State v. Leyerle , 158 Wash. App. 474 ( 2010 )

Van Deren, J.

¶1 Michael Lee Leyerle appeals his conviction for unlawful possession of methamphetamine, asserting that the trial court improperly conducted a portion of voir dire outside of the courtroom and, therefore, a new trial is warranted. We agree, reverse Leyerle’s conviction for unlawful possession of methamphetamine, and remand for further proceedings.

FACTS

¶2 The State charged Leyerle with unlawful possession of methamphetamine on November 16, 2007.¹ During voir dire, the trial court asked if any jurors felt that they could not be impartial if they were to be on Leyerle’s jury. When a prospective juror indicated that he could not be impartial, the trial court asked the prospective juror and both counsel to join him in the hallway. The hallway discussion between the trial judge, prosecutor, defense counsel, and the prospective juror was recorded.² The trial judge asked defense counsel if Leyerle wanted to join them in the hallway. Defense counsel’s response was inaudible and not recorded, but later, before they returned to the courtroom, the trial judge stated, “There were no spectators who waived their right to be here[; defendant] doesn’t want to be here and his counsel said [he] didn’t want to be here. Isn’t that correct?” Report of Proceedings (RP) Voir Dire at 20. Defense counsel responded affirmatively.

¶3 In the hallway, the prospective juror explained that, based on his many years as a law enforcement officer in California, “[he] would be prejudiced] towards the law enforcement side.” RP Voir Dire at 19. Defense counsel successfully challenged the prospective juror for cause. Also in the hallway, defense counsel noted that he had had “[a]lmost twenty-five years of pretty constant contact” with another potential juror. RP Voir Dire at 21. The State said it would question the juror about those contacts and later did so in open court.

¶4 The trial judge, prosecutor, defense counsel, and the prospective juror then returned to the courtroom. The trial court excused the prospective juror. Then, voir dire resumed and a jury was seated that ultimately convicted Leyerle of unlawful possession of methamphetamine.

¶5 Leyerle appeals, arguing that the trial court erred by conducting a portion of voir dire outside the courtroom.³

ANALYSIS

¶6 We note at the outset that our recent decision in State v. Paumier, 155 Wn. App. 673, 230 P.3d 212, review granted, 169 Wn.2d 1017, 236 P.3d 206 (2010) resolves this case. We adhere to and apply Paumier to Leyerle’s appeal.

¶7 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 a violation is reversal and remand for a 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.

¶8 The state and federal constitutions guarantee the right to a public trial. Article I, section 22 of the Washington State Constitution provides, “In criminal prosecutions the accused shall have the right ... to have a speedy public trial.” The Sixth Amendment to the United States Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Moreover, article I, section 10 of the Washington State Constitution provides that “[j]ustice in all cases shall be administered openly, and without unnecessary delay.” This provision secures the public’s right to open and accessible proceedings. State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006). These provisions ensure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. Brightman, 155 Wn.2d at 514; Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 P.3d 861 (2004). While the public trial right is not absolute, it is strictly guarded to ensure that proceedings occur outside the public courtroom in only the most unusual circumstances. Easterling, 157 Wn.2d at 174-75; Orange, 152 Wn.2d at 804-05; State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).

¶9 The guaranty of open criminal proceedings extends to voir dire. Orange, 152 Wn.2d at 804. In Orange and Bone-Club, our Supreme Court set out the standards for closing all or any portion of a criminal trial. Orange, 152 Wn.2d at 800, 805; Bone-Club, 128 Wn.2d at 258-59. Bone-Club adopted a five-part analysis designed to protect a criminal defendant’s right to a public trial.⁴ 128 Wn.2d at 258-60; see also Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five-part analysis under the Washington State Constitution article I, section 10).

¶10 Our Supreme Court has explained that Bone-Club’s “five-step closure test” is essentially a restatement and adoption of the federal closure criteria expressed in Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).⁵ See Orange, 152 Wn.2d at 805-07; see also Brightman, 155 Wn.2d at 515 n.5. As we explained in Paumier, “[0]ur Supreme Court [in State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009),] seemed to back away from its earlier articulation in Orange that application of the Bone-Club guidelines is required and that the failure to so employ them when closing the courtroom is reversible error.” 155 Wn. App. at 680.

¶11 Momah purportedly relied on Waller in concluding that a new trial was not warranted where the trial court closed voir dire without applying the Bone-Club criteria. The Momah court opined that “the [Waller] Court required a showing that the defendant’s case was actually rendered unfair by the closure.” 167 Wn.2d at 150.

¶12 In State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009), Momah’s companion case, the lead opinion reiterated and applied Orange’s conclusion — that the trial court must employ the Bone-Club criteria before any courtroom closure and the failure to employ that criteria is reversible error. See 167 Wn.2d at 227-28. But Strode was a plurality decision published the same day as Momah, thus leaving unclear whether the Bone-Club criteria was a prerequisite for courtroom closure. ⁶ See Paumier, 155 Wn. App. at 679-83.

f 13 Shortly after Momah and Strode were issued, the United States Supreme Court decided Presley v. Georgia, _ U.S. _, 130 S. Ct. 721, 723, 175 L. Ed. 2d 675 (2010), holding that under the First and Sixth Amendments, voir dire of prospective jurors must be open to the public and that this requirement is “binding on the States.” See also Paumier, 155 Wn. App. at 683-86. Presley made clear that Waller provided the appropriate standards for courts to apply before excluding the public from any stage of a criminal trial. Presley, 130 S. Ct. at 724.

¶14 Noting that “[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials,” Presley, 130 S. Ct. at 725, the Court reiterated that “ ‘[a]bsent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire! ” Presley, 130 S. Ct. at 724 (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 511, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). Moreover, “trial courts are required to consider alternatives to closure even when they are not offered by the parties” because “[t]he public has a right to be present whether or not any party has asserted the right.” Presley, 130 S. Ct. at 724-25. Additionally, the trial court must make appropriate findings supporting its decision to close the proceedings. Presley, 130 S. Ct. at 725.

¶15 Presley held that “even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure.”Presley, 130 S. Ct. at 725. Thus, where the trial court fails to sua sponte consider reasonable alternatives and fails to make the appropriate findings, the proper remedy is reversal of the defendant’s conviction. Presley, 130 S. Ct. at 725. As we held in Paumier, “Presley, applying the federal constitution, resolves any question about what a trial court must do before excluding the public from trial proceedings, including voir dire.” 155 Wn. App. at 685.

¶16 In his supplemental briefing, Leyerle, as did Paumier, argues that his case is factually more like Strode than it is like Momah. The State contends otherwise. Such debate is of no significance, however, because as we acknowledged in Paumier, Presley has eclipsed Momah and Strode and controls the outcome of this case.⁷

¶17 The State contends that Leyerle waived any courtroom closure issue when defense counsel acknowledged that Leyerle did not wish to be present during the prospective juror’s interview in the hallway. We disagree. As our Supreme Court reiterated in Strode, “[A] ‘defendant’s failure to lodge a contemporaneous objection at trial [does] not effect a waiver.’ ” 167 Wn.2d at 229 (second alteration in original) (quoting Brightman, 155 Wn.2d at 517). “[Defendant]’s failure to object to the closure or his counsel’s participation in closed questioning of prospective jurors did not . . . constitute a waiver of his right to a public trial.”⁸ Strode, 167 Wn.2d at 229.

¶18 Additionally, a defendant “cannot waive the public’s right to open proceedings.” Strode, 167 Wn.2d at 229. This is so because “the public also has a right to object to the closure of a courtroom, and the trial court has the independent obligation to perform a Bone-Club analysis.” Strode, 167 Wn.2d at 229-30. “The public has a right to be present whether or not any party has asserted the right,” thus trial courts are required to consider alternatives to closure even when the parties do not offer such alternatives. Presley, 130 S. Ct. at 724-25.

¶19 The State also contends, and the dissent agrees, that “[t]here is nothing to indicate that the hallway was not open to the public” and thus “there was no closure.” Suppl. Br. of Resp’t at 1; dissent at 488-90. But we have 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.” State v. Heath, 150 Wn. App. 121, 127, 206 P.3d 712 (2009) (citing State v. Erickson, 146 Wn. App. 200, 211, 189 P.3d 245 (2008)); see also State v. Duckett, 141 Wn. App. 797, 808, 173 P.3d 948 (2007) (even where only “a limited portion of voir dire was held outside the courtroom,” that fact “does not excuse the [trial court’s] failure to engage in a Bone-Club analysis”); State v. Frawley, 140 Wn. App. 713, 720, 167 P.3d 593 (2007). 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”), aff’d on other grounds, 167 Wn.2d 140 (2009); State v. Wise, 148 Wn. App. 425, 436, 200 P.3d 266 (2009) (trial court was not required to sua sponte conduct Bone-Club analysis before temporary relocation of voir dire to chambers for the purpose of asking prospective jurors sensitive questions). While there is disagreement among the noted decisions, Heath, Erickson, Frawley, and Duckett comport with Presley, and we adhere to those decisions.⁹

¶20 Finally, the State contends, and the dissent agrees, that any violation here of the public trial right was de minimis. Again, we disagree. As we previously stated in Erickson:

We agree with the principle stated in Duckett that “the guaranty of a public trial under our constitution has never been subject to a de minim[i]s exception.” 141 Wn. App. at 809. Even though one can articulate pragmatic and salutary reasons for moving voir dire outside the courtroom in certain circumstances, such a course of action requires the trial court to engage in a Bone-Club inquiry before doing so.

Erickson, 146 Wn. App. at 211. Similarly, our Supreme Court observed in Strode that it “ ‘has never found a public trial right violation to be [trivial or] de minimis.’ ” 167 Wn.2d at 230 (alteration in original) (quoting Easterling, 157 Wn.2d at 180); see also Presley, 130 S. Ct. at 724-25 (holding that it is the trial court’s obligation to take every reasonable measure to accommodate public attendance at criminal trials, and absent that court’s consideration of alternatives to closure, it could not constitutionally close voir dire).

¶21 As we held in Paumier, “Presley, applying the federal constitution, resolves any question about what a trial court must do before excluding the public from trial proceedings, including voir dire.” 155 Wn. App. at 685. Similar to what occurred in Paumier, the trial court conducted a portion of voir dire outside the public forum of the courtroom. By doing so, without first considering alternatives to such closure of this portion of the voir dire proceedings and making appropriate findings explaining why such closure was necessary, the trial court violated Leyerle’s and the public’s right to an open proceeding. Presley requires reversal of Leyerle’s conviction for unlawful possession of methamphetamine, and we so hold.¹⁰

¶22 We reverse Leyerle’s conviction and remand for further proceedings consistent with this opinion.¹¹

Bridgewater, J., concurs.

1 The trial court dismissed a second charge and that determination is not before us on appeal.

2 The means of this recording is not in the record but the parties explained at oral argument that events in a hallway can be videotaped and audio recorded.

3 On November 21, 2008, we ordered proceedings stayed pending our Supreme Court’s decisions in State v. Strode, No. 80849-0, and State v. Momah, No. 81096-6, addressing the public trial issue. On October 8, 2009, our Supreme Court issued its decisions in State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009) and State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009). We lifted the stay on October 29, 2009, and ordered the parties to provide supplemental briefing on the impact of Strode and Momah on this case. The parties have provided that briefing and we now consider Leyerle’s appeal.

4 The Bone-Club analysis provides:

“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.”

128 Wn.2d at 258-59 (alteration in original) (internal quotation marks omitted) (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

5 The Waller standards require:

[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

467 U.S. at 48.

6 The presumption that trials should be open may be overcome “only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.” To assure careful, case-by-case analysis of a closure motion, a trial court faced with the question of whether a portion of a trial should he closed must ensure that the . . . five [Bone-Club] criteria sire satisfied.

Strode, 167 Wn.2d at 227 (citations omitted) (internal quotation marks omitted) (quoting Orange, 152 Wn.2d at 806).

7 As our Supreme Court has observed in another context, “[United States] Supreme Court application of the United States Constitution establishes a floor below which state courts cannot go.” State v. Sieyes, 168 Wn.2d 276, 292, 225 P.3d 995 (2010) (addressing the right to bear arms under article I, section 24 of the Washington State Constitution and the Second Amendment). That tenet applies equally here.

8 Moreover, a defendant’s right to a public trial can be waived only in a “knowing, voluntary, and intelligent manner.” Strode, 167 Wn.2d at 229 n.3. Here, the record is silent about whether a colloquy, writing, or other personal expression by Leyerle indicated that he knowingly, voluntarily, and intelligently waived his right to participate in voir dire of the prospective juror. While such failure would apparently provide yet another basis for reversing Leyerle’s conviction, we need not belabor that matter in light of our determination that Presley’s requirements resolve this case.

We do note, however, that the dissent misconstrues the record on a related point when it states that “Leyerle was not excluded; rather, he chose to stay in the courtroom on the recommendation of his counsel. IVRP at 20.” Dissent at 490. The record is silent on whether counsel so advised the defendant or whether Leyerle was otherwise advised of his right to be present. Addressing a similar circumstance, Division Three opined in State v. Duckett:

Here, the court never advised Mr. Duckett of his public trial right or asked him to waive it. He certainly could not then make a knowing, intelligent, and voluntary waiver of this constitutional right. While Mr. Duckett was told he had the right to be present during individual questioning of the selected jurors, and validly waived that right, that is all he waived. We disagree that he “presumably was aware of the right to have the public present” and impliedly waived it, when this right was never addressed. See Br. of Resp’t at 9. Moreover, we question whether Mr. Duckett could waive the public’s right to open proceedings. Any closure of a public judicial proceeding required the trial court to engage in the Bone-Club analysis. That was not done here.

141 Wn. App. 797, 806-07, 173 P.3d 948 (2007) (emphasis added). As in Duckett, the trial court here similarly failed to engage in required procedures before conducting a portion of voir dire outside the courtroom. Additionally, there is no evidence in the record that Leyerle received even the inadequate advisements that Duckett received.

9 The dissent opines that there was no closure here because the interview “took place in a public setting” and was recorded. Dissent at 489. But the record is silent regarding whether or to what extent the proceeding in the hallway was accessible by the public. And, in any event, in our view the presumptively appropriate public forum for proceedings in this case was the public courtroom. Again, we agree with Duckett, wherein Division Three opined:

[T]he State suggests that the courtroom was not in fact closed by the trial court’s decision to interview the selected jurors in chambers. To the extent the State’s argument is that the court did not enter a closure order, we look to the record to determine the presumptive effect of the court’s directive. The trial judge stated she intended to interview the selected jurors in a jury room. The State bears the burden on appeal to show that, despite the court’s ruling, a closure did not occur.

141 Wn. App. at 807 n.2 (citation omitted). Here, the State has not convincingly shown that proceedings removed from the public forum of the courtroom did not amount to a closure.

Nor does the recording of the hallway interview excuse the trial court’s failure to follow required procedures before removing trial proceedings from the public forum of the courtroom. Separate questioning of potential jurors is routinely recorded, see, e.g., Strode, 167 Wn.2d at 224 n.l, and the mere existence of such recordings, and thus the public’s potential ability to access those recordings through determined effort, plays no role in deciding whether a trial court has observed proper courtroom closure procedures. See, e.g., Strode, 167 Wn.2d at 223 (holding that the trial court violated defendant’s right to a public trial by conducting a portion of jury selection in the trial judge’s chambers “in unexceptional circumstances” without first performing the required Bone-Club analysis; such error was structural requiring reversal of defendant’s conviction and remand for a new trial).

The dissent further notes there were no members of the public in the courtroom during the hallway voir dire of the potential juror. But that is not dispositive. Actual attendance by the public is not a precondition that triggers the trial court’s duty to follow required courtroom closure procedures, which are intended to ensure that all public trial rights are protected. The burden to protect those rights resides with the trial court.

The conclusion that trial courts are required to consider alternatives to closure even when they are not offered by the parties is clear not only from this Court’s precedents but also from the premise that “[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system.” The public has a right to be present whether or not any party has asserted the right.

Presley, 130 S. Ct. at 724-25 (alteration in original) (citation omitted) (quoting Press-Enter., 464 U.S. at 505). Press-Enterprise, upon which Presley relied, explained the importance of the rights involved and how they are to be protected as follows:

[BQow we allocate the “right” to openness as between the accused and the public, or whether we view it as a component inherent in the system benefiting both, is not crucial. No right ranks higher than the right of the accused to a fair trial. But the primacy of the accused’s right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness.

... The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.

464 U.S. at 508. The Court concluded:

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enter., 464 U.S. at 510; see also Strode, 167 Wn.2d at 227 (quoting Orange, 152 Wn.2d at 806 (quoting Waller, 467 U.S. at 45 (quotingPress-Enter., 464 U.S. at 510))).

10 The dissent argues in part that Presley is distinguishable because the defendant therein objected to the trial court’s closure of the courtroom during voir dire. Dissent at 492-96. In light of our Supreme Court’s repeated holding that a defendant’s failure to object does not waive the public trial right, we do not agree that the absence of an objection here is a valid basis for distinguishing Presley. See Strode, 167 Wn.2d at 229; Brightman, 155 Wn.2d at 517; Bone-Club, 128 Wn.2d at 257.

The dissent also contends that Presley does not create a bright-line rule. But Presley speaks in broad terms, drawing on the Supreme Court’s First and Sixth Amendment precedent to hold that when a trial court closes voir dire it must first apply Waller’s closure criteria and the failure to do so requires reversal. See Presley, 130 S. Ct. at 724-25 (applying Waller and Press-Enter.).

The dissent contends that Presley does not overrule Waller and focuses on the remedy employed in Waller, which was remanded for a new suppression hearing rather than a new trial and which the Waller Court held was a remedy “appropriate to the violation.” Waller, 467 U.S. at 50. But Presley explains how Waller is to be applied in the voir dire context. Indeed, Presley relied on and applied Waller in holding that in the context of courtroom closure during voir dire, the appropriate remedy is reversal where the trial court fails to first apply the Waller criteria. See Presley, 130 S. Ct. at 724-25.

Finally, the dissent contends that Presley is limited to its specific facts, particularly the fact that the defendant therein objected to the trial court’s excluding defendant’s uncle from the courtroom during voir dire. Dissent at 492-94. But nowhere in the Presley decision does the Supreme Court specifically link its holding, reversing and remanding for a new trial, to an “objection” prerequisite. Presley clearly holds that a trial court is obligated to first apply the Waller criteria before closing voir dire, and the trial court’s failure to so act requires reversal and a new trial. See Presley, 130 S. Ct. at 724-25.

11 We would normally order a new trial but, because the parties indicated at oral argument that they did not know whether Leyerle is still in custody on this conviction, we leave to the parties the pursuit of further proceedings as appropriate, which may include, for example, a new trial or a plea and credit for time served.