State of Washington v. Margarito Gordian Cruz ( 2016 )

FILED
JANUARY 12,2016
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 32466-4-111
Respondent, )
)
v. )
) UNPUBLISHED OPINION
MARGARITO GORDIAN CRUZ, )
)
Appellant. )
SIDDOWAY, C.J. - Margarito Cruz appeals his convictions for rape of a child in
the second degree and child molestation in the second degree. He contends the trial court
violated his right to a public trial when it allowed the parties to exercise their peremptory
challenges silently by exchanging a written list ofjurors between themselves. Based on
the recent decision in State v. Love, 183 Wash. 2d 598, 354 P.3d 841 (2015), we affirm.
FACTS
A jury found Mr. Cruz guilty of rape of a child in the second degree and child
molestation in the second degree. Mr. Cruz's convictions were reversed on appeal due to
No. 32466-4-111
State v. Cruz
a violation of his right to a public trial during jury selection, and the matter was remanded
for a new trial.
Following voir dire in the second trial, counsel exercised peremptory challenges
silently in the courtroom by passing a sheet of paper back and forth, writing down the
names and numbers ofjurors they wished to be excused. The struck juror sheet, which
was filed in the court record the following day, shows the State struck seven jurors and
Mr. Cruz struck six. There is no indication in the record whether any member of the
public had to leave the courtroom, the courtroom was locked, or anyone was barred from
entering. Similarly, the record does not reflect whether the public could not see counsel
passing the struck juror sheet between themselves.
Following this, the trial judge announced who had been selected to serve on the
jury, including an alternate. The empaneled jury found Mr. Cruz guilty on both counts.
Mr. Cruz appealed.
ANALYSIS
Article I, section 22 of the Washington Constitution guarantees a criminal
defendant the right to a public trial. In analyzing whether Mr. Cruz's public trial right
was violated, Love is controlling as it involved the same challenge to the exercise of
silent peremptory challenges. There, the Washington Supreme Court found the defendant
did not show either (1) the courtroom was completely and purposefully closed to the
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No. 32466-4-III
State v. Cruz
public or (2) a portion of the trial was held someplace "inaccessible" to spectators. Love,
183 Wash. 2d at 606. The Love court disagreed with the defendant's analogy equating the
exercise of silent peremptory challenges occurring in open court to those proceedings
done behind a closed chambers door. Jd. In so finding, the court reiterated the purpose
of the public trial right: to facilitate fair and impartial trials through public scrutiny. Jd.
And because no portion of the peremptory challenge process was concealed, the public
was able to effectively oversee selection of the jury. Jd. at 607. The court noted the
public could watch the questioning of the jury pool and listen to the answers given, see
counsel exercise challenges at the bench and on paper, evaluate the empaneled jury, and
look at the struck juror sheet if desired. Jd. Thus, the Love court held "the procedures
used at [the defendant's] trial comport with the minimum guarantees of the public trial
right." Jd.
Here, Mr. Cruz does not differentiate the facts of his case from the facts in Love.
As in Love, Mr. Cruz analogizes the use of silent written peremptory challenges to
closing the courtroom. However, as explicitly noted by the Love court, where written
methods of challenging jurors are used and such methods are done in open court and on
the record, the proceedings are subject to public scrutiny. Jd.
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No. 32466-4-II1
State v. Cruz
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
2!~1J>~r
Slddoway, C.J. .
WE CONCUR:
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