State v. Applegate

• Decision Date: 08 September 2011
• Docket Number: No. 64100–0–I.,64100–0–I.
• Citation: 163 Wash.App. 460,259 P.3d 311
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Ronald Eugene APPLEGATE, Appellant.

163 Wash.App. 460

259 P.3d 311

STATE of Washington, Respondent,

v.Ronald Eugene APPLEGATE, Appellant.

No. 64100–0–I.

Court of Appeals of Washington, Division 1.

Aug. 8, 2011.As Amended Sept. 8, 2011.

Lila Silverstein, Washington Appellate Project, Seattle, WA, for Appellant.Hilary A. Thomas, Whatcom County Prosecutor's Office, Bellingham, WA, for Respondent.

OPINION PUBLISHED IN PART

LEACH, A.C.J.

[163 Wash.App. 462] ¶ 1 A criminal defendant can waive his constitutional right to a public trial if that waiver is knowing, voluntary, and intelligent. Here, after a discussion with his attorney, Ronald Eugene Applegate consented to the in-chambers questioning of a single juror during jury selection. We hold that Applegate waived his public trial right.

¶ 2 Applegate also challenges his exceptional sentence on the basis that the aggravating factors found by the jury violated double jeopardy and due process provisions and constituted an improper retroactive application of a statutory amendment. Finally, Applegate raises several arguments in a statement of additional grounds. Because none of Applegate's arguments, whether raised through counsel or pro se, have merit, we affirm.

FACTS

¶ 3 In 1996, the State charged Applegate with six counts of second degree rape of a child for incidents in 1988 and 1989 involving his wife's daughter, A.F., and niece, D.R. Applegate fled to Oregon, where he lived under an alias.¹ He was arrested in 2004.²

¶ 4 Applegate's first trial occurred in the interim between the United States Supreme Court's decision in Blakely v. Washington³ and our legislature's enactment of statutory procedures for submitting evidence of aggravating factors for sentencing to a jury.⁴ Before that trial, the prosecutor filed a notice alleging three aggravating factors: “that the offenses were part of an ongoing pattern of domestic violence, were part of an ongoing pattern of sexual abuse, and resulted in the pregnancy of one of the child victims.” ⁵ The trial court submitted the aggravating factors to the jury, which returned a guilty verdict on all six counts and “found each of the aggravating factors proved beyond a reasonable doubt.” ⁶

¶ 5 Applegate appealed to this court, arguing that at the time of his trial, the Sentencing Reform Act of 1981(SRA) ⁷ did not yet authorize the trial court to submit the aggravating factors for jury determination.⁸ The State conceded error, and this court vacated Applegate's sentence and remanded for further proceedings.⁹ We held that the then current version of RCW 9.94A.537(2) ¹⁰ authorized the trial court to impanel a jury on remand to consider the alleged aggravating circumstances.¹¹

¶ 6 On remand, the State presented to a jury evidence of two aggravating factors: ongoing pattern of domestic violence and ongoing pattern of sexual abuse. A.F. and D.R. testified for the State. A.F. told the jury that Applegate sexually abused her two to three times per week between the ages of 9 and 14, when she left home. On cross-examination, A.F. admitted that she initially denied the abuse to her mother.

¶ 7 D.R. testified that she began living with her aunt and Applegate when she was 6 years old. D.R. said that Applegate sexually abused her two to three times per week between the ages of 10 and 19. D.R. and A.F. further testified that Applegate's abuse resulted in D.R.'s pregnancy when she was 15 years old. D.R. admitted that she initially denied the abuse when questioned by family members and school counselors but said she did so because she was scared.

¶ 8 Applegate's wife and stepson testified in his defense. Both stated that they were unaware that any abuse had occurred.

¶ 9 The jury found each aggravating factor proved beyond a reasonable doubt. The trial court entered findings of fact and concluded that either one of the aggravating factors was a substantial and compelling reason justifying an exceptional sentence and imposed the 10–year statutory maximum.

ANALYSIS

¶ 10 Applegate contends that by conducting a portion of jury selection in chambers, the trial court violated his right to a public trial under the Sixth Amendment to the United States Constitution and article I, sections 10 and 22 of the Washington State Constitution. Because Applegate affirmatively waived his public trial rights for the purposes of privately questioning juror 2, we disagree.

¶ 11 During pretrial motions, the trial court announced, “Any jurors who wish to speak privately, we can address that. I still don't know if we have a verdict on the Momah and the Frawley cases from the Supreme Court. I don't think we do. I would expect to follow the Momah line of cases.” The court asked if anyone would object “if an individual juror wishes to speak about some of the issues perhaps raised in the questionnaire or in voir dire that we take the public session into a less open setting.” No one objected. Defense counsel stated, “I leave it entirely to the Court's discretion. This is not an issue for me.” The prosecutor noted, however, that the determination was not entirely within the court's discretion: “So the defense counsel needs to address whether he objects or his client.” The trial court responded,

Under Momah, as I recall, it didn't even state that the factors need to be specifically addressed, because it still is a trial of record. We can still address those factors at another time. And I will direct Mr. Nelson to discuss that with his client and then to let us know what his client's wishes are in that regard.

During this discussion, the prosecutor observed that one member of the public was present in the courtroom. That person made no objection to the trial court's proposal.

¶ 12 Once voir dire had begun, the trial court indicated that juror 2 wished to speak in chambers. The following exchange occurred,

THE COURT: Is there any member of the jury panel or any member of the public who is present who has an objection to our speaking with juror No. 2 I guess in my office? It would be a public proceeding. Any member of the public that is available to come in I will have the outer door open for that purpose.

Is there any objection from anyone in the courtroom? Counsel, I evaluated the factors set forth by case law and I think all those factors have been met.

MR. SETTER: Except the record doesn't reflect that the defendant has no objection to that process or defense counsel.

THE COURT: That's the next question I'm going to ask, that in terms of I believe the five factors set forth referred to as the [ Bone–Club ] factors. I believe those have been met.

Mr. Nelson, do you or your client have any objection to—

MR. NELSON: No.

THE COURT: Are you speaking for yourself and for your client?

MR. NELSON: I'm not speaking for my client. I'm speaking for myself as his counsel. I don't know if he heard.

THE COURT: All right. Well, we have addressed it previously. I'll let you step into my [o]ffice to discuss it with him.

....

MR. NELSON: For the record, I have talked it over with Mr. Applegate. He has no objection and I have no objection to going back into chambers and asking these questions without the public hearing.

THE COURT: It must remain a public proceeding. So I will open the doors to my office.

¶ 13 The individual voir dire of juror 2 then commenced, with the judge, Applegate, counsel, the clerk, and court reporter present in chambers. The judge stated, “Okay. We are in my chambers. Juror No. 2 is present. The inner and outer door to my chambers are open. The courtroom door is closed, but this must remain a public proceeding.”

¶ 14 We review de novo as a question of law whether this procedure violated Applegate's right to a public trial.¹² The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Similarly, article I, section 22 of the Washington Constitution guarantees, “In criminal prosecutions the accused shall have the right ... to have a speedy public trial.” And article I, section 10 secures the public's right to open and accessible proceedings, mandating that “[j]ustice in all cases shall be administered openly.” These provisions assure a fair trial, foster public understanding and trust in the judicial system, and provide judges with the check of public scrutiny.¹³ While the public trial right is not absolute, Washington courts strictly guard it to ensure that proceedings occur outside the public courtroom in only the most unusual circumstances.¹⁴

¶ 15 To protect a defendant's right to a public trial, our Supreme Court held in State v. Bone–Club ¹⁵ that a trial court must apply and weigh five factors before closing a portion of a criminal trial. Under Bone–Club,

“1. The proponent of the closure ... 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 then necessary to serve its purpose.” ¹⁶

¶ 16 In addition to applying and weighing the Bone–Club factors on the record, the trial court must enter specific findings justifying its closure order.¹⁷ Generally, if a trial court fails to follow these procedures, this court presumes prejudice,¹⁸ reverses the conviction, and remands for a new trial.¹⁹

¶ 17 As a threshold matter, we consider the State's argument that questioning juror 2 in chambers was not a courtroom closure within the public trial rights context. When determining whether a courtroom closure occurred, we look to the plain language of the trial court's ruling.²⁰...