State v. Berg
| Decision Date | 08 October 2013 |
| Docket Number | Nos. 41167–9–II, 41173–3–II.,s. 41167–9–II, 41173–3–II. |
| Citation | 310 P.3d 866,177 Wash.App. 119 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Daylan Erin BERG, and Jeffrey S. Reed, Appellants. State of Washington, Respondent, v. Jeffrey S. Reed, Appellant. |
OPINION TEXT STARTS HERE
Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, Catherine E. Glinski, Attorney at Law, Manchester, WA, for Appellants.
Abigail E. Bartlett, Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, Vancouver, WA, for Respondent.
¶ 1 After a jury trial, Daylan Berg and Jeffrey Reed were each convicted of five counts: attempted first degree murder, first degree burglary, first degree kidnapping, first degree robbery, and intimidating a witness.1 In special verdicts, the jury found that Berg and Reed committed each of the five counts while armed with a firearm and that the attempted murder was of a police officer performing his official duties. Berg and Reed appeal their convictions, arguing that (1) the exclusion of an observer from the courtroom violated their public trial rights and was erroneous as a matter of courtroom operations and (2) insufficient evidence supports their kidnapping convictions. We hold that because no courtroom closure occurred, the trial court did not violate Berg and Reed's public trial rights and further hold that any courtroom operations error was harmless. In addition, because we follow our decision in State v. Korum, 120 Wash.App. 686, 86 P.3d 166 (2004), aff'd in part and rev'd in part on other grounds,157 Wash.2d 614, 141 P.3d 13 (2006), we vacate the kidnapping convictions for insufficient evidence.
¶ 2 In the unpublished portion of this opinion, we address Berg's and Reed's other contentions: (1) Berg and Reed argue that the State committed prosecutorial misconduct by making improper remarks during closing argument and their counsel were ineffective for failing to object to these remarks, (2) Berg argues that insufficient evidence supports his conviction for witness intimidation, (3) Berg and Reed argue that the special verdict instructions violated their right to a unanimous verdict, (4) Reed argues that a witness's opinion on Reed's state of mind violated his right to a jury trial, and (5) Reed argues that cumulative error warrants reversal of his convictions. In a pro se Statement of Additional Grounds, Reed further argues (1) evidentiary error, (2) additional improper remarks in closing argument, (3) instructional error, (4) additional ineffective assistance of counsel, and (5) erroneous denial of motions for mistrial. Aside from the insufficiency of the kidnapping evidence, we reject Berg's and Reed's arguments. We affirm Berg's and Reed's convictions, except that we remand to the trial court to vacate Berg's and Reed's first degree kidnapping convictions and to resentence them accordingly.
¶ 3 Albert Watts was an authorized medical marijuana user who lived in a rented house in Vancouver, Washington. Berg and Reed learned that Watts grew marijuana in a workshop located in a walled-off portion of his garage.
¶ 4 One evening, Watts was alone in the workshop tending to the marijuana plants when Berg and Reed kicked in the door. Holding a handgun, Reed ordered Watts to the ground. Berg took the gun and pinned Watts to the floor, threatening to shoot him if he moved. Reed then went inside the house and took Watts's cell phone and wallet. Reed then loaded the marijuana plants into a white car.
¶ 5 When Reed finished loading the car, he returned to the workshop. Berg stopped pinning Watts to the floor, and Reed asked whether Watts would call the police. Watts answered that he would tell the police “nothing.” 24 Verbatim Report of Proceedings (VRP) at 1000.
¶ 6 After Reed told Watts to remain on the floor for fifteen minutes, Berg and Reed left. Three or four minutes after they left, Watts stood up and walked inside his house. Later, during Berg and Reed's flight from the scene, Berg shot a police officer, Sergeant Jay Alie.
¶ 7 The State charged Berg and Reed with five counts each: attempted first degree murder, first degree burglary, first degree kidnapping, first degree robbery, and intimidating a witness. The State sought firearm enhancements for all five counts and also charged an aggravating factor on the attempted first degree murder count, based on Sergeant Alie's status as a police officer. In addition, the State charged Reed with first degree unlawful possession of a firearm.
¶ 8 During the trial, the trial court allowed undercover officers from the Vancouver Police Department to be present in the courtroom to augment the security provided by uniformed officers from the Clark County Sheriff's office. Joel Wyman, a friend of Berg and Reed's, observed the beginning of trial from the courtroom gallery. During a recess on the third day of trial, a Sheriff's custody officer asked Wyman to leave the courtroom, and a Vancouver police detective questioned him on suspicion of intimidating a witness during a trial held the previous week. After the questioning ended, a courthouse security officer informed Wyman that “he was being trespassed from the trial, but could return to the Courthouse if he had other business to attend to.” Clerk's Papers (CP) (Reed) at 471.
¶ 9 The trial court had not authorized any officers to exclude Wyman from the courtroom and did not learn of Wyman's exclusion until Berg objected to it. The trial court denied the objection and Berg's subsequent motion for a mistrial, explaining that it had excluded no one from the courtroom and that Wyman was free to return. Further, the trial court entered an order stating that no one should be excluded from the courtroom absent good cause. However, Wyman did not return to observe the trial because he feared arrest.
¶ 10 Berg and Reed appeal their convictions.
¶ 11 Berg and Reed argue that their convictions should be reversed because the exclusion of a courtroom observer, their friend Wyman, was a courtroom closure that violated their constitutional rights to a public trial. We disagree that Wyman's exclusion constituted a courtroom closure. Berg further argues that reversal is warranted because the exclusion of Wyman amounted to a usurpation of the trial court's authority over courtroom operations. We disagree that reversal is warranted because any error in courtroom operations was harmless.
¶ 12 Berg and Reed argue that their constitutional rights to a public trial were violated when police officers excluded Wyman from the courtroom during their trial. We disagree because the exclusion of a single person is not a courtroom closure.
¶ 13 Both the United States Constitution and the Washington Constitution protect (1) a criminal defendant's right to a public trial, U.S. Const. amend. VI and Wash. Const. art. I, § 22; and (2) the public's right to the open administration of justice, U.S. Const. amend. I and Wash. Const. art. I, § 10. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012). A trial court violates these rights if it closes the courtroom during a public proceeding, unless the trial court had previously determined that closure is warranted under the five-part test set forth in State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995).2Wise, 176 Wash.2d at 12, 288 P.3d 1113.
¶ 14 Whether a courtroom closure violates a defendant's right to a public trial or the public's right to the open administration of justice is a question of law reviewed de novo. State v. Momah, 167 Wash.2d 140, 147, 217 P.3d 321 (2009). Whether a courtroom closure in fact occurred also is a question reviewed de novo. See Wise, 176 Wash.2d at 12, 288 P.3d 1113;State v. Lormor, 172 Wash.2d 85, 92–93, 257 P.3d 624 (2011).
¶ 15 Our Supreme Court recently decided that the exclusion of only one person from an otherwise open courtroom does not constitute a closure. 3Lormor, 172 Wash.2d at 93, 257 P.3d 624. Instead, the closure of a trial or similar proceeding “occurs when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.” Lormor, 172 Wash.2d at 93, 257 P.3d 624.
¶ 16 Under Lormor, Wyman's exclusion was not a courtroom closure. See172 Wash.2d at 92–93, 257 P.3d 624. Although police detained Wyman outside the courtroom while questioning him on suspicion that he had committed a crime, Wyman was the only person excluded and the courtroom remained open. And despite what the security officer told Wyman, the trial court stated that Wyman was allowed to return to observe the trial. Because no courtroom closure occurred, the trial court did not violate Berg and Reed's right to a public trial or the public's right to the open administration of justice.4Wise, 176 Wash.2d at 12, 288 P.3d 1113. Berg and Reed's public trial argument fails.
¶ 17 Relying on Lormor, 172 Wash.2d at 93, 257 P.3d 624, Berg also argues that, even if no courtroom closure occurred, reversal is warranted because the officer who excluded Wyman also usurped the trial court's inherent power to preserve and enforce order in the courtroom.5 We disagree that reversal is warranted.
¶ 18 When public trial rights are not implicated, we analyze the exclusion of a person from a courtroom as a matter of courtroom operations. Lormor, 172 Wash.2d at 93, 257 P.3d 624. Trial courts possess broad inherent power and statutory authority over courtroom operations. Lormor, 172 Wash.2d at 93–94, 257 P.3d 624.
¶ 19 We review matters of courtroom operations for an abuse of discretion. Lormor, 172 Wash.2d at 94, 257 P.3d 624. A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or made for untenable reasons. State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003). When a decision is within a trial court's discretion but the...
To continue reading
Request your trial
-
State v. Berg
...evidence to convict them of kidnapping because the kidnapping conduct was merely incidental to the robbery.1 State v. Berg, 177 Wash.App. 119, 136–38, 310 P.3d 866 (2013) (partially published). The Court of Appeals credited the defendants' argument and held that the trial court lacked suffi......
-
State v. Berg, 89570–8.
...sufficient evidence to convict them of kidnapping because the kidnapping conduct was merely incidental to the robbery.1 State v. Berg, 177 Wash.App. 119, 136–38, 310 P.3d 866 (2013) (partially published). The Court of Appeals credited the defendants' argument and held that the trial court l......
-
State v. Dagraca
...614, 141 P.3d 13 (2006)). Here, we review de novo the trial court's conclusion of law that the restraint was not incidental to the robbery. In Berg, we held that, as a matter of law, restraint was incidental to the . . . robbery when (1) facilitating the robbery was the restraint's sole pur......
-
State v. Dagraca
...614, 141 P.3d 13 (2006)). Here, we review de novo the trial court's conclusion of law that the restraint was not incidental to the robbery. In Berg, we held that, as a matter of law, thatrestraint was incidental to the . . . robbery when (1) facilitating the robbery was the restraint's sole......