State v. Njonge

FILE .,.,
IN CLERK'S OFFICE
SUPREME COURT, STATE OF WASHINGTON
DATE SEP 2 5 2014
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
NO. 86072-6
Petitioner,
v. ENBANC
JOSEPH NJUGUNA NJONGE,
Filed SEP 2 5 2014
Respondent.
STEPHENS, J.-We granted review of the public trial issues in this case,
most notably whether the portion of jury selection in which the court excuses
jurors for hardship is a proceeding to which the public trial right attaches. The
Court of Appeals concluded that it is, and that Joseph Njonge's public trial right
was violated when the trial court purportedly excluded observers during hardship
excusals. Accordingly, the Court of Appeals remanded for a new trial without
reaching Njonge's other assignments of error, including claims that the trial court
improperly excluded a family member of the victim (who was also a witness) and
members of the press from portions of voir dire. Based on our review of the
record, we conclude the trial court did not close proceedings in violation of
State v. Njonge (Joseph Njuguna), 86072-6
Njonge's public trial right. Accordingly, we reverse the Court of Appeals and
remand to that court to address Njonge's additional assignments of error on which
we did not grant review.
FACTS AND PROCEDURAL HISTORY
Joseph Njonge worked as a nursing assistant at an assisted living facility. In
2008, he was charged with first degree murder in connection with the death of Jane
Britt, the spouse of a resident at the facility.
Pretrial proceedings began on June 2, 2009. During discussion of a pretrial
motion to exclude witnesses from trial, the prosecutor asked the trial court if one of
the victim's family members, who would also later be called as a witness, could
stay for voir dire. The court disallowed it, reasoning:
[W] e are in very cramped quarters for jury selection, and I think about the
only place for visitors to sit is going to be in a little anteroom out there ....
The other thing is, quite franldy, the jurors will be seeing that face
throughout the entire process and maybe making some connections with
that person when the person gets on the stand. I don't thinl< it's fair; so, I
am not going to allow it.
Verbatim Report of Proceedings (VRP) (June 2, 2009) at 46.
The court later explained to counsel and Nj onge how it intended to conduct
jury selection, noting:
We have received permission to get more than the standard 50 [jurors]. I
think we are getting 65. That necessitates a rearrangement of our
courtroom, and my Bailiff put out a map for you guys as to how we are
going to get this number in. The first two benches must remain clear at all
times.
So, we will have jurors seated in front of the jury box. The court
reporter is going to move over here; we have a few jurors here. It's kind of
a little awkward, but it's more of a jury selection in the round process that
way.
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State v. Njonge (Joseph Njuguna), 86072-6
!d. at 90-91. As the day's session concluded, the court addressed observers in the
courtroom:
Just let me say for the people who are observing. You are certainly
welcome to observe. Tomorrow when we have the jury selection, there will
not be room for all of you. What we are going to do to allow people to
observe is check with the fire marshall ... and make sure that we can keep
those first swinging doors open. And if we can do that, then we will allow
some people to observe if they wish to do so during jury selection by sitting
in that kind of entry hall, if we can do that.
' But, otherwise, as you can see, we are already putting chairs up here
to accommodate the jury. We may be able to have chairs out there; we may
not. We may be able to have the doors open without chairs. We are going
to find that out. The chance of all you being able to be here and observe are
slim to none during the jury selection process.
!d. at 105-06. The court recessed for the day a few minutes later.
Jury selection began the next day, June 3, 2009. The court called the panel
into the courtroom. The record contains no mention about the presence or absence
of spectators in the courtroom. Once the venire was settled, the court welcomed
the members and explained the importance of jury duty and what role juries play in
our basic system of justice. VRP (June 3, 2009) at 9-10. The panel members had
previously completed a case-specific questionnaire that included questions about
whether they had heard of the case and could be fair. VRP (June 2, 2009) at 85-86;
VRP (June 3, 2009) at 2-3, 7, 18. The prospective jurors were sworn in. VRP
(June 3, 2009) at 13. The court then conducted its hardship excusal process, which
took up most ofthe morning and resulted in the excusal of several jurors. !d. at 21-
53. When the parties reconvened after the lunch recess for the afternoon session,
the following exchange took place:
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State v. Njonge (Joseph Njuguna), 86072-6
[Prosecutor]: Some family members who are not witnesses stuck
around this morning, hoping there might be some seats later, and your
bailiff informed them at lunch since some people were excused there were
some. So I don't know if the Court has any problem with that. They are not
witnesses. We tried to figure out a spot that would be in a row that basically
has no jurors. So that second row over there only has Juror 30. Is that okay
with the Court if they are in there?
THE COURT: Actually, that seemed to be a better idea. We checked
with the fire department. They wouldn't let us leave the doors open for
visitors to come in. Let's move No. 30 over next to 34, and then we can
have visitors sitting in the second row there.
Id. at 54-55. Jury selection continued for the remainder of the day, with a few
additional hardship discussions followed by questioning from counsel on bias and
the like. See id. at 54-146. Before resuming voir dire the following day, the court
told the jury that the television camera crew would not be permitted to stay in the
courtroom during voir dire:
[The Court]: The other thing is as some of you who were here know
that one _of the TV stations wants to film the case.
And I have no objection to them filming, but they did not ask my
permission before they came into my courtroom with a camera, which is
bad form. I have no objection to them filming, but they cannot during jury
selection.
So, I told them they had to leave until after jury selection. And it
looks, I would let them know when we are complete with jury selection,
and they want to film opening statement.
VRP (June 4, 2009) at 4.
There were no additional discussions on the record concerning public or
press access. As the Court of Appeals observed, "The record does not show any
observer being asked to leave the courtroom or any objection to the voir dire
procedure by either the parties or any observers. The court clerk's minutes reflect
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State v. Njonge (Joseph Njuguna), 86072-6
no order relating to a closure." State v. Njonge, 161 Wash. App. 568, 572, 255 P.3d
753 (2011).
Trial concluded on June 17, 2009, with a jury convicting Njonge of the
lesser-included offense of second degree murder. Clerk's Papers (CP) at 65.
Njonge appealed his conviction, and the Court of Appeals ordered a new trial,
reasoning that the trial court improperly closed the courtroom during the hardship
excusals. Njonge, 161 Wash. App. at 570. Because it resolved the case in this way,
the court did not consider Njonge's other public trial claims concerning the
exclusion of the family member witness and of the camera crew. Nor did the
appellate court address Njonge's assignments of error unrelated to his public trial
claims. Id. at 580. The State filed a petition for review, which we granted on the
public trial issue only. 1 State v. Njonge, 176 Wash. 2d 1031,299 P.3d 19 (2013).
ANALYSIS
Since 2009, when this court announced its decisions in State v. Strode, 167
Wn.2d 222,217 P.3d 310 (2009) and State v. Momah, 167 Wash. 2d 140,217 P.3d
321 (2009), numerous public trial cases have explored the contours of our
jurisprudence. To date, our cases have recognized several basic principles. A
defendant's right to a public trial is guaranteed by article I, section 22 of our state
constitution and the Sixth Amendment to the federal constitution. State v. Bone-
1
The petition for review was filed on June 3, 2011. We stayed consideration of
the petition pending our decisions in several public trial cases. While consideration was
stayed, the State filed a supplemental petition to address the "experience and logic" test
adopted in State v. Sublett, 176 Wash. 2d 58, 292 P.3d 715 (2012). Suppl. Pet. for Review
at 3.
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State v. Njonge (Joseph Njuguna), 86072-6
Club, 128 Wash. 2d 254, 256, 906 P.2d 325 (1995); In re Pers. Restraint of Orange,
152 Wash. 2d 795, 804, 100 P.3d 291 (2004). The right to a public trial is not
absolute, as a courtroom may be closed to the public if the trial court justifies the
closure by conducting an on-the-record balancing of several factors, commonly
referred to as the Bone-Club factors. Bone-Club, 128 Wash. 2d at 258-59; State v.
Brightman, 155 Wash. 2d 506, 515, 122 P.3d 150 (2005); State v. Easterling, 157
Wash. 2d 167, 175, 137 P.3d 825 (2006). 2 The right to public trial extends beyond
the evidence-taking portion of trial proceedings and includes pretrial phases such
as suppression hearings, hearings on motions to sever, and voir dire. Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (suppression
hearing); Bone-Club, 128 Wash. 2d 254 (same); Easterling, 157 Wash. 2d at 177
(pretrial motion to sever); Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L.
Ed. 2d 675 (2010) (voir dire); Orange, 152 Wash. 2d 795 (same).
2
The court in Bone-Club identified the factors as follows:
"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 Wash. 2d at 258-59 (alteration in original) (quoting Allied Daily
Newspapers v. Eikenberry, 121 Wn.2d 205,210, 848 P.2d 1258 (1993)).
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State v. Njonge (Joseph Njuguna), 86072-6
While courts have not delineated the complete universe of proceedings to
which the public trial right attaches, we employ the experience and logic test to
determine whether a proceeding implicates the public trial right. State v. Sublett,
176 Wash. 2d 58, 72-73, 292 P.3d 715 (2012); id. at 136 (Stephens, J., concurring).
Where experience and logic counsel that a particular proceeding must be open, a
trial court's failure to conduct a Bone-Club analysis justifying a closure will result
in a new trial. See State v. Paumier, 176 Wash. 2d 29, 35, 288 P.3d 1126 (2012). 3 A
violation of the public trial right is structural, meaning prejudice is per se presumed
to inhere in the violation. State v. Wise, 176 Wash. 2d 1, 13-14, 288 P.3d 1113
(2012); Paumier, 176 Wash. 2d at 35; Easterling, 157 Wash. 2d at 181; see also In re
Pers. Restraint ofMorris, 176 Wash. 2d 157, 166,288 P.3d 1140 (2012) (recognizing
the error is structural on direct appeal). We have also recognized that a public trial
claim may be raised for the first time on appeal and does not require an objection
at trial to preserve the error. Wise, 176 Wash. 2d at 15-16; Paumier, 176 Wash. 2d at
36; Easterling, 157 Wash. 2d at 173 n.2.
With this brief overview of our public trial jurisprudence, we tum to the
questions presented by this case.
3
We use "new trial" as a shorthand reference to the standard for automatic
reversal. Where the error involves only the closure of a pretrial proceeding that can be
repeated without any effect on the trial, a lesser remedy may be appropriate. See Waller,
467 U.S. at 40 (directing new suppression hearing and noting, "A new trial need be held
only if a new, public suppression hearing results in the suppression of material evidence
not suppressed at the first trial or in some other material change in the positions of the
parties."). But see Bone-Club, 128 Wash. 2d at 262 (granting new trial rather than only new
suppression hearing because testimony at public hearing would likely differ and should
be available as impeachment evidence).
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State v. Njonge (Joseph N]uguna), 86072-6
RAP 2.5(a) Does Not Preclude Appellate Review
when a Defendant Does Not Object to Public Trial Error
Preliminarily, the State asks us to overrule our precedent regarding the
application of RAP 2.5(a) to claims of public trial error and hold that Njonge's
failure to object in the trial court precludes review of his public trial claim under
RAP 2.5(a). We decline the State's invitation to disturb settled law.
Not long ago, in the fall of 2012, this court held in Wise that a violation of
the public trial right is reviewable for the first time on appeal. 176 Wash. 2d at 16-19
& n.11. This was not an isolated holding, as the court traced state cases since
Bone-Club, as well as federal precedent, and rejected an argument to overrule these
cases, emphasizing that "[ s]tability in the law and policy reasons demand that we
maintain our rule." Id. at 18 (citing Easterling, Brightman, and Orange); see also
Paumier, 176 Wash. 2d at 36-37 (explaining that "RAP 2.5(a) does not apply in its
typical manner"). Subsequently, in State v. Beskurt, six justices did not address
RAP 2.5(a) in analyzing the defendant's public trial claim, despite a three-justice
dissent that would have invoked the rule. 176 Wash. 2d 441, 445-48, 293 P.3d 1159
(2013) (four justice lead opinion); id. at 456-59 (Stephens, J., concurring, joined by
Fairhurst, J.); id. at 449-50, 456 (Madsen, C.J., dissenting). The State relies on the
dissent in Beskurt and repeats the argument that the cases that announced the
presumption of prejudice for public trial violations-Bone-Club, Brightman, and
Orange-are based on a pre-RAP 2.5(a) case, State v. Marsh, 126 Wash. 142, 217
P. 705 (1923). But the reasoning advanced by the Beskurt dissent gained no
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State v. Njonge (Joseph Njuguna), 86072-6
traction then, and we see no reason to embrace it now. We will overrule precedent
only upon a showing that it is both incorrect and harmful. In re Rights to Waters of
Stranger Creek, 77 Wash. 2d 649, 653, 466 P.2d 508 (1970). The State cannot make
this showing. We continue to hew to our well-reasoned and long-standing
precedent and hold that a defendant's failure to contemporaneously object to a
public trial violation does not preclude appellate review under RAP 2.5(a). We
therefore tum to the merits ofNjonge's article I, section 22 claim.
Njonge Did Not Suffer a Violation of His Public Trial Rights
Njonge appears to raise three distinct public trial questions: whether the
hardship excusal portion of voir dire conducted by the judge is a proceeding to
which the public trial right attaches, whether Njonge's public trial right was
violated when a witness was excluded from observing voir dire, and whether there
was a public trial violation when television press was excluded from the
courtroom. We find no public trial right violation.
1. The record in this case does not establish that observers were excluded from
the courtroom during hardship excusals
A defendant asserting violation of his public trial rights must show that a
closure occurred. See State v. Jasper, 174 Wash. 2d 96, 121-24, 271 P.3d 876 (2012).
As this court explained in Jasper:
'"[O]n a partial or incomplete record, the appellate court will presume any
conceivable state of facts within the scope of the pleadings and not
inconsistent with the record which will sustain and support the ruling or
decision complained of; but it will not, for the purpose of finding reversible
error, presume the existence of facts as to which the record is silent."'
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State v. Njonge (Joseph Njuguna), 86072-6
Jasper, 174 Wash. 2d at 123-24 (alteration in original) (quoting Barker v. Weeks, 182
Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J. Appeal and Error§ 2666, at 736
(1916))).
The State notes that this court has found reversible error arising from a
public trial violation "only upon a showing that the trial court actually issued an
order closing the courtroom, or where it was clear that people were in fact
excluded from the proceedings." Suppl. Br. of Pet'r at 10. The Court of Appeals
properly concluded that a court need not order a closure to violate the public trial
guaranty, but it never addressed the State's latter contention that it must be clear
from the record that spectators were in fact excluded from proceedings. Njonge,
161 Wash. App. at 575-76. On this record, there is no conclusive showing that
spectators were totally excluded from the juror excusals. We cannot presume the
existence of facts to which the record is silent. Jasper, 174 Wash. 2d at 124.
The Court of Appeals read the record here to effect "a full closure of voir
dire for the morning session." Njonge, 161 Wash. App. at 578-79. A fair reading of
the transcript does not lend itself to such certainty. In speaking to the observers
about space limitations, the trial court explained that everyone was welcome to
watch but that there might not be seats for everyone who wanted to observe. The
court said, "Tomorrow when we have the jury selection, there will not be room for
all of you .... The chance of all you being able to be here and observe are slim to
none during the jury selection process." VRP (June 2, 2009) at 105-06 (emphasis
added). The court mentioned that it was looking into the possibility of
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State v. Njonge (Joseph Njuguna), 86072-6
accommodating observers by allowing them to stand or sit in the anteroom, if the
fire marshal permitted it.
This discussion does not demonstrate that no observers were going to be
allowed in the courtroom during the first stages of voir dire. Rather, this passage
of the record could easily suggest that the court sought to accommodate additional
observers in the anteroom but was not able to do so. Neither does the later
conversation with the prosecutor about allowing people to enter after some jurors
were excused demonstrate that no spectators had been present during the hardship
excusals. This may be one reasonable inference, but the record can equally be read
to mean that additional persons were admitted as space became available.
The only thing that is certain from the record is that there were space
limitations in the courtroom. But the size of a courtroom alone cannot effect a
closure. See United States v. Shryock, 342 F.3d 948, 975 (9th Cir. 2003); United
States v. Kolbi, 172 F.2d 919, 923 (3d Cir. 1949) (observing that the public trial
right does not require holding a trial in a place large enough to accommodate all
those who desire to attend). As Justice Harlan once observed:
Obviously, the public-trial guarantee is not violated if an individual
member of the public cannot gain admittance to a courtroom because there
are no available seats. The guarantee will already have been met, for the
"public" will be present in the form of those persons who did gain
admission. . . . A public trial implies only that the court must be open to
those who wish to come, sit in the available seats, conduct themselves with
decorum, and observe the trial process.
Estes v. Texas, 381 U.S. 532, 588-89, 85 S. Ct. 1628, 14 L. Ed. 2d 543 (1965)
(Harlan, J., concurring). On this record, while it cannot be determined
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State v. Njonge (Joseph Njuguna), 86072-6
conclusively that observers were in the courtroom during the proceeding in
question, neither can it be said that the public was excluded. 4 We have required a
better factual record to find a violation of this magnitude. Bone-Club, 128 Wash. 2d
at 256-57 (total physical exclusion of spectators); Orange, 152 Wash. 2d at 802
(record demonstrated that trial court prohibited all spectators and family members
from observing voir dire); Paumier, 176 Wash. 2d at 32-33 Gurors questioned in
chambers outside view of any observers); Wise, 176 Wash. 2d at 7 (same).
Where no closure is demonstrated, we analyze the case "as a matter of
courtroom operations, where the trial court judge possesses broad discretion."
State v. Lormor, 172 Wash. 2d 85, 93, 257 P.3d 624 (2011); see State v. Collins, 50
Wash. 2d 740, 745-46, 314 P.2d 660 (1957) (observing that where members of the
public were present during trial, the exclusion of additional spectators was within
the trial court's discretion to manage the courtroom). Here, the trial court acted
well within its discretion to regulate overcrowding in the courtroom. We hold that
the record does not show the court closed the courtroom to the public during voir
dire. Consequently, Njonge has not established a public trial violation.
4
The Court of Appeals was troubled by the trial court's statement that the first two
rows of benches in the courtroom were to remain open. Njonge, 161 Wash. App. at 580.
But it is not clear from the trial court's statements what it meant by leaving the benches
"open." In the context of the discussion, the court seems to have meant the benches had
to be open for jurors, meaning they were not available to the public. Nothing in the
record demonstrates the benches were left empty.
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State v. Njonge (Joseph Njuguna), 86072-6
2. The trial court did not err in excluding the family member witness from voir
dire.
As noted above, one of the victim's family members, who was also going to
be called as a witness during trial, wanted to watch voir dire. The trial court
disallowed this because of space concerns and also because the court believed
allowing a witness to observe voir dire could negatively impact the fairness of the
trial. 5
Assuming Njonge is challenging the exclusion of the witness as a distinct
public trial violation, his challenge fails. We have observed that the exclusion of
witnesses from trial does not implicate the public trial right, but is instead a matter
of trial court discretion rooted in the court's courtroom management prerogative.
Lormor, 172 Wash. 2d at 94-95. We noted in Lormor that Evidence Rule (ER) 615
allows a court the discretion to order the exclusion of a witness '"so that they
cannot hear the testimony of other witnesses"' on its own motion. !d. at 94
(quoting ER 615). In such an instance, a court should articulate reasons for the
discretionary decision; because the exclusion of a witness during trial is not a
5
It is not entirely clear whether Njonge is making a separate challenge concerning
the exclusion of the family-member witness or simply pointing to the witness as part of
the general public that was allegedly denied access by reason of the limited seating. See
Am. Br. of Appellant at 7 (noting the exclusion of the witness from voir dire as a factual
matter in his overall discussion of the purported closure during the hardship excusals).
The State did not specifically respond to Njonge's brief discussion of the witness
exclusion.
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State v. Njonge (Joseph Njuguna), 86072-6
closure implicating the public trial right, the court's explanation need not hew to
the Bone-Club factors. See id. at 94-95.
We similarly resolve the exclusion of the family-member witness here.
Although voir dire does not involve testimony, there is nevertheless the potential
for a witness to tailor testimony to the things seen, heard, and observed during voir
dire or the potential for jurors to form improper impressions of a witness from
observations made prior to testimony (the trial court cited the latter concern here).
For this reason, the exclusion of a witness from voir dire should be treated as a
matter of court discretion and not as a closure implicating the public trial right.
We hold that there was no abuse of discretion because the judge provided adequate
reasons for excluding the witness: the limited space and the concern that some
prejudice would arise from allowing the jury to observe the witness before he or
she presented testimony. To the extent Njonge implies that his public trial right
was violated by the exclusion of the family-member witness from voir dire
proceedings, we reject this claim.
3. The exclusion of a television press crew from voir dire was not a closure
violating Njonge 's public trial right
As explained above, the trial court excluded a television camera crew from
voir dire, indicating they would be allowed to film once the jury was selected and
opening statements began. VRP (June 4, 2009) at 4. We conclude that this
exclusion also did not violate Njonge's right to a public trial.
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State v. Njonge (Joseph Njuguna), 86072-6
The right to a public trial includes the right to a public voir dire. Presley,
558 U.S. at 213; Wise, 176 Wash. 2d at 12 n.4; Brightman, 155 Wash. 2d at 515.
Njonge argues that the public includes the press. This is correct, but the cases to
which Njonge cites are those in which there was a total exclusion of both general
public and all press. See Am. Br. of Appellant at 24 (citing Orange, 152 Wash. 2d at
811; State v. Erickson, 146 Wash. App. 200, 206, 189 P.3d 245 (2008)). That is not
the fact pattern here. The trial judge's comments about the television crew make it
clear that the courtroom was open to the public and that she was disallowing the
filming of voir dire, not the presence of the media. If there is an issue here, it
potentially implicates the First Amendment right of the press to be present at trial,
but not article I, section 22. See CONST. amend. I; Press-Enter. Co. v. Superior
Court, 464 U.S. 501, 516, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Stevens, J.,
concurring) (explaining that the right of the press to view a trial is a First
Amendment right). No party has asserted a First Amendment violation here.
Thus, we reject Njonge's claim relating to the exclusion of the television crew.
CONCLUSION
The record in this case does not establish a violation ofNjonge's public trial
right. We decline to overrule well-settled precedent holding that a defendant may
raise a public trial claim for the first time on appeal and therefore address the
merits ofNjonge's claim. Njonge has failed to show, however, that the trial court
completely closed the courtroom during any portion of voir dire. Further, the trial
court acted well within its discretion by excluding a family member of the victim
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State v. Njonge (Joseph Njuguna), 86072-6
who would be testifying and by disallowing media to film voir dire. Finding no
public trial violation, we reverse the Court of Appeals. We remand this case to that
court to consider Njonge's remaining claims of error upon which we did not grant
review.
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State v. Njonge (Joseph Njuguna), 86072-6
WE CONCUR:
17
State v. Njonge (Joseph Njuguna)
(Wiggins, J., concurring in result)
No. 86072-6
WIGGINS, J. (concurring in result)-! concur in the majority's resolution of this
case but disagree with the majority's reasoning. As recent cases demonstrate,
labeling all public trial errors as structural is harmful and incorrect. See State v. Smith,
No. 85809-8, slip op. at 8-14 (concurrence in result) (Wash. Sept. 25, 2014). While
some egregious closures may fall into the class of errors we deem structural, not all
public trial violations are of the same magnitude. If the error is not structural, I would
require a defendant to object at trial or to show prejudice, as required by our Rules of
Appellate Procedure. See RAP 2.5(a)(3).
Here, the errors were not so egregious as to require automatic reversal. Joseph
Njonge claims public trial violations because space was limited in the courtroom, a
family member of the victim was excluded, and members of the media could not film
proceedings. But there is no evidence that any of these errors rendered the trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence. See
State v. Momah, 167 Wash. 2d 140, 149, 217 P.3d 321 (2009). In addition, Njonge failed
to object to the alleged closures at trial and, on appeal, he has given us no reason to
believe that the closures had any practical and identifiable consequences on the trial
of his case. Accordingly, I would reverse the Court of Appeals.
No. 86072-6 (Wiggins, J., concurring in result)
I would also reiterate that requiring an objection in most cases has the benefit
of developing an adequate record for appeal. See Smith, slip op. at 16 (concurrence
in result). As to Njonge's first claim, the majority holds that the record is ambiguous
as to whether the court excluded members of the public from the courtroom. Majority
at 11. The majority reasons that while it is possible that observers were excluded, an
equally reasonable inference from the record is that the court sought to accommodate
additional observers, was unable to do so initially, and eventually admitted them as
space became available. /d.
While I agree that the record is inconclusive, a timely objection would have
clarified the record by prompting the trial court to state whether or not the courtroom
was closed to the public. 1 An objection by a party provides a forceful reminder that a
Bone-C/ub2 analysis and an adequate record are both required. In addition, requiring
an objection properly acknowledges that it is the duty of the parties to raise any
objection and to establish a record of closure, thereby enabling adequate and full
review on appeal.
1
In State v. O'Hara, 167 Wash. 2d 91, 99, 217 P.3d 756 (2009), this court held that to raise a
claim for the first time on appeal, the defendant must supply a record sufficient to determine
the merits of the claim. If the record is incomplete, RAP 9.3, 9.4, 9.9, and 9.10 allow the
parties to re-create a report of the proceedings necessary for the resolution of claims on
appeal. A defendant asserting violation of his public trial rights must show that a closure
occurred. State v. Jasper, 174 Wash. 2d 96, 121-24,271 P.3d 876 (2012). Here, as in all of the
recent public trial cases we have decided, there was no objection and the defendant has not
re-created the record to establish closure.
2 State v. Bone-Club, 128 Wash. 2d 254, 906 P.2d 325 (1995).
2
No. 86072-6 (Wiggins, J., concurring' in result)
For these reasons, I concur. in result.
3
State v. Njonge, No. 86072-6 (Gonzalez, J. concurring)
No. 86072-6
GONZALEZ, J. (concurring)-! concur. Joseph Njonge had the burden of
establishing the error he complained of occurred. He has not met this burden. While I
join the majority in recognizing we have already held public trial error can be raised
for the first time on review, I concur with Justice Wiggins that our constitution does
not make all violations of our open public trial jurisprudence per se reversible error.
State v. Njonge, No. 86072-6 (Gonzalez, J. concurring)
2