State Of Washington v. Vanessa Whitford ( 2014 )

FILED
COURT OP-APPEALS
DIVISION II
2014 NOV - AM ! O: 04
STATE OF WASHINGTON
BY
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 44895 -5 -II
Respondent,
v.
VANESSA MARIE WHITFORD, UNPUBLISHED OPINION
Appellant.
JOHANSON, C. J. — Vanessa Whitford appeals her jury trial conviction for first degree
robbery. She argues that the trial court violated her public trial rights when it allowed the attorneys
to exercise their peremptory challenges in writing. We hold that under Love,' Dunn,2 and Webb, 3
the exercise of peremptory challenges in writing does not implicate Whitford' s public trial rights
and affirm her conviction.
1 State v. Love, 176 Wn. App. 911, 309 P. 3d 1209 ( 2013).
2 State v. Dunn, 180 Wn. App. 570, 321 P. 3d 1283 ( 2014).
3
State v. Webb, Wn. App. , 333 P. 3d 470 ( 2014).
No. 44895 -5 -II
FACTS
In August 2012, Whitford attempted to steal property from a store and, in the process,
brandished a knife. The State charged Whitford with first degree robbery. 4
The trial court conducted voir dire of the potential jurors in open court. After Whitford
and the State questioned the prospective jurors and exercised their for -cause challenges, the trial
court addressed the venire and stated,
Ladies and Gentlemen, at this time the two lawyers will be exercising those
peremptory challenges I told you about. If you have a piece of reading material or
you' d like to speak softly to your neighbor -- of course, not about the case -- you
may do so. I do need you to stay seated and let' s make sure those yellow tabs are
way up high so it will be easier for the lawyers to remember. So you can read
whatever you would like and /or pull out your computer, if you' ve got it in your lap,
but you have to stay seated.
Report of Proceedings ( RP) ( May 9, 2013, Jury Voir Dire) at 83 -84. The State and Whitford then
exercised their peremptory challenges on a written form that the court later filed with the court
clerk.5 Based on the completed form, the trial court announced which jurors had been selected,
seated them for trial, and excused the others. The court did not announce which party had excused
which juror but the completed form shows who challenged which juror. The jury convicted
Whitford on one count of first degree robbery. She appeals her conviction.
ANALYSIS
Whitford argues that the trial court violated her public trial rights when it allowed counsel
to exercise peremptory challenges in writing. We disagree. Love, Dunn, and Webb control the
4 RCW 9A.56.200.
5
This process appears in the record as "( Attorneys picking jury)" RP ( May 9, 2013, Jury Voir
Dire) at 84.
2
No. 44895 -5 - II
result in this case and, accordingly, we hold that the trial court did not violate Whitford' s public
trial rights.
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington State Constitution guarantee a defendant' s right to a public trial. State v. Wise, 176
Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). We review alleged violations of a defendant' s public trial
rights de novo. State v. Smith, Wn.2d , 334 P. 3d 1049, 1052 ( 2014) ( citing State v.
Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005)). The first step when addressing an alleged
violation of the public trial right is to determine whether the proceeding at issue implicates the
right in the first place. Smith, 334 P.3d at 1052 ( citing State v. Sublett, 176 Wn.2d 58, 92, 292
P. 3d 715 ( 2012) ( Madsen, C. J., concurring)). In State v. Love, Division Three of this court held
that peremptory challenges do not implicate a defendant' s public trial rights. 176 Wn. App. 911,
920, 309 P. 3d 1209 ( 2013). We adopted Division Three' s holding in State v. Dunn, 180 Wn. App.
570, 575, 321 P. 3d 1283 ( 2014).
In State v. Webb we held that a peremptory challenge process that required counsel to
exercise their peremptory challenges in writing in the jury' s presence did not implicate the
defendant' s public trial rights. Wn. App. , 333 P. 3d 470, 472 -73 ( 2014). The process in
Webb is identical to the peremptory challenge process at issue in this case. As in Webb, at trial
here, counsel exercised their peremptory challenges by marking them on a written form. The trial
court announced which jurors were selected and which were excused and filed the completed form
in the public record.
No. 44895 -5 -II
Following Love, Dunn, and Webb, we hold that Whitford' s public trial right was not
implicated in this case and her appeal fails at the first step in the public trial right analysis.
Accordingly, we affirm Whitford' s conviction for first degree robbery.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
4