State v. Bennett

275 P.3d 1224

STATE of Washington, Respondent,

v.Vernon Wayne BENNETT, Appellant.

No. 41564–0–II.

Court of Appeals of Washington, Division 2.

May 8, 2012.

Manek R. Mistry, Backlund & Mistry, Jodi R. Backlund, Backlund & Mistry, Olympia, Counsel for Appellant.

Sara I. Beigh, Lewis County Prosecutors Office, Chehalis, Counsel for Respondent.

PUBLISHED IN PART OPINION

VAN DEREN, J.

¶ 1 Vernon Bennett appeals his convictions for unlawful delivery of a controlled substance, methamphetamine, to a minor, and unlawful delivery of methamphetamine to Ashleigh Penfield, both with school bus route stop enhancements; furnishing liquor to a minor; and unlawful possession of a controlled substance, methamphetamine. He argues that the trial court violated his and the public's right to an open and public trial when it held an in-chambers conference to discuss jury instructions and that the trial court erred when it imposed a school bus route stop sentence enhancement on his methamphetamine delivery to a minor conviction.¹ Finding no error, we affirm.

FACTS

¶ 2 According to Ashleigh ² Penfield, in November 2008, she and Chelsea Hensley ³, who was 17 at the time, went to Bennett's residence to smoke methamphetamine. Following an investigation and interviews with the persons involved, the State charged Bennett with unlawful delivery of a controlled substance, methamphetamine, to a minor, Hensley (count I), and unlawful delivery of methamphetamine to Penfield (count II), both with school bus route stop enhancements; furnishing liquor to a minor, Hensley, between November 21 and November 22 (count III); and unlawful possession of a controlled substance, methamphetamine, on November 23 (count IV).

¶ 3 At the close of the evidence at trial, the trial court judge and counsel met in chambers ⁴ to “finalize” the jury instructions. 2 Report of Proceedings (RP) at 145. After the conference, the trial court stated that it and the parties “had an opportunity to go over the instructions” and that the instructions had “been copied and collated.” 2 RP at 145. Bennett stated on the record in open court that he had no objections to the instructions.

¶ 4 The jury convicted Bennett as charged. He appeals.

ANALYSIS

Public Trial Right

¶ 5 Bennett argues that the in-chambers discussion between counsel and the trial court about jury instructions violated his and the public's right to open and public trials under the state and federal constitutions. On the sparse record on appeal in this case, we disagree.

¶ 6 Whether a violation of the public trial right exists is a question of law we review de novo. State v. Momah, 167 Wash.2d 140, 147, 217 P.3d 321 (2009), cert. denied, ––– U.S. ––––, 131 S.Ct. 160, 178 L.Ed.2d 40 (2010). The state and federal constitutions guarantee both criminal defendants and the public the right to open and public trials. U.S. Const. amends. I, VI; Wash. Const. art. I, §§ 10, 22.

¶ 7 Washington appellate opinions have recognized a link between a criminal defendant's right to be present during critical stages of trial and the defendant's right to a public trial; this link, however, originates, without citation to authority, from State v. Rivera, 108 Wash.App. 645, 653, 32 P.3d 292 (2001). As a result, Washington courts have generally held that the defendant's public trial right encompasses “ ‘adversary proceedings' ” during trial, such as evidentiary phases, suppression hearings, voir dire, and jury selection. State v. Sadler, 147 Wash.App. 97, 114, 193 P.3d 1108 (2008) ⁵ (emphasis omitted) (internal quotation marks omitted) (quoting Rivera, 108 Wash.App. at 652, 32 P.3d 292). The corollary of this is usually stated as a rule that this right does not include “hearing[s] on purely ministerial or legal issues that do not require the resolution of disputed facts.” Sadler, 147 Wash.App. at 114, 193 P.3d 1108. But, even assuming a link between the defendant's right to be present during critical stages of trial and the public trial right exists, we caution against an overbroad reading of case law suggesting that the two rights are coextensive.

¶ 8 As our Supreme Court has recently observed, under the federal constitution, a criminal “defendant has a right to be present at a proceeding ‘whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge’ ” but “does not have a right to be present when his or her ‘presence would be useless, or the benefit but a shadow.’ ” State v. Irby, 170 Wash.2d 874, 881, 246 P.3d 796 (2011) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105–07, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964)). For example, under the federal constitution a defendant has a right to be present during jury selection because “ ‘it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether.’ ” Irby, 170 Wash.2d at 883, 246 P.3d 796 (quoting Snyder, 291 U.S. at 106, 54 S.Ct. 330).

¶ 9 In contrast, in 2005 our Supreme Court stated the defendant's public trial right in broader terms in that it “serves to ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and to discourage perjury.” State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005); see also State v. Leyerle, 158 Wash.App. 474, 479, 242 P.3d 921 (2010) (stating that the public trial right “ensure[s] a fair trial, foster[s] public understanding and trust in the judicial system, and give[s] judges the check of public scrutiny”) (citing Brightman, 155 Wash.2d at 514, 122 P.3d 150; Dreiling v. Jain, 151 Wash.2d 900, 903–04, 93 P.3d 861 (2004)).

¶ 10 Recently, our Supreme Court also observed that the public's right encompasses circumstances where the public's presence “ ‘plays a significant positive role in the functioning of the particular process,’ ” such as a criminal “trial or a hearing on a motion or other similar proceeding.” Tacoma News, Inc. v. Cayce, 172 Wash.2d 58, 72–73, 256 P.3d 1179 (2011) (quoting Press–Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)). Further, as the United States Supreme Court has observed:

The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

Press–Enter. Co. v. Superior Court, 464 U.S. 501, 508, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984).

¶ 11 Although the defendant's right to be present and the defendant's and the public's right to an open and public trial serve the same normative value—i.e., ensuring a fair trial—they differ in function. The defendant's right to be present encompasses situations in which he may actively contribute to his own defense, such as offering his input to his counsel during jury selection and the exercise of preemptory challenges, as well as critical stages of trial where his presence “ ‘has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,’ ” such as potentially convincing jurors to change their votes upon polling at the return of their verdict. Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 105–06, 54 S.Ct. 330); see, e.g., Irby, 170 Wash.2d at 883, 246 P.3d 796; State v. Rice, 110 Wash.2d 577, 616, 757 P.2d 889 (1988); see also Rice v. Wood, 77 F.3d 1138, 1143 n. 5 (9th Cir.1996) (citing cases discussing the potential effect of the defendant's presence on the return of the verdict and jury polling). In contrast, the defendant's and the public's right to open and public trials also encompasses circumstances in which the public's mere presence passively contributes to the fairness of the proceedings, such as deterring deviations from established procedures, reminding the officers of the court of the importance of their functions, and subjecting judges to the check of public scrutiny. See, e.g., Brightman, 155 Wash.2d at 514, 122 P.3d 150; Leyerle, 158 Wash.App. at 479, 242 P.3d 921.

¶ 12 Thus, even in proceedings involving purely legal matters, the public's presence may ensure the fairness of such proceedings, although the same cannot be said for ministerial or administrative matters that do not impact the defendant's rights.⁶ But see In re Det. of Ticeson, 159 Wash.App. 374, 383–86, 246 P.3d 550 (2011) (holding that Washington law historically supports in-chambers conferences on purely legal issues).

¶ 13 Sadler is broadly cited for the proposition that in-chambers conferences to discuss purely legal or ministerial matters do not implicate the right to open and public trials, but Sadler rejected the State's argument that a hearing on a Batson ⁷ challenge need not be held in public. 147 Wash.App. at 116–18, 193 P.3d 1108. Consistent with our Supreme Court's statements about the defendant's and the public's right to public trials, we held that “[b]ecause a Batson hearing involves factual and credibility determinations and is relevant to the fairness and integrity of the judicial process as a whole ... the right to public trial exists in this context.” Sadler, 147 Wash.App. at 118, 193 P.3d 1108 (emphasis added).

¶ 14 In State v. Sublett, 156 Wash.App. 160, 181–82, 231 P.3d 231, review granted, 170 Wash.2d 1016, 245 P.3d 775 (2010), we addressed whether an in-chambers conference to respond to a jury question that arose during deliberations about a particular jury instruction...