State v. Beskurt

• Decision Date: 07 February 2011
• Docket Number: No. 62872–1–I.,62872–1–I.
• Citation: 159 Wash.App. 819,246 P.3d 580
• Parties: STATE of Washington, Respondent,v.Emir Beskurt, Samet Bideratan, Turgut Tarhan, Defendants,Taner TARHAN, Appellant.
• Court: Washington Court of Appeals

159 Wash.App. 819

246 P.3d 580

STATE of Washington, Respondent,

v.Emir Beskurt, Samet Bideratan, Turgut Tarhan, Defendants,Taner TARHAN, Appellant.

No. 62872–1–I.

Court of Appeals of Washington, Division 1.

Feb. 7, 2011.

Randi J. Austell, Attorney at Law, King Co. Pros. Attorney, Seattle, WA, for Respondent.

Steven Witchley, Ellis Holmes & Witchley PLLC, Seattle, WA, for Appellant.

PUBLISHED IN PART

COX, J.

[159 Wash.App. 821] ¶ 1 Taner Tarhan appeals his conviction for rape in the third degree. The conviction arose from a group sexual encounter with H.W. that involved Taner and three other defendants.¹ All defendants were jointly prosecuted and tried together before a jury.

¶ 2 Tarhan primarily argues on appeal that we should reverse his conviction and grant him a new trial because the trial court sealed preliminary juror questionnaires used during voir dire of the venire without first conducting a Bone–Club analysis.² We hold that there was no violation of Taner's constitutional right to a public trial. But because the trial court sealed the questionnaires without first conducting the required analysis, we remand for a Bone–Club hearing and reconsideration of the sealing order.

¶ 3 Taner's remaining claims on appeal are primarily based on arguments that this court previously addressed in the opinion disposing of the appeals of his co-defendants. Because the reasoning in that opinion applies to this case, we reject Taner's remaining claims in this appeal.

¶ 4 In June 2007, twenty-year-old H.W. and her friends, Caroline Concepcion and Spencer Crilly, were relaxing at the women's apartment building in the Capitol Hill neighborhood of Seattle. They planned to make dinner and have a few drinks. While cooking in their kitchen, H.W. and Concepcion looked out the window and saw their male neighbors one floor below. The women waved and gestured for the men to come join them. A few minutes later, Emil Beskurt, Turgut Tarhan, and Samet Bideratan arrived at H.W.'s apartment. Taner, Turgut Tarhan's twin brother, joined the group later.

¶ 5 The men introduced themselves, and H.W. learned that they were visiting from Turkey on student visas. After a few minutes of chatting and drinking beer, the group agreed to go to the apartment downstairs, where Beskurt lived. Crilly, who had an intimate dating relationship with H.W., declined to join the group.

¶ 6 Everyone continued to socialize. H.W. chatted with the four men while sitting on the futon in Beskurt's living room. At some point, Concepcion slipped out to go to the store. H.W. did not notice her leaving.

¶ 7 During Concepcion's absence from the apartment, Beskurt, Bideratan, Turgut, and Taner all had sexual intercourse with H.W. At trial, she testified that she did not consent to sexual intercourse with any of the men.

¶ 8 The State charged all four men with rape in the second degree, contrary to RCW 9A.44.050(1)(a).³ They were tried jointly before a jury.

¶ 9 Prior to commencing jury selection, the parties stipulated and the court agreed that the members of the venire would complete a confidential questionnaire that included questions concerning their sexual histories. After the answers were made available to counsel, they questioned the members of the venire in open court. Thereafter, all parties selected and accepted the jury, as constituted.

¶ 10 Following the selection, acceptance, and swearing of the jury, the court entered an order sealing the completed questionnaires. That order, entered on July 8, 2008, states:

The court having reviewed the applicant's motion and declaration to seal specific documents or this file, and pursuant to applicable case law and court rules, finds compelling circumstances to grant the order exist as follows:

Jurors signed confidential questionnaires containing private information concerning sexual abuse with the understanding that the questionnaires would be sealed. ⁴

Despite the wording in the typed first paragraph of this order, there is nothing in the record showing that any party moved to seal the questionnaires. It is undisputed that the trial court did not hold a Bone–Club hearing before entering this sealing order.

¶ 11 A jury convicted Taner of the lesser included offense of rape in the third degree, contrary to RCW 9A.44.060(1)(a).⁵ The court sentenced all defendants to 10 months confinement and 36 to 48 months of community custody.⁶

¶ 12 Taner appeals.

OPEN AND PUBLIC TRIAL

¶ 13 Taner argues that the trial judge violated his right to an “open and public” trial by sealing preliminary juror questionnaires without first conducting a Bone–Club analysis on the record.⁷ We hold that there was no violation of his right to a public trial. But the trial court's failure to conduct a Bone–Club hearing before sealing the questionnaires is inconsistent with the public's right of open access to court records. Accordingly, remand for reconsideration of the sealing order at such a hearing is required.

¶ 14 An accused's right to a public trial is protected by both the state and federal constitutions. The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” ⁸ Similarly, article I, section 22 of the Washington Constitution provides “[i]n criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury.” ⁹

[159 Wash.App. 825] ¶ 15 Article I, section 10 of the Washington Constitution also provides that “[j]ustice in all cases shall be administered openly.” ¹⁰ This provision has been interpreted as protecting the right of the public and the press to open and accessible court proceedings, similar to the public's right under the First Amendment.¹¹

These [respective constitutional] provisions “assure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny.” The guarantee of open criminal proceedings extends to jury selection, which is important “ ‘not simply to the adversaries but to the criminal justice system.’ ” ¹²

¶ 16 In State v. Bone–Club,¹³ the Washington Supreme Court set out the standards for closing all or any portion of a criminal trial.¹⁴ The court adopted a five part analysis that applies to protect both the public's right under article I, section 10, and the defendant's right under article I, section 22:

“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.” ¹⁵

In State v. Waldon,¹⁶ this court held the same analysis applies to the sealing of court documents.¹⁷

¶ 17 If this court determines that the defendant's right to a fair public trial has been violated, it devises a remedy appropriate to that violation.¹⁸ If the error is structural in nature, automatic reversal of the conviction and remand for a new trial are required.¹⁹ An error is structural when it “ ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” ²⁰ However, in each case the “remedy must be appropriate to the violation.” ²¹

¶ 18 Whether a defendant's right to a public trial has been violated is a question of law, subject to de novo review.²²

¶ 19 Here, Taner argues that the sealing of the jury questionnaires violated his public trial right under article I, section 22.²³ But he also cites to article I, section 10, which generally requires public access to court records, in support of his claim.²⁴

[159 Wash.App. 827] ¶ 20 This court addressed the question of whether sealing of juror questionnaires violated these two constitutional provisions in State v. Coleman.²⁵ That case was a prosecution for rape and multiple counts of first degree child molestation that allegedly involved a nine-year-old. ²⁶ The members of the venire completed questionnaires that included matters concerning their sexual histories.²⁷ Once the completed questionnaires were provided to counsel, selection of the jury proceeded in open court.²⁸ The parties accepted the jury, as constituted, and the court swore the jury.²⁹

¶ 21 Three days after the jury was sworn, the court ordered the questionnaires sealed, finding:

The court finds compelling circumstances for sealing the documents indicated below:

Jury questionnaires containing personal sexual history of prospective jurors related to issues in this case. The individual juror's right to privacy in this information greatly outweighs the public's right to access the court files. ³⁰

The court did not hold a Bone–Club hearing to consider whether sealing was proper and appears to have ordered sealing on its own motion. ³¹ The jury convicted Coleman of two counts of molestation, acquitted him of a third, and failed to reach a verdict on the rape charge.³²

¶ 22 On appeal, Coleman argued that the trial court's failure to undertake a Bone–Club analysis before entering its sealing order violated both “his right and that of the public to an open and public trial.” ³³ He further claimed that these violations constituted structural error, requiring a new trial.

¶ 23 This court concluded that the failure to conduct a Bone–Club analysis prior to sealing the juror questionnaires did not violate Coleman's right to a public trial under article 1, section 22.³⁴ Rather, this court held that the failure to conduct that analysis violated the public's right to open and accessible court...