State v. Johnson

• Decision Date: 25 March 2014
• Docket Number: No. 43582–9–II.,43582–9–II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Lavester A. JOHNSON, Appellant.

180 Wash.App. 318

327 P.3d 704

STATE of Washington, Respondent,

v.Lavester A. JOHNSON, Appellant.

No. 43582–9–II.

Court of Appeals of Washington,

Division 2.

March 25, 2014.

Valerie Marushige, Attorney at Law, Kent, WA, for Appellants.

Thomas Charles Roberts, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondents.

BJORGEN, J.

¶ 1 A jury found Lavester A. Johnson guilty of third degree child molestation. Johnson appeals his conviction and sentence, alleging that (1) the trial court violated his and the public's right to a public trial by sealing the juror questionnaires without complying with necessary procedures and (2) his trial attorney provided ineffective assistance of counsel by failing to subpoena two witnesses. Alternatively, Johnson asks that we remand his case to the trial court with orders to clarify one community custody condition, strike another, and correct certain statutory citation errors in an appendix to his judgment and sentence. Rejecting Johnson's public trial and ineffective assistance of counsel claims, we affirm his convictions. However, we remand to the trial court to Strike or clarify community custody condition 16, to strike community custody condition 25, and to correct clerical errors.

FACTS

¶ 2 In early spring 2011, 14–year–old CP ¹ and her aunt spent the night at the home of Tina Becerra, a family friend. CP testified that Johnson, Becerra's boyfriend, touched her inappropriately on three different occasions during the night and the following morning.

¶ 3 The State charged Johnson with third degree child molestation and the case proceeded to trial. To assist in jury selection, the parties used a two-page questionnaire the jurors filled out before oral voir dire.

¶ 4 At trial CP testified about the molestation. Johnson testified in his own defense, as did Becerra and another adult present throughout CP's visit. Johnson's cousin and Becerra's six-year-old daughter, who were both at Becerra's house during CP's molestation, did not testify.

¶ 5 The jury returned a guilty verdict. The trial court sentenced Johnson to 14 months' confinement and 36 months of community custody, imposing several conditions as part of his community custody. One of these conditions prohibited Johnson from contact with “physically or mentally vulnerable” individuals. Clerk's Papers (CP) at 112. Another prohibited computer or Internet access without the permission of the court; this condition also forbad Johnson from using Internet social media sites. In addition, the part of Johnson's judgment and sentence containing these conditions, Appendix H, stated that the trial court had sentenced Johnson under former RCW 9.94A.712 (2006) and referenced former RCW 9.94A.150 (2000) and former RCW 9.94A.125 (1983), all of which had been recodified to other RCW sections.

¶ 6 Johnson timely appeals his conviction and sentence.

ANALYSIS

I. Public Trial

¶ 7 Johnson contends that the trial court abridged both his right to a public trial and the public's right to open access to judicial proceedings by sealing the juror questionnaires without performing the analysis required by State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995). We find no evidence that the trial court sealed the questionnaires and reject Johnson's claim.

¶ 8 The Washington and federal constitutions protect a criminal defendant's right to a public trial. U.S. Const. amend. VI; Wash. Const.. art. I, § 22. Both constitutions also protect the public's right to open judicial proceedings. Press–Enter. Co. v. Superior Court of Cal., 464 U.S. 501, 509 n. 8, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), Wash. Const. art. I, § 10; State v. Easterling, 157 Wash.2d 167, 174, 137 P.3d 825 (2006). The right to a public trial requires that jury selection occur in public. State v. Momah, 167 Wash.2d 140, 148, 217 P.3d 321 (2009); Press–Enter., 464 U.S. at 505–13, 104 S.Ct. 819.

¶ 9 To succeed on a public trial claim, a defendant must first show “the courtroom was actually closed.” In re Pers. Restraint of Yates, 177 Wash.2d 1, 27, 296 P.3d 872 (2013). Even if we assume that sealing the questionnaires would constitute a courtroom closure, we cannot grant Johnson relief without a showing that the trial court did, in fact, seal the questionnaires. See Yates, 177 Wash.2d at 27, 296 P.3d 872.

¶ 10 Johnson fails to make this showing. The record contains no trial court order sealing the completed juror questionnaires or stipulations by the parties agreeing to a sealing. See, e.g., State v. Beskurt, 176 Wash.2d 441, 444, 293 P.3d 1159 (2013) (lead opinion by Johnson, J.); State v. Smith, 162 Wash.App. 833, 840–41, 262 P.3d 72 (2011). The questionnaire itself contains no language promising the jurors that the court would seal the completed questionnaires. In fact, the trial court confirmed that language in prior questionnaires that guaranteed nondisclosure had been removed. See, e.g., Smith, 162 Wash.App. at 840–41, 262 P.3d 72. Johnson did not have voir dire transcribed, so we lack a record of any oral discussion indicating that the trial court intended to seal the questionnaires. See Beskurt, 176 Wash.2d at 443–44, 293 P.3d 1159. In short, the evidence in the record is insufficient to establish a court closure.

¶ 11 Johnson contends that the juror questionnaire template filed with the court shows that the questionnaires were sealed. The template, however, shows only that the parties filed it in open court on April 10, 2012. No part of the template shows that the trial court sealed it, let alone the completed questionnaires at issue in Johnson's trial.

¶ 12 Johnson alleges also that all juror questionnaires are sealed as a matter of course in Pierce County. However, nothing in the record supports this bare allegation. On direct appeal the scope of our review is limited to matters in the trial record. State v. McFarland, 127 Wash.2d 322, 335, 899 P.2d 1251 (1995). Consequently, to raise this issue Johnson must present evidence supporting the allegation in a collateral proceeding and seek relief through a personal restraint petition. McFarland, 127 Wash.2d at 335, 899 P.2d 1251.

II. Ineffective Assistance of Counsel

¶ 13 In his statement of additional grounds, Johnson contends that he received ineffective assistance of counsel because his attorney failed to subpoena his cousin and Becerra's six-year-old daughter, both of whom were at Becerra's house when Johnson molested CP. We disagree.

¶ 14 Both the state and federal constitutions protect a defendant's right to effective assistance of counsel in criminal trials. State v. Grier, 171 Wash.2d 17, 32, 246 P.3d 1260 (2011), remanded,168 Wash.App. 635, 278 P.3d 225 (2012). To prevail on his ineffective assistance of counsel claim, Johnson must show both that his attorney's performance was deficient and that this deficiency prejudiced him. Grier, 171 Wash.2d at 32–33, 246 P.3d 1260 (citing State v. Thomas, 109 Wash.2d 222, 225–26, 743 P.2d 816 (1987)). Demonstrating prejudice requires Johnson to show that “ ‘there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different.’ ” Grier, 171 Wash.2d at 34, 246 P.3d 1260 (quoting State v. Kyllo, 166 Wash.2d 856, 862, 215 P.3d 177 (2009)). We may resolve an ineffective assistance of counsel claim on either the deficient performance or prejudice prong. Grier, 171 Wash.2d at 33, 246 P.3d 1260 (citing Thomas, 109 Wash.2d at 225–26, 743 P.2d 816).

¶ 15 Johnson provides no evidence as to the testimony his cousin or Becerra's daughter would have offered if called to the stand at his trial. Without knowing what these witnesses would testify to, we cannot say the outcome of the trial would have differed had they testified. State v. Johnson, 132 Wash.App. 400, 414, 132 P.3d 737 (2006); State v. Stovall, 115 Wash.App. 650, 659–60, 63 P.3d 192 (2003). Johnson does not establish prejudice, and his ineffective assistance of counsel claim therefore fails.

III. Community Custody Conditions

¶ 16 Johnson next challenges two of the conditions imposed by the trial court as part of his sentence. He first challenges condition 16, which states, “Do not initiate, or have in any way, physical contact with children under the age of 18 for any reason. Do not have any contact with physically or mentally vulnerable individuals.” CP at 112. Johnson contends that the use of “vulnerable” in this condition is unconstitutionally vague. CP at 112. Johnson also challenges condition 25, which provides, “You shall not have access to the Internet at any location nor shall you have access to computers unless otherwise approved by the Court. You also are prohibited from joining or perusing any public social websites (Face[ ]book, MySpace, etc.).” CP at 113. Johnson argues the trial court lacked statutory authority to impose this condition as it is unrelated to the facts of his crime. We agree with both contentions.

¶ 17 The Sentencing Reform Act of 1981, chapter 9.94A RCW, authorizes the trial court to impose “crime-related prohibitions and affirmative conditions” as part of a sentence. RCW 9.94A.505(8); State v. Warren, 165 Wash.2d 17, 32, 195 P.3d 940 (2008). Any condition imposed in excess of this statutory grant of power is void. State v. Paulson, 131 Wash.App. 579, 588, 128 P.3d 133 (2006). We review de novo whether the trial court had statutory authorization to impose a community custody condition. State v. Acevedo, 159 Wash.App. 221, 231, 248 P.3d 526 (2010). If the trial court had statutory authorization, we review its decision to do so for an abuse of discretion. State v. Valencia, 169 Wash.2d 782, 791–92, 239 P.3d 1059 (2010) (quoting State v. Bahl, 164 Wash.2d 739, 753, 193 P.3d 678 (2008)).

A. Vagueness and Condition 16

¶ 18 The guarantee of due process of law found in both the state and federal constitutions “requires that citizens have fair warning of proscribed conduct.” Bahl, 164 Wash.2d at 752, 193 P.3d 678. A community...