State v. Duckett

• Decision Date: 27 November 2007
• Docket Number: No. 25614-6-III.,25614-6-III.
• Citation: 141 Wn. App. 797,173 P.3d 948
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Nicholas G. DUCKETT, Appellant.

173 P.3d 948

141 Wn. App. 797

STATE of Washington, Respondent, v. Nicholas G. DUCKETT, Appellant.

No. 25614-6-III.

Court of Appeals of Washington, Division 3.

November 27, 2007.

William D. Edelblute, Attorney at Law, Spokane, WA, for Appellant.

Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.

STEPHENS, J.

¶ 1 We recently addressed the same question presented in this appeal. State v. Frawley, 140 Wash.App. 713, 167 P.3d 593 (2007). During voir dire, the trial judge here questioned selected jurors individually in the jury room, based on their responses to a questionnaire that asked about their experiences with sexual abuse. Nicholas Duckett waived his right to be present. However, the court never advised Mr. Duckett of his right to a public trial, nor asked him to waive this right. We conclude, as we did in Frawley, that this procedure violates a criminal defendant's public trial right, and reverse Mr. Duckett's conviction and remand for a new trial. We take this opportunity to expand our analysis to explain why our state constitution requires this result and why it is not altered by the presumption of privacy afforded juror information by court rule. We also note that closure remains an option for a trial court if the court makes a record under the proper analysis.

FACTS

¶ 2 The State charged Nicholas G. Duckett with one count of second degree rape, one count of third degree rape and one count of first degree burglary. The matter proceeded to jury trial in the Spokane County Superior Court. The trial judge told prospective jurors that they would be provided with a questionnaire containing "some questions that are somewhat of a personal nature." Report of Proceedings (Aug. 14, 2006) (RP) at 14. Specifically, the questionnaire asked two questions concerning the prospective jurors' experiences with sexual abuse. The trial judge told the jurors that the questionnaires would be filed in the court file under seal and not accessible to anyone without a court order. She told Mr. Duckett and his lawyer that follow-up questioning of those jurors whose questionnaire responses indicated some experience with sexual abuse would take place outside the courtroom stating, "I generally do it in my jury room, Counsel, ... so as to maintain some privacy." RP at 46. Apparently, 16 jurors were so questioned, though the record does not contain any transcript of this voir dire.

¶ 3 At the time the trial judge laid out her procedure, the following exchange took place:

[DEFENSE COUNSEL]: I just for the record, Your Honor, I just talked to Mr. Duckett as to whether or not he wants to be present during that. I think he's entitled to. He indicated he does not wish to be present, so the record should reflect that.

THE COURT: And Mr. Duckett is entitled to and I never ask them whether they want to. I assume they will unless—assume they wish to be present unless they voluntarily tell me something different.

So, Mr. Duckett, you do have a right to be present during that questioning, but you're electing not to be; is that correct?

[MR. DUCKETT]: Can I have one second, Your Honor?

THE COURT: Sure.

[MR. DUCKETT]: (Pause) Judge, so far, I'm gonna stick with my attorney on this. He said it's for general knowledge that I to be there at the moment. So I'm going to agree with him not to be there.

THE COURT: All right. I presume that [defense counsel] will give you a summary of what occurred and what jurors were excused, if it were appropriate to excuse jurors.

[DEFENSE COUNSEL]: Yes, Your Honor, I will.

RP at 46-47.

¶ 4 A jury was selected and empanelled. Following a two-day trial, the jury found Mr. Duckett guilty of second degree rape. This appeal follows.

ANALYSIS

¶ 5 Preliminarily, it is important to identify what this case is about—and not about. It is not about limiting the ability of the trial courts to develop procedures that respect the privacy interests of prospective jurors and encourage more forthright answers to sensitive voir dire questions. Rather, we address the constitutional considerations required to implement such procedures, and our inability as an appellate court to engage in a post-hoc justification of what we may agree is a sensible procedure in the absence of such an analysis in the trial court. Whether a trial court procedure violates the right to a public trial is a question of law we review de novo. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005). Our Supreme Court has made clear that the trial court must engage in the five-part analysis set out in State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995), before conducting all or a portion of voir dire outside of the public forum of the courtroom. In re Pers. Restraint of Orange, 152 Wash.2d 795, 100 P.3d 291 (2004). Here, as in Frawley, the trial court conducted a portion of voir dire in chambers without engaging in the necessary Bone-Club analysis. This requires reversal, and the remedy is a new trial.

The Bone-Club Analysis

¶ 6 Article I, section 22 of the Washington State Constitution and the Sixth Amendment to the United States Constitution guarantee the right to a public trial.¹ Article I, section 10 of the Washington State 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. Brightman, 155 Wash.2d at 514, 122 P.3d 150; 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; Orange, 152 Wash.2d at 804-05, 100 P.3d 291; Bone-Club, 128 Wash.2d at 259, 906 P.2d 325.

¶ 7 The guaranty of open criminal proceedings extends to voir dire. Orange, 152 Wash.2d at 804, 100 P.3d 291. Bone-Club and later Orange 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. The court in Bone-Club adopted five workable guidelines drawn from case law construing Washington Constitution article I, section 10, and concluded this analysis is also necessary to protect a criminal defendant's rights under article I, section 22. Bone-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).

¶ 8 The court in Bone-Club set forth the necessary analysis:

"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."

Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wash.2d 205, 210-11, 848 P.2d 1258 (1993)); see also Ishikawa, 97 Wash.2d at 36-39, 640 P.2d 716.

¶ 9 Preliminarily, at oral argument the State suggested that a criminal defendant's public trial right cannot be based on article I, section 10 because the defendant lacks standing to assert the public's right. This fails to appreciate the court's independent obligation to safeguard the open administration of justice. Article I, section 10 is mandatory. Rauch v. Chapman, 16 Wash. 568, 575, 48 P. 253 (1897). Moreover, the right secured by article I, section 10 is fully present even when a defendant asserts only rights under article I, section 22 and the Sixth Amendment, as the court has adopted the Ishikawa analysis in this context. Bone-Club, 128 Wash.2d at 259, 906 P.2d 325 (noting "the same closure standard for both the section 10 and section 22 rights").

¶ 10 The five-part analysis includes both substantive and procedural requirements. Orange, 152 Wash.2d at 807, 100 P.3d 291. The court in Ishikawa made clear that the trial court must weigh the competing constitutional interests and enter appropriate findings and conclusions that should be as specific as possible. Ishikawa, 97 Wash.2d at 38, 640 P.2d 716; see also Orange, 152 Wash.2d at 807, 100 P.3d 291.

¶ 11 Here, the trial court did not identify the relevant considerations or enter findings and conclusions on the necessary factors. The State concedes as much. The State instead urges us to consider the Bone-Club factors on appeal, and conclude that closing this portion of the voir dire to the public was justified. This we cannot do. Whether to close a proceeding to public scrutiny is a decision vested in the sound discretion of the trial judge weighing the competing interests. See Ishikawa, 97 Wash.2d at 45, 640 P.2d 716. The question before us is not whether we would have made the same decision as the trial judge had we considered the necessary factors, but whether the trial judge's decision is supported by her consideration of these factors. Absent a record showing that the trial judge considered the public trial right as required under Bone-Club, we cannot determine whether the court was warranted in conducting a portion of voir dire in chambers. See Brightman, 155 Wash.2d at 518, 122...