No. 60335-3-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. 06-1-00986-2, Ira Uhrig, J., entered July 9, 2007.
Reversed and remanded by unpublished opinion per Appelwick, J., concurred in by Leach, A.C.J., and Ellington, J.
APPELWICK, J.
Article I, section 22 of the Washington State Constitution guarantees a criminal defendant the right to a public trial. Here, the trial court violated Singh’s right to a public trial when it conducted individual voir dire of prospective jurors in chambers without first considering and weighing the five factors set forth in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Because the court’s failure to conduct the Bone-Club analysis requires reversal under the circumstances of this case, we reverse Singh’s conviction for indecent liberties and attempted second degree rape and remand for a new trial.
FACTS
The State charged Gurtes Singh with one count of attempted second degree rape and one count of indecent liberties after he allegedly asked an acquaintance to have sex with him and, overcoming her efforts to resist, attempted to unbutton her pants and then lifted up her bra and licked her breast. Prior to general voir dire, the prospective jurors filled out a questionnaire to facilitate jury selection. The questionnaire cover sheet advised prospective jurors to respond to potentially embarrassing questions by indicating a preference to discuss those questions in private.
After receiving the completed questionnaires, the trial court announced in open court that some of the jury pool members had expressed a desire to speak privately and then advised counsel:
Okay. So, counsel, what we’re going to do, we’re going to adjourn into my office. The reporter will need to come in there with us, and we’ll have the bailiff direct those who wish to speak privately about matters pertaining to this case speaking in there and I will make a determination as to whether to excuse perhaps or not excuse the potential jurors. I will direct the rest of you to remain in here.
Ten potential jurors participated in the private voir dire. Defense counsel questioned two of the potential jurors, but the trial court conducted most of the individual questioning, which focused primarily on whether the potential juror or an acquaintance had ever been the victim of a sexual assault or accused of committing a sexual assault. The trial court advised several jurors that it would attempt to structure general voir dire so that they would not have to respond to the potentially embarrassing questions in open court. During the in-chambers session, the trial court excused two potential jurors for cause.
Although the trial court indicated that it had discussed “[m]y plan” with counsel, nothing in the record indicates that the trial court advised Singh that the procedure implicated his right to a public trial or asked counsel or Singh whether they objected to the procedure.
The jury found Singh guilty as charged.
DISCUSSION
Singh contends that the trial court violated his right to a public trial by conducting a portion of jury selection in chambers. Both the Sixth Amendment and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to a public trial. State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009). These provisions ensure a fair trial, foster public understanding and trust in the judicial system, and give judges the check of public scrutiny. State v. Duckett, 141 Wn. App. 797, 803, 173 P.3d 948 (2007). Although 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.” Strode, 167 Wn.2d at 226. 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. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150
(2005).
Before closing part of a criminal trial, including jury selection, the trial court must apply the five-part test set forth in Bone-Club:
“1. The proponent of closure . . . 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.”
128 Wn.2d at 258-59 (emphasis added) (alteration in original) (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)); see also State v. Momah, 167 Wn.2d 140, 148-49, 217 P.3d 321 (2009).
After applying these factors, the court should enter specific findings on the record to justify the closure. Momah, 167 Wn.2d at 149. In all but the most exceptional circumstances, the trial court’s closure of voir dire without first undertaking the required Bone-Club analysis is a structural error that requires reversal and a new trial. Strode, 167 Wn.2d at 223. The trial court, not an appellate court, has the duty to determine whether a compelling interest warrants courtroom closure. Bone-Club, 128 Wn.2d at 261.
In State v. Strode, a plurality of our Supreme Court held that conducting a portion of voir dire in chambers without engaging in the Bone-Club analysis violated the defendant’s right to a public trial, constituted structural error, and required reversal and remand for a new trial. Strode, 167 Wn.2d at 231. Although disagreeing with the lead opinion’s analysis of waiver and the defendant’s right to assert the public’s right on appeal, two justices concurred that the trial court’s failure to weigh competing interests before closing voir dire required automatic reversal and remand. Strode, 167 Wn.2d at 236
(Fairhurst, J., concurring).
Relying on Momah, the State argues that reversal is not required in this case, because the error was not structural and caused no prejudice. In Momah, extensive pretrial media coverage raised concerns about how to determine what potential jurors knew about the case without contaminating the jury pool. 167 Wn.2d at 146. As a result, the court and counsel conducted individual voir dire of certain potential jurors, including those who indicated prior knowledge of the case. Id.
Although the trial court in Momah did not explicitly analyze the Bone-Club factors before closing the courtroom, our Supreme Court affirmed Momah’s conviction, identifying the following circumstances that distinguished the case from previous closure cases:
Here, 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. Moreover, the trial judge in this case not only sought input from the defendant, but he closed the courtroom after consultation with the defense and the prosecution. Finally, and perhaps most importantly, the trial judge closed the courtroom to safeguard Momah’s constitutional right to a fair trial by an impartial jury, not to protect any other interests. Where, as here, a defendant’s other constitutional rights are implicated, the trial court is required to give due consideration to those rights in determining whether closure is appropriate.
Id. at 151-152.
The exceptional circumstances in Momah are not present here. As in Strode, the trial court here clearly initiated the in-chambers voir dire to preserve the prospective jurors’ privacy. Nothing in the record indicates that the trial court considered Singh’s public trial rights in light of the competing interests; undertook the requisite Bone-Club analysis, including consideration of less restrictive alternatives to private individual questioning; or undertook “the detailed review that is required in order to protect the public trial right.” Strode, 167 Wn.2d at 228. Defense counsel in both Strode and Momah participated in the private voir dire, after which jurors were excused for cause. But, because there was no discussion of Singh’s public trial right on the record, there is no showing that Singh knowingly and voluntarily waived his public trial right or that defense counsel’s participation in the private voir dire without an express objection reflected anything other than cooperation with the trial court’s procedure.
In summary, there is no principled basis to distinguish the courtroom closure in this case from the unexceptional circumstances in Strode. We therefore reverse Singh’s conviction and remand for further proceedings consistent with this opinion.[1]
Reversed and remanded.
WE CONCUR:
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