State v. Magnano

• Citation: 326 P.3d 845,181 Wash.App. 689
• Decision Date: 09 June 2014
• Docket Number: No. 70017–1–I.,70017–1–I.
• Court: Court of Appeals of Washington
• Parties: STATE of Washington, Respondent, v. Matthew McHugh MAGNANO, Appellant.

181 Wash.App. 689

326 P.3d 845

STATE of Washington, Respondent,

v.Matthew McHugh MAGNANO, Appellant.

No. 70017–1–I.

Court of Appeals of Washington, Division 1.

June 9, 2014.

Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Jennifer Paige Joseph, King County Prosecutor's Office Seattle, WA, for Respondent.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, Washington Appellate Project, Seattle, WA, for Appellant.

LAU, J.

¶ 1 Mathew Magnano appeals his second degree robbery conviction, arguing that the trial court violated his right to a public trial when it replayed an audio recording of a 911 call for the jury in a closed courtroom during deliberations. Because the jury's rehearing of properly admitted recorded evidence in a closed courtroom during deliberations implicates no public trial right, we affirm Magnano's second degree robbery conviction.

FACTS

¶ 2 The jury convicted Matthew Magnano of second degree robbery. During trial, the court admitted an audio recording of the robbery victim's 911 call. Defense counsel did not object to its admission. The recording was played once for the jury during the trial.

¶ 3 After closing arguments, the court and counsel agreed on the exhibits that would go back to the jury room. The court and counsel discussed how to handle the 911 recording if the jury asked to hear it again. The prosecutor proposed either to let the jury replay the recording with court-provided audio equipment or let the bailiff play back the recording. Defense counsel said he “ [had] no objection. Obviously if they request it, I think they should be able to return to the courtroom and review it.” Report of Proceedings (RP) (Nov. 27, 2012) at 170. He also said that he and his client waived their presence during the recording playback and “would feel comfortable with having the bailiff display whatever exhibits that are requested.” RP (Nov. 27, 2012) at 170–71, 172.

¶ 4 The jury asked to replay the 911 recording during their deliberations. The trial court consulted both counsel about the request. Magnano appeared by telephone. Defense counsel indicated:

I did speak to Mr. Magnano. We did discuss that. He is—he has indicated to me that he has no objection, and I have no objection to the jury panel listening to the 911 tape. It was, I believe, played for [the jury] in court. But it can be played for them, and we discussed the procedure by [which] that will be done.

RP(Nov. 28, 2012) at 6.

¶ 5 The prosecutor expressed concern about the public entering the courtroom during the replay. He asked the court to instruct the jury not to discuss the case in the courtroom but to deliberate in the jury room. The court responded,

Well, I'm not sure we need to leave the [courtroom] door open. It would just be a continuation of the deliberations.

...

... I'm not going to be here. Lawyers or the clients are not going to be here. Just the bailiff will start it, and she will leave the room, and she will tell ... the jurors, coming back in when it's done.

RP (Nov. 28, 2012) at 7. The court also explained that the bailiff would stand outside the courtroom door to prevent public entry. The court added, “So to be clear, it's not a violation of open court rule, essentially it's not open court, it's just that they ... happen to be conducting deliberations ... in a different room.” RP (Nov. 28, 2012) at 7.

¶ 6 The jury convicted Magnano of second degree robbery but acquitted him of felony hit and run. The court sentenced him within the standard range. Magnano appeals.

ANALYSIS

¶ 7 Magnano argues that the trial court violated his right to a public trial by replaying the 911 recording for the jury in a closed courtroom during their deliberations.¹

¶ 8 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise, 176 Wash.2d 1, 9, 288 P.3d 1113 (2012). Further, article I, section 10 of the Washington Constitution provides, “Justice in all cases shall be administered openly, and without unnecessary delay.” This provision guarantees the public and the press a right to open and accessible judicial proceedings. State v. Easterling, 157 Wash.2d 167, 174, 137 P.3d 825 (2006). While neither right is absolute, both rights are strictly guarded to ensure that a courtroom closure occurs in only the most unusual circumstances.²Easterling, 157 Wash.2d at 174, 137 P.3d 825. To protect both rights, certain proceedings must be held in open court unless application of the five-factor test set forth in State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995), supports closure of the courtroom.³Easterling, 157 Wash.2d at 174–75, 137 P.3d 825. We review public trial claims de novo. Wise, 176 Wash.2d at 9, 288 P.3d 1113.

¶ 9 “The threshold determination when addressing an alleged violation of the public trial right is whether the proceeding at issue even implicates the right.” State v. McCarthy, 178 Wash.App. 90, 95, 312 P.3d 1027 (2013) (citing State v. Sublett, 176 Wash.2d 58, 71, 292 P.3d 715 (2012)). “[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure if closed to the public.” Sublett, 176 Wash.2d at 71, 292 P.3d 715. To determine whether a proceeding implicates the right to a public trial, the Supreme Court in Sublett adopted a two-part “experience and logic” test. Sublett, 176 Wash.2d at 72, 292 P.3d 715. This test applies to the defendant's right to a public trial and the public's right to open proceedings. State v. Burdette, 178 Wash.App. 183, 191–92, 313 P.3d 1235 (2013) (“[T]he plain force of Sublett is that we use the experience and logic test to determine whether an event triggers the protections of either set of constitutional rights securing open trials.”). The experience prong asks “ ‘whether the place and process have historically been open to the press and general public.’ ” Sublett, 176 Wash.2d at 73, 292 P.3d 715 (quoting Press–Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)). The logic prong asks “ ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ” Sublett, 176 Wash.2d at 73, 292 P.3d 715 (quoting Press–Enter. Co., 478 U.S. at 8, 106 S.Ct. 2735). Only if both questions are answered in the affirmative is the public trial right implicated. Sublett, 176 Wash.2d at 73, 292 P.3d 715. The defendant has the burden to satisfy the experience and logic test. Sublett, 176 Wash.2d at 75, 78, 292 P.3d 715; see also In re Pers. Restraint of Yates, 177 Wash.2d 1, 29, 296 P.3d 872 (2013) (“It is [the defendant's] burden to satisfy the experience and logic test, which he fails to do.”).

¶ 10 In Sublett, the jury submitted a question about the court's accomplice liability instruction. The court and counsel met in chambers to discuss the question. No one objected to this procedure. The court proposed to tell the jury to reread the instructions. Both counsel agreed. That answer was given and placed in the record. Sublett, 176 Wash.2d at 67, 292 P.3d 715.

¶ 11 On appeal, our Supreme Court addressed whether a trial court's response to jury questions regarding the jury instructions implicated the right to a public trial. The lead opinion ⁴ concluded that such proceedingsdo not satisfy the experience prong of the experience and logic test. Sublett, 176 Wash.2d at 75–77, 292 P.3d 715. The court noted that under CrR 6.15(f)(1), a trial court's responses to jury inquiries must be made part of the record, but the rule does not specify how this must occur, i.e., does not specify that responses must be put on the record in open court. Sublett, 176 Wash.2d at 76–77, 292 P.3d 715. The court found that CrR 6.15(f)(1) is the only authority governing the response to a jury inquiry, showing that there is no historical requirement that such proceedings be conducted in open court. Sublett, 176 Wash.2d at 77, 292 P.3d 715. And, under the logic prong, the lead opinion concluded that “[n]one of the values served by the public trial right is violated under the facts of this case.” Sublett, 176 Wash.2d at 77, 292 P.3d 715. Accordingly, “no closure occurred because this proceeding did not implicate the public trial right, and therefore there was no violation of either petitioners' public trial right.” Sublett, 176 Wash.2d at 77, 292 P.3d 715.

¶ 12 Here, it is undisputed that the trial court closed the courtroom when it played the 911 recording for the jury to protect the secrecy of the jury's deliberations without a Bone–Club analysis.⁵ No published Washington opinion has addressed whether the right to a public trial is implicated by the jury's rehearing of a properly admitted 911 recording during their deliberations. We hold that these circumstances did not implicate Magnano's right to a public trial.

¶ 13 Not only does CrR 6.15(f)(1) give a trial court discretion as to how it responds to jury inquiries, it also gives the trial court discretion in how the court permits the jury to rehear evidence:

Written questions from the jury, the court's response and any objections thereto shall be made a part of the record. The court shall respond to all questions from a deliberating jury in open court or in writing. In its discretion, the court may grant a jury's request to rehear or replay evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that is not unfairly prejudicial and in a way that minimizes the possibility that jurors will give undue weight to such evidence.

CrR 6.15(f)(1) (emphasis added). There is no authority aside from CrR 6.15(f)(1) that governs the manner in which a trial court permits a jury to rehear evidence. As in Sublett, we conclude that the jury's rehearing of a 911 recording during their deliberations is not a process that has “ ‘historically been...