State v. Burdette ( 2013 )

Quinn-Brintnall, J.

¶47 Burdette argues that his public trial right was violated when the court issued responses to jury communications. The majority holds that under the experience and logic test, closing the courtroom for discussing the proper response to jury communications does not constitute a closure that implicates the public trial right. But the record before this court does not contain any information establishing the court was closed at all. “[A] closure ‘occurs when the courtroom is completely and purposefully closed to spectators so that no one may enter and no one may leave.’ ” State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012) (quoting State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011)). Accordingly, to apply the experience and logic test, the majority assumes the discussion occurred in a closed courtroom. It is well settled that this court will not resolve issues that rely on facts outside the record on appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). An issue that relies on facts outside the record is properly addressed in a PRP. McFarland, 127 Wn.2d at 335.

¶48 I would not have addressed the merits of the above issues due to the inadequate record. If, however, the record established the facts the majority assumes, I agree with the result of the majority’s analysis. Specifically, I will note that the majority opinion makes an important distinction between a jury communication that is a genuine statement of hopeless deadlock and a jury’s request for instructions about how to proceed when they believe they may be deadlocked. If the trial court determines that the jury’s communication is a genuine statement of hopeless deadlock, then the jury communication triggers procedures to examine the situation and consider whether a mistrial is appropriate. State v. Jones, 97 Wn.2d 159,164, 641 P.2d 708 (1982). Accordingly, I agree that a defendant’s public trial right does not attach to a jury communication until the trial court determines that the communication is a genuine statement of hopeless deadlock.

¶49 Burdette also asserts that the trial court violated his right to be present at both the initial discussion regarding jury instructions and the discussions regarding the trial court’s response to the jury communications. There is no evidence in the record establishing whether Burdette was present at either of these events. To address Burdette’s claim that the initial discussion regarding jury instructions violated his right to be present, the majority relies on speculation that Burdette was not present.

¶50 And to properly address Burdette’s challenge to the trial court’s discussion regarding responses to the jury communications, the majority also must assume that Burdette was not present — an assumption which is contradicted by reasonable inferences from the record. Although the record is not entirely clear about the procedures the trial court used to review the jury’s questions, the trial court’s written response to the jury clearly states that the response was made after giving all counsel and parties the opportunity to be heard. The reasonable inference from this statement is that Burdette participated in the decision, regardless of where the discussion occurred. A reviewing court should not assume facts outside the record, especially facts which contradict reasonable inferences from facts contained in the record.

¶51 Here, we cannot review Burdette’s “right to be present” challenge without assuming facts outside the record. Thus, a PRP, not a direct appeal, is the appropriate mechanism for Burdette to seek review of any right to be present claim. McFarland, 127 Wn.2d at 335.

¶52 I would not have addressed the merits of the above issues due to the inadequate record. Because the record clearly establishes that the initial discussion regarding jury instructions occurred in a closed session in chambers, I concur without reservation in the majority’s decision regarding Burdette’s public trial right as it relates to the initial discussion of jury instructions. I also concur without reservation in the majority’s decisions regarding Burdette’s suppression of evidence and ineffective assistance of counsel claims.