State v. Brightman

• Decision Date: 06 October 2005
• Docket Number: No. 72919-1.,72919-1.
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Nathan Dallas BRIGHTMAN, Petitioner.

Page 150

122 P.3d 150

155 Wn.2d 506

STATE of Washington, Respondent, v. Nathan Dallas BRIGHTMAN, Petitioner.

No. 72919-1.

Supreme Court of Washington, En Banc.

Argued June 9, 2005.

Decided October 6, 2005.

Kevin R. Cole, Attorney at Law, Mercer Island, for Petitioner.

John Christopher Hillman, Alicia Marie Burton, Pierce County Prosecuting Attorney, Tacoma, for Respondent.

BRIDGE, J.

Nathan Brightman seeks reversal of his conviction for the second degree murder of Dexter Villa. Brightman claims that his constitutional right to public trial was violated when the trial court closed the courtroom to spectators during jury selection. Brightman also argues that the trial court erred when it declined to give his proposed instruction on justifiable homicide.

We conclude that the trial court erred when it directed that the courtroom would be closed to spectators during jury selection, without fulfilling the requirements set forth in State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995). This error entitles Brightman to a new trial. Because the issue may arise again on retrial, we also conclude that the trial court did not err when it refused to give Brightman's proposed instruction on the defense of justifiable homicide.

I Statement of Facts

On October 1, 1998, Brightman approached Villa in the parking lot of Tacoma Community College and asked him for a ride to Gig Harbor. Villa agreed, but instead of driving to Gig Harbor, the pair ended up at a parking area near Titlow Beach. According to three witnesses,¹ after Villa parked, the men began fighting inside the car. Then Brightman got out of the car and headed toward the driver's side. Villa jumped out of the car, and the fight continued. One witness testified that each man remained on his feet, and it seemed to be a fair fight. Another testified that Villa looked like he was trying to get away, but Brightman was holding onto Villa's shirt. The third testified that he saw Villa waive his hands in fear. Each witness saw Brightman shoot Villa. Brightman looked over at one of the witnesses in the parking lot, pulled his coat over his face, got in Villa's car, and drove away.

According to Brightman's testimony, when he and Villa were driving away from the community college, he gave Villa $7 for gas. The conversation turned to parties and drugs, and Brightman claims he gave Villa $20 to get him some marijuana. Villa then drove to the parking area near Titlow beach. After Villa parked, he ordered Brightman to get out of his car. Brightman replied that he wanted his money back. Villa leaned across him to open the passenger door, Brightman shoved his hand away, and a fight ensued. Brightman claims that he yelled" `help me,"' tried to fight back, and eventually got out of the car. Report of Proceedings (RP) at 1081-82. Villa also got out of the car, and the fight continued. Brightman testified that both men threw punches and both stayed on their feet. Significantly, Brightman admitted that he resumed the fight once both men were outside of the car, and he had no fear of Villa during the fight.

Brightman claimed that he eventually drew a gun, intending only to club Villa with it. Brightman hit Villa with the gun twice, and the second time the gun went off. Villa fell to the ground and Brightman panicked. He testified that he had the clip in his pocket, and he did not know there was a bullet in the chamber. Brightman picked up his money, threw his coat over his face, got in Villa's car, and drove away.

Brightman drove across the Tacoma Narrows Bridge. He tossed the gun and the clip out of the sunroof and off the bridge. They were never recovered. A police officer testified that he tried to stop Brightman, and Brightman started to pull over but then sped away. Brightman parked the car on a gravel road, threw the keys in the bushes, and ran home. Later that night, Brightman's friends returned to Villa's car and stole his stereo, CDs, and other items. The police eventually connected Brightman to the shooting, and he was arrested. He was charged with premeditated first degree murder and, in the alternative, first degree felony murder based on robbery, on the theory that he was trying to steal Villa's car. He was also charged with unlawful possession of a firearm in the first degree.²

On the day before jury selection began, the court convened so that the defendant could enter a guilty plea on the charge of unlawful possession of a firearm. After accepting the plea, the court proceeded to deal with a number of "housekeeping" issues. The court discussed the trial schedule, admonished the attorneys not to try the case in voir dire, and ruled on the issue of leg restraints. Then the trial judge, sua sponte, told the attorneys:

In terms of observers and witnesses, we can't have any observers while we are selecting the jury, so if you would tell the friends, relatives, and acquaintances of the victim and defendant that the first two or three days for selecting the jury the courtroom is packed with jurors, they can't observe that. It causes a problem in terms of security.

When we move to the principal trial, anybody can come in here that wants to. It is an open courtroom.

Any other problem?

RP at 19-20. Neither party objected, and defense counsel immediately asked the judge a question about an unrelated matter. The record reflects that there was no other discussion of the courtroom closure. Clerk's Papers (CP) at 147-48 (declaration of court reporter indicating that a review of her transcription of jury selection revealed no other reference of spectators being in the courtroom or being denied access to the courtroom).

A jury was selected and the case went to trial. At the close of evidence, the defense sought to have the jury instructed that "[h]omicide is justifiable when committed in the actual resistance of an attempt to commit a felony," CP at 30, and that "[r]obbery is a felony." CP at 26. The defense also proposed an instruction explaining that the use of force is lawful when someone reasonably believes he is about to be injured, so long as the force used is not more than necessary. CP at 32.³

The trial court did not give any of the defendant's proposed instructions on justifiable homicide or self-defense because the court concluded that the evidence did not support these instructions. See CP at 56-84. Instead, the trial court instructed:

Under certain circumstances and conditions a homicide may be justifiable, that is one committed in self defense or in defense of a felony. As a matter of law such circumstances and conditions do not exist in this case. Therefore you may not consider justifiable homicide as a defense to the charge of Murder in the First Degree, Murder in the Second Degree, or Manslaughter in the First Degree.

CP at 80 (Instruction 23). Defense counsel objected to this instruction. The trial judge explained that because defense counsel had argued justifiable homicide in opening statements and questioned some witnesses about issues surrounding the justifiable homicide theory, the judge felt it necessary to explain to the jury that justifiable homicide was no longer an issue in the case.

Brightman was convicted by the jury of murder in the second degree. Brightman appealed, arguing that the trial court violated his right to a public trial by closing the courtroom during jury selection. State v. Brightman, 112 Wash.App. 260, 48 P.3d 363 (2002) (published in part); No. 25220-1-II, slip op. at 11 (Wash. Ct.App. June 21, 2002). The Court of Appeals noted that there is no evidence that the court enforced its ruling, there is no record of a written order, and there is nothing else in the record indicating that anyone was denied access to the courtroom. Brightman, slip op. at 12. Relying on State v. Gaines, 144 Wash., 446, 463, 258 P. 508 (1927), the Court of Appeals concluded that in the absence of a record reflecting actual closure, it would not presume that the courtroom was closed, and thus Brightman had not shown he was denied a public trial. The Court of Appeals, finding no reversible error, affirmed Brightman's conviction.

In his appeal Brightman also argued that the trial court erred in refusing to instruct the jury on justifiable homicide. Brightman, 112 Wash.App. at 264, 48 P.3d 363. Although Brightman admitted that he was never afraid of Villa, he claimed on appeal that when a homicide is committed in the actual resistance of an attempt to commit a felony upon the slayer, then the use of deadly force is per se reasonable. See id. at 266-67, 48 P.3d 363; RCW 9A.16.050(2). Brightman also argued that instruction 23 amounted to an improper comment on the evidence. Brightman, slip op. at 8-9. The Court of Appeals concluded that because Brightman's testimony showed that the shooting was accidental rather than intentional, the instruction on justifiable homicide was properly refused. Brightman, 112 Wash.App. at 264-65, 48 P.3d 363 (citing State v. Kerr, 14 Wash.App. 584, 585-86, 544 P.2d 38 (1975)). Additionally, the instructions were properly refused because the evidence did not show that Villa was attempting to commit a violent felony (Villa's alleged actions were instead theft by fraud followed by assault), but even if Villa was attempting to rob Brightman, not all robberies justify the use of deadly force. Id. at 267, 48 P.3d 363. Because Brightman did not fear great bodily harm or death, the use of deadly force was not reasonable here. See id. Finally, the Court of Appeals concluded that instruction 23 did not impermissibly comment on the evidence because the instruction accurately stated the law, and there was no evidence that Brightman justifiably shot Villa. Brightman, slip op. at 9.

Brightman petitioned for review in this court and review was deferred until the publication of our decision in In re Personal Restraint of Orange, 152 Wash.2d 795, 100 P.3d 291 (2004), at which time we granted review.

II Analysis

In this case, w...