FILED DECEMBER 6, 2018 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. 34816-4-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) CARLOS HERNANDEZ, II, ) ) Appellant. )
PENNELL, A.C.J. — Carlos Hernandez raises two challenges to his criminal
convictions: (1) his courtroom was closed during voir dire in violation of the right to a
public trial, and (2) he was denied the right to participate in his retained attorney’s motion
for withdrawal as counsel. Both claims fail for lack of error preservation. With respect
to the first issue, Mr. Hernandez’s attorney forfeited appellate review by expressly
declining to seek a new trial after being advised of the factual basis for a public trial
violation. As for the second matter, Mr. Hernandez has not made a factual showing that
his attorney’s withdrawal motion could have been altered by client input. Given these
circumstances, the judgment of conviction must be affirmed. No. 34816-4-III State v. Hernandez
BACKGROUND
Mr. Hernandez faced several charges in Grant County Superior Court and retained
private counsel, John Crowley, to represent him. Approximately six months after being
retained, Mr. Crowley moved to withdraw. His motion was filed ex parte and under seal,
and was considered in camera without Mr. Hernandez’s presence or the presence of
opposing counsel. The substance of Mr. Crowley’s motion and the in camera proceedings
are not part of the record on appeal. The trial court granted Mr. Crowley’s motion and
allowed Mr. Hernandez time to find new counsel. Approximately one month later, after
Mr. Hernandez indicated he was unable to obtain private counsel, the court appointed an
attorney for him.
Mr. Hernandez’s case proceeded to trial. In a side bar proceeding that occurred
during voir dire, counsel for the State notified the court and Mr. Hernandez’s attorney that
four spectators had been refused entry into the courtroom by a deputy bailiff. The court
ordered the spectators be let in. The venire was then excused to allow for further inquiry.
Once the jury venire was excused, counsel for the State explained the four
spectators were family members of one of the State’s prosecutors. The spectators
were denied entry by a deputy bailiff, who claimed the courtroom was full. The four
individuals then went to the prosecutor’s office and disclosed what had happened.
2 No. 34816-4-III State v. Hernandez
A deputy prosecutor responded by coming to the courtroom and alerting the court and
parties about what had transpired.
The trial court inquired of the four spectators and the deputy bailiff. The
spectators indicated they did not object to being excluded from the courtroom. The
bailiff indicated no additional individuals had been excluded. The court commented that
the courtroom needed to be open. The parties agreed the courtroom could have
accommodated the four spectators.
After developing the factual record, the court asked defense counsel if he had a
motion to make. Defense counsel responded he was “not moving for a mistrial.” Report
of Proceedings (July 27, 2016) at 113. Counsel for the State confirmed the four
spectators had each affirmed they had no objection to what had occurred. The trial court
then thanked everyone and resumed the proceedings.
The jury found Mr. Hernandez guilty of all charges. After Mr. Hernandez filed his
notice of appeal and opening brief, the State filed a motion in the trial court to obtain a
copy of Mr. Crowley’s declaration in support of his motion to withdraw so it could be
designated as part of the appellate record. Mr. Hernandez opposed the State’s request and
the trial court denied the motion.
3 No. 34816-4-III State v. Hernandez
ANALYSIS
Courtroom closure and the right to a public trial
The right to a public trial is guaranteed by the state and federal constitutions.
U.S. CONST. amend VI; WASH. CONST. art. I, §§ 10, 22. When a criminal defendant
establishes a public trial violation on direct review, we will generally order a new trial
under a theory of structural error. State v. Wise, 176 Wn.2d 1, 13, 288 P.3d 1113 (2012).
Our analysis of public trial claims is de novo. State v. Sublett, 176 Wn.2d 58, 70, 292
P.3d 715 (2012).
In the present case, we need not reach the merits of Mr. Hernandez’s public trial
claim. Regardless of whether a public trial violation occurred, Mr. Hernandez has
forfeited the right to a remedy on appeal. Mr. Hernandez and his attorney were alerted to
the possibility of a public trial violation early in the proceedings, prior to the close of jury
selection. When the trial court asked Mr. Hernandez’s attorney if he had a motion to
make as a result of the potential violation, counsel expressly stated he was not seeking a
mistrial. This tactical decision by trial counsel may well have appeared advantageous at
the time. Counsel may have been satisfied with the venire or concerned a delay would
benefit the State. But like many trial decisions, counsel’s actions had consequences.
Because Mr. Hernandez’s counsel explicitly refused to seek a mistrial at a time when the
4 No. 34816-4-III State v. Hernandez
trial court could have provided an efficient remedy, Mr. Hernandez is precluded from
now seeking a new trial on appeal.
Mr. Hernandez argues we should review his public trial claim regardless of his
attorney’s conduct because an attorney cannot waive a client’s right to a public trial.
Mr. Hernandez points out that the constitutional right to a public trial is akin to the jury
trial right. State v. Herron, 183 Wn.2d 737, 743-44, 356 P.3d 709 (2015); State v.
Frawley, 181 Wn.2d 452, 461-62, 334 P.3d 1022 (2014) (plurality opinion). Just as an
attorney cannot waive a client’s right to a jury trial, counsel also cannot waive the right to
a public trial. Any public trial waiver must be individual to the defendant and also must
be knowing, voluntary, and intelligent. Frawley, 181 Wn.2d at 462.
The problem with Mr. Hernandez’s argument is that this case does not involve
a waiver of the right to a public trial. Instead, it involves forfeiture of a remedy for a
violation of that right. Mr. Hernandez’s attorney never purported to waive Mr.
Hernandez’s right to have his trial conducted in public. Counsel never asked the bailiff
to exclude spectators from the courtroom. Nor did counsel condone the closure after it
occurred. The alleged closure of Mr. Hernandez’s proceedings was inadvertent. It was
not a problem that was invited or waived. Rather than waiving Mr. Hernandez’s public
trial right, his attorney simply made the strategic decision not to seek a remedy.
5 No. 34816-4-III State v. Hernandez
Attorneys have discretion throughout trial to make tactical decisions that can have
preclusive effect on appeal. See Gonzalez v. United States, 553 U.S. 242, 250, 128 S. Ct.
1765, 170 L. Ed. 2d 616 (2008) (Defense counsel may waive a defendant’s right to have
an Article III judge preside over voir dire.); New York v.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED DECEMBER 6, 2018 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. 34816-4-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) CARLOS HERNANDEZ, II, ) ) Appellant. )
PENNELL, A.C.J. — Carlos Hernandez raises two challenges to his criminal
convictions: (1) his courtroom was closed during voir dire in violation of the right to a
public trial, and (2) he was denied the right to participate in his retained attorney’s motion
for withdrawal as counsel. Both claims fail for lack of error preservation. With respect
to the first issue, Mr. Hernandez’s attorney forfeited appellate review by expressly
declining to seek a new trial after being advised of the factual basis for a public trial
violation. As for the second matter, Mr. Hernandez has not made a factual showing that
his attorney’s withdrawal motion could have been altered by client input. Given these
circumstances, the judgment of conviction must be affirmed. No. 34816-4-III State v. Hernandez
BACKGROUND
Mr. Hernandez faced several charges in Grant County Superior Court and retained
private counsel, John Crowley, to represent him. Approximately six months after being
retained, Mr. Crowley moved to withdraw. His motion was filed ex parte and under seal,
and was considered in camera without Mr. Hernandez’s presence or the presence of
opposing counsel. The substance of Mr. Crowley’s motion and the in camera proceedings
are not part of the record on appeal. The trial court granted Mr. Crowley’s motion and
allowed Mr. Hernandez time to find new counsel. Approximately one month later, after
Mr. Hernandez indicated he was unable to obtain private counsel, the court appointed an
attorney for him.
Mr. Hernandez’s case proceeded to trial. In a side bar proceeding that occurred
during voir dire, counsel for the State notified the court and Mr. Hernandez’s attorney that
four spectators had been refused entry into the courtroom by a deputy bailiff. The court
ordered the spectators be let in. The venire was then excused to allow for further inquiry.
Once the jury venire was excused, counsel for the State explained the four
spectators were family members of one of the State’s prosecutors. The spectators
were denied entry by a deputy bailiff, who claimed the courtroom was full. The four
individuals then went to the prosecutor’s office and disclosed what had happened.
2 No. 34816-4-III State v. Hernandez
A deputy prosecutor responded by coming to the courtroom and alerting the court and
parties about what had transpired.
The trial court inquired of the four spectators and the deputy bailiff. The
spectators indicated they did not object to being excluded from the courtroom. The
bailiff indicated no additional individuals had been excluded. The court commented that
the courtroom needed to be open. The parties agreed the courtroom could have
accommodated the four spectators.
After developing the factual record, the court asked defense counsel if he had a
motion to make. Defense counsel responded he was “not moving for a mistrial.” Report
of Proceedings (July 27, 2016) at 113. Counsel for the State confirmed the four
spectators had each affirmed they had no objection to what had occurred. The trial court
then thanked everyone and resumed the proceedings.
The jury found Mr. Hernandez guilty of all charges. After Mr. Hernandez filed his
notice of appeal and opening brief, the State filed a motion in the trial court to obtain a
copy of Mr. Crowley’s declaration in support of his motion to withdraw so it could be
designated as part of the appellate record. Mr. Hernandez opposed the State’s request and
the trial court denied the motion.
3 No. 34816-4-III State v. Hernandez
ANALYSIS
Courtroom closure and the right to a public trial
The right to a public trial is guaranteed by the state and federal constitutions.
U.S. CONST. amend VI; WASH. CONST. art. I, §§ 10, 22. When a criminal defendant
establishes a public trial violation on direct review, we will generally order a new trial
under a theory of structural error. State v. Wise, 176 Wn.2d 1, 13, 288 P.3d 1113 (2012).
Our analysis of public trial claims is de novo. State v. Sublett, 176 Wn.2d 58, 70, 292
P.3d 715 (2012).
In the present case, we need not reach the merits of Mr. Hernandez’s public trial
claim. Regardless of whether a public trial violation occurred, Mr. Hernandez has
forfeited the right to a remedy on appeal. Mr. Hernandez and his attorney were alerted to
the possibility of a public trial violation early in the proceedings, prior to the close of jury
selection. When the trial court asked Mr. Hernandez’s attorney if he had a motion to
make as a result of the potential violation, counsel expressly stated he was not seeking a
mistrial. This tactical decision by trial counsel may well have appeared advantageous at
the time. Counsel may have been satisfied with the venire or concerned a delay would
benefit the State. But like many trial decisions, counsel’s actions had consequences.
Because Mr. Hernandez’s counsel explicitly refused to seek a mistrial at a time when the
4 No. 34816-4-III State v. Hernandez
trial court could have provided an efficient remedy, Mr. Hernandez is precluded from
now seeking a new trial on appeal.
Mr. Hernandez argues we should review his public trial claim regardless of his
attorney’s conduct because an attorney cannot waive a client’s right to a public trial.
Mr. Hernandez points out that the constitutional right to a public trial is akin to the jury
trial right. State v. Herron, 183 Wn.2d 737, 743-44, 356 P.3d 709 (2015); State v.
Frawley, 181 Wn.2d 452, 461-62, 334 P.3d 1022 (2014) (plurality opinion). Just as an
attorney cannot waive a client’s right to a jury trial, counsel also cannot waive the right to
a public trial. Any public trial waiver must be individual to the defendant and also must
be knowing, voluntary, and intelligent. Frawley, 181 Wn.2d at 462.
The problem with Mr. Hernandez’s argument is that this case does not involve
a waiver of the right to a public trial. Instead, it involves forfeiture of a remedy for a
violation of that right. Mr. Hernandez’s attorney never purported to waive Mr.
Hernandez’s right to have his trial conducted in public. Counsel never asked the bailiff
to exclude spectators from the courtroom. Nor did counsel condone the closure after it
occurred. The alleged closure of Mr. Hernandez’s proceedings was inadvertent. It was
not a problem that was invited or waived. Rather than waiving Mr. Hernandez’s public
trial right, his attorney simply made the strategic decision not to seek a remedy.
5 No. 34816-4-III State v. Hernandez
Attorneys have discretion throughout trial to make tactical decisions that can have
preclusive effect on appeal. See Gonzalez v. United States, 553 U.S. 242, 250, 128 S. Ct.
1765, 170 L. Ed. 2d 616 (2008) (Defense counsel may waive a defendant’s right to have
an Article III judge preside over voir dire.); New York v. Hill, 528 U.S. 110, 114-15,
120 S. Ct. 659, 145 L. Ed. 2d 560 (2000) (attorney can waive client’s speedy trial rights).
Efficient trial management and effective advocacy would be undermined if courts
required client approval every time an attorney makes a strategic decision during a case.
Gonzalez, 553 U.S. at 250; Hill, 528 U.S. at 114-15
An attorney’s decision to decline an invitation to remedy a public trial violation is
the type of tactical decision that can bar appellate review. The law is clear that an
appellate attorney’s decision not to raise a public trial violation has preclusive effect.
Weaver v. Massachusetts, __ U.S.__, 137 S. Ct. 1899, 1913, 198 L. Ed. 2d 420 (2017);
In re Pers. Restraint of Serano Salinas, 189 Wn.2d 747, 760-61, 408 P.3d 344 (2018).
If an appellate attorney can forfeit a client’s right to direct review by failing to seize on
the opportunity presented by an appeal, so too can trial counsel forfeit the issue when
counsel is presented with an appellate-like opportunity to redress a public trial violation
during trial. After all, “not every public-trial violation will in fact lead to a fundamentally
unfair trial.” Weaver, 137 S. Ct. at 1911. Interests in finality and efficient use of court
6 No. 34816-4-III State v. Hernandez
resources weigh in favor of requiring a defendant to seek redress of a public trial
violation at the earliest explicit opportunity. Id. at 1911-12.
A defendant does not, of course, lose the right to raise a public trial claim merely
through silence. Wise, 176 Wn.2d at 15. No objection is necessary to preserve review of
a public trial claim on appeal. State v. Paumier, 176 Wn.2d 29, 36-37, 288 P.3d 1126
(2012). But when counsel expressly declines to pursue a public trial remedy, the equities
are different. In such circumstances, the defendant has already been provided sufficient
opportunity to remedy a public trial violation. The hindsight and misgivings that
accompany a criminal conviction are not sufficient reasons to revisit a strategic decision
made during the course of trial.
An attorney’s forfeiture of a public trial claim also does not prevent a defendant
from seeking any possibility of redress. A defendant may still argue the attorney’s
conduct amounted to ineffective assistance of counsel. However, to establish ineffective
assistance, the defendant would need to show not only deficient performance, but also
prejudice. Weaver, 137 S. Ct. at 1910-11; Serano Salinas, 189 Wn.2d at 764-65.
Automatic reversal under a theory of structural error does not apply. Weaver, 137 S. Ct.
at 1910-11; Serano Salinas, 189 Wn.2d at 764-65.
7 No. 34816-4-III State v. Hernandez
Mr. Hernandez has not made a claim of ineffective assistance in this case.
Accordingly, his public trial claim is not subject to further scrutiny.
Mr. Hernandez’s right to be present during counsel’s motion to withdraw
A defendant has a constitutional right to be present during all critical stages of a
criminal proceeding. State v. Wilson, 141 Wn. App. 597, 603, 171 P.3d 501 (2007)
(citing United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486
(1985)). But this right is not implicated “when presence would be useless, or the benefit
but a shadow.” Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S. Ct. 330, 78 L. Ed.
674 (1934), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct.
1489, 12 L. Ed. 2d 653 (1964). We review de novo whether trial court proceedings
violated a defendant’s constitutional right to presence. State v. Irby, 170 Wn.2d 874, 880,
246 P.3d 796 (2011).
A defendant’s presence is not required when trial counsel is obliged to withdraw
from representation under the rules of professional conduct. State v. Rooks, 130 Wn.
App. 787, 799-800, 125 P.3d 192 (2005); State v. Berrysmith, 87 Wn. App. 268, 273-74,
944 P.2d 397 (1997). In such circumstances, the matter is purely legal and nothing a
defendant can say or do can alter the basis for withdrawal. Rooks, 130 Wn. App. at 798-
99.
8 No. 34816-4-III State v. Hernandez
Mr. Hernandez makes the categorical argument that, regardless of the legal basis
for an attorney’s motion to withdraw, a defendant must be consulted and provided the
opportunity to present information that could permit continued representation. While we
agree there may be some circumstances where a defendant’s input can matter, this is not
always true. In fact, the basis for an attorney’s withdrawal motion will sometimes rest on
confidential information that cannot be disclosed to the client. For example, an attorney
who represents clients Smith and Jones must withdraw as counsel upon learning that
client Smith wishes to become a cooperating witness in client Jones’s criminal
prosecution. RPC 1.7(b) & cmt. n.6. In seeking withdrawal from client Jones’s case, the
attorney is prohibited from disclosing client Smith’s confidences. RPC 1.6(a). In such
circumstances, the only way withdrawal can occur in conformance with the rules of
professional conduct is through a proceeding, such as an in camera hearing, that does not
involve any factual disclosures to client Jones.
Here, the record does not disclose why Mr. Crowley moved for withdrawal.
This gap in the record, which is attributable to Mr. Hernandez’s litigation strategy, is
dispositive of Mr. Hernandez’s argument on appeal. As the appellant, Mr. Hernandez
“has the burden of providing an adequate record to establish error.” State v. Barry,
183 Wn.2d 297, 317, 352 P.3d 161 (2015). Because there are at least circumstances in
9 No. 34816-4-III State v. Hernandez
which an attorney will be obliged to withdraw, regardless of any input from the client,
Mr. Hernandez has not established that he is entitled to relief from his conviction.
APPELLATE COSTS
On August 16, 2017, Mr. Hernandez filed a motion requesting that we deny costs
on appeal. He also filed a report of continued indigency. As the State has not responded
to the motion, we grant Mr. Hernandez's request to deny costs.
CONCLUSION
The trial court's judgment and sentence is affirmed.
~--~ Pennell, A.CJ.
WE CONCUR:
~dAtU~ ,if-. Siddoway, J. Fearing, J.