State v. Erickson

146 Wash. App. 200

Opinions

Houghton, J.

¶1 David Erickson appeals his conviction of two counts of first degree child rape. He argues that the trial court denied him his constitutional right to public trial by allowing private questioning of prospective jurors. We reverse and remand for a new trial.¹

FACTS

¶2 The State charged Erickson with two counts of first degree child rape. Before trial, the court asked whether the parties wanted to give the prospective jurors a questionnaire before beginning voir dire. The prosecutor responded, “I’m hopeful that [defense counsel] and I can agree on one that we can present to the Court. We both drafted one that we exchanged, and I think they’re pretty similar. I haven’t had an opportunity to discuss that with [defense counsel].” II Report of Proceedings (RP) at 179. Defense counsel replied, “I don’t think that will be a problem, Your Honor. I will probably add some questions, based on what [the prosecutor] had, and I don’t think [the prosecutor’s] got major problems about questions that I had.” II RP at 179. The trial court then replied:

I guess the main [questions] from my perspective, are that you have a list of witnesses in there so the jurors can respond to that; that you ask them whether or not there’s any reason that they might not be fair and impartial so we get that kind of broad, general question in. Give them a suggested time frame which is liberal, and be sure they can accommodate us for the time frame, and factor in some deliberation time into that. And then ask them whether or not any of them want to be talked to privately so we get an idea as to how many of those we might have.

II RP at 179.

¶3 The next day of the proceedings, before the prospective jurors’ orientation, the trial court noted that the questionnaire “looked good.” Ill RP at 185. During discussion on the matter, the prosecutor mentioned, “I suspect that there’s going to be a number of people who want to talk in private.” Ill RP at 188. Erickson’s counsel did not object and acquiesced to the trial court’s decision to begin any private questioning of individual prospective jurors after their orientation.

¶4 After the prospective jurors answered the questionnaire, the judicial assistant notified the trial court and counsel that according to prospective jurors’ answers to the questionnaire, three individuals wanted to be questioned privately. During the trial court’s orientation, it told the prospective jurors, “You have the option to ask to have your questions asked and answered with fewer people present. . . . [I]t’s certainly possible that the answers may involve an area that you are uncomfortable talking about in front of such a large group.” III RP at 260.

¶5 Later, the trial court asked whether any prospective jurors wanted to be examined privately. Four individuals wished to do so. Except for those four, the trial court excused the rest of the prospective jurors from the courtroom and proceeded with counsel and the court reporter to the jury room. Once there, the trial court called each prospective juror into the jury room individually, and both sides questioned each individual. Three of the prospective jurors described personal experiences with sexual abuse or assault, while the fourth suggested he knew defense counsel.

¶6 During the interviews in the jury room, the trial court denied Erickson’s challenges for cause directed toward two prospective jurors and excused the prospective juror who knew defense counsel. The trial court later excused one of these four prospective jurors for unrelated reasons. Erickson later exercised peremptory challenges against the other two prospective jurors whom the parties had questioned in the jury room.

¶7 The jury found Erickson guilty of both counts. He appeals.

ANALYSIS

¶8 Erickson contends that the trial court denied him his constitutional rights. He asserts that moving individual prospective jurors in the jury room for private questioning violated his right to a public trial.

¶9 We review de novo whether a trial court procedure violates the right to a public trial. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). We presume prejudice where the court proceedings violate this right. State v. Rivera, 108 Wn. App. 645, 652, 32 P.3d 292 (2001). A defendant’s failure to object at the time of a courtroom closure does not waive this right. Brightman, 155 Wn.2d at 514-15. The remedy for such a violation is to reverse and remand for a new trial. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004).

f 10 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution each guarantee a criminal defendant the right to a public trial. State v. Russell, 141 Wn. App. 733, 737-38, 172 P.3d 361 (2007). Additionally, article I, section 10 of the Washington Constitution states, “Justice in all cases shall be administered openly,” which provides the public itself a right to open, accessible proceedings. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982).

fll Article I, section 10’s guarantee of public access to proceedings and article I, section 22’s public trial right together perform complementary, interdependent functions that assure the fairness of our judicial system.² State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995); see also State v. Easterling, 157 Wn.2d 167, 187, 137 P.3d 825 (2006) (Chambers, J., concurring) (“[T]he constitutional requirement that justice be administered openly is not just a right held by the defendant. It is a constitutional obligation of the courts.”).

¶12 The right to public trial helps ensure a fair trial, reminds officers of the court of the importance of their functions, encourages witnesses to come forward, and discourages perjury. Brightman, 155 Wn.2d at 514. The public’s access to jury selection is important, not only to the parties but also to the criminal justice system itself. Orange, 152 Wn.2d at 804. A closed jury selection process prevents a defendant’s family from contributing their knowledge or insight during jury selection. Brightman, 155 Wn.2d at 515. And closure also prevents other interested members of the public, including the press, from viewing the proceedings.

¶13 Protection of the right to public trial requires a trial court “to resist a closure motion except under the most unusual circumstances.” Bone-Club, 128 Wn.2d at 259. A trial court may close a courtroom only after considering the five requirements enumerated in Bone-Club and entering specific findings on the record to justify the closure order.³ 128 Wn.2d at 258-59. Atrial court’s failure to undertake the Bone-Club analysis, which directs the trial court to allow anyone present an opportunity to object to the closure, undercuts the guaranties enshrined in both article I, section 10 as well as article I, section 22. 128 Wn.2d at 258-59.

¶14 Erickson argues that the trial court’s relocation of a portion of voir dire to the jury room violated his right to public trial. Relying on a Division Three case, State v. Frawley, 140 Wn. App. 713, 167 P.3d 593 (2007), Erickson asserts that the trial court’s decision to move interviews of prospective jurors into the jury room “prohibited] the public from observing this examination.” Appellant’s Br. at 5. The Frawley court held that conducting interviews of prospective jurors in the jury room is equivalent to a courtroom closure. 140 Wn. App. at 720; see also State v. Duckett, 141 Wn. App. 797, 809, 173 P.3d 948 (2007) (a Division Three case following Frawley and holding that a trial court must undertake the Bone-Club analysis before questioning prospective jurors individually in a jury room). Because the trial court did not undertake the necessary Bone-Club analysis on the record, Erickson argues that the trial court violated his public trial right.

¶15 The State urges us to follow a Division One case, State v. Momah, 141 Wn. App. 705, 171 P.3d 1064 (2007).⁴ In Momah, the court held that individual questioning of prospective jurors in chambers and in the jury room does not constitute a closure, making a Bone-Club analysis unnecessary.

¶16 In this case, the trial court excused prospective jurors from the courtroom and proceeded with counsel and the court reporter to the jury room, where both sides questioned prospective jurors individually about their an swers to a questionnaire.⁵ Thus, we must decide whether a trial court must undertake a Bone-Club analysis before individual questioning of prospective jurors outside the courtroom or in the jury room.

¶17 The process of jury selection lies within the ambit of the right to a public trial. Brightman, 155 Wn.2d at 511, 515. Thus, if private questioning of prospective jurors in a jury room acts as a courtroom closure, Bone-Club mandates findings to support such an action by the trial court. 128 Wn.2d at 259-60.

¶18 In Brightman, the trial court ordered a full courtroom closure during jury selection. 155 Wn.2d at 511. The trial court, sua sponte, told the attorneys that during jury selection the courtroom would be too full of prospective jurors and would pose a security risk if observers, witnesses, and friends and relatives of the victim and defendant remained.⁶ Brightman, 155 Wn.2d at 511. Our Supreme Court disagreed and reversed and remanded for a new trial based on the trial court’s failure to engage in the Bone-Club analysis before closing the courtroom. Brightman, 155 Wn.2d at 518.

¶19 Although the Brightman court noted that trivial closures may not violate a defendant’s public trial right, the court made evident that its understanding of “trivial” derived from federal cases where “brief and inadvertent” closures had no real effect on the conduct of the proceedings. 155 Wn.2d at 517.

¶20 In Peterson, the trial court, on motion, closed the courtroom so that an undercover officer could testify but inadvertently left the courtroom closed for 15-20 minutes of the defendant’s testimony. Peterson v. Williams, 85 F.3d 39, 41-42 (2d Cir. 1996). In Al-Smadi, court security officers closed federal courthouse doors at the usual time of 4:30 p.m., 20 minutes before the close of a trial’s proceedings at 4:50 p.m. United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir. 1994). And in Snyder, during counsel’s arguments to the jury, a bailiff refused to allow persons to enter or leave the courtroom. Snyder v. Coiner, 510 F.2d 224, 230 (4th Cir. 1975). Such condition was brief, quickly changed by the trial court, and placed no restrictions on any of the trial’s participants or observers. Snyder, 510 F.2d at 230.

¶21 In none of these federal cases did the circuit courts of appeals find a violation of the Sixth Amendment public trial right. In other words, the closures in the federal cases the Brightman court cited were too “trivial” to warrant such a conclusion. 155 Wn.2d at 517. In light of those cases, the private questioning of jurors, even if done to protect jurors’ privacy or to elicit more truthful or forthright answers during voir dire regarding their ability to serve, is more than trivial in terms of its effect on the proceedings. Nor is an intentional decision to remove private questioning of jurors to a place outside the presence of the public “brief and inadvertent.” Brightman, 155 Wn.2d at 517.

¶22 Because the decision to remove individual questioning of prospective jurors outside the courtroom has more than an inadvertent or trivial impact on the proceedings, we hold that it acts as a closure for purposes of Bone-Club. Individual questioning of prospective jurors in a jury room acts as a closure because it is improbable that a member of the public would feel free and welcome to enter a jury room of his or her own accord. Also, removing the proceedings makes it difficult, if not impossible, for a criminal defendant’s family or friends, or any other member of the public, to view the entirety of the jury selection process. Most courts have jury rooms and chambers adjacent to, but separate from, the courtroom.⁷

¶23 Obviously, there are times when a courtroom closure is appropriate. But it is not the public’s responsibility to safeguard these rights; it is the responsibility of the courts to take the appropriate steps under Bone-Club to ensure and protect the defendant’s and the public’s right to open proceedings before any courtroom closure. 128 Wn.2d at 258-59.

¶24 Although a trial court would understandably want to protect prospective jurors’ privacy during jury selection, we agree with Frawley, and more specifically with Duckett, insofar as they require a Bone-Club analysis before private questioning of prospective jurors outside the courtroom. See Duckett, 141 Wn. App. at 809; Frawley, 140 Wn. App. at 720-21. These cases’ approach to this issue comports with our understanding of Brightman.

¶25 In Frawley, the trial court conducted voir dire of individual jurors in the judge’s chambers outside the presence of the public. 140 Wn. App. at 718. Before the questioning began, the trial court did not ask the defendant whether he specifically wished to waive his public trial right, nor did the trial court ask those in the courtroom whether anyone would waive the public trial right. Frawley, 140 Wn. App. at 718. The Frawley court discerned no material distinction between private questioning of prospective jurors and general voir dire of the jury panel. 140 Wn. App. at 720. Reversing the defendant’s conviction and remanding for new trial due to the trial court’s failure to engage in a Bone-Club analysis, the Frawley court noted that denial of the right to a public trial “ ‘is one of the limited classes of fundamental rights not subject to harmless error analysis.’ ” 140 Wn. App. at 721 (quoting Easterling, 157 Wn.2d at 181).

¶26 Duckett involved a scenario nearly identical to the present case. During voir dire, the court questioned a number of prospective jurors individually in the jury room, based on their responses to a questionnaire. Duckett, 141 Wn. App. at 800. Also, the trial court did not perform a Bone-Club inquiry. Duckett, 141 Wn. App. at 805. Division Three overturned the case, deciding that “[t]he closure here was deliberate, and the questioning of the prospective jurors concerned their ability to serve; this cannot be characterized as ministerial in nature or trivial in result.” Duckett, 141 Wn. App. at 809.

¶27 We agree with the principle stated in Duckett that “the guaranty of a public trial under our constitution has never been subject to a de minimus exception.” 141 Wn. App. at 809. Even though one can articulate pragmatic and salutary reasons for moving voir dire outside the courtroom in certain circumstances, such a course of action requires the trial court to engage in a Bone-Club inquiry before doing so. Because the trial court did not do so here, it violated Erickson’s right to a public trial.

¶28 In sum, the trial court erred in not performing the five-part Bone-Club inquiry before its decision to move voir dire questioning of four prospective jurors into the jury room.⁸ As Erickson’s failure to object to the process does not constitute a waiver⁹ and because we presume prejudice, we reverse and remand for a new trial. Brightman, 155 Wn.2d at 514-15; Rivera, 108 Wn. App. at 652.

¶29 Reversed and remanded for new trial.

Bridgewater, J., concurs.

Footnotes

1

Because we reverse and remand for a new trial, we do not address Erickson’s other assignments of error that involve sentencing conditions, the trial court’s admission of certain items into evidence, and ineffective assistance of counsel.

2

The dissent suggests that Erickson lacks standing to invoke the public’s right to a public trial. Dissent at 214. The dissent further states that Erickson’s interest in full candor during questioning conflicts with the public’s interest in open proceedings, and thus he cannot “fairly represent the public’s interests in exercising its public trial rights” under article I, section 10. Dissent at 214. We disagree.

As noted in State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995), article I, section 10 and article I, section 22 are interdependent means of ensuring the fairness of our judicial system. The five-part Bone-Club inquiry itself contemplates the conflict between constitutional protections and the need for closure in certain circumstances. According to the Bone-Club court, “[T]he five criteria a trial court must obey to protect the public’s right of access before granting a motion to close are likewise mandated to protect a defendant’s right to public trial.” 128 Wn.2d at 259 (emphasis added). Regardless whether Erickson has standing under article I, section 10, he did not ask the trial court to close the courtroom. He merely acquiesced to the trial court’s proposal, and Erickson’s failure to object does not waive his right to public trial under article I, section 22. Brightman, 155 Wn.2d at 517. Furthermore, helping shape a questionnaire before beginning voir dire does not indicate his desire to move the proceedings out of the courtroom.

Although we note that a courtroom closure requires a Bone-Club analysis, here the trial court could have followed a different procedure not implicating Bone-Club. It had already excused all other prospective jurors from the courtroom; questioning of individual jurors regarding sensitive topics separate from other prospective jurors could have then taken place in open court. See State v. Vega, 144 Wn. App. 914, 916-17, 184 P.3d 677 (2008). Such an approach is not a closure of the courtroom, and it secures the right to a public trial.

3

Relying on Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993), the Bone-Club court articulated five criteria to “assure careful, case-by-case analysis of a closure motion”:

“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 the 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.”

128 Wn.2d at 258-59 (alteration in original).

4

After granting review on the public trial issue in Momah, the Washington Supreme Court heard oral argument on the case on June 10, 2008. State v. Momah, 163 Wn.2d 1012, 180 P.3d 1291 (2008).

5

Although the dissent suggests that Erickson submitted the juror questionnaire, our review of the record indicates that before beginning voir dire, the trial court and the parties agreed together to formulate appropriate questions to include in a questionnaire. Further, it appears the trial court made the decision to move questioning of the prospective jurors into the jury room after the questionnaire was formulated. Thus, we disagree with the dissent’s suggestion that Erickson in effect “requested” a courtroom closure, making his public trial argument subject to the invited error doctrine. Dissent at 212-13.

6

The record before the Brightman, court did not make clear whether the trial court actually followed through on its statement to the attorneys, but the court decided that “once the plain language of the trial court’s ruling imposes a closure, the burden is on the State to overcome the strong presumption that the courtroom was closed.” 155 Wn.2d at 516. The State did not present evidence to overcome the presumption that closure occurred during jury selection. Brightman, 155 Wn.2d at 516.

7

Moreover, a person entering a courtroom and not finding the trial court, counsel, and the court reporter present might not discern that the trial was proceeding.

8

We again, note that the better practice is to question individual jurors regarding sensitive topics separate from the rest of the prospective jurors but within the courtroom. See Vega, 144 Wn. App. at 917. Such an approach is not a closure of the courtroom and thus requires no Bone-Club analysis.

9

Nor does Erickson’s assistance in drafting a juror questionnaire before beginning voir dire and before the trial court called prospective jurors into the jury room constitute a waiver under these facts.