State v. Paumier
| Decision Date | 21 November 2012 |
| Docket Number | No. 84585–9.,84585–9. |
| Citation | 176 Wash.2d 29,288 P.3d 1126 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Rene P. PAUMIER, Respondent. |
OPINION TEXT STARTS HERE
Timothy J. Higgs, Mason Co. Pros. Atty. Office, Shelton, WA, for Petitioner.
Eric J. Nielsen, Andrew Peter Zinner, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.
James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, for Amicus Curiae on behalf of Washington Association of Prosec.
Jeffrey Erwin Ellis, Portland, OR, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Amicus Curiae on behalf of Washington Association of Crimin.
[176 Wash.2d 32]¶ 1 Rene P. Paumier appeals his conviction for residential burglary and third degree theft. This case requires us to determine if Paumier's right to a public trial was violated when the trial court individually questioned potential jurors in chambers. We have previously held that a court may close a courtroom to the public only after considering the factors established in State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995). Moreover, we have held in State v. Wise, 176Wash.2d 1, ––––, 288 P.3d 1113 (2012), that individual questioning of potential jurors in chambers without first considering the Bone–Club factors is a closure creating a presumption of prejudice. Therefore, Paumier is entitled to a new trial because the trial court closed the courtroom without first considering the Bone–Club factors. Because we affirm the Court of Appeals on this issue, there is no reason to address whether the trial court also violated Paumier's right to self-representation. We affirm the Court of Appeals reversal of the trial court on the public trial right grounds alone.
¶ 2 Paumier was convicted of residential burglary and third degree theft in Mason County Superior Court. He was sentenced to 25 months for the burglary and 365 days for the theft. Paumier is now appealing the jury selection process and his right to represent himself.
¶ 3 During voir dire, the trial judge individually questioned four potential jurors in her chambers. The trial judge, sua sponte, offered to privately question any juror on sensitive matters if a juror so chose. Specifically, the judge said:
[I]f there is anything that is of a sensitive nature and you would prefer not to discuss it in this group setting, please let us know. And I make a list and we take those jurors individually into chambers to ask those questions because we don't intend to embarrass you in any way.
Suppl. Report of Proceedings (RP) at 9–10. The private matters discussed included personal health issues, criminal history, and familiarity with the defendant or the crime. The prosecution, defense counsel, and Paumier were all present for the questioning and offered no objections. Further, the in-chambers questioning was recorded and transcribed by the court. But the trial judge never conducted a Bone–Club analysis 1 prior to privately questioning the potential jurors. Such an analysis would have, among other things, required the judge to consider alternatives to closure and to mention Paumier's right to a public trial. Finally, of the four privately questioned, two jurors were excused.
¶ 4 After two days of jury selection, Paumier requested to represent himself. The trial judge denied Paumier's request stating that “the request comes too late” as the jury had already been selected (although not sworn in). 1 Partial RP at 9. The jury ultimately convicted Paumier of both residential burglary and second degree theft.
¶ 5 Paumier then appealed his convictions, claiming that the trial court violated both his right to a public trial and his right to self-representation. The Court of Appeals reversed the trial court on both grounds. State v. Paumier, 155 Wash.App. 673, 685, 687, 230 P.3d 212 (2010). The State petitioned for review by this court on both issues, which we granted. State v. Paumier, 169 Wash.2d 1017, 236 P.3d 206 (2010).
¶ 6 Did the trial court err in failing to conduct a Bone–Club analysis prior to individually questioning jurors in chambers?
¶ 7 Paumier claims the private questioning of four potential jurors violated his right to a public trial. Whether a defendant's constitutional right to a public trial has been violated is reviewed de novo on direct appeal. Wise, 176 Wash.2d at ––––, 288 P.3d 1113 (quoting State v. Easterling, 157 Wash.2d 167, 173–74, 137 P.3d 825 (2006)).
¶ 8 It is well established that a criminal defendant has a right to a public trial as guaranteed by our state and federal constitutions. U.S. Const. amend. VI; Wash. Const. art. I, § 22 (); State v. Momah, 167 Wash.2d 140, 147, 217 P.3d 321 (2009), cert. denied,––– U.S. ––––, 131 S.Ct. 160, 178 L.Ed.2d 40 (2010). “This presumption of openness extends to voir dire.” Id. at 148, 217 P.3d 321. However, as “[t]he right to public trial is not absolute,” the presumption may be overcome. Wise, 176 Wash.2d at ––––, 288 P.3d 1113;see also Bone–Club, 128 Wash.2d at 259, 906 P.2d 325. A trial court may close the courtroom, so long as it considers the five criteria outlined in Bone–Club, 128 Wash.2d at 258–59, 906 P.2d 325. As part of the Bone–Club analysis, the trial judge must consider alternatives to closure to ensure the least restrictive means of closure is adopted. Wise, 176 Wash.2d at ––––, 288 P.3d 1113;Bone–Club, 128 Wash.2d at 259–60, 906 P.2d 325. Even the United States Supreme Court requires a trial court to consider alternatives before closing the courtroom. Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 725, 175 L.Ed.2d 675 (2010).
¶ 9 We addressed the same issue—whether private questioning of potential jurors in chambers without conducting a Bone–Club analysis violates a defendant's public trial right—in Wise. Because the issue is identical and the facts are similar, we rely on and incorporate the reasoning from that case here. The following rules summarize part of our holding in Wise. To begin, individually questioning potential jurors is a courtroom closure requiring a Bone–Club analysis. Wise, 176 Wash.2d at ––––, 288 P.3d 1113. Failure to conduct the Bone–Club analysis is structural error warranting a new trial because voir dire is an inseparable part of trial. Id. at ––––, –––– – ––––, 288 P.3d 1113.
¶ 10 Applying those rules here, the trial court erroneously closed the courtroom when it privately questioned potential jurors during voir dire without first conducting a Bone–Club analysis. Such an error is structural and warrants a new trial just as it did in Wise. “[W]e cannot reasonably order a ‘redo’ of voir dire to remedy the public trial right violation that occurred here.” Id. at –––– – ––––, 288 P.3d 1113. Accordingly, we are left with no other choice but to order a new trial.
¶ 11 Today's holding may seem in conflict with our previous decision in Momah, but it is not. As we made clear in Wise, Momah relied on unique facts to conclude that no public trial right violation occurred when the jurors were individually questioned. Id. at ––––, 288 P.3d 1113. Specifically, the defendant in Momah “affirmatively assented to the closure of voir dire and actively participated in designing the trial closure and [ ] though it was not explicit, the trial court ... effectively considered the Bone–Club factors.” Wise, 176 Wash.2d at ––––, 288 P.3d 1113. In stark contrast, these facts do not exist here. Paumier's mere presence in the courtroom does not qualify as active participation. Further, the trial court gave no indication it considered any of the Bone–Club factors. Thus, our holding is not in conflict with Momah.
¶ 12 The next concerns we must address are whether Paumier had to contemporaneously object to the individual questioning to preserve the error and if he must show prejudice on appeal. Ordinarily, a party must contemporaneously object to preserve an error. RAP 2.5. However, RAP 2.5(a) allows an unobjected to error to be raised on appeal if it is a “manifest error affecting a constitutional right.” This court has previously interpreted “manifest error” as requiring a defendant to show actual prejudice. State v. O'Hara, 167 Wash.2d 91, 99, 217 P.3d 756 (2009). Here, that would mean Paumier must show actual prejudice because he failed to object to the closure during trial.2 But RAP 2.5(a) does not apply in its typical manner here because the improper courtroom closure was structural error. As noted in Wise, “[n]othing in our rules or our precedent precludes different treatment of structural error as a special category of ‘manifest error affecting a constitutional right.’ ” Wise, 176 Wash.2d at –––– n. 11, 288 P.3d 1113 (quoting RAP 2.5(a)(3)).
¶ 13 In fact, there is good reason to treat structural errors, like violation of a defendant's public trial right, differently. 3 A STRUCTURAL ERROR “affect[s] the framework within which the trial proceeds” and renders a criminal trial an improper “ ‘vehicle for determin[ing] guilt or innocence.’ ” Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Rose v. Clark, 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)). The right to a public trial is a unique right that is important to both the defendant and the public. Wise, 176 Wash.2d at ––––, 288 P.3d 1113;Momah, 167 Wash.2d at 148, 217 P.3d 321. Moreover, assessing the effects of a violation of the public trial right is often difficult. Wise, 176 Wash.2d at ––––, 288 P.3d 1113 (quoting United States v. Marcus, ––– U.S. ––––, 130 S.Ct. 2159, 2165, 176 L.Ed.2d 1012 (2010)). Requiring a showing of prejudice would effectively create a wrong without a remedy. Therefore, we do...
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