State v. Lee

159 Wash. App. 795
CourtCourt of Appeals of Washington
DecidedFebruary 7, 2011
DocketNos. 62864-0-I; 62961-1-I
StatusPublished

This text of 159 Wash. App. 795 (State v. Lee) 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. Lee, 159 Wash. App. 795 (Wash. Ct. App. 2011).

Opinion

Cox, J.

¶1 — Steven Lee and Tsegazeab Zerahaimanot, codefendants in a joint trial, appeal their judgments and sentences in this prosecution for one count of felony murder, one count of first degree murder, and one count of second degree unlawful possession of a firearm. Both murder counts included firearm allegations to support enhancements.

¶2 The first issue is whether the trial court violated their state and federal rights to a public trial by sealing juror questionnaires without first conducting the analysis required under State v. Bone-Club.1 The public’s right to open access to court proceedings is also implicated. The second issue is whether their confrontation rights were violated when the trial court admitted cell phone records without providing an opportunity to cross-examine the record custodians.

¶3 Lee and Zerahaimanot make additional claims that we address in the unpublished portion of this opinion.

¶4 We remand to the trial court for reconsideration of its order to seal the juror questionnaires under Bone-Club. We [801]*801also direct the trial court to vacate Lee’s and Zerahaimanot’s premeditated murder convictions on double jeopardy grounds, leaving undisturbed their felony murder convictions. In all other respects, we affirm.

¶5 In the early morning of August 21, 2007, Jill Rich and Bristol Chaney found Forrest Starrett lying next to his truck in Everett, Washington. Starrett had suffered gunshot wounds to the leg and head. He was dead when police arrived at the scene. Investigation led to Lee and Zerahaimanot.

¶6 The State charged them in Snohomish County Superior Court with felony murder, premeditated murder, and another crime not relevant to this appeal. The charges also included firearm allegations to support requests for enhancements.

¶7 The night of the shooting, Starrett was at Michelle Walker’s apartment with several other individuals, including Leroy Holt. Holt invited Lee and Zerahaimanot to the apartment. Holt later witnessed Zerahaimanot shoot Starrett in the lower part of his body and Lee shoot Starrett in the head. It was the State’s theory that Lee and Zerahaimanot killed Starrett because they were suspicious that he was a police officer. A jury convicted them as charged.

¶8 Lee and Zerahaimanot appeal.

OPEN AND PUBLIC TRIAL

¶9 Lee and Zerahaimanot argue that their federal and state constitutional rights to a public trial were violated when the trial court sealed juror questionnaires without first conducting a Bone-Club hearing on the record. We hold that their right to a public trial was not violated. But, the failure to conduct a Bone-Club hearing before entering the sealing order is inconsistent with the public’s right of open access to court records. Accordingly, remand for reconsideration of the sealing order at such a hearing is required.

[802]*802¶10 An accused’s right to a public trial is protected by both the state and federal constitutions. The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.”2 In article I, section 22, the Washington Constitution provides, “In criminal prosecutions the accused shall have the right... to have a speedy public trial by an impartial jury.”

¶11 Separate from the defendant’s right to a public trial, the public has a right to open court proceedings. Article I, section 10, of the Washington Constitution provides that “[j]ustice in all cases shall be administered openly.” This provision has been interpreted as protecting the public and press’s right to open and accessible court proceedings, similar to the public’s right under the First Amendment.3

These [respective constitutional] provisions “assure a fair trial, foster public understanding and trust in the judicial system and give judges the check of public scrutiny.” The guaranty of open criminal proceedings extends to jury selection, which is important “ ‘not simply to the adversaries but to the criminal justice system.’ ”[4]

¶12 While the public’s right to open court proceedings and the defendant’s right to a public trial are independent, they “serve complementary and interdependent functions in assuring fairness of our judicial system . . . ,”5 In Bone-Club, the Supreme Court set out the standards for [803]*803closing all or any portion of a criminal trial.6 7Because the defendant’s rights under article I, section 22 and the public’s right under article I, section 10 are interrelated, the same analysis applies to both rights:

“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.”[7]

In State v. Waldon,8 this court held the same analysis applies when sealing court documents.

¶13 When the defendants’ right to a public trial is violated, the court devises a remedy appropriate to that violation.9 If the error is structural in nature, the conviction must be reversed and a new trial is required.10 An error is structural when it “ ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determin[804]*804ing guilt or innocence.’ ”11 But, in each case the “remedy must be appropriate to the violation.”12

¶14 Whether the defendant’s right to a public trial or the public’s right to open court proceedings was violated are questions of law subject to de novo review.13

¶15 Here, Lee and Zerahaimanot argue that sealing the juror questionnaires without a Bone-Club analysis violated their public trial right under article I, section 22. They also argue that article I, section 10 is implicated.14

¶16 This court addressed whether sealing juror questionnaires violated these constitutional provisions in State v. Coleman.15 There, the State prosecuted Coleman for rape and multiple counts of first degree child molestation.16 The members of the venire completed questionnaires that included matters concerning their sexual histories.17 The completed questionnaires were provided to counsel and jury selection proceeded in open court.18

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Tumey v. Ohio
273 U.S. 510 (Supreme Court, 1927)
Gideon v. Wainwright
372 U.S. 335 (Supreme Court, 1963)
Pointer v. Texas
380 U.S. 400 (Supreme Court, 1965)
McKaskle v. Wiggins
465 U.S. 168 (Supreme Court, 1984)
Waller v. Georgia
467 U.S. 39 (Supreme Court, 1984)
Vasquez v. Hillery
474 U.S. 254 (Supreme Court, 1986)
Arizona v. Fulminante
499 U.S. 279 (Supreme Court, 1991)
Neder v. United States
527 U.S. 1 (Supreme Court, 1999)
Lilly v. Virginia
527 U.S. 116 (Supreme Court, 1999)
Crawford v. Washington
541 U.S. 36 (Supreme Court, 2004)
Washington v. Recuenco
548 U.S. 212 (Supreme Court, 2006)
Melendez-Diaz v. Massachusetts
557 U.S. 305 (Supreme Court, 2009)
State v. Lynn
835 P.2d 251 (Court of Appeals of Washington, 1992)
Seattle Times Co. v. Ishikawa
640 P.2d 716 (Washington Supreme Court, 1982)
Allied Daily Newspapers v. Eikenberry
848 P.2d 1258 (Washington Supreme Court, 1993)
State v. Monson
784 P.2d 485 (Washington Supreme Court, 1989)
State v. Jasper
245 P.3d 228 (Court of Appeals of Washington, 2010)
State v. Waldon
202 P.3d 325 (Court of Appeals of Washington, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
159 Wash. App. 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-washctapp-2011.