State v. Momah

Decision Date08 October 2009
Docket NumberNo. 81096-6.,81096-6.
Citation167 Wn.2d 140,217 P.3d 321
PartiesSTATE of Washington, Respondent, v. Charles MOMAH, Petitioner.
CourtWashington Supreme Court

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Respondent.

Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Jeffrey L. Fisher, Davis Wright Tremaine LLP, Seattle, WA, for Petitioner.


¶ 1 The Washington Constitution provides in relevant part that an accused has the right to "a speedy public trial by an impartial jury." Const. art. I, § 22 (emphasis added). This case asks us to determine whether a defendant's constitutional right to a public trial under article I, section 22 was violated when the trial court closed a portion of voir dire to safeguard the defendant's right to a trial by an impartial jury. While our previous article I, section 22 cases have focused on the defendant's right to a public trial, this case implicates both the right to a public trial and the right to an impartial jury. Here, we find the trial court, in consultation with the defense and the prosecution, carefully considered the defendant's article I, section 22 rights, closed the courtroom to preserve his right to an impartial jury, and narrowly tailored the closure to secure that right. We hold the closure in this case was not a structural error and affirm Charles Momah's conviction.


¶ 2 In 2005, Charles Momah, a gynecologist, was charged in King County Superior Court with one count of rape in the third degree, two counts of indecent liberties, and one count of rape in the second degree. These charges arose out of allegations that Momah had sexually violated his patients as he performed physical examinations. The case was scheduled for a jury trial.

¶ 3 Momah's case was heavily publicized, having received extensive media coverage. Due to the significant amount of publicity, a large number of prospective jurors, over 100, were summoned. Tr. of Proceedings on Appeal (TPA) (Oct. 10, 2005) at 3. Based on the jurors' responses to portions of the juror questionnaire, the judge, prosecutor, and defense counsel discussed a list of jurors to be individually questioned. TPA (Oct. 11, 2005) at 5-8, 17-20. Momah's counsel agreed to the private questioning of potential jurors and also argued for the expansion of in-chambers questioning. Defense counsel proposed:

Your Honor, it is our position and our hope that the Court will take everybody individually, besides those ones we have identified that have prior knowledge. Our concern is this: They may have prior knowledge to the extent that that might disqualify themselves, or we have the real concern that they will contaminate the rest of the jury.

TPA (Oct. 11, 2005) at 4. The prosecutor agreed to the proposal to expand the individual questioning. TPA (Oct. 11, 2005) at 4.

¶ 4 A list of jurors to be individually questioned was then selected, and defense counsel agreed with this list. TPA (Oct. 11, 2005) at 5-6. The group of jurors questioned in-chambers included three general categories: (1) people who indicated prior knowledge about the case, (2) people who asked for private questioning, or (3) people who said they could not be fair. TPA (Oct. 11, 2005) at 27.

¶ 5 Before moving into chambers for private questioning, the judge acted to prevent jurors with knowledge of the case from potentially tainting the rest of venire by explaining the importance of an impartial jury to a fair trial. The trial judge stated:

It is important for the fairness of the process to both sides that no juror and no individual research any aspect of this case.... The case has to be decided on the evidence presented in court.... Secondly, it is important that you not talk amongst yourselves about the case.... [Y]ou just cannot talk about the case, your views, impressions, because at this point you have not heard any evidence. And you may in the end not even be seated on the jury.

TPA (Oct. 11, 2005) at 16-17. After the court moved into chambers, Momah's counsel actively participated in individual juror questioning regarding prior knowledge of Momah's case and the ability to be fair and impartial. TPA (Oct. 11, 2005) at 19-142. The defense counsel and the prosecution individually questioned about 20 jurors during the morning and then 4 more later that afternoon.1 TPA (Oct. 11, 2005) at 19-104, 107-42. As a result of the in-chambers voir dire, defense counsel exercised numerous challenges for cause. TPA (Oct. 11, 2005) at 38-48, 59-78, 89-104.

¶ 6 At the conclusion of trial, the jury convicted Momah of all charges. The trial court imposed a standard range sentence of 245 months. The Court of Appeals, Division One affirmed his convictions.


¶ 7 Whether the trial court violated Momah's constitutional right to a public trial?


¶ 8 To determine whether the trial court violated Momah's rights, we first review separately the article I, section 22 rights this case implicates: the right to a speedy public trial and the right to an impartial jury.

A. Public Trial Right

¶ 9 Whether the right to a public trial has been violated is a question of law subject to de novo review. State v. Bone-Club, 128 Wash.2d 254, 256, 906 P.2d 325 (1995).

¶ 10 Article I, section 10 provides that "[j]ustice in all cases shall be administered openly." The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant the right to a "public trial by an impartial jury." These provisions have a commonality: they protect the right to a public proceeding.

¶ 11 Our cases have recognized the importance of open proceedings and have emphasized that article I, section 10 secures the public's free and open access to judicial proceedings. We have also stressed that openness of courts is essential to the court's ability to maintain public confidence in the fairness and honesty of the judicial branch of government. But these principles do not exist in isolation of other constitutional rights and principles.

¶ 12 Article I, sections 10 and 22 serve complementary and interdependent functions in assuring fairness of our judicial system, particularly in the context of a criminal proceeding. Indeed, the central aim of any criminal proceeding must be to try the accused fairly. Thus, the requirement of a public trial is primarily for the benefit of the accused: that the public may see he is fairly dealt with and not unjustly condemned and that the presence of interested spectators may keep his triers keenly alive to a sense of the responsibility and to the importance of their functions. For these reasons, under article I, sections 10 and 22, a strong presumption exists that courts are to be open at all trial stages.

¶ 13 This presumption of openness extends to voir dire because "`[t]he process of juror selection ... is itself a matter of importance, not simply to the adversaries but to the criminal justice system.'" In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)). While the right to a public trial applies to all judicial proceedings, including jury selection, the right is not absolute. The presumption in favor of openness may be overcome by an overriding interest based on findings that closure is essential to preserve higher values and narrowly tailored to serve that interest. Thus, the court may close a courtroom under certain circumstances.

¶ 14 To protect the defendant's public trial right under article I, section 22, this court adopted the same standard for closing the court that applies to cases under article I, section 10. Bone-Club, 128 Wash.2d at 259, 906 P.2d 325. The decisions employing this closure standard for both sections 10 and 22 cases are similar to the analysis applied under the Sixth Amendment and the United States Supreme Court decision in Waller v. Georgia, 467 U.S. 39, 47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). To determine if closure is appropriate, we apply closure guidelines drawn from Waller's approach. Bone-Club, 128 Wash.2d at 259-61, 906 P.2d 325; Orange, 152 Wash.2d at 805-08, 100 P.3d 291. These five guidelines are as follows:

"1. The proponent of closure ... must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right.

"2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

"3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

"4. The court must weigh the competing interests of the proponent of closure and the public.

"5. The order must be no broader in its application or duration than necessary to serve its purpose."

Bone-Club, 128 Wash.2d at 258-59, 906 P.2d 325 (emphasis added) (alteration in original) (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wash.2d 205, 210-11, 848 P.2d 1258 (1993)). After applying these guidelines, the court should enter specific findings on the record to justify the closure.

¶ 15 If, on appeal, the court determines that the defendant's right to a fair public trial has been violated, it devises a remedy appropriate to that violation. If the error is structural in nature, it warrants automatic reversal of conviction and remand for a new trial. An error is structural when it "`necessarily render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.'" Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (alterations in original) (quoting Neder v. United States, 527 U.S. 1, 9, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Waller itself establishes that not all courtroom closure...

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