State v. Njonge

• Decision Date: 02 May 2011
• Docket Number: No. 63869–6–I.,63869–6–I.
• Citation: 161 Wash.App. 568,255 P.3d 753
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Joseph Njuguna NJONGE, Appellant.

161 Wash.App. 568

255 P.3d 753

STATE of Washington, Respondent,

v.Joseph Njuguna NJONGE, Appellant.

No. 63869–6–I.

Court of Appeals of Washington, Division 1.

May 2, 2011.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.Donna Lynn Wise, Attorney at Law, Seattle, WA, for Respondent.APPELWICK, J.

[161 Wash.App. 570] ¶ 1 Njonge appeals his conviction for second degree murder, contending that he was denied his right to a public trial when the trial court closed the courtroom during a portion of voir dire. We agree and reverse.

FACTS

¶ 2 The State charged Njonge with premeditated first degree murder. Before trial began, the parties discussed several pretrial motions. The State made a motion to exclude witnesses from voir dire. The following exchange occurred:

[DEPUTY PROSECUTOR]: ... Five of the family members of the victim are testifying at trial. They will be testifying as my first witnesses, and I have told them that they are not allowed to be in the courtroom until after. At that point, I expect them to sit in.

One of the family members had asked if they could sit in during voir dire. I have not had that request before; so I don't know the Court's feelings. It's not testimony. I don't think it's a concern, but I don't know, or even if there is space for that. So, I just wanted to raise that issue, also, to find out if that was even a possibility.

THE COURT: It's not testimony; that's true. However, I'm not going to allow it. For one thing, we are in very cramped quarters for jury selection, and I think about the only place for visitors to sit is going to be in a little anteroom out there, and I will tell you, with what we are going to do about trying to get enough just to do this in one meeting.

The other thing is, quite frankly, the jurors will be seeing that face throughout the entire process and maybe making some connections with that person when the person gets on the stand. I don't think it's fair; so, I am not going to allow it.

The defense did not object. The court later described how voir dire would be conducted:

So then we call the entire jury panel up. We have received permission to get more than the standard 50. I think we are getting 65. That necessitates a rearrangement of our courtroom, and my Bailiff put out a map for you guys as to how we are going to get this number in. The first two benches must remain clear at all times.

The defense did not object. Shortly after, the court addressed observers:

Just let me say for the people who are observing. You are certainly welcome to observe. Tomorrow when we have the jury selection, there will not be room for all of you. What we are going to do to allow people to observe is check with the fire marshall ... and make sure that we can keep those first swinging doors open. And if we can do that, then we will allow some people to observe if they wish to do so during jury selection by sitting in that kind of entry hall, if we can do that.

But, otherwise, as you can see, we are already putting chairs up here to accommodate the jury. We may be able to have chairs out there; we may not. We may be able to have the doors open without chairs. We are going to find that out. The chance of all [of] you being able to be here and observe are slim to none during the jury selection process.

The defense did not object.

¶ 3 The next morning, the parties did not discuss accommodation of the public in the courtroom. Jury selection began. Several jurors were excused from service based on hardship. After the noon break, the prosecutor stated:

Some family members who are not witnesses stuck around this morning, hoping there might be some seats later, and your bailiff informed them at lunch since some people were excused there were some. So I don't know if the Court has any problem with that. They are not witnesses. We tried to figure out a spot that would be in a row that basically has no jurors. So that second row over there only has Juror 30. Is that okay with the Court if they are in there?

The judge responded:

Actually, that seemed to be a better idea. We checked with the fire department. They wouldn't let us leave the doors open for visitors to come in. Let's move No. 30 over next to 34, and then we can have visitors sitting in the second row there.

There was no additional discussion of the issue on the record. The record does not show any observer being asked to leave the courtroom or any objection to the voir dire procedure, by either the parties or any observers. The court clerk's minutes reflect no order relating to a closure.

¶ 4 The jury found Njonge guilty of the lesser included offense of second degree murder. Njonge appeals.

DISCUSSION

¶ 5 Njonge contends the trial court violated his constitutional right to a public trial by closing the courtroom to the public during voir dire. Whether a defendant's constitutional right to a public trial has been violated is a question of law that this court reviews de novo. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005).

¶ 6 A defendant's right to a public trial is guaranteed by the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution. State v. Strode, 167 Wash.2d 222, 225, 217 P.3d 310 (2009). These provisions ensure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. Brightman, 155 Wash.2d at 514, 122 P.3d 150. While the right to a public trial is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances. Strode, 167 Wash.2d at 226, 217 P.3d 310. Also, the public has a right to open administration of justice under article I, section 10 of the Washington State Constitution and the First and Fourteenth Amendments to the United States Constitution. Id. at 225–26, 217 P.3d 310; Presley v. Georgia, ––– U.S. ––––, 130 S.Ct. 721, 723, 175 L.Ed.2d 675 (2010).

¶ 7 To protect the defendant's right to a public trial, our Supreme Court held in State v. Bone–Club that a trial court must analyze and weigh five factors before closing a portion of a criminal trial. ¹ 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995). Also, the court must enter specific findings justifying its closure order. State v. Easterling, 157 Wash.2d 167, 175, 137 P.3d 825 (2006) (citing Bone–Club, 128 Wash.2d at 258–59, 906 P.2d 325). These requirements extend to closure of jury selection. In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004) (citing Press–Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)); see also Presley, 130 S.Ct. at 724.² Generally, if the record indicates a violation of a defendant's public trial right, our courts presume prejudice, reverse the conviction, and remand for a new trial. Easterling, 157 Wash.2d at 174, 181, 137 P.3d 825. The trial court did not analyze the Bone–Club factors on the record here.

¶ 8 The State first contends that the record does not reflect an actual closure, so Njonge may not raise this issue for the first time on appeal because the error is not “manifest” under RAP 2.5.³ The State also contends that because the court did not expressly order closure, the Bone–Club requirements were not triggered. The State contends, “In every courtroom closure case decided in Washington, the appellate court has reversed only upon a showing that the trial court actually issued an order closing the courtroom, or where it was clear that people were in fact excluded from the proceedings.”

¶ 9 It is well settled that a criminal defendant may raise the article I, section 22 right to a public trial for the first time on appeal. Strode, 167 Wash.2d at 231, 217 P.3d 310; Easterling, 157 Wash.2d at 173 n. 2, 137 P.3d 825; Orange, 152 Wash.2d at 814, 100 P.3d 291; State v. Duckett, 141 Wash.App. 797, 805–06, 173 P.3d 948 (2007).⁴ Several of the cases previously so holding involved express closure orders. See Easterling, 157 Wash.2d at 172, 137 P.3d 825 (trial court ordered courtroom closed during discussion of Easterling's motion to dismiss); Orange, 152 Wash.2d at 802, 100 P.3d 291 (trial court ordered that no spectators would be permitted during the selection of the jury due to space limitations and security concerns). But, several Washington courts have held that a courtroom closure can occur even in the absence of an explicit court order. See Strode, 167 Wash.2d at 227, 217 P.3d 310 (“The trial judge's decision to allow this questioning of prospective jurors in chambers was a courtroom closure and a denial of the right to a public trial.”); State v. Heath, 150 Wash.App. 121, 125, 206 P.3d 712 (2009) (portions of pretrial hearings and voir dire in chambers occurred without express order and without objection); State v. Erickson, 146 Wash.App. 200, 203, 189 P.3d 245 (2008) (trial court performed individual questioning of jurors outside the presence of the public without express order and without objection); Duckett, 141 Wash.App. at 801, 173 P.3d 948 (the trial court notified both counsel that it generally performed individual questioning of jurors in the jury room and would use that procedure, without objection); State v. Frawley, 140 Wash.App. 713, 718, 720, 167 P.3d 593 (2007) (individual juror questioning in closed courtroom occurred without express order and without objection). But see State v. Price, 154 Wash.App. 480, 488–89, 228 P.3d 1276 (2009) (holding that no courtroom closure occurred when prosecutor, not court, asked sole observer to leave the courtroom during individual questioning of juror), review denied, 169 Wash.2d 1021, 238 P.3d 504 (2010). The case law does not prevent a challenge absent an express closure order.

¶ 10 The State next argues that Njonge was required to object to any limitation on the number of spectators in order to obtain review under the rule in State v. Collins, 50 Wash.2d 740, 314 P.2d...