State Of Washington, V Bradley Knox ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
June 13, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48473-1-II
Respondent, Consolidated with
No. 48476-5-II
v.
BRADLEY DAVID KNOX,
UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — Bradley Knox appeals from his convictions of solicitation to commit
first degree murder, unlawful possession of a controlled substance with intent to deliver, two
counts of first degree unlawful possession of a firearm, and bail jumping. Knox asserts that the
trial court violated his public trial right by allowing the jury to hear and view during its
deliberations audio and video exhibits that had been admitted at trial.1 We affirm.
FACTS
The State charged Knox with three counts of solicitation to commit first degree murder,
unlawful imprisonment, unlawful possession of a controlled substance (methamphetamine) with
intent to deliver, two counts of first degree unlawful possession of a firearm, and bail jumping.2
The State also alleged a school zone sentence enhancement and two firearm sentence
1
Knox also requests that we exercise our discretion to waive appellate costs in this matter.
Because the State has indicated that it will not seek appellate costs, we need not address Knox’s
request.
2
The State charged Knox under three separate causes, which were later consolidated for trial.
No. 48473-1-II;
Cons. with No. 48476-5-II
enhancements with respect to the unlawful possession of a controlled substance with intent to
deliver charge. The matter proceeded to jury trial.
At trial, the trial court admitted without objection an audio recording of a conversation
between inmates Knox and Otis Pippen at the Cowlitz County Jail, which had been recorded
through a body wire worn by Pippen. The trial court also admitted without objection a video
recording showing Knox and Pippen engaged in the conversation. The State played portions of
the audio and video recordings during a witness’s testimony.
Before the start of jury deliberations, the trial court discussed with counsel the proper
procedure for the jury to view the admitted audio and video exhibits if they requested to do so.
After the jury requested to view the audio and video exhibits during deliberations, the trial court
again engaged in a discussion regarding the proper procedure for the jury to view the admitted
exhibits.
The State requested that the jury be permitted to have access to a laptop computer to
review the exhibits in the jury room, noting that the combined length of the exhibits was
approximately five hours. Defense counsel requested that the jury review the entirety of the
audio and video exhibits, noting the defense had argued at closing that the jury should listen to
the entire audio recording. The trial court ruled that the jury would view the entirety of the
exhibits in the courtroom, which would be locked and treated as an extension of the jury
deliberation room during the jury’s viewing of the exhibits. The trial court also discussed with
counsel a proposed cautionary instruction that it would read to the jury prior to their viewing of
the exhibits; counsel agreed with the trial court’s proposed cautionary instruction.
2
No. 48473-1-II;
Cons. with No. 48476-5-II
After counsel exited the courtroom, the trial court noted on the record:
Our plan now is to bring the jury in and make the courtroom an extension of the
deliberation room. The video—or the audio recording is set up. [The bailiff] has
locked the front door to the courtroom so it will be safe and secure for them to view
that. So we’ll bring the jury in and I’ll read the cautionary instruction.
Report of Proceedings (RP) at 1050.
When the jury entered the locked courtroom, the trial court instructed them as follows:
So you’ve asked to rehear the audio recording. After consulting with the
attorneys, I’m granting your request. In making this decision, I want to emphasize
that I am making no comment on the value or weight to be given to any particular
testimony and/or evidence in this case.
The audio recording you requested will be replayed for you here in the
courtroom. You will hear it only one time.
After you have heard the audio recording, you will return to the jury room
and resume your deliberations. When you do, remember that your deliberations
must take into account all the evidence in the case, not just the audio recording that
you’ve asked to rehear.
RP at 1050-51.3 The trial court judge then exited the courtroom before the jury viewed the
exhibits and recommenced its deliberations.
The jury returned verdicts finding Knox not guilty of unlawful imprisonment and not
guilty of two counts of solicitation to commit first degree murder; the jury returned verdicts
finding Knox guilty of all the remaining charges. The jury also returned special verdicts finding
that Knox was within one thousand feet of a school bus stop and was armed with two firearms
3
Although the trial court discussed with counsel the jury’s request to hear and view both the
video and audio exhibits, it appears from the trial court’s instruction to the jury that they had
requested only to hear the audio exhibit. Our analysis does not depend on whether the jury had
heard only the audio exhibit or, instead, whether they had heard and viewed both the audio and
video exhibits. For purposes of this appeal, we assume that they had heard and viewed both
exhibits.
3
No. 48473-1-II;
Cons. with No. 48476-5-II
during his commission of unlawful possession of a controlled substance with intent to deliver.
Knox appeals.
ANALYSIS
Knox contends that the trial court violated his public trial right by permitting the jury to
hear and view in a closed courtroom audio and video exhibits, which had been admitted at trial
but not played in their entirety, without first conducting a Bone-Club4 analysis. We disagree and
affirm Knox’s convictions.
The United States Constitution and the Washington State Constitution guarantee a
criminal defendant the right to a public trial. U.S. CONST. amends. VI, XIV; WASH. CONST. art.
I, § 22. Whether a criminal defendant’s right to a public trial was violated is a question of law
that we review de novo. State v. Paumier, 176 Wash. 2d 29, 34, 288 P.3d 1126 (2012). When
determining whether a defendant’s public trial right was violated, we apply a three-part analysis,
in which we
“[(1)] begin by examining . . . whether the public trial right is implicated at all . . .
then [(2)] turn to the question whether, if the public trial right is implicated, there
is in fact a closure of the courtroom; and [(3)] if there is a closure, whether . . . the
closure was justified.”
State v. Smith, 181 Wash. 2d 508, 513-14, 334 P.3d 1049 (2014) (some alterations in original)
(quoting State v. Sublett, 176 Wash. 2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J., concurring)).
Not every interaction between the court, counsel, and defendants implicates the public
trial right. Sublett, 176 Wash. 2d at 71 (lead opinion). Our Supreme Court has established that
4
State v. Bone-Club, 128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995).
4
No. 48473-1-II;
Cons. with No. 48476-5-II
certain proceedings implicate the public trial right; for other proceedings, we apply the
“experience and logic” test announced in Sublett to determine whether a courtroom closure
implicating the public trial right has occurred. 176 Wash. 2d at 75-78. Under this test, the
experience prong asks ‘“whether the place and process have historically been open to the press
and general public.’” and “[t]he logic prong asks ‘whether public access plays a significant
positive role in the functioning of the particular process in question.’” Sublett, 176 Wash. 2d at 73
(quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1
(1986)). The public trial right attaches to the proceedings at issue only if the answer to both
prongs of the experience and logic test is yes. Sublett, 176 Wash. 2d at 73.
If the public trial right attaches to a proceeding, the trial court must consider the Bone-
Club factors and make specific findings on the record before closing the proceeding to the
public. 128 Wash. 2d at 258-59. Because violation of the public trial right is a structural error, the
remedy is reversal and remand for a new trial. State v. Wise, 176 Wash. 2d 1, 19-20, 288 P.3d 1113
(2012).
In State v. Magnano, 181 Wash. App. 689, 691, 326 P.3d 845, review denied, 181 Wash. 2d
1024 (2014), Division One of this court addressed whether the defendant’s public trial right was
implicated by the jury rehearing a properly admitted 911 audio recording in a closed courtroom
during its deliberations. After applying the experience and logic test, the Magnano court held
that the public trial right did not attach to the proceeding at issue. 181 Wash. App. at 696-700.
With respect to the experience prong, the Magnano court determined that the jury’s rehearing of
an admitted audio exhibit during its deliberations was “not a process that has ‘historically been
5
No. 48473-1-II;
Cons. with No. 48476-5-II
open to the press and general public.’” 181 Wash. App. at 696 (internal quotation marks omitted)
(quoting Sublett, 176 Wash. 2d at 73). The Magnano court also held that the defendant could not
establish that the public trial right attached to the proceeding under the logic prong, reasoning:
To allow the public to participate in the jury’s review of admitted evidence invites
the public to influence jury deliberations. “[T]here can be no question that [the
jury] must reach its decision in private, free from outside influence.” State v.
Cuzick¸ 85 Wash. 2d 146, 149, 530 P.2d 288 (1975). The secrecy of jury deliberations
is a “cardinal principle” of the Sixth Amendment right to an impartial jury. State
v. Elmore, 155 Wash. 2d 758, 773, 123 P.3d 72 (2005). The purpose of restricting
access to the jury room is to insulate the jury from any out-of-court communications
that may prejudice its verdict. State v. Christensen, 17 Wash. App. 922, 924, 567
P.2d 654 (1977). Here, the trial court properly allowed the jury to rehear a 911
recording that was properly admitted and played in open court during trial.
181 Wash. App. at 699-700. We agree with Division One’s reasoning in Magnano and adopt it
here.
Knox acknowledges the holding in Magnano but contends that it is distinguishable from
the present case because, here, only a portion of the audio and video exhibits were played for the
jury during the evidentiary phase of trial, and the jury was permitted to hear and view the entirety
of the audio and video exhibits during its deliberations. Knox thus argues that the proceeding at
issue concerned the presentation of evidence rather than jury deliberations. We reject this
argument.
Knox fails to cite any authority supporting the proposition that a jury may review during
deliberations only the portions of admitted exhibits that were published during the evidentiary
phase of trial. CrR 6.15(e) expressly provides that during deliberations “the jury shall take with
it . . . all exhibits received in evidence.” And our Supreme Court has held that “once admitted
into evidence, an exhibit may be used by the trier of fact in whatever fashion it chooses under
6
No. 48473-1-II;
Cons. with No. 48476-5-II
CrR 6.15(e).” State v. Elmore, 139 Wash. 2d 250, 296, 985 P.2d 289 (1999). Here the audio and
video exhibits were admitted as evidence without objection and, thus, the jury was entitled to
consider the entirety of the exhibits during their deliberations. Therefore, we reject Knox’s
contention that Magnano is materially distinguishable on that basis.
We hold that Knox’s public trial right was not implicated by the jury’s review of properly
admitted trial exhibits in a closed courtroom during its deliberations. Accordingly, Knox’s
public trial right claim fails, and we affirm his convictions.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Bjorgen, C.J.
Johanson, J.
7