Opinion
No. 64419-0-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-01306-0, Steven J. Mura, J., entered November 4, 2009.
Reversed and remanded by unpublished opinion per Leach, A.C.J., concurred in by Grosse and Ellington, JJ.
Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. Here, the court conducted individual voir dire in chambers without first applying and weighing the five factors required by State v. Bone-Club. Because a failure to conduct a Bone-Club analysis requires reversal in all but the most exceptional circumstances, we reverse Castillo's conviction and remand for a new trial.
128 Wn.2d 254, 906 P.2d 325 (1995).
FACTS
The State charged Edward Castillo with rape of a child in the first degree for conduct involving R.G., his girl friend's seven-year-old niece.
This is the second appeal arising from these charges. Castillo's first trial ended in a guilty verdict. He appealed on the basis that the trial court erred when it failed to give the reasonable doubt instruction specified in Washington Pattern Jury Instructions: Criminal 4.01 (WPIC). We agreed, reversed, and remanded with instructions for the court to use WPIC 4.01 in any retrial. State v. Castillo, 150 Wn. App. 466, 475, 208 P.3d 1201 (2009); 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 4.01, at 85 (3d ed. 2008).
At the beginning of jury selection, the court informed the jury pool that individual, in chambers questioning was available:
[I]f a question is asked and for any reason you are hesitant to answer the question in front of this large group of people, if you do need to give an answer, please raise your hand and let us know you would rather answer the question in a more private setting. And then if it's possible for us to do that at a later time we can go back into my chambers with the attorneys, the defendant, myself and the court reporter present so you will have a smaller group of people to answer the question in front of.
I think in the questionnaires there were a couple of people that may have indicated they wanted to answer any questions in the more private setting and we have already got your name and we can talk to you at a later time if that is something that we need to do.
Defense counsel reiterated the court's offer during voir dire:
I want to follow-up on some of the stuff that came up on the questionnaires and if you did indicate sensitive I'm not going to ask you about it here. If you didn't indicate you wanted to discuss it in private and when I bring it up and you want to discuss it in private, please just say that and we'll do that.
After general voir dire concluded, the court announced that several jurors had requested to talk in chambers and asked if anyone objected. No one did. The court, prosecutor, and defense counsel questioned six potential jurors in chambers and on the record. The defense challenged two of the potential jurors, and the State did not object. Jury selection then continued in open court. The jury eventually found Castillo guilty as charged.
Only one of those questioned served on the jury.
Castillo appeals.
ANALYSIS
Castillo contends the court violated his right to a public trial under article I, section 22 of the Washington State Constitution by conducting a portion of jury selection in chambers without first applying and weighing the five Bone-Club factors. We agree.
Whether a trial court procedure violates a criminal defendant's right to a public trial is a question of law that we review de novo. Section 22 provides: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial." This provision assures a fair trial, fosters public understanding and trust in the judicial system, and provides judges with the check of public scrutiny. While the public trial right is not absolute, Washington courts strictly guard it to assure that proceedings occur outside the public courtroom in only the most unusual circumstances.
State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).
Additionally, article I, section 10 of the Washington State Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision secures the public's right to open and accessible proceedings and is not at issue here.
State v. Duckett, 141 Wn. App. 797, 803, 173 P.3d 948 (2007) (citing State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005); Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 P.3d 861 (2004)).
Easterling, 157 Wn.2d at 174-75; Brightman, 155 Wn.2d at 514-15; In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 258-59.
To protect the defendant's right to a public trial, our Supreme Court held in Bone-Club that a trial court must apply and weigh five factors before closing a portion of a criminal trial. Also, the court must enter specific findings justifying its closure order. These requirements extend to closure of jury selection. Generally, if the record indicates a violation of a defendant's public trial right, we presume prejudice, reverse the conviction, and remand for a new trial.
Under Bone-Club,
"1. The proponent of closure . . . 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."
Bone-Club, 128 Wn.2d at 258-59 (second alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
Easterling, 157 Wn.2d at 175 (citing Bone-Club, 128 Wn.2d at 258-59).
Orange, 152 Wn.2d at 804 (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
Easterling, 157 Wn.2d at 181 (citing Bone-Club, 128 Wn.2d at 261-62).
Easterling, 157 Wn.2d at 174 (citing Orange, 152 Wn.2d at 814).
Here, the State appropriately concedes that the court violated Castillo's right to a public trial. While the record reflects the trial court's concern for the prospective jurors' privacy, it contains no indication that the court undertook the required Bone-Club analysis. We agree with the State that this was in error.
The parties disagree as to the proper remedy. Relying on State v. Momah, the State urges affirmation of Castillo's conviction. Castillo counters that State v. Strode, a plurality opinion issued the same day as Momah, requires reversal and remand for a new trial. We agree with Castillo.
167 Wn.2d 140, 217 P.3d 321 (2009).
167 Wn.2d 222, 217 P.3d 310 (2009).
Momah presented unusual circumstances. The media heavily publicized the case, which prompted concerns about juror impartiality. As a result, the court and counsel conducted individual voir dire of those potential jurors who indicated that they had prior knowledge of the case, asked for private questioning, or stated they could not be fair. Although the trial court did not explicitly analyze the Bone-Club factors before closing the courtroom, our Supreme Court affirmed Momah's conviction. It observed that the trial court and counsel recognized and "carefully considered" Momah's competing article I, section 22 rights. And "Momah affirmatively assented to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefitted from it." The court concluded that Momah's conduct indicated deliberate, tactical choices to protect his right to an impartial jury. The court found these circumstances distinguished Momah from the court's previous public trial cases.
Momah, 167 Wn.2d at 145.
Momah, 167 Wn.2d at 145-46.
Momah, 167 Wn.2d at 145, 156.
Momah, 167 Wn.2d at 156.
Momah, 167 Wn.2d at 151.
Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) ("The record shows [Momah] intentionally relinquished a known right.").
Momah, 167 Wn.2d at 151.
Strode, in contrast, presented an "unexceptional" set of facts. The trial court and counsel, out of concern for juror privacy, individually questioned in chambers potential jurors who had been victims of a sexual offense or accused of committing a sexual offense. The court did not conduct any Bone-Club analysis, and "the record [was] devoid of any showing that the trial court engaged in the detailed review that is required in order to protect the public trial right." Nor did Strode engage in behavior that indicated a deliberate, tactical choice or a waiver of his public trial right. The court therefore reversed Strode's conviction and remanded for a new trial.
See Strode, 167 Wn.2d at 223.
Strode, 167 Wn.2d at 224.
Strode, 167 Wn.2d at 228.
Strode, 167 Wn.2d at 231-32 (Fairhurst, J., concurring).
Strode, 167 Wn.2d at 231.
Momah and Strode instruct us that in all but the most exceptional circumstances, closing voir dire without employing an explicit Bone-Club analysis is reversible error requiring a new trial.
Strode, 167 Wn.2d at 223; see also Momah, 167 Wn.2d at 156 (under the unusual facts of the case, failure to employ Bone-Club analysis held not to be structural error requiring reversal).
The State asks us to find that this case is like Momah because "it is clear the trial court was aware of Castillo's right to an open trial when it inquired if anyone objected to the proposed in chambers proceedings," Castillo did not object, and he participated in and encouraged the in chambers questioning. We do not see the similarity.
The State also argues "conducting limited individual jury voir dire in chambers, while procedurally conducted in error, safeguarded rather than undermined Castillo's right to a fair and impartial jury." The State seems to be asking us to perform a Bone-Club analysis on appeal. But the determination of a compelling interest is the affirmative duty of the trial court. Bone-Club, 128 Wn.2d at 261. We will not make that determination on appeal.
First, the record does not support the State's assertion that the court or counsel considered Castillo's public trial right. Second, while the court did ask if anyone objected, "an opportunity to object holds no `practical meaning' unless the court informs potential objectors of the nature of the asserted interests." As there was no discussion of Castillo's public trial right on the record, his failure to object is meaningless. Third, although Castillo participated in the closed proceedings and encouraged prospective jurors to indicate any preference to discuss some matters privately, this merely reflects compliance with the procedure established by the court. The State fails to convince us that Castillo's case is more like Momah than Strode.
Bone Club 128 Wn.2d at 261 (quoting Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 39, 640 P.2d 716 (1982)).
State v. Strode controls the outcome of Castillo's appeal. As in Strode, the record here does not show that the court considered Castillo's public trial right in light of competing interests. Nor does the record show that Castillo's behavior constituted a knowing waiver of the right to a public trial. Therefore, this case, like Strode, falls into the category of cases requiring reversal because of the trial court's failure to conduct a Bone-Club analysis on the record.
See Strode, 167 Wn.2d at 235-36 (Fairhurst, J., concurring).
Because the court improperly excluded the public from a portion of jury selection in unexceptional circumstances without first conducting a Bone-Club analysis, Strode requires a new trial as the proper remedy. We reverse Castillo's conviction and remand for further proceedings consistent with this opinion.
On appeal, Castillo also assigns error, both through counsel and pro se, to several of the trial court's evidentiary rulings. In light of our disposition, we do not reach these claims.