[No. 25614-6-III. Division Three. November 27, 2007.]
[1] Criminal Law Trial Right to Public Trial Violation Question of Law or Fact Review Standard of Review. Whether a criminal defendant's constitutional right to a public trial has been violated is a question of law that is reviewed de novo. [2] Criminal Law Trial Right to Public Trial Constitutional Provisions In General. The Sixth Amendment and Const. art. I, § 22 guarantee to criminal defendants the right to a public trial. [3] Open Government Courts Public Access Constitutional Right State Constitution. The Const. art. I, § 10 guaranty that justice in all cases shall be administered openly and without unnecessary delay secures the public's right to open and accessible judicial proceedings. [4] Criminal Law Trial Right to Public Trial Constitutional Provisions Purposes. The Sixth Amendment and Const. art. I, § 22, which guarantee to criminal defendants the right to a public trial, and Const. art. I, § 10, which guarantees that justice in all cases shall be administered openly and without unnecessary delay, are intended to ensure fair trials, to foster public understanding and trust in the judicial system, and to give judges the check of public scrutiny. [5] Criminal Law Trial Right to Public Trial Scope In General. While the constitutional right to a public trial is not absolute, it is strictly guarded to ensure that judicial proceedings occur outside of a public courtroom only in the most unusual circumstances. [6] Open Government Courts Public Access Constitutional Right Enforcement Court's Duty. A court has an independent obligation to safeguard the open administration of justice. Const. art. I, § 10, which guarantees that justice in all cases shall be administered openly and without unnecessary delay, is mandatory. [7] Criminal Law Trial Right to Public Trial Constitutional Provisions Assertion of Rights. A criminal defendant's right to a public trial as secured by Const. art. I, § 10 is fully present even if the defendant asserts rights only under Const. art. I, § 22 and the Sixth Amendment. [8] Criminal Law Trial Right to Public Trial Scope Jury Selection Test. Inasmuch as a criminal defendant has a constitutional right to a public trial and the public has a constitutional right to open judicial proceedings, a trial court may not conduct any part of juror voir dire in a criminal trial outside of the public forum of the courtroom unless the court, on the record, engages in the analysis set forth in State v. Bone-Club, 128 Wn.2d 254 (1995), and enters appropriate findings of fact and conclusions of law that are as specific as possible. Under 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 the defendant'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 availa [9] Criminal Law Trial Right to Public Trial Closure Review Role of Appellate Court. Whether to close a part of a criminal trial proceeding to public scrutiny is a decision vested in the sound discretion of the trial court after weighing the competing interests. It is not a decision for an appellate court to make. [10] Criminal Law Trial Right to Public Trial Closure Factors Failure To Apply Remedy. When a trial court closes a portion of a criminal trial without engaging in an analysis, on the record, of the factors set forth in State v. Bone-Club, 128 Wn.2d 254 (1995), such that a reviewing court is unable to determine whether the trial court was warranted in suspending the right to a public trial, the presumptive remedy is a new trial. [11] Criminal Law Trial Right to Public Trial Violation Review Issue Not Raised in Trial Court. A criminal defendant's right to a public trial is an issue of constitutional magnitude that may be raised for the first time on appeal. [12] Criminal Law Trial Right to Public Trial Waiver What Constitutes. A criminal defendant's right to a public trial may not be waived merely by conduct. A failure to assert the right at trial does not effect a waiver; nor does it free the court from its independent obligation to consider public trial rights before closing all or a portion of the proceedings. Where the trial court indicates an intent to hold a proceeding somewhere other than the open courtroom, waiver is not indicated by the defendant's agreement not to attend the proceeding if the trial court has not advised the defendant of the public trial right and asked the defendant to waive the right; i.e., the defendant's waiver of the right to be present does not effect a waiver of the right to a public trial. The burden is on the trial court to affirmatively provide the defendant, and members of the public, an opportunity to object. There is no meaningful opportunity to object unless the court informs potential objectors of the nature of the asserted interests. [13] Criminal Law Trial Right to Public Trial Closure What Constitutes Proceedings in Chambers Statement by Judge Effect. A trial judge's statement of intent to conduct a portion of a criminal trial proceeding in chambers may be presumed to be a closure order. If the validity of the closure order is challenged by the defendant on appeal, the State bears of the burden of showing that a closure did not occur. [14] Courts Rules of Court Construction Constitutional Mandate Effect. A court rule will not be construed to circumvent or supersede a constitutional mandate. [15] Criminal Law Trial Right to Public Trial Scope Jury Selection Court Rules Effect. GR 31(j), which states that "[i]ndividual juror information, other than name, is presumed to be private" and sets forth procedures for gaining access to individual juror information upon a showing of good cause, does not relieve trial courts of their obligation to engage in the State v. Bone-Club, 128 Wn.2d 254 (1995), analysis before closing to the public any part of juror voir dire in a criminal trial. GR 31 is merely a procedural tool that facilitates compliance with the requirement of public access to judicial information. The privacy interests of jurors acknowledged by GR 31 are part of the Bone-Club analysis. [16] Criminal Law Trial Right to Public Trial Violation De Minimis Exception. The constitutional guaranty of a public trial has never been subject to a de minimis exception. [17] Criminal Law Trial Right to Public Trial Violation Remedy Presumptive Remedy. The violation of a criminal defendant's constitutional right to a public trial is presumed to be prejudicial and is not subject to harmless error analysis. The remedy is reversal of the conviction and remand for a new trial. BROWN, J., dissents by separate opinion. Nature of Action: Prosecution for one count of second degree rape, one count of third degree rape, and one count of first degree burglary. Superior Court: The Superior Court for Spokane County, No. 06-1-00213-1, Kathleen M. O'Connor, J., on October 18, 2006, entered a judgment on a verdict finding the defendant guilty of second degree rape. Court of Appeals: Holding that the trial court violated the defendant's constitutional right to a public trial by conducting a portion of juror voir dire in chambers without first weighing the necessary factors on the record, the court reverses the judgment and remands the case for further proceedings. William D. Edelblute-, for appellant. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo-, Deputy, for respondent. Ά1 STEPHENS, J. We recently addressed the same question presented in this appeal. State v. Frawley, 140 Wn. App. 713, 167 P.3d 593 (2007). During voir dire, the trial judge here questioned selected jurors individually in the jury room, based on their responses to a questionnaire that asked about their experiences with sexual abuse. Nicholas Duckett waived his right to be present. However, the court never advised Mr. Duckett of his right to a public trial, nor asked him to waive this right. We conclude, as we did in Frawley, that this procedure violates a criminal defendant's public trial right and reverse Mr. Duckett's conviction and remand for a new trial. We take this opportunity to expand our analysis to explain why our state constitution requires this result and why it is not altered by the presumption of privacy afforded juror information by court rule. We also note that closure remains an option for a trial court if the court makes a record under the proper analysis. FACTS Ά2 The State charged Nicholas G. Duckett with one count of second degree rape, one count of third degree rape, and one count of first degree burglary. The matter proceeded to jury trial in the Spokane County Superior Court. The trial judge told prospective jurors that they would be provided with a questionnaire containing "some questions that are somewhat of a personal nature." Report of Proceedings (Aug. 14, 2006) (RP) at 14. Specifically, the questionnaire asked two questions concerning the prospective jurors' experiences with sexual abuse. The trial judge told the jurors that the questionnaires would be filed in the court file under seal and not accessible to anyone without a court order. She told Mr. Duckett and his lawyer that follow-up questioning of those jurors whose questionnaire responses indicated some experience with sexual abuse would take place outside the courtroom, stating, "I generally do it in my jury room, Counsel, . . . so as to maintain some privacy." RP at 46. Apparently, 16 jurors were so questioned, though the record does not contain any transcript of this voir dire. Ά3 At the time the trial judge laid out her procedure, the following exchange took place: [DEFENSE COUNSEL]: I just for the record, Your Honor, I just talked to Mr. Duckett as to whether or not he wants to be present during that. I think he's entitled to. He indicated he does not wish to be present, so the record should reflect that. THE COURT: And Mr. Duckett is entitled to and I never ask them whether they want to. I assume they will unlessassume they wish to be present unless they voluntarily tell me something different. So, Mr. Duckett, you do have a right to be present during that questioning, but you're electing not to be; is that correct? [MR. DUCKETT]: Can I have one second, Your Honor? THE COURT: Sure. [MR. DUCKETT]: (Pause) Judge, so far, I'm gonna stick with my attorney on this. He said it's for general knowledge that I to be there at the moment. So I'm going to agree with him not to be there. THE COURT: All right. I presume that [defense counsel] will give you a summary of what occurred and what jurors were excused, if it were appropriate to excuse jurors. [DEFENSE COUNSEL]: Yes, Your Honor, I will. RP at 46-47. Ά4 A jury was selected and empanelled. Following a two-day trial, the jury found Mr. Duckett guilty of second degree rape. This appeal follows. ANALYSIS The Bone-Club Analysis Ά7 The guaranty of open criminal proceedings extends to voir dire. Orange, 152 Wn.2d at 804. Bone-Club and later Orange set out the standards for closing all or any portion of a criminal trial. Bone-Club, 128 Wn.2d at 258-59; Orange, 152 Wn.2d at 805. The court in Bone-Club adopted five workable guidelines drawn from case law construing Washington Constitution article I, section 10, and concluded this analysis is also necessary to protect a criminal defendant's rights under article I, section 22. Bone-Club, 128 Wn.2d at 258-60; see also Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982) (setting forth five-part analysis under article I, section 10). Ά8 The court in Bone-Club set forth the necessary analysis: "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)); see also Ishikawa, 97 Wn.2d at 36-39. Ά9 Preliminarily, at oral argument the State suggested that a criminal defendant's public trial right cannot be based on article I, section 10 because the defendant lacks standing to assert the public's right. This fails to appreciate the court's independent obligation to safeguard the open administration of justice. Article I, section 10 is mandatory. Rauch v. Chapman, 16 Wash. 568, 575, 48 P. 253 (1897). Moreover, the right secured by article I, section 10 is fully present even when a defendant asserts only rights under article I, section 22 and the Sixth Amendment, as the court has adopted the Ishikawa analysis in this context. Bone-Club, 128 Wn.2d at 259 (noting "the same closure standard for both the section 10 and section 22 rights"). Ά10 The five-part analysis includes both substantive and procedural requirements. Orange, 152 Wn.2d at 807. The court in Ishikawa made clear that the trial court must weigh the competing constitutional interests and enter appropriate findings and conclusions that should be as specific as possible. Ishikawa, 97 Wn.2d at 38; see also Orange, 152 Wn.2d at 807. Ά11 Here, the trial court did not identify the relevant considerations or enter findings and conclusions on the necessary factors. The State concedes as much. The State instead urges us to consider the Bone-Club factors on appeal and conclude that closing this portion of the voir dire to the public was justified. This we cannot do. Whether to close a proceeding to public scrutiny is a decision vested in the sound discretion of the trial judge weighing the competing interests. See Ishikawa, 97 Wn.2d at 45. The question before us is not whether we would have made the same decision as the trial judge had we considered the necessary factors, but whether the trial judge's decision is supported by her consideration of these factors. Absent a record showing that the trial judge considered the public trial right as required under Bone-Club, we cannot determine whether the court was warranted in conducting a portion of voir dire in chambers. See Brightman, 155 Wn.2d at 518. The presumptive remedy is a new trial. Id.; Orange, 152 Wn.2d at 814. Waiver Ά13 It is well settled that a criminal defendant's right to a public trial is an issue of constitutional magnitude that may be raised for the first time on appeal. Easterling, Ά14 As to the State's argument that Mr. Duckett validly waived his public trial right by conduct, any waiver must be addressed under the Bone-Club analysis. A constitutional waiver of some trial rights may be inferred from conduct. See State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475 (1996) (noting waiver of right to testify or right to self-representation may be found when defendant does not take the stand or appears through counsel). The right to a public trial has never been viewed in this context. The distinct nature of the public trial right is clear from the rigor of the constitutional analysis required under Bone-Club. It encompasses not simply the defendant's individual interest in being present, but also the public's interest. Bone-Club, 128 Wn.2d at 261; see also Easterling, Ά15 Here, the court never advised Mr. Duckett of his public trial right or asked him to waive it. He certainly could not then make a knowing, intelligent, and voluntary waiver of this constitutional right. While Mr. Duckett was told he had the right to be present during individual questioning of the selected jurors, and validly waived that right, that is all he waived. We disagree that he "presumably was aware of the right to have the public present" and impliedly waived it, when this right was never addressed. See Br. of Resp't at 9. Moreover, we question whether Mr. Duckett could waive the public's right to open proceedings. Any closure of a public judicial proceeding required the trial court to engage in the Bone-Club analysis. That was not done here. General Rule 31 and "Private" Voir Dire Ά17 GR 31 applies to all court records. It is merely a procedural tool that facilitates compliance with the requirement of public access to judicial information. GR 31(a); see 2 KARL B. TEGLAND, WASHINGTON PRACTICE: RULES PRACTICE GR 31, Supreme Court Press Release Concerning GR 31, at 40-42 (6th ed. Supp. 2007). GR 31(j) states that "[i]ndividual juror information, other than name, is presumed to be private" and sets forth procedures for gaining access to individual juror information upon a showing of good cause. TEGLAND, supra, at 39; see also GR 31(k) (limiting access to master jury source list). GR 31 was adopted in 2004 following changes in Judicial Information System procedures implementing electronic access to court information. Ά18 GR 31 has not heretofore been tested against the constitutional right to a public trial. We are not entirely without guidance, however, as to the proper application of the rule. We read GR 31 in accord with GR 15, which provides a uniform procedure for the sealing of court records. Appellate courts of this state have construed the standard for sealing documents under GR 15 as subject to the constitutional requirement of public records and proceedings set out in Ishikawa. Ishikawa, 97 Wn.2d at 36-39; see In re Dependency of J.B.S., 122 Wn.2d 131, 140, 856 P.2d 694 (1993); In re Dependency of G.A.R., 137 Wn. App. 1, 11-13, 150 P.3d 643 (2007). This is in keeping with the general principle that a court rule will not be construed to circumvent or supersede a constitutional mandate. See State v. Pelkey, 109 Wn.2d 484, 490, 745 P.2d 854 (1987). Accordingly, we do not construe GR 31 to relieve the trial court of its obligation to engage in the Bone-Club analysis before closing all or any portion of voir dire to the public. Ά19 The privacy interests of jurors acknowledged by GR 31 are simply part of the Bone-Club analysis. Bone-Club, 128 Wn.2d at 258-59. In a context presenting equally compelling privacy interests, our Supreme Court invalidated a statute that would have circumvented the constitutional inquiry, recognizing that the presumption of open judicial proceedings requires a case-by-case consideration under the five-part analysis. Eikenberry, 121 Wn.2d at 210-11 (striking down statute provision preventing disclosure of information identifying child sexual assault victims as inconsistent with Ishikawa). Similarly, GR 31 cannot substitute for the particularized constitutional inquiry. Ά20 We will not then read GR 31 as carving out nonpublic portions of a jury trial. See Orange, 152 Wn.2d at 804 (stating, "[t]he guaranty of open criminal proceedings extends 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' " (second alteration in original) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984))). In this case only a limited portion of voir dire was held outside the courtroom, but this does not excuse the failure to engage in a Bone-Club analysis. As the Supreme Court recognized in Orange and confirmed in Easterling, the guaranty of a public trial under our constitution has never been subject to a de minimis exception. Orange, 152 Wn.2d at 812-14; Easterling, CONCLUSION Sweeney, C.J., concurs. Ά22 BROWN, J. (dissenting) GR 31(j) provides for individual juror privacy consistent with a defendant's right to a fair public jury trial. Nicholas Duckett contends, for the first time on appeal, that his second degree rape conviction should be reversed because the trial court violated his public trial rights by following the procedure he agreed to for his benefit. Under RAP 2.5(a)(3) he does not show a manifest constitutional error. Moreover, as explained below, I do not believe Mr. Duckett fairly characterizes the process used as a "closure" within public trial boundaries. In my view, no public trial "closure" has occurred since the information was initially confidential under GR 31(j). Ά23 In open court, in Mr. Duckett's presence, the judge explained to the jury without any objection: "The purpose of having a juror questionnaire . . . is to ask that you answer some questions that are somewhat of a personal nature in confidence." Report of Proceedings (RP) (Aug. 14, 2006) at 14. The judge elaborated: "The original questionnaires will be filed in our court file under seal. That means they are not accessible by anybody without a court order." Id. The materials resulting from "privately" talking to the jurors about their responses "will be collected from the lawyers and destroyed." Id. The judge then read the questions in open court. Sixteen jurors responded positively to the questionnaire. The judge assured the jurors the confidential questionnaire answers would be used in questioning those responding positively, but the interview process would be conducted "privately" and the materials generated would be collected and destroyed. Id. Ά24 Later, the judge told the parties that she generally conducted private questioning of questionnaire responses "in [her] jury room . . . so as to maintain some privacy." Id. at 46. Defense counsel then told the judge that he had talked with Mr. Duckett and Mr. Duckett did not want to be present during that questioning. The judge informed Mr. Duckett he had "a right to be present," and Mr. Duckett responded he agreed with his attorney and he would not be present to obtain "general [juror] knowledge." Id. at 47. All other jury questioning was conducted in open court in full public view. Ά25 RAP 2.5(a) precludes considering issues for the first time on appeal. RAP 2.5(a)(3) accepts a manifest error affecting a constitutional right. The first test used for deciding the applicability of RAP 2.5(a)(3) (conceded here) is " 'whether the alleged error is truly constitutional.' " State v. Kronich, 160 Wn.2d 893, 899, 161 P.3d 982 (2007) (quoting State v. Kirkpatrick, 160 Wn.2d 873, 879-80, 161 P.3d 990 (2007)). The second test requires determining whether the error is "manifest" and involves deciding whether the error had " 'practical and identifiable consequences in the trial of the case.' " Id. (internal quotation marks omitted) (quoting Kirkpatrick, 160 Wn.2d at 879-80). Purely formalistic errors are not manifest. Id. In my view, Mr. Duckett fails the second test. Ά26 The claimed error is "formalistic" and without "practical and identifiable consequences in the trial of the case" since the questionnaire answers were confidential from the outset by court rule and were not open to the public. Therefore, exploring confidential answers to the questionnaires in a limited setting open to the parties and their counsel does not present a public trial issue except in a strained and formalistic sense. Nothing in this process undermined the public's trust and confidence in the case outcome or disturbed Mr. Duckett's rights. Indeed, the process enhanced Mr. Duckett's opportunity to receive a fair trial by encouraging maximum juror participation and candor. Mr. Duckett points to no practical and identifiable consequence to him of the court's chosen procedure. Ά27 Under GR 31(j) individual juror information collected by the court "other than name, is presumed to be private." Further, "[t]he court may require that juror information not be disclosed to other persons." GR 31(j). In balance, GR 31(j) provides a procedure for disclosing "individual juror information under the control of the court" to listed persons including a member of the public on showing "good cause" after trial conclusion. Public trial principles and fair trial principles are maintained in balance with public expectations and juror confidentiality interests. The flaw in Mr. Duckett's closure argument is that it is incorrectly premised on the proposition that the confidential materials were open to the public from the outset. But, considering GR 31(j), one cannot close what is not open. Ά28 Yes, a criminal defendant has a constitutional right to a public trial, including jury selection. In re Pers. Restraint of Orange, 152 Wn.2d 795, 804-05, 100 P.3d 291 (2004). There the trial court excluded Mr. Orange's family (and the public, including spectators) from general voir dire over his objection because of space limits. Notably, the Orange court did not discuss or decide whether private juror questioning about confidential questionnaire responses violated Mr. Orange's public trial rights. Our case is far different. First, unlike Mr. Orange, Mr. Duckett did not object to the procedure but believed it advantageous to him. Second, the judge explained the process and the purpose was to maintain juror privacy, not to address a space limitation like in Orange. Third, Mr. Duckett's attorney counseled him about the situation and Mr. Duckett waived his presence; Mr. Orange objected. Fourth, the time involved here was very limited compared to the two day closure in Orange. Ά29 While I believe our case differs somewhat from State v. Frawley, 140 Wn. App. 713, 724, 167 P.3d 593 (2007) (Brown, J., dissenting), because I do not believe any closure occurred, it probably does not matter. On the other hand, some of the similarities concern me. The judge never actually ordered the public excluded or the courtroom closed. We do not know if any members of the public were actually present when the procedures were discussed and adopted or may have been excluded. No public objections are recorded. Recently, these similarities helped influence Division One of this court to reject public trial defect contentions in State v. Momah, 141 Wn. App. 705, 716, 171 P.3d 1064 (2007) (declining to follow Frawley to the extent it "holds that all in-chambers proceedings are per se closed to the public"). Ά30 In sum, the judge's chosen procedure is consonant with the reasoning in Orange. The judge identified a compelling interest, used the least restrictive means to achieve that purpose, informed Mr. Duckett of his right to be present, and explained the process in open court without objection from Mr. Duckett or any member of the public who might have been present. Granted, the process was not perfect, it never is, but the process comported well with accepted fair trial principles. GR 31(j) partly encourages public participation in our jury system by assuring reasonable juror privacy in confidential juror information, but it also observes public trial principles by providing a process to review public requests for juror information. In my view, no "closure" occurred by following the privacy requirements of GR 31(j) because the questioned process was not open to the public from the outset. If any balancing of principles were called for, this judge struck the balance well within reasonable fair trial limits. Ά31 I would affirm. Accordingly, I respectfully dissent.