[No. 25533-6-III. Division Three. October 30, 2007.]
[1] Appeal Review Constitutional Issues Standard of Review. Constitutional issues are reviewed de novo. [2] Criminal Law Trial Right to Public Trial Scope Jury Selection In General. The public trial guaranty of the Sixth Amendment and Const. art. I, § 22 extends to the process of juror selection, but the right is not absolute. [3] Criminal Law Waiver Constitutional Rights Test. A criminal defendant's waiver of a constitutional right, whether in whole or in part, must be knowing, intelligent, and voluntary. The requirements for a valid waiver differ based on the nature of the right at issue. The waiver may be oral, on the record with either the judge or counsel in colloquy. [4] Criminal Law Trial Right to Public Trial Waiver Advisement of Consequences Necessity. A criminal defendant may waive the constitutional right to a public trial upon a personal expression of waiver. No colloquy or on-the-record advice as to the consequences of a waiver is required. [5] Criminal Law Trial Right to Public Trial Closure Factors. A trial court may close a criminal proceeding to the public, in whole or in part, upon a motion by the prosecutor or on the court's own motion, without the defendant's assent, after considering the following criteria: (1) the presence of a compelling interest, (2) the opportunity for objections, (3) the least restrictive means available to protect the threatened interest, (4) weighing the threatened interest against the public trial right, and (5) tailoring to ensure the narrowest limitation of the threatened interest. The record must show that the court reviewed these factors. The factors serve to protect both the defendant's public trial rights and the public's constitutional right to open proceedings. [6] Jury Selection Closed to Public Validity Purpose Factors Waiver of Public Trial Right by Defendant. A trial court may close voir dire proceedings in a criminal trial for the limited purpose of questioning jurors in chambers to gain better disclosure about sensitive personal matters if the court has considered the five factors for protecting the constitutional right to an open trial and has obtained from the defendant a valid waiver of the right to a public trial. [7] Criminal Law Right to Counsel Effective Assistance of Counsel Review De Novo. A convicted offender's claim of ineffective assistance of trial counsel is reviewed de novo. [8] Criminal Law Right to Counsel Effective Assistance of Counsel Presumption In General. An appellate court reviewing a convicted offender's claim of ineffective assistance of trial counsel begins with the presumption that counsel's performance was reasonable. [9] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A convicted offender claiming ineffective assistance of trial counsel must show that counsel's representation was deficient and that the deficient representation was prejudicial to the defense. Counsel's performance is deficient if it fell below an objective standard of reasonableness. Prejudice exists where there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different. [10] Criminal Law Right to Counsel Effective Assistance of Counsel Review Trial Record In General. An appellate court is limited to the trial record when reviewing a convicted offender's claim of ineffective assistance of trial counsel. [11] Criminal Law Right to Counsel Effective Assistance of Counsel Trial Strategy Tactics In General. Strategic or tactical reasons for defense counsel's conduct will not support a claim of ineffective assistance of counsel. [12] Jury Right to Jury Unbiased Jury Constitutional Right to Jury Trial. A criminal defendant has a constitutional right to an unbiased jury trial. [13] Jury Right to Jury Unbiased Jury Presumption. When considering a juror's prior experiences, bias is presumed only where the juror fails to indicate he or she can be impartial. [14] Criminal Law Witnesses Credibility Testimony by Other Witness Validity Violation of Right to Unbiased Jury. To protect a criminal defendant's right to an unbiased jury, one witness may not give an opinion as to another witness's credibility. [15] Criminal Law Right to Counsel Effective Assistance of Counsel Failure To Challenge Juror for Cause Juror's Expression of Impartiality. It is a legitimate trial strategy not to challenge for cause a prospective juror who states that he or she can be impartial. [16] Criminal Law Right to Counsel Effective Assistance of Counsel Failure To Object to Evidence Credibility Testimony by Other Witness. Defense counsel's failure to object to one witness's testimony bearing on the credibility of another witness will not support a claim of ineffective assistance of counsel if counsel's conduct may be viewed as a legitimate trial strategy intended to discredit another witness's possible testimony. [17] Criminal Law Right to Counsel Effective Assistance of Counsel Failure To Object to Evidence Impeachment Evidence Relevance. Defense counsel's failure to object to impeachment evidence will not support a claim of ineffective assistance of counsel if the evidence is relevant to the witness's ability to understand and relate a witnessed event. [18] Criminal Law Right to Counsel Effective Assistance of Counsel Failure To Object to Evidence Impeachment Evidence First Raised by Defense. Defense counsel's failure to object to impeachment evidence will not support a claim of ineffective assistance of counsel if the evidence was first raised by the defense. [19] Criminal Law Punishment Sentence Review Standard of Review. An appellate court reviews a trial court's sentence for errors of law or abuses of discretion in deciding what sentence applies. [20] Criminal Law Punishment Sentence Conditions Community Placement Community Custody Affirmative Acts. Under RCW 9.94A.030(13), a sentence of community custody imposed under RCW 9.94A.715 may be conditioned on the defendant's performance of "affirmative acts necessary to monitor compliance with the order of a court." [21] Criminal Law Punishment Sentence Conditions Community Placement Community Custody Polygraph Examinations "Monitoring Compliance." A convicted sex offender may be required to submit to polygraph testing as a condition of community custody under RCW 9.94A.715 in order to monitor the offender's compliance with other community custody conditions. [22] Criminal Law Punishment Sentence Conditions Community Placement Community Custody Plethysmograph Examinations. A convicted sex offender may be required to submit to plethysmograph testing as a condition of community custody under RCW 9.94A.715 if the offender has been required to undergo crime-related treatment. [23] Criminal Law Punishment Sentence Conditions Community Placement Community Custody Internet Restrictions. A convicted sex offender may be required to seek permission to use the Internet as a condition of community custody under RCW 9.94A.715. Nature of Action: Prosecution for second degree child molestation. Superior Court: The Superior Court for Benton County, No. 05-1-00683-1, Robert G. Swisher, J., on August 28, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the trial court did not erroneously close voir dire to the public, that the defendant received effective assistance of counsel, and that conditions of community custody imposed by the trial court were appropriate, the court affirms the judgment. Dennis W. Morgan-, for appellant. Andrew K. Miller-, Prosecuting Attorney, and Julie E. Long-, Deputy, for respondent. Ά1 BROWN, J. Alvaro G. Castro appeals his second degree child molestation conviction, contending defense counsel was ineffective and the court violated his public trial rights and erred in imposing sentencing conditions. Finding no error, we affirm. FACTS Ά2 In 2004, Mr. Castro molested C.S.H., Mr. Castro's wife's granddaughter. The State partly charged Mr. Castro with one count of second degree child molestation. Ά3 During jury voir dire, the jurors responded to questionnaires about any past history of sexual abuse and sexual offenses. The court held an in-chambers hearing to discuss Mr. Castro's decision to waive his right to question the jurors about their answers in open court. The court stated: "These questions that will be asked [of] these individual jurors are private, and the reason we would do it in chambers is to hopefully get a better disclosure from the individuals of the issues that we will question them about." Report of Proceedings (RP) (Voir Dire) at 2. The court specifically referred to our Supreme Court decision in In re Personal Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004), when discussing the waiver issue. Defense counsel stated he discussed the matter with Mr. Castro and he wished to waive his right to open proceedings. When asked if this was correct, Mr. Castro responded, "[y]es." RP (Voir Dire) at 3. Ά4 The court questioned the jurors in chambers. Juror 5 responded to questions from the judge and defense counsel by explaining her father had molested her 32 years earlier. She stated she could be an impartial juror. Neither party challenged juror 5 for cause. Jury voir dire resumed in open court following the limited closure. Ά5 During trial, Detective Jose Mireles read Mr. Castro's police statement, in which Mr. Castro told Detective Mireles, "[C.S.H.] spoke to [him] in English, but [he] did not know what she said because [he] d[id] not speak English." RP (June 28, 2006) at 154. Mr. Castro told the detective he "d[id] not read or write the English language." RP (June 28, 2006) at 155. Detective Mireles stated he spoke to Mr. Castro in Spanish. Ά6 On direct examination by the defense, C.S.H.'s sister, G.H., testified that she wrote a letter to her grandmother, Cristy Castro, telling her, " 'I hope thatI hope you're happy that you messed up both of our lives.' " RP (June 28, 2006) at 168. On cross-examination by the State, she testified she wrote the letter to her grandmother because "[she] felt real hurt" that her grandmother "didn't believe [her] sister." RP (June 28, 2006) at 170. Ά7 On direct examination by the defense, Ms. Castro testified she told C.S.H. that "[she] believe[d] [her]." RP (June 28, 2006) at 185. She also testified that Mr. Castro drinks alcohol occasionally, but not regularly, due to a medical condition. C.S.H. testified on cross-examination by the defense that she found liquor bottles in her grandmother's bedroom and thought Mr. Castro was drinking liquor in the house. Ά8 During rebuttal, the State elicited testimony from Michaela Castro, C.S.H.'s aunt, that Mr. Castro would drink, "[n]ot everyday, but he would drink"; that she spoke "Spanglish" with him; and that he could read English. RP (June 26, 2006) at 236. Ά9 The jury convicted Mr. Castro of second degree child molestation. The court sentenced him to 18 months' confinement and 36 to 48 months of community custody. His community custody conditions included: "enter into and make reasonable progress in sexual deviancy therapy," "[s]ubmit to polygraph and plethysmograph testing upon the request of your therapist and/or Community Corrections Officer," and "[d]o not use or have access to the Internet unless approved by [your] sex offender therapist." Clerk's Paper's (CP) at 19-20. ANALYSIS A. Public Trial Ά10 The issue is whether Mr. Castro properly waived his public right of trial during in-chambers questioning of a juror. We find no error. Ά15 Further, the court considered the Orange factors as to Mr. Castro's rights. The court held an in-chambers hearing and indicated a compelling interest for closing the proceedings to gain better disclosure from the jurors regarding personal sexual abuse and sexual offenses. The court allowed Mr. Castro the opportunity to object, whereby Mr. Castro waived his public trial rights. The court then used the least restrictive means to close the voir dire proceedings solely for that limited purpose. The court properly considered Mr. Castro's public trial rights. Mr. Castro should not be allowed to waive his rights and then appeal an adverse jury verdict, arguing the public was deprived of its right to participate in the hearing; the public has not appealed. B. Assistance of Counsel Ά16 The issue is whether Mr. Castro's counsel was effective. Mr. Castro contends his counsel was ineffective in failing to challenge juror 5 for cause and in failing to object to credibility and impeachment evidence. We decide Mr. Castro's counsel was effective. Ά19 Evidence is relevant and generally admissible if it has the "tendency to make the existence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence." ER 401, 402. Character evidence is generally not admissible to prove a defendant acted in conformity therewith. ER 404(a). "Evidence of a pertinent trait of character [is however admissible when] offered by an accused, or by the prosecution to rebut the same." ER 404(a)(1). C. Sentencing Issues Ά23 The issue is whether the trial court erred in ordering Mr. Castro, as part of his community custody conditions, to "[s]ubmit to polygraph and plethysmograph testing upon the request of [his] therapist and/or Community Corrections Officer," and to "not use or have access to the Internet unless approved by [his] sex offender therapist." CP at 19-20. Mr. Castro contends the court abused its discretion. We disagree. Ά25 These conditions do not exclude ordering "affirmative acts necessary to monitor compliance with the order of a court." RCW 9.94A.030(13); State v. Riles, 135 Wn.2d 326, 342-43, 957 P.2d 655 (1998). Our Supreme Court has ruled these statutes authorize "[a] trial court . . . to impose monitoring conditions such as polygraph testing." Riles, 135 Wn.2d at 342, 343. Plethysmograph testing is also a valid condition when ordered incident to crime-related treatment. Id. at 343-46. Plethysmograph testing is regarded as a "treatment device" for diagnosing and treating sex offenders. Id. at 345, 343-46. Ά26 Here, Mr. Castro concedes the sentencing court properly imposed community custody under RCW 9.94A.715(1). As part of Mr. Castro's sentence, he was ordered to participate in crime-related treatment. Under Riles, the court properly imposed polygraph and plethysmograph testing. Riles, 135 Wn.2d at 342-46. Mr. Castro's Internet restriction (required to seek permission to use) is also a valid affirmative act under RCW 9.94A.715(2)(a). Ά27 Affirmed. SWEENEY, C.J., and SCHULTHEIS, J., concur.