Opinion
No. 64676-1-I.
April 4, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 07-1-02205-4, Sharon S. Armstrong, J., entered December 9, 2009.
Affirmed by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Appelwick, J.
This is Travis Coleman's second appeal. In the first, we affirmed his conviction but held the trial court violated the public's open trial right by sealing juror questionnaires without first holding a Bone-Club hearing, and remanded for reconsideration of the sealing order. On remand, the court unsealed the questionnaires with juror names and numbers redacted.
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
Coleman argues that the record developed on remand undermines the factual premise underlying this court's first opinion, and that the court did not properly consider the Bone-Club factors on remand.
We find no basis to overturn our initial decision and no error in the court's Bone-Club inquiry on remand, and affirm.
BACKGROUND
The facts underlying the charges against Coleman are irrelevant to this appeal and can be found in the original opinion.
State v. Coleman, 151 Wn. App. 614, 214 P.3d 158 (2009) (Coleman I).
Jury Selection
To facilitate the jury selection process in Coleman's trial for molestation and child rape, the State provided a two-page written questionnaire. The questionnaire informed the jurors:
Your responses will be available only to the judge, the defendant and the attorneys for both parties in this case, and will be destroyed if you are not selected. Even if you are selected, your responses will be sealed in the permanent case record and thus not be available for public scrutiny.
Clerk's Papers (CP) at 132.
The questionnaire posed mostly "yes" or "no" questions concerning experience with sex crimes. Specifically, prospective jurors were asked whether they or anyone close to them had been accused of, witness to, or a victim of a sex crime. Jurors answering "yes" were asked whether the perpetrator was known and whether the matter was referred to a government agency. The questionnaire also asked whether jurors had specialized training concerning sex crimes or counseling and whether anyone had ever reported being the victim of a sex crime to them. Finally, the questionnaire asked whether there was any reason the jurors could not be fair in a sex crime case, with room for an explanation, and whether the jurors would prefer to answer additional questions outside the presence of fellow jurors. Seven jurors answered the latter question in the affirmative. Those jurors were questioned in open court while other jurors remained in the jury room. General voir dire was completed the following day in open court, and a jury was selected and sworn.
Three days later, the court, sua sponte, ordered the questionnaires sealed upon the following finding:
The Court finds compelling circumstances for sealing the documents indicated below: Jury Questionnaires containing personal sexual history of prospective jurors related to issues in this case. The individual juror's right to privacy in this information greatly outweighs the public's right to access the court files.
CP at 123.
The order authorized counsel to review the documents and make copies without further order of the court, and provided that "[i]n the event of an application for the opening or copying of the sealed documents, notice shall be given or attempted . . . and hearing noted." No objection was lodged to this order.
Id.
After Coleman's trial, this court decided State v. Waldon, holding that a Bone-Club analysis is required before sealing court records.
148 Wn. App. 952, 967, 202 P.3d 325, review denied, 166 Wn.2d 1026 (2009).
Coleman appealed the sealing order, arguing that failure to conduct a Bone-Club analysis violated his and the public's rights to open courts and was "structural" error requiring a new trial. We held that sealing court records without conducting a Bone-Club analysis violated the public's right to open courts under article I, section 10 of the state constitution, but not Coleman's public trial right under article I, section 22. The questionnaires were used only in jury selection, which was conducted in open court, and they were not sealed until several days after the jury was seated and sworn. Because there was "nothing to indicate that the questionnaires were not available for public inspection during the jury selection process," we concluded that the sealing order "had no effect on Coleman's public trial right," did not constitute structural error, and did not warrant reversal. We remanded for reconsideration of the sealing order underBone-Club and Waldon.
Coleman I, 151 Wn. App. at 623-24.
Id. at 624.
At the Bone-Club hearing on remand, the court heard argument from counsel and objections from a number of Coleman's relatives who opposed sealing. The court found that compelling interests of fair trial and juror privacy required redaction of the juror's identifying information, and ordered the questionnaires be filed for the record with juror names and numbers redacted. The original unredacted questionnaires remain sealed.
DISCUSSION Record on Remand
In Coleman I, we reasoned that the sealing order did not affect Coleman's public trial right because there was no indication the questionnaires were unavailable for public inspection during jury selection. Coleman contends the record on remand establishes the questionnaires were not in fact available to the public, and therefore his public trial right was violated.
Coleman relies on a statement on the questionnaire form and a declaration from his trial counsel submitted on remand. The questionnaire states that the juror's responses are "available only to the judge, the defendant and the attorneys for both parties in this case," and that responses of selected jurors "will be sealed in the permanent case record and thus not be available for public scrutiny." Counsel's declaration states:
CP at 127.
To my knowledge, there was never a time that the questionnaires were available for public inspection during the jury selection process or at any other time during Mr. Coleman's trial. To the contrary, it was my understanding that although I was entitled to use them in jury selection, these questionnaires were not to be made available for public inspection by myself or anyone else.
CP at 125.
Both parties apparently take the view that this evidence conclusively establishes the questionnaires were not available to the public during jury selection, and that this revelation makes the reasoning behind Coleman I "untenable." We reject this conclusion, which is also inconsistent with our recent opinion in State v. Tarhan.
Br. of Resp't at 13.
___ Wn. App. ___, 246 P.3d 580 (2011).
The relevant facts in Tarhan are substantially similar to those here. In both, voir dire occurred in open court and the sealing order was not entered until after the jury was accepted. But in Tarhan, trial counsel had requested to take the questionnaires home. The court gave permission, despite concerns that it would be "a disaster" if jurors thought their information would be "Xeroxed and sent around town," stating that counsel were "officers of the court and I have such respect for all of you." Tarhan argued this proved the questionnaires were never available for public inspection.
Id. at 586.
We rejected this argument:
It is unclear from this record whether the court's comments, read in context, represented a decision to deny public access to the completed questionnaires during voir dire. What the exchange does show is that the court recognized that the jurors filled out the questionnaires with the expectation that their answers would be confidential. . . .
No one broached the subject of public access to the questionnaires during this colloquy. . . . [O]n this limited record, we will not speculate on how the court would have ruled had anyone mentioned the question of public access to these questionnaires. In sum, this colloquy between the court and counsel tells us little if anything about whether the questionnaires were unavailable to the public during voir dire of the venire in the following days of jury selection.
We also note that this record is silent on where these questionnaires were located during the selection of the jury following this colloquy. This is a fact that would be important to any determination of whether the public had access to them. Yet [Tarhan] fails to point to anything in this record to fill this void.
Id. at 586-87.
We held that Tarhan's failure to show the questionnaires were truly unavailable to the public during jury selection was "fatal to his claim that the court violated his public trial right."
Id. at 587.
The same is true here. Neither the statement on the jury forms nor defense counsel's understanding can establish what the court would have done had there been a request from a member of the public to see the questionnaires, and there is no evidence about where the questionnaires were kept. Like the Tarhan court, we decline to speculate about whether the trial court intended to treat the questionnaires as sealed before it actually sealed them.
Coleman has not established the questionnaires were truly unavailable to the public. We adhere to the holding inColeman I.
Bone-Club
On remand, the court held a hearing to reconsider its order sealing the questionnaires. The prosecutor identified the jurors' privacy interests as "the compelling issue in the here and now," and argued that redacting their names would be insufficient to protect these rights "if there exists a list that would allow correlation between members and names" or "if sealing or redacting some portion of the questionnaires de facto reveals what the other ones would be."
Report of Proceedings (RP) (Nov. 24, 2009) at 5, 8.
Coleman opposed sealing, arguing there was no compelling reason outweighing his right to a public trial. He also argued that redacting only the juror's names (but not their numbers) was the least restrictive way to safeguard juror privacy while leaving the records open for public inspection. Coleman presented statements from five people who objected to the sealing, all of whom were relatives of Coleman and none of whom attended jury selection during trial.
Two of these were defense witnesses and were excluded from the courtroom until they had given their testimony.
The Bone-Club factors are as follows:
"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."
Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
The court identified two compelling interests. First, the court found that Coleman's right to a fair trial constituted a compelling interest in sealing the questionnaires because that right could be ensured only if prospective jurors were candid and forthright in their responses. The court also found juror privacy to be a compelling interest, to which public access to the questionnaires constituted a serious and imminent threat:
It is the unusual sexual assault victim who can hear a case similar to his/her personal experience and render an unbiased verdict. Without an assurance of some privacy, jurors would be less willing to make such disclosures, threatening the defendant's right to a fair trial. Jurors have a right of privacy in their sexual history. The only reason they are disclosing the information at all is that they are under oath and the court has ordered them to truthfully answer counsel's questions[.] Moreover, a juror's privacy is subject to far greater threat and abuse when the sensitive information is preserved as a court record, open to inspection, reproduction and publication to the world, than is the case with discussion in the courtroom . . . [which] is not as easily broadcast. The filing of confidential questionnaires, without any protection, presents a serious and imminent threat to the jurors' right of privacy.
RP (Nov. 24, 2009) at 10-11.
As to the objections lodged, the court considered the statements of Coleman's relatives but found the objections without merit because all persons present for voir dire heard far more details of the jurors' history than the questionnaires themselves revealed.
The court found the least restrictive means for protecting juror privacy was to redact both names and juror numbers. Coleman argues the least restrictive means available was to redact only names, and that redaction of jury numbers renders the questionnaires "completely useless to anyone interested in the jury selection process." But the court explained that redacting only juror names would be insufficient:
Br. of Appellant at 16.
Court minutes record the name of the impaneled jurors, and these names could be connected with the questionnaires. During jury selection, jurors were referred to by their juror number. The transcript, as well as documents generated by the jury room, would connect juror numbers to the questionnaires. Thus, the least restrictive means to protect juror privacy and to encourage frank disclosure of juror information is to redact the questionnaires so that they cannot be connected to named jurors.
CP at 130.
Coleman does not dispute this reasoning. The court did not err.
In weighing the competing interests, the court found that the privacy rights of jurors and the need to encourage frank disclosure to assure a fair and unbiased jury greatly outweighed the "theoretical interest of court observers in connecting the juror's sexual history with the juror's name."
Id.
Coleman contends the court improperly relied on a general concern that the juror's privacy could be compromised by members of the public with "prurient interests" rather than a serious and imminent threat to a compelling interest as required byBone-Club and Presley v. Georgia. During the hearing, the court did describe the public's interest in sexual assault cases as "possibly prurient." This observation is not, however, part of the court's findings, which enumerate the compelling interests identified and the serious and imminent threat thereto. This satisfies Bone-Club and Presley.
___ U.S. ___, 130 S. Ct. 721, 725, 175 L. Ed. 2d 675 (2010).
RP (Nov. 24, 2009) at 13.
Bone-Club, 128 Wn.2d at 258;Presley, 130 S. Ct. at 725.
Coleman next contends the court improperly made its ruling before it heard from individuals opposed to the sealing. That is not so. Although the court orally addressed theBone-Club factors and announced its "preferred method of dealing with this" before hearing from objectors present in the courtroom, it did not issue its written order for several days. There was no error.
RP (Nov. 24, 2009) at 13.
Affirmed.
WE CONCUR: