State v. Lormor

• Decision Date: 21 July 2011
• Docket Number: No. 84319–8.,84319–8.
• Citation: 172 Wash.2d 85,257 P.3d 624
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent,v.Dean Martin LORMOR, Petitioner.

172 Wash.2d 85

257 P.3d 624

STATE of Washington, Respondent,

v.Dean Martin LORMOR, Petitioner.

No. 84319–8.

Supreme Court of Washington, En Banc.

Argued May 3, 2011.Decided July 21, 2011.

Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Petitioner.Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, amicus counsel for Washington Association of Prosecuting Attorneys.C. JOHNSON, J.

[172 Wash.2d 87] ¶ 1 This case asks us to determine whether the removal of a person from the courtroom, under the facts in this case, was a closure in violation of the right to a public trial, and, if so, whether such “closure” can be considered too trivial as to implicate a defendant's constitutional rights. We hold that the exclusion of one person is not a closure that violates the defendant's public trial right but instead is an aspect of the court's power to control the proceedings. In this case, under an abuse of discretion standard, the trial court judge's removal of the defendant's young daughter was not unreasonable. Because there was no closure and no abuse of discretion, we affirm the conviction. Finally, we reject, under these facts, the Court of Appeals' holding that embraced a trivial standard in regard to court closures and reserve such a discussion for another day.

FACTS AND PROCEDURAL HISTORY

¶ 2 Dean Lormor was arrested following a domestic disturbance, and during his jail intake, a small bag was found in his pants pocket. The bag contained methamphetamine residue. Lormor was charged with unlawful possession of a controlled substance.

¶ 3 Lormor's daughter, who was four days shy of her fourth birthday, was excluded from the courtroom before trial. The daughter, who was terminally ill, was confined to a wheelchair and required a ventilator to breathe. Before trial, the prosecutor brought the matter up, because Lormor had either talked to or near one of the jurors regarding his daughter. This conversation followed:

MR. SMITH: Your Honor, thank you. The first issue is—we talked at sidebar about this, and just for the record, there was some indication that the defendant either talked to or talked in front of one of the potential jurors and members of the panel regarding his daughter, and so I—I know the defendant has some criminal history, but I don't know whether he's ever been through a trial or not. I'd ask the Court to instruct him to not discuss this or anything around the jurors that have been chosen. That's my first issue.

THE COURT: Ms. Murphy, do you wish to be heard?

MS. MURPHY: No, Your Honor. I have no objections to that request.

THE COURT: Okay. Mr. Lormor, I didn't really particularly in the presence of all the jurors want to inquire into the report that you were overheard making some comment in disappointment that your daughter was excluded from the courtroom. I simply want to emphasize to you what I think I've already said, the response to that, and that is you can't have direct contact with or discuss any aspect of your predicament in the presence of others outside of court session unless you're given permission to do so. I would ask that you respect that limitation, and I understand that your daughter was initially here. She is unfortunately in a medical condition that requires her to be in a wheelchair and to be on apparently breathing assistance.

THE DEFENDANT: Ventilator, yes.

THE COURT: I don't know how old she is, but she appears to me to be of adolescent years, but I don't know what her age is.

THE DEFENDANT: She'll be four on the 29th.

THE COURT: So she is even younger than adolescent years. I made the decision she should not be in the courtroom for a number of reasons: Number one, at that age I don't know how much she would understand of the proceedings. Two, given the setup I could even hear at the bench the ventilator operating, and I concluded that would be an inappropriate distraction and frankly difficult for her as it would be potentially distracting for the jury.

And so that's the decision I've made. And I have empathy for her circumstances as well as yours in that regard, but I just don't think it's appropriate for a young person to be in this kind of a controlled setting, and I did hear some sounds from her which are perfectly understandable. I don't want in any way to limit her need to express herself for assistance or how she's feeling or anything else, but I just believe that would serve as an inappropriate distraction to the process and so that's why I've excluded her, and I want you to know that I don't take that lightly but I would do that in any type of case under the circumstances unless she were a necessary witness and was competent to testify, which given her tender years she would not be under the evidence rules of the court.

Report of Proceedings (RP) (Sept. 24, 2008) at 21–23. The prosecutor requested that Lormor be precluded from discussing his daughter and her condition. Counsel and defendant acquiesced, but Lormor had concerns about eventual sentencing because he was hoping to accompany his daughter to Disneyland with the Make–A–Wish Foundation. The following is the only other place in the record where the exclusion is discussed:

THE COURT: Well, we'll cross that eventual bridge when we come to it, and I take a lot—a much different position on who can or can't be in the courtroom when we're not in the jury trial mode. And so I am reserving in the defense the right to re-visit this issue once we have concluded the jury part of this case. If there is a finding of not guilty, that ends it. If there is a guilty finding and there's—are further proceedings and without the jury, my position will be significantly different regarding the presence of others in the courtroom including the defendant's daughter.

So I've already made my reasons known for excluding Mr. Lormor's daughter. I'll maintain them. I think they respond to counsel's concerns, and so I would direct, however, that counsel or the defendant or any witnesses not make reference to the status of defendant's daughter without further alerting the court and outside the jury's presence having a discussion as to whether such can be done before any mention of it takes place in front of the jury.

RP (Sept. 24, 2008) at 24–25. Lormor was convicted on the possession charge, and he was sentenced to 24 months. He was allowed to go to Disneyland with his daughter before serving his sentence.

¶ 4 On appeal, Lormor argued the trial court violated his right to a public trial, as well as the public's right to open courts, in excluding Lormor's daughter without first considering the Bone–Club factors. State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995). He additionally argued ineffective assistance of counsel because his attorney failed to object to the exclusion, as a cautionary measure, should the Court of Appeals conclude that he waived the error at trial by not objecting to it. The appellate court determined that, although the exclusion was a closure, the trial court's actions did not implicate Lormor's right to a public trial. Relying on federal case law, the appellate court held that even a problematic courtroom closure could be too trivial to violate the Sixth Amendment to the United States Constitution, if, as was the case here, none of the interests served by the right were involved. State v. Lormor, 154 Wash.App. 386, 393, 224 P.3d 857 (2010). Lormor appealed to this court, and we granted review. State v. Lormor, 169 Wash.2d 1010, 236 P.3d 206 (2010).

ISSUES

1. Did the exclusion of Lormor's daughter constitute a closure, and if so, in violation of Lormor's right to a public trial?

2. Was Lormor denied effective assistance of counsel?

ANALYSIS

¶ 5 Whether the right to a public trial has been violated is a question of law reviewed de novo. State v. Momah, 167 Wash.2d 140, 147, 217 P.3d 321 (2009) (citing Bone–Club, 128 Wash.2d at 256, 906 P.2d 325). There is a strong presumption that courts are to be open at all trial stages. A criminal defendant's right to a public trial is found in article I, section 22 of our state constitution and the Sixth Amendment to the United States Constitution which both provide a criminal defendant with a “public trial by an impartial jury.” Additionally, article I, section 10 of our constitution provides that “[j]ustice in all cases shall be administered openly,” granting the public an interest in open, accessible proceedings. Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982). The public's right to an open trial is mirrored federally by the First Amendment. Press–Enter. Co. v. Superior Court, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). The public trial right is not absolute but may be overcome to serve an overriding interest based on findings that closure is essential and narrowly tailored to preserve higher values.¹

¶ 6 In a recent opinion, the United States Supreme Court had the opportunity to revisit and clarify its court closure doctrine. In Presley v. Georgia, ––– U.S. ––––, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010), the trial court, over objection, ejected an observer from the courtroom and closed the courtroom to all observers. The observer happened to be the defendant's uncle. At issue in Presley was the trial court's failure to consider alternatives to closure so the public could be accommodated, which the Court held it was required to do. What mattered to the Court was that the entire process of choosing a jury was closed to all potential spectators. It seemed to be the trial court's general practice to exclude everyone from voir dire, and, under the Supreme Court of Georgia's reasoning, closure of voir dire would always be permitted for any reason. But under the United States Supreme Court's cases, such an approach is inconsistent with the requirements of the Sixth Amendment because courts are required to take...