State v. Njonge, 86072–6.

• Decision Date: 25 September 2014
• Docket Number: No. 86072–6.,86072–6.
• Citation: 334 P.3d 1068,181 Wash.2d 546
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Joseph Njuguna NJONGE, Respondent.

181 Wash.2d 546

334 P.3d 1068

STATE of Washington, Petitioner

v.Joseph Njuguna NJONGE, Respondent.

No. 86072–6.

Supreme Court of Washington, En Banc.

Sept. 25, 2014.

Donna Lynn Wise, Attorney at Law, Prosecuting Atty King County, King Co Pros/App Unit Supervisor, Seattle, WA, for Petitioner.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Respondent.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Washington Association of Criminal Defense Attorneys.

Sarah a Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Douglas B. Klunder, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of ACLU.

Colin Fieman, Federal Public Defender, West Dist of WA., Tacoma, WA, Katherine George, Harrison–Benis LLP, Seattle, WA, for Amicus Curiae on behalf of Allied Daily Newspapers of Washington.

Colin Fieman, Federal Public Defender, West Dist of Wa, Tacoma, WA, Katherine George, Harrison–Benis LLP, Seattle, WA for Amicus Curiae on behalf of Washington Newspaper Publishers Association.

Colin Fieman, Federal Public Defender, West Dist of Wa, Tacoma, WA, Katherine George, Harrison–Benis LLP, Seattle, WA, Amicus Curiae on behalf of Washington COAlition for Open Government.

Opinion

STEPHENS, J.

¶ 1 We granted review of the public trial issues in this case, most notably whether the portion of jury selection in which the court excuses jurors for hardship is a proceeding to which the public trial right attaches. The Court of Appeals concluded that it is, and that Joseph Njonge's public trial right was violated when the trial court purportedly excluded observers during hardship excusals. Accordingly, the Court of Appeals remanded for a new trial without reaching Njonge's other assignments of error, including claims that the trial court improperly excluded a family member of the victim (who was also a witness) and members of the press from portions of voir dire. Based on our review of the record, we conclude the trial court did not close proceedings in violation of Njonge's public trial right. Accordingly, we reverse the Court of Appeals and remand to that court to address Njonge's additional assignments of error on which we did not grant review.

FACTS AND PROCEDURAL HISTORY

¶ 2 Joseph Njonge worked as a nursing assistant at an assisted living facility. In 2008, he was charged with first degree murder in connection with the death of Jane Britt, the spouse of a resident at the facility.

¶ 3 Pretrial proceedings began on June 2, 2009. During discussion of a pretrial motion to exclude witnesses from trial, the prosecutor asked the trial court if one of the victim's family members, who would also later be called as a witness, could stay for voir dire. The court disallowed it, reasoning:

[W]e 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....

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.

Verbatim Report of Proceedings (VRP) (June 2, 2009) at 46.

¶ 4 The court later explained to counsel and Njonge how it intended to conduct jury selection, noting:

We have received permission to get more than the standard 50 [jurors]. 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.

So, we will have jurors seated in front of the jury box. The court reporter is going to move over here; we have a few jurors here. It's kind of a little awkward, but it's more of a jury selection in the round process that way.

Id. at 90–91. As the day's session concluded, the court addressed observers in the courtroom:

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 you being able to be here and observe are slim to none during the jury selection process.

Id. at 105–06. The court recessed for the day a few minutes later.

¶ 5 Jury selection began the next day, June 3, 2009. The court called the panel into the courtroom. The record contains no mention about the presence or absence of spectators in the courtroom. Once the venire was settled, the court welcomed the members and explained the importance of jury duty and what role juries play in our basic system of justice. VRP (June 3, 2009) at 9–10. The panel members had previously completed a case-specific questionnaire that included questions about whether they had heard of the case and could be fair. VRP (June 2, 2009) at 85–86; VRP (June 3, 2009) at 2–3, 7, 18. The prospective jurors were sworn in. VRP (June 3, 2009) at 13. The court then conducted its hardship excusal process, which took up most of the morning and resulted in the excusal of several jurors. Id. at 21–53. When the parties reconvened after the lunch recess for the afternoon session, the following exchange took place:

[Prosecutor]: 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 COURT: 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.

Id. at 54–55. Jury selection continued for the remainder of the day, with a few additional hardship discussions followed by questioning from counsel on bias and the like. See id. at 54–146. Before resuming voir dire the following day, the court told the jury that the television camera crew would not be permitted to stay in the courtroom during voir dire:

[The Court]: The other thing is as some of you who were here know that one of the TV stations wants to film the case.

....

And I have no objection to them filming, but they did not ask my permission before they came into my courtroom with a camera, which is bad form. I have no objection to them filming, but they cannot during jury selection.

So, I told them they had to leave until after jury selection. And it looks, I would let them know when we are complete with jury selection, and they want to film opening statement.

VRP (June 4, 2009) at 4.

¶ 6 There were no additional discussions on the record concerning public or press access. As the Court of Appeals observed, “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.”State v. Njonge, 161 Wash.App. 568, 572, 255 P.3d 753 (2011).

¶ 7 Trial concluded on June 17, 2009, with a jury convicting Njonge of the lesser-included offense of second degree murder. Clerk's Papers (CP) at 65. Njonge appealed his conviction, and the Court of Appeals ordered a new trial, reasoning that the trial court improperly closed the courtroom during the hardship excusals. Njonge, 161 Wash.App. at 570, 255 P.3d 753. Because it resolved the case in this way, the court did not consider Njonge's other public trial claims concerning the exclusion of the family member witness and of the camera crew. Nor did the appellate court address Njonge's assignments of error unrelated to his public trial claims. Id. at 580, 255 P.3d 753. The State filed a petition for review, which we granted on the public trial issue only.¹ State v. Njonge, 176 Wash.2d 1031, 299 P.3d 19 (2013).

ANALYSIS

¶ 8 Since 2009, when this court announced its decisions in State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009) and State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), numerous public trial cases have explored the contours of our jurisprudence. To date, our cases have recognized several basic principles. A defendant's right to a public trial is guaranteed by article I, section 22 of our state constitution and the Sixth Amendment to the federal constitution. State v. Bone–Club, 128 Wash.2d 254, 256, 906 P.2d 325 (1995) ; In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004). The right to a public trial is not absolute, as a courtroom may be closed to the public if the trial court justifies the closure by conducting an on-the-record balancing of several factors, commonly referred to as the Bone–Club factors. Bone–Club, 128 Wash.2d at 258–59, 906 P.2d 325 ; State v. Brightman, 155 Wash.2d 506, 515, 122 P.3d 150 (2005) ; State v. Easterling, 157 Wash.2d 167, 175, 137 P.3d 825 (2006).² The right to public trial extends beyond the evidence-taking portion of trial proceedings and includes pretrial phases such as suppression hearings, hearings on motions to sever, and voir dire. Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (suppression hearing); Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (same); Easterling, 157 Wash.2d at 177, 137 P.3d 825...