FILED
SEPT. 24, 2013
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. 26964-7-III
Respondent, )
)
v. )
)
DAVID MORDECAI WHITMER, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, C.J. - David Whitmer was convicted of second degree robbery
following a failed shoplifting at the Moses Lake Wal-Mart store. Due to publicity about
similar incidents, some of the potential jurors thought they had heard about the case and
the court decided to question them separately in the jury room. Although prudent, this
action was erroneous and we are required to reverse the conviction and remand for a new
trial.
FACTS l
Mr. Whitmer was charged with second degree robbery and the matter was set for
jury trial. During jury selection, three of the jurors indicated in response to a general
Since we find the jury selection issue dispositive, there is no need to address the
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substantive facts of the case, nor do we discuss the other issues presented, including those
raised in the statement of additional grounds.
No. 26964-7-111
State v. Whitmer
question that they previously had heard about the case. The court indicated that it would
prefer to question the three jurors privately in the jury room. Counsel for both Mr.
Whitmer and the State agreed with the procedure. At the point where the court indicated
it was time for the State's counsel to start questioning the venire, the prosecutor asked to
approach. All counsel spoke with the court off the record. The judge then announced:
THE COURT: Before the attorneys start 1 do need to meet with Jurors
Number 27,29 and 40. We're going to meet with them in the jury room.
These are the jurors that said they'd heard about the case. And we do need
to speak to them. 1 can't tell you exactly how long it will last, but 1 expect
about ten minutes is how long this will take .. About ten minutes ..
So we'll be meeting in the jury room, counsel, here. If you'll go over
there.
We'll get right back with you, the rest of you.
Report of Proceedings, (Jan. 16,2008) at 76-77.
The three jurors were then individually brought into the room and questioned
about their knowledge of the case by the court and defense counseL Juror 29, a Wal-Mart
employee, was excused for cause by the agreement of the parties. At the conclusion of
this private voir dire, the court and counsel returned to the courtroom and group voir dire
commenced. Neither Juror 27 nor Juror 40 ultimately served on the paneL
The jury convicted Mr. Whitmer as charged. The court imposed a standard
range sentence. Mr. Whitmer timely appealed to this court. This court initially stayed
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No. 26964-7-111
State v. Whitmer
the appeal pending the results of the pending decisions in State v. Strode, 167 Wn.2d 222,
217 P.3d 310 (2009) and State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009). After
that first stay was lifted, a panel of this court stayed the case pending the decision in State
v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012). When the second stay was lifted, the case
was considered by a panel without oral argument.
ANALYSIS
The jury selection issue is dispositive. We conclude that the court closed the
courtroom without making an inquiry of the public as now required by our Supreme
Court. Accordingly, we reverse the conviction and remand for a new trial.
Art. I, § 22 of the Washington Constitution guarantees a criminal defendant a
right to a speedy public trial. 2 As relevant here, the public trial right requires that most
aspects of a trial, including jury selection, be conducted in the courtroom subject to
public scrutiny. Wise, 176 Wn.2d at 11-13; Momah, 167 Wn.2d at 148; State v.
Brightman, 155 Wn.2d 506, 515-16, 122 P.3d 150 (2005); In re Pers. Restraint of
Orange, 152 Wn.2d 795,804,100 P.3d 291 (2004). A courtroom can only be closed to
the public if the court first considers the five factor test set forth in State v. Bone-Club,
128 Wn.2d 254,258-59,906 P.2d 325 (1995). The defendant can raise this issue for the
2 Numerous cases discuss the history and meaning of this provision. We will not
belabor this opinion with a recitation of that history.
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No. 26964-7-111
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State v. Whitmer
!
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first time on appeal even if there was no objection to the procedure at trial. Brightman,
155 Wn.2d at 516-17. An error in closing the courtroom typically is considered structural
in nature and the defendant need not show prejudice. Wise, 176 Wn.2d at 13-14.
Among the Bone-Club factors is a requirement that the public be given an
opportunity to object before the closure. Bone-Club, 128 Wn.2d at 258. That was not
done here. Thus, we are required to reverse this conviction under Brightman unless some
reason exists that indicates structural error did not occur in this case. The prosecutor
presents two arguments suggesting that this is not the normal case.
First, the prosecutor argues that the jury room at use in this case was not closed
to the public at all because it had an entrance from the clerk's office rather than solely
from the courtroom and is commonly used by attorneys to discuss matters with their
clients. Resp't Suppl. Br. at 1-2. However, those facts are not in the record of this case,
probably for the understandable reason that there was no reason to make such a record in
view of the defendant's failure to object? Even then, it would not normally be a problem
for the prosecutor since it is the burden of the party claiming constitutional error to
3 RAP 9.11 creates a procedure for adding evidence on appeal that might have
application in this situation, and could particularly be useful when a case is on stay status.
Even if the stated facts were in the record of this case, however, they would be
insufficient without more.
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No. 26964-7-III
State v. Whitmer
establish the existence of the error in the record. See, e.g., State v. McFarland, 127
Wn.2d322, 333,899 P.2d 1251 (1995). That rule is reversed in this setting, though.
Brightman explained in this manner:
However, the Orange court defined the nature of the closure by looking
solely to the transcript ofthe trial court's ruling to determine the
presumptive effect of the closure order. The majority ultimately refused to
impose upon the defendant the burden of proving that the trial court's
ruling was carried out. Instead, "the very existence of the mandated order
create[d] a strong presumption that the order was carried out in accordance
with its drafting." Thus, once the plain language of the trial court's ruling
imposes a closure, the burden is on the State to overcome the strong
presumption that the courtroom was closed. Here, the State presents no
evidence to overcome the presumption that closure in fact occurred.
155 Wn.2d at 516 (emphasis added; footnote and citations omitted; italicized emphasis in
original).
Under this presumption, the prosecutor's argument fails. The court took the
three members of the venire individually to the jury room for the reason that it was
private. Nothing in the transcript suggests that anyone other than the trial judge, the
defendant, and counsel were present when each juror was interviewed. While the room
might normally be open to the public, we assume that when the jury is using the room,
the public cannot be present. It is difficult to imagine that the jury room would be open
to the public during trial, and certainly jury selection is a part of trial. Were the room
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No. 26964-7-III
State v. Whitmer
actually open to the public during jury selection, there undoubtedly would be other issues
presented for this appeal.
The prosecutor also attempts to analogize this case to Momah, the one instance
where our court has not found a voir dire closure to be structural error. As explained by
the court in Wi~e, Momah was unique because the trial court effectively considered all of
the Bone-Club factors on the record although it did not articulate that it was doing so.
Wise, 176 Wn.2d at 14-15. The defense also actively took part in the closure and argued
for extension of the closure due to the defendant's heightened need for information in a
case that had generated extensive publicity. Id. at 14.
This case is not Momah. Although defense counsel consented to the private
questioning and took part in it, he was not an organizer of the activity and did not seek to
expand the private questioning. More critically, the public was not made aware of its
right to object to the procedure. Id. at 15. Under these facts, the Momah exception is not
satisfied here.
Although we reverse the conviction, we do not fault the court or prosecutor. In
the more than five years since this case was tried, many dozens of opinions have issued
that provide greater clarity on this issue than existed at the time of trial. Indeed, the
Washington Supreme Court has granted review on ten more cases involving various
aspects ofthe public trial right in the past few months; many of those will be argued this
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No. 26964-7-111
State v. Whitmer
coming term. We cannot predict the future, but trial judges all know by now that when a
closure is anticipated, the Bone-Club factors must first be considered. While precisely
what actions will amount to a closure4 is still a murky area of the law, the prudent trial
judge may well be advised to make sure that all aspects of trial occur in the open
courtroom unless counsel expressly ask for some privacy, a request that should in many
instances trigger the Bone-Club analysis.
Reversed and remanded for trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Korsmo, C.J.
WE CONCUR:
Brown, J.
4 The newly adopted "experience and logic" test may give some guidance to the
trial bench. State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (2012).
7