State Of Washington, V Anthony R. Miller ( 2014 )

COURT' ;
1
2014 NOV 25
S" A
IN THE COURT OF APPEALS OF THE STATE OF WASHII``
DIVISION II
STATE OF WASHINGTON, No. 44837 -8 -II
Respondent,
v.
PUBLISHED OPINION
ANTHONY R. MILLER,
Appellant.
MAXA, J. — Anthony Miller appeals his convictions of conspiracy to commit murder and
murder in the first degree. During a recess before beginning voir dire, the trial court dismissed a
prospective juror who inadvertently had been in the courtroom while the parties and the trial
court discussed pre -trial issues. Miller argues that this dismissal violated his public trial right
and his right to be present at critical trial stages. We hold that ( 1) the trial court' s pre -voir dire
dismissal of the prospective juror during a recess did not implicate Miller' s public trial right, and
2) even if dismissal of the prospective juror during a recess violated Miller' s right to be present
at critical trial stages, the violation was harmless error. Accordingly, we affirm.
FACTS
The State charged Miller with conspiracy to commit murder in the first degree and
murder in the first degree with regard to the death of his ex- girlfriend. His trial started on
February 6, 2013.
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Before the jury was impaneled for voir dire, the trial court and counsel addressed several
preliminary issues in open court, including whether either party had concerns about courtroom
security when Miller was not shackled or near a guard during trial. Once the court and parties
resolved all preliminary issues, the court recessed. Unknown to counsel or the court, a potential
juror —juror 28 = was present in the courtroom for some or all of these proceedings.
Fifteen minutes later, court reconvened and the trial court announced that juror 28 had
been dismissed during the recess. The following discussion occurred:
The Court]:... [ T] here was an individual who was present apparently in the
courtroom here when we began these proceedings who was a prospective juror.
And we have - -
Jury Manager]: That' s number 28.
The Court]: - - because she was present during those proceedings, when she should
not have been there, but down with the rest of the jurors, we' ve gone ahead and
excused her. And that' s number 28?
Jury Manager]: Number 28.
The Court]: All right, thank you. Do the parties have any objection to the Court
excusing - - having to excuse juror 28 for being involved?
The State]: No. And in fact we were advised that that had happened, and counsel
and I both agreed and stipulated that that - -
The Court]: Thank you.
The State]: She should be excused.
Report of Proceedings at 51 -52. At that time, the court reporter noted " Juror #28 was excused
off the record for coming into the courtroom before the venire entered." Clerk' s Papers at 83.
When the trial court dismissed juror 28, the trial court had not yet sworn in the
prospective jurors. In addition, there is no indication in the record that juror 28 or any other juror
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had completed a case -specific juror questionnaire. Juror 28 had completed only a " juror profile"
form that provided responses to general background questions. It appears that juror 28
completed this form before coming to the courthouse.
Following a jury trial, the jury found Miller guilty as charged. Miller appeals his
convictions.
ANALYSIS
A. PUBLIC TRIAL RIGHT
Miller argues that the trial court' s excusal of juror 28 violated his right to a public trial
because ( 1) our Supreme Court has held that the public trial right applies to " jury selection," and
2) the jury selection process had begun when juror 28 was excused because all the jurors had
completed juror questionnaires. Br. of Appellant at 9. We disagree and hold that juror 28' s
excusal did not implicate Miller' s public trial right because our Supreme Court has applied the
public trial right only to the voir dire component ofjury selection and because the pre -voir dire
excusal of a juror who inadvertently sits through pretrial motions is not a proceeding that
historically was open to the public.
1. Legal Principles
The Sixth Amendment to the United States Constitution and article I, section 22 of the
Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176
Wash. 2d 1, 9, 288 P.3d 1113 ( 2012). In general, this right requires that certain proceedings be held
in open court unless application of the five -part test set forth in State v. Bone —
Club, 128 Wash. 2d
254, 258 - 59, 906 P.2d 325 ( 1995) supports closure of the courtroom. Whether a courtroom
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closure violated a defendant' s right to a public trial is a question of law we review de novo.
Wise, 176 Wash. 2d at 9. 1
The threshold determination when addressing an alleged violation of the public trial right
is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wash. 2d 58, 71,
292 P.3d 715 ( 2012). "[ N] ot every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public." Sublett, 176
Wash. 2d at 71.
To address whether there was a court closure implicating the public trial right, we employ
a two -step process. State v. Wilson, 174 Wash. App. 328, 337, 298 P.3d 148 ( 2013). First, we
consider whether the particular proceeding at issue " falls within a category of proceedings that
our Supreme Court has already acknowledged implicates a defendant' s public trial right"
Wilson, 174 Wn. App. at 337; see also Wise, 176 Wash. 2d at 11. Second, if the proceeding at issue
does not fall within a specific protected category, we determine whether the proceeding
implicates the public trial right using the " experience and logic" test our Supreme Court adopted
in Sublett. Wilson, 174 Wash. App. at 335.
2. Public Trial Right and Jury Selection
Miller argues that his public trial right was violated because the trial court' s excusal of
juror 28 occurred during jury selection. Our Supreme Court repeatedly has held that the public
1
Miller did not object to the alleged closure below. However, " a defendant does not waive his
right to a public trial by failing to object to a closure at trial." Wise, 176 Wash. 2d at 15. In
addition, the defendant need not show that the violation caused any prejudice. Wise, 176 Wash. 2d
at 15 -16. Any violation of a defendant' s public trial right " is structural error warranting a new
trial." State v. Paumier, 176 Wash. 2d 29, 35, 288 P.3d 1126 ( 2012).
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trial right applies to " jury selection." E.g., Wise, 176 Wash. 2d at 11; State v. Brightman, 155
Wash. 2d 506, 515 - 17, 122 P.3d 150 ( 2005). However, in Wilson we stated that Supreme Court
precedent does not establish that the public trial right applies to the entire jury selection process.
174 Wash. App. at 338. Instead, we noted that existing case law applies only to the voir dire
component of jury selection —the actual questioning of prospective jurors. Wilson, 174 Wn.
App. at 338 -40 & n. 11. We acknowledged that in the public trial right context, our Supreme
Court has used the terms " jury selection" and " voir dire" interchangeably. 2 Wilson, 174 Wn.
App. at 338. But we viewed this interchangeable use as " inadvertent and not as evincing the
Court' s intent to treat these two terms as synonymous for precedential purposes." Wilson, 174
Wn. App. at 338 -39 ( emphasis in original). Therefore, we held that the pre -voir dire excusal of
jurors did not fall within a specific category of proceedings that our Supreme Court has
recognized as implicating the public trial right. Wilson, 174 Wash. App. at 340.
A plurality of our Supreme Court adopted this reasoning in State v. Slert, Wn.2d ,
334 P.3d 1088 ( 2014). The court disagreed with the defendant' s claim that it is well settled that
the public trial right applies to the entire jury selection process. Slert, 334 P.3d at 1091. Instead,
the court quoted the passage in Wilson that emphasized that existing case law addressed only the
voir dire component of jury selection. Slert, 334 P.3d at 1091 -92. The court concluded that
2
See, e. g., Paumier, 176 Wash. 2d at 34 -35 ( stating " [ t] his presumption of openness extends to
voir dire, ' " and that " individually questioning potential jurors is a courtroom closure requiring a
Club
Bone — analysis" ( emphasis added) ( quoting State v. Momah, 167 Wash. 2d 140, 147, 217 P.3d
321( 2009)); Wise, 176 Wash. 2d at 12 n. 4, 288 P.3d 1113 ( stating " `` it is well settled that the right
to a public trial also extends to jury selection ' " ( emphasis added) ( quoting Brightman, 155
Wash. 2d at 515)).
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cases involving voir dire did not resolve whether the public trial right applies to pre -voir dire
juror dismissals, and therefore it applied the experience and logic test to decide the issue. Slert,
334 P.3d at 1092.3
Here, regardless of when jury selection started, the record clearly establishes that the trial
court excused juror 28 before voir dire. And the dismissal was not based on an oral or written
questioning of the juror. Based on Slert and Wilson, we hold that the trial court' s dismissal of
juror 28 did not occur during voir dire and therefore did not fall within the " category of
proceedings that our Supreme Court has already acknowledged implicates a defendant' s public
trial right." Wilson, 174 Wash. App. at 337.
3. Experience and Logic Test
Because the trial court' s dismissal of juror 28 does not fall within a specific category that
our Supreme Court already has recognized for application of the public trial right, we next must
apply the experience and logic test to determine whether the public trial right is implicated. We
hold that the pre -voir dire dismissal of a juror who inadvertently sits through pretrial motions
does not satisfy the experience prong and therefore does not implicate Miller' s public trial right.
3
Justice Gonzalez' s lead opinion in Slert was only joined by three other justices. 334 P.3d at
1094. However, both Justice Wiggins' s concurring opinion and Justice Stephens' s dissenting
opinion appear to agree that the public trial right automatically attached only to the voir dire
portion ofjury selection. Slert, 334 P.3d at 1094 ( Wiggins, J., concurring), 1095 ( Stephens, J.,
dissenting). One disagreement between the lead opinion and the dissent was whether
considering juror questionnaires constituted voir dire. Slert, 334 P.3d at 1095 ( Stephens, J.,
dissenting).
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The experience and logic test requires us to consider ( 1) whether the process and place of
a proceeding historically have been open to the press and general public (experience prong) and
2) whether access to the public plays a significant positive role in the functioning of the
proceeding ( logic prong). Sublett, 176 Wash. 2d at 73. If the answer to both prongs is yes, then the
defendant' s public trial right " attaches" and a trial court must apply the Bone -Club factors before
closing the proceeding to the public. Sublett, 176 Wash. 2d at 73. 4
Neither party has cited any cases, statutes, or any other authority suggesting that pre -voir
dire dismissals ofjurors who inadvertently sit through pretrial motions historically have been
open to the public. Instead, the case law suggests that juror dismissals before the jury is
impaneled generally have not been open to the public.
First, Washington courts have held that a court clerk has authority to dismiss prospective
jurors from service for certain reasons when the jury pool is first being assembled. In re Pers.
Restraint of Yates, 177 Wash. 2d 1, 21 - 22, 296 P.3d 872 ( 2013); State v. Rice, 120 Wash. 2d 549, 559-
61, 844 P.2d 416 ( 1993); State v. Langford, 67 Wash. App. 572, 583 -84, 837 P.2d 1037 ( 1992). •
4 It is somewhat unclear who bears the burden regarding the experience and logic test. Our
Supreme Court has held that a personal restraint petitioner has the burden of satisfying the
experience and logic test. In re Pers. Restraint of Yates, 177 Wash. 2d 1, 29, 296 P.3d 872 ( 2013).
The court has not expressly decided whether the same rule applies in a direct appeal, but has
suggested that the defendant has the burden. Slert, 334 P.3d at 1093 ( " Slert has not shown there
was a closure under the experience and logic test. "); Sublett, 176 Wash. 2d at 75 ( stating in
addressing the experience and logic test that " the petitioners have failed to establish that their
right to a public trial was violated. "). In Wilson, we also assumed that the defendant has the
burden. 174 Wash. App. at 346 -47 ( holding that the defendant failed to satisfy both prongs of the
test). We need not address this issue because we hold that the experience and logic test is not
satisfied regardless of who has the burden of proof.
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Because a clerk' s work is not necessarily open to the public, these rulings suggest that the public
trial right does not apply to this type of dismissal. See Wilson, 174 Wash. App. at 344.
Second, in Wilson, we applied the experience prong to a bailiffs pre -voir dire dismissal
of two jurors because they were ill and concluded that this dismissal did not implicate the public
trial right. 174 Wn. App. at 342 -46. We focused on RCW 2. 36. 100( 1), which gives the trial
court broad discretion to dismiss prospective jurors, and CrR 6. 3, which contemplates some
excusal of jurors before voir dire. Wilson, 1. 74 Wn. App. at 342 -43. We held that
administrative" juror dismissals are not proceedings that historically have been open to the
public. Wilson, 174 Wn. App. at 342 -43. As we recognized in Wilson, however, administrative
dismissals generally involve matters unrelated to a juror' s ability to impartially view the
defendant and facts of the case. 5 174 Wash. App. 344. The record here indicates that juror 28 was
not dismissed for an " administrative" reason, but due to the trial court' s — and both parties' —
legitimate concerns about juror 28' s ability to impartially try Miller' s case. The juror had been
tainted" by inadvertently sitting through pre -trial motions in limine.
Third, a plurality of our Supreme Court in Slert held that in- chambers discussions and
dismissals for cause based on case -specific jury questionnaires before formal voir dire started did
not satisfy the experience prong and therefore did not implicate the public trial right. 334 P.3d at
1093.
5 See, e. g., Yates, 177 Wash. 2d at 22 ( upholding excusals based on factors unrelated to the
particular case); State v. Marsh, 106 Wn. App. 801, 807, 24 P.3d 1127 ( 2001) ( juror excused due
to English- speaking status);
non - Langford, 67 Wash. App. at 582 ( jurors excused automatically if
they were health care providers or teachers); State v. Killen, 39 Wash. App. 416, 419, 693 P.2d 731
1985) ( jurors excused due to schedule conflicts with trial).
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These cases are not directly on point. But they do suggest that juror dismissal before voir
dire begins —even for case -specific reasons as in Slert —generally do not implicate the public
trial right. And Miller has failed to provide any evidence, authority, or argument that pre -voir
dire juror dismissals are proceedings that historically have been open to the public. Accordingly,
we hold that juror 28' s dismissal fails to meet the experience prong of the experience and logic
test. See Sublett, 176 Wash. 2d at 75 -77.
Because the trial court' s dismissal of juror 28 during a recess before voir dire does not
satisfy the experience prong of the experience and logic test, the juror' s dismissal did not
implicate the public trial right. Sublett, 176 Wash. 2d at 73. Therefore, we hold that the trial court
did not violate Miller' s public trial right.
B. RIGHT TO BE PRESENT
Miller argues that dismissing juror 28 in his absence violated his right to be present
because jury selection is a critical trial stage. We hold that even if Miller' s right to be present
was violated, this violation was harmless error.
A criminal defendant has a fundamental right to be present at all critical stages of trial."
State v. Irby, 170 Wash. 2d 874, 880, 246 P.3d 796 ( 2011). Our Supreme Court has recognized that
jury selection is a " critical" stage of trial to which the right to be present attaches. Irby, 170
Wash. 2d at 883 -84. Further, the court stated that the right attached when the work of empanelling
the jury begins, which in that case was when the prospective jurors were sworn and completed
questionnaires. Irby, 170 Wash. 2d at 884.
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But both the federal due process right to be present and Washington' s right to appear and
defend are subject to constitutional harmless error analysis. Irby, 170 Wash. 2d at 885. The State
has the burden of proving the error was harmless beyond a reasonable doubt. Irby, 170 Wash. 2d at
886. When the defendant' s right to be present is violated in the context of a juror dismissal, the
State must prove that the juror had no chance to sit on the defendant' s jury. Irby, 170 Wash. 2d at
886.
Here, we hold that there was no chance that the trial court would have allowed juror 28 to
remain on this jury, even if Miller had had been present and objected to juror 28' s dismissal.
The potential prejudice —to both Miller and the State — inherent in allowing juror 28 to remain
on the jury after being present during pre -trial motions was far too great. The fact that the
motions were deliberately held outside the prospective jurors' presence shows that the trial court
and the parties believed it would prejudice the jurors to hear the information. For this reason,
both counsel quickly stipulated that juror 28 should be dismissed. Further, Miller has not made
any attempt to explain how juror 28 would have been allowed to remain on his jury under these
circumstances.
Accordingly, we hold that the State met its burden of proving harmless error beyond a
reasonable doubt. Therefore, we hold that Miller is not entitled to reversal based on any
violation of the right to be present.
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We reject Miller' s public trial right and right to be present arguments, and affirm his
convictions.
We concur:
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