of the following two elements must be proved beyond a reasonable doubt: (1) That the victim and the defendant were in a dating relationship; and (2) That the offense was part of an ongoing pattern of psychological, physical, or sexual abuse of the victim manifested by multiple incidents over a prolonged period of time. An “ongoing pattern of abuse” means multiple incidents of abuse over a prolonged period of time. The term “prolonged period of time” means more than a few weeks; If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
CP at 234.
Adam Powell contends that the testimony of Brenda McCoy, Griselda Vaca,
Ernesto Amonzo, and Officer Juan Ceja failed to prove beyond a reasonable doubt that he
psychologically or physically abused Sabrina Flores over a prolonged period of time. We
disagree.
To reverse an exceptional sentence, this court must find: (1) under a clearly
erroneous standard, insufficient evidence supports the reasons for imposing an
23 No. 31487-1-III State v. Powell
exceptional sentence, (2) under a de novo standard, the reasons supplied by the
sentencing court do not justify a departure from the standard range, or (3) under an abuse
of discretion standard, the sentence is clearly excessive or clearly too lenient. RCW
9.94A.585(4); State v. France, 176 Wn. App. 463, 469, 308 P.3d 812 (2013). We apply
the first standard of review because Adam Powell argues the evidence did not support the
imposition of the exceptional sentence.
In applying the “clearly erroneous” standard in reviewing a trial court’s reasons
for imposing an exceptional sentence beyond the standard range, this court will reverse
the trial court’s findings only if no substantial evidence supports its conclusion. State v.
Jeannotte, 133 Wn.2d 847, 856, 947 P.2d 1192 (1997). Substantial evidence constitutes
evidence in sufficient quantum to persuade a fair-minded person of the truth of the
declared premises. State v. Jeannotte, 133 Wn.2d at 856; Olmstead v. Department of
Health, Medical Section, 61 Wn. App. 888, 893, 812 P.2d 527 (1991).
We admit the paucity of the written findings of fact of aggravated domestic
violence. Nonetheless, when a trial court’s written findings are incomplete, this court
may look to the trial court’s oral findings to aid its review. State v. Manion, 173 Wn.
App. 610, 633, 295 P.3d 270 (2013). The trial court’s oral ruling mentions frequent
screaming and yelling with vulgar language, ramming Sabrina Flores with a car, Flores’
isolation from others, Officer Juan Ceja’s response to an earlier domestic violence
24 No. 31487-1-III State v. Powell
incident, and Flores' attempting to escape the clutches of Adam Powell. The evidence
painted a picture of domestic terror that finally led to homicide.
CONCLUSION
We affirm Adam Powell's conviction for second degree murder and his
exceptional sentence based on the aggravated domestic violence factor.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J.
WE CONCUR: