IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON iS"T-
STATE OF WASHINGTON, C~> P No. 72434-7-1 Respondent, t CO DIVISION ONE v. ..: u">
MASON IOPU FILITAULA, PUBLISHED OPINION ro
Appellant. FILED: December 8, 2014
Becker, J. —Allowing litigants to exercise peremptory challenges in
writing does not implicate the public trial right when a public record is kept showing which jurors were challenged and by which party.
On July 23, 2011, Joshue Tamblin exchanged argumentative text
messages with his former girl friend, demanding the return of property. Her current boyfriend, Jeremy Gains, intervened in the text message exchange.
Tamblin challenged Gains to a fight. Gains went to Tamblin's home with appellant Mason Filitaula and two other individuals. As soon as they arrived, Tamblin began hurling insults at Filitaula. Filitaula responded with his own
insults. He then shot Tamblin in the ankle. This incident led to criminal charges
against Filitaula. Ajury convicted him ofsecond degree assault and unlawful possession of a firearm. No. 72434-7-1/2
Filitaula contends that his right to a public trial was violated when the
parties exercised their peremptory challenges in writing.
After voir dire, counsel exercised their peremptory challenges on a written
form while in an open courtroom. Members of the public and potential jurors
were allowed to remain in the courtroom. The judge said:
THE COURT: I want to thank the lawyers for your questions. I want to thank you all for your answers. As we have gone along, we have been exercising what we call challenges for cause, and so the benches are not quite as tight as they were this time yesterday. And now the lawyers are going to exercise what they call peremptory challenges, and while they're exercising their peremptory challenges, you all can be at ease and can even talk to each other, but I'm going to ask that, of course, you don't discuss the case and I'm going to ask that you remain right where you are and make sure that your numbers are visible on your clothing because they're going to still be operating by your pink tags.
After a pause in the proceedings, the judge reviewed the peremptory
challenge form, announced the individuals who had been selected to make up
the jury, and excused the remaining members of the jury pool.
Filitaula contends that allowing the peremptory challenges to be exercised
in writing rather than orally was a court closure. He claims that because the
public could not hear what was happening even if they could see that something
was going on, the public was "denied the opportunity to scrutinize events." Brief
of Appellant at 17.
Article I, section 10 of our state constitution provides, "Justice in all cases
shall be administered openly." This provision grants the public an interest in
open, accessible proceedings. State v. Lormor, 172 Wn.2d 85, 91, 257 P3d 624
(2011). Additionally, a criminal defendant has a right to a public trial under Article No. 72434-7-1/3
I, section 22 of the Washington Constitution and the Sixth Amendment to the
United States Constitution. Whether a defendant's right to a public trial has been
violated is reviewed de novo on direct appeal. State v. Smith, Wn.2d ,
334 P.3d 1049, 1052(2014).
The public trial right "serves to ensure a fair trial, to remind the prosecutor
and judge of their responsibility to the accused and the importance of their
functions, to encourage witnesses to come forward, and to discourage perjury."
State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012). Not every interaction
between the court, counsel, and defendants will implicate the right to a public
trial, or constitute a closure if closed to the public. Sublett, 176 Wn.2d at 71. For
example, no violation of the public trial right occurred in Sublett when the court
considered a jury question in chambers. "None of the values served by the
public trial right is violated under the facts of this case. . .. The appearance of
fairness is satisfied by having the question, answer, and any objections placed on
the record." Sublett, 176 Wn.2d at 77.
The other divisions of this court have rejected arguments that the exercise
of peremptory challenges in writing necessarily implicates the public trial right.
State v. Marks, No. 44919-6-11 (Wash. Ct. App. Dec. 2, 2014); State v. Dunn, 180
Wn.App. 570, 321 P.3d 1283 (2014): State v. Love. 176 Wn. App. 911, 920, 309
P.3d 1209 (2013). We join them.
Filitaula argues that the parties should have been required to announce
each challenge out loud as the peremptory challenge process was taking place. No. 72434-7-1/4
He claims this is necessary so the public can know which party brought each
peremptory challenge and in what order.
A record of information about how peremptory challenges were exercised
could be important, for example, in assessing whether there was a pattern of
race-based peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L Ed. 2d 69 (1986); Georgia v. McCollum, 505 U.S. 42, 112 S.
Ct. 2348, 120 L. Ed. 2d 33 (1992). The process the court used here ensured
public access to such information. The written form on which the attorneys wrote
down their peremptory challenges was kept and filed in the court record at the
end of the case. It contains the names and numbers of the prospective jurors
who were removed by peremptory challenge, lists the order in which the
challenges were made, and identifies the party who made them. The record
supplies no basis for an argumentthat the public lacked access to this information. See Smith, 334 P.3d at 1054 (sidebar conducted in a hallway but on
the record did not implicate the public trial right, in part because "any inquiring
member of the public can discover exactly what happened at sidebar.")
In summary, we do not accept Filitaula's description of the peremptory
challenge process as a private, off-the-record proceeding. We conclude
peremptory challenges need not be conducted orally to fulfill the public trial right. The procedure used here satisfied the court's obligation to ensure the open
administration of justice.
Filitaula's second argument on appeal is that the trial court erred by
allowing Tamblin to tell the jury the gang-related words he used when he insulted No. 72434-7-1/5
Filitaula just before the shooting occurred. Tamblin testified that he yelled, "cuz
it's on 23rd Block in the Hilltop," and that he used these words to identify himself
with the Hilltop Crips Street Gang and to state where he was from. He said that
Filitaula responded with verbal insults "like bitch and shit and stuff like that, but it
was no gang related." Tamblin testified that he also called Filitaula a "slob,"
which he described in his testimony as a disrespectful term for "Bloods." Tamblin
testified that Filitaula responded by proclaiming "you don't know no one from the
Hill" and then shot him.
The issue of potential prejudice from the use of gang-related words first
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON iS"T-
STATE OF WASHINGTON, C~> P No. 72434-7-1 Respondent, t CO DIVISION ONE v. ..: u">
MASON IOPU FILITAULA, PUBLISHED OPINION ro
Appellant. FILED: December 8, 2014
Becker, J. —Allowing litigants to exercise peremptory challenges in
writing does not implicate the public trial right when a public record is kept showing which jurors were challenged and by which party.
On July 23, 2011, Joshue Tamblin exchanged argumentative text
messages with his former girl friend, demanding the return of property. Her current boyfriend, Jeremy Gains, intervened in the text message exchange.
Tamblin challenged Gains to a fight. Gains went to Tamblin's home with appellant Mason Filitaula and two other individuals. As soon as they arrived, Tamblin began hurling insults at Filitaula. Filitaula responded with his own
insults. He then shot Tamblin in the ankle. This incident led to criminal charges
against Filitaula. Ajury convicted him ofsecond degree assault and unlawful possession of a firearm. No. 72434-7-1/2
Filitaula contends that his right to a public trial was violated when the
parties exercised their peremptory challenges in writing.
After voir dire, counsel exercised their peremptory challenges on a written
form while in an open courtroom. Members of the public and potential jurors
were allowed to remain in the courtroom. The judge said:
THE COURT: I want to thank the lawyers for your questions. I want to thank you all for your answers. As we have gone along, we have been exercising what we call challenges for cause, and so the benches are not quite as tight as they were this time yesterday. And now the lawyers are going to exercise what they call peremptory challenges, and while they're exercising their peremptory challenges, you all can be at ease and can even talk to each other, but I'm going to ask that, of course, you don't discuss the case and I'm going to ask that you remain right where you are and make sure that your numbers are visible on your clothing because they're going to still be operating by your pink tags.
After a pause in the proceedings, the judge reviewed the peremptory
challenge form, announced the individuals who had been selected to make up
the jury, and excused the remaining members of the jury pool.
Filitaula contends that allowing the peremptory challenges to be exercised
in writing rather than orally was a court closure. He claims that because the
public could not hear what was happening even if they could see that something
was going on, the public was "denied the opportunity to scrutinize events." Brief
of Appellant at 17.
Article I, section 10 of our state constitution provides, "Justice in all cases
shall be administered openly." This provision grants the public an interest in
open, accessible proceedings. State v. Lormor, 172 Wn.2d 85, 91, 257 P3d 624
(2011). Additionally, a criminal defendant has a right to a public trial under Article No. 72434-7-1/3
I, section 22 of the Washington Constitution and the Sixth Amendment to the
United States Constitution. Whether a defendant's right to a public trial has been
violated is reviewed de novo on direct appeal. State v. Smith, Wn.2d ,
334 P.3d 1049, 1052(2014).
The public trial right "serves to ensure a fair trial, to remind the prosecutor
and judge of their responsibility to the accused and the importance of their
functions, to encourage witnesses to come forward, and to discourage perjury."
State v. Sublett, 176 Wn.2d 58, 72, 292 P.3d 715 (2012). Not every interaction
between the court, counsel, and defendants will implicate the right to a public
trial, or constitute a closure if closed to the public. Sublett, 176 Wn.2d at 71. For
example, no violation of the public trial right occurred in Sublett when the court
considered a jury question in chambers. "None of the values served by the
public trial right is violated under the facts of this case. . .. The appearance of
fairness is satisfied by having the question, answer, and any objections placed on
the record." Sublett, 176 Wn.2d at 77.
The other divisions of this court have rejected arguments that the exercise
of peremptory challenges in writing necessarily implicates the public trial right.
State v. Marks, No. 44919-6-11 (Wash. Ct. App. Dec. 2, 2014); State v. Dunn, 180
Wn.App. 570, 321 P.3d 1283 (2014): State v. Love. 176 Wn. App. 911, 920, 309
P.3d 1209 (2013). We join them.
Filitaula argues that the parties should have been required to announce
each challenge out loud as the peremptory challenge process was taking place. No. 72434-7-1/4
He claims this is necessary so the public can know which party brought each
peremptory challenge and in what order.
A record of information about how peremptory challenges were exercised
could be important, for example, in assessing whether there was a pattern of
race-based peremptory challenges. See Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L Ed. 2d 69 (1986); Georgia v. McCollum, 505 U.S. 42, 112 S.
Ct. 2348, 120 L. Ed. 2d 33 (1992). The process the court used here ensured
public access to such information. The written form on which the attorneys wrote
down their peremptory challenges was kept and filed in the court record at the
end of the case. It contains the names and numbers of the prospective jurors
who were removed by peremptory challenge, lists the order in which the
challenges were made, and identifies the party who made them. The record
supplies no basis for an argumentthat the public lacked access to this information. See Smith, 334 P.3d at 1054 (sidebar conducted in a hallway but on
the record did not implicate the public trial right, in part because "any inquiring
member of the public can discover exactly what happened at sidebar.")
In summary, we do not accept Filitaula's description of the peremptory
challenge process as a private, off-the-record proceeding. We conclude
peremptory challenges need not be conducted orally to fulfill the public trial right. The procedure used here satisfied the court's obligation to ensure the open
administration of justice.
Filitaula's second argument on appeal is that the trial court erred by
allowing Tamblin to tell the jury the gang-related words he used when he insulted No. 72434-7-1/5
Filitaula just before the shooting occurred. Tamblin testified that he yelled, "cuz
it's on 23rd Block in the Hilltop," and that he used these words to identify himself
with the Hilltop Crips Street Gang and to state where he was from. He said that
Filitaula responded with verbal insults "like bitch and shit and stuff like that, but it
was no gang related." Tamblin testified that he also called Filitaula a "slob,"
which he described in his testimony as a disrespectful term for "Bloods." Tamblin
testified that Filitaula responded by proclaiming "you don't know no one from the
Hill" and then shot him.
The issue of potential prejudice from the use of gang-related words first
arose when Filitaula asked the court in a pretrial motion to prohibit the State from
introducing expert witness testimony about gang activity in Pierce County. The
court granted this request but declined to expand the ruling to prohibit Tamblin
from using the terms "slob" and "Hilltop" or explaining what they referred to.
We review evidentiary rulings for an abuse of discretion. State v. Finch,
137 Wn.2d 792, 810, 975 P.2d 967, cert, denied. 528 U.S. 922 (1999). Evidence
of gang affiliation is a special subset of prior bad act evidence. It can be
admitted in a criminal trial if there is a connection between the crime and gang
membership that makes the gang evidence relevant. State v. Scott, 151 Wn.
App. 520, 526-27, 213 P.3d 71 (2009). review denied, 168 Wn.2d 1004 (2010).
Filitaula claims that the terms "slob" and "Hilltop" were inadmissible and
prejudicial because there was no evidence he was a gang member.
Unlike in Scott, here the testimony was not introduced to identify Filitaula
as a gang member or to show that gang membership supplied a motive for him to No. 72434-7-1/6
shoot Tamblin. The court allowed the testimony to show "the taunting back and
forth" that preceded the assault and supplied a motive for it. Tamblin's testimony
about how he insulted Filitaula not only went to the issue of motive, it was also
admitted under the "res gestae" or "same transaction" exception to ER 404(b)
because the conduct took place in the immediate timeframe of the assault. See
State v. Lane, 125 Wn.2d 825, 831-33, 889 P.2d 929 (1995). Evidence is
properly admitted under the res gestae exception if it is necessary to depict a
complete picture for the jury. Lane, 125 Wn.2d at 832. As the trial court
observed, "I think to understand what happened .. . at Tamblin's house, what
was said is within bounds." Hearing the actual words Tamblin and Filitaula
exchanged allowed the jury to perceive the escalating tension that led to the
gunshot. Their statements to each other were part of the immediate context of
the assault and were admissible under the res gestae exception.
Filitaula claims the prejudicial effect of terms like "slob" and "Hilltop" was
so great that the trial court should have required that the testimony merely show
that the two men insulted each other. Filitaula cites no authority, and we are
aware of none, that requires trial courts to edit eyewitness testimony in a way
that will sanitize the event being described. In the absence of any effort by the
State to use Tamblin's statements as evidence that Filitaula was affiliated with a
gang, the trial court did not abuse its discretion by concluding that the words
actually spoken were not unduly prejudicial. No. 72434-7-1/7
Affirmed.
Pec/Ce^ WE CONCUR:
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