State v. Bone-Club

906 P.2d 325, 128 Wash. 2d 254, 1995 Wash. LEXIS 246
CourtWashington Supreme Court
DecidedNovember 30, 1995
DocketNo. 62844-1
StatusPublished
Cited by401 cases

This text of 906 P.2d 325 (State v. Bone-Club) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bone-Club, 906 P.2d 325, 128 Wash. 2d 254, 1995 Wash. LEXIS 246 (Wash. 1995).

Opinion

Dolliver, J.

— This case presents a matter of first impression regarding a trial court’s responsibility to protect a defendant’s right to a public trial under article I, section 22 of the Washington Constitution in the face of the State’s motion for full closure of a criminal hearing. We hold a trial court must apply the closure test previously articulated by this court in Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210, 848 P.2d 1258 (1993) and related cases. By failing to engage in this case-by-case weighing of the competing interests before ordering the temporary, full closure of a pretrial suppression hearing, the trial court here violated Defendant’s public trial right. The case is reversed and remanded for a new trial.

In 1991, Whatcom County charged Defendant Joseph Bone-Club with six violations of the Uniform Controlled Substances Act (RCW 69.50) for possession with intent to deliver cocaine and delivery of cocaine. On January 9, 1992, the trial court held a pretrial suppression hearing to decide the admissibility of Defendant’s statements to police. During those proceedings, the court ordered closure of the hearing solely on the basis of the following exchange with the State:

[THE STATE]: Before the testimony of the next witness the State would request that the courtroom be cleared.
THE COURT: All right. All those sitting in the back, would you please excuse yourselves at this time.
(The courtroom was cleared.)

[257]*257Report of Proceedings at 32 (Jan. 9, 1992). The court neither sought nor received an objection or assent from Defendant on the record. After the courtroom was cleared, Detective Frakes, an undercover police officer, testified he feared public testimony would compromise his undercover activities. The trial court denied Defendant’s motion to suppress his statement to Frakes, while granting a motion to suppress a statement to another police officer. Frakes later testified at trial in open court. A jury found Defendant guilty as charged, and the court of appeals affirmed. State v. Boneclub, 76 Wn. App. 872, 888 P.2d 759 (1995).

Defendant claims the temporary, full closure of his pretrial suppression hearing during the testimony of the undercover police officer violated his right to a "speedy public trial” as guaranteed by article I, section 22 of the Washington Constitution. As an initial matter, we acknowledge the public trial right extends to a pretrial suppression hearing. See Waller v. Georgia, 467 U.S. 39, 47, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984); Federated Publications, Inc. v. Kurtz, 94 Wn.2d 51, 59-60, 615 P.2d 440 (1980). We also note Defendant’s failure to object contemporaneously did not effect a waiver. State v. Marsh, 126 Wash. 142, 146-47, 217 P. 705 (1923).

Although the court has recognized in three cases the potential for a conflict between the State’s request for a closed hearing and a defendant’s public trial right, the facts of those cases have not necessitated the articulation of a section 22 standard. See State v. Collins, 50 Wn.2d 740, 314 P.2d 660 (1957); State v. Gaines, 144 Wash. 446, 258 P. 508 (1927); Marsh, 126 Wash. at 142. In the earliest public trial right case, the Marsh court decided on statutory grounds an adult defendant’s challenge to his closed juvenile court hearing, holding the Legislature granted juvenile courts jurisdiction to close hearings only for minor defendants, not adults. Marsh, 126 Wash, at 144. In Gaines, the court decided a trial court’s stated intention to [258]*258close a hearing did not threaten the defendant’s public trial right where no closure actually ensued. Gaines, 144 Wash. at 462-63. Finally, where a trial court ordered the courtroom doors locked while allowing a reasonable number of spectators to remain, the Collins court held a partially closed hearing did not rise to the level of a constitutional violation. Collins, 50 Wn.2d at 747; accord United States v. Sherlock, 962 F.2d 1349, 1357 (9th Cir. 1989), cert. denied sub nom. Charley v. United States, 506 U.S. 958, 113 S. Ct. 419, 121 L. Ed. 2d 342 (1992); Walker v. Dalsheim, 1988 WL 70599 at *2 (E.D.N.Y. 1988) (holding partial closure did not violate defendant’s Sixth Amendment public trial right).

In contrast to the lack of precedent addressing the section 22 right, this court has developed a strict, well-defined standard for closing a hearing in opposition to the public’s right to open proceedings under article I, section 10 of the Washington Constitution. See Eikenberry, 121 Wn.2d at 210; Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982); Kurtz, 94 Wn.2d at 60. This series of section 10 cases, where media challenged closure of a hearing or court records, conceded the public’s right to open proceedings is not absolute, but emphasized the high order of that constitutional protection mandated a trial court limit closure to rare circumstances. Eikenberry, 121 Wn.2d at 210; Ishikawa, 97 Wn.2d at 36; Kurtz, 94 Wn.2d at 60. To assure careful, case-by-case analysis of a closure motion, the trial court must perform a weighing test consisting of five criteria:

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 [259]*259the 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.

Eikenberry, 121 Wn.2d at 210-11; see also Ishikawa, 97 Wn.2d at 36-39; Kurtz, 94 Wn.2d at 62-65.

The section 10 guaranty of public access to proceedings and the section 22 public trial right serve complementary and interdependent functions in assuring the fairness of our judicial system. In particular, the public trial right operates as an essential cog in the constitutional design of fair trial safeguards. We echo the sentiments of the United States Supreme Court:

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Bluebook (online)
906 P.2d 325, 128 Wash. 2d 254, 1995 Wash. LEXIS 246, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bone-club-wash-1995.