State Of Washington, V Kenneth E. Barrett ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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LEACH, J. — Kenneth Barrett appeals his conviction for bail jumping. He
asserts claims of prosecutorial misconduct, ineffective assistance of counsel, and
violation of his public trial rights. Because the prosecutor's comments drew
reasonable inferences from the evidence, we reject Barrett's prosecutorial
misconduct and ineffective assistance of counsel claims. And recent precedent
controls Barrett's public trial claim. The trial court did not close the courtroom by
holding a sidebar during juror selection and thus did not violate Barrett's public
trial rights.
FACTS
The State charged Kenneth Barrett with malicious mischief after he
intentionally damaged vehicles belonging to the daughter of his deceased
partner. At his arraignment on this charge, Barrett signed an order and notice
setting trial date or other hearings and conditions of release. Barrett appeared
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for his next court date, an omnibus hearing, where he signed an agreed order of
trial continuance. That document listed his status conference for November 12,
2014, at 9:00 a.m. It warned the defendant that "failure to appear may result in
issuance of an arrest warrant, forfeiture of bail, and criminal prosecution for bail
jumping."
Barrett had not appeared when the trial court called his name at 10:35
a.m. on November 12. The court issued a bench warrant at the State's request.
The State amended the information to add a count of bail jumping.
During jury selection, the trial court held a sidebar in which it
recommended excusing four jurors for cause. The court reporter did not
transcribe the sidebar. The court immediately made a record of it, however, and
explained its reasons for dismissing each juror. Neither party objected to the
court's description.
Barrett's defense to the bail jumping charge was that he did not know
about the court date he missed. He testified to the following. He is legally blind
and unable to read documents. He signed his court documents in court but could
not read them. In particular, he could not read the date and time of his
November 12 hearing. His brother normally told him his court dates, but his
brother did not tell him about the November 12 court date. He came to court
"before noon" on November 12 after getting a call from his lawyer. Barrett
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conceded that he signed the documents listing his court dates in front of a judge, '
that he spoke with the judge about what he was signing, and that his counsel
was present for the conversation.
A deputy prosecuting attorney, John Michael Jones, testified about the
trial court's procedures between arrest and trial) The trial court arraigns the
defendant. At the arraignment, the court receives the defendant's pleas,
schedules hearings, and sets a trial date. The court announces those hearing
dates and times to the defendant, defense counsel, and the prosecutor. It also
gives the parties written orders and notices that state those dates. When a party
wishes to continue a trial date, the defendant, defense counsel, and the
prosecutor appear before a judge again to discuss the requested changes.
In her closing argument, the prosecutor said of Barrett's testimony, "These
are his court dates. They're not his brother's court dates. And more importantly,
he's already had notice of those court dates. He signed for them. He's talked to
the judge about them." Similarly, during rebuttal, she said, "He signed those
documents, and he had conversations with the Court and his attorney [that
Deputy Prosecuting Attorney] Jones talked to you about. That happens every
time." Barrett's counsel did not object to either of these comments.
I Jones is a Thurston County deputy prosecuting attorney but was not
involved in prosecuting Barrett.
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No. 75630-3-1/ 4
The jury convicted Barrett of bail jumping.2 Barrett appeals.
STANDARD OF REVIEW
This court reviews a claim of prosecutorial misconduct under an abuse of
discretion standard.3 It reviews an ineffective assistance of counsel claim de
novo as a mixed question of law and fact.4 And it reviews constitutional issues
and other questions of law de novo.5
ANALYSIS
Prosecutorial Misconduct
Barrett contends that the prosecutor's statements in her closing argument
that the trial court judge had told Barrett his court date amounted to prosecutorial
misconduct. We disagree.
A defendant "bears the burden of proving that the prosecutor's conduct
was both improper and prejudicial."6
This court evaluates the challenged statements' propriety in "the context of
the prosecutor's entire argument, the issues in the case, the evidence discussed
in the argument, and the jury instructions."7 Attorneys have "'latitude to argue the
2 The jury failed to reach a verdict on the malicious mischief charge;
Barrett later pleaded guilty to a lesser degree of malicious mischief.
3 State v. Ish, 170 Wash. 2d 189, 195-96, 241 P.3d 389 (2010).
4 State v. Davis, 174 Wash. App. 623, 639, 300 P.3d 465 (2013).
5 State v. Jorgenson, 179 Wash. 2d 145, 150, 312 P.3d 960 (2013).
6 State v. Emery, 174 Wash. 2d 741, 756, 278 P.3d 653 (2012).
7 State v. Dhaliwal, 150 Wash. 2d 559, 578, 79 P.3d 432 (2003).
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facts in evidence and reasonable inferences' in their closing arguments."8 But
they may not "urg[e] the jury to decide a case based on evidence outside the
record."9
When, as here, the defendant did not object at trial, the defendant waived
any error unless the misconduct was "so flagrant and ill intentioned that an
instruction could not have cured the resulting prejudice."1° "Under this
heightened standard, the defendant must show that (1) `no curative instruction
would have obviated any prejudicial effect on the jury' and (2) the misconduct
resulted in prejudice that 'had a substantial likelihood of affecting the jury
verdict.'"11
Here, the prosecutor did not make an improper statement. And even if
she did, her statements were not "so flagrant and ill intentioned that an
instruction could not have cured the resulting prejudice."12
Jones testified that the trial court always announces the dates and times
of a defendant's upcoming pretrial hearings.13 In particular, he testified that the
8 Dhaliwal, 150 Wash. 2d at 577 (quoting State v. Smith, 104 Wash. 2d 497,
510, 707 P.2d 1306 (1985)).
9 State v. Pierce, 169 Wash. App. 533, 553, 280 P.3d 1158 (2012).
10 Emery, 174 Wash. 2d at 760-61.
1 Emery, 174 Wash. 2d at 760 (quoting State v. Thorgerson, 172 Wash. 2d 438,
455, 258 P.3d 43 (2011)).
12 Emery, 174 Wash. 2d at 760-61.
13 Barrett does not assign error to the trial court's admission of Jones's
testimony explaining a defendant's pretrial hearings.
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No. 75630-3-1 /6
trial court would have discussed the date and time of the November 12 status
conference with Barrett, his counsel, and the prosecutor at Barrett's August 14
omnibus hearing and that Barrett's signature on the order from that hearing
means he must have been present.
Consistent with this testimony, Barrett acknowledged that he spoke with
and signed each document in front of a judge:
Q. My question is you have no idea if you put your signature on
this document either.
A. It's my name. I put it on it.
Q. Okay. And all of these would have occurred while you were
in person in front of the Court, correct? Do you recall being
in court and signing documents?
A. Yeah.
Q. And you recall being in front of the judge signing documents,
correct?
A. Yeah.
Q. And you recall having a conversation with the judge about
what you were signing?
A. Yeah, and they pointed out where 1 sign that too.
Q. When you had that conversation with your judge about what
you are signing, your counsel was present with you, correct?
I guess.
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No. 75630-3-1 /7
Q. . . . And do you remember being advised by the judge
specifically that you had to be—your presence was required
at all hearings in this matter?
A. Yeah.
Barrett also acknowledged that he had appeared at other court appearances
where he was informed of upcoming court dates.
The prosecutor relied on this evidence in her closing argument.14 She
acted within her wide latitude to make reasonable inferences from the evidence
when she inferred from Jones's and Barrett's testimony that Barrett had spoken
to the judge who set his court dates and had heard the dates announced. Her
statements that Barrett "talked to the judge about" his court dates and "had
conversations with the Court and his attorney" (presumably about those dates)
were not improper and thus did not amount to misconduct.
Moreover, even if the comments were improper, Barrett did not object to
them and they were not "so flagrant and ill intentioned that an instruction could
not have cured the resulting prejudice."15 Barrett makes only a conclusory
argument that the statements likely affected the jury's verdict. He provides no
support for his assertion that an instruction could not have cured any resulting
14 Barrett cites no decisions that have found statements like the ones here
to be improper. In the case Barrett cites for this proposition, State v. Belgarde,
the prosecutor connected the defendant, a Native American, to a group called
the American Indian Movement, which the prosecutor described as "a deadly
group of madmen." 110 Wash. 2d 504, 506, 755 P.2d 174 (1988).
15 Emery, 174 Wash. 2d at 760-61.
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No. 75630-3-1 /8
prejudice. And he identifies nothing in the record suggesting flagrant
misconduct. Barrett thus does not make the heightened showing required when
a defendant fails to object at trial.
Ineffective Assistance of Counsel
Barrett next contends that his attorney's failure to object to the
prosecutor's statements at closing argument amounts to ineffective assistance of
counsel.
To prove ineffective assistance of counsel, a defendant must show, first,
that counsel provided representation so deficient that it fell below an objective
standard of reasonableness and, second, that the deficient performance
prejudiced him.16 Matters of trial strategy or tactics do not establish deficient
performance.17 "Counsel's decisions regarding whether and when to object fall
firmly within the category of strategic or tactical decisions."16 "Only in egregious
circumstances, on testimony central to the State's case, will the failure to object
constitute incompetence of counsel justifying reversal."16 A mistake prejudices a
16 Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984); State v. Thomas, 109 Wash. 2d 222, 226, 743 P.2d 816 (1987).
17 State v. Madison, 53 Wash. App. 754, 763, 770 P.2d 662 (1989).
18 State v. Johnston, 143 Wn. App. 1,19, 177 P.3d 1127 (2007).
19 Madison, 53 Wash. App. at 763; see Johnston, 143 Wash. App. at 19
(applying observation to failure to object to prosecutor's remarks).
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No. 75630-3-1 / 9
defendant when there is a reasonable probability that but for counsel's errors, the
result of the trial would have been different.20
Such "egregious circumstances" are absent here. As discussed above,
the prosecutor's comments were not improper. The trial court likely would not
have sustained any objection. Barrett's trial counsel's failure to object was
objectively reasonable, and his performance was not deficient. Because Barrett
did not satisfy the first prong of his ineffective assistance claim, we need not
decide whether there was a "reasonable probability" that the prosecutor's
comments affected the jury verdict.
Right to Public Trial
Finally, Barrett contends that the trial court violated his right to a public
trial by making for-cause excusals at a sidebar during jury selection. Recent
decisions by the Supreme Court and Division Two of this court foreclose this
argument.
The Washington Constitution, article 1, section 22, and the Sixth
Amendment to the United States Constitution guarantee a defendant the right to
a public trial. A defendant may claim for the first time on appeal that this right
was violated.21 If it was, then this court will presume the defendant was
20 State v. Hendrickson, 129 Wash. 2d 61, 78, 917 P.2d 563 (1996).
21 State v. Koss, 181 Wash. 2d 493, 498, 334 P.3d 1042 (2014).
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prejudiced.22 This court follows a three-part analysis to determine whether a
defendant's public trial right was violated: "First, we ask if the public trial right
attaches to the proceeding at issue. Second, if the right attaches we ask if the
courtroom was closed. And third, we ask if the closure was justified."23
The first part of this analysis is satisfied here: the public trial right does
attach to jury selection, including for-cause and peremptory challenges.24
Under the second part, Washington courts recognize two types of
closures. The first occurs "'when the courtroom is completely and purposefully
closed to spectators so that no one may enter and no one may leave.'"25 The
second occurs "where a portion of a trial is held someplace 'inaccessible' to
spectators, usually in chambers."26 Barrett does not allege the first type of
closure here. Barrett's challenge thus depends on whether the sidebar rendered
jury selection inaccessible to the public.
22 State v. Strode, 167 Wash. 2d 222, 231, 217 P.3d 310 (2009).
23 State v. Love, 183 Wash. 2d 598, 605, 354 P.3d 841 (2015). "The
appellant carries the burden on the first two steps; the proponent of the closure
carries the third." Love, 183 Wash. 2d at 605. "A closure unaccompanied by a
Bone-Club analysis on the record will almost never be considered justified."
State v. Smith, 181 Wash. 2d 508, 520, 334 P.3d 1049 (2014) (citing State v. Bone-
Club, 128 Wash. 2d 254, 906 P.2d 325 (1995)).
24 Love, 183 Wash. 2d at 606 (explaining that "for cause and peremptory
challenges can raise questions about a juror's neutrality and a party's motivation
for excusing the juror that implicate the core purpose of the right, and questioning
jurors in open court is critical to protect that right").
26 Love, 183 Wash. 2d at 606 (quoting State v. Lormor, 172 Wash. 2d 85, 93,
257 P.3d 624 (2011)).
26 Love, 183 Wash. 2d at 606 (quoting Lormor, 172 Wash. 2d at 93).
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Recent decisions of the Supreme Court and Division Two have answered
"no" to this question. In State v. Love,27 the Supreme Court held that a sidebar
during jury selection implicated the public trial right but was not a courtroom
closure. During voir dire, the trial court judge called the defense and prosecuting
attorneys to the bench to discuss for-cause challenges. The court reporter
recorded the brief exchange, in which the defense asked the court to excuse two
jurors and the State did not object.28 The Supreme Court reasoned that "the
public had ample opportunity to oversee the selection of Love's jury because no
portion of the process was concealed from the public; no juror was questioned in
chambers."29 Instead, the court noted, the public could watch the judge and
attorneys ask questions and make challenges and the public could "ultimately
evaluate the empaneled jury."3° It noted that the transcript was "publically
available."31
After Love, the Supreme Court remanded a similar case for Division Two
to reconsider.32 In State v. Anderson,33 the jurors were questioned in open court,
27 183 Wash. 2d 598, 605-06, 354 P.3d 841 (2015).
28 Love, 183 Wash. 2d at 602. The defense asked the trial court to strike two
jurors, and the State had no objection.
29 Love, 183 Wash. 2d at 607.
30 Love, 183 Wash. 2d at 607.
31 Love, 183 Wash. 2d at 607.
32 State v. Anderson, 184 Wash. 2d 1009 (2015) (granting review and
remanding).
33 194 Wash. App. 547, 549, 377 P.3d 278 (2016).
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No. 75630-3-1 /12
the defendant made for-cause challenges in a sidebar conference, and the judge
dismissed those jurors. Later, the court dismissed a fifth juror for cause on its
own initiative at another sidebar conference. But, unlike in Love, the court made
no verbatim record of the sidebars; instead, the trial court stated their results for
the record.34 Division Two initially held that the trial court had closed the
courtroom and violated the defendant's public trial right. On remand, however,
the court held that the only distinguishing feature from Love—the lack of a
transcript—did not make the sidebars a closure. The court reasoned that "the
trial court's placing what occurred at sidebar on the record meant that '[t]he
public was present for and could scrutinize the selection of [the] jury from start to
finish,' thereby affording Anderson the safeguards of the public trial right."35
We agree with Anderson and hold that Love also controls the outcome of
Barrett's public trial claim. The only distinction Barrett shows between his
challenge and the one the Supreme Court rejected in Love is the lack of a
transcript. Division Two squarely addressed this concern in Anderson. Here, as
in Anderson, the judge gave an oral summary of the sidebar immediately after it
happened. Both sides agreed that the summary accurately summarized the
Anderson, 194 Wash. App. at 549.
34
Anderson, 194 Wash. App. at 552-53 (alteration in original) (quoting Love,
35
183 Wash. 2d at 607).
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No. 75630-3-1/ 13
sidebar.36 We presume that the jurors were questioned in open court, and
afterward the public could "evaluate the empaneled jury."37 Anderson properly
resolved the issue Barrett raises.38
CONCLUSION
Because Barrett fails to show that the prosecutor's statements at closing
argument were either improper or prejudicial, his claims of prosecutorial
misconduct and ineffective assistance of counsel both fail. And because recent
cases have found no courtroom closure under facts analogous to those here,
Barrett's public trial claim also fails. We affirm.
WE CONCUR:
36 The Supreme Court has approved of "promptly memorializ[ing
sidebars as a substitute for holding them on the record. Smith, 181 Wash. 2d at 516
n.10.
37 Love, 183 Wash. 2d at 607.
38 State v. Effinger, another recent Division Two decision, is in accord with
Anderson. 194 Wash. App. 554, 561, 375 P.3d 701 (2016), petition for review filed,
No. 93459-2 (Wash. Aug. 9, 2016).
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