State v. Slert

Van Deren, J.

¶1 Kenneth Slert appeals his third conviction for second degree murder. Slert argues that the trial court (1) violated Slert’s right to a public trial and his right to be present at all critical stages of trial when it held an in-chambers conference solely with counsel that resulted in the dismissal of four prospective jurors;¹ (2) violated his Fifth Amendment² privilege against self-incrimination when it admitted Slert’s pre-Miranda³ custodial statements, as well as his post-Miranda statements, because the State did not “scrupulously honor” his invocation of his right to remain silent; and (3) refused to suppress evidence obtained when the police conducted a warrantless search of Slert’s car and campsite and detained him for five hours at the scene of the shooting in the remote woodland area before arresting him. We remand for a new trial based on violation of the public trial right but affirm the trial court’s evidentiary rulings should those issues arise on remand.

FACTS

¶2 We have recited the facts of this case in our previous opinions,⁴ thus we repeat only those facts pertinent to the issues Slert raises in this appeal. In the published portion of the opinion, the facts relate only to the dismissal of four jurors following an in-chambers conference between the trial court and counsel without Slert being present. In the unpublished portion, we relate facts pertinent to the issues as we address them.

Public Trial Right and Right To Be Present

¶3 Slert argues that the trial court violated both his and the public’s right to an open and public trial by excusing four potential jurors in an in-chambers meeting with counsel but without first conducting a courtroom-closure analysis under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).⁵ The State responds that this in-chambers meeting and decisions made during it did not violate the public trial right and did not rise to the level of a courtroom closure requiring a Bone-Club analysis because (1) the meeting was not part of voir dire and (2) the meeting was purely ministerial and involved only legal matters and undisputed facts.

¶4 Under the facts of this case and in the absence of any evidence about why the four jurors were dismissed in a nonpublic forum and outside Slert’s presence, we hold that the trial court violated Slert’s right to a public trial and his right to be present during critical stages of the proceedings.⁶

¶5 At a pretrial hearing on January 6, 2010, in open court and with Slert present, Slert’s trial counsel (1) proposed a juror questionnaire that was designed to screen members of the jury pool who had heard about Slert’s previous two trials in order to prevent “taint [ing]” the jury pool with a loose comment from a prospective juror and (2) suggested in-chambers, individual questioning of jurors identified by counsel or the trial court after review of the completed questionnaires. Report of Proceedings (RP) (Jan. 6, 2010) at 4. The trial court stated that it would have the jury pool members fill out the questionnaires on the morning of January 25. Slert did not object to the questionnaire’s usage or the court’s preliminary discussions about jury selection procedures.

¶6 On January 21, the trial court held another pretrial hearing in Slert’s presence and in open court, during which the parties again discussed the juror questionnaire. The State asked that Slert’s proposed questionnaire refer to Slert’s previous trials as “proceeding^] ” rather than “trial [s]” so that the jury would not know there had been earlier verdicts in his case. RP (Jan. 21, 2010) at 3. Aside from this modification, the State accepted Slert’s proposed questionnaire in its entirety. Slert did not object to the word “proceeding[s]” or to the questionnaire’s general usage. RP (Jan. 21, 2010) at 3.

¶7 On the morning of January 25, the trial court gave prospective jurors copies of the questionnaire when they arrived for jury selection. The juror questionnaire had questions specific to Slert’s case and it dealt with publicity from Slert’s earlier trials. The juror questionnaire informed the jurors that (1) they were “under oath,” (2) their questionnaire responses were “confidential,” (3) the trial court would seal the questionnaires after jury selection, and (4) the questionnaires would “not be available for public inspection or use.”⁷ Clerk’s Papers (CP) at 360.

¶8 Apparently after the prospective jurors filled out and turned in their questionnaire answers, the trial court held a “[p] retrial conference ... in chambers” with counsel⁸ shortly before it went on the record on January 25. CP at 194 (emphasis added). Following the in-chambers conference, the trial court indicated on the record that it had previously conferred with both counsel and that the parties had mutually agreed to excuse four jurors from the jury venire based on their questionnaire responses. The trial court stated:

There are a couple other things. We have . . . the questionnaires that have been filled out. I have already, based on the [<questionnaire] answers, after consultation with counsel, excused jurors number 19, 36, and 49 from panel two[,] which is our primary panel[,] and I’ve excused juror number 15 from panel one, the alternate panel.

RP (Jan. 25, 2010) at 5 (emphasis added). Defense counsel indicated that the four jurors had been dismissed because their questionnaire answers had “indicated knowledge of [Slert’s] prior court trials.” RP (Jan. 25, 2010) at 11. The record is silent about the four dismissed jurors’ questionnaire responses or the specific knowledge of the four dismissed jurors. Slert was later present during general voir dire in open court after the trial court administered a verbal oath to the jurors.⁹

A. Standard of Review

¶9 Whether a violation of the public trial right exists is a question of law we review de novo. State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009), cert. denied, 131 S. Ct. 160 (2010). A criminal defendant has a right to a public trial under the federal and state constitutions. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011). Likewise, the public has a complementary right to open proceedings under the federal and state constitutions. Lormor, 172 Wn.2d at 91.

¶10 The public trial right applies to “ ‘the process of juror selection,’ which ‘is itself a matter of importance, not simply to the adversaries but to the criminal justice system.’ ” In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)); see also State v. Bennett, 168 Wn. App. 197, 204, 275 P.3d 1224 (2012) (public trial right encompasses “circumstances in which the public’s mere presence passively contributes to the fairness of the proceedings, such as deterring deviations from established procedures, reminding the officers of the court of the importance of their functions, and subjecting judges to the check of public scrutiny”).

B. In-Chambers Conference Part of Jury Selection

¶11 The State argues that the January 25 in-chambers conference, before the trial court went on the record, was not a part of jury selection. But, in State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), our Supreme Court recently addressed what portions of the proceedings constitute jury selection.

¶12 In Irby, prospective jurors filled out a questionnaire that was “ ‘designed to elicit information with respect to [their] qualifications to sit as a juror in [Irby’s] case’ ” and that expressly reminded the jurors that “filling out the questionnaire was ‘part of the jury selection process.’ ” 170 Wn.2d at 882 (emphasis omitted) (quoting Irby Clerk’s Papers at 1234). In a subsequent e-mail exchange between the trial court and counsel for both parties, they discussed 10 potential jurors — including 4 potential jurors who had indicated on their questionnaires that they had parents who had been murdered — and they agreed to dismiss 7 potential jurors for cause. Irby, 170 Wn.2d at 878, 884.

¶13 On review, our Supreme Court stated that “ ‘the work of empaneling the jury’ began . . . when jurors were sworn and completed their questionnaires.”Irby, 170 Wn.2d at 884. The Irby court distinguished the e-mail exchange from other types of conferences not implicating a defendant’s trial rights because the e-mail exchange “did not simply address the general qualifications of 10 potential jurors, but instead tested their fitness to serve as jurors in [Irby’s] particular case.” 170 Wn.2d at 882. Accordingly, the court held that the e-mail exchange was a portion of jury selection and that this exchange violated Irby’s right under the federal and state constitutions to be present at critical stages of his trial. Irby, 170 Wn.2d at 882, 884-85.

¶14 Here, as in Irby, the jurors were under oath when they completed the questionnaires and the questionnaires were specific to Slert’s case and dealt with publicity from Slert’s earlier trials and, thus, were “ ‘designed to elicit information with respect to [the jurors’] qualifications to sit’ ” as jurors in Slert’s particular case, as opposed to inquiring about the jurors’ general qualifications.¹⁰ 170 Wn.2d at 882 (quoting Irby Clerk’s Papers at 1234). Furthermore, the questionnaires informed the jurors that (1) they were “under oath,” (2) their answers to the questionnaires were “confidential,” (3) the trial court would seal the questionnaires after jury selection, and (4) the questionnaires would “not be available for public inspection or use”; thus, like the Irby questionnaires, filling out the questionnaires in this case was part of jury selection. CP at 360; Irby, 170 Wn.2d at 882.

¶15 Accordingly, the record reflects that the prospective jurors filled out questionnaires designed to determine their individual fitness for serving on Slert’s particular jury; the trial court then held an in-chambers and off-the-record conference with counsel for both parties; and, when the trial court subsequently went on the record in public, it announced that based on the questionnaire answers and after consulting with counsel, it had already dismissed four potential jurors. Furthermore, the trial court clerk’s minutes stated that the four jurors had been dismissed for cause and defense counsel confirmed that the four jurors had been dismissed because their questionnaire answers indicated knowledge of Slert’s previous trials. Because the record indicates that this in-chambers conference involved the dismissal¹¹ of four jurors for case-specific reasons based at least in part on the jury questionnaires, we hold that the in-chambers conference and the dismissal of the jurors were part of the jury selection process to which the public trial right applied.

¶16 We also hold that this in-chambers conference and resulting dismissal of jurors violated Slert’s right to be present during critical stages of the proceedings. The record indicates that only the trial judge and counsel were present when the jurors were dismissed, and there is no record showing that defense counsel consulted with Slert before agreeing to the dismissals. See Irby, 170 Wn.2d at 884 (stating “ ‘where . . . personal presence is necessary in point of law, the record must show the fact’ ” (alteration in original) (quoting Lewis v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed. 1011 (1892))).

C. Presley, Paumier, and Leyerle

¶17 We recognize that the public trial right is not absolute and a trial court may close the courtroom under certain circumstances. Momah, 167 Wn.2d at 148; State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009) (plurality opinion). To protect the public trial right and determine whether circumstances warrant a closure, Washington courts must apply the Bone-Club guidelines¹² and make specific findings on the record justifying a closure. Momah, 167 Wn.2d at 148-49.

¶18 The Washington Supreme Court has held that not all violations of the public trial right result in structural error requiring a new trial. Momah, 167 Wn.2d at 149-50. For example, it held in Momah that a defendant may make tactical choices to advance his own interests in a fair trial and, thus, in-chambers voir dire violating the public trial right did not require a new trial when the defendant affirmatively assented to, participated in, argued for the expansion of, and benefitted from the in-chambers voir dire. 167 Wn.2d at 153, 155-56.

¶19 But, as we have previously held, the United States Supreme Court’s decision applying the federal constitution in Presley v. Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010), sub silentio overruled our state Supreme Court’s decision in Momah and “resolve [d] any question about what a trial court must do before excluding the public from trial proceedings, including voir dire.” State v. Paumier, 155 Wn. App. 673, 685, 230 P.3d 212, review granted, 169 Wn.2d 1017 (2010); see also State v. Leyerle, 158 Wn. App. 474, 482, 486, 242 P.3d 921 (2010) (stating the same). Under our reading of Presley, “where the trial court fails to sua sponte consider reasonable alternatives [to closure] and fails to make the appropriate findings, the proper remedy is reversal of the defendant’s conviction.” Paumier, 155 Wn. App. at 685 (citing Presley, 558 U.S. at 215); see also Leyerle, 158 Wn. App. at 481 (stating the same).

¶20 Here, the trial court excluded the public from trial proceedings by holding a portion of jury selection in chambers, not in public. Because it failed sua sponte to consider reasonable alternatives to closure and failed to make appropriate findings supporting the closure, the closure violated Slert’s public trial rights and we reverse and remand for a new trial.

D. Momah and Strode

¶21 Although we adhere to our decisions in Paumier and Leyerle, in light of our Supreme Court’s grant of review in Paumier, we also address Slert’s public trial right claim under Momah and Strode, two decisions our Supreme Court issued the same day. We resolve this case on the issue of Slert’s right to a public trial, not the public’s right to the same. Accord State v. Bowen, 157 Wn. App. 821, 831, 239 P.3d 1114 (2010).

¶22 In Momah, our Supreme Court observed that unlike in previous public trial right cases, the trial court had, in some form, recognized and balanced Momah’s right to a public trial and his right to an impartial jury. 167 Wn.2d at 151-52; see also Strode, 167 Wn.2d at 233 (Fairhurst, J., concurring) (the record in Momah showed that the parties and the trial court knew that all proceedings were presumptively open and public).¹³

¶23 The court also observed that Momah had affirmatively assented to, participated in, argued for the expansion of, and benefitted from in-chambers voir dire. Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J., concurring) (the record in Momah showed an intentional waiver by the defendant of his public trial right). Finally, the record showed that the trial court and counsel discussed possible locations for the individual juror questioning, and the jury pool’s size and room availability played a part in choosing to conduct individual juror questioning in chambers. Strode, 167 Wn.2d at 232 (Fairhurst, J., concurring). Thus, in Momah, our Supreme Court held that the closure was not a structural error requiring reversal and remand for a new trial. 167 Wn.2d at 156.

¶24 In contrast, “the record in Strode contained no indication that the trial court held a Bone-Club hearing, considered the defendant’s right to a public trial, or balanced this right with competing interests before closing the courtroom.” Bowen, 157 Wn. App. at 832 (citing Strode, 167 Wn.2d at 224 (plurality opinion), 235 (Fairhurst, J., concurring)).

¶25 Applying these principles in Bowen, we reasoned:

[T]he circumstances in this case are more similar to those in Strode than those in Momah. Here, the trial court, not defense counsel, proposed individual in-chambers voir dire of jury pool members. Likewise, defense counsel did not actively participate in the in-chambers voir dire; the trial court judge asked all the questions and asked the attorneys only whether they wanted to inquire further or objected to the excusal of jurors. Furthermore, the record does not indicate circumstances requiring individual questioning of jurors in chambers, as opposed to another public location. Finally, although the record shows that the trial court considered Bowen’s right to an impartial jury, it contains no indication that either it or the parties considered his right to a public trial or explained that right to him. See Momah, 167 Wn.2d at 152 (defendant’s right to impartial jury and right to public trial are distinct from each other). Therefore, we cannot conclude that the trial court adequately safeguarded his public trial right or that he made deliberate, tactical choices precluding him from relief.

157 Wn. App. at 832-33. Accordingly, we held that the closure in Bowen constituted structural error requiring reversal and remand for a new trial. 157 Wn. App. at 833.

¶26 We conclude that the closure in this case is more similar to those in Strode and Bowen than the closure in Momah. Here, the record contains no indication that Slert’s counsel proposed the in-chambers portion of jury selection, only that he participated in it. The record contains no indication that circumstances required that this conference occur in chambers or that the trial court considered reasonable, public alternatives. Finally, the record contains no indication that either the trial court or the parties considered Slert’s public trial right or explained that right to him before agreeing to the dismissal of the four jurors. Accordingly, under Strode and Bowen, we hold that the closure in Slert’s case was structural error and requires reversal and remand for a new trial.¹⁴

¶27 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

Johanson, A.C.J., concurs.

1 Because we reverse Slert’s conviction and remand for a new trial on these issues, we address only the remaining issues raised by Slert that are likely to recur on remand.

2 U.S. Const. amend V.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

4 The State has tried Slert three times for the murder of John Benson, and each time a jury has convicted Slert of second degree murder. We reversed Slert’s first conviction, State v. Slert, noted at 128 Wn. App. 1069, 2005 WL 1870661, 2005 Wash. App. LEXIS 1972 (Slert I), and his second conviction, State v. Slert, noted at 149 Wn. App. 1043, 2009 WL 924893, 2009 Wash. App. LEXIS 806 (Slert II).

5 The record does not indicate that the trial court held this in-chambers conference with a court reporter present.

6 After oral argument in this case, we ordered the parties to address whether the trial court’s apparent use of jury questionnaires during the in-chambers meeting, coupled with excusing four jurors and the subsequent sealing of the questionnaires, violated either Slert’s or the public’s right to open and public trial proceedings. Also, because the parties did not designate the questionnaire or any of the completed questionnaires as part of the record on appeal, we ordered supplementation of the record with the juror questionnaires after oral argument. In response to our order, we learned that the trial court destroyed all of them at some point, apparently without notice to counsel. We also learned that neither counsel had a copy of the questionnaire and that the only copy or draft of the questionnaire remaining was in the trial court’s chambers’ files.

7 The record is silent regarding when the prospective jurors received the questionnaires on the morning of January 25, from whom the prospective jurors received the questionnaires, and when the trial court swore in the prospective jurors. The transcript of the proceedings states that at 9:30 am that morning, a panel of prospective jurors was seated in the courtroom and “still going through the questionnaires.” RP (Jan. 25, 2010) at 5. Because the jury selection process begins when jurors are sworn and are given questionnaires to complete, such proceedings should be conducted on the record to facilitate appellate review. See State v. Irby, 170 Wn.2d 874, 884, 246 P.3d 796 (2011).

8 Reference to the trial court’s pretrial conference is the first entry on the clerk’s minutes on January 25. At 10:49 am, the clerk’s minutes include a notation that the court was “[i]n session.” CP at 194. The minutes subsequently state that (1) the trial court read Slert his rights for trial at this time; (2) Slert acknowledged his rights; (3) panel two jurors 19, 36, 49 and panel one juror 15 were excused “for cause”; and (4) the parties questioned the 15 additional jurors individually in the courtroom. CP at 194.

9 The admonishment to the jurors before they filled out the questionnaire that they were “under oath” appears to indicate that this was a second oath administered before voir dire began in the open courtroom. CP at 360.

10 We note that the Irby court decided that the questionnaires did not deal merely with the jurors’ general qualifications because a defendant’s right to be present under the federal constitution attaches to proceedings where the defendant’s presence would not “ “be useless, or the benefit but a shadow.’ ” 170 Wn.2d at 881 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 US. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)). Thus, a defendant may contribute to his defense during jury selection by giving advice or suggestions to defense counsel or overruling counsel’s judgment altogether. Irby, 170 Wn.2d at 883.

We recently observed that because the defendant’s and public’s right to public and open proceedings and the defendant’s right to be present function differently, the public’s presence may contribute to the fairness of certain proceedings where the defendant’s presence may not. Bennett, 168 App. at 203-04. Accordingly, courts should exercise caution in applying legal doctrines addressing the public’s right to be present to the defendant’s public trial right, and vice versa, without regard for the underlying principles requiring the public and/or the defendant to be present during court proceedings. Because the questionnaires in this case fall squarely within Irby’s discussion of jury selection, a proceeding to which the defendant’s right to be present and the public trial right both apply, we do not reach whether a different public trial right analysis is required.

11 We respectfully disagree with the dissent’s characterization of the facts surrounding the in-chambers’ conference and the jurors’ dismissal and the dissent’s interpretation of the law applicable to this in-chambers conference. Additionally, the dissent argues that the actual dismissal of the jurors may have occurred during a courtroom side-bar discussion. Dissent at 786 n.26. But if a side-bar conference was used to dismiss jurors, the discussion would have involved dismissal of jurors for case-specific reasons and, thus, was a portion of jury selection held wrongfully outside Slert’s and the public’s purview.

12 These guidelines are:

“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 Wn.2d at 258-59 (alteration in original) (internal quotation marks omitted) (quoting Allied Daily Newspapers v. Bikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

13 As we observed in Bowen, 157 Wn. App. at 831 n.6:

In Momah, our Supreme Court rejected the defendant’s public trial right arguments that in-chambers voir dire of some jurors required reversal of his conviction and remand for a new trial. Momah, 167 Wn.2d at 156. In Strode, a plurality of the court reversed another defendant’s conviction on the same in-chambers voir dire issue. 167 Wn.2d at 231. In Strode’s concurring opinion, two justices of the court agreed with the plurality opinion result on different grounds. Strode, 167 Wn.2d at 236. In doing so, it identified additional facts in Momah that distinguished that case from Strode. Strode, 167 Wn.2d at 232-34 (Fairhurst, J., concurring). Thus, we cite to Strode for these facts in our discussion of Momah.

14 Slert also argues that the trial court’s sealing and subsequent destruction of the jury questionnaires violated both his right to a public trial and the public’s right to open proceedings under the state constitution. Because we reverse based on the in-chambers conference, we do not reach this issue. But, we note that the subsequent sealing of juror questionnaires used during in-chambers jury selection proceedings likely constitutes a closure implicating the defendant’s public trial right and the public’s right to open proceedings. See State v. Smith, 162 Wn. App. 833, 847-48, 262 P.3d 72 (2011) (stating that no closure requiring a Bone-Club analysis occurs when the defendant uses the “ ‘content of the questionnaires’ to question jurors ‘in open court, where the public could observe’ ” (quoting In re Pers. Restraint of Stockwell, 160 Wn. App. 172, 183, 248 P.3d 576 (2011) (Van Deren, J., concurring), mot. for discretionary review filed, No. 85669-9 (Wash. Mar. 2, 2011))), review denied, 173 Wn.2d 1007 (2012).

More importantly, the trial court’s ultimate destruction of the questionnaires eliminated our ability to ascertain their content and, thus, the nature of the matters discussed during the in-chambers conference. By far the better practice is to preserve questionnaires to facilitate potential appellate review.