Opinion
No. 62072-0-I.
Filed: April 18, 2011.
Appeal from a judgment of the Superior Court for King County, No. 06-2-33534-1, Bruce E. Heller, J., entered July 3, 2008.
Affirmed by unpublished opinion per Leach, A.C.J., concurred in by Cox and Ellington, JJ.
Winston Motley appeals his civil commitment as a sexually violent predator (SVP) under chapter 71.09 RCW. He contends in-chambers conferences about jurors' proposed questions to witnesses violated his right to an open, public trial. He also claims a jury instruction defining an element of the State's case misled the jury. Because the in-chambers conferences dealt with purely legal matters, these conferences did not violate the public's right to an open proceeding under Washington Constitution, article I, section 10. Motley is not a criminal defendant. We decline his invitation to extend to this civil proceeding the public trial right guaranteed a criminal defendant by Washington Constitution, article I, section 22. And because the challenged instruction correctly stated that law, adequately informed the jury, and allowed the parties to argue their respective theories of the case, no instructional error occurred. We affirm.
FACTS
A jury found Motley to be an SVP under chapter 71.09 RCW. The trial court ordered Motley civilly committed to a secure facility for control, care, and treatment. Because resolution of Motley's appeal turns upon two legal issues, we find it unnecessary to recite Motley's extensive sex offense history.
ANALYSIS
Public Trial Rights
During trial, the jurors submitted to the court proposed written questions directed to witnesses, as authorized by CR 43(k). Jurors submitted their proposed questions at the end of the testimony of each of three witnesses. Before asking each witness any of the questions proposed by a juror, the trial judge directed counsel to chambers for an off-the-record conference. After the conference, the trial court asked the witness some juror questions. The record contains each proposed question.
Motley claims these in-chambers discussions violated public trial provisions of the Washington Constitution. Whether a trial court procedure violates a public trial provision is a question of law this court reviews de novo. This standard applies equally in civil and criminal proceedings.
State v. Duckett, 141 Wn. App. 797, 802, 173 P.3d 948 (2007) (citing State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005)).
In re Det. of D.F.F., 144 Wn. App. 214, 218, 183 P.3d 302 (2008) (citing
Dreiling v. Jain, 151 Wn.2d 900, 907-08, 93 P.3d 861 (2004)).
Article I, section 10 of the Washington Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision guarantees the public and the press a right to open and accessible judicial proceedings. Article 1, section 22 of the Washington Constitution secures a "speedy public trial" in "criminal prosecutions." This provision guarantees a criminal defendant a right to a public trial. While neither right is absolute, both rights are strictly guarded to assure that a courtroom closure occurs in only the most unusual circumstances. To protect both rights, a trial court must apply and weigh the five factors in State v. Bone-Club to determine whether to restrict public access to judicial proceedings.
State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006).
Easterling, 157 Wn.2d at 174.
Easterling, 157 Wn.2d at 174-75 (quoting State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995)).
128 Wn.2d 254, 906 P.2d 325 (1995). These five factors include,
"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 of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
The State argues that Motley lacks standing to assert the public's right to open proceedings because he is a party to a proceeding and therefore not a member of the public. As we recently decided in In re Detention of Ticeson, however, a litigant in a civil commitment proceeding, like all members of the public, enjoys the rights provided by article 1, section 10. Motley, therefore, has standing to assert the public's right to open proceedings.
159 Wn. App. 374, 381, 246 P.3d 550 (2011).
Next, the State argues that Motley failed to preserve his challenge for appeal by not objecting below. Again, Ticeson is dispositive. An improper courtroom closure of a civil proceeding is a constitutional error that may be raised for the first time on appeal if the standards of RAP 2.5 are met. RAP 2.5(a)(3) requires that the appellant show "manifest error affecting a constitutional right." An error is manifest if it had practical and identifiable consequences at trial. Because this test presupposes error, we first determine whether error occurred.
Ticeson, 159 Wn. App. at 382-83.
State v. Holzknecht, 157 Wn. App. 754, 760, 238 P.3d 1233 (2010) (quoting State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009)).
Not all in-chambers conferences implicate the public's right to open judicial proceedings. Public trial rights only apply in "'adversary proceedings,' including presentation of evidence, suppression hearings, and jury selection." Where the court resolves "'purely ministerial or legal issues that do not require the resolution of disputed facts,'" the right to open proceedings does not attach. Thus, the question is whether an in-chambers conference regarding proposed juror questions to witnesses is an "adversary proceeding" or merely one that involves the resolution of ministerial and legal matters.
See, e.g., Ticeson, 159 Wn. App. at 386 (rejecting argument that in-chambers conference on the admissibility of deposition testimony implicated the public's right to open proceedings); State v. Koss, 158 Wn. App. 8, 18, 241 P.3d 415 (2010) (communications between judge and jury during deliberation phase of trial did not violate defendant's public trial rights); State v. Sublett, 156 Wn. App. 160, 182, 231 P.3d 231 (2010) (an in-chambers conference to address a jury question regarding one of the trial court's instruction did not implicate the public trial right).
Ticeson, 159 Wn. App. at 384 (quoting Koss, 158 Wn. App. at 16); see also State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.3d 292 (2001) (quoting Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997)).
Ticeson, 159 Wn. App. at 384 (quoting Koss, 158 Wn. App. at 17).
CR 43(k) provides the court with discretion to decide whether to ask a witness a juror's proposed question. This rule provides,
Juror Questions for Witnesses. The court shall permit jurors to submit to the court written questions directed to witnesses. Counsel shall be given an opportunity to object to such questions in a manner that does not inform the jury that an objection was made. The court shall establish procedures for submitting, objecting to, and answering questions from jurors to witnesses. The court may rephrase or reword questions from jurors to witnesses. The court may refuse on its own motion to allow a particular question from a juror to a witness.
(Emphasis added.) Here, the trial court permitted jurors to submit to it written questions intended for different witnesses, and each time the judge directed counsel to chambers to review the questions. These in-chambers conferences were not adversarial proceedings where evidence was taken, the jury was impaneled, or factual or credibility determinations were made. Because Motley has failed to show how these conferences violated the public's right to open judicial proceedings, no error occurred.
Next, Motley urges this court to extend to a respondent in an SVP proceeding a public trial right analogous to that of a criminal defendant under article I, section 22 and to apply the same remedy for an unjustified denial of that right — reversal and remand for a new trial. In Ticeson, we refused to extend article I, section 22 to respondents in civil commitment proceedings. As we observed in that case, SVP commitment proceedings are civil proceedings, and because article I, section 22 is limited to "criminal prosecutions," that provision does not apply to civil cases, and neither does its remedy. We decline Motley's request to create the same right by analogy.
Ticeson, 159 Wn. App. at 380-81.
Jury Instruction
Motley assigns error to the court's instruction defining one of the elements the State must prove in an SVP proceeding — that the respondent suffers from a mental abnormality or personality disorder that makes the respondent likely to engage in predatory acts of sexual violence if not confined in a secure facility. Instruction 7 provided the jury with the following definition:
Former RCW 71.09.020(16) (2006); In re Det. of Audett, 158 Wn.2d 712, 727, 147 P.3d 982 (2006) (quoting In re Det. of Thorell, 149 Wn.2d 724, 758-59, 72 P.3d 708 (2003)).
"Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention in this proceeding.
In determining this issue, you may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention in this proceeding.
Motley argues that the language of this instruction misled the jury by preventing it from considering relevant evidence related to his future risk of reoffending other than placement conditions and treatment options that would exist if Motley were unconditionally released. This court reviews an alleged error in jury instructions de novo.
State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).
The State contends Motley waived his right to appeal this alleged instructional error under CR 51(f) and RAP 2.5(a) by not objecting at trial. It further contends that the instruction correctly stated the law and, if erroneous, Motley failed to establish prejudice. Instruction 7 neither misled the jury nor resulted in prejudice.
The State also contends Motley is precluded from raising the issue under the invited error doctrine as he proposed and accepted the court's final instruction. Though potentially dispositive, the record is insufficiently developed to confirm or disconfirm the invited error allegation. The record contains neither the State's nor Motley's proposed instructions.
As noted before, a failure to object to a trial court error generally waives that party's right to raise the challenge on appeal unless a "manifest error affecting a constitutional right" occurred. Here, Motley claims that an erroneous jury instruction deprived him of a fair trial as guaranteed by the Fourteenth Amendment of the United States Constitution. This court previews the merits of a claimed constitutional error to determine whether the argument is likely to succeed. Jury instructions are proper when, as a whole, they accurately state the law, do not mislead the jury, and permit each party to argue its theory of the case. Even if an instruction is misleading, the party asserting error bears the burden of establishing prejudice.
RAP 2.5(a)(3).
State v. Huyen Bich Nguyen, 165 Wn.2d 428, 433-34, 197 P.3d 673 (2008).
State v. Reed, 150 Wn. App. 761, 770, 208 P.3d 1274 (2009) (quoting State v. Teal, 152 Wn.2d 333, 339, 96 P.3d 974 (2004)).
Griffin v. W. RS, Inc., 143 Wn.2d 81, 91, 18 P.3d 558 (2001).
Motley relies on State v. Wanrow to support his argument that instruction 7 misstated the law. In Wanrow, a self-defense instruction directed the jury to consider only acts and circumstances occurring "'at or immediately before the killing'" when evaluating the danger to the accused. Because the justification of self-defense requires a consideration of all the facts known to the defendant, the instruction was "a patent misstatement of the law applicable to the defendant's theory of the case."
88 Wn.2d 221, 559 P.2d 548 (1977).
Wanrow, 88 Wn.2d at 234.
Wanrow, 88 Wn.2d at 238.
Wanrow is easily distinguishable from this case. Here, instruction 7 followed the language of RCW 71.09.060(1) nearly verbatim. The instruction read, "In determining this issue, you may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention in this proceeding." RCW 71.09.060(1) states,
In determining whether or not the person would be likely to engage in predatory acts of sexual violence if not confined in a secure facility, the fact finder may consider only placement conditions and voluntary treatment options that would exist for the person if unconditionally released from detention on the sexually violent predator petition.
Instruction 7 therefore accurately states the law. But this does not end our inquiry. The instructions must make the legal rule established by the statute manifestly apparent to the average juror.
State v. LeFaber, 128 Wn.2d 896, 900, 913 P.2d 369 (1996) ("The instructions . . . must make the relevant legal standards 'manifestly apparent to the average juror.'" (internal quotation marks omitted) (quoting State v. Allery, 101 Wn.2d 591, 595, 682 P.2d 312 (1984))).
Motley argues instruction 7 misled the jury because the placement of the adverb "only" directed the jury to disregard evidence other than placement conditions and voluntary treatment options. For support, Motley notes that the instruction mirrors Washington Pattern Jury Instruction 365.14 before its 2006 amendment. The pattern instruction now reads,
See 6A Washington Practice: Washington Pattern Jury Instructions: Civil 365.14, at 516-17 (5th ed. 2005) (WPI).
"Likely to engage in predatory acts of sexual violence if not confined in a secure facility" means that the person more probably than not will engage in such acts if released unconditionally from detention in this proceeding.
[In determining whether the respondent is likely to engage in predatory acts of sexual violence if not confined to a secure facility, you may consider all evidence that bears on the issue. In considering [placement conditions or] voluntary treatment options, however, you may consider only [placement conditions or] voluntary treatment options that would exist if the respondent is unconditionally released from detention in this proceeding.]
WPI 365.14, at 207 (5th ed. Supp. 2009-10).
The comment explains the 2006 revisions:
The original version could have been interpreted as permitting the jury to consider only placement conditions and voluntary treatment options when determining whether the respondent is likely to engage in predatory acts of sexual violence if not confined to a secure facility, even if other evidence relevant to the question has been admitted. The current instruction makes clear that the jury is not prohibited from considering such evidence when it has been admitted by the trial court.
WPI 365.14, cmt. at 209 (5th ed. Supp. 2009-10).
Motley overlooks the fact that the amendment is preventative rather than remedial in nature. The committee's comment clearly indicates that the instruction "could" have been misconstrued, not that it was taking action in response to a case where it was.
Additionally, Motley's suggested interpretation is neither the only nor most obvious way to read instruction 7. The adverb "only" can be understood to work with the pronoun "that" to describe a limitation on types of "placement conditions and voluntary treatment options" to be considered as opposed to a blanket limitation on the entire universe of evidence jurors should consider. That is, the jurors could just as easily have understood instruction 7 as directing them to consider all evidence relevant to Motley's likelihood of reoffending if not confined to a secure facility with the small exception that a consideration of any placement conditions and treatment options was limited to those available to Motley if released unconditionally. As illustrated by the comment to the pattern instruction, this interpretation comports with the meaning intended by the state legislature.
That the jurors received an accurate statement of SVP law becomes not only plausible but highly probable when instruction 7 is read in context with all other instructions given. Instruction 1 stated,
It is your duty to decide the facts in this case based upon the evidence presented to you during this trial. . . .
The evidence that you are to consider during your deliberations consists of the testimony that you have heard from witnesses, and the exhibits that I have admitted, during the trial. . . .
. . . .
In deciding this case, you must consider all of the evidence that I have admitted.
That instruction concluded, "During your deliberations, you must consider the instructions as a whole." Instruction 4 set forth the State's burden of proof, explaining that a "reasonable doubt is one for which a reason exists and may arise from the evidence [or] lack of evidence. A reasonable doubt is a doubt that would exist in the mind of a reasonable person after fully, fairly, and carefully considering all of the evidence or lack of evidence." Finally, instruction 25 directed the jury to "fully and fairly" consider the evidence in light of all the instructions and explained that the jury has an opportunity to present questions to the court after reviewing the "evidence and instructions."
We presume that a jury follows the trial court's instructions. The jurors in Motley's case obtained an accurate statement of law directing them to consider all relevant evidence for the challenged element. Jurors' consideration of evidence only of placement conditions and treatment options as they related to proof of this element was limited by instruction 7. All other admitted evidence relevant to Motley's likelihood of reoffending remained available to the jury for its consideration. Therefore, Motley has failed to establish a "manifest error" affecting a constitutional right.
Carnation Co. v. Hill, 115 Wn.2d 184, 187, 796 P.2d 416 (1990).
We affirm.