Opinion
No. 46445–4–II
06-15-2016
State of Washington, Respondent, v. Ryan Effinger, Appellant.
Jared Berkeley Steed, Nielsen Broman & Koch PLLC, 1908 E Madison St., Seattle, WA, 98122–2842, Counsel for Appellant. Carol L. La Verne, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. SW Bldg. 2, Olympia, WA, 98502–6045, Counsel for Respondent.
Jared Berkeley Steed, Nielsen Broman & Koch PLLC, 1908 E Madison St., Seattle, WA, 98122–2842, Counsel for Appellant.
Carol L. La Verne, Thurston County Prosecutor's Office, 2000 Lakeridge Dr. SW Bldg. 2, Olympia, WA, 98502–6045, Counsel for Respondent.
Opinion
Melnick, J. Ryan Effinger appeals his convictions for five counts of felony violation of a no contact order. He argues that his right to a public trial and his right to be present at all critical stages of his trial were violated when the trial court held sidebars for the peremptory and the for cause challenges. Effinger also argues that improper opinion testimony on his guilt constituted a manifest error affecting a constitutional right, that the court abused its discretion by imposing a discretionary $100 domestic violence fee, and that he received ineffective assistance of counsel because his counsel failed to object to the opinion testimony or to the discretionary domestic violence fee.
¶ 2 In the published portion of this opinion, we conclude that in light of our Supreme Court's recent decision in State v. Love , 183 Wash.2d 598, 354 P.3d 841 (2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1524, 194 L.Ed.2d 604 (2016), the sidebars did not constitute a court closure and that the trial court did not violate Effinger's right to a public trial or his right to be present for all critical stages of his trial. In the unpublished portion of this opinion, we decline to consider Effinger's opinion testimony and legal financial obligation (LFO) claims because he failed to preserve them for appeal. We also conclude Effinger's ineffective assistance of counsel claims fail because he cannot demonstrate prejudice. We affirm.
FACTS
¶ 3 Effinger was arrested after threatening his wife while a no contact order was in place. He then continued to contact her while in custody. The State charged Effinger with one count of burglary in the first degree, three counts of felony violation of a post-conviction no contact order, one count of felony harassment, five counts of felony violation of a pretrial no contact order, and one count of assault in the fourth degree, each with a domestic violence aggravator. I. Jury Voir Dire
¶ 4 During voir dire, the trial court first asked the potential jurors several questions regarding their ability to remain fair and impartial. The potential jurors answered these questions in open court. Many of the potential jurors were either in law enforcement or had family members who were.
¶ 5 The attorneys then conducted voir dire. The trial court explained the role of a sidebar to the jury:
So I'm going to at this point give you a little definition for what's called a sidebar. And a sidebar is right over here to my left, your right. Sometimes I invite the attorneys to come up to sidebar here. And when I do that, it may look to you like we don't want you to hear what we're talking about. And that actually is quite true. That's why I have them come up here. I can tell you that it's easier and quicker for me to do that if I have a quick question for them, rather than send all of you out into the hallway.
So at this point I'm going to invite the attorneys up to sidebar for a quick conversation. If you'd like, ladies and gentlemen, you can feel free to stand up and stretch. You can talk quietly amongst yourselves, but please don't talk about the case. Thank you.
(A[n] unreported discussion was held at sidebar.)
Report of Proceedings (RP) (May 19, 2014) at 69.
¶ 6 After conducting a sidebar and after asking the venire another question, the trial court conducted another sidebar to allow the parties to exercise for cause challenges and to excuse jurors for hardship. That procedure was not transcribed, but it occurred in open court. After the sidebar, the trial court announced in open court that nine jurors, identified as jurors 4, 6, 9, 12, 13, 18, 22, 26, and 35, were excused. The trial court then conducted another unrecorded sidebar to allow the parties to exercise their peremptory challenges. Following the third sidebar, the trial court announced the composition of the jury. The trial court then swore in the jurors who were to hear the case.
¶ 7 All of the sidebars were memorialized on a case information sheet. The sheet indicated that jurors 4, 6, 12, 13, 18, and 22 were excused for cause. It also indicated that the trial court excused juror 23 for cause, but the court did not announce that result in open court. The sheet showed that jurors 9 and 26 were struck for hardship and that 35 was struck because the number was not reached; however, the trial court had already excused juror 35 after the second sidebar. The trial court filed the case information sheet, and it is a part of the record.
The case information sheet lists all potential jurors and has columns showing the jurors who were excused for hardship, for cause, by plaintiff's peremptory challenge, or by defendant's peremptory challenge. It also shows the jurors and the alternates sworn to the panel, and those not reached.
¶ 8 The jury found Effinger guilty of five counts of felony violation of a no contact order, each with domestic violence aggravators. Effinger appeals.
ANALYSIS
I. Right To Public Trial
¶ 9 Effinger argues that a violation of his right to a public trial occurred when the trial court conducted sidebars for the parties' for cause and peremptory challenges. We disagree.
A. Legal Principles
¶ 10 We utilize a three-step framework to analyze public trial challenges. Love , 183 Wash.2d at 605, 354 P.3d 841. First, we determine if the public trial right attached to the proceeding at issue. Love , 183 Wash.2d at 605, 354 P.3d 841. Second, if the right attached, we determine whether the courtroom was closed. Love , 183 Wash.2d at 605, 354 P.3d 841. There are two types of closure: “ ‘when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave,’ ” Love , 183 Wash.2d at 606, 354 P.3d 841 (quoting State v. Lormor , 172 Wash.2d 85, 93, 257 P.3d 624 (2011) ), and when “a portion of a trial is held someplace ‘inaccessible’ to spectators, usually in chambers.” Love , 183 Wash.2d at 606, 354 P.3d 841 (quoting Lormor , 172 Wash.2d at 93, 257 P.3d 624 ). Third, if the appellant established there was a closure, we determine whether the closure was justified. Love , 183 Wash.2d at 605, 354 P.3d 841. The trial court must have either conducted a Bone–Club analysis on the record or the record must otherwise show that the court “effectively weighed the defendant's public trial right against other compelling interests.” State v. Smith , 181 Wash.2d 508, 520, 334 P.3d 1049 (2014).
State v. Bone–Club , 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995).
¶ 11 “The appellant carries the burden on the first two steps; the proponent of the closure carries the third.” Love , 183 Wash.2d at 605, 354 P.3d 841. Whether the trial court has violated a defendant's right to a public trial is a question of law we review de novo. State v. Irby , 170 Wash.2d 874, 880, 246 P.3d 796 (2011).
B. Closure Inquiry
¶ 12 First, it is clear that for cause and peremptory challenges implicate the public trial right. Love , 183 Wash.2d at 605, 354 P.3d 841. Where prior cases set a clear precedent, we need not engage in a full “experience and logic” analysis. Love , 183 Wash.2d at 605, 354 P.3d 841. Effinger satisfies the first prong of the test.
¶ 13 Second, no closure occurred here when the parties struck jurors at sidebars, even though the sidebars were not transcribed. In Love, our Supreme Court held that no closure occurred under similar circumstances. 183 Wash.2d at 605–07, 354 P.3d 841. Love argued that the possibility spectators at his trial could not hear the discussion about for cause challenges or see the juror sheet used for peremptory challenges rendered this portion of his trial inaccessible to the public. Love , 183 Wash.2d at 606, 354 P.3d 841. Unpersuaded by Love's argument, the court held that
the public had ample opportunity to oversee the selection of Love's jury because no portion of the process was concealed from the public [.] ... [O]bservers could watch the trial judge and counsel ask questions of potential jurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneled jury. The transcript of the discussion about for cause challenges and the struck juror sheet showing the peremptory challenges are both publically available. The public was present for and could scrutinize the selection of Love's jury from start to finish, affording him the safeguards of the public trial right missing in
cases where we found closures of jury se [le]ction. We hold the procedures used at Love's trial comport with the minimum guarantees of the public trial right and find no closure here.
Love , 183 Wash.2d at 607, 354 P.3d 841 (citations omitted). Finally, the court held that “written peremptory challenges are consistent with the public trial right so long as they are filed in the public record.” Love , 183 Wash.2d at 607, 354 P.3d 841.
¶ 14 Effinger's case is similar to Love. In Love, the lawyers exercised peremptory challenges silently in the courtroom by exchanging a written list of jurors between themselves. 183 Wash.2d at 602, 354 P.3d 841. In Effinger's case, the parties silently exercised peremptory challenges at sidebar so people in the courtroom could not hear. In both cases, the records included the case information sheets showing those jurors who were excused. Love , 183 Wash.2d at 603, 354 P.3d 841. We conclude that the sidebar peremptory challenges, even though not transcribed, do not constitute a closure. Consistent with Love 's holding, we conclude that the written peremptory challenges here were filed in the public record for the public to scrutinize, satisfying Effinger's public trial right.
¶ 15 Additionally, in this case and in Love, questioning of the potential jurors took place in open court for everyone to hear and observe. Love , 183 Wash.2d at 602, 354 P.3d 841. Likewise, the jurors' answers to the questions occurred in open court. In our case, as in Love, the court held a sidebar to discuss for cause challenges. Love , 183 Wash.2d at 602, 354 P.3d 841. In both, the sidebar was visible to observers in the courtroom. Love , 183 Wash.2d at 602, 354 P.3d 841. As in Love, although the record is silent as to what the public could hear, it is clear here that the trial court did not ask anybody to leave the courtroom. Love , 183 Wash.2d at 602, 354 P.3d 841. Further, after the sidebars, both courts excused jurors who had been questioned in front of the defendant and the public. Love , 183 Wash.2d at 602–03, 354 P.3d 841. In open court and on the record, the trial courts read the names of some of the jurors who were excused. Love , 183 Wash.2d at 603–04, 354 P.3d 841. And, the trial courts here, and in Love, empaneled the jury in open court. Love , 183 Wash.2d at 604, 354 P.3d 841. We conclude that the for cause challenges at sidebar did not constitute a closure.
¶ 16 Effinger argues that because the court did not announce which party challenged which juror or for what reason, his right to a public trial was violated. This argument is without merit. Effinger cites no authority for either proposition. “We do not consider conclusory arguments unsupported by citation to authority.” State v. Mason , 170 Wash.App. 375, 384, 285 P.3d 154 (2012) ; RAP 10.3(a)(6) ; RAP 10.4. The dissent also cites no authority to support an alternate conclusion. Moreover, the case information sheet, combined with the court's oral excusing of jurors, contains most of this information.
¶ 17 In addition, it is only when an adverse party excepts to a party's for cause challenge on sufficiency grounds that a trial on the for cause challenge occurs. CrR 6.4(d). There is no requirement that an attorney state the basis in open court when requesting that a potential juror be excused for cause. See CrR 6.4. Likewise, there is no requirement that a trial court announce its reasons for excusing a juror for cause. CrR 6.4, RCW 4.44.150 –.190. Unchallenged dismissals of jurors for cause are proper.
¶ 18 Effinger has pointed us to no case law, and we have not found any, that states the basis for a for cause challenge must be stated on the record. Effinger is conflating concepts. Voir dire must occur in open court, but the reason for excusal need not be stated in open court. Likewise, the dissent states that there is a closure because the reasons for the for cause challenges are not apparent from the record. The dissent cites no authority for its proposition that the reasons for the challenge must be apparent on the record or a closure exists. This assertion leads to an illogical conclusion: there would be a closure of the court anytime a party challenged a juror for cause out loud in open court without stating a reason if the challenge was granted without opposition. There is no precedent that the public must be explicitly told the basis for every juror's excusal. Nor is there a requirement that the challenge be made in terms that are readily understood by the public.
¶ 19 Effinger further contends that public access to a sheet of paper does not remedy the lack of public access to the sidebar. Although no transcript of what transpired at the sidebars exists, there is a public record, the case information sheet, of what occurred. And the public and Effinger could observe the entire voir dire process. Like the situation in Love, the “public was present for and could scrutinize the selection of Love's jury from start to finish.” Love , 183 Wash.2d at 607, 354 P.3d 841. The case information sheet, in combination with the public voir dire, and the court's oral excusals of potential jurors, preserved the record for the public to review.
As noted previously, there are some discrepancies between the report of proceedings and the case information sheet. As an example, the case information sheet shows that juror 23 was excused for cause but this fact was not announced in court. Also, per the case information sheet, juror 35 was not reached, yet the court excused this juror in open court. The parties never objected to those excused jurors, and the parties agreed to the panel sworn in to hear the case.
¶ 20 We are mindful that, as the dissent in this case points out, in Love, the court made note of the fact that the sidebar was recorded and the public would have access to a transcript of what transpired. 183 Wash.2d at 607, 354 P.3d 841. However, the fact that it was recorded is not dispositive of whether or not an open court violation occurred. If it were, the court would not have found closures in many cases, including State v. Brightman , 155 Wash.2d 506, 511, 515–18, 122 P.3d 150 (2005) (trial court excluded observers during voir dire but the court reporter had a transcription of jury selection); Irby , 170 Wash.2d at 878, 883, 246 P.3d 796 (trial court conducted a portion of jury selection by e-mail, the contents of which are discussed in the opinion); and, State v. Paumier , 176 Wash.2d 29, 32–33, 288 P.3d 1126 (2012) (potential jurors questioned in judge's chambers, and it was recorded and transcribed). The fact that the sidebars in Effinger's case were not recorded, therefore, is inconsequential to our analysis and decision.
¶ 21 In reaching our conclusion, we have considered that the record preserves the bases for the jurors' dismissals. Jurors 4, 6, 12, 18, 22, and 23, stated during voir dire that they could not be fair and impartial. Juror 13 discussed that members of her family were corrections officers and that she knew the prosecutor's sister. She stated these facts would not affect her ability to serve on the jury. Juror 13 also stated that she watched crime dramas but that she did not expect the trial to be like television. She later stated that she believed victims of domestic violence sometimes change their stories about what happened. Juror 13 was not then asked if anything discussed would impact her ability to serve.
The dissent incorrectly interprets what we are saying. The record reflects the reasons potential jurors were excused, e.g. for cause, with a peremptory challenge, for hardship. Although the dissent postulates why some jurors were excused, there is nothing in this record to say with certainty those are the actual reasons. And knowing the actual reasons for dismissal is not a requirement of open courts jurisprudence. No case has previously made this criterion part of the test for open courts.
¶ 22 Based on the foregoing and because we conclude there was no closure, we need not reach the third prong of the test. Effinger's ability to meaningfully participate in the voir dire process, to consult with his attorney about the jury venire, to participate in challenging jurors, or to understand the reasons jurors were dismissed was not compromised. Effinger's right to an public trial was fulfilled when the questioning of potential jurors and their answering occurred in open court, the striking of jurors occurred in open court at sidebar, and the recording of what happened was filed as part of the record. The trial court did not violate Effinger's right to a public trial.
II. RIGHT TO BE PRESENT AT ALL CRITICAL STAGES
¶ 23 Effinger argues that the for cause and the peremptory challenge sidebars also violated his right to be present at all critical stages of his trial. We disagree. ¶ 24 “Our state and federal constitutions protect the right of a criminal defendant to be present ‘at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ ” Love , 183 Wash.2d at 608, 354 P.3d 841 (quoting Kentucky v. Stincer , 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ). “Jury selection is a critical stage of a criminal trial under both the state and federal constitutions.” Love , 183 Wash.2d at 608, 354 P.3d 841.
¶ 25 In Love, Love asserted that his absence from the sidebar where the trial judge and counsel discussed and excused two jurors for cause violated his right to be present at critical stages of his trial. Love , 183 Wash.2d at 607–608, 354 P.3d 841. However, the court held that Love was present in the courtroom during all of voir dire, and nothing in the record suggested that Love could not consult with his attorney or otherwise meaningfully participate in the process. Love , 183 Wash.2d at 608, 354 P.3d 841.
¶ 26 Similar to the court's reasoning in Love, here, there is nothing in the record to demonstrate that Effinger was excluded from the courtroom or otherwise prevented from participating in jury selection. He was able to listen to the voir dire process and consult with his attorney about which jurors to challenge or to argue for their excusal. Following Love, we conclude that Effinger's right to be present was not violated.
¶ 27 We affirm the trial court. A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
I concur:
Sutton, J.
Bjorgen, C.J.
¶ 51 The majority holds that considering juror challenges for cause at sidebar in a manner that prevents the public from hearing what is said and without any record of what transpired at the sidebar does not constitute a closure. Because this view is contrary to the rules and rationale undergirding the decision in in State v. Love , 183 Wash.2d 598, 354 P.3d 841 (2015), cert. denied , ––– U.S. ––––, 136 S.Ct. 1524, 194 L.Ed.2d 604 (2016), I dissent.
¶ 52 The majority opinion sets out the basic three-step analysis used to examine public trial challenges and properly focuses on the second step, whether the challenged actions effectively closed the courtroom. On that issue, the Supreme Court noted in Love that
[w]e have reversed convictions for two types of closures. The first, obvious type of closure occurs “when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.” State v. Lormor , 172 Wash.2d 85, 93, 257 P.3d 624 (2011).
....
The second type of closure occurs where a portion of a trial is held someplace “inaccessible” to spectators, usually in chambers. Lormor , 172 Wash.2d at 93, 257 P.3d 624.
Love , 183 Wash.2d at 606, 354 P.3d 841. The present appeal plainly does not involve physically closing the courtroom to spectators. Therefore, we must examine whether the second type of closure occurred.
¶ 53 In making that inquiry, the Love court used as touchstones the following purposes of the public trial right:
The public trial right facilitates fair and impartial trials through public scrutiny. The public's presence in the courtroom reminds those involved about the importance of their roles and holds them accountable for misconduct. Effective public oversight of the fairness of a particular trial begins with assurance of the fairness of the particular jury.
Love , 183 Wash.2d at 606–07, 354 P.3d 841 (citations omitted). In holding that the challenges for cause at sidebar did not constitute a closure, Love relied on the following characteristics of the process:
Yet the public had ample opportunity to oversee the selection of Love's jury because no portion of the process was concealed
from the public; no juror was questioned in chambers. To the contrary, observers could watch the trial judge and counsel ask questions of potential jurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneled jury. The transcript of the discussion about for cause challenges and the struck juror sheet showing the peremptory challenges are both publically available. The public was present for and could scrutinize the selection of Love's jury from start to finish, affording him the safeguards of the public trial right missing in cases where we found closures of jury se[le]ction. See [State v. ] Wise , 176 Wash.2d [1] at 7–8, 288 P.3d 1113 [ (2012) ] ; Paumier , 176 Wash.2d at 33–34, 288 P.3d 1126.
Love , 183 Wash.2d at 607, 354 P.3d 841. The court held that with these procedures, no closure occurred. Id.
¶ 54 Many of these features were also present in Effinger's trial. Absent, however, was the one feature in Love that most directly insured effective public scrutiny and oversight, the purposes to which Love looked in determining whether a closure of the second type had occurred. In Love the discussion of juror challenges at sidebar was transcribed and publicly available. Here, no record was made of it.
¶ 55 By their nature, challenges for cause are made for specific reasons, those found in chapter 4.44 RCW. Challenges for cause thus contrast fundamentally with peremptory challenges, for which no reason need be given. See State v. Marks , 185 Wash.2d 143, 368 P.3d 485, review denied , (Feb. 10, 2016). Consequently, to meaningfully understand and scrutinize a for cause challenge, one must be able to ascertain any reasons given for the challenge. In Love that was possible because the exchanges at sidebar were transcribed and available to the public. Here, not only was no record of the sidebar made, but by its nature it was structured so others could not hear what transpired. The one phase of the process at which the reasons for challenges for cause would be offered, contested, and decided was, to the public, nothing but an inaudible pantomime. The case information sheet did nothing to fill this silence, because it said nothing about the reasons for the challenges for cause. Unlike Love, this approach offered no opportunity for public scrutiny or oversight, considerations that are central in determining whether a closure of the second type occurred.
The majority argues that the presence of a record is not dispositive of whether an open court violation occurred, citing State v. Brightman , 155 Wash.2d 506, 511, 122 P.3d 150 (2005), State v. Irby , 170 Wash.2d 874, 887, 246 P.3d 796 (2011), review denied , (Feb. 10, 2016), and State v. Paumier , 176 Wash.2d 29, 33, 288 P.3d 1126 (2012). These cases all stand for the proposition that the presence of a record does not necessarily save a public trial or right to be present violation. They do not call into question, though, the importance of a record in finding there was not a closure, as in Love, or the importance of its absence in finding there was a closure, in cases such as this.
¶ 56 The majority argues that deeming the sidebar in Effinger to constitute a closure would lead to an illogical conclusion: that court would be closed whenever a party challenged a juror for cause out loud in open court without stating a reason, if the challenge was granted without opposition. The flaw in Effinger's trial, however, did not lie in any failure to present a reason for a challenge. Rather, the flaw lay in barring the public from hearing or determining what reasons were offered for the challenges or whether any reasons were offered at all. When an oral challenge is made in open in court, nothing is hidden from the public; here, the public was placed in the dark as to whether any basis for a challenge was even presented. Simply allowing public scrutiny of the reasons or lack of reasons for a challenge in Effinger's circumstances does not mean that an oral challenge in open court without reasons works a closure.
¶ 57 The majority also contends that the reasons for each challenge for cause are apparent from voir dire, which was conducted in open court and recorded. I agree that the reasons for excusing jurors 4, 6, 12, 18, 22 and 23, were obvious from voir dire. Although not as clear, I think the reasons for excusing 13 are also reasonably discernable from voir dire. To preserve the purposes of the right, though, there must be some limit to the extent to which a closure of one phase may be saved by the ability to extract the same information from other, open phases. Without such limits, we would face the reductio ad absurdum of allowing any phase of trial to be effectively silenced as long as an observer could attend the entire trial or spend hours combing the record in an attempt to guess what was said at the silenced phase by inference from some other part of trial. The public's right to an open trial is not the same as the right to read the record of the trial at some later date. Nor is the exercise of that right contingent on attending the whole trial in an attempt to infer what might have been said at a closed phase from what was said at an open one.
¶ 58 Again, the purposes of the right to a public trial show the way around these shoals. As Love teaches, the presence of a written record together with other circumstances may save what otherwise would be an improper closure. To avoid these pitfalls, however, that record must be of the phase that arguably was closed, which was the case in Love. Without that limitation, effective exercise of the right would be contingent on presence at the entire proceeding or on the time and ability later to search the entire record for uncertain inferences. Therefore, the possibility of inferring the reasons underlying the challenges for cause from other parts of the record, such as voir dire, does not save the closed sidebar.
¶ 59 This is not to suggest, however, that any phase of trial may be silenced, as long as a record is made of it. The public's right to open trials is more than a public records measure. It guarantees rather the right to attend and to scrutinize the proceedings while present. See Love , 183 Wash.2d at 606–07, 354 P.3d 841. Outside the narrow circumstances of Love, that right would be lost if phases of trial were effectively reduced to a silent movie with written dialogue one could later look up. See also Brightman , 155 Wash.2d 506, 122 P.3d 150 ; Irby , 170 Wash.2d 874, 246 P.3d 796 ; Paumier , 176 Wash.2d 29, 288 P.3d 1126. ¶ 60 Love established that we judge whether the second type of closure occurs by examining whether effective public scrutiny and oversight of the trial's fairness remains. As shown, little survives of those interests by hearing and deciding challenges for cause during a sidebar of which no record is made. Therefore, I would hold that this procedure constituted a closure.