STATE v. RAMOS, 160 Wn. App. 1013 (2011)

STATE OF WASHINGTON, Respondent, v. ANTONIO RAMOS, Appellant.

No. 59921-6-I.The Court of Appeals of Washington, Division One.
Filed: February 28, 2011.

Appeal from a judgment of the Superior Court for Whatcom County, No. 07-1-00103-7, Ira Uhrig, J., entered April 12, 2007.

Reversed and remanded by unpublished opinion per Leach, A.C.J., concurred in by Ellington and Appelwick, JJ.

LEACH, A.C.J.

Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. In this case, the trial court conducted voir dire of an individual juror in chambers without first addressing and weighing the five factors set forth in State v. Bone-Club.[1] Because a failure to conduct a Bone-Club analysis before closing criminal trial proceedings requires reversal in all but the most exceptional circumstances, we reverse Antonio Ramos’s conviction for drug possession and remand.

FACTS
Police officers stopped Ramos while he was driving because of an excessively loud muffler, expired tabs, and the failure to signal before turning. Ramos was alone in the vehicle and consented to a search of the car. The police officers discovered two pills which appeared to be vicodin in the pocket of a jacket found in the backseat. The State charged Ramos with one count of unlawful possession of a controlled substance: dihydrocodeinone. Ramos claimed that neither the car nor the jacket belonged to him, and he did not know about the pills in the jacket pocket.

At the outset of Ramos’s trial, the court began voir dire in open court. The court asked whether any jurors knew the defendant or the lawyers involved in the case. Juror 18 acknowledged a prior relationship with the prosecutor. The prosecutor asked the juror whether he would be able to decide the case based on the evidence presented without being influenced by the relationship. Juror 18 answered that he could, absent “one personal exception.” The prosecutor told the juror he could discuss that personal matter later with the judge.

When both lawyers had finished questioning the jury panel in open court, the court reminded the lawyers about the personal issue raised by juror 18 and suggested they speak privately with the juror in chambers. The court, counsel, court reporter, defendant, and juror 18 went into chambers where the court invited the juror to share the private matter. The juror said that because of his religious convictions, he could not “sit in judgment.” Both counsel declined to ask questions. The court determined there was a sufficient basis to excuse the juror for cause. After the court excused the juror, it proceeded to address challenges for cause in chambers. Four jurors, including juror 18, were excused for cause.

Jury selection then continued in open court. Following a two-day trial, Ramos was convicted of the charge. The court imposed a standard range sentence of 60 days of confinement. Ramos appeals.

PUBLIC TRIAL
Ramos contends the trial court violated his right to a public trial when it conducted voir dire of an individual juror in chambers. Whether a trial court procedure violates a criminal defendant’s right to a public trial is a question of law that we review de novo.[2]

The state and federal constitutions guarantee the right to a public trial. Article I, section 22 of the Washington Constitution provides, “In criminal prosecutions the accused shall have the right . . . to have a speedy public trial.” The Sixth Amendment to the United States Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” “These provisions assure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny.”[3]
While the right to a public trial is not absolute, Washington courts strictly guard it to assure that proceedings occur outside the public courtroom in only the most unusual circumstances.[4]

To protect the defendant’s right to a public trial, our Supreme Court held in State v. Bone-Club that a court must analyze and weigh five factors before closing a criminal trial.[5] This requirement applies to closure of jury selection.[6]

The record in this case demonstrates that the trial court conducted questioning in chambers to accommodate juror privacy without first undertaking the required Bone-Club analysis. This was error.

Nevertheless, the State argues that, as in State v. Momah, [7]
any error was not structural because it caused no prejudice and therefore does not require reversal. On the other hand, Ramos contends that this case is not like Momah but is instead controlled by Strode. Under Strode, the failure to conduct a Bone-Club analysis before conducting voir dire in chambers requires automatic reversal and remand for a new trial.[8]
Ramos is correct.

Momah involved unusual circumstances. The media had heavily publicized Momah’s case, which raised concerns about juror impartiality.[9] As a result, the court and counsel conducted individual voir dire of those potential jurors who indicated that they had prior knowledge of the case, asked for private questioning, or stated they could not be fair.[10] Although the trial court did not explicitly apply the Bone-Club factors before closing the courtroom, our Supreme Court affirmed Momah’s conviction.[11] The court observed that the trial court and counsel recognized and “carefully considered” Momah’s competing article I, section 22 rights.[12] And “Momah affirmatively assented to the closure, argued for its expansion, had the opportunity to object but did not, actively participated in it, and benefited from it.”[13] The court concluded that Momah’s conduct was indicative of deliberate tactical choices to protect his right to an impartial jury.[14] The court found these circumstances distinguished Momah from the court’s previous public trial cases.[15]

Strode, in contrast, presented an “unexceptional” set of facts.[16] The trial court and counsel, out of concern for juror privacy, individually questioned in chambers potential jurors who had been victims of a sexual offense or accused of committing a sexual offense.[17] The court did not conduct a Bone-Club analysis, and “the record [was] devoid of any showing that the trial court engaged in the detailed review that is required in order to protect the public trial right.”[18] Nor did Strode engage in behavior that indicated a knowing, tactical waiver of his public trial right.[19] The court therefore reversed Strode’s conviction and remanded for a new trial.[20]

The State maintains that any violation of the public trial right resulting from the brief in-chambers voir dire of a single prospective juror was de minimis and caused no prejudice. The State argues that given the nature of this particular violation, reversal is an inappropriate remedy. We reject this argument. Under Momah and Strode, in all but the most exceptional circumstances, closing voir dire without employing the Bone-Club analysis is reversible error for which prejudice is presumed.[21] And although federal courts have adopted a de minimis trial closure standard, [22] Washington courts have never found a public trial right violation to be de minimis.[23]

CONCLUSION
As in Strode, the record here does not reveal that the trial court considered Ramos’s public trial right in conjunction with competing interests. Nor does the record demonstrate that Ramos knowingly waived his right to a public trial. Because the court improperly excluded the public from a portion of jury selection without applying the required Bone-Club analysis, we must reverse Ramos’s conviction and remand.[24]

WE CONCUR:

[1] 128 Wn.2d 254, 906 P.2d 325 (1995).
[2] State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825
(2006).
[3] State v. Duckett, 141 Wn. App. 797, 803, 173 P.3d 948
(2007) (citing State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005)); Dreiling v. Jain, 151 Wn.2d 900, 903-04, 93 P.3d 861 (2004).
[4] State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009); Easterling, 157 Wn.2d at 174-75; In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004).
[5] The Bone-Club analysis provides,

“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 duration than necessary to serve its purpose.”

Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

[6] Orange, 152 Wn.2d at 807-14.
[7] 167 Wn.2d 140, 217 P.3d 321 (2009), cert. denied, ___ U.S. ___, 131 S. Ct. 160, 178 L. Ed. 2d 40 (2010).
[8] Strode, 167 Wn.2d at 231, 236 (Fairhurst, J., concurring in result because, unlike in Momah, the record showed the court failed to weigh competing interests before closing voir dire).
[9] Momah, 167 Wn.2d at 145.
[10] Momah, 167 Wn.2d at 145-46.
[11] Momah, 167 Wn.2d at 145, 156.
[12] Momah, 167 Wn.2d at 156.
[13] Momah, 167 Wn.2d at 151.
[14] Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) (“The record shows [Momah] intentionally relinquished a known right.”).
[15] Momah, 167 Wn.2d at 151.
[16] See Strode, 167 Wn.2d at 223.
[17] Strode, 167 Wn.2d at 223-24.
[18] Strode, 167 Wn.2d at 228.
[19] Strode, 167 Wn.2d at 229.
[20] Strode, 167 Wn.2d at 231.
[21] Strode, 167 Wn.2d at 231 (citing Orange, 152 Wn.2d at 814).
[22] See Easterling, 157 Wn.2d at 183 (Madsen, J., concurring) (citing numerous federal cases in support of a de minimis trial closure standard).
[23] Strode, 167 Wn.2d at 230 (quoting Easterling, 157 Wn.2d at 180).
[24] On appeal, Ramos also assigns error to the trial court’s pretrial ruling admitting evidence of prior use of cocaine and marijuana. While we note that evidence of prior drug use is generally inadmissible under ER 404(b) and does not necessarily rebut an unwitting possession defense, in light of our disposition, we do not reach the argument. See State v. Pogue, 104 Wn. App. 981, 982, 17 P.3d 1272 (2001) (where defendant claims he did not know drugs were in his possession, but does not assert lack of familiarity with or recognition of drugs, only logical relevance of prior possession is through a propensity argument and evidence is thus inadmissible under ER 404(b)). Ramos has also filed a statement of additional grounds. The arguments Ramos raises, however, rest upon credibility determinations resolved by the jury. In view of our disposition, we do not further address his claims.
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