State v. Wilson

174 Wash.App. 328

298 P.3d 148

STATE of Washington, Respondent,

v.Joel Alexander WILSON, Appellant.

No. 41990–4–II.

Court of Appeals of Washington, Division 2.

April 2, 2013.

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

Lewis M. Schrawyer, Attorney at Law, Port Angeles, WA, for Respondent.

PART PUBLISHED OPINION

HUNT, J.

[174 Wash.App. 331]¶ 1 Joel Alexander Wilson appeals his jury trial convictions and sentences for 13 counts of first degree child rape of his ex-girlfriend's daughter, AH.¹ He argues that the trial court violated his right to a public trial and his right to be present at all critical stages of his proceeding when the bailiff excused two jurors for illness-related reasons before voir dire began in the courtroom.² We hold that these two administrative juror excusals occurred before Wilson's right to a public trial and right to be present were triggered; accordingly, we affirm.

FACTS

¶ 2 There is scant evidence in the record about the pre voir dire jury selection process in Wilson's case. From the evidence we do have, it appears that prospective jurors were given a questionnaire on the first day of jury service. The questionnaire (1) informed the jurors that Wilson was charged with first degree child rape; (2) solicited information about the jurors' personal experiences with sexual assault; and (3) required the jurors to sign the questionnaire after completing it, certifying that their answers were true to the best of their knowledge and belief. The prospective jurors completed this questionnaire at some point, although it is not clear when it was administered.

¶ 3 Before the jury venire was called into the courtroom for voir dire, the trial court's bailiff excused from the jury pool two ill persons who had reported for jury service: One juror had “back problems,” was on “narcotic pain killers,” and was having “problems standing and sitting”; he was apparently sick enough that the bailiff excused him “before [the juror] even said anything” or had a chance to complete the juror questionnaire. Verbatim Report of Proceedings (VRP) (Feb. 14, 2011) at 25, 26. The second excused juror apparently completed the juror questionnaire, but he was eventually excused as being “ill.” VRP (Feb. 14, 2011) at 24. In excusing both jurors, the bailiff followed the trial court's written policy, which allows administrative staff to excuse jurors pretrial for illness-related reasons, and rescheduled them for jury service at a later date. Both administrative excusals occurred before 9:00 am.

¶ 4 The trial court subsequently informed both counsel and Wilson' that the bailiff had excused two potential jurors for being ill; but it offered to bring the excused jurors into the public courtroom for voir dire in Wilson's presence, if he wished. Wilson, however, did not pursue this offer. Later, the trial court conducted voir dire of the jury venire in open court and in Wilson's presence. With the parties' assent, the parties empanelled 14 jurors, including 2 alternates, for Wilson's trial. The jury convicted Wilson as charged.³ He appeals.

ANALYSIS

¶ 5 Wilson argues that the trial court violated his state and federal constitutional rights to a public trial because the bailiff excused two jurors for illness-related reasons before voir dire began in the courtroom without the trial court's first conducting a Bone–Club analysis.⁴ He also argues that the trial court violated his right to be present at all critical stages of his proceeding because the two ill jurors were excused outside his presence. Disagreeing, we hold that the bailiff's pre voir dire, administrative excusal of two ill jurors did not implicate Wilson's public trial right or his right to be present.

I. Defendant's Right to a Public Trial

¶ 6 We first address Wilson's argument that the trial court violated his right to a public trial. Wilson contends that we must reverse his convictions because (1) the bailiff “closed” a portion of “jury selection” when she excused the two ill jurors outside the courtroom before voir dire began; (2) both the United States and the Washington Supreme Courts have held that the public trial right applies to “jury selection” and that a trial court must conduct a Bone–Club analysis before closing any portion of “jury selection” proceedings; and (3) “jury selection” had already commenced in his case when the bailiff excused the two ill jurors because the prospective jurors were under “oath” and they had received a juror questionnaire specifically “ tailored to the facts of [his] case.” Supp. Br. of Appellant at 5–9. This argument fails.

A. Standard of Review

¶ 7 Whether a defendant's constitutional right to a public trial has been violated is a question of law, which we review de novo on direct appeal. State v. Paumier, 176 Wash.2d 29, 34, 288 P.3d 1126 (2012); State v. Lormor, 172 Wash.2d 85, 90, 257 P.3d 624 (2011). A criminal defendant has a right to a public trial under the state and federal constitutions. Lormor, 172 Wash.2d at 90–91, 257 P.3d 624;U.S. Const. amends. VI, XIV; Wash. Const. art. I, § 22. Likewise, the public has a complementary right to open proceedings under the state and federal constitutions. Lormor, 172 Wash.2d at 91, 257 P.3d 624;U.S. Const. amend. I; Wash. Const. art. I, § 10.

¶ 8 The right to a public trial, however, is not absolute, and a trial court may close the courtroom under certain circumstances. State v. Momah, 167 Wash.2d 140, 148, 217 P.3d 321 (2009), cert. denied,––– U.S. ––––, 131 S.Ct. 160, 178 L.Ed.2d 40 (2010); State v. Easterling, 157 Wash.2d 167, 174–75, 137 P.3d 825 (2006). To protect the public trial right and to determine whether a closure is appropriate, Washington courts must apply the Bone–Club factors ⁵ and make specific findings on the record to justify a closure. Momah, 167 Wash.2d at 148–49, 217 P.3d 321. This requires that the trial court consider “alternatives to closure” to ensure the least restrictive means of closure is adopted. Paumier, 176 Wash.2d at 35, 288 P.3d 1126;State v. Wise, 176 Wash.2d 1, 10, 288 P.3d 1113 (2012). Failure to conduct a Bone–Club analysis before closing a proceeding required to be open to the public is a structural error warranting a new trial. Paumier, 176 Wash.2d at 35, 288 P.3d 1126.

¶ 9 But, as our Supreme Court has also recognized and we discuss more fully below, “not 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.” State v. Sublett, 176 Wash.2d 58, 71, 292 P.3d 715 (2012) (lead opinion). Therefore, before determining whether there was a violation of Wilson's right to a public trial, we must first consider “whether the proceeding at issue implicates the public trial right, thereby constituting a closure at all.” Sublett, 176 Wash.2d at 71, 292 P.3d 715.

B. Threshold Public Trial Issue

¶ 10 Our Supreme Court recently issued several public trial cases on the same day, including Paumier, Wise, and Sublett: Collectively, these opinions appear to articulate two steps for determining the threshold issue of whether a particular proceeding implicates a defendant's public trial right, thereby requiring a Bone–Club analysis before the trial court may “close” the courtroom: First, does the proceeding fall within a specific category of trial proceedings that our Supreme Court has already established implicates the public trial right? Second, if the proceeding does not fall within such a specific category, does the proceeding satisfy Sublett's “experience and logic” test? ⁶

1. Specific proceeding implicating public trial right

¶ 11 In Paumier and Wise, our Supreme Court confronted the now familiar question of whether the trial court violated a defendant's right to a public trial by privately questioning individual jurors in chambers during voir dire without first conducting a Bone–Club analysis. See Paumier, 176 Wash.2d at 34–37, 288 P.3d 1126;Wise, 176 Wash.2d at 11–15, 288 P.3d 1113. To resolve the threshold issue of whether this type of proceeding implicated the defendants' public trial right, the Supreme Court relied on earlier cases in which it had already established that the public trial right applied to jury voir dire proceedings. Wise, 176 Wash.2d at 11, 288 P.3d 1113 (citing In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004), Momah, and State v. Strode, 167 Wash.2d 222, 227, 232, 217 P.3d 310 (2009)); Paumier, 176 Wash.2d at 34–35, 288 P.3d 1126 (citing Momah and Wise ). Accepting jury voir dire as an established proceeding to which the public trial right applies, the Supreme Court held that (1) the Paumier and Wise trial courts had closed their courtrooms by questioning prospective jurors in chambers without first conducting a Bone–Club analysis; and (2) such courtroom closures are structural error, requiring reversal of these defendants' convictions. See Paumier, 176 Wash.2d at 35–37, 288 P.3d 1126;Wise, 176 Wash.2d at 11–13, 15, 288 P.3d 1113.

2. “Experience and Logic” test

¶ 12 In contrast, in Sublett, our Supreme Court faced the novel question of whether the trial court violated a defendant's public trial right by discussing with counsel in chambers a question that the jury had posed during jury deliberations. The Court had not previously addressed or established whether a deliberating jury's question implicated a defendant's public trial right; therefore, the Court could not rely merely on its case law, or the “first step” that it had used in Paumier and Wise, to resolve whether such a proceeding implicates the public trial right. Thus, our Supreme Court created a “second step” by adopting the United States Supreme Court's “ experience and logic” test.⁷Sublett, 176 Wash.2d at 72–73, 292 P.3d 715 (citing Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8–10, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ( Press II)). Applying this experience and logic test, our Supreme Court...