Opinion
65564-7-I
03-12-2012
STATE OF WASHINGTON, Respondent, v. HENRY GRISBY, III, Appellant.
UNPUBLISHED OPINION
Dwyer, C.J.
Henry Grisby, III appeals from his conviction of delivery of a controlled substance in violation of the Uniform Controlled Substances Act.During voir dire, the trial court interviewed in chambers a prospective juror without first conducting an analysis regarding closure of the pretrial proceeding. Absent such an analysis, the closure of criminal trial proceedings constitutes reversible error in all but the most exceptional circumstances. Accordingly, we reverse Grisby's conviction and remand for a new trial.
Ch. 69.50 RCW.
I
The facts relevant to Grisby's appeal are few and concern only the trial court's in-chambers conference with a prospective juror.
The State charged Grisby with delivery of a controlled substance in violation of the Uniform Controlled Substances Act. Jury selection for Grisby's trial was held on March 10 and 11, 2010. At the end of the first day of voir dire, after the jury was excused, the trial court and parties' counsel discussed some confusion that had arisen regarding whether one of the potential jurors had a prior criminal conviction rendering him ineligible for jury service. The parties determined that the potential juror should be questioned regarding the possible conviction during voir dire the next day.
On the following morning, the trial court asked the potential juror to accompany counsel and Grisby into chambers "just for a moment." Report of Proceedings (RP) (March 11, 2010) at 3. The record then notes a four minute recess. The trial court thereafter stated on the record, "I apologize for the interruption, " and voir dire continued. RP at 3. No record was made of the in-chambers proceeding, brief as it was.
The jury convicted Grisby as charged. He appeals.
II
Grisby contends that the trial court violated his article I, section 22 right to a public trial by conducting a portion of voir dire in chambers, thus temporarily restricting public access to the pretrial proceeding, without first conducting the required analysis for courtroom closure. We agree.
Grisby also contends that the public's article I, section 10 right to open courtroom proceedings was violated by the in-chambers voir dire. Because we resolve this case based upon Grisby's right to a public trial, we do not address this separate contention.
We review de novo whether a trial court procedure violates a criminal defendant's right to a public trial. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006). That right is secured by article I, section 22 of our state's constitution, which provides that "[i]n criminal prosecutions the accused shall have the right . . . to have a speedy public trial." "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." State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009) (citing Easterling, 157 Wn.2d at 174-75). Moreover, the right to a public trial is not implicated solely by proceedings occurring after the commencement of trial; rather, the right "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.'" Strode, 167 Wn.2d at 226 (alteration in original) (internal quotation marks omitted) (quoting In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004)); see also State v. Tinh Trinh Lam, 161 Wn.App. 299, 254 P.3d 891 (2011).
The presumption of openness of criminal trial proceedings 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.'" State v. Bone-Club, 128 Wn.2d 254, 260, 906 P.2d 325 (1995) (internal quotation marks omitted) (quoting Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984)). Accordingly, in Bone-Club, our Supreme Court held that "the five criteria a trial court must obey to protect the public's right of access before granting a motion to close are likewise mandated to protect a defendant's right to public trial." 128 Wn.2d at 259. The trial court must also enter specific findings justifying its closure order. Easterling, 157 Wn.2d at 175 (citing Bone-Club, 128 Wn.2d at 258-59). Where a defendant is denied the constitutional right to a public trial, prejudice is necessarily presumed. Bone-Club, 128 Wn.2d at 261-62.
The five criteria that must be considered by the trial court are: (1) The proponent of closure must make some showing for the need for closure. Where the need for closure is based upon any right other than an accused's right to a fair trial, a "serious and imminent threat" to that right must be demonstrated. (2) Anyone present when the closure motion is made must be given an opportunity to object. (3) The method of closure must be the least restrictive means available to protect the interest at issue. (4) The court must weigh the competing interests of the proponent of closure and the public. (5) The order must be no broader than necessary to serve its purpose. Bone-Club, 128 Wn.2d at 258-59 (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
Pursuant to our Supreme Court's mandate that the public trial right be "strictly guarded, " we recently held that a temporary closure of a trial proceeding required reversal of the defendant's conviction because the trial court had not conducted the required Bone-Club analysis. Lam, 161 Wn.App. at 301. There, a juror was briefly questioned in chambers after expressing safety concerns to the bailiff; although the record did not indicate whether the defendant was present during the in-chambers meeting, it did indicate that defense counsel was present. Lam, 161 Wn.App. at 301-02. The State asserted that Lam had failed to preserve the public trial issue for appellate review because he had not raised the issue before the trial court. Lam, 161 Wn.App. at 304. We disagreed, observing that "[i]n three recent cases, our Supreme Court has allowed a party to assert the denial of a public trial right for the first time on appeal." Lam, 161 Wn.App. at 304. Noting that our Supreme Court has strongly suggested that a de minimis standard is inapplicable to public trial right violations, we also rejected the State's contention that such a standard should be applied in order to uphold Lam's conviction. Lam, 161 Wn.App. at 305-06.
Similarly, here, in order to protect Grisby's right to a public trial, the trial court was required to conduct a Bone-Club analysis prior to the temporary closure of voir dire effected by the in-chambers conference with a prospective juror. The fact that Grisby did not object at trial to this temporary closure is of no consequence to his ability to challenge the closure on appeal. See Strode, 167 Wn.2d at 229 ("[T]he public trial right is considered an issue of such constitutional magnitude that it may be raised for the first time on appeal."). "Because the record in this case lacks any hint that the trial court considered [Grisby's] public trial right as required by Bone-Club, we cannot determine whether the closure was warranted." State v. Brightman, 155 Wn.2d 506, 518, 122 P.3d 150 (2005). Where a defendant's right to a public trial is violated, the proper remedy is a new trial. Lam, 161 Wn.App. at 307. Thus, Grisby is entitled to this remedy.
The State concedes that our decision in Lam controls the disposition of this case. However, the State contends that our Supreme Court's current approach to open courts claims is flawed. Specifically, the State contends that a defendant should be required to assert his right to a public trial in the trial court in order to preserve that issue for appeal. The State additionally asserts that a defendant does not have standing to assert the article I, section 10 right of the public to open courtrooms and that a de minimis standard should apply when evaluating courtroom closures. To the extent that the State must raise these issues in this court in order to preserve them for review by our Supreme Court, we note that the State has done so.
Reversed and remanded for a new trial.