State v. Lee, s. 62864–0–I

• Decision Date: 07 February 2011
• Docket Number: Nos. 62864–0–I,62961–1–I.,s. 62864–0–I
• Citation: 247 P.3d 470,159 Wash.App. 795
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Steven Lavelle LEE and Tsegazeab A. Zerahaimanot, Appellants.

159 Wash.App. 795

247 P.3d 470

STATE of Washington, Respondent,

v.Steven Lavelle LEE and Tsegazeab A. Zerahaimanot, Appellants.

Nos. 62864–0–I

62961–1–I.

Court of Appeals of Washington, Division 1.

Feb. 7, 2011.

Oliver Ross Davis, Washington Appellate Project, Seattle, WA, for Appellant Steven Lavelle Lee.Steven Witchley, Ellis Holmes & Witchley PLLC, Seattle, WA, for Appellant Tsegazeab A. Zerahaimanot.Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.

PUBLISHED IN PART

COX, J.

[159 Wash.App. 800] ¶ 1 Steven Lee and Tsegazeab Zerahaimanot, co-defendants in a joint trial, appeal their judgments and sentences in this prosecution for one count of felony murder, one count of first degree murder, and one count of second degree unlawful possession of a firearm. Both murder counts included firearm allegations to support enhancements.

¶ 2 The first issue is whether the trial court violated their state and federal rights to a public trial by sealing juror questionnaires without first conducting the analysis required under State v. Bone–Club. ¹ The public's right to open access to court proceedings is also implicated. The second issue is whether their confrontation rights were violated when the trial court admitted cell phone records without providing an opportunity to cross-examine the record custodians.

¶ 3 Lee and Zerahaimanot make additional claims that we address in the unpublished portion of this opinion.

¶ 4 We remand to the trial court for reconsideration of its order to seal the juror questionnaires under Bone–Club. We also direct the trial court to vacate Lee's and Zerahaimanot's premeditated murder convictions on double jeopardy grounds, leaving undisturbed their felony murder convictions. In all other respects, we affirm.

¶ 5 In the early morning of August 21, 2007, Jill Rich and Bristol Chaney found Forrest Starrett lying next to his truck in Everett, Washington. Starrett had suffered gunshot wounds to the leg and head. He was dead when police arrived at the scene. Investigation led to Lee and Zerahaimanot.

¶ 6 The State charged them in Snohomish County Superior Court with felony murder, premeditated murder, and another crime not relevant to this appeal. The charges also included firearm allegations to support requests for enhancements.

¶ 7 The night of the shooting, Starrett was at Michelle Walker's apartment with several other individuals, including Leroy Holt. Holt invited Lee and Zerahaimanot to the apartment. Holt later witnessed Zerahaimanot shoot Starrett in the lower part of his body and Lee shoot Starrett in the head. It was the State's theory that Lee and Zerahaimanot killed Starrett because they were suspicious that he was a police officer. A jury convicted them as charged.

¶ 8 Lee and Zerahaimanot appeal.

OPEN AND PUBLIC TRIAL

¶ 9 Lee and Zerahaimanot argue that their federal and state constitutional rights to a public trial were violated when the trial court sealed juror questionnaires without first conducting a Bone–Club hearing on the record. We hold that their right to a public trial was not violated. But, the failure to conduct a Bone–Club hearing before entering the sealing order is inconsistent with the public's right of open access to court records. Accordingly, remand for reconsideration of the sealing order at such a hearing is required.

[159 Wash.App. 802] ¶ 10 An accused's right to a public trial is protected by both the state and federal constitutions. The Sixth Amendment provides, “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” ² In article I, section 22, the Washington Constitution provides “[i]n criminal prosecutions the accused shall have the right ... to have a speedy public trial by an impartial jury.” ³

¶ 11 Separate from the defendant's right to a public trial, the public has a right to open court proceedings. Article I, section 10, of the Washington Constitution provides that “[j]ustice in all cases shall be administered openly.” ⁴ This provision has been interpreted as protecting the public and press's right to open and accessible court proceedings, similar to the public's right under the First Amendment.⁵

These [respective constitutional] provisions “assure a fair trial, foster public understanding and trust in the judicial system and give judges the check of public scrutiny.” The guaranty of open criminal proceedings extends to jury selection, which is important “ ‘not simply to the adversaries but to the criminal justice system.’ ”⁶

¶ 12 While the public's right to open court proceedings and the defendant's right to a public trial are independent, they “serve complementary and interdependent functions in assuring fairness of our judicial system....” ⁷ In Bone–Club, the supreme court set out the standards for closing all or any portion of a criminal trial.⁸ Because the defendant's rights under article I, section 22 and the public's right under article I, section 10 are interrelated, the same analysis applies to both rights:

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.” ⁹

In State v. Waldon,¹⁰ this court held the same analysis applies when sealing court documents.¹¹

¶ 13 When the defendants' right to a public trial is violated, the court devises a remedy appropriate to that violation.¹² If the error is structural in nature, the conviction must be reversed and a new trial is required.¹³ An error is structural when it “ ‘necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.’ ” ¹⁴ But, in each case the “remedy must be appropriate to the violation.” ¹⁵

¶ 14 Whether the defendant's right to a public trial or the public's right to open court proceedings was violated are questions of law subject to de novo review.¹⁶

¶ 15 Here, Lee and Zerahaimanot argue that sealing the juror questionnaires without a Bone–Club analysis violated their public trial right under article I, section 22. They also argue that article I, section 10 is implicated.¹⁷

¶ 16 This court addressed whether sealing juror questionnaires violated these constitutional provisions in State v. Coleman. ¹⁸ There, the State prosecuted Coleman for rape and multiple counts of first degree child molestation.¹⁹ The members of the venire completed questionnaires that included matters concerning their sexual histories.²⁰ The completed questionnaires were provided to counsel and jury selection proceeded in open court.²¹

¶ 17 Three days after the jury was accepted as constituted and sworn, the court ordered the questionnaires sealed, stating in its order:

The court finds compelling circumstances for sealing the documents indicated below:

Jury questionnaires containing personal sexual history of prospective jurors related to issues in this case. The individual juror's right to privacy in this information greatly outweighs the public's right to access the court files. ²²

The court did not hold a Bone–Club hearing to consider whether sealing was proper and appears to have ordered sealing on its own motion.²³ The jury convicted Coleman of two counts of molestation, acquitted him of a third, and failed to reach a verdict on the rape charge.²⁴

¶ 18 On appeal, Coleman argued that the trial court's failure to undertake a Bone–Club analysis before entering its sealing order violated both “his right and that of the public to an open and public trial.” ²⁵ He further claimed that these violations constituted structural error, requiring a new trial.

¶ 19 This court concluded that the failure to conduct a Bone–Club analysis prior to sealing the juror questionnaires did not violate Coleman's right to a public trial under article 1, section 22.²⁶ Rather, it violated the public's right to open and accessible court proceedings under article I, section 10:

“Under these authorities, the court should have conducted a Bone–Club analysis before sealing the questionnaires. Violation of the public's right to open court records requires remand for reconsideration of the order.

Coleman contends that sealing the questionnaires without conducting the Bone–Club analysis amounted to structural error, from which prejudice is presumed and for which a new trial is warranted. On these facts, we do not agree that structural error occurred. [First, t]he questionnaires were used only for selection of the jury, which proceeded in open court. [Second, t]he questionnaires were not sealed until several days after the jury was seated and sworn. [Third, u]nlike answers given verbally in closed courtrooms, there is nothing to indicate that the questionnaires were not available for public inspection during the jury selection process. Thus, the subsequent sealing order had no effect on Coleman's public trial right and did not “create ‘defect[s] affecting the framework within which the trial proceeds.’ ”

The error was not structural.” ²⁷

¶ 20 This case is factually similar to Coleman. Here, Zerahaimanot's counsel proposed use of the questionnaires prior to trial, and neither Lee nor the State objected. The juror questionnaires identified the defendants and some witnesses as African–Americans and asked the members of the venire about their attitudes toward African–Americans. The questionnaires also asked the members of the venire about their attitudes about firearms. The...