State v. Russell

172 P.3d 361
Court of Appeals of Washington·Decided November 14, 2007·No. 34424-6-II·Published·Cited by 9 cases

Opinion

172 P.3d 361 (2007)

STATE of Washington, Respondent,
v.
Roy Wayne RUSSELL, Jr., Appellant.

No. 34424-6-II.

Court of Appeals of Washington, Division 2.

November 14, 2007.

Michael C. Kinnie, Vancouver, WA, for Respondent.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Appellant.

PUBLISHED IN PART OPINION

BRIDGEWATER, J.

¶ 1 Roy Wayne Russell, Jr. appeals his conviction for second degree murder of 14-year-old C.M.H. We hold that the trial court *362 did not violate Russell's constitutional right to public trial when it prohibited the media from photographing juvenile witnesses without consent because there was no closure of the courtroom in any sense under State v. Bone-Club, 128 Wash.2d 254, 906 P.2d 325 (1995). Russell's other claims are meritless under prior case law from our Supreme Court: he did not have the right to have a jury decide the fact that he had prior convictions, nor did he have the right to have that issue decided beyond a reasonable doubt; and the Persistent Offender Accountability Act (POAA) does not violate the single subject requirement of the Washington State Constitution. Russell's claims in his Statement of Additional Grounds (SAG)[1] are meritless as well. We affirm.

Facts

¶ 2 On December 9, 2005, the State charged Roy Russell with one count of second degree felony murder under RCW 9A.32.050(1)(b); RCW 9A.36.021.[2] The information alleged that Russell caused the death of C.M.H., who was found in the basement of his Clark County home.

¶ 3 Before trial, the State raised its concerns about media coverage of the case. The trial court decided that the broadcast media could operate a pool camera in the courtroom but that it would not allow photographs of the jury, under the bench-bar rules. In addition, the trial court decided that the print media could not photograph juvenile witnesses. The court specified that the media could report on and even record the voices of juvenile witness testimony, but that it could not photograph such witnesses and put their images in the press. The trial court also prohibited the pooled television camera from being pointed at the juvenile witnesses during their testimony.

¶ 4 Following its preliminary ruling, the trial court invited arguments from the print media and the parties. At a hearing held on January 4, 2006, the editor of a local newspaper argued that if the trial court denied the press the opportunity to photograph juvenile witnesses, it would deny the public its right to an open courtroom. Following an extended discussion with the editor and counsel about the competing interests at stake, the trial court affirmed its previous decision that it would not allow the press to photograph juvenile witnesses. But the trial court also stated that it was "not closing the door to the subject." 2 RP at 148.

¶ 5 On January 6, 2006, the trial court revisited the issue of photographing juvenile witnesses and it "slightly adjust[ed]" its original decision. 3 RP at 154. Ultimately it decided that it would permit the press to photograph juvenile witnesses only if the witness and his or her parents agreed to the press taking photographs. Thereafter, the trial court and the press coordinated their efforts to identify which witnesses agreed to being photographed and which did not.

¶ 6 On January 24, 2006, a jury convicted Russell as charged. At sentencing, the trial court found by a preponderance of the evidence that Russell had two prior convictions "of the most serious offense[]" thereby qualifying him as a persistent offender under the Persistent Offender Accountability Act enumerated in RCW 9.94A.570. CP at 431. Following the POAA, the trial court sentenced Russell to life in prison without the possibility of parole. Russell timely appeals.

ANALYSIS

Public Trial

¶ 7 Russell first contends that the trial court violated his right to a public trial when it prohibited the press from photographing the juvenile witnesses without their consent at trial. The State maintains that the trial court did not even entertain the concept of closing the courtroom or denying the defendant his constitutional right to a public trial. The State is correct.

¶ 8 Whether a trial court has violated a criminal accused's right to public trial is *363 an issue of law, subject to de novo review. State v. Easterling, 157 Wash.2d 167, 174, 137 P.3d 825 (2006) (citing Bone-Club, 128 Wash.2d at 256, 906 P.2d 325). The presumptive remedy for such violation is reversal and remand for new trial. In re Personal Restraint of Orange, 152 Wash.2d 795, 814, 100 P.3d 291 (2004).

¶ 9 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution each guarantee a criminal accused the right to a public trial. Cohen v. Everett City Council, 85 Wash.2d 385, 387, 535 P.2d 801 (1975). In addition, article I, section 10 of the Washington Constitution states that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision provides the public and press a right to open and accessible court proceedings. Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982). "The public trial right serves to ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and discourage perjury." State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005) (citations omitted).

¶ 10 Although the right to public trial is not absolute, protection of this basic constitutional right clearly requires a trial court "to resist a closure motion except under the most unusual circumstances." Bone-Club, 128 Wash.2d at 259, 906 P.2d 325. To protect the constitutional right to a public trial, the trial court may not close a courtroom without first considering the five requirements enumerated in Bone-Club and second, entering specific findings to justify the closure order. Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325 (citations omitted).

¶ 11 Russell equates the trial court's prohibition on photographing the juvenile witnesses without consent to a complete closure of the courtroom. He then implies that the trial court failed to consider the Bone-Club factors and enter specific findings to justify the closure. See Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325 (citations omitted).

¶ 12 In Bone-Club,

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