State v. Heath , 150 Wash. App. 121 ( 2009 )

Armstrong, J.

¶1 Patricia Heath appeals her convictions for unlawful possession of a firearm, arguing that the trial court violated her right to a public trial by conducting portions of voir dire and some pretrial motions in chambers without first analyzing the factors prescribed in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). The State argues that the trial court was not obligated to perform a Bone-Club analysis because the court never explicitly ordered a closure for the pretrial motions hearing or part of the jury voir dire. Based on our recent decision in State v. Erickson, 146 Wn. App. 200,189 P.3d 245 (2008), we reverse and remand for a new trial.

FACTS

¶2 The State charged Patricia Heath with two counts of unlawful possession of a firearm.

¶3 Before trial, Heath’s attorney submitted 16 motions in limine. After hearing some of the motions on August 7, 2007, the trial court adjourned, stating:

Counsel, with all due respect to both of you, we’ll take this up at 8:15. We’ll just take these points up. That way counsel will have a chance to — both counsel to look at it.

See everybody tomorrow in chambers.

Report of Proceedings (RP) (Aug. 7, 2007) at 34.

¶4 The next day, the trial court heard the remaining motions in chambers before starting the trial. Following a brief morning recess to allow defense counsel to interview potential prosecution witnesses, the parties renewed their arguments about pretrial motions. The trial court never explicitly ordered the pretrial hearing to be “closed.” It also did not analyze the chambers proceedings pursuant to Bone-Club or specifically find the need for a chambers hearing.

¶5 Later, during its explanation of the voir dire process, the trial court told the potential jurors:

Also, if you have - if you want to say something but you really don’t want to say it in public because you’re concerned that maybe you might say something that you shouldn’t say in front of everyone else, or if it’s just a personal matter, just let me know that or let the attorneys know that when they ask you a particular question and I’ll write your number down and we will take time to take all those people who are in that category, we’ll have you go one at a time into chambers, the attorneys and myself, we’ll go into chambers and on the record in there you can tell us what it is you didn’t want to say out in front of everybody else.

RP (Aug. 8, 2007) Jury Voir Dire (JVD) at 12-13. None of the jurors asked to be individually interviewed in chambers.

¶6 The court subsequently asked if any juror would start the trial with any bias or prejudice; juror 8 answered affirmatively. The court then stated:

Number 8, I’m - we’re going to go ahead and interview you — I’m just going to put you down on the list right now and interview you in chambers, so the attorneys will not be asking you any questions except in chambers.

RP (Aug. 8, 2007) JVD at 16. Neither the prosecutor nor the defense attorney objected. After the trial court finished questioning the jurors and allowed counsel to question them, the prosecutor moved to interview juror 8 “in chambers at this point.” RP (Aug. 8, 2007) JVD at 18. The defense attorney stated, “No objection” in response. RP (Aug. 8, 2007) JVD at 18. Again, the trial court did not engage in a Bone-Club analysis or set forth on the record any findings regarding the necessity of questioning juror 8 in chambers.

¶7 The jury found Heath guilty of both counts.

ANALYSIS

¶8 Heath argues that the trial court violated her right to a public trial when it conducted portions of pretrial hearings and voir dire in chambers without engaging in a Bone-Club analysis on the record. The State argues that no Bone-Club analysis was necessary because (1) the trial court did not explicitly close the hearings and (2) neither party moved to close the hearings. The State also argues that even if there was a closure, Heath either invited the error or waived her right to public hearings.¹

¶9 Whether a trial court procedure violates the right to a public trial is a question of law we review de novo. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). The remedy for such violation is reversal and remand for new trial. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004). A defendant who fails to object at the time of the closure does not waive the right. Brightman, 155 Wn.2d at 514-15.

¶10 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution each guarantee a criminal accused the right to a public trial. State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006). Additionally, article I, section 10 of the Washington Constitution states, “Justice in all cases shall be administered openly,” which provides the public itself a right to open, accessible proceedings. Easterling, 157 Wn.2d at 174. The right to public trial ensures the defendant a fair trial, reminds officers of the court of the importance of their functions, encourages witnesses to come forward, and discourages perjury. Brightman, 155 Wn.2d at 514.

¶11 Although the right to a public trial is not absolute, the “protection of this basic constitutional right clearly calls for a trial court to resist a closure motion except under the most unusual circumstances.” Bone-Club, 128 Wn.2d at 259. Thus, under Bone-Club, a court must weigh five factors to determine whether it may properly close a portion of a trial.² Bone-Club, 128 Wn.2d at 258. The court must also enter specific findings justifying closure. Easterling, 157 Wn.2d at 175.

¶12 Because the guaranty of open criminal proceedings extends to jury selection and some pretrial motions, the trial court must engage in a Bone-Club analysis before closing the court to such proceedings. See Orange, 152 Wn.2d at 804 (jury selection); Bone-Club, 128 Wn.2d 254 (pretrial suppression hearing); Easterling, 157 Wn.2d at 171-72 (pretrial severance hearing). In Erickson, 146 Wn. App. at 211, we held that conducting voir dire out of the courtroom constitutes a “closure” that mandates Bone-Club analysis even when the trial court has not explicitly closed the proceedings. See also State v. Frawley, 140 Wn. App. 713, 720, 167 P.3d 593 (2007) (Division Three holding the same). But see State v. Momah, 141 Wn. App. 705, 714, 171 P.3d 1064 (2007) (Division One holding that conducting voir dire outside of the courtroom absent an explicit order does not constitute a “closure”), review granted, 163 Wn.2d 1012 (2008).³

¶13 Where the plain language of the trial court’s ruling imposes a closure, the burden is on the State to overcome the strong presumption that the courtroom was closed. Brightman, 155 Wn.2d at 516; e.g., State v. Duckett, 141 Wn. App. 797, 807 n.2, 173 P.3d 948 (2007) (stating burden on appeal was on State to show that closing did not occur where “trial judge stated she intended to interview the selected jurors in a jury room”).

¶14 Erickson controls here. In Erickson, the trial court asked the prospective jurors if any of them wanted to be talked to privately and told them, “ You have the option to ask to have your questions asked and answered with fewer people present. . . . [I]t’s certainly possible that the answers may involve an area that you are uncomfortable talking about in front of such a large group.’ ” Erickson, 146 Wn. App. at 204 (alterations in original). Although the trial court in Erickson never explicitly ordered that closure, it interviewed four jurors in the jury room with only counsel and the court reporter present. Erickson, 146 Wn. App. at 204. We held that “[b]ecause the decision to remove individual questioning of prospective jurors outside the courtroom has more than an inadvertent or trivial impact on the proceedings, ... it acts as a closure for purposes of Bone-Club.” Erickson, 146 Wn. App. at 209.

¶15 Here, the trial court’s ruling moving voir dire of juror 8 to chambers even more strongly suggests that the trial court intended to exclude the public from the individual voir dire. The trial court stated, “[I]f you want to say something but you really don’t want to say it in public . . . just let me know [and] we’ll have you go one at a time into chambers.” RP (Aug. 8, 2007) JVD at 13 (emphasis added).

¶16 The State argues that the trial court was not required to engage in a Bone-Club analysis because neither party moved to close the hearings, thereby triggering the need for such an analysis. This argument fails because a trial court’s sua sponte decision to close public hearings triggers the need for a Bone-Club analysis.⁴ E.g., Brightman, 155 Wn.2d at 511.

¶17 The State also argues that Heath waived her right to public hearings on the disputed issues. But a defendant, by failing to object, does not waive her constitutional right to a public trial. Brightman, 155 Wn.2d at 514-15 (citing Bone-Club, 128 Wn.2d at 257); State v. Marsh, 126 Wash. 142, 146, 217 P. 705 (1923). Heath did not waive the right by failing to object.

¶18 We conclude that the trial court violated Heath’s right to a public trial by hearing pretrial motions and interviewing juror 8 in chambers without first engagingin a Bone-Club analysis. Because we presume prejudice, we reverse and remand for a new trial. See Erickson, 146 Wn. App. at 211.

Houghton, J., concurs.

1 The State also argues that Heath does not have standing to assert the public’s right to observe the trial. Heath, however, asserts her own right to a public trial, not the public's right. As noted in Bone-Club, “the five criteria a trial court must obey to protect the public’s right of access before granting a motion to close are likewise mandated to protect a defendant’s right to [a] public trial.” Bone-Club, 128 Wn.2d at 259 (emphasis added); see also Erickson, 146 Wn. App. at 205 n.2.

2 Those five factors are:

“1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused’s right to a fair trial, the proponent must show a ‘serious and imminent threat’ to that right.

“2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

“3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

“4. The court must weigh the competing interests of the proponent of closure and the public.

“5. The order must be no broader in its application or duration than necessary to serve its purpose.”

Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

3 The Supreme Court heard oral argument in this case on June 10, 2008.

4 The fact that the closure was the trial court’s sua sponte decision also precludes the State’s argument that it was invited error. See State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990) (Under the invited error doctrine, a court should decline to review a claimed error if the appealing party induced the court to err.).