State v. Slert

• Citation: 334 P.3d 1088,181 Wash.2d 598
• Decision Date: 25 September 2014
• Docket Number: No. 87844–7.,87844–7.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Petitioner, v. Kenneth Lane SLERT, Respondent.

181 Wash.2d 598

334 P.3d 1088

STATE of Washington, Petitioner

v.Kenneth Lane SLERT, Respondent.

No. 87844–7.

Supreme Court of Washington, En Banc.

Sept. 25, 2014.

Eric Wantuck Eisenberg, Sara I. Beigh, J. Bradley Meagher, Lewis County Prosecutors Office, Chehalis, WA, for Petitioner.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Respondent.

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

Colin Fieman, Federal Public Defender, Tacoma, WA, Katherine George, Harrison–Benis LLP, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington/Washington Newspapers Publishers Association/Washington COAlition for Open Government.

Opinion

GONZÁLEZ, J.

¶ 1 Kenneth Slert has been tried and convicted three times for the murder of John Benson. His first two convictions were reversed. In his third trial, prospective jurors were given a questionnaire designed to determine if any of them had heard about the two prior trials. We are asked today to decide whether a pre-voir-dire in-chambers discussion of their answers and the dismissal of four prospective jurors for outside knowledge of the case violated the open public trials provisions of the Washington State Constitution. On this record, we find no error.

Facts

¶ 2 On Sunday, October 22, 2000, Slert set up a hunting camp in Lewis County near Mount Rainier. Benson and his son had already set up a hunting campsite nearby. After his son went home, Benson drove his truck to Slert's campsite. According to Slert, Benson invited him into the truck to talk and they shared shots of whiskey. Less than an hour later, Slert shot Benson twice at short range, once in the head and once in the neck, killing him.

¶ 3 The next day, Park Ranger Uwe Nehring pulled over on a forest service road to allow Slert's powder blue Volkswagen Beetle pass him. Instead, the Beetle stopped and Slert told Nehring that he had shot and killed someone in his campsite the night before. Nehring found guns, drugs, and alcohol in Slert's car and called for backup. Slert cooperated and guided park rangers and sheriff deputies to his campsite.

¶ 4 Slert was convicted of murdering Benson in two separate trials before the one on appeal before us today. His first conviction was reversed for instructional error and ineffective assistance of counsel. State v. Slert, noted at 128 Wash.App. 1069, 2005 WL 1870661. His second conviction was reversed on the trial judge's failure to recuse himself, an improper self-defense instruction, and ineffective assistance of counsel. State v. Slert, noted at 149 Wash.App. 1043, 2009 WL 924893. Prior to the third trial, the defense and prosecution discussed how to guard against a panel member “blurt [ing] out, ‘Oh, yeah, I read about that case and that guy should be hanging.’ ” Verbatim Report of Proceedings (VRP) (Jan. 6, 2010) at 3–4. To avoid potential taint, several weeks before trial, defense counsel proposed a questionnaire to screen potential jurors. Among other things, the two page questionnaire noted that “[t]here have been a number of prior proceedings in this case which were reported by both the newspapers and the radio, since October 2000 and most recently in late 2009” and asked jurors what, if anything, they had heard about them. Clerk's Papers (CP) at 360–61. Slert's counsel twice asked the judge to question potential jurors in chambers if their answers suggested they had outside knowledge of the case. The judge declined. The completed questionnaires were not made part of the record.

¶ 5 On the first morning scheduled for Slert's trial, two panels of potential jurors were given the questionnaire. The record does not reflect whether they were sworn in first. Because of the large number of jurors called, one panel completed the questionnaire in the jury assembly room and the other in the courtroom.¹ Counsel and the judge reviewed the completed questionnaires in chambers and agreed to dismiss 4 jurors based simply on their answers. The record suggests that Slert was not present during this in-chambers conference. Afterwards, the judge went on the record in the courtroom and, in Slert's presence, stated that “I have already, based on the answers, after consultation with counsel, excused [4] jurors.” 1 VRP (Jan. 25, 2010) at 5. On the record, and with the parties' agreement, the judge dismissed another potential juror for cause without questioning the juror on the record. Fourteen jurors who said that they had heard of the case were brought in individually, given an oath or affirmation, and questioned about their answers. Three more were dismissed for cause based on their individual voir dires. When individual questioning was complete, the remaining 40 potential jurors were brought into the courtroom and given an oath or affirmation. After about two hours of voir dire in open court with all potential jurors present, a jury was sworn in to try the case.

¶ 6 The jury found Slert guilty of second degree murder while armed with a firearm. Slert was sentenced to 280 months' confinement. The Court of Appeals reversed on two grounds: (1) that the trial court had violated the public trial guaranties of the Washington constitution and (2) that the court violated Slert's right to be present by dismissing jurors in chambers. State v. Slert, 169 Wash.App. 766, 769, 282 P.3d 101 (2012). We granted review “only on the public trial issue.” Order Granting Review, State v. Slert, No. 87844–7, at 1, 176 Wash.2d 1031, 299 P.3d 20 (Wash. Apr. 8, 2013).

Analysis

¶ 7 Only questions of law are before the court. Our review is de novo. Dreiling v. Jain, 151 Wash.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City of Tacoma, 123 Wash.2d 573, 578, 870 P.2d 299 (1994) ).

1. Jury Questionnaires and Open Courts

¶ 8 “Justice in all cases shall be administered openly.” WASH. CONST. art. I, § 10. Our constitution flatly prohibits secret tribunals and Star Chamber justice. See generally State v. Easterling, 157 Wash.2d 167, 179, 137 P.3d 825 (2006) (citing Allied Daily Newspapers v. Eikenberry, 121 Wash.2d 205, 848 P.2d 1258 (1993) ); State v. Coe,

101 Wash.2d 364, 383–84, 679 P.2d 353 (1984). “A public trial is a core safeguard in our system of justice,” and violations of article I, section 10 are structural error and can be raised for the first time on appeal. State v. Wise, 176 Wash.2d 1, 5, 9, 288 P.3d 1113 (2012) (citing State v. Brightman, 155 Wash.2d 506, 514–15, 122 P.3d 150 (2005) ).

¶ 9 Justice shall be administered openly, “[b]ut not every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure if closed to the public.” State v. Sublett, 176 Wash.2d 58, 71, 292 P.3d 715 (2012). While open public trial rights are fixed stars in our constitutional firmament, they do not shine alone. The trial judge has both the inherent authority and statutory “power to preserve and enforce order in the courtroom and to provide for the orderly conduct of its proceedings.” State v. Lormor, 172 Wash.2d 85, 93–94, 257 P.3d 624 (2011) (citing RCW 2.28.010 ). This includes the authority, when appropriate, to seal the courtroom or take matters into chambers for discussion with counsel. E.g., Sublett, 176 Wash.2d at 75–76, 292 P.3d 715 (recognizing that the trial judge has the authority to discuss jury instructions and jury questionnaires in chambers without formally closing the proceedings on the record first). The defendant's right to a fair and speedy trial, the potential jurors' right to privacy, the judge's obligation to provide a safe and orderly courtroom, and many other considerations may justify a courtroom closure. Not all arguable courtroom closures require satisfaction of the five factor test established in State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995).

¶ 10 We have adopted the United States Supreme Court's “logic and experience” test for determining when public trial rights are implicated by a particular alleged closure. Sublett, 176 Wash.2d at 73, 292 P.3d 715 (lead opinion), 94, 292 P.3d 715 (Madsen, C.J., concurring), 136, 292 P.3d 715 (Stephens, J., concurring); see also id. at 73–74, 292 P.3d 715 (citing Press–Enter. Co. v. Superior Court, 478 U.S. 1, 8–10, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)( Press II )). As we explained:

The first part of the test, the experience prong, asks “whether the place and process have historically been open to the press and general public.” Press II, 478 U.S. at 8 . The logic prong asks “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. If the answer to both is yes, the public trial right attaches and the Waller [v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) ] or Bone–Club factors must be considered before the proceeding may be closed to the public. Press II, 478 U.S. at 7–8 .

Sublett, 176 Wash.2d at 73, 292 P.3d 715 (footnote omitted). Trial counsel and the courts below did not have the benefit of our Sublett opinion.

¶ 11 Slert argues that there is no need to apply the experience and logic test “because it is well-settled that the public trial right applies” to jury selection. Resp't Supplemental Br. at 8 (citing Wise, 176 Wash.2d at 12 n. 4, 288 P.3d 1113 ; In re Pers. Restraint of Morris, 176 Wash.2d 157, 174, 288 P.3d 1140 (2012) (Chambers, J., concurring)). We respectfully disagree with this characterization of our case law. First, the mere label of a proceeding is not determinative. Sublett, 176 Wash.2d at 72–73, 292 P.3d 715. Second, it is not at all clear that this proceeding is substantially similar to the jury selection before us in Wise and Morris. As the Court of Appeals recently observed:

[E]xisting case law does not hold that a defendant's public trial right applies to every component of the broad “jury selection” process (which process includes the initial

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