State v. Koss
| Decision Date | 25 September 2014 |
| Docket Number | No. 85306–1.,85306–1. |
| Citation | 181 Wash.2d 493,334 P.3d 1042 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Anthony David KOSS, Petitioner. |
Douglas Dwight Phelps, Phelps & Associates, P.S., Spokane, WA, for Petitioner.
Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, Andrew J. Metts III, Spokane, WA, for Respondent.
¶ 1 This is a case about precedent. Anthony Koss was convicted of first degree burglary. Before jury deliberations, the judge and counsel met in chambers. There is no transcript of the in-chambers proceeding, no reconstructed record, and no agreed summary of what occurred there. Immediately afterwards, however, the judge stated in open court that she had given counsel the jury instructions and had made a requested change in one instruction. Koss therefore infers, and the State agrees (e.g.,Br. of Resp't at 10), that it was an in-chambers instructions conference. Koss challenges that procedure for the first time on appeal. As discussed below, recent controlling precedent of this court holds that he can raise this constitutional claim for the first time on appeal and that the trial court must address several factors on the record before closing a proceeding to which the constitutional right to a public trial attaches. But recent precedent also holds that the constitutional right to a public trial does not extend to such a preliminary instructions conference. We adhere to all of those recent controlling precedents.
¶ 2 Koss also argues that the trial judge received and answered two questions, in writing, during deliberations, in another closed court proceeding. But the transcript, clerk's papers, and docket do not reveal any such proceeding, open or closed. Nor do any declarations, affidavits, or other materials document the existence of a proceeding, open or closed, in which these questions and answers were considered. Recent controlling precedent reaffirms our long-standing rule that the appellant bears the burden of providing a record showing that the supposedly unconstitutional event occurred. We reaffirm that recent controlling precedent.
¶ 3 The Court of Appeals affirmed Koss's conviction. Because we adhere to our recent controlling precedent on all the topics listed above, we affirm the Court of Appeals.
¶ 4 Koss knocked on a stranger's door. When she opened it, he asked if she was having a party. She said no, and Koss then punched her in the face through her doorway. He was charged with burglary in the first degree. At trial, the defense theory was that another person threw the punch. The jury convicted Koss as charged. The Court of Appeals affirmed. State v. Koss, 158 Wash.App. 8, 241 P.3d 415 (2010).
¶ 5 Koss presented several issues to this court, but we accepted review of only the public trial issue. We therefore focus on the facts relevant to that issue.
¶ 6 Near the end of trial, the judge met with counsel in chambers. There is no transcript of that meeting, and the record does not reveal the length or content of that discussion. When the judge and counsel emerged, however, the following colloquy occurred; it sheds some light on what happened in chambers.
2 Verbatim Report of Proceedings (VRP) (Apr. 29, 2009) at 271. This exchange suggests—and the parties agree—that this in-chambers conference was about jury instructions.
¶ 7 Later, during deliberations, the jury submitted two written questions. The first was Clerk's Papers (CP) at 61. The court's response, written on the same page as the question, was “Please re-read your jury instructions.” Id. The jury's second written inquiry was “Need CD player to play 911 call.” CP at 62. The court's response, again written on the same page, was “(given one time—computer playback).” Id.
¶ 8 These questions and answers are documented in the clerk's papers, but there is no corresponding transcript, minute entry, or other part of the record that reveals anything further about them. Instead, the transcript shows the following: After receiving the instructions, the jury left the courtroom to begin deliberations. 2 VRP (Apr. 29, 2009) at 346. Immediately thereafter, the court, the defendant, and counsel discussed (in open court) administrative matters such as counsel's phone numbers and the status of the defendant's bond. Id. at 346–47. At the end of that discussion, the court clerk said, “All rise.” Id. at 347. The transcript then reads, “(COURT IN RECESS.)” Id. The very next thing in the transcript is the return of the jury. Id. Nothing in the transcript or clerk's papers reveals the procedure by which the court handled the jury questions.
¶ 9 The only challenge to that question-and-answer procedure in the Court of Appeals is violation of the constitutional right to an open courtroom. The only challenge to that procedure in the petition for review is violation of the constitutional right to an open courtroom. That is the issue upon which review was granted. In supplemental briefing thereafter, the petitioner for the first time argues that this procedure also violated his constitutional and court-rule-based right to be present.
¶ 10 The defendant may raise the constitutional right to a public trial for the first time on appeal. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012) ; State v. Brightman, 155 Wash.2d 506, 517–18, 122 P.3d 150 (2005)(“defendant's failure to lodge a contemporaneous objection at trial did not effect a waiver of the public trial right” (citing State v. Bone–Club, 128 Wash.2d 254, 257, 906 P.2d 325 (1995) )). We review a claim that the trial court violated the constitutional right to a public trial de novo. State v. Easterling, 157 Wash.2d 167, 173–74, 137 P.3d 825 (2006).
¶ 11 “[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure if closed to the public.” State v. Sublett, 176 Wash.2d 58, 71, 292 P.3d 715 (2012) ; see also Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n. 23, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (Brennan, J., concurring) (). Thus, before examining whether a violation occurred, we first consider whether the proceeding at issue was one to which the constitutional right to a public trial attaches. Sublett, 176 Wash.2d at 71, 292 P.3d 715.
¶ 12 We recently adopted the federal experience and logic test as a “useful tool for determining whether the public trial right attaches to a particular process.” Id. at 75, 292 P.3d 715. In Sublett, we applied that experience and logic test to a discussion of jury questions in chambers during deliberations. The Sublett court held that such a procedure “did not implicate the public trial right.”1
¶ 13 That is a slightly different issue than the first issue raised by Koss, that is, discussion of jury instructions prior to
deliberations. In reaching its holding, however, Sublett relies by way of analogy on the rules for discussing jury instructions prior to deliberations. Id. (). With regard to such preliminary in-chambers instructions conferences, like the first violation claimed here, we stated:
We are aware that, quite often, counsel discuss the instructions with the court during an informal proceeding. But before instructing the jury, counsel is to be given the opportunity to object in the absence of the jury. CrR 6.15(c). Any objections to the instructions, as well as the grounds for the objections, must be put in the record to preserve review.... We have found no challenges to ... the rule or, prior to the rule's enactment, any case requiring the discussion of jury instructions to be held in open court.
Id. at 75–76, 292 P.3d 715. We then applied that reasoning to the slightly different challenged procedure in Sublett —jury questions asked during deliberations—and concluded that because “[t]he same is true regarding a proceeding to discuss a question from the jury about its instructions,” that latter proceeding did not implicate the constitutional public trial right, either. Id. at 76, 77, 292 P.3d 715. Justice Stephens concurred in Sublett for the same reason, stating that “the answer to this question should be the same for a hearing responding to a jury question about the instructions as for a hearing addressing jury instructions in the first instance.” Id. at 141, 292 P.3d 715 (Stephens, J., concurring). Her concurrence states that if the public...
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