Opinion
No. 31226-7-III.
11-02-2017
STATE of Washington, Respondent, v. Kelly E. SMALL, Appellant.
Susan Marie Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA, 99223-3005, for Appellant. Branden Eugene Platter, Okanogan County Prosecutor's Office, P.O. Box 1130, Okanogan, WA, 98840-1130, for Respondent.
Susan Marie Gasch, Gasch Law Office, P.O. Box 30339, Spokane, WA, 99223-3005, for Appellant.
Branden Eugene Platter, Okanogan County Prosecutor's Office, P.O. Box 1130, Okanogan, WA, 98840-1130, for Respondent.
OPINION PUBLISHED IN PART
Korsmo, J.
¶1 Kelly Small appeals from his Okanogan County convictions for aggravated first degree murder, first degree rape, and first degree burglary, primarily challenging the jury selection process and the sufficiency of the evidence of premeditation. In the published portion of this opinion, we reject his public trial argument. In the unpublished section, we affirm the convictions and remand to superior court to amend his burglary sentence and potentially reconsider Mr. Small's legal financial obligations.
The evidentiary facts necessary to resolve the unpublished issues will be discussed in the unpublished portion of this opinion.
¶2 These convictions arose from cold case investigations in the 1998 death of S.B., a 50-year-old woman living in Omak, and the 2006 sexual assault of B.M., who also was a resident of Omak. During the investigation into the 2006 crime, a detective in 2010 obtained a DNA sample from Mr. Small. The ensuing evaluation of that evidence connected Mr. Small to both the 1998 and 2006 crimes.
¶3 Both cases were charged under a single cause number. The trial court granted Mr. Small's motion to sever the two cases. The 2006 case involving B.M. was tried first during August 2012, with the jury convicting Mr. Small of rape, burglary, and forgery. This court affirmed the convictions in the ensuing appeal. The three charges involving S.B. were tried to a different jury beginning the following month. Although the aggravated murder charge did not include a request for a special sentencing proceeding, a large number of jurors had to be called in for each case due to the fact that they were tried close together in time and each had received significant local publicity. Jury selection took several days for each trial.
See State v. Small, noted at 198 Wash.App. 1008, 2017 WL 959538 (2017).
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¶4 During jury selection, the parties exercised peremptory challenges on paper by passing a sheet back and forth between counsel. The posttrial location of this document became a matter of some controversy. It was not listed on the clerk's file index, leading a clerk of the superior court to advise Mr. Small's appellate counsel that it was not on file. Mr. Small made a motion to add the e-mail exchange with the court clerk's office to the record in order to prove that the challenge sheet was not filed with the clerk. The prosecutor responded by filing an affidavit of the chief deputy clerk of court that contained the challenge sheet and an explanation that it had been filed with the clerk's office, but not indexed because it was not a "regular pleading." Our commissioner permitted supplementation of the record with both the e-mails and the chief deputy clerk's affidavit and seating chart. Clerk's Papers (CP) at 186-94.
¶5 Although the peremptory challenge procedure was conducted silently on paper, a record of jury selection was made at the completion of the process in conjunction with a renewed defense motion for change of venue. The court and parties agreed that both sides had exercised all of their peremptory challenges and that the jury seated for trial was the jury intended by the parties. Report of Proceedings (RP) at 972, 1006.
¶6 The jury found the defendant guilty on all three counts as charged, and all three of the charged aggravating factors were found. CP at 40-41. The jury also returned a special verdict that both the murder and the burglary were committed with sexual motivation. CP at 43. The trial court ultimately sentenced Mr. Small to life in prison without the possibility of parole for the aggravated murder conviction, and to a lesser concurrent term for the burglary conviction that was enhanced 24 months by the sexual motivation finding. The sentences were to be served consecutively to the rape conviction in this case and to the 380 month term imposed for the rape of B.M. CP at 19-20.
¶7 Mr. Small timely appealed to this court. A series of delays, including two remands from this court for the purpose of establishing facts surrounding the jury selection process, delayed the resolution of this appeal for more than four years. A panel ultimately considered the case without oral argument.
ANALYSIS
¶8 Mr. Small argues that his public trial rights were violated by the failure of the clerk to file the peremptory challenge document in a timely manner. We do not believe that the clerk's incorrect advice amounted to a public trial violation.
¶9 A criminal defendant's right to a public trial is found in art. I, § 22 of the Washington Constitution and the Sixth Amendment to the United States Constitution. Both provide a criminal defendant the right to a public trial by an impartial jury. The state constitution also provides that "[j]ustice in all cases shall be administered openly," which grants the public an interest in open, accessible proceedings, similar to rights granted in the First Amendment to the United States Constitution. WASH. CONST . art. I, § 10 ; State v. Lormor, 172 Wash.2d 85, 91, 257 P.3d 624 (2011). Whether an accused's constitutional public trial right has been violated is a question of law that we review de novo. State v. Easterling, 157 Wash.2d 167, 173-74, 137 P.3d 825 (2006).
¶10 It is clear that for-cause and peremptory challenges implicate the public trial right. State v. Love, 183 Wash.2d 598, 605-06, 354 P.3d 841 (2015), cert. denied, ––– U.S. ––––, 136 S.Ct. 1524, 194 L.Ed.2d 604 (2016). In Love ,the defendant argued silent peremptory challenges, even documented by a juror strike sheet, violated his right to a public trial. In disagreeing, the Love court noted:
[T]he public had ample opportunity to oversee the selection of Love's jury because no portion of the process was concealed from the public; no juror was questioned in chambers. To the contrary, observers could watch the trial judge and counsel ask questions of potential jurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneled jury. The transcript of the discussion about for cause challenges and the struck juror sheet showing the peremptory challenges are both publicly available.
Id.at 607, 354 P.3d 841 (emphasis added). The Love court held that written peremptory challenges "are consistent with the public trial right so long as they are filed in the public record." Id.
¶11 The facts here are similar to the facts in Love .In both cases, no processes were concealed from the public. Observers could watch the jury selection and evaluate the process from start to finish, including which venire jurors were excused, which were struck, and which were empaneled as jurors. But here, the documented record of the written peremptory challenges was not readily available to the public.
¶12 The relevant posttrial record establishes that the seating chart was never added to the computer index of documents maintained by the clerk of court and that appellate counsel for Mr. Small was erroneously told that it was not in the record. It was not until Small's counsel brought a motion to prove its absence that the prosecutor learned of this problem. Because counsel was misadvised about the seating chart, Small argues it was not available for public view and his right to a public trial was violated. The State, citing RCW 36.23.030, argues the seating chart is not required to be assigned a docket number, so the lack of a docket number is not determinative.
¶13 We resolve this issue in a practical manner consistent with the purposes and practicalities of public trial rights. At all times, the public could view the jury selection process that occurred in open court. After the notations on the seating chart were made, a member of the public could have requested and would have eventually received a copy of the seating chart. Here, once the erroneous advice was made known, the clerk's office was able to find and provide the document. If public trial rights required same-day receipt of requested peremptory challenge information, a copy of peremptory challenge discussions—which might take several days to transcribe—would be insufficient to satisfy a defendant's right to a public trial. But Love implies that the eventual public availability of such a transcript is sufficient. Love, 183 Wash.2d at 607, 354 P.3d 841. By extension, a temporarily misplaced written record of peremptory challenges does not render an open proceeding closed. In reaching this conclusion, we note that the seating chart was always in the clerk's office, albeit misplaced, and there was no courtaction that prevented a requesting party from obtaining a copy of the chart.
¶14 Accordingly, we conclude that there was no violation of Mr. Small's public trial right.
¶15 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Siddoway, J.
Lawrence-Berrey, A.C.J.