State v. Strode

• Decision Date: 08 October 2009
• Docket Number: No. 80849-0.,80849-0.
• Citation: 167 Wn.2d 222,217 P.3d 310
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Tony L. STRODE, Petitioner.

217 P.3d 310

167 Wn.2d 222

STATE of Washington, Respondent, v. Tony L. STRODE, Petitioner.

No. 80849-0.

Supreme Court of Washington, En Banc.

Argued June 10, 2008.

Decided October 8, 2009.

David N. Gasch, Gasch Law Office, Spokane, WA, for Petitioner.

Michael George Sandona, Ferry County Prosecutor's Office, Republic, WA, for Respondent.

Jeffrey Erwin Ellis, Ellis Holmes & Witchley PLLC, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

James Morrissey Whisman, King County Prosecutor's Office, Seattle, WA, Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys

ALEXANDER, C.J.

¶ 1 We have plainly articulated the guidelines that every trial court must follow before it closes a courtroom to the public. State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995). In the Bone-Club case, we held that a courtroom may be closed to the public only when the criteria for closure identified in that case are satisfied. Here, the trial court violated Tony Strode's right to a public trial by conducting a portion of jury selection in the trial judge's chambers in unexceptional circumstances without first performing the required Bone-Club analysis. This is a structural error that cannot be considered harmless. Therefore, reversal of Strode's conviction and remand for a new trial is required.

I

¶ 2 Tony L. Strode was charged in Ferry County with first degree rape of a child, first degree attempted rape of a child, and first degree child molestation. A jury trial on the charges commenced on July 10, 2006. Because the case against Strode centered on allegations that Strode had sexual contact with a child, prospective jurors were given a confidential juror questionnaire to complete. In it they were asked whether they, or anyone close to them, had either been the victim of sexual abuse or accused of committing a sexual offense. Those who answered "yes" to either question were called one at a time into the judge's chambers for questioning on the issue of whether their past experiences would preclude them from rendering a fair and impartial verdict in the case. The trial court conducted this form of individual voir dire for at least 11 prospective jurors.¹ Counsel for the State and Strode have both acknowledged in their briefing that the record is devoid of any indication that the trial judge held a Bone-Club hearing prior to these interviews being conducted in chambers.

¶ 3 The only persons present during the individual questioning of the 11 prospective jurors were the trial judge, prosecuting attorney, defense counsel, and the defendant. In questioning some of these prospective jurors, the judge alluded to the fact that the questioning was being done in chambers for "obvious" reasons, to ensure confidentiality, or so that the inquiry would not be "broadcast" in front of the whole jury panel. Verbatim Report of Proceedings (VRP) (July 10, 2006) at 5, 10, 12, 20, 26, 34, 37. During this process, the trial judge and counsel for both parties asked questions of the potential jurors about their backgrounds, based on their answers to the questionnaire. Challenges for cause were registered in chambers and either granted or denied following the examination of each of these prospective jurors. As a result of this interview process, 6 of the 11 prospective jurors were excused for cause. The remainder were returned to the jury pool for the continuation of jury selection in open court. The trial judge then called the entire remaining jury pool into the courtroom, administered an oath to the jury, and voir dire continued.

¶ 4 At the conclusion of the trial, the jury convicted Strode of all of the charges against him. Strode appealed his convictions to the Court of Appeals, Division Three. That court transferred the appeal to the Washington Supreme Court, and we accepted review.

II

¶ 5 Whether a defendant's constitutional right to a public trial has been violated is a question of law, subject to a de novo review on direct appeal. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005).

III

¶ 6 Strode contends that the interviewing of potential jurors in the trial judge's chambers violated his constitutional right to a public trial as guaranteed by the state and federal constitutions. The State responds that the trial was not closed to the public because "[t]he interviews took place prior to the commencement of the trial." Resp't's Br. at 6. The State also submits that even though the trial court did not engage in a Bone-Club analysis before closing a portion of the trial to the public, the rationale for the courtroom closure can be found in the record. In addition, the State contends that because Strode and his attorney were present during this individual questioning, Strode waived his right to argue that his right to a public trial had been violated. Finally, the State maintains that even if the interviews of prospective jurors in chambers is deemed an unjustified closure of a public trial, the violation was insignificant and did not infringe on Strode's constitutional right to a public trial.

¶ 7 The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... public trial." Article I, section 22 of the Washington Constitution similarly guarantees that "i[n] criminal prosecutions the accused shall have the right ... to have a ... public trial." The Washington Constitution also provides in article I, section 10 that "[j]ustice in all cases shall be administered openly." We have concluded that this latter provision in our state constitution affords "the public and the press the right to open and accessible court proceedings." State v. Easterling, 157 Wash.2d 167, 174, 137 P.3d 825 (2006) (citing Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 36, 640 P.2d 716 (1982)).

¶ 8 The public trial right protected by both our state and federal constitutions is designed to "ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and to discourage perjury." Brightman, 155 Wash.2d at 514, 122 P.3d 150 (citing Peterson v. Williams, 85 F.3d 39, 43 (2d Cir.1996) (citing Waller v. Georgia, 467 U.S. 39, 46-47, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984))). Consistent with those purposes, the United States Supreme Court has stated that public trials embody a "`view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings.'" Waller, 467 U.S. at 46 n. 4, 104 S.Ct. 2210 (quoting Estes v. Texas, 381 U.S. 532, 588, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (Harlan, J., concurring)). While the right to a public trial is not absolute, it is strictly guarded to assure that proceedings occur outside the public courtroom in only the most unusual circumstances. Easterling, 157 Wash.2d at 174-75, 137 P.3d 825.

A

¶ 9 The State asserts that the trial was not closed to the public because the interviews of prospective jurors that took place in chambers occurred prior to the commencement of trial. This argument fails. The guaranty of open proceedings extends in criminal cases to "`[t]he 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 Wash.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)). In this regard, we have expressly noted that "a closed jury selection process harms the defendant by preventing his or her family from contributing their knowledge or insight to jury selection and by preventing the venire from seeing the interested individuals." Brightman, 155 Wash.2d at 515, 122 P.3d 150 (citing Orange, 152 Wash.2d at 812, 100 P.3d 291).²

¶ 10 Here, as noted above, the questioning of at least 11 prospective jurors took place in the judge's chambers, and 6 of them were challenged for cause. This process was closed to the general public. The trial judge's decision to allow this questioning of prospective jurors in chambers was a courtroom closure and a denial of the right to a public trial.

B

¶ 11 Notwithstanding the lack of Bone-Club analysis by the trial court, the State urges this court to consider the Bone-Club factors on appeal and hold that the record demonstrates closing a portion of the jury voir dire to the public was justified. The presumption that trials should be open may be overcome "only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Orange, 152 Wash.2d at 806, 100 P.3d 291 (quoting Waller, 467 U.S. at 45, 104 S.Ct. 2210 (quoting Press-Enter., 464 U.S. at 510, 104 S.Ct. 819)). To assure careful, case-by-case analysis of a closure motion, a trial court faced with the question of whether a portion of a trial should be closed must ensure that the following five criteria are satisfied:

1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a "serious and imminent threat" to that right.

2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.

3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.

4. The court must weigh the competing interests of the proponent of closure and the public.

5. The order must be no broader in its application or...