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State v. Hawker

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1022 (Wash. Ct. App. 2011)

Opinion

No. 61479-7-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for Whatcorn County, No. 07-1-01348-5, Steven J. Mura, J., entered March 3, 2008.


Reversed and remanded by unpublished opinion per Cox, J., concurred in by Dwyer, C.J., and Leach, J.


Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. Here, the court conducted voir dire of three members of the venire in chambers without first applying and weighing the five factors required by State v. Bone-Club. A failure to conduct a Bone-Club analysis requires reversal in all but the most exceptional circumstances. There are none here. We reverse Hawker's conviction and remand for a new trial.

The State charged Tyler Hawker with second degree rape. During voir dire, when defense counsel asked the potential jurors whether anyone "would have a tough time sitting through a rape trial," the court interrupted:

Let me interject one thing here. Ladies and gentlemen, I know there are three jurors who have indicated to the court they have some things that they wish to talk in chambers about in a more private setting, so if you're one of these people and any question that's asked if you feel you need to give an answer and you wish, for some reason you're hesitant to in front of the big crowd, if you haven't already given us your number please raise your hand and just say I'd rather answer that question in a more private setting. Then we can talk to you later at a different time.

Report of Proceedings (January, 29, 2008) at 33-34.

When defense counsel finished questioning the panel of potential jurors, the court stated:

There are three individuals who indicated that they had some matters they wanted to address in a more private setting. If we recess and call you in one at a time into my chambers, is there anyone here present in the courtroom that would have any objection to that?

Id. at 79.

No one responded. Defense counsel agreed that it was "acceptable." The court, prosecutor, and defense counsel questioned three potential jurors in chambers and on the record. After returning to the courtroom, the court and attorneys met at an unrecorded side bar to conclude jury selection. The jury eventually found Hawker guilty as charged.

None of the three potential jurors questioned in chambers was seated on the jury.

Hawker appeals.

RIGHT TO PUBLIC TRIAL

Hawker contends the court violated his constitutional right to a public trial 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 defendant's constitutional right to a public trial is a question of law, subject to de novo review.

State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).

Article I, section 22 of the Washington State Constitution 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. Although the public trial right is not absolute, Washington courts strictly guard it to assure that proceedings occur outside the public courtroom only "under the most unusual circumstances."

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 (quoting Bone-Club, 128 Wn.2d at 259); 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).

Id. at 174 (citing Orange, 152 Wn.2d at 814).

The State concedes that questioning potential jurors privately in chambers without a Bone-Club analysis violates a defendant's right to a public trial. Here, the trial court stated concern for the privacy of the prospective jurors. But the record does not show that the court explicitly considered or made findings justifying private voir dire outside of the courtroom. This was error.

The parties disagree as to the proper remedy. Relying on State v. Momah, the State argues that reversal is not required when the defendant consents to, actively participates in, and benefits from, the questioning of jurors privately in chambers. Hawker argues that State v. Strode, a plurality opinion issued the same day as Momah, requires reversal and remand for a new trial. 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.

Id. at 145-46.

Id. at 145, 156.

Id. at 156.

Id. at 151.

Id. at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) ("The record shows [Momah] intentionally relinquished a known right.").

Strode involved "unexceptional circumstances." The trial court and counsel questioned potential jurors individually in chambers, out of concern for juror privacy. 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.

Id. at 224.

Id. at 228.

Id. at 231-32 (Fairhurst, J., concurring).

Id. 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.

Id. 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 claims that Momah controls the outcome here because the trial court and defense counsel were aware of and safeguarded Hawker's public trial right, Hawker consented to, participated in and benefited from the questioning in chambers, and Hawker's trial was not unfair. We disagree.

First, the record does not support the State's assertion that the court or counsel considered Hawker's public trial right. There simply is no reference in the record to that 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 Hawker's public trial right on the record, his failure to object is meaningless. Third, although Hawker participated in the closed proceedings, this merely reflects compliance with the procedure established by the court. This does not constitute waiver of the constitutional right. Therefore, this case falls into the category of cases requiring reversal because of the trial court's failure to conduct a Bone-Club analysis on the record.

Bone-Club 128 Wn.2d at 261 (quoting Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 39, 640 P.2d 716 (1982)).

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, a new trial is the proper remedy. We reverse Hawker's conviction and remand for further proceedings consistent with this opinion.

On appeal, Hawker also assigns error, both through counsel and pro se, to the prosecutor's examination of witnesses and arguments, to defense counsel's failure to make certain objections, and to matters concerning trial testimony and the procedure at sentencing. In light of our disposition, we do not reach these claims.


Summaries of

State v. Hawker

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1022 (Wash. Ct. App. 2011)
Case details for

State v. Hawker

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. TYLER RAY HAWKER, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1022 (Wash. Ct. App. 2011)
160 Wash. App. 1022