State v. Marks
| Decision Date | 02 December 2014 |
| Docket Number | No. 44919–6–II.,44919–6–II. |
| Citation | 339 P.3d 196,184 Wash.App. 782 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Dustin Wade MARKS, Appellant. |
184 Wash.App. 782
339 P.3d 196
STATE of Washington, Respondent
v.
Dustin Wade MARKS, Appellant.
No. 44919–6–II.
Court of Appeals of Washington, Division 2.
Dec. 2, 2014.
Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.
Kathleen Proctor, Pierce County Prosecuting Atty Office, Tacoma, WA, for Respondent.
Opinion
MAXA, J.
¶ 1 Dustin Marks appeals his convictions for assault, unlawful possession of a firearm, vehicle prowling, and reckless endangerment. He argues that the trial court violated his right to a public trial by allowing the parties to exercise peremptory juror challenges in writing at a sidebar conference rather than orally. We hold that the dismissal of prospective jurors with peremptory challenges does not implicate the public trial right, and therefore that the trial court's procedure did not violate that right. In the unpublished portion of this opinion we address Marks' challenge of the trial court's imposition of discretionary legal financial obligations (LFOs) as part of his sentence. We affirm Marks' convictions and sentence.
FACTS
¶ 2 The State charged Marks with first degree assault with a firearm enhancement, first degree unlawful possession of a firearm, second degree vehicle prowling, and reckless endangerment. The charges arose from an incident in which he fired shots at a person who confronted him while he was prowling cars. The case proceeded to a jury trial.
¶ 3 Following voir dire of prospective jurors, the trial court convened with counsel at a sidebar in open court to take the parties' peremptory challenges of those prospective
jurors. Counsel noted their challenges in writing on a document titled “Peremptory Challenges,” which later was filed in open court. Clerk's Papers at 80. After the sidebar, the trial court went back on the record and announced the selected members of the jury. Marks did not object to this process, and the jury was duly empaneled. After a three-day trial, Marks was convicted on all counts.
¶ 4 Marks appeals.
ANALYSIS
¶ 5 Marks argues that the trial court violated his public trial right by allowing counsel to make peremptory challenges in writing rather than announcing the challenges on the
record. We hold that the exercise of peremptory challenges does not implicate the public trial right.
A. Legal Principles
¶ 6 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). In general, this right requires that certain proceedings 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. Whether a courtroom closure violated a defendant's right to a public trial is a question of law we review de novo. Wise, 176 Wash.2d at 9, 288 P.3d 1113.1
¶ 7 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. 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 make this determination, our Supreme Court in Sublett adopted an “experience and logic” test. 176 Wash.2d at 73, 292 P.3d 715.2
¶ 8 To address whether there was a court closure implicating the public trial right, we employ a two-step process. State v. Wilson, 174 Wash.App. 328, 335–37, 298 P.3d 148 (2013). First, we consider whether the particular proceeding at issue “falls within a category of proceedings that our Supreme Court has already acknowledged implicates a defendant's public trial right.”3 Wilson, 174 Wash.App. at 337, 298 P.3d 148 ; see also Wise, 176 Wash.2d at 11, 288 P.3d 1113. Second, if the proceeding at issue does not fall within a specific protected category, we determine whether the proceeding implicates the public trial right using the Sublett experience and logic test. Wilson, 174 Wash.App. at 335, 298 P.3d 148.
B. Public Trial Right and Peremptory Challenges
¶ 9 Marks argues that his public trial right was violated because the right attaches to voir dire, and the exercise of peremptory challenges is part of voir dire. We disagree that the exercise of peremptory challenges is a part of voir dire.
¶ 10 Our Supreme Court repeatedly has held that the public trial right applies to “jury selection.” E.g.,
Wise, 176 Wash.2d at 11, 288 P.3d 1113 ; State v. Brightman, 155 Wash.2d 506, 515, 122 P.3d 150 (2005). However, all of the Supreme Court's public trial right cases regarding jury selection have involved the actual questioning of jurors. E.g., Wise, 176 Wash.2d at 11–12, 288 P.3d 1113 ; State v. Paumier, 176 Wash.2d 29, 35, 288 P.3d 1126 (2012). No Supreme Court case has held that the public trial right applies to
the dismissal of jurors after the questioning is over.
¶ 11 In Wilson, we held that only the voir dire aspect of jury selection automatically implicates the public trial right. 174 Wash.App. at 338–40, 298 P.3d 148. We used the term “voir dire” as synonymous with the actual questioning of jurors, referring to the “ ‘voir dire’ of prospective jurors who form the venire.” Wilson, 174 Wash.App. at 338, 298 P.3d 148. The plurality opinion of our Supreme Court in State v. Slert quoted this statement with approval. 181 Wash.2d 598, 334 P.3d 1088, 1092 (2014).4 This usage is not consistent with including the exercise of peremptory juror challenges in the meaning of “voir dire.”
¶ 12 In addition, CrR 6.4 distinguishes between voir dire and the exercise of peremptory challenges. CrR 6.4(b) states: “A voir dire examination shall be conducted for the purpose of discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable the intelligent exercise of peremptory challenges.” Significantly, CrR 6.4(b) refers to the voir dire examination. The term “examination” necessarily refers only to the questioning of jurors, not to their dismissal. And CrR 6.4(b) states that voir dire is for the purpose of exercising peremptory challenges, which shows that the questioning of jurors and the exercise of
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State v. Marks
...184 Wash.App. 782339 P.3d 196STATE of Washington, Respondent,v.Dustin Wade MARKS, Appellant.No. 44919–6–II. Court of Appeals of Washington,Division 2.Dec. 2, Affirmed. [339 P.3d 197] Eric J. Nielsen, Nielsen Broman & Koch PLLC, Seattle, WA, for Appellant.Kathleen Proctor, Pierce County Pros......