State v. Bowen

236 P.3d 220, 2010 WL 2817197
CourtCourt of Appeals of Washington
DecidedJuly 20, 2010
Docket39096-5-II
StatusPublished

This text of 236 P.3d 220 (State v. Bowen) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bowen, 236 P.3d 220, 2010 WL 2817197 (Wash. Ct. App. 2010).

Opinion

236 P.3d 220 (2010)

STATE of Washington, Respondent,
v.
Kevin R. BOWEN, Appellant.

No. 39096-5-II.

Court of Appeals of Washington, Division 2.

July 20, 2010.

*221 Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Appellant.

Edward P. Lombardo, Mason County Prosecuting Attorney's Offi., Shelton, WA, for Respondent.

WORSWICK, J.

¶ 1 Kevin Bowen appeals his convictions for unlawful possession of a controlled substance, methamphetamine, and first degree unlawful possession of a firearm. He argues that the trial court violated his public trial right and that the evidence was insufficient to support his convictions. Pro se, he further argues that he received ineffective assistance of counsel because defense counsel did not file a motion to suppress the firearm evidence. We hold that the trial court violated his right to a public trial, and we reverse and remand for a new trial.

FACTS

¶ 2 On June 12, 2008, Deputy Ted Drogmund, while on routine patrol in Mason County, stopped a black truck and a white truck for trespassing. Bowen, who was driving the black truck, exited it after it stopped. Bowen attempted to enter it again, and Deputy Drogmund ordered him to stop several times.

¶ 3 Deputy Drogmund detained Bowen in handcuffs due to safety concerns arising from his behavior. Deputy Drogmund and responding Officer Steve Valley ordered the white truck's occupants, two juveniles, to leave it and to sit with Bowen "kind of near the two trucks." II Report of Proceedings (RP) at 33, 61. Deputy Drogmund read the three their Miranda[1] warnings and advised them that he was detaining them for criminal trespass, but he did not handcuff the juveniles.

¶ 4 Officer Valley, a Department of Corrections (DOC) specialist working with Deputy Drogmund at the time, acquired Bowen's name and birth date, contacted a DOC field office, and discovered that Bowen was under DOC supervision and that his presence in Mason County violated his probation. Deputy Drogmund confirmed Bowen as the black truck's registered owner. Based on this, Officer Valley searched the black truck with Deputy Drogmund's assistance. During this search, behind the driver's seat Officer Valley discovered a spoon and scale containing white residue that later tested positive for methamphetamine.

¶ 5 Deputy Drogmund searched the black truck incident to Bowen's arrest. He discovered a nylon bag containing an unloaded, *222 operable firearm between the driver and passenger seats.

¶ 6 The State charged Bowen with unlawful possession of a controlled substance, methamphetamine, and first degree unlawful possession of a firearm. A jury heard the matter.

¶ 7 During jury selection, the trial court asked, "Does either party have an objection to allowing jurors to take up sensitive issues, sensitive questions, in chambers if they feel that that would be beneficial to them?" Partial Report of Proceedings (RP) at 1. Both the prosecuting attorney and defense counsel stated they had no objections.[2] Defense counsel further requested that the trial court generally question jury pool members whether strong feelings about firearms or drugs would make them impartial in Bowen's case. Then, the trial court stated, "[A]re there any members of the public that would object to our taking up questions in the privacy of chambers? The record should reflect that there is nobody present in the courtroom to object and there are no objections being noted." RP at 2.

¶ 8 In response to the trial court's general questions, some jurors indicated that they knew Bowen, the witnesses, counsel, or friends or relatives with experience with similar cases or incidents, or that they felt strongly about firearms or drugs and these things potentially biased them in Bowen's case. The trial court then explained to the jury pool that it would question these members in chambers for "a number of different reasons," such as avoiding tainting the jury pool with bias. RP at 5.

¶ 9 During in-chambers voir dire, the trial court judge asked all the questions and only asked the attorneys whether they wanted to inquire further or object to excusal of jurors. The trial court excused five jury pool members. The trial court excused five jury pool members who continued to indicate bias or impartiality. Defense counsel used a for cause challenge to excuse one member for bias.

¶ 10 The jury convicted Bowen of both charges. He appeals.

ANALYSIS

Public Trial Right

¶ 11 Bowen first contends that the United States Supreme Court's recent decision addressing the public trial right, Presley v. Georgia, ___ U.S. ___, 130 S.Ct. 721, ___ L.Ed.2d ___ (2010), requires reversal here because the trial court did not consider reasonable alternatives to closure before conducting portions of voir dire in chambers.[3] He further argues that under Washington law, conducting portions of voir dire in chambers without the trial court's application of the Bone-Club guidelines violated his public trial right resulting in structural error. State v. Bone-Club, 128 Wash.2d 254, 906 P.2d 325 (1995). He also contends that he received ineffective assistance of counsel because defense counsel did not object to the in-chambers portions of voir dire. We agree that the trial court did not conduct the required analysis prior to closing the courtroom and further find that Bowen did not waive his article I, section 22 right to a public trial.

¶ 12 In Presley, the trial court closed the courtroom for voir dire. 130 S.Ct. at 722. The defendant objected to the closure at trial. Presley, 130 S.Ct. at 722. On appeal, he challenged the closure under the Sixth Amendment. Presley, 130 S.Ct. at 723. The Supreme Court granted certiorari on the question of whether "`the opponent of closure must suggest alternatives to closure'" or whether the proponent of closure "`must show that there is no available less-intrusive alternative.'" Presley, 130 S.Ct. at 727 (Thomas, J., dissenting) (quoting Pet. for Cert. at 18). The Court rejected Georgia's Supreme Court conclusion that "trial courts need not consider alternatives to closure absent an opposing party's proffer of some alternatives." Presley, 130 S.Ct. at 724.

*223 ¶ 13 Thus, Presley addressed circumstances where a party opposed the closure at trial. That case does not control circumstances where, as here, the defendant did not object to the closure at trial but seeks to use the closure on appeal to reverse his conviction. Although a defendant need not object to a closure in order to raise the issue on appeal, the failure to do so raises issues not before the Supreme Court in Presley. See State v. Momah, 167 Wash.2d 140, 154-55, 217 P.3d 321 (2009). Therefore, we address the public trial right under applicable Washington law.[4]

¶ 14 Whether a violation of the public trial right exists is a question of law we review de novo. Momah, 167 Wash.2d at 147, 217 P.3d 321. A criminal defendant has a right to a public trial under the state constitution. Const. art. I, § 22. The public trial right applies during voir dire. Momah, 167 Wash.2d at 148, 217 P.3d 321. But this right is not absolute, and a trial court may close the courtroom under certain circumstances. Momah,

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Related

Presley v. Georgia
558 U.S. 209 (Supreme Court, 2010)
Miranda v. Arizona
384 U.S. 436 (Supreme Court, 1966)
State v. Bone-Club
906 P.2d 325 (Washington Supreme Court, 1995)
Allied Daily Newspapers v. Eikenberry
848 P.2d 1258 (Washington Supreme Court, 1993)
State v. Paumier
230 P.3d 212 (Court of Appeals of Washington, 2010)
State v. Momah
217 P.3d 321 (Washington Supreme Court, 2009)
State v. Strode
217 P.3d 310 (Washington Supreme Court, 2009)
State v. Bone-Club
906 P.2d 325 (Washington Supreme Court, 1995)
State v. Easterling
137 P.3d 825 (Washington Supreme Court, 2006)
State v. Momah
167 Wash. 2d 140 (Washington Supreme Court, 2009)
State v. Strode
167 Wash. 2d 222 (Washington Supreme Court, 2009)
State v. Paumier
155 Wash. App. 673 (Court of Appeals of Washington, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
236 P.3d 220, 2010 WL 2817197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bowen-washctapp-2010.