State v. Anderson

187 Wash.App. 706

350 P.3d 255

STATE of Washington, Respondent

v.Calvert R. ANDERSON, Jr., Appellant.

No. 45497–1–II.

Court of Appeals of Washington, Division 2.

May 19, 2015.

Lisa Elizabeth Tabbut, Attorney at Law, Winthrop, WA, for Appellant.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.

Opinion

MAXA, P.J.

¶ 1 Calvert Anderson appeals his convictions for third degree assault and obstructing a law enforcement officer. During voir dire, Anderson successfully challenged four prospective jurors for cause at a sidebar conference. We hold that the trial court violated Anderson's constitutional right to a public trial by allowing counsel to make juror challenges for cause at a sidebar conference without first conducting a Bone–Club¹ analysis. Therefore, we reverse Anderson's convictions and remand for a new trial.

FACTS

¶ 2 The State charged Anderson with third degree assault and obstructing a law enforcement officer after he scuffled with police officers. A jury convicted Anderson of both crimes.

¶ 3 During voir dire, Anderson challenged four prospective jurors for cause at a sidebar conference. The trial court dismissed all four challenged prospective jurors.² No transcription of the sidebar conference appears in the record, but the trial court later noted the challenges and resulting dismissals for the record. The trial court did not conduct a Bone–Club analysis before the sidebar conference.

¶ 4 Anderson appeals his convictions.

ANALYSIS

¶ 5 Anderson argues that the trial court violated his public trial right by allowing him to challenge prospective jurors for cause at a sidebar conference, when spectators in the courtroom presumably could not hear what was occurring.³ We agree and hold that (1) the sidebar conference addressing juror challenges for cause constituted a closure of courtroom proceedings because the public could not hear what occurred, (2) under the experience and logic test, challenging jurors for cause implicates the public trial right, and (3) the trial court did not establish any justification for closing the for cause juror challenge proceedings.

A. Public Trial Right—General Principles

¶ 6 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012). In general, this right requires that certain proceedings be held in open court unless the trial court first applies on the record the five-factor test set forth in State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995), and finds that a closure of the courtroom is justified. A public trial right violation is structural error, and we presume prejudice where a trial court closes trial proceedings without conducting a Bone–Club analysis. Wise, 176 Wash.2d at 13–14, 288 P.3d 1113.

¶ 7 In analyzing whether the trial court has violated a defendant's public trial right, we must determine whether (1) the trial court closed the proceedings to the public, (2) the proceedings implicate the public trial right, and (3) the closure was justified. State v. Smith, 181 Wash.2d 508, 513–14, 334 P.3d 1049 (2014).⁴ Whether the trial court has violated a defendant's right to a public trial is a question of law that we review de novo. Id. at 513, 334 P.3d 1049.

B. Closure of Proceedings

¶ 8 Anderson argues that the trial court effectively closed the proceedings by allowing him to challenge jurors for cause at a sidebar conference, even though the courtroom remained open to the public. We agree.

¶ 9 A defendant's public trial right can be violated only if there has been a closure of court proceedings.

State v. Njonge, 181 Wash.2d 546, 556, 334 P.3d 1068, cert. denied, ––– U.S. ––––, 135 S.Ct. 880, 190 L.Ed.2d 711 (2014) (stating that “[a] defendant asserting violation of his public trial rights must show that a closure occurred.”).

¶ 10 It is clear that “[a] closure occurs ‘when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.’ ” Smith, 181 Wash.2d at 520, 334 P.3d 1049 (quoting State v. Lormor, 172 Wash.2d 85, 93, 257 P.3d 624 (2011) ). But such a closure of the entire courtroom is not the only action that constitutes a closure. A closure also occurs when the public is excluded from particular proceedings within a courtroom. State v. Gomez, No. 90329–8, 183 Wash.2d 29, 33, 347 P.3d 876, 879, 2015 WL 1590302, at *2 (Wash. Apr. 9, 2015) ; Lormor, 172 Wash.2d at 92, 257 P.3d 624. As a result, holding proceedings in areas inaccessible to the public, such as the judge's chambers, also qualifies as a closure.⁵ Id.; State v. Strode, 167 Wash.2d 222, 226, 217 P.3d 310 (2009) ; see also State v. Leyerle, 158 Wash.App. 474, 483, 242 P.3d 921 (2010) (holding that proceedings conducted in a hallway adjacent to the courtroom were closed to the public).

¶ 11 The record here shows that the trial court neither barred the public from the courtroom during the sidebar conference nor held the conference in a physically inaccessible location. However, the entire purpose of a sidebar conference is to prevent anyone other than those present at the sidebar—an audience typically limited to the judge, counsel, and perhaps court staff—from hearing what is being said. The question we must decide is whether preventing the public from hearing a proceeding rises to the level of a closure.⁶

¶ 12 To determine whether the trial court closed the proceedings, we examine whether the trial court's action actually impeded public scrutiny. See, e.g., In re Pers. Restraint of Orange, 152 Wash.2d 795, 808–09, 100 P.3d 291 (2004). In State v. Andy, our Supreme Court addressed closure in this manner, focusing on the question of whether public access actually was thwarted. 182 Wash.2d 294, 301–02, 340 P.3d 840 (2014). The court examined the impact of a sign placed outside the courtroom stating that the courtroom would be closed at times it was in fact still in session. Id. at 300–301, 340 P.3d 840. To determine whether this misleading placement of the sign was a closure, the court analyzed whether the public actually was excluded from the proceedings. The court noted that the trial judge made express findings that “the public was able to access the courtroom at all times during Andy's trial and that no member of the public was deterred” from entry. Id. at 301, 340 P.3d 840. The court concluded that where the trial court's action “presented no obstacle to members of the public who wished to attend the trial,” there was no closure. Id. at 302, 340 P.3d 840.

¶ 13 Unlike the sign in Andy, the sidebar conference here presented a clear obstacle to public scrutiny of Anderson's challenges. While the trial court did not physically restrict access to the courtroom, it did prevent meaningful access to the proceedings by conducting the challenges for cause in a manner such that the public could not hear what was occurring. Taking juror challenges at sidebar in this way thwarts public scrutiny just as if they were done in chambers or outside the courtroom. We hold that the sidebar conference constituted a closure of the juror selection proceedings because the public could not hear what was occurring.

C. Implication of Public Trial Right

1. General Principles

¶ 14 If a proceeding has been closed to the public, we next must determine whether that proceeding implicates the public trial right. State v. Sublett, 176 Wash.2d 58, 71, 292 P.3d 715 (2012). “[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial or constitute a closure if closed to the public.”Id.

¶ 15 To address whether there was a court closure implicating the public trial right, we employ a two-step process. State v. Wilson, 174 Wash.App. 328, 335–37, 298 P.3d 148 (2013). First, we consider whether the particular proceeding at issue “falls within a category of proceedings that our Supreme Court has already acknowledged implicates a defendant's public trial right.” Id. at 337, 298 P.3d 148 ; see also Wise, 176 Wash.2d at 11–12, 288 P.3d 1113. Second, if the proceeding at issue does not fall within an acknowledged category implicating the public trial right, we determine whether the proceeding implicates the public trial right using the “experience and logic” test our Supreme Court adopted in Sublett. Wilson, 174 Wash.App. at 335, 298 P.3d 148.

2. Juror Challenges Distinguished from Voir Dire

¶ 16 Anderson argues that challenges for cause fall within a category of proceedings to which the public trial right attaches under existing case law. Anderson bases his argument on Supreme Court cases establishing that voir dire implicates a defendant's public trial right. See, e.g., Wise, 176 Wash.2d at 11, 288 P.3d 1113 ; Strode, 167 Wash.2d at 227, 217 P.3d 310. He argues that challenges for cause are part of the voir dire process and that the public trial right therefore attaches to such challenges as well. We disagree.

¶ 17 Contrary to Anderson's position, challenges for cause are not part of voir dire. In Wilson, we held that only the voir dire aspect of jury selection automatically implicates the public trial right. 174 Wash.App. at 338–40, 298 P.3d 148. We used the term “voir dire” as synonymous with the actual questioning of jurors, referring to the “ ‘voir dire’ of prospective jurors who form the venire.” Wilson, 174 Wash.App. at 338, 298 P.3d 148 ; see also State v. Slert, 181 Wash.2d 598, 605, 334 P.3d 1088 (2014) (plurality opinion quoting this language with approval). In State v. Marks, we relied in part on this language from Wilson in holding that peremptory challenges are not part of voir dire. 184 Wash.App. 782, 787–88, 339 P.3d 196, petition for review filed, No. 91148–7 (Wash. Dec. 29, 2014). Like the peremptory challenges at issue in Marks, challenges for cause constitute a distinct proceeding that does not involve the questioning of jurors. See CrR 6.4 ...