Opinion
No. 60153-9-I.
Filed: December 20, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 06-1-10415-0, Nicole Maclnnes, J., entered June 8, 2007.
Reversed and remanded by unpublished opinion per Ellington, J., concurred in by Leach, A.C.J., and Grosse, J.
Chancey Banks challenges his conviction for robbery in the second degree, contending the court violated his right to public trial by conducting individual voir dire of one prospective juror in chambers. We agree, reverse, and remand for a new trial.
BACKGROUND
The State charged Banks with second degree robbery and second degree assault of Cynthia Crumb.
Jury voir dire began in open court. In explaining the process, the judge informed the venire about the option to discuss sensitive matters privately:
[I]f there's anything at all that you would feel more comfortable talking about outside the presence of the other prospective jurors, just say that. . . . [S]ay I'd really rather talk about that privately, and we can arrange that easily, and do it at a break or before we pick up again over the noon hour. It's a very common thing for jurors to ask. So please don't be hesitant or be embarrassed to do that. We are not here to embarrass you. We don't want to ask a lot of private questions, but there are some things we need to get a little more information about.
Report of Proceedings (RP) (May 22, 2007) at 9-10.
The judge later reminded the prospective jurors they were "welcome to ask to talk about this privately."
Id. at 16.
During the prosecutor's questioning, one panelist indicated she had been the victim of a violent crime in the mid-eighties. When the prosecutor asked whether that was "something you'd rather not —," the venire member nodded. The prosecutor said, "All right. We can follow up."
Id. at 76.
Id. at 76-77.
At the conclusion of questioning in open court, the court, counsel, court reporter and Juror 3 went into chambers, where the court invited the prospective juror to talk about the incident. Juror 3 revealed that she had been attacked in her bed by an intruder with a knife or a screwdriver. The prospective juror stated the experience would have no bearing on her ability to be fair in the case. Neither the prosecutor nor defense counsel asked any questions or sought to excuse the prospective juror. The court told her to return to the jury box. The remainder of jury selection occurred in open court. Neither party challenged Juror 3, who apparently was seated.
The court explained the break to the venire: "[J]uror number 3 wanted to speak privately. So we have to talk about that privately. So I'm going to do — normally this isn't — we take you away, and then bring you back, but since we're having to bring number three back, maybe we can go into chambers with the court reporter, and we are going to talk to you back there. So the rest of you, you just got to sit tight." Id. at 104.
After a three-day trial, the jury found Banks guilty as charged.
DISCUSSION
Banks contends the court violated his constitutional right to a public trial by conducting a portion of jury selection in chambers.
The state and federal constitutions guarantee the right to a public trial. Article I, section 22 of the Washington Constitution provides: "In criminal prosecutions the accused shall have the right . . . to have a speedy public trial." The Sixth Amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." These provisions assure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. "While the right to a public trial is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances."
Additionally, 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 secures the public's right to open and accessible proceedings, and is not at issue here.
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).
State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009); see also State v. Easterling, 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006); Brightman, 155 Wn.2d at 514; In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004).
To protect the defendant's right to a public trial, our Supreme Court held in State v. Bone-Club that a court must apply a five-part test before closing part of a criminal trial. This requirement applies to closure of jury selection. In all but the most exceptional circumstances, closing voir dire without employing the Bone-Club analysis is reversible error for which prejudice is presumed and remand for a new trial is required.
128 Wn.2d 254, 906 P.2d 325 (1995).
The Bone-Club analysis provides: "'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 of Washington v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)); see also Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five-part analysis under article I, section 10).
Orange, 152 Wn.2d at 807-14.
Strode, 167 Wn.2d at 231 (citing Orange, 152 Wn.2d at 814).
Further, the First and Sixth amendments to the United States Constitution also require that voir dire of prospective jurors be open to the public. In Presley v. Georgia, the United States Supreme Court held that a court must consider reasonable alternatives and articulate findings specific enough to permit review before closing jury selection proceedings. In the absence of such consideration and findings, the proper remedy is reversal of the defendant's conviction.
___ U.S. ___, 130 S. Ct. 721, 725, ___ L. Ed. 2d ___ (2010).
Id.
Here, although the record indicates the court conducted questioning in chambers to protect the prospective juror's privacy, the court did not undertake the required Bone-Club analysis or otherwise consider less restrictive alternatives to accomplish this purpose, and made no findings supporting closure. This was error.
Nevertheless, the State argues that as in State v. Momah, the error is not structural, caused no prejudice, and does not require reversal. Momah is distinguishable. That case was characterized by wide publicity, and the defense expressed grave concern that prospective jurors with knowledge of the case would contaminate the entire venire if questioned in open court. Momah affirmatively agreed to private questioning in chambers for those prospective jurors who indicated prior knowledge. Momah's counsel sought to expand the process to all potential jurors, actively participated in the private questioning and exercised numerous challenges for cause. Although the court failed to conduct a precise Bone-Club analysis before the in-chambers voir dire, the record showed that the court recognized and balanced the competing interests in a public trial and an impartial jury, and narrowly tailored the closure to accommodate only those jurors who indicated they might not be impartial. The record further indicated that Momah was aware of his rights and made a deliberate and tactical decision "to achieve what he perceived as the fairest result."
167 Wn.2d 140, 217 P.3d 321 (2009), cert. denied, 131 S. Ct. 160 (2010).
Id.
Id. at 147.
Id. at 156.
Id.
The State argues Banks' case resembles Momah because, as in that case, the court conducted private voir dire in chambers to ensure an impartial jury. But this would be true only if questioning was intended to ensure this particular juror could be impartial. The chief purpose here was clearly to avoid embarrassing the juror.
RP (May 22, 2007) at 10 ("We are not here to embarrass you. We don't want to ask a lot of private questions, but there are some things we need to get a little more information about.").
The State also points out that "defense counsel clearly had the opportunity to object, but did not." But this is different from "be[ing] given an opportunity to object," as required by Bone-Club. Further, this ignores Strode, in which the court found reversible error even though the defendant failed to object.
Br. of Resp't at 11.
Bone-Club, 128 Wn.2d at 258 (emphasis added) (quoting Eikenberry, 121 Wn.2d at 210-11).
See Strode, 167 Wn.2d at 229.
The State also contends that Banks, like Momah, deliberately and tactically "subverted [his] interest in open courtrooms to his interest in finding out what Juror No. 3 had to say." This presumes Banks was aware of his right to an open and public trial, including voir dire. But unlike in Momah, the record is silent on that point.
Br. of Resp't at 11.
Banks' case is not like Momah. It is, instead, like Strode. And under Strode, the failure to conduct a Bone-Club analysis before conducting voir dire in chambers requires automatic reversal and remand for a new trial.
Strode, 167 Wn.2d at 231, 236 (Fairhurst, J., concurring in result because, unlike in Momah, the record showed the court failed to weigh competing interests before closing voir dire).
The State contends, however, that any violation of the public trial right resulting from a brief in-chambers voir dire of a single prospective juror was de minimis. Although federal courts have adopted a de minimis trial closure standard, there is no support in decisions of our Supreme Court for finding a deliberate closure without proper analysis to be a de minimis violation.
See Easterling, 157 Wn.2d at 183 (Madsen, J., concurring) (citing numerous federal cases in support of a de minimis trial closure standard).
See, e.g., Strode, 167 Wn.2d at 230 (refusing to consider closure de minimis because it was neither "brief" nor "inadvertent"); State v. Erickson, 146 Wn. App. 200, 209, 189 P.3d 245 (2008) ("Because the decision to remove individual questioning of prospective jurors outside the courtroom has more than an inadvertent or trivial impact on the proceedings, we hold that it acts as a closure for purposes of Bone-Club.") (petition for review pending); Duckett, 141 Wn. App. at 809 ("The closure here was deliberate, and the questioning of the prospective jurors concerned their ability to serve; this cannot be characterized as ministerial in nature or trivial in result.") (petition for review pending); State v. Leyerle, No. 37086-7-II, 2010 WL 4489420, at *4 (Wash. Ct. App. Nov. 10, 2010) (rejecting argument that a two-minute, videotaped voir dire with a prospective juror in a public hallway was a de minimis violation of public trial right).
The State also urges us to hold that "as to in camera screenings of jurors as to their private personal histories, a new trial should not be ordered where it is apparent that private inquiry was warranted to protect the juror's privacy." Our Supreme Court rejected the same argument in Strode. The privacy interest of jurors is one of the competing interests a court must weigh before closing the courtroom, but the court must engage in the weighing analysis.
Br. of Resp't at 18.
Id. at 235-36 (Fairhurst, J., concurring); accord, State v. Coleman, 151 Wn. App. 614, 623, 214 P.3d 158 (2009); State v. Duckett, 141 Wn. App. 797, 808, 173 P.3d 948 (2007); see also State v. Wise, 148 Wn. App. 425, 443-44, 200 P.3d 266 (2009) (stating, "We disagree with Wise that a jury summons negated a Washington citizen's privacy right," and holding the trial court could not compel potential jurors to waive privacy protections under HIPAA), review granted, 236 P.3d 207 (2010).
Because the court improperly excluded the public from a portion of jury selection without applying the Bone-Club test, we must reverse Banks' conviction and remand for a new trial.
WE CONCUR