State v. Leyerle, 37086-7-II.

• Citation: 242 P.3d 921,158 Wash.App. 474
• Decision Date: 10 November 2010
• Docket Number: No. 37086-7-II.,37086-7-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Michael Lee LEYERLE, Appellant.

242 P.3d 921 158 Wash.App. 474 STATE of Washington, Respondent, v. Michael Lee LEYERLE, Appellant. No. 37086-7-II. Court of Appeals of Washington, Division 2. Nov. 10, 2010.

Lisa Elizabeth Tabbut, Attorney at Law, Longview, WA, for Appellant.

Amie L. Hunter, Hall of Justice, Cowlitz Prosecuting Attorney's Office, Kelso, WA, for Respondent.

VAN DEREN, J.

¶ 1 Michael Lee Leyerle appeals his conviction for unlawful possession of methamphetamine, asserting that the trial court improperly conducted a portion of voir dire outside of the courtroom and, therefore, a new trial is warranted. We agree, reverse Leyerle's conviction for unlawful possession of methamphetamine, and remand for further proceedings.

FACTS

¶ 2 The State charged Leyerle with unlawful possession of methamphetamine on November 16, 2007.¹ During voir dire, the trial court asked if any jurors felt that they could not be impartial if they were to be on Leyerle's jury. When a prospective juror indicated that he could not be impartial, the trial court asked the prospective juror and both counsel to join him in the hallway. The hallway discussion between the trial judge, prosecutor, defense counsel, and the prospective juror was recorded.² The trial judge asked defense counsel if Leyerle wanted to join them in the hallway. Defense counsel's response was inaudible and not recorded, but later, before they returned to the courtroom, the trial judge stated, "There were no spectators who waived their right to be here [; defendant] doesn't want to be here and his counsel said [he] didn't want to be here. Isn't that correct?" Report of Proceedings (RP) Voir Dire at 20. Defense counsel responded affirmatively.

¶ 3 In the hallway, the prospective juror explained that, based on his many years as a law enforcement officer in California, "[he] would be prejudic[ed] towards the law enforcement side." RP Voir Dire at 19. Defense counsel successfully challenged the prospective juror for cause. Also in the hallway, defense counsel noted that he had had "[a]lmost twenty-five years of pretty constant contact" with another potential juror. RP Voir Dire at 21. The State said it would question the juror about those contacts and later did so in open court.

¶ 4 The trial judge, prosecutor, defense counsel, and the prospective juror then returned to the courtroom. The trial court excused the prospective juror. Then, voir dire resumedand a jury was seated that ultimately convicted Leyerle of unlawful possession of methamphetamine.

¶ 5 Leyerle appeals, arguing that the trial court erred by conducting a portion of voir dire outside the courtroom.³

ANALYSIS

¶ 6 We note at the outset that our recent decision in State v. Paumier, 155 Wash.App. 673, 230 P.3d 212 (2010) resolves this case. We adhere to and apply Paumier to Leyerle's appeal.

¶ 7 Whether a trial court procedure violates the right to a public trial is a question of law we review de novo. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005). The remedy for such a 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). A defendant who fails to object at the time of the closure does not waive the right. Brightman, 155 Wash.2d at 514-15, 122 P.3d 150.

¶ 8 The state and federal constitutions guarantee the right to a public trial.Article I, section 22 of the Washington State Constitution provides, "In criminal prosecutions the accused shall have the right ... to have a speedy public trial." The Sixth Amendment to the United States Constitution states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Moreover, article I, section 10 of the Washington State Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision secures the public's right to open and accessible proceedings.

State v. Easterling, 157 Wash.2d 167, 174, 137 P.3d 825 (2006). These provisions ensure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. Brightman, 155 Wash.2d at 514, 122 P.3d 150; Dreiling v. Jain, 151 Wash.2d 900, 903-04, 93 P.3d 861 (2004). While the public trial right is not absolute, it is strictly guarded to ensure that proceedings occur outside the public courtroom in only the most unusual circumstances. Easterling, 157 Wash.2d at 174-75, 137 P.3d 825; Orange, 152 Wash.2d at 804-05, 100 P.3d 291; State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995).

¶ 9 The guaranty of open criminal proceedings extends to voir dire. Orange, 152 Wash.2d at 804, 100 P.3d 291. In Orange and Bone-Club, our Supreme Court set out the standards for closing all or any portion of a criminal trial. Orange, 152 Wash.2d at 800, 805, 100 P.3d 291; Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325. Bone-Club adopted a five part analysis designed to protect a criminal defendant's right to a public trial. ⁴ 128 Wash.2d at 258-60, 906 P.2d 325; see also Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five part analysis under the Washington State Constitution article I, section 10).

¶ 10 Our Supreme Court has explained that Bone-Club's "five-step closure test" is essentially a restatement and adoption of the federal closure criteria expressed inWaller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).⁵See Orange, 152 Wash.2d at 805-07, 100 P.3d 291; see also Brightman, 155 Wash.2d at 515 n. 5, 122 P.3d 150. As we explained in Paumier, "[O]ur Supreme Court [in State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009),] seemed to back away from its earlier articulation in Orange that application of the Bone-Club guidelines is required and that the failure to so employ them when closing the courtroom is reversible error." 155 Wash.App. at 680, 230 P.3d 212.

¶ 11 Momah purportedly relied on Waller in concluding that a new trial was not warranted where the trial court closed voir dire without applying the Bone-Club criteria. The Momah court opined that, "[T]he [ Waller ] Court required a showing that the defendant's case was actually rendered unfair by the closure." 167 Wash.2d at 150, 217 P.3d 321.

¶ 12 In State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009), Momah's companion case, the lead opinion reiterated and applied Orange's conclusion-that the trial court must employ the Bone-Club criteria beforeany courtroom closure and the failure to employ that criteria is reversible error. See 167 Wash.2d at 227-28, 217 P.3d 310. But Strode was a plurality decision published the same day as Momah, thus leaving unclear whether the Bone-Club criteria was a prerequisite for courtroom closure.⁶See Paumier, 155 Wash.App. at 679-83, 230 P.3d 212.

¶ 13 Shortly after Momah and Strode were issued, the United States Supreme Court decided Presley v. Georgia, ---U.S. ----, 130 S.Ct. 721, 723, 175 L.Ed.2d 675 (2010), holding that under the First and Sixth Amendments, voir dire of prospective jurors must be open to the public and that this requirement is "binding on the States." See also Paumier, 155 Wash.App. at 683-86, 230 P.3d 212. Presley made clear that Waller provided the appropriate standards for courts to apply before excluding the public from any stage of a criminal trial. Presley, 130 S.Ct. at 724.

¶ 14 Noting that "[t]rial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials," Presley, 130 S.Ct. at 725, the Court reiterated that, " '[a]bsent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire.' " Presley, 130 S.Ct. at 724 (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 511, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)). Moreover, "trial courts are required to consider alternatives to closure even when they are not offered by the parties," because "[t]he public has a right to be present whether or not any party has asserted the right." Presley, 130 S.Ct. at 724-25. Additionally, the trial court must make appropriate findings supporting its decision to close the proceedings. Presley, 130 S.Ct. at 725.

¶ 15 Presley held that "even assuming, arguendo, that the trial court had an overriding interest in closing voir dire, it was still incumbent upon it to consider all reasonable alternatives to closure." Presley, 130 S.Ct. at 725. Thus, where the trial court fails to sua sponte consider reasonable alternatives and fails to make the appropriate findings, the proper remedy is reversal of the defendant's conviction. Presley, 130 S.Ct. at 725. As we held in Paumier, " Presley, applying the federal constitution, resolves any question about what a trial court must do before excluding the public from trial proceedings, including voir dire." 155 Wash.App. at 685, 230 P.3d 212.

¶ 16 In his supplemental briefing, Leyerle, as did Paumier, argues that his case is factually more like Strode than it is like Momah. The State contends otherwise. Such debate is of no significance, however, because as we acknowledged in Paumier, Presley has eclipsed Momah and Strode and controls the outcome of this case.⁷

¶ 17 The State contends that Leyerle waived any courtroom closure issue when defense counsel acknowledged that Leyerle did not wish to be present during the prospective juror's interview in the hallway. We disagree. As our Supreme Court reiterated in Strode, "[A] 'defendant's failure to lodge a contemporaneous objection at trial [does] not effect a waiver.' " 167 Wash.2d at 229, 217 P.3d 310 (second alteration in original) (quoting Brightman, 155 Wash.2d at 517, 122 P.3d 150). "[Defendant]'s failure to object to the closure or his counsel's participation in closed questioning of prospective jurors did not ... constitute a waiver of hisright to a public trial." ⁸Strode, 167 Wash.2d at 229, 217 P.3d 310.

¶ 18 Additionally, a defendant "cannot waive the public's right to open proceedings." Str...