State v. Slert

fl Kenneth Slert has been tried and convicted three times for the murder of John Benson. His first two convictions were reversed. In his third trial, prospective jurors were given a questionnaire designed to determine if any of them had heard about the two prior trials. We are asked today to decide whether a pre-voir-dire in-chambers discussion of their answers and the dismissal of four prospective jurors for outside knowledge of the case violated the open public trials provisions of the Washington State Constitution. Wash. Const, art. I, § 10. On this record, we find no error.

Facts

¶2 On Sunday, October 22, 2000, Slert set up a hunting camp in Lewis County near Mount Rainier. Benson and his son had already set up a hunting campsite nearby. After his son went home, Benson drove his truck to Slert’s campsite. According to Slert, Benson invited him into the truck to talk *601and they shared shots of whiskey. Less than an hour later, Slert shot Benson twice at short range, once in the head and once in the neck, killing him.

¶3 The next day, Park Ranger Uwe Nehring pulled over on a forest service road to allow Slert’s powder blue Volkswagen Beetle pass him. Instead, the Beetle stopped and Slert told Nehring that he had shot and killed someone in his campsite the night before. Nehring found guns, drugs, and alcohol in Slert’s car and called for backup. Slert cooperated and guided park rangers and sheriff deputies to his campsite.

¶4 Slert was convicted of murdering Benson in two separate trials before the one on appeal before us today. His first conviction was reversed for instructional error and ineffective assistance of counsel. State v. Slert, noted at 128 Wn. App. 1069, 2005 WL 1870661, 2005 Wash. App. LEXIS 1972. His second conviction was reversed on the trial judge’s failure to recuse himself, an improper self-defense instruction, and ineffective assistance of counsel. State v. Slert, noted at 149 Wn. App. 1043, 2009 WL 924893, 2009 Wash. App. LEXIS 806. Prior to the third trial, the defense and prosecution discussed how to guard against a panel member “blurt [ing] out, ‘Oh, yeah, I read about that case and that guy should be hanging.’” Verbatim Report of Proceedings (VRP) (Jan. 6, 2010) at 3-4. To avoid potential taint, several weeks before trial, defense counsel proposed a questionnaire to screen potential jurors. Among other things, the two page questionnaire noted that “[t]here have been a number of prior proceedings in this case which were reported by both the newspapers and the radio, since October 2000 and most recently in late 2009” and asked jurors what, if anything, they had heard about them. Clerk’s Papers (CP) at 360-61. Slert’s counsel twice asked the judge to question potential jurors in chambers if their answers suggested they had outside knowledge of the case. The judge declined. The completed questionnaires were not made part of the record.

*602¶5 On the first morning scheduled for Slert’s trial, two panels of potential jurors were given the questionnaire. The record does not reflect whether they were sworn in first. Because of the large number of jurors called, one panel completed the questionnaire in the jury assembly room and the other in the courtroom.1 Counsel and the judge reviewed the completed questionnaires in chambers and agreed to dismiss 4 jurors based simply on their answers. The record suggests that Slert was not present during this in-chambers conference. Afterward, the judge went on the record in the courtroom and, in Slert’s presence, stated that “I have already, based on the answers, after consultation with counsel, excused 4 jurors.” 1 VRP (Jan. 25, 2010) at 5. On the record, and with the parties’ agreement, the judge dismissed another potential juror for cause without questioning the juror on the record. Fourteen jurors who said that they had heard of the case were brought in individually, given an oath or affirmation, and questioned about their answers. Three more were dismissed for cause based on their individual voir dires. When individual questioning was complete, the remaining 40 potential jurors were brought into the courtroom and given an oath or affirmation. After about two hours of voir dire in open court with all potential jurors present, a jury was sworn in to try the case.

f 6 The jury found Slert guilty of second degree murder while armed with a firearm. Slert was sentenced to 280 months’ confinement. The Court of Appeals reversed on two grounds: (1) that the trial court had violated the public trial guaranties of the Washington constitution and (2) that the court violated Slert’s right to be present by dismissing jurors in chambers. State v. Slert, 169 Wn. App. 766, 769, 282 P.3d 101 (2012), review granted, 176 Wn.2d 1031, 299 P.3d 20 (2013). We granted review “only on the public trial *603issue.” Order Granting Review, State v. Slert, No. 87844-7, at 1 (Wash. Apr. 8, 2013).

Analysis

f 7 Only questions of law are before the court. Our review is de novo. Dreiling v. Jain, 151 Wn.2d 900, 908, 93 P.3d 861 (2004) (citing Rivett v. City of Tacoma, 123 Wn.2d 573, 578, 870 P.2d 299 (1994)).

1. Jury Questionnaires and Open Courts

¶8 “Justice in all cases shall be administered openly.” Wash. Const, art. I, § 10. Our constitution flatly prohibits secret tribunals and Star Chamber justice. See generally State v. Easterling, 157 Wn.2d 167, 179, 137 P.3d 825 (2006) (citing Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993)); State v. Coe, 101 Wn.2d 364, 383-84, 679 P.2d 353 (1984). “A public trial is a core safeguard in our system of justice,” and violations of article I, section 10 are structural error and can be raised for the first time on appeal. State v. Wise, 176 Wn.2d 1, 5, 9, 288 P.3d 1113 (2012) (citing State v. Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005)).

¶9 Justice shall be administered openly, “[b]ut not 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.” State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012) (plurality opinion). While open public trial rights are fixed stars in our constitutional firmament, they do not shine alone. The trial judge has both the inherent authority and statutory “power to preserve and enforce order in the courtroom and to provide for the orderly conduct of its proceedings.” State v. Lormor, 172 Wn.2d 85, 93-94, 257 P.3d 624 (2011) (citing RCW 2.28.010). This includes the authority, when appropriate, to seal the courtroom or take matters into chambers for discussion with counsel. E.g., Sublett, 176 Wn.2d at 75-76 (recognizing that the trial judge has the authority to discuss jury instructions and jury questionnaires in chambers without *604formally closing the proceedings on the record first). The defendant’s right to a fair and speedy trial, the potential jurors’ right to privacy, the judge’s obligation to provide a safe and orderly courtroom, and many other considerations may justify a courtroom closure. Not all arguable courtroom closures require satisfaction of the five factor test established in State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

¶10 We have adopted the United States Supreme Court’s “logic and experience” test for determining when public trial rights are implicated by a particular alleged closure. Sublett, 176 Wn.2d at 73 (lead opinion), 94 (Madsen, C.J., concurring), 136 (Stephens, J., concurring); see also id. at 73-74 (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press II)). As we explained:

The first part of the test, the experience prong, asks “whether the place and process have historically been open to the press and general public.” Press II, 478 U.S. at 8. The logic prong asks “whether public access plays a significant positive role in the functioning of the particular process in question.” Id. If the answer to both is yes, the public trial right attaches and the Waller [a. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)] or Bone-Club factors must be considered before the proceeding may be closed to the public. Press II, 478 U.S. at 7-8.

Sublett, 176 Wn.2d at 73 (footnote omitted). Trial counsel and the courts below did not have the benefit of our Sublett opinion.

¶11 Slert argues that there is no need to apply the experience and logic test “because it is well-settled that the public trial right applies” to jury selection. Resp’t’s Suppl. Br. at 8 (citing Wise, 176 Wn.2d at 12 n.4; In re Pers. Restraint of Morris, 176 Wn.2d 157, 174, 288 P.3d 1140 (2012) (Chambers, J., concurring)). We respectfully disagree with this characterization of our case law. First, the mere label of a proceeding is not determinative. Sublett, 176 Wn.2d at 72-73. Second, it is not at all clear that this proceeding is substan*605tially similar to the jury selection before us in Wise and Morris. As the Court of Appeals recently observed:

[EJxisting case law does not hold that a defendant’s public trial right applies to every component of the broad “jury selection” process (which process includes the initial summons and administrative culling of prospective jurors from the general adult public and other preliminary administrative processes). Rather, existing case law addresses application of the public trial right related only to a specific component of jury selection — i.e., the “voir dire” of prospective jurors who form the venire (comprising those who respond to the court’s initial jury summons and who are not subsequently excused administratively). Thus, whether pretrial administrative juror ex-cusáis implicate a defendant’s public trial right is one of first impression.

State v. Wilson, 174 Wn. App. 328, 338, 298 P.3d 148 (2013).2 We agree. Whether this portion of jury selection raises public trial rights has not been settled by cases where jurors were taken into chambers after being sworn in and after formal voir dire had begun. Thus application of the experience and logic test is called for.

¶12 The experience prong asks “ ‘whether the place and process have historically been open to the press and general public.’ ” Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). A judge’s chambers is not traditionally open to the public; voir dire is. See, e.g., 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)). But based on the record, it does not appear that voir dire had begun. Under our rules, “[t]he judge shall initiate the voir dire examination by identifying the parties and their respective counsel and by briefly outlining the nature of the case.” CrR 6.4(b). Nothing *606in this record suggests that “initiation” under the rule had occurred here before the questionnaires were completed or reviewed.

¶13 We could find no cases, and none were brought to our attention by counsel, that suggest examination of jury questionnaires is traditionally performed before the public. Accord Wilson, 174 Wn. App. at 342-44 (finding no tradition of public access to pre-voir-dire portions of jury selection). In a somewhat similar case, we found no closure when potential juror questionnaires were sealed after voir dire. State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159 (2013) (lead opinion). We observed:

[t]he questionnaires were completed prior to voir dire and utilized by the attorneys as a “screening tool.” This facilitated the process by helping the attorneys identify which venire members would be questioned individually in open court and what questions to ask, if any. During general and individual voir dire, the judge, prosecutor, and defense attorneys, including [defendant’s] counsel, questioned venire members in order to determine their ability to sit as an impartial juror. At most, the questionnaires provided the attorneys and court with a framework for that questioning.

Id.; see also id. at 457 (Stephens, J., concurring); accord In re Pers. Restraint of Yates, 177 Wn.2d 1, 30, 296 P.3d 872 (2013). These observations apply here. Further, we note that in the federal system, jury questionnaires like those before us have not been traditionally subject to public review and discussion. Federal circuit courts have approved of judges dismissing jurors sua sponte for cause based on their answers to written questionnaires. Nothing in those cases suggests that the judge considered the questionnaires in open court before dismissing the potential jurors. See, e.g., United States v. Spriggs, 322 U.S. App. D.C. 217, 102 F.3d 1245, 1252 (1996); United States v. Paradies, 98 F.3d *6071266, 1277 (11th Cir. 1996).3 We conclude that based on the experience prong, this in-chambers discussion does not raise open public court concerns.

¶14 The logic prong asks “ ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ” Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). Again, neither party has called a case on point to our attention, but it appears public access would have little role, positive or negative, on review of questionnaires to screen out those with prior prejudicial knowledge of the case. Questioning the jurors about their disqualifying knowledge in open court in front of the other jurors could have been potentially devastating to Slert’s right to a fair trial. At a minimum, it is a waste of time to question potential jurors individually while everyone else waits if the parties and the court agree the potential juror is disqualified because of prejudicial knowledge of the case. Logic does not suggest conducting this review in public would play a significant positive role. Accord Wilson, 174 Wn. App. at 346 (finding public access to bailiff’s decision to dismiss jurors for illness-related reasons pre-voir-dire would not serve a positive role).

¶15 Analogously, it is not an open public courts violation to discuss jury instructions and questions from a deliberating jury in chambers. Sublett, 176 Wn.2d at 71-72 (jury questions), 75 (jury instructions). Historically, these discussions have been held in chambers. Id. at 75. Initial discussions of jury instructions have often been held informally, and as we noted in Sublett, we have found no evidence that has been held to raise open courts concerns. Id. at 75-76. Like here, these informal proceedings are often a prelude to a formal process, on the record and without the jury present, to allow any party to object and to create a record *608for review. Id. (citing Schmidt v. Cornerstone Invs., Inc., 115 Wn.2d 148, 162-63, 795 P.2d 1143 (1990)).4

¶16 Slert has not shown there was a closure under the experience and logic test. We recognize that there may be cases where similar discussions in chambers might implicate the public trial right. But “[t]he party presenting an issue for review has the burden of providing an adequate record to establish such error.” State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012) (citing State v. Wade, 138 Wn.2d 460, 464, 979 P.2d 850 (1999)). In this case, the record Slert provided does not establish that the two potential jury panels had been sworn in, whether voir dire had been initiated under CrR 6.4(b), who moved to take the conversation into chambers, whether the trial court invited comment from the courtroom, what specifically was discussed in chambers, or many other facts that could usefully bear on our analysis. The parties designated this record long before Sublett was announced, and we do not fault them for not recognizing additional information would be helpful to our application of recently announced case law to this case. However, we note that in the wake of Sublett, counsel for either side could have sought that information from the participants and moved to supplement the record under RAP 9.10 or 9.11. In the absence of an adequate record, we will not infer that a trial judge violated the constitution. Sisouvanh, 175 Wn.2d at 619 (citing Wade, 138 Wn.2d at 464).

2. Justiciable Controversy

¶17 The Court of Appeals reversed Slert’s conviction on two grounds: “that the trial court violated Slert’s right to a public trial and his right to be present during critical stages of the proceedings.” Slert, 169 Wn. App. at 769. We granted *609review “only on the public trial issue.” Order Granting Review, No. 87844-7, at 1. Slert suggests that we should dismiss our review as improvidently granted. Resp’t’s Suppl. Br. at 4-6.

¶18 Perhaps given its decision to reverse on the public trial rights issue, the Court of Appeals did not complete the “right to be present” analysis. We will not reverse on a violation of the defendant’s right to be present if we are convinced, beyond a reasonable doubt, that the error was harmless. State v. Irby, 170 Wn.2d 874, 885-86, 246 P.3d 796 (2011). Accordingly, we remand to the Court of Appeals to decide whether the violation of Slert’s right to be present is harmless beyond a reasonable doubt.5

Conclusion

¶19 Slert has not shown an open public trial rights violation. Accordingly, we reverse the Court of Appeals and remand back to that court for consideration of whether, standing alone, the violation of Slert’s right to be present warrants relief.

Madsen, C.J.; C. Johnson, J.; and J.M. Johnson, J. Pro Tem., concur.