State v. Erickson, 35628-7-II.

• Court: Court of Appeals of Washington
• Citation: 146 Wn. App. 200,189 P.3d 245
• Decision Date: 29 July 2008
• Docket Number: No. 35628-7-II.,35628-7-II.
• Parties: STATE of Washington, Respondent, v. David Lee ERICKSON, Appellant.

189 P.3d 245 146 Wn. App. 200 STATE of Washington, Respondent,
v.
David Lee ERICKSON, Appellant. No. 35628-7-II. Court of Appeals of Washington, Division 2. July 29, 2008.

[189 P.3d 246]

David Bruce Koch, Andrew Peter Zinner, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Karen Anne Watson, Pierce County Prosecutor's Office, Tacoma, WA, for Respondent.

HOUGHTON, P.J.

¶ 1 David Erickson appeals his conviction of two counts of first degree child rape. He argues that the trial court denied him his constitutional right to public trial by allowing private questioning of prospective jurors. We reverse and remand for a new trial.¹

FACTS

¶ 2 The State charged Erickson with two counts of first degree child rape. Before

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trial, the court asked whether the parties wanted to give the prospective jurors a questionnaire before beginning voir dire. The prosecutor responded, "I'm hopeful that [defense counsel] and I can agree on one that we can present to the Court. We both drafted one that we exchanged, and I think they're pretty similar. I haven't had an opportunity to discuss that with [defense counsel]." II Report of Proceedings (RP) at 179. Defense counsel replied, "I don't think that will be a problem, Your Honor. I will probably add some questions, based on what [the prosecutor] had, and I don't think [the prosecutor's] got major problems about questions that I had." II RP at 179. The trial court then replied:

I guess the main [questions] from my perspective, are that you have a list of witnesses in there so the jurors can respond to that; that you ask them whether or not there's any reason that they might not be fair and impartial so we get that kind of broad, general question in. Give them a suggested time frame which is liberal, and be sure they can accommodate us for the time frame, and factor in some deliberation time into that. And then ask them whether or not any of them want to be talked to privately so we get an idea as to how many of those we might have.

II RP at 179.

¶ 3 The next day of the proceedings, before the prospective jurors' orientation, the trial court noted that the questionnaire "looked good." III RP at 185. During discussion on the matter, the prosecutor mentioned, "I suspect that there's going to be a number of people who want to talk in private." III RP at 188. Erickson's counsel did not object and acquiesced to the trial court's decision to begin any private questioning of individual prospective jurors after their orientation.

¶ 4 After the prospective jurors answered the questionnaire, the judicial assistant notified the trial court and counsel that according to prospective jurors' answers to the questionnaire, three individuals wanted to be questioned privately. During the trial court's orientation, it told the prospective jurors, "You have the option to ask to have your questions asked and answered with fewer people present. . . . [I]t's certainly possible that the answers may involve an area that you are uncomfortable talking about in front of such a large group." III RP at 260.

¶ 5 Later, the trial court asked whether any prospective jurors wanted to be examined privately. Four individuals wished to do so. Except for those four, the trial court excused the rest of the prospective jurors from the courtroom and proceeded with counsel and the court reporter to the jury room. Once there, the trial court called each prospective juror into the jury room individually, and both sides questioned each individual. Three of the prospective jurors described personal experiences with sexual abuse or assault, while the fourth suggested he knew defense counsel.

¶ 6 During the interviews in the jury room, the trial court denied Erickson's challenges for cause directed toward two prospective jurors and excused the prospective juror who knew defense counsel. The trial court later excused one of these four prospective jurors for unrelated reasons. Erickson later exercised peremptory challenges against the other two prospective jurors whom the parties had questioned in the jury room.

¶ 7 The jury found Erickson guilty of both counts. He appeals.

ANALYSIS

¶ 8 Erickson contends that the trial court denied him his constitutional rights. He asserts that moving individual prospective jurors in the jury room for private questioning violated his right to a public trial.

¶ 9 We review de novo whether a trial court procedure violates the right to a public trial. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005). We presume prejudice where the court proceedings violate this right. State v. Rivera, 108 Wash.App. 645, 652, 32 P.3d 292 (2001). A defendant's failure to object at the time of a courtroom closure does not waive this right. Brightman, 155 Wash.2d at 514-15, 122 P.3d 150. The remedy for such a violation is to reverse and remand for a new trial. In the Pers. Restraint of Orange, 152 Wash.2d 795, 814, 100 P.3d 291 (2004).

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¶ 10 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution each guarantee a criminal defendant the right to a public trial. State v. Russell, 141 Wash.App. 733, 737-38, 172 P.3d 361 (2007). Additionally, article I, section 10 of the Washington Constitution states, "Justice in all cases shall be administered openly," which provides the public itself a right to open, accessible proceedings. Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982).

¶ 11 Article I, Section 10's guarantee of public access to proceedings and article I, section 22's public trial right together perform complementary, interdependent functions that assure the fairness of our judicial system.² State v. Bone-Club, 128 Wash.2d 254, 259, 906 P.2d 325 (1995); see also State v. Easterling, 157 Wash.2d 167, 187, 137 P.3d 825 (2006) (Chambers, J., concurring) ("[T]he constitutional requirement that justice be administered openly is not just a right held by the defendant. It is a constitutional obligation of the courts.").

¶ 12 The right to public trial helps ensure a fair trial, reminds officers of the court of the importance of their functions, encourages witnesses to come forward, and discourages perjury. Brightman, 155 Wash.2d at 514, 122 P.3d 150. The public's access to jury selection is important, not only to the parties but also to the criminal justice system itself. Orange, 152 Wash.2d at 804, 100 P.3d 291. A closed jury selection process prevents a defendant's family from contributing their knowledge or insight during jury selection. Brightman, 155 Wash.2d at 515, 122 P.3d 150. And closure also prevents other interested members of the public, including the press, from viewing the proceedings.

¶ 13 Protection of the right to public trial requires 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. A trial court may close a courtroom only after considering the five requirements enumerated in Bone-Club and entering specific findings on the record to justify the closure order.³ 128 Wash.2d at

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258-59, 906 P.2d 325. A trial court's failure to undertake the Bone-Club analysis, which directs the trial court to allow anyone present an opportunity to object to the closure, undercuts the guarantees enshrined in both article I, section 10 as well as article I, section 22. 128 Wash.2d at 258-59, 906 P.2d 325.

¶ 14 Erickson argues that the trial court's relocation of a portion of voir dire to the jury room violated his right to public trial. Relying on a Division Three case, State v. Frawley, 140 Wash.App. 713, 167 P.3d 593 (2007), Erickson asserts that the trial court's decision to move interviews of prospective jurors into the jury room "prohibit[ed] the public from observing this examination." Appellant's Br. at 5. The Frawley court held that conducting interviews of prospective jurors in the jury room is equivalent to a courtroom closure. 140 Wash.App. at 720, 167 P.3d 593. See also State v. Duckett, 141 Wash.App. 797, 809, 173 P.3d 948 (2007) (a Division Three case following Frawley and holding that a trial court must undertake the Bone-Club analysis before questioning prospective jurors individually in a jury room). Because the trial court did not undertake the necessary Bone-Club analysis on the record, Erickson argues that the trial court violated his public trial right.

¶ 15 The State urges us to follow a Division One case, State v. Momah, 141 Wash.App. 705, 171 P.3d 1064 (2007).⁴ In Momah, the court held that individual questioning of prospective jurors in chambers and in the jury room does not constitute a closure, making a Bone-Club analysis unnecessary.

¶ 16 In this case, the trial court excused prospective jurors from the courtroom and proceeded with counsel and the court reporter to the jury room, where both sides questioned prospective jurors individually about their answers to a questionnaire.⁵ Thus, we must decide whether a trial court must undertake a Bone-Club analysis before individual questioning of prospective jurors outside the courtroom or in the jury room.

¶ 17 The process of jury selection lies within the ambit of the right to a public trial. Brightman, 155 Wash.2d at 511, 515, 122 P.3d 150. Thus, if private questioning of prospective jurors in a jury room acts as a courtroom closure, Bone-Club mandates findings to support such an action by the trial court. 128 Wash.2d at 259-60, 906 P.2d 325.

¶ 18 In Brightman, the trial court ordered a full courtroom closure during jury selection. 155 Wash.2d at 511, 122 P.3d 150. The trial court, sua sponte, told the attorneys that during jury selection the courtroom would be too full of prospective jurors and would pose a security risk if observers, witnesses, and friends and relatives of the victim and defendant remained.⁶ Brightman, 155 Wash.2d at 511, 122 P.3d 150. Our Supreme Court disagreed and reversed and remanded for...