State v. McCarthy

• Decision Date: 19 November 2013
• Docket Number: No. 42803–2–II.,42803–2–II.
• Citation: 312 P.3d 1027
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Dennis Lawrence McCARTHY, Appellant.

312 P.3d 1027

STATE of Washington, Respondent,

v.Dennis Lawrence McCARTHY, Appellant.

No. 42803–2–II.

Court of Appeals of Washington,

Division 2.

Nov. 19, 2013.

Jodi R. Backlund, Backlund & Mistry, Olympia, WA, for Appellant.

John Christopher Hillman, Atty General's Office, Criminal Justice, Seattle, WA, for Respondent.

MAXA, J.

¶ 1 Dennis McCarthy appeals his convictions and sentence for second degree assault and first degree assault against his girl friend. McCarthy challenges the trial court's decision to provide the jury with a tape measure and masking tape during deliberations without consulting him or counsel, arguing that this conduct violated his right to a public trial, right to be present and right to counsel. We hold that (1) McCarthy's public trial right was not implicated because the trial court's response to the jury request was not a proceeding historically open to the public, and (2) McCarthy's right to be present and right to counsel were not violated because the provision of the materials was a ministerial matter and the tape measure and masking tape were not evidence.

¶ 2 McCarthy also argues that the trial court improperly decided whether the two assault convictions were the same criminal conduct rather than submitting the issue to the jury. We hold that the trial court and not the jury properly decided whether McCarthy's two convictions constituted the same criminal conduct. We address additional issues in the unpublished portion of this opinion. We affirm McCarthy's convictions and sentence.

FACTS

¶ 3 McCarthy's assault charges were tried to a jury. While the jury was deliberating, it asked the trial court for a tape measure and masking tape. The trial court had the bailiff deliver those items to the jury without first consulting counsel. Before the jury returned with its verdict, the trial court informed the parties on the record that it had provided those items to the jury and asked if there were any objections. McCarthy expressed concern that the trial court did not consult the parties before providing the supplies to the jury, but did not state a formal objection or move for a mistrial.

¶ 4 The jury convicted McCarthy on both assault charges. At sentencing, the trial court concluded the first and second degree assault convictions were not the same criminal conduct, and counted each conviction as one point for offender score purposes. McCarthy appeals.

ANALYSIS

A. Trial Court's Response to Jury Request for Materials

¶ 5 McCarthy argues that the trial court's providing the jury with a tape measure and masking tape during deliberations outside his, his counsel's and the public's presence violated his rights to a public trial, to be present at trial, and assistance of counsel. We disagree because responding to jury requests for materials does not implicate the right to a public trial and the trial court did not violate McCarthy's right to be present or right to counsel because of the ministerial nature of the response to the jury's request.

1. Public Trial Right

¶ 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 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.¹ We review public trial claims de novo. Wise, 176 Wash.2d at 9, 288 P.3d 1113.

¶ 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. In Sublett, our Supreme Court adopted a two-part “experience and logic” test to address this issue: (1) whether the place and process historically have been open to the press and general public (experience prong) and (2) whether public access plays a significant positive role in the functioning of the particular process in question. 176 Wash.2d at 72–73, 292 P.3d 715. Only if both questions are answered in the affirmative is the public trial right implicated. ²Sublett, 176 Wash.2d at 73, 292 P.3d 715.

¶ 8 We hold that the experience prong shows that the public trial right does not attach to the trial court's response to a jury's request for a tape measure and masking tape. McCarthy cites no authority indicating that a trial court's response to a jury request for these types of additional materials historically has been open to the public. Conversely, the only case addressing a somewhat similar jury request held that the trial court's response did not need to be in open court. In State v. Koss, 158 Wash.App. 8, 17–18, 241 P.3d 415 (2010), review granted,176 Wash.2d 1030, 299 P.3d 19 (2013), Division Three of this court held that the trial court's in-chambers response to a deliberating jury's request for an audio player to listen to evidence did not violate the defendant's public trial right.

¶ 9 Further, our Supreme Court in Sublett held that even responding to “substantive” jury questions does not implicate a public trial right. In Sublett, the trial court responded in chambers to a jury question regarding one of the instructions, with only counsel present. 176 Wash.2d at 67, 292 P.3d 715. The question and response were then put in the record. Sublett, 176 Wash.2d at 67, 292 P.3d 715. The court determined that a trial court's discussion with the parties about jury questions and any response was not historically a proceeding to which the public trial right attached. Sublett, 176 Wash.2d at 77, 292 P.3d 715. In reaching this conclusion, the court noted that the only authority it could find governing jury questions was CrR 6.15(f)(1), which does not require that the trial court discuss questions and appropriate responses in open court.³Sublett, 176 Wash.2d at 77, 292 P.3d 715.

¶ 10 Here, a request for a tape measure and masking tape does not even rise to the level of a question about an instruction. If there is no public trial right for substantive jury questions about instructions or evidence, there should be no expectation that such a right exists for this nonsubstantive request. We rely on Sublett and hold that a trial court's response to a jury request for a tape measure and masking tape is not a proceeding to which the public trial right attaches. 176 Wash.2d at 77, 292 P.3d 715. Accordingly, McCarthy has failed to satisfy the experience prong of the Sublett test.⁴

2. Defendant's Right To Be Present

¶ 11 McCarthy argues that the trial court violated his constitutional right to be present at trial when it provided the jury with a tape measure and masking tape in his absence. We disagree because responding to a jury request for non-evidentiary materials is not a critical stage of trial.

a. Parameters of Right

¶ 12 “A criminal defendant has a fundamental right to be present at all critical stages of a trial.” State v. Irby, 170 Wash.2d 874, 880, 246 P.3d 796 (2011). This right derives from the Sixth and Fourteenth Amendments to the federal constitution. Irby, 170 Wash.2d at 880–81, 246 P.3d 796. Although the right to be present originated in the confrontation clause of the Sixth Amendment, the Fourteenth Amendment due process clause applies where defendants are not actually confronting witnesses or evidence against them.⁵State v. Jones, 175 Wash.App. 87, 105, 303 P.3d 1084 (2013), petition for review filed, No. 89321–7 (Wash. Sept. 26, 2013).

¶ 13 In general, a stage of trial is “critical” if it presents a possibility of prejudice to the defendant. State v. Hawkins, 164 Wash.App. 705, 715, 265 P.3d 185 (2011), review denied,173 Wash.2d 1025, 272 P.3d 851 (2012). More specifically, our Supreme Court in Irby quoted extensively from Snyder v. Massachusetts, 291 U.S. 97, 105–06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds sub nom., Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), in adopting guidelines for analyzing the federal due process right to be present claim. 170 Wash.2d at 881, 246 P.3d 796. Initially, “the due process right to be present is not absolute.” Irby, 170 Wash.2d at 881, 246 P.3d 796. “ ‘[T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence.’ ” Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 107–08, 54 S.Ct. 330). Under this standard, a defendant has the right to be present at a proceeding only when there is a “ ‘reasonably substantial’ ” relationship between his/her presence and the “ ‘opportunity to defend’ ” against a charge. Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 105–106, 54 S.Ct. 330). Conversely, a defendant does not have the right to be present if his/her presence “ ‘would be useless, or the benefit but a shadow.’ ” Irby, 170 Wash.2d at 881, 246 P.3d 796 (quoting Snyder, 291 U.S. at 106–07, 54 S.Ct. 330).

b. Particular Proceedings

¶ 14 Several Washington cases have addressed what constitutes a critical stage of a trial that would implicate the defendant's right to be present. “The core of the constitutional right to be present is the right to be present when evidence is being presented.” In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994). Accordingly, it appears that any proceeding where the trial court is dealing with evidence is a critical stage. This includes a proceeding involving “a resolution of disputed facts.” Lord, 123 Wash.2d at 306, 868 P.2d 835. In addition, the law is clear that a defendant has a right to be present during all aspects of the...