State Of Washington, Resp. v. Ramiro Rodriguez, Jr., App. ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 70490-7-1
Respondent, DIVISION ONE
v.
RAMIRO RODRIGUEZ, JR., UNPUBLISHED OPINION
Appellant. FILED: October 6, 2014
Lau, J. — Ramiro Rodriguez Jr. appeals his conviction for felony harassment and
threats to bomb or injure property. He argues that (1) the State presented insufficient
evidence to establish that the victim feared the threat to kill would be carried out—an
essential element of felony harassment, (2) the trial court violated his right to a public
trial by conducting peremptory challenges at a bench conference, and (3) this bench
conference violated his right to be present at a critical stage of the proceedings.
Because Rodriguez fails to show insufficient evidence, a public trial right violation, or a
right to be present violation, we affirm Rodriguez's convictions.
FACTS
Ramiro Rodriguez moved in with Zulema Barragan and her three children after
dating for close to a year. Barragan reported to police that Rodriguez had threatened
her several times before she took her children to her cousin's home.
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Rodriguez was arrested and charged with threats to bomb or injure property,
felony harassment, and taking a motor vehicle without permission. A jury convicted
Rodriguez of threats to bomb or injure property and felony harassment. It acquitted him
of the taking a motor vehicle offense. Rodriguez appeals.
ANALYSIS
Felony Harassment
Rodriguez contends that the State presented no evidence of an essential
element that, "the threats to kill actually caused Ms. Barragan to fear Mr. Rodriguez
would kill her."1 Appellant's Br. at 6. He cites selected portions of her testimony to
argue the State fell short of its burden to prove this element beyond a reasonable doubt.
To prove felony harassment, the State must prove every element of the charged
offense beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 477, 120
S. Ct. 2348, 147 L. Ed. 2d 435 (2000); U.S. Const, amend. 14; Washington Const.
art. I, § 3. Felony harassment occurs where the threat to cause bodily injury is a
threat to kill the person threatened or any other person. RCW 9A.46.020(2)(b).
Among the elements necessary to prove felony harassment is the requirement that the
person threatened be put in reasonable fear that the threat to kill will be carried out.
RCW 9A.46.020. It is not enough for the State to show the threat caused the victim to
suffer some lesser harm, such as the threat of an injury. State v. C.G., 150 Wash. 2d 604,
610, 80 P.3d 594 (2003).
1 To the extent Rodriguez claims that sufficient evidence requires Barragan to
testify she feared Rodriguez would kill her, we reject that claim. We are unaware of any
case authority, and Rodriguez cites none, that so holds.
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Circumstantial as well as direct evidence may support a conviction. State v.
Bright. 129 Wash. 2d 257, 270, 916 P.2d 922 (1996). The nature of the threat depends on
all the facts and circumstances, and it is not proper to limit the inquiry to a literal
translation of the words spoken. C.G., 150 Wash. 2d at 604. Furthermore, in deciding
whether a threat occurred, the fact finder can consider the statements in context and not
just the literal words. State v. Scherck. 9 Wash. App. 792, 514 P.2d 1393 (1973).
A claim of insufficiency admits the truth of the State's evidence and all inferences
that can be drawn from that evidence. State v. Salinas. 119 Wash. 2d 192, 201, 829 P.2d
1068(1992).
Read in context, there is ample direct and circumstantial evidence to establish
Barragan reasonably believed that Rodriguez's multiple threats to kill would be carried
out. For example, he threatened her that when people piss him off, "he's already
planning their death." Report of Proceedings (May 14, 2013) (RP) at 20. He also told
her that if she left him, he knew a guy on the street who would "do a good deed for him."
RP at 21. She took that threat to mean he would harm her. Rodriguez also threatened
to stab her in the neck if she left him. He threatened to set her apartment on fire. He
also said he bruised his former girl friend's infant daughter and busted open his former
girl friend's lip. Rodriguez also threatened to see her "lying in a pool of blood, and that
he would still fuck [her] because it turns him on." RP at 38. This comment "[f]reaked
[her] out." RP at 38. She finally moved her children to her cousin's house because she
was afraid he would follow through on his threats. Barragan reported Rodriguez's
threats to the police. Her mother described her demeanor as "very very pale," "whole
body shaking," tearful and unable to speak. RP at 89.
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Rodriguez asserts the present case is like C.G. where the court reversed the
felony harassment conviction on the ground of insufficient evidence. C.G., 150 Wash. 2d
604. That case bears no similarities to the present case. There, C.G. threatened to kill
the school principal, "Til kill you Mr. Haney, I'll kill you.'" C^G, 150 Wash. 2d at 607.
Haney said the threat caused him concern and fear that CG might harm him or
someone in the future. Unlike the present case, C.G. involves an isolated threat leveled
at a school authority figure by a student. Here, the record shows a domestic
relationship marked by verbal abuse and threats to kill that intensified over time. We
conclude that there is sufficient evidence to support the essential element—Rodriguez's
threats to kill actually caused Barragan to fear Rodriguez would kill her.2
Right to a Public Trial3
Even though all parts of jury questioning took place in open court, Rodriguez
contends that his right and the public's right to a public trial were violated when the
attorneys exercised their peremptory challenges during a private bench conference. He
asserts this process "occurred privately, outside the public's scrutinizing eyes and ears
"Appellant's Br. at 18. He also claims, "The bench conference was not recorded,
2We are unpersuaded by Rodriguez's reliance on State v. Kilburn, 151 Wash. 2d
36, 84 P.3d 1215 (2004). The case is not controlling.
3We note that our Supreme Court recently decided several public trial cases—
State v. Slert, No. 87844-7 (Wash. Sept. 25, 2014); State v. Frawlev, No. 80727-2
(Wash. Sept. 25, 2014); State v. Koss, No. 85306-1 (Wash. Sept. 25, 2014); and State
v. Nionge, No. 86072-6 (Wash. Sept. 25, 2014). However, none ofthese cases control
here.
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could not be heard by the public, and no record memorializes which peremptory strike
was made, in which order."4 Appellant's Br. at 19.
Whether the right to a public trial has been violated is a question of law this court
reviews de novo. State v. Sublett, 176 Wash. 2d 58, 70, 292 P.3d 715 (2012). The Sixth
Amendment and article I, section 22 of the Washington Constitution guarantee a
criminal defendant's right to a public trial. U.S. Const, amend. VI; Wash. Const, art. I,
§ 22; State v. Bone-Club. 128 Wash. 2d 254, 261-62, 906 P.2d 325 (1995). Article I,
section 10 provides the additional guarantee that "[j]ustice in all cases shall be
administered openly, and without unnecessary delay."
There is a strong presumption that courts are open at all stages of trial. Sublett,
176 Wash. 2d at 70. But the public trial right is not absolute. Sublett. 176 Wash. 2d at 70. It
may be overcome "to serve an overriding interest based on findings that closure is
essential and narrowly tailored to preserve higher values." Sublett. 176 Wash. 2d at 71.
To determine whether a public trial right applies, Washington courts use the
"experience and logic test." Sublett. 176 Wash. 2d at 73. The experience prong of the
test asks whether the practice, place, or procedure in question has historically been
open to the public. Sublett. 176 Wash. 2d at 73. The logic prong asks whether public
access plays a significant positive role in the functioning of the particular process in
question. Sublett. 176 Wash. 2d at 73. If both prongs are satisfied, then the court must
apply a five-factor test to evaluate whether a proposed closure is constitutional. Bone-
Club, 128 Wash. 2d at 258-59.
4 After the parties filed their briefs, we granted the State's request to supplement
the record consisting of the in-court clerk's notes and record of peremptory, for cause,
and joint challenges. The record shows which prospective jurors the court excused.
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The right to a public trial applies to voir dire of prospective jurors. Presley v.
Georgia. 558 U.S. 209, 213, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010); State v. Wise.
176Wn.2d 1, 11, 288 P.3d 1113(2012). In cases where Washington courts found an
improper closure during jury selection, the trial court had questioned or dismissed
potential jurors in a closed courtroom, chambers, or other private setting outside the
public eye. See, e.g.. Wise, 176 Wash. 2d at 6-7 (partial voir dire in chambers); State v.
Brightman. 155 Wash. 2d 506, 509, 122 P.3d 150 (2005) (courtroom closed to public
during voir dire); State v. Tinh Trinh Lam, 161 Wash. App. 299, 301, 254 P.3d 891 (2011)
(interview of juror in chambers) review granted. 176Wn.2d 1031, 299 P.3d 20 (2013).
However, not every interaction between the court, counsel, and a defendant will
implicate the public trial right or constitute a closure if closed to the public. Sublett, 176
Wash. 2d at 71. Thus, before we determine whether a public trial violation occurred, we
must consider whether the contested procedure constituted a closure at all. Sublett,
176 Wash. 2d at 71. A closure occurs when the courtroom is "completely and purposefully
closed to spectators so that no one may enter and no one may leave." State v. Lormor.
172 Wash. 2d 85, 93, 257 P.3d 624 (2011).
The record here fails to support Rodriguez's assertion that a closure occurred
during jury selection. Jury questioning, for-cause challenges, and select individual
questioning of prospective jurors on sensitive topics, occurred in open court.
Immediately before the parties exercised their peremptory challenges, the court
announced the beginning of jury selection:
COURT: Ladies and gentlemen, the attorneys are going to review
their notes and probably for five to ten minutes, and then they're going to come
up here, and we're going to go through the selection process.
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So, during this time I will allow you to stand, if you want, in the area
that you're seated in. And a lot of their notes and memories are based on where
you're located in the courtroom. You can talk quietly among yourselves also, but
don't get up and start wandering around, or you will really give them fits. And
with that, you can talk quietly, if you wish, but you cannot talk about the case of
course, and you can stay seated, stand as you wish also. Counsel, when you're
ready, come on up and take the time you need.
RP (May 13, 2013) at 119-20.
At a bench conference, counsel disclosed their peremptory challenges to the
court. Members of the public saw the dismissed jurors and observed which jurors
remained. The court did not announce which counsel had challenged which juror. But
the in-court clerk recorded how the parties exercised peremptory and for cause
challenges on a document entitled "Judge's List." This list identified the entire jury panel
by name and number, the party who made the challenge, and the order in which the
challenges occurred. The clerk also recorded which juror, by name and number, the
court excused. The clerk's notes show that counsel exercised peremptory challenges
between 1:49 p.m. and 2:05 p.m. at the bench conference. The list was filed the same
day as part of the public record, and there was no significant delay in the public's
access to it. Rodriguez does not dispute it was accessible as a public record.
We conclude the trial court's procedure and timely access to the list discussed
above protected both the "core values of the public trial right" and the open
administration of justice. Sublett. 176 Wash. 2d at 73.
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But even assuming a closure, Rodriguez's public trial right claim fails.5 The
exercise of peremptory challenges is not the type of procedure that historically has been
conducted in open court. See State v. Love. 176 Wash. App. 911, 918-19, 309 P.3d 1209
(2013) (concluding that the experience and logic test did not support the notion that voir
dire challenges are traditionally completed in open court within earshot of the public);
State v. Dunn. 180 Wash. App. 570, 575, 321 P.3d 1283 (2014) (concluding that
experience and logic do not suggest that the practice of exercising peremptory
challenges at clerk's station implicated the defendant's right to a public trial).
Rodriguez fails to show a public trial right violation.
Critical Stage
Rodriguez contends that the bench conference violated his right to be present at
a critical stage of the proceedings. Rodriguez argues that because he was not present
at the bench conference where the challenges were exercised, he was not able to
provide advice to counsel.
A criminal defendant has a fundamental right to be present at all critical stages of
a trial. State v. Irbv. 170 Wash. 2d 874, 880, 246 P.3d 796 (2011). This includes the right
to be present during voir dire and the empanelling of the jury. Diaz v. United States.
223 U.S. 442, 455, 32 S. Ct. 250, 56 L. Ed. 500 (1912). The right to be present derives
from the confrontation clause of the Sixth Amendment and the due process clauses of
the Fifth and Fourteenth Amendments. Diaz. 223 U.S. at 455. A defendant's presence
at jury selection bears, or may fairly be assumed to bear, a relation, reasonably
5 In State v. Smith. No. 85809-8 (Wash. Sept. 25, 2014), our Supreme Court
recently held that an evidentiary sidebar conference does not implicate the public trial
right under the experience and logic test.
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substantial, to his opportunity to defend because it will be in his power to give advice or
suggestion or even to supersede his lawyers altogether. Irby, 170 Wash. 2d at 883. The
right attaches at the time the jury is empanelled. Irbv. 170 Wash. 2d at 883.
Rodriguez claims Irby controls. That case is distinguishable. There, the trial
court e-mailed the State and defense counsel to discuss reasons for excusing
prospective jurors. But the defendant was in custody and could not provide input to
counsel. Irby, 170 Wash. 2d at 878-79. The court held that this violated the defendant's
right under the due process clause of the Fourteenth Amendment to be present at a
critical stage of trial and article I, section 22 of the state constitution to "'appear and
defend in person.'" irby, 170 Wash. 2d at 884-85.
Unlike in Irby, here, Rodriguez was present in court and able to consultwith
counsel about selecting the jury before the bench conference. We find no violation of
Rodriguez's right to be present for jury selection.
For the reasons discussed above, we affirm Rodriguez's convictions.
WE CONCUR:
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