State Of Wash. v. Paumier

• Decision Date: 27 April 2010
• Docket Number: No. 36346-1-II.,36346-1-II.
• Citation: 230 P.3d 212,155 Wash.App. 673
• Parties: STATE of Washington, Respondent,v.Rene P. PAUMIER, Appellant.
• Court: Washington Court of Appeals

155 Wash.App. 673

230 P.3d 212

STATE of Washington, Respondent,v.Rene P. PAUMIER, Appellant.

No. 36346-1-II.

Court of Appeals of Washington Division 2.

April 27, 2010.

COPYRIGHT MATERIAL OMITTED

Eric J. Nielsen, Andrew Peter Zinner, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Edward P. Lombardo, Mason County Prosecuting Attorney's Office, Shelton, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 Rene Paumier appeals his convictions for residential burglary and third degree theft. Because we hold that the trial court improperly excluded the public from a portion of Paumier's trial and improperly denied his right to represent himself, we reverse his convictions and remand for further proceedings.

Facts

¶ 2 When Jason Howland returned home after a weekend outing, he discovered that the back door to his residence had been broken open and that several items had been taken from his bedroom, including three knives, two watches, belt buckles, baseball hats, and other clothing items. He called police, who began an investigation regarding the burglary.

¶ 3 Police became interested in Paumier after they interviewed a neighbor who reported having seen Paumier during the weekend of the burglary exit the front of Howland's house and walk down the street. A police officer contacted Paumier, advised him why he wanted to speak with him, read Paumier his Miranda ¹ warnings, and requested to search his person and the backpack he was carrying. Paumier consented to being searched, and police found a knife and a belt buckle that Howland identified as having come from his bedroom. The State ultimately charged Paumier with residential burglary and second degree theft.

¶ 4 Following the trial court's rulings on motions in limine, jury selection began on May 8, 2007. The trial court stated at the outset that potential jurors who preferred to answer questions privately to avoid possible embarrassment would be taken into the judge's chambers. Several jurors indicated during the course of voir dire that they preferred to answer certain questions in chambers. The judge and the parties questioned five jurors in chambers, recording the jurors' responses.² Jury selection was completed that same day.

¶ 5 The following day, the trial court permitted the State to amend the information. 1 RP at 8. Paumier then pleaded not guilty and asked to represent himself, stating:

I just don't feel like a-I feel like there's [sic] things about the trial getting this far that it shouldn't have. And I feel that my attorney should have spoke [sic] up for me instead of getting

pissed off at me in court. And I just don't feel like he's doing his job like he should. I don't feel it should have gotten this far, and I'd just rather present my, you know, case myself.

1 RP at 9. The court denied the request noting that it came too late. “We have already picked our jury and we're ready to begin trial at this point, and the Court will find that the request is untimely.” 1 RP at 9.

¶ 6 Following trial, the jury found Paumier guilty of residential burglary and the lesser included offense of third degree theft. The court sentenced Paumier to 25 months in prison for the burglary and 365 days in jail for the theft, suspending the theft sentence upon compliance with a 24-month probation term.

¶ 7 Paumier appealed, arguing that his right to a public trial had been violated and that the trial court improperly denied his request to proceed pro se. On May 1, 2008, we ordered proceedings stayed pending our Supreme Court's decision in State v. Strode, no. 80849-0, addressing the public trial issue. On October 8, 2009, our Supreme Court issued its decision in State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009), along with a companion case State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009).³ We lifted the stay on November 3, 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 Paumier's appeal.

Discussion

Public Trial Right

¶ 8 Paumier argues that by conducting a portion of the jury selection in the privacy of chambers the trial court violated his constitutional right to a public trial. We agree.

¶ 9 The state and federal constitutions guarantee the right to a public trial. Article I, section 22 of the Washington 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 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 Wash.2d 167, 174, 137 P.3d 825 (2006). These provisions assure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005); Dreiling v. Jain, 151 Wash.2d 900, 903-04, 93 P.3d 861 (2004). While the public trial right is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances. Easterling, 157 Wash.2d at 174-75, 137 P.3d 825; Brightman, 155 Wash.2d at 509, 122 P.3d 150; In re Pers. Restraint of Orange, 152 Wash.2d 795, 804-05, 100 P.3d 291 (2004); State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995).

¶ 10 The guaranty of open criminal proceedings extends to voir dire. Orange, 152 Wash.2d at 804, 100 P.3d 291. In Bone-Club and Orange, our Supreme Court set out the standards for closing all or any portion of a criminal trial. Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325; Orange, 152 Wash.2d at 805, 100 P.3d 291. Bone-Club adopted a five-part analysis designed to protect a criminal defendant's right to a public trial.⁴Bone-Club, 128 Wash.2d at 258-60, 906 P.2d 325; see also Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five-part analysis under article I, section 10). Relying on these cases, Division Three held in State v. Duckett, 141 Wash.App. 797, 173 P.3d 948 (2007), that the trial court must engage in the five-part Bone-Club analysis before conducting all or a portion of voir dire outside of the public forum of the courtroom. Duckett, 141 Wash.App. at 802-03, 173 P.3d 948. In Duckett, as here, the trial court had conducted a portion of voir dire in chambers without engaging in the Bone-Club analysis. The Duckett court held that the failure to address the Bone-Club analysis and enter findings and conclusions on each factor required reversal and a new trial. Duckett, 141 Wash.App. at 803, 805, 809, 173 P.3d 948; see also State v. Frawley, 140 Wash.App. 713, 167 P.3d 593 (2007).

¶ 11 Noting “the court's independent obligation to safeguard the open administration of justice,” Duckett held that “[a]ny closure of a public judicial proceeding required the trial court to engage in the Bone-Club analysis.” Duckett, 141 Wash.App. at 804, 807, 173 P.3d 948. Here, as in Duckett, “only a limited portion of voir dire was held outside the courtroom” but that “does not excuse the failure to engage in a Bone-Club analysis.” Duckett, 141 Wash.App. at 808, 173 P.3d 948. Here, as in Duckett, the trial court violated the defendant's public trial right by conducting a portion of voir dire in chambers without first weighing the necessary factors. “Prejudice is presumed, and the remedy is a new trial.” Duckett, 141 Wash.App. at 809, 173 P.3d 948. Duckett was an accurate articulation of the law in Washington prior to our Supreme Court's decision in Momah.

¶ 12 As noted, before Momah's publication, Washington case law indicated that courtroom closure implicated considerations in addition to the rights of the defendant, that courtroom closure is a circumstances where the burden is placed on the trial court, and that the court must show why closure is necessary. Before Momah, our Supreme Court's precedent made the Bone-Club guidelines mandatory and directed that the trial court's failure to employ those requirements was reversible error. Prejudice was presumed and remand for a new trial was required. Orange, 152 Wash.2d at 814, 821-22, 100 P.3d 291.

¶ 13 In Momah, our Supreme Court 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. Instead Momah seemed to downgrade the Bone-Club guidelines by referring to them as “the better practice” rather than as requirements. Momah, 167 Wash.2d at 152 n. 2, 217 P.3d 321. Momah noted that all courtroom closures do not trigger a conclusive presumption of prejudice warranting automatic reversal of convictions and a new trial and holds that “[i]n each case the remedy must be appropriate to the violation.” Momah, 167 Wash.2d at 156, 217 P.3d 321.

¶ 14 Momah purportedly applied the United States Supreme Court's decision in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), reading that case to require “a showing that the defendant's case was actually rendered unfair by the closure.” Momah, 167 Wash.2d at 150, 217 P.3d 321. Momah pointedly noted that the remedy employed in Waller was remand for a new suppression hearing, not a new trial. Momah, 167 Wash.2d at 150, 217 P.3d 321. Momah noted that had the court in Waller automatically granted the defendant a new trial without requiring a new suppression hearing, the result would have been an improper windfall for the defendant and such result would not be in the public interest. Momah, 167 Wash.2d at 150, 217 P.3d 321.

¶ 15 Momah's treatment of the public's interest in open court proceedings is also notable. Prior to Momah, this was a...