State v. Slert

Decision Date08 August 2012
Docket NumberNo. 40333-1-II,40333-1-II
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. KENNETH LANE SLERT, Appellant.
PART PUBLISHED OPINION

Van Deren, J.Kenneth Slert appeals his third conviction for second degree murder. Slert argues that the trial court (1) violated Slert's right to a public trial and his right to be present at all critical stages of trial when it held an in-chambers conference solely with counsel that resulted in the dismissal of four prospective jurors;1 (2) violated his Fifth Amendment2 privilege against self-incrimination when it admitted Slert's pre-Miranda3 custodial statements, as well as his post-Miranda statements because the State did not "scrupulously honor" his invocation of his right to remain silent; and (3) refused to suppress evidence obtained when the police conducted awarrantless search of Slert's car and campsite and detained him for five hours at the scene of the shooting in the remote woodland area before arresting him. We remand for a new trial based on violation of the public trial right, but affirm the trial court's evidentiary rulings should those issues arise on remand.

FACTS

We have recited the facts of this case in our previous opinions,4 thus we repeat only those facts pertinent to the issues Slert raises in this appeal. In the published portion of the opinion, the facts relate only to the dismissal of four jurors following an in-chambers conference between the trial court and counsel without Slert being present. In the unpublished portion, we relate facts pertinent to the issues as we address them.

Public Trial Right and Right to Be Present

Slert argues that the trial court violated both his and the public's right to an open and public trial by excusing four potential jurors in an in-chambers meeting with counsel but without first conducting a courtroom-closure analysis under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).5 The State responds that this in-chambers meeting and decisions made during it did not violate the public trial right and did not rise to the level of a courtroom closure requiring a Bone-Club analysis because (1) the meeting was not part of voir dire and (2) the meeting was purely ministerial and involved only legal matters and undisputed facts.

Under the facts of this case and in the absence of any evidence about why the four jurors were dismissed in a non-public forum and outside Slert's presence, we hold that the trial court violated Slert's right to a public trial and his right to be present during critical stages of the proceedings.6

At a pretrial hearing on January 6, 2010, in open court and with Slert present, Slert's trial counsel (1) proposed a juror questionnaire that was designed to screen members of the jury pool who had heard about Slert's previous two trials in order to prevent "taint[ing]" the jury pool with a loose comment from a prospective juror and (2) suggested in-chambers, individual questioning of jurors identified by counsel or the trial court after review of the completed questionnaires. Report of Proceedings (RP) (Jan. 6, 2010) at 4. The trial court stated that it would have the jury pool members fill out the questionnaires on the morning of January 25. Slert did not object to the questionnaire's usage or the court's preliminary discussions about jury selection procedures.

On January 21, the trial court held another pretrial hearing in Slert's presence and in open court, during which the parties again discussed the juror questionnaire. The State asked that Slert's proposed questionnaire refer to Slert's previous trials as "proceeding[s]" rather than "trial[s]" so that the jury would not know there had been earlier verdicts in his case. RP (Jan. 21, 2010) at 3. Aside from this modification, the State accepted Slert's proposed questionnaire in itsentirety. Slert did not object to the word "proceeding[s]" or to the questionnaire's general usage. RP (Jan. 21, 2010) at 3.

On the morning of January 25, the trial court gave prospective jurors copies of the questionnaire when they arrived for jury selection. The juror questionnaire had questions specific to Slert's case and it dealt with publicity from Slert's earlier trials. The juror questionnaire informed the jurors that (1) they were "under oath," (2) their questionnaire responses were "confidential," (3) the trial court would seal the questionnaires after jury selection, and (4) the questionnaires would "not be available for public inspection or use."7 Clerk's Papers (CP) at 360.

Apparently after the prospective jurors filled out and turned in their questionnaire answers, the trial court held a "[p]retrial conference . . . in chambers." with counsel8 shortly before it went on the record on January 25. CP at 194 (emphasis added). Following the in-chambers conference, the trial court indicated on the record that it had previously conferred with both counsel and that the parties had mutually agreed to excuse four jurors from the jury venire based on their questionnaire responses. The trial court stated:

There are a couple other things. We have . . . the questionnaires that havebeen filled out. I have already, based on the [questionnaire] answers, after consultation with counsel, excused jurors number 19, 36, and 49 from panel two which is our primary panel and I've excused juror number 15 from panel one, the alternate panel.

RP (Jan. 25, 2010) at 5 (emphasis added). Defense counsel indicated that the four jurors had been dismissed because their questionnaire answers had "indicated knowledge of [Slert's] prior court trials." RP (Jan. 25, 2010) at 11. The record is silent about the four dismissed jurors' questionnaire responses or the specific knowledge of the four dismissed jurors. Slert was later present during general voir dire in open court after the trial court administered a verbal oath to the jurors.9

A. Standard of Review

Whether a violation of the public trial right exists is a question of law we review de novo. State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009). A criminal defendant has a right to a public trial under the federal and state constitutions. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011). Likewise, the public has a complementary right to open proceedings under the federal and state constitutions. Lormor, 172 Wn.2d at 91.

The public trial right applies to "'the process of juror selection,' which 'is itself a matter of importance, not simply to the adversaries but to the criminal justice system.'" In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Super. Ct. of Cal., Riverside County, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)); see also State v. Bennett, 168 Wn. App. 197, 204, 275 P.3d 1224 (2012) (public trial right encompasses "circumstances in which the public's mere presence passively contributes tothe fairness of the proceedings, such as deterring deviations from established procedures, reminding the officers of the court of the importance of their functions, and subjecting judges to the check of public scrutiny").

B. In-Chambers Conference Part of Jury Selection

The State argues that the January 25 in-chambers conference, before the trial court went on the record, was not a part of jury selection. But, in State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), our Supreme Court recently addressed what portions of the proceedings constitute jury selection.

In Irby, prospective jurors filled out a questionnaire that was "'designed to elicit information with respect to [their] qualifications to sit as a juror in [Irby's] case'" and that expressly reminded the jurors that "filling out the questionnaire was 'part of the jury selection process.'" 170 Wn.2d at 882 (quoting Irby Clerk's Papers at 1234) (emphasis omitted). In a subsequent e-mail exchange between the trial court and counsel for both parties, they discussed ten potential jurors—including four potential jurors who had indicated on their questionnaires that they had parents who had been murdered—and they agreed to dismiss seven potential jurors for cause. Irby, 170 Wn.2d at 878, 884.

On review, our Supreme Court stated that "'the work of empaneling the jury' began . . . when jurors were sworn and completed their questionnaires." Irby, 170 Wn.2d at 884 (internal quotation marks omitted) (quoting Gomez v. United States, 490 U.S. 858, 873, 109 S. Ct. 2237, 104 L. Ed. 2d 923 (1989)). The Irby court distinguished the e-mail exchange from other types of conferences not implicating a defendant's trial rights because the e-mail exchange "did not simply address the general qualifications of 10 potential jurors, but instead tested their fitness to serve asjurors in [Irby's] particular case." 170 Wn.2d at 882. Accordingly, the court held that the e-mail exchange was a portion of jury selection and that this exchange violated Irby's right under the federal and state constitutions to be present at critical stages of his trial. Irby, 170 Wn.2d at 882, 884-85.

Here, as in Irby, the jurors were under oath when they completed the questionnaires and the questionnaires were specific to Slert's case and dealt with publicity from Slert's earlier trials and, thus, were "'designed to elicit information with respect to [the jurors'] qualifications to sit'" as jurors in Slert's particular case, as opposed to inquiring about the jurors' general qualifications.10 170 Wn.2d at 882 (quoting Irby Clerk's Papers at 1234). Furthermore, the questionnaires informed the jurors that (1) they were "under oath," (2) their answers to the questionnaires were "confidential," (3) the trial court would seal the questionnaires after jury selection, and (4) the questionnaires would "not be available for public inspection or use"; thus,like the Irby questionnaires, filling out the questionnaires in this case was part of jury selection. CP at 360; Irby, 170 Wn.2d at 882.

Accordingly, the record reflects...

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