State Of Washington v. Anthony Parks

FILED
OCT 29,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 26476-9-111
) Consol. wi No. 27294-0-111
Respondent, )
)
v. )
)
ANTHONY PARKS, ) PUBLISHED OPINION
)
Appellant. )
)
)
In re Personal Restraint Petition of: )
)
ANTHONY PARKS, )
)
Petitioner. )
BROWN, J. - Anthony Parks appeals his second degree rape conviction as a
lesser included offense of first degree rape. He contends his right to a public trial was
violated when the trial court swore in the venire in the jury assembly room. In his
statement of additional grounds for review (SAG), Mr. Parks alleges the testimony did
not fit the charged crime. In his consolidated personal restraint petition (PRP), he
alleges error in instructing on the lesser included offense. We affirm and dismiss Mr.
Parks' PRP.
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FACTS
On the evening of March 26,2007, J.M. called the police to report she had been
raped. J.M. told the responding police officer Trevor Nollmeyer the man who raped her
had stolen some money and condoms from her immediately after the rape. During
Officer Nollmeyer's interview, J.M. noticed Mr. Parks riding by on a bicycle and told
Officer Nollmeyer that bicyclist was the rapist. Officer Nollmeyer brought J.M. to the
hospital. Mr. Parks was arrested and charged with first degree rape. 1
Before voir dire, the court apparently2 swore in the venire and gave the venire
questionnaires in the jury assembly room because the venire would not fit in the
courtroom. Mr. Parks agreed to the process. Nothing in the record shows whether the
door to the jury assembly room was open or closed during this process or if any
members of the press or public requested or were denied access to the process.
General voir dire then occurred in open court, and the juror's oath was administered in
open court.
At trial, J.M. testified Mr. Parks walked up to her on the street and asked if she
was working. After she answered no, he grabbed her, threatened to hurt her if she said
1 Mr. Parks was charged and acquitted of first degree robbery and the lesser
included offense of second degree robbery.
2 The sole indication of this in the record is the following statement by the court:
There is a large jury panel. We probably can't get them all in the
courtroom at anyone time. And I would propose that - I would ask if you
have any objection to me swearing the jury in the jury assembly room and
handing them a questionnaire regarding their history of involvement in
sexual abuse .... (Pause in proceeding.)
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anything, and pulled her up a nearby driveway. J.M. testified Mr. Parks held a six-inch
butcher knife to her throat, but she pushed it away, cutting herself. Once in a secluded
area, Mr. Parks threw her down, pulled her pants down with his foot, and told her he
would kill her if she moved. He then raped her, again threatened her, took money and
condoms from her purse, and left.
Emergency room nurse Jennifer Sanford and Dr. Tiffany Kuehl testified. Ms.
Sanford examined J.M. at the hospital. She noted J.M. had a cut on her hand and
bruising to her ankle and leg. Dr. Kuehl's examination revealed abdominal tenderness
and bruising, tenderness and physical debris in the vaginal area, bruising on J.M.'s right
leg and ankle, and a cut on J.M.'s left hand.
During the State's direct examination, Dr. Kuehl testified her medical findings
were consistent with forcible intercourse. Mr. Parks testified he had approached J.M.
that night. J.M. led him to believe she was a working prostitute, and they engaged in
consensual sex in exchange for $30. He denied having a knife. No knife was ever
found.
The State proposed instructing the jury on second degree rape as well as on the
charged crime of first degree rape. Over Mr. Parks' objection, the court submitted the
lesser included offense instruction to the jury.
Report of Proceedings (RP) at 1.
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The jury found Mr. Parks not guilty of first degree rape but guilty of the lesser
included offense of second degree rape. Mr. Parks appealed. 3
ANALYSIS
A Public Trial
The issue is whether the trial court violated Mr. Parks' right to a public trial by
swearing in the venire in the jury assembly room. He contends the court impermissibly
closed a portion of "jury selection" when it swore in the venire in the jury assembly room
not accessible to the public without conducting a Bone-Club 4 analysis.
A criminal defendant has a right to a public trial as guaranteed by both the
federal Constitution and the Washington Constitution. U.S. CONST. amend. VI; WASH.
CONST. art. I, § 22. Defendants can raise claims of public trial rights violations for the
first time on appeal. 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 [Bone-Club test] supports closure of the courtroom." State v. Miller, 184
Wn. App. 637,641,338 P.3d 873 (2014). We review de novo whether a courtroom
closure violated a defendant's right to a public trial. Id. at 641-42.
In analyzing an alleged public trial violation, we must first determine whether the
proceeding at issue implicates the right. Id. at 642. While the public trial right has been
extended to pretrial phases such as suppression hearings, hearings on motions to
3 This court stayed Mr. Parks' appeal to await Supreme Court public trial
decisions. The parties then filed supplemental briefing.
4 State v. Bone-Club, 128 Wn.2d 254,258-59,906 P.2d 325 (1995).
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,
1
1 sever, and voir dire, "not every interaction between the court, counsel, and defendants
j will implicate the right to a public trial or constitute a closure if closed to the public."
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I State v. Sublett, 176 Wash. 2d 58, 71,292 P.3d 715 (2012); see State v. Njonge, 181
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j
Wn.2d 546,553,334 P.3d 1068 (2014). A defendant asserting a violation of his public
trial rights bears the burden of showing a closure occurred. Njonge, 181 Wash. 2d at 556.
Courts employ a two-step process to determine whether a court closure occurred
implicating the public trial right. Miller, 184 Wash. App. at 642. In the first step, we
"consider whether the particular proceeding at issue 'falls within a category of
proceedings that [the Washington] Supreme Court has already acknowledged
implicates a defendant's public trial right.'" Id. (quoting State v. Wilson, 174 Wn. App.
328,337,298 P.3d 148 (2013)). If not, then we use the experience and logic test to
determine whether a proceeding implicates the right. Id. Mr. Parks' public trial
contention fails because: (1) he has not demonstrated a closure occurred, (2) such
action at issue is not within the category of proceedings the Washington Supreme Court
has already acknowledged implicates the public trial right, and (3) the court's action
does not satisfy the experience and logic test.
Preliminarily, we cannot definitively say Mr. Parks showed a closure occurred.
We "will not, for the purpose of finding reversible error, presume the existence of facts
as to which the record is silent." State v. Jasper, 174 Wn.2d 96,124,271 P.3d 876
(2012) (quotation omitted). On this record, nothing shows spectators were totally
excluded from the swearing on of the venire. Nothing shows whether the door to the
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jury assembly room was open or closed. However, without deciding whether a closure
occurred, Mr. Parks' public trial right was still not violated, as detailed below.
Swearing in of a venire is not yet acknowledged as implicating a defendant's
public trial right. While the Washington Supreme Court has repeatedly held the public
trial right applies to jury selection, mere labeling of a proceeding is not determinative.
State v. Slert, 181 Wash. 2d 598, 604, 334 P.3d 1088 (2014). Existing Washington case
law addresses the public trial right in the context of a specific component of jury
selection-voir dire. Wilson, 174 Wash. App. at 228. And the Washington Supreme
Court's interchangeable use of "jury selection" and "voir dire" has been viewed as
"inadvertent and not as evincing the Court's intent to treat these two terms as
synonymous for precedential purposes." Wilson, 174 Wash. App. at 338-39; see also
Siert, 181 Wash. 2d at 605. Thus, whether swearing in a venire in a jury assembly room
implicates a defendant's public trial right is one of first impression.
Application of the experience and logic test shows swearing in the venire does
not implicate the public trial right. Under this test, appellate courts must 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)." Miller, 184
Wash. App. at 644. It is solely when both prongs are answered affirmatively does the
public trial right attach. Id.
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In analyzing the experience prong, Mr. Parks does not cite to, and we could not
find, any case holding (1) swearing in a venire has historically been open to the public
or (2) the public trial right attaches to any component of jury selection that does not.
involve "voir dire" or a similar jury selection proceeding involving the exercise of
peremptory challenges and for cause juror excusals. It is debatable whether swearing
in a venire constitutes a part of "jury selection." In the absence of a record otherwise,
the trial court presumably gave the advance oral instruction before voir dire as seen in
\ 11 Washington Practice, Washington Pattern Jury Instructions: Criminal 1.01 (2014).
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The notes on the use of this instruction state it is to be read before the jury is selected
and contains basic educational information the venire needs to know before voir dire
begins. Even if it the giving of such an instruction is considered part of jury selection, it
is more analogous to an administrative component of the jury selection process to which
the public trial right does not attach. See, e.g., Wilson, 174 Wash. App. at 342-47 (finding
the experience prong not satisfied where the court engaged in the administrative
component of the jury selection process when the bailiff excused two ill jurors before
voir dire commenced).
Likewise. Mr. Parks cannot satisfy the logic prong. When considering this prong,
courts should consider "the values served by open courts." Sublett, 176 Wash. 2d at 74.
Mr. Parks has not shown (1) public access plays a significant positive role in the
functioning of the swearing in a venire, (2) swearing in a venire is a proceeding similar
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to the trial itself, or (3) openness during swearing in would enhance the basic fairness of
his trial and the appearance offairness. 5 See Wilson, 174 Wash. App. at 346.
B. SAG
In both his SAG and consolidated PRP, Mr. Parks argues J.M.'s testimony did
not match the crime of second degree rape. 6 Mr. Parks questions whether the court
erred in instructing the jury on second degree rape. Thus, our concern is whether the
trial court erred in instructing the jury on the lesser included offense of second degree
rape where the facts do not support the instruction.
A two-prong test is used for determining whether a lesser included offense
instruction should be given: (1) "First, each of the elements of the lesser included
offense must be a necessary element of the offense charged," and (2) "the evidence in
the case must support an inference that the lesser crime was committed." State v.
Workman, 90 Wash. 2d 443, 447-48,584 P.2d 382 (1978). Mr. Parks solely challenges
the second prong.
Under the Workman factual prong, "there must be some affirmative proof that the
defendant committed only the lesser crime." State v. Brown, 127 Wn.2d 749,754,903
P.2d 459 (1995). "It is not enough that the jury might simply disbelieve the State's
5 The State argues, in the alternative, Mr. Parks' failure to object at trial prohibits
review under RAP 2.5(a). However, this argument was rejected in Njonge, 181 Wash. 2d
at 554-55.
6 Because the argument raised in his PRP duplicates his direct appeal, we
discuss solely Mr. Parks' SAG contention without need to separately address his PRP.
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evidence." State v. Fowler, 114 Wash. 2d 59, 67, 785 P.2d 808 (1990), overruled on other
grounds by State v. Blair, 117 Wn.2d 479,816 P.2d 718 (1991). Mr. Parks was charged
with first degree rape; the elements of first degree rape include engaging in sexual
intercourse with a person by forcible compulsion and using or threatening to use a
deadly weapon. RCW 9A.44.040. The elements of second degree rape include sexual
intercourse with another by forcible compulsion. RCW 9A.44.050. Second degree rape
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does not require the State to prove the use or threatened use of a deadly weapon.
RCW 9A.44.050.
In Brown, the defendant was convicted of the lesser included offense of second
degree rape. Brown, 127 Wash. 2d at 753-54. The defendant argued, and the
Washington Supreme Court agreed, neither party produced affirmative evidence he
committed solely second degree rape. Id. at 754-56. The victim testified the defendant
and three other men forced her to have sexual intercourse and the defendant held a
gun on her at some point. Id. at 752. On the other hand, the defendant testified the sex
was consensual in exchange for money. Id. at 753. The court of appeals upheld the
conviction, finding affirmative evidence the defendant committed only second degree
rape where the jury could have found no gun was used because there was evidence
tending to impeach her claim a gun was used. Id. at 755. The Supreme Court
disagreed, stating "Impeachment evidence that serves only to discredit the State's
witness but does not itself establish that only the lesser crime was committed cannot
satisfy the factual prong of Workman." Id. The court also disagreed with the State's
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contention some other form of forcible compulsion was used to make the victim initially
submit to the rape because the gun was not produced until late in the rape. Id. at 755­
56.
On the surface, Mr. Parks' case looks similar to Brown. J.M. testified Mr. Parks
forced her to have sexual intercourse and he held a knife to her in order to get her to
walk into a secluded area. Mr. Parks testified the sex was consensual for money. He
contends no affirmative evidence supports the conclusion he raped J.M. but did not use
a deadly weapon. But unlike in Brown, affirmative evidence shows Mr. Parks used
forcible compulsion to rape J.M. Ms. Sanford testified about the bruising she saw on
J.M.'s leg and ankle. Dr. Kuehl testified about bruising and tenderness on J.M.'s lower
body and genital area. The doctor affirmatively answered the injuries were consistent
with forcible intercourse. When viewed most favorably to the State, this evidence
sufficiently evidence supports an inference solely the lesser crime was committed. See
State v. Fernandez-Medina, 141 Wash. 2d 448, 455-56,6 P.3d 1150 (2000) {when
applying the factual prong, an appellate court should determine if the evidence, when
viewed in the light most favorable to the party requesting the instruction, was sufficient
to support the instruction}. Therefore, we conclude the trial court did not err in
instructing on the lesser included offense of second degree rape.
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Affirmed; Mr. Parks' PRP is dismissed.
Brown, J.
WE CONCUR:
::hLhw"CJ I~
Siddoway, C.J. Lawrence-Berrey, J.
11