State v. Easterling

• Citation: 157 Wn.2d 167,137 P.3d 825
• Decision Date: 29 June 2006
• Docket Number: No. 76458-1.,76458-1.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Ricko Fernandez EASTERLING, Petitioner.

Page 825

137 P.3d 825

157 Wn.2d 167

STATE of Washington, Respondent, v. Ricko Fernandez EASTERLING, Petitioner.

No. 76458-1.

Supreme Court of Washington, En Banc.

Argued November 9, 2005.

Decided June 29, 2006.

Elaine L. Winters, Washington Appellate Project, Seattle, for Petitioner/Appellant.

David M. Seaver, King County Prosecutor's Office, Seattle, for Appellee/Respondent.

ALEXANDER, C.J.

¶ 1 Ricko Easterling seeks reversal of his conviction on one count of unlawful delivery of cocaine. He asserts that the trial court's decision to close the courtroom at the request of his codefendant during pretrial motions on the day of their joint trial violated his constitutional right to a public trial and/or his constitutional right to be present at all critical stages of his criminal proceeding. Although the State acknowledges the improper closure of the courtroom, it argues that the closed proceedings related to the codefendant's, not Easterling's, trial and, therefore, Easterling's public trial right was not violated. In addition, the State asserts that Easterling had no right to be present during closed court consideration of pretrial motions made by the codefendant because consideration of these motions did not constitute a "critical stage" of Easterling's trial.

¶ 2 We conclude that the trial court committed an error of constitutional magnitude when it directed that the courtroom be fully closed to Easterling and to the public during the joint trial without first satisfying the requirements set forth in State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995). The trial court's failure to engage in the required case-by-case weighing of the competing interests prior to directing the courtroom be closed rendered unfair all subsequent trial proceedings. Consequently, we reverse Easterling's conviction and remand for a new trial. In light of our holding, we decline to reach the question of whether Easterling's constitutional right to be present at a critical stage of the criminal proceeding against him was also violated.

I

¶ 3 On January 11, 2003, Seattle police arrested Easterling, Anthony Jackson, and Shawn Modest during a so-called illegal drug "buy-bust" operation. Clerk's Papers at 40. The three men were each thereafter charged in King County Superior Court with one count of unlawful delivery of cocaine in violation of the Uniform Controlled Substances Act, former RCW 69.50.401(a)(1)(i) (1998).

¶ 4 Easterling and Jackson were scheduled to be tried together. On the first day of trial, during pretrial motions, Jackson's counsel moved to sever Jackson's trial from Easterling's trial. Easterling was present, but he did not join Jackson's severance motion, nor did he file his own motion for severance.

¶ 5 Jackson combined his motion to sever with a motion to dismiss. Jackson's attorney alleged that the charge against Jackson should be dismissed because the State had unfairly conducted pretrial negotiations and that the prosecutor had "sandbagged" his client by misleading him during plea negotiations. Verbatim Report of Proceedings (VRP) (July 14, 2003) at 26. The trial court indicated that Jackson's belief that his case had not been fairly negotiated did not provide a sufficient basis to grant the severance motion. Jackson's attorney responded that he wanted to argue the motions further, but was reluctant to discuss the specifics in open court and in front of Easterling, in particular.

¶ 6 Without seeking or receiving the State's or Easterling's input or objection, the trial court ordered the courtroom cleared and specifically directed Easterling, his attorney, and others to leave. The deputy prosecuting attorney, court personnel, Jackson, and Jackson's attorney were, however, allowed to remain. The record of the closed proceedings was ordered sealed.¹

¶ 7 During the closed courtroom proceeding, Jackson's counsel again asserted that the State had misled him and his client during plea negotiations by promising, and then withdrawing without notice, a reduced charge in exchange for a guilty plea and a promise to testify against Easterling. The trial court asked if further plea negotiations would be fruitful. When counsel for the State and Jackson agreed that negotiations could be helpful, the trial court indicated that it would take its morning break and ordered that the negotiations take place in the closed courtroom during the recess. An agreement was thereafter reached between respective counsel.

¶ 8 When court reconvened later that afternoon, Jackson pleaded guilty, pursuant to the negotiated plea agreement, to an amended and reduced charge of solicitation to deliver cocaine. The State also agreed to dismiss an unrelated possession of cocaine charge. Significantly, in return, Jackson agreed to testify against Easterling. As a result of the plea agreement, the State altered its theory against Easterling. The trial court then excused Jackson from the ongoing proceedings without having ruled on his motions to dismiss and to sever.

¶ 9 The trial proceeded against Easterling alone. Jackson testified against Easterling and, ultimately, a jury convicted Easterling of the charge of unlawful delivery of cocaine. On appeal to Division One of the Court of Appeals, Easterling claimed ineffective assistance of trial counsel and that the trial court erred in limiting his cross-examination of Jackson. The Court of Appeals affirmed Easterling's conviction.

¶ 10 In a petition for review filed here, Easterling reasserted his confrontation claim. He also contended, for the first time, that because of the courtroom closure, he had been deprived of his constitutional right to be present at his trial and/or his constitutional right to an open public trial.² Despite the State's vigorous objections to the contrary in its answer to Easterling's petition, we granted review, but only on the closed courtroom issue.

II

¶ 11 We are first tasked with determining if the trial court's decision to close the courtroom to Easterling, his counsel, and to all members of the public during consideration of the codefendant's motion to sever and to dismiss violated Easterling's and/or the public's constitutional right to a "public trial." Whether a criminal accused's constitutional public trial right has been violated is a question of law, subject to de novo review on direct appeal. Bone-Club, 128 Wash.2d at 256, 906 P.2d 325. The presumptive remedy for a public trial right violation is reversal and remand for a new trial. In re Pers. Restraint of Orange, 152 Wash.2d 795, 814, 100 P.3d 291 (2004).

¶ 12 Article I, section 22 of the Washington Constitution and the sixth amendment to the United States Constitution each guarantee a criminal defendant a right to a public trial. Additionally, article I, section 10 of the Washington Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This latter provision gives the public and the press a right to open and accessible court proceedings. Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982).

¶ 13 The public trial right extends beyond the taking of a witness's testimony at trial. It extends to pretrial proceedings. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (public trial right extends to preliminary hearing); Orange, 152 Wash.2d at 812, 100 P.3d 291 (public trial right extends to voir dire); Bone-Club, 128 Wash.2d at 257, 906 P.2d 325 (public trial right extends to pretrial suppression hearing). The public's constitutional right to the open administration of justice under article I, section 10 extends to pretrial motions to dismiss. Ishikawa, 97 Wash.2d at 36, 640 P.2d 716.

¶ 14 This court has strictly watched over the accused's and the public's right to open public criminal proceedings.³ As we plainly stated in Bone-Club, "[a]lthough the public trial right may not be absolute,⁴ protection of this basic constitutional right clearly calls for a trial court to resist a closure motion except under the most unusual circumstances." Bone-Club, 128 Wash.2d at 259, 906 P.2d 325 (emphasis added). In order to protect the accused's constitutional public trial right, a trial court may not close a courtroom without, first, applying and weighing five requirements as set forth in Bone-Club and, second, entering specific findings justifying the closure order. Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325 (citing Ishikawa, 97 Wash.2d at 37, 640 P.2d 716). These requirements mirror the requirements applied to protect the public's article I, section 10 right to open proceedings.⁵

¶ 15 The State does not dispute the fact that the trial court fully closed the courtroom to consider Jackson's motions or that Easterling, his attorney, and the public were excluded from this closed proceeding.⁶ Furthermore, it does not deny that the trial court's decision to close the courtroom to hear Jackson's motions did not comport with the Bone-Club requirements and was not accompanied by specific findings.⁷ Rather, the State contends that Easterling's public trial guarantee was not implicated by the improper closure because the pretrial motions made by the codefendant Jackson did not pertain to Easterling's trial and/or that the courtroom closure was too trivial as to not even implicate the constitutional right to a public trial.⁸ We address these arguments in turn.

A. Was Easterling's constitutional right to a public trial violated?

¶ 16 The State argues that though Jackson's and Easterling's cases were joined, the proceedings in question related to Jackson's requests to sever and dismiss and, thus, were not a part of Easterling's trial. It reasons that Easterling's public trial right was not violated, even in the face of an improper courtroom closure, because it was Jackson's public trial right that was then at issue, and Jackson's attorney waived that right by requesting the closed proceeding....