State v. Price
| Citation | 154 Wash.App. 480,228 P.3d 1276 |
| Decision Date | 24 February 2010 |
| Docket Number | No. 63814-9-I.,63814-9-I. |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Donnell Wayne PRICE, Appellant. |
Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, Donnell Wayne Price, Washington State Penitentiary, Walla Walla, WA, for Appellant.
Kathleen Proctor, Thomas Charles Roberts, Pierce County Prosecuting Atty. Ofc., Tacoma, WA, for Respondent.
¶ 1 The right to a public trial is implicated only when the court orders a courtroom closed to the public. Here, the trial court conducted individual voir dire of a potential juror in the courtroom apart from the other potential jurors and a spectator who left the courtroom at the prosecutor's request. Because the other potential jurors were officers of the court, not members of the public, and the spectator was not ordered by the court to leave, there was no court ordered courtroom closure. Thus, Donnell Price fails to show a violation of his right to a public trial. We affirm.
¶ 2 On September 3, 2006, Olga Carter called 911 to report a domestic violence incident involving her boyfriend, Donnell Price. Carter told the 911 operator that Price had a gun. Police responded and arrived at Price's home in Tacoma.
¶ 3 When the officers approached the house, they heard a man and woman arguing inside and then heard the man say something about flashing lights outside. They then saw Price come to the door and step outside. An officer shined his flashlight on him and announced "Tacoma Police," but Price went back inside and slammed the door shut.
¶ 4 A few seconds later, the police heard a woman scream. Officers quickly approached the front and back doors and demanded that the occupants come out. When there was no response, they kicked in the front door and then heard a gunshot. The officers then continued to announce their presence and to call on the occupants to come out of the house, but there was no response. Price eventually came out through the front door after repeated police demands.
¶ 5 Police then entered the house and found Carter dead on the floor in the utility room. On a nearby table, police also found a handwritten note that contained Carter's fingerprints, was in her handwriting, and was on paper torn from a notebook in her purse. The note read:
To AuBriana From: Olga Mommy Mommy Luv Mr. Price Shot Me Dead He thought I Fooled Around A Gun to my Head.
Carter had a daughter named AuBriana.
¶ 6 An autopsy confirmed that Carter died of a single gunshot wound. The fatal wound was a contact gunshot wound to her neck. Forensic evidence indicated that the gun had been placed against her neck pointed upward and that the bullet travelled through her throat, cervical vertebrae, spinal cord, and brain. Forensic evidence also showed that Price had gunpowder burns on his shirt and chest, indicating that he was holding Carter very close to him when the shot was fired.
¶ 7 The State charged Price with one count of first degree murder and one count of unlawful possession of a firearm. The information also included a firearm enhancement allegation and alleged aggravating factors of deliberate cruelty and intimidation of the victim.
¶ 8 During voir dire, one of the jurors requested to discuss an issue in private and the court indicated that it would address it at the end of the day. After voir dire was finished for the day, the court excused the rest of panel so that juror could be questioned alone in the courtroom. Also present in the courtroom at the time was the murder victim's mother, who agreed to step outside of the courtroom at the prosecutor's request. The juror was then questioned in court on the record.
¶ 9 During pretrial motions, the State moved in limine to admit the note found at the murder scene as a dying declaration. Over Price's objection, the trial court ruled that the note was admissible.
¶ 10 The jury found Price guilty as charged. The jury also found by special verdict that he was armed with a firearm and that the crime was committed to intimidate the victim. The court sentenced him to a total of 494 months confinement, which included a 60-month firearm enhancement and an exceptional sentence of 60 months based on the aggravating factor of intimidating the victim.
¶ 11 Price first contends that the trial court violated his right to a public trial by questioning a juror privately without first determining whether a courtroom closure was justified and engaging in the inquiry required by State v. Bone-Club.1 The State contends that there was no courtroom closure triggering the need for the Bone-Club inquiry. We agree.
¶ 12 Whether a defendant's right to a public trial has been violated is a question of law, reviewed de novo on appeal.2 A criminal defendant has a right to a public trial under the state and federal constitutions.3 The right to a public trial applies during jury voir dire.4
¶ 13 In Bone-Club, the court set forth the following factors that a trial court must consider on the record before ordering a courtroom closure:
Failure to conduct the Bone-Club inquiry results in reversal for a new trial.6
¶ 14 Recent decisions from the divisions of this court have reached different conclusions about what constitutes a courtroom "closure" triggering the need for a Bone-Club inquiry. In State v. Momah, Division One held that conducting voir dire outside the courtroom does not amount to a courtroom closure if there is no explicit closure order.7 In State v. Wise, a panel of Division Two followed the reasoning in Momah and held that private questioning of a juror in chambers did not constitute a courtroom closure.8 But other panels of Division Two and Division Three have held that conducting voir dire of one member of the venire privately outside of the courtroom (e.g., in chambers or the jury room) constitutes a courtroom closure for purposes of Bone-Club, even in the absence of an explicit court order.9 Here, the individual voir dire was conducted in the courtroom, not in another area that was closed off from the rest of the courtroom and the public.10 This is precisely what the court in Erickson described as the "better practice" for conducting individual voir dire.11 Nor does questioning of individual jurors apart from other jurors violate the right to a public trial because once the jurors are sworn in, they are no longer members of the public, but officers of the court.12 Thus, there was no courtroom closure when the trial court conducted individual voir dire of one juror in the courtroom apart from the other jurors.
¶ 15 The question that remains is whether a courtroom closure occurred when the one spectator present in the courtroom was asked to leave during the individual voir dire. To determine whether a closure occurred, the court looks to the plain language of the closure request.13 Here, the record indicates that the court did not ask the spectator to leave; rather, she left at the prosecutor's request when the judicial assistant asked who she was and whether she would be testifying:
The prosecutor's request that the spectator leave the courtroom does not amount to a courtroom closure because there was no court order, implied or otherwise: the prosecutor—not the court—requested that the spectator leave and it was a request—not an order—to which the spectator agreed.
¶ 16 Because there was no courtroom closure here, Price's right to a public trial was not implicated. Thus, we need not reach the State's additional arguments that he waived or lacked standing to assert that right.
¶ 17 Price next contends that the trial court erred by admitting Carter's note because the State failed to lay sufficient foundation to admit it as a dying declaration and was testimonial evidence that violated his right to confrontation. We disagree.
¶ 18 Evidentiary errors are reviewed for an abuse of discretion.14 ER 804(b)(2) provides an exception to the hearsay rule for dying declarations:
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