State v. Love
| Decision Date | 16 July 2015 |
| Docket Number | No. 89619–4.,89619–4. |
| Citation | 354 P.3d 841,183 Wash.2d 598 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Unters Lewis LOVE, Petitioner. |
Attorney at Law, Dana M. Nelson, Nielsen Broman & Koch PLLC, Seattle, WA, for Petitioner.
Brian Clayton O'Brien, Spokane Co. Pros. Atty., Larry D. Steinmetz, Cnty. Prosc. Atty. Ofc., Spokane, WA, for Respondent.
Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for amicus counsel for Washington Association of Criminal Defense Lawyers.
Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, Seth Aaron Fine, Attorney at Law, Snohomish Co. Pros. Ofc., Everett, WA, for amicus counsel for Washington Association of Prosecuting Attorneys.
¶ 1 This case is another opportunity to clarify our evolving jurisprudence on open courts. Today we decide if a particular method of challenging jurors after voir dire—a method commonly employed in trial courts around the state—violates the constitutional right to a public trial. At the conclusion of voir dire questioning, counsel exercised for cause challenges orally at the bench and subsequently exercised peremptory challenges silently by exchanging a list of jurors and alternatively striking names from it. All of voir dire, including the juror challenges, occurred in open court, on the record, and in full view of any observer in the courtroom. We hold the juror challenges in this case were exercised in a manner consistent with the minimum safeguards of the public trial right and affirm.
¶ 2 Petitioner Unters Lewis Love elected to go to trial on several counts of theft and bail jumping. The first day of trial was unremarkable from an open court perspective. Several preliminary matters consumed the morning, and the trial judge heard argument and ruled on these motions in open court and on the record. The jury pool was brought into the courtroom after lunch for jury selection. The trial judge placed the jury pool under oath and briefly explained the mechanics of jury selection, including the parties' right to challenge jurors.
¶ 3 Voir dire examination began immediately thereafter. Both the trial judge and counsel questioned the jury pool in open court; their questions and the potential jurors' responses were on the record. When questioning concluded, the trial judge asked counsel to approach the bench to discuss for cause challenges in the presence of the court reporter:
Verbatim Report Proceedings (Apr. 9, 2012) at 132–33. Jurors 15 and 30 had strongly indicated they could not be impartial jurors in response to questions during voir dire, which occurred in the presence of Love, other potential jurors, and the public. The trial judge granted both of Love's for cause challenges. Though the discussion and ruling on these challenges occurred at the bench, the exchange was on the record and visible to observers in the courtroom. The record does not indicate if observers could hear what was said, but no one was asked to leave the courtroom.
¶ 4 Peremptory challenges followed. The record reflects that counsel exercised peremptory challenges silently in the courtroom by exchanging a written list of jurors between themselves. Counsel alternated striking one name from the list (the struck juror sheet), indicating they had exercised a peremptory challenge and removed the juror, until each side had exhausted its challenges.1 The struck juror sheet, which was filed in the court record and available to the public, shows Love waived his peremptory challenges and the State challenged juror 4. There is no indication that spectators (prospective jurors included) were forced to leave the courtroom, that the courtroom was locked, or that anyone was prohibited from entering. Instead, the courtroom remained open while counsel exercised their peremptory challenges, in the same manner as it was during the discussion of the for cause challenges. The record does not reflect that observers were unable to see counsel exchanging the struck juror sheet.
¶ 5 The trial judge thereafter announced that a jury had been selected. In open court and on the record, the judge read the names of the first 14 jurors left on the struck juror sheet (excluding jurors 4 and 15) and empaneled 12 jurors and two alternates. The judge thanked and dismissed the remaining potential jurors—including jurors 4, 15, and 30—without further explanation. The empaneled jury convicted Love on all counts.
¶ 6 Love appeals his convictions, arguing that the method of jury selection in his case violated his right to a public trial. He maintains that exercising for cause challenges at the bench and peremptory challenges on the struck juror sheet effectively “closed” the courtroom, though it was unlocked and open, because the public was not privy to the challenges in real time. He also argues his right to be present at all critical stages of the trial was violated because he could not approach the bench with counsel to discuss the for cause challenges.
¶ 7 The Court of Appeals affirmed in an opinion that predates many of our recent public trial right cases. State v. Love, 176 Wash.App. 911, 309 P.3d 1209 (2013). We granted review to consider how our open courts jurisprudence affects how parties can exercise for cause and peremptory challenges at trial. State v. Love, 181 Wash.2d 1029, 340 P.3d 228 (2015).
¶ 8 Love's two claims are purely legal questions, so our review is de novo. State v. Irby, 170 Wash.2d 874, 880, 246 P.3d 796 (2011) ; State v. Strode, 167 Wash.2d 222, 225, 217 P.3d 310 (2009).
¶ 9 We first consider Love's claim that potential jurors were challenged in a manner that violated his right to a public trial. A criminal defendant's right to a “speedy public trial” is found in article I, section 22 of the Washington Constitution, one of two constitutional components of our open courts doctrine. Love's standing in this case flows from article I, section 22.2 The other component to open courts, article I, section 10, guarantees the public that “[j]ustice in all cases shall be administered openly, and without unnecessarily delay.” These related constitutional provisions “serve complementary and interdependent functions in assuring the fairness of our judicial system,” State v. Bone–Club, 128 Wash.2d 254, 259, 906 P.2d 325 (1995), and are often collectively called the “public trial right.”
¶ 10 A three-step framework guides our analysis in public trial cases. First, we ask if the public trial right attaches to the proceeding at issue. Second, if the right attaches we ask if the courtroom was closed. And third, we ask if the closure was justified. State v. Smith, 181 Wash.2d 508, 513–14, 334 P.3d 1049 (2014) (citing State v. Sublett, 176 Wash.2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J., concurring)). The appellant carries the burden on the first two steps; the proponent of the closure carries the third. See id. at 516–17, 334 P.3d 1049.
¶ 11 The State argues that Love's claim fails at the outset, urging us to hold that the public trial right does not attach to for cause or peremptory challenges. Typically experience and logic determine if the public trial right attaches to a particular court proceeding, though we can also rely on prior cases that have applied right to the proceeding at issue. Sublett, 176 Wash.2d at 73, 292 P.3d 715 ; State v. Wise, 176 Wash.2d 1, 12 n. 4, 288 P.3d 1113 (2012) (). Our prior cases hold it “well settled that the right to a public trial ... extends to jury selection,” State v. Brightman, 155 Wash.2d 506, 515, 122 P.3d 150 (2005), and we reaffirm that the right attaches to jury selection, including for cause and peremptory challenges.
Unlike administrative or hardship excusals, for cause and peremptory challenges can raise questions about a juror's neutrality and a party's motivation for excusing the juror that implicate the core purpose of the right, and questioning jurors in open court is critical to protect that right. Open and transparent questioning fosters public confidence in subsequent challenges to jurors and, ultimately, the composition of juries in criminal trials.
¶ 12 We nevertheless affirm Love's conviction because he has not shown a courtroom closure in this case, failing to carry his burden under the second prong of our analysis. We have reversed convictions for two types of closures. The first, obvious type of closure occurs “when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.” State v. Lormor, 172 Wash.2d 85, 93, 257 P.3d 624 (2011) ; see Brightman, 155 Wash.2d at 511–12, 122 P.3d 150 (); In re Pers. Restraint of Orange, 152 Wash.2d 795, 801–02, 100 P.3d 291 (2004) (same). Love does not allege the courtroom was closed in this traditional way.
¶ 13 The second type of closure occurs where a portion of a trial is held someplace “inaccessible” to spectators, usually in chambers. Lormor, 172 Wash.2d at 93, 257 P.3d 624 ; see also State v. Shearer, 181 Wash.2d 564, 568, 334 P.3d 1078 (2014) (); Strode, 167 Wash.2d at 227, 217 P.3d 310 (); State v. Paumier, 176 Wash.2d 29, 33, 288 P.3d 1126 (2012) (same). Love equates the for cause and peremptory challenges in his trial—which occurred in open court—to those exercised behind a closed chambers door. He argues the possibility that spectators at his trial could not hear the discussion about for cause challenges or see the...
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...trial right attaches to the proceeding at issue, (2) whether the courtroom was closed, and (3) whether the closure was justified. Love, 183 Wn.2d at 605. appellant carries the burden on the first two steps; the proponent of the closure carries the third." Love, 183 Wn.2d at 605. Under the f......
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...of the challenges is filed with the court. State v. Love, 183 Wn.2d 598, 607, 354 P.3d 841 (2015) cert. denied, 136 S.Ct. 1524 (2016). As in Love, the trial court here conducted challenges on paper at a sidebar. The prosecutor and defense documented the jury selection in a document titled "......
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