State v. Love

• Decision Date: 24 September 2013
• Docket Number: Nos. 30809–0–III, 30810–3–III, 30811–1–III.,s. 30809–0–III, 30810–3–III, 30811–1–III.
• Citation: 309 P.3d 1209,176 Wash.App. 911
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Unters L. LOVE, Appellant.

176 Wash.App. 911

309 P.3d 1209

STATE of Washington, Respondent,

v.Unters L. LOVE, Appellant.

Nos. 30809–0–III, 30810–3–III, 30811–1–III.

Court of Appeals of Washington, Division 3.

Sept. 24, 2013.

Eric J. Nielsen, Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.

Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Andrew J. Metts III, Spokane, WA, for Respondent.

KORSMO, C.J.

¶ 1 Mr. Unters Love challenges his conviction for six counts of second degree theft and one count of bail jumping on the basis that the court erred in considering his challenges for cause at sidebar during jury selection. He also argues that he should have been present at the sidebar conference and that a postdated check that was cancelled before it came due had no value under our theft statute. We conclude that the court did not close the courtroom, Mr. Love has not shown that his due process claim was manifest, and that the check did have value at the time it was acquired. Accordingly, we affirm the convictions.

FACTS

¶ 2 The noted charges were filed in three different cause numbers, but all of the matters proceeded to a single jury trial. Mr. Love was represented by counsel, although their relationship appeared on the record to be strained on occasion.

¶ 3 At the conclusion of voir dire, the trial judge called the attorneys forward for a bench conference to discuss challenges for cause; the record does not reflect whether Mr. Love joined the conference. Defense counsel challenged jurors 15 and 30 for cause; the prosecutor had no objection and the court struck the two jurors for cause. Counsel also discussed three other jurors, but no challenges were raised to those jurors after it appeared they were too far down the list to end up serving on the panel. Counsel also both assented to the trial judge's suggestion that two alternates be used. The court reporter then noted that the bench conference concluded.

¶ 4 At that point, the transcript reads: “(Peremptory challenge process is being conducted.)” The judge explained to the jurors that this process “generally takes a couple minutes, so if you want to stand and stretch, talk quietly amongst yourselves, feel free.” Report of Proceedings (RP) at 134. The record of jurors shows that the prosecutor exercised one peremptory challenge. Defense counsel waived his peremptory challenges and the prosecutor waived further challenges. Both declined to strike any alternate jurors. ¹

¶ 5 After the judge's remarks inviting the jurors to relax, the transcript reports: “(Peremptory challenges continuing.)” RP at 134. The next line of the report of proceedings contains the beginning of the following exchange:

THE DEFENDANT: Your Honor, may I—may I approach the bench?

THE COURT: No.

THE DEFENDANT: Please, may I approach the bench, your Honor?

THE COURT: No.

THE DEFENDANT: Mr. Knox cannot represent this case.

THE COURT: Sir, if you say one more word....

(The defendant sat down.)

RP at 135.

¶ 6 The essence of the charges against Mr. Love was that he would advertise and sign leases with people for residences that he did not own and collect their down payments for himself. One of the counts at trial involved a victim, Ms. L. who gave him a postdated check along with a $500 money order. She had second thoughts about the transaction and cancelled the check before the date on the check; Mr. Love never presented the check to the bank. Ms. L. never saw the money order again.

¶ 7 The jury convicted Mr. Love as charged. The court imposed a standard range sentence term. Mr. Love then timely appealed to this court. After the decision in State v. Sublett, 176 Wash.2d 58, 292 P.3d 715 (2012), the parties provided supplemental briefing concerning that case at our direction.

ANALYSIS

¶ 8 This appeal presents a public trial claim concerning challenges for cause occurring at a sidebar conference and a due process claim arising from Mr. Love's absence from the sidebar conference. Mr. Love also challenges the sufficiency of the evidence to support the conviction for theft involving Ms. L. We will address the three challenges in the noted order.²

Public Trial

¶ 9 Mr. Love contends that the court violated his Washington Constitution article I, section 22 public trial rights by hearing his challenges for cause at sidebar. He also contends that the court erroneously conducted the peremptory challenges at sidebar as well. As to the latter claim, we do not believe the record factually supports the argument. The transcript clearly showed that the sidebar conference ended at the conclusion of the challenges for cause. The peremptory challenge process then began. The record simply does not suggest that the peremptory challenge process continued at sidebar after the reporter stopped reporting it.³ However, our analysis would not change even if the peremptory challenges had also been taken at sidebar. There was no improper closure of the courtroom.

¶ 10 Art. I, § 22 guarantees a criminal defendant many trial rights, including the right to “a speedy public trial by an impartial jury.” The meaning of the “public trial” right has been heavily litigated the past several years. In an overly simplified form, it is error under § 22 to “close” the courtroom to any aspect of a criminal trial that is required to be “open.” Whether or not a courtroom was properly closed is adjudged by application of the five factor test set forth in State v. Bone–Club, 128 Wash.2d 254, 261, 906 P.2d 325 (1995). Whether or not a particular portion of a proceeding was required to be held in public is determined by use of the “experience and logic” test. Sublett, 176 Wash.2d at 141, 292 P.3d 715.⁴ Jury selection in a criminal case is considered part of the public trial right and is typically open to the public. State v. Strode, 167 Wash.2d 222, 227, 217 P.3d 310 (2009).

¶ 11 As explained in the lead Sublett opinion, the “experience and logic” test requires courts to assess the necessity for closure by consideration of both history (experience) and the purposes of the open trial provision (logic). Sublett, 176 Wash.2d at 73, 292 P.3d 715. The experience prong asks whether the practice in question historically has been open to the public, while the logic prong asks whether public access is significant to the functioning of the right. Id. If both prongs are answered affirmatively, then the Bone–Club test must be applied before the court can close the courtroom. Id. ¶ 12 The prosecutor argues that there was no closure at all because the peremptory and cause challenges were all conducted in the open courtroom in the presence of the venire and any other spectators who may have been present. While the clarity and simplicity of such a bright line rule is appealing, we will leave that issue to another day when it has been thoroughly briefed from a wider perspective. We note that other states have concepts of “limited closure” that may be suggestive to Washington courts in this context. See, e.g., Commonwealth v. Cohen, 456 Mass. 94, 921 N.E.2d 906 (2010) (citing cases). As the prosecutor duly noted, at least one state has expressly addressed sidebar conferences in the open courtroom context. E.g., People v. Virgil, 51 Cal.4th 1210, 126 Cal.Rptr.3d 465, 253 P.3d 553 (2011). Since we reach the same result by use of the experience and logic test in this case, we will not address further whether a sidebar conference constitutes a closure, but will assume that is in fact the case here.

¶ 13 The experience prong requires that we look at historic practices. Mr. Love argues that because cause and peremptory challenges are part of jury selection, a process that is normally open, the exercise of those challenges must be done openly rather than at sidebar. We believe this focus is too narrow. The argument here is that the sidebar conference violated our open courtroom norms because of what occurred at that conference. The focus thus has to be on whether the activities occurring at that conference were those normally required to be conducted in public. If Mr. Love had argued more generally that having any sidebar conference during jury selection violated § 22, then his broader focus would be a bit closer to the mark and we would look to historic practices in the use of sidebar conferences. However, his specific argument is that cause and peremptory challenges were erroneously conducted at sidebar. We therefore have to apply the experience and logic test to those practices.⁵

¶ 14 Neither party cites any authority suggesting that challenges for cause are normally made in public. Challenges for cause, which have existed from our early territorial statutes, typically present solely a legal issue, i.e., has the statutory standard been satisfied? ⁶ A peremptory challenge is one for which no reason need exist and rests in the discretion of the parties. Again, there is no evidence suggesting that historical practices required these challenges to be made in public. Most parties, in fact, would probably rather not have a challenge for cause made in the presence of the juror in case the challenge failed and the juror might serve knowing the identity of a party that had not wanted him or her to serve.

¶ 15 Our research discloses one case in which the defense challenged the “use of secret—written—peremptory jury challenges.” State v. Thomas, 16 Wash.App. 1, 13, 553 P.2d 1357 (1976). Discerning no prejudice to the defendant from the process, and noting that the process was used in several counties, the court rejected the argument for having “no merit.” Id. Although suggestive that there may have been an “open” peremptory challenge process in use in other places, Thomas is strong evidence that peremptory challenges can be conducted in private.

¶ 16 Also somewhat suggestive is Sublett itself. There the court faced a public trial challenge to the trial court's having answered a written jury question in chambers. Applying the experience and logic test, the...