Fl L E
IN CLERKS OFFICE
IUPREME COURT, STAtE O F - - - -
DATE APR 0 9 2015 J
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 90329-8
Petitioner, )
)
v. ) EnBanc
)
BENITO GOMEZ, )
)
Respondent. )
) Filed APR 0 9 2015
JOHNSON, J.-This case involves whether the trial court closed the
courtroom during trial in violation of the defendant's rights under article I, section 22
of the Washington Constitution. The Court of Appeals reversed Benito Gomez's
convictions for second degree murder and six counts of first degree assault on the
grounds that the trial judge effected an unconstitutional closure of the courtroom
during trial by his pretrial comment that the public would not be permitted to enter
the courtroom once the proceedings began. First, we disagree that the trial judge, by
mere virtue of making this remark, fully excluded the public from entering the
courtroom and, thus, we have no basis for finding a constitutional violation. Second,
even if we could presume the brief comment was enforced, this limitation to
State v. Gomez (Benito), No. 90329-8
courtroom entry does not constitute a closure. We reverse the Court of Appeals and
reinstate Gomez's conviction.
FACTS
Gomez was charged with first degree murder and six counts of first degree
assault after he fatally shot a rival gang member and fired his handgun at fleeing
rivals and residents of a nearby apartment building. Before swearing in the jury,
the court considered Gomez's change of venue motion, in which Gomez argued
that the heavy security in the courthouse would intimidate the jury and convey the
impression that Gomez was dangerous. In denying the motion, the court made a
few comments regarding the spectators of the proceedings: "This is a public
courthouse. Everyone in the public is entitled to appear in this courthouse for
appropriate matters, as either litigants or spectators or witnesses and in fact the
courtroom is rather full today of spectators concerning this particular case." 2
Verbatim Report ofProceedings (VRP) at 150.
The judge continued in a lengthy explanation of his ruling to deny the venue
change, and couched within that ruling, the judge made the comment that Gomez
contends closed the proceedings:
2
State v. Gomez (Benito), No. 90329-8
We continue to have rules of procedure where people have to be on
time for proceedings here. We do not allow people to come into the
courtroom after [it] is in session for not only security reasons but as
well as the distraction that that causes when people come in.
2 VRP at 153.
Gomez did not object to the judge's comment, and the trial continued for the
next three days. The record contains no indication as to whether the court took any
action to enforce the policy or whether any observers were actually excluded as a
result of the remark. The jury found Gomez guilty of the lesser-included crime of
second degree murder and six counts of first degree assault. Gomez appealed,
arguing for the first time that the trial court violated his public trial rights by not
allowing the public to enter once the proceedings began. The Court of Appeals
agreed, holding that the trial court improperly closed the courtroom without first
considering the factors set forth in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906
P.2d 325 (1995), and remanded for a new trial. State v. Gomez, noted at 180 Wn.
App. 1012 (2014). We granted review. State v. Gomez, 181 Wn.2d 1002, 332 P.3d
984 (2014).
ANALYSIS
Under Washington Constitution article I, section 22, criminal defendants
have the right to a public trial. Defendants can raise claims of public trial rights
violations for the first time on direct appeal, which we review de novo. We
3
State v. Gomez (Benito), No. 90329-8
consider these violations serious, falling into the category of constitutional error
that entitles the defendant to reversal of his conviction and a new trial without
requiring any showing of prejudice. State v. Wise, 176 Wn.2d 1, 288 P.3d 1113
(2012).
In a recent decision, we adopted a three-step framework for analyzing
whether a trial court violated the defendant's public trial right: we determine (1)
whether the portion of the proceeding at issue implicates the public trial right,
which we analyze using an "experience and logic" analysis, (2) whether there was
a closure of that proceeding, and (3) whether the closure was justified (did the
court conduct a Bone-Club analysis on the record prior to closing the proceeding?).
State v. Smith, 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014). In this case, neither
party disputes that the public trial right attaches to the regular proceedings and that
because the judge did not consider the Bone-Club factors, a closure of those
proceedings would not be justified, so steps (1) and (3) need no analysis. Only the
second step requires our review: whether the judge's comment alone effected an
actual closure of the courtroom during the trial. Our cases have largely used a case
by case approach in determining when a closure occurs, but we have established
some general guidelines.
4
State v. Gomez (Benito), No. 90329-8
A complete closure occurs "when the courtroom is completely and
purposefully closed to spectators so that no one may enter and no one may leave."
State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). The requirement for a
Bone-Club analysis "come[s] into play when the public is fully excluded from
proceedings within a courtroom." Lormor, 172 Wn.2d at 92 (emphasis added)
(citing Bone-Club, 128 Wn.2d at 257). For example, we found closures when the
trial court fully excluded all spectators during the proceeding, when it fully closed
voir dire to spectators, and when the judge privately questioned jurors in
chambers. 1
Once it is found a closure has occurred, the appellant has no further burden.
However, the appellant does bear the burden of supplying a record that is sufficient
to show that the proceeding in question was actually closed. State v. Koss, 181
Wn.2d 493, 501-02, 334 P.3d 1042 (2014). A violation ofthis magnitude must be
evident from the record; "[i]t is a well established principle that"' ... [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, 123-24, 271 P.3d 876
1
See State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006); State v.
Brightman, 155 Wn.2d 506, 514-15, 122 P.3d 150 (2005); In re Pers. Restraint of Orange, 152
Wn.2d 795, 807-08, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 257. In contrast, the
exclusion of a single person is not considered a closure. Lormor, 172 Wn.2d at 93.
5
State v. Gomez (Benito), No. 90329-8
(2012) (quoting Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4
C.J. Appeal and Error§ 2666, at 736 (1916))).
We recently considered this issue in Njonge, in which the trial judge
explained to spectators, '"Tomorrow when we have the jury selection, there will
not be room for all of you .... The chance of all of you being able to be here and
observe are slim to none during the jury selection process.'" State v. Njonge, 181
Wn.2d 546, 550, 334 P.3d 1068 (quoting trial court record), cert. denied, 135 S. Ct.
880 (2014). We held that the comments did not effect a closure because there was
"no conclusive showing that spectators were totally excluded from the juror
excusals." Njonge, 181 Wn.2d at 556 (emphasis added). We clarified, "We have
required a better factual record to find a violation of this magnitude." Njonge, 181
Wn.2d at 558.
To be clear, the appellant does not generally have to show that spectators
were in fact excluded as a result of the court's actions. Rather, the appellant must
supply a record that reveals that the court took actions amounting to a closure, such
as explicitly issuing an order completely closing the proceedings or moving the
proceedings to chambers. 2 In Njonge, we found that the record was deficient, not
2
See State v. Paumier, 176 Wn.2d 29, 32-33, 288 P.3d 1126 (2012) (jurors questioned in
chambers, outside the view of any observers); State v. Wise, 176 Wn.2d 1, 7, 288 P.3d 1113
6
State v. Gomez (Benito), No. 90329-8
because the defendant failed to show that anyone was in fact excluded, but because
"it [could not] be determined conclusively that observers were in the courtroom
during the proceeding in question, neither [could] it be said that the public was
excluded." Njonge, 181 Wn.2d at 558. In Koss, we similarly refused to infer that an
alleged secret, closed meeting between the State's counsel and the trial judge had
taken place when it was not reflected anywhere in the record. Koss, 181 Wn.2d at
502. Applying that approach here, we hold that the comment alone does not
conclusively establish that the public was fully excluded from entry.
In a factually similar case, the Court of Appeals correctly concluded that the
trial judge's statement-that he did not like people coming and going during
closing arguments and asked those who did not think they could last throughout the
morning to rethink being in the courtroom-did not amount to a closure because
"the court did not 'completely' or 'purposefully' close the proceedings." State v.
Stark, 183 Wn. App. 893,903,334 P.3d 1196 (2014) (citing Lormor, 172 Wn.2d at
93). We agree with this analysis; short of an explicit order to close the courtroom,
we do not presume that the entire public was effectively prohibited from entry. The
(2012) (same); Orange, 152 Wn.2d at 802 (record demonstrated that the trial court prohibited all
spectators and family members from observing voir dire); Bone-Club, 128 Wn.2d at 256 (trial
judge ordered all spectators to leave the courtroom).
7
State v. Gomez (Benito), No. 90329-8
record must establish that the courtroom and proceedings were closed by express
direction of the judge.
Based on the record here, we cannot determine whether a closure actually
occurred. The only evidence in this record supportive of a possible closure is the
judge's comment on the first day of trial, which Gomez contends amounted to a
"ruling" for "a general prohibition for spectators and an exclusion of the public
from the trial." Resp't's Suppl. Br. at 5. Far short of an actual ruling, the judge
said, "We do not allow people to come into the courtroom after [it] is in session." 2
VRP at 153. The judge also commented, "This is a public courthouse. Everyone in
the public is entitled to appear in this courthouse for appropriate matters, as either
litigants or spectators or witnesses." 2 VRP at 150. The judge did not explicitly
order a closure of the courtroom, such that we can conclusively determine that the
statement itself was meant to prevent people from entering or to compel spectators
to leave. Rather, the judge made the remark in the context of a lengthy ruling on
venue, he mentioned it only once during the proceedings, and there is no other
indication in the record that the court directed the exclusion of any spectators or
that anyone else acted to close the trial to the public. The record shows the
opposite here, that the courtroom was rather full of spectators and none were asked
8
State v. Gomez (Benito), No. 90329-8
to leave. Given our existing definition of a "closure," something more must be
shown from the record.
Even if we presumed that the comment was enforced, the judge's rule does
not constitute a closure. As we discussed in Lormor, the appellant must show that
the judge acted to close the courtroom to the public, as opposed to acting to
manage the in-court proceedings. As in Lormor, the exclusion of only one or a few
individuals is a matter of courtroom operations, in which the trial judge possesses
broad discretion "to preserve and enforce order in the courtroom and to provide for
the orderly conduct of its proceedings." Lormor, 172 Wn.2d at 93-94. Just as trial
court judges are permitted to exclude distracting individuals, they are permitted to
impose reasonable restrictions on the public's manner of entry so as to minimize
the risk of distraction or impact on the proceedings.
CONCLUSION
The record does not establish that the court closed the courtroom, and as such,
no basis exists for finding that the trial court violated those public trial rights under
article I, section 22. The record does not contain any indication that the trial court
took action to enforce the brief comment made on the first day of trial. We have
reiterated several times that we do not presume or infer a violation from a silent
9
State v. Gomez (Benito), No. 90329~8
record. We reverse the Court of Appeals and reinstate Gomez's convictions. 3
WE CONCUR:
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3
The State makes two additional arguments in its briefing, neither of which warrants a
detailed analysis. First, the State argues that using an experience and logic analysis, this court
should find that the trial court did not effect a closure because, historically and logically, judges
have possessed wide discretion in controlling the courtroom and maintaining decorum. Pet'r's
Suppl. Br. at 7. But the State's reliance on that analysis is misplaced: we employ the experience
and logic analysis to determine whether the public trial right attaches to a particular proceeding
or portion of the proceedings. State v. Sublett, 176 Wn.2d 58, 72~ 73, 292 P.3d 715 (2012). There
is no question here that the right attaches to the regular trial proceedings.
Second, the State argues that if we do find that the comment effected a closure, the
closure was de minimis in nature and does not warrant reversal. The State argues that our ruling
in State v. Shearer, 181 Wn.2d 564, 573,334 P.3d 1078 (2014), in which we said that the
structural nature of the public trial violation "forecloses the possibility of de minimis violations,"
should not apply here because unlike Shearer, the record reveals that the public was actually
present during the proceedings. We do not reach that issue here.
10