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State v. Wightman

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1021 (Wash. Ct. App. 2011)

Opinion

No. 58998-9-I.

Filed: March 7, 2011.

Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-01957-6, Charles R. Snyder, J., entered October 9, 2006.


Reversed and remanded by unpublished opinion per Dwyer, C.J., concurred in by Cox and Leach, JJ.


Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. In this case, the trial court conducted individual voir dire in chambers without first addressing and weighing the five factors required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Because the failure to conduct a Bone-Club analysis before closing criminal trial proceedings requires reversal in all but the most exceptional circumstances, we reverse Steven Wightman's conviction for child molestation in the first degree and remand.

I

The State charged Steven Wightman with child molestation in the first degree for conduct involving his eleven-year-old son.

At the outset of Wightman's trial, the court provided the jury with a written questionnaire to facilitate jury selection. The questionnaire's cover sheet invited the jurors to indicate a preference for discussing personal matters "in private." The questionnaires permitted prospective jurors to designate specific questions they wished to discuss privately. Based on the responses to the questionnaires, the court invited eight prospective jurors into chambers individually. The court, the defendant, counsel, and the court reporter were also present. Defense counsel participated in questioning the jurors on the record. Of the eight prospective jurors individually questioned, one was excused for hardship and three were excused for cause.

The cover sheet provided:

Some of these questions may call for information of a personal nature that you may not want to discuss in public. If you feel that your answer to any question might be embarrassing to you, you may indicate that you would prefer to discuss your answer in private. Clerk's Papers at 108.

Jury selection continued in open court. Following a two-day trial, Wightman was convicted by the jury as charged. He appeals.

II

Wightman contends that the trial court violated his right to a public trial when it conducted voir dire of individual jurors in chambers. Whether a trial court procedure violates a criminal defendant's right to a public trial is a question of law that we review de novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).

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. 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)). While the right to a public trial is not absolute, Washington courts strictly guard it to assure that proceedings occur outside the public courtroom in only the most unusual circumstances. State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009); Easterling, 157 Wn.2d at 174-75; In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004).

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. In this case, Wightman alleges only a violation of his personal rights under article I, section 22.

To protect the defendant's right to a public trial, our Supreme Court held in State v. Bone-Club that a court must analyze and weigh five factors before closing part of a criminal trial. This requirement applies to the closure of jury selection. Orange, 152 Wn.2d at 807-14. Here, the record reflects that the court conducted questioning in chambers to protect the privacy of prospective jurors without first undertaking the required Bone-Club analysis.

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 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

The State contends that, notwithstanding this error, Wightman is not entitled to appellate relief. As in State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009), cert. denied, 131 S. Ct. 160 (2010), the State avers the error was not a structural one and that it caused no prejudice. Thus, the State continues, it does not require reversal. The State points out that Wightman participated in the process. The State further contends that Wightman also benefited from the procedure because it ensured the impartiality of the jury.

In its initial briefing, the State additionally argued that no trial closure occurred and that any violation of the public trial right in this case was de minimus. It appears to have abandoned both arguments in its supplemental briefing.

Momah presented unusual circumstances. That case was characterized by wide publicity, which led to the defense's concern that prospective jurors with knowledge of the case would contaminate the entire venire if questioned in open court. Momah, 167 Wn.2d at 145-46. 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 that they could not be fair. Momah, 167 Wn.2d at 145-46. Although the trial court did not explicitly analyze the Bone-Club factors before closing the courtroom, our Supreme Court affirmed Momah's conviction. Momah, 167 Wn.2d at 145, 156. In doing so, the court observed that the trial court and trial counsel recognized and "carefully considered" Momah's competing article I, section 22 rights. Momah, 167 Wn.2d at 156. In fact, the court observed, "Momah affirmatively assented to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it." Momah, 167 Wn.2d at 151. The court concluded that Momah's conduct indicated deliberate, tactical choices to protect his right to an impartial jury. Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) ("The record shows [Momah] intentionally relinquished a known right."). The court found that these circumstances distinguished Momah's case from the court's previous public trial cases. Momah, 167 Wn.2d at 151.

Although the process employed herein may have theoretically furthered Wightman's interest in an impartial jury, the record reveals that the primary purpose of closure was to avoid embarrassing the jurors. And while Wightman acquiesced in the process established by the court, there is no indication he was given the opportunity to object or that the court recognized and balanced his competing interests. Absent any indication that the court or counsel considered Wightman's public trial right in reaching its decision, this case is controlled by Strode, not Momah.

In contrast to Momah, Strode presented an "unexceptional" set of facts. Strode, 167 Wn.2d at 223. The trial court and counsel, out of concern for juror privacy, individually questioned in chambers potential jurors who had been victims of a sexual offense or accused of committing a sexual offense. Strode, 167 Wn.2d at 224. 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." Strode, 167 Wn.2d at 228. Nor did Strode engage in behavior that indicated a deliberate, tactical choice or a waiver of his public trial right. Strode, 167 Wn.2d at 231-32 (Fairhurst, J., concurring). The court therefore reversed Strode's conviction and remanded for a new trial. Strode, 167 Wn.2d at 231.

Pursuant to Strode, in all but the most exceptional circumstances, closing voir dire without employing the Bone-Club analysis constitutes error for which prejudice is presumed and remand for a new trial is required. Strode, 167 Wn.2d at 231 (citing Orange, 152 Wn.2d at 814). Here, as in Strode, the record does not indicate that the trial court considered Wightman's public trial right in light of competing interests. Nor does the record establish that Wightman's conduct amounted to a knowing waiver of the right to a public trial. Accordingly, because the court improperly excluded the public from a portion of jury selection without applying the Bone-Club analysis, Strode requires that we reverse Wightman's conviction and remand for further proceedings consistent with this opinion.

On appeal, Wightman additionally assigns error to the trial court's comment to the victim at the conclusion of his testimony and contends his trial counsel rendered ineffective assistance by opening the door to prejudicial testimony regarding his sexual interest in adolescents. In light of our disposition, we need not reach these claims. In a pro se statement of additional grounds, Wightman challenges his former spouse's testimony that she believed her son and reasserts the ineffective assistance of counsel claim addressed by counsel. Similarly, we need not address these arguments.


Summaries of

State v. Wightman

The Court of Appeals of Washington, Division One
Mar 7, 2011
160 Wn. App. 1021 (Wash. Ct. App. 2011)
Case details for

State v. Wightman

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. STEVEN EDWARD WIGHTMAN, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 7, 2011

Citations

160 Wn. App. 1021 (Wash. Ct. App. 2011)
160 Wash. App. 1021