FILED
July 9,2015
In the Office ofthe 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. 24958-1-III
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
JON GABRIEL DEVON, )
)
Appellant. )
LAWRENCE-BERREY, J. - Jon DeVon appeals his conviction for homicide
by abuse. He raises several issues, but we fmd it necessary only to address three:
(1) whether Mr. DeVon's right to a public trial was violated, (2) whether the State
presented sufficient evidence to establish a pattern or practice of abuse; and (3) whether
the lower court must recuse itself on remand. We answer the first two questions in the
affirmative, reverse Mr. DeVon's conviction as required by recent Supreme Court
precedent, and remand for a new triaL We find no need for the lower court to recuse
itself.
No. 24958-1-111
State v. DeVon
FACTS
Mr. DeVon was charged by amended information with homicide by abuse. The
charges resulted from the February 1,2005, death of22 month old A.R.V. A.R.V. was
the son of Mr. DeVon's wife, Yolanda DeVon, and lived with the couple. Ms. DeVon
was also charged in A.R.V. 's death. The defendants' cases were joined at trial.
At a pretrial hearing on December 19,2005, counsel for Ms. DeVon raised the
issue of conducting individual voir dire in chambers. The court discussed beginning
general voir dire questioning to determine which jurors had heard of the case, and then
moving to individual voir dire in chambers to weed out biased jurors. In addition, Mr.
De Von orally requested that jurors be sequestered throughout the trial to protect them
from being tainted. Ms. De Von joined in that motion. The court denied the motion to
sequester, but agreed to revisit the motion depending on the juror responses during voir
dire.
When the court convened on January 10, 2006, the venire jurors answered general
questions and completed written questionnaires. In response to a question of whether any
had heard of the case, a large number responded that they had. In the afternoon, the court
announced that individual voir dire of all jurors would be conducted in chambers in the
presence of the parties, counsel, and the court reporter. Prior to proceeding in that
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No. 24958-1-III
State v. De Von
manner, the court did not conduct a Bone-Club I analysis. After nearly two days of
individual voir dire in chambers, the court reconvened in the courtroom to complete the
voir dire process.
At trial, Ms. DeVon's mother, Ms. Debra Garrison, testified that she observed
bruising on A.R.V.'s legs, arms and cheeks weeks before A.R.V.'s death. Ms. Garrison
also reported that Mr. DeVon and Ms. DeVon admitted to biting A.R.V. on the arm as a
form of discipline.
Additionally, mUltiple witnesses testified that they observed injuries to A.R.V.
between January 25 and January 31, 2005. Testimony established that A.R.V. was in the
care of the DeVons during this time frame, and A.R.V. would often spend time with Mr.
DeVon outside of Ms. DeVon's presence.
The DeVons' explanation for the injuries given to witnesses were contradictory.
The most common explanation given and also reported to police was that A.R.V. fell off
of a woodpile sometime around January 28 or 29. However, witnesses present with Mr.
DeVon and A.R.V. on those days did not see A.R.V. fall off a woodpile. Instead, the
witnesses said that A.R.V. fell near a woodpile and/or on a porch. The witnesses also
said that A.R.V. fell onto his hands and did not seem affected by the incident. One
1 State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).
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No. 24958-1-III
State v. DeVon
witness said A.R.V. suffered only a few red marks on his face and slivers in his hands,
while another witness said A.R.V. did not hit his head.
Testimony established that Ms. DeVon reported to coworkers on January 29 and
30, two days before A.R.V.'s death, that A.R.V. was sick and vomiting. Ms. DeVon told
some of the workers, but not others, about A.R.V. 's fall from the woodpile. Witnesses
said that Ms. DeVon was not worried about the multiple bruises covering A.R.V. Ms.
DeVon did not want to take A.R.V. to the hospital because she was afraid of what others
might think.
Testimony from those treating A.R.V. when he arrived at the hospital in the early
morning of January 31 was that A.R.V. was in full cardiac arrest and had been so for
some time. One doctor reported that A.R.V. "basically appeared dead." Report of
Proceedings at 759. One witness described A.R.V. as unrecognizable due to the swelling.
Another thought he had been in a traumatic accident due to the extent of his visible
injuries.
A doctor who helped treat A.R.V., testified that the numerous injuries to A.R.V.
were extensive. He testified that the type of retinal hemorrhages and brain injury A.R.V.
suffered could not have resulted from a direct or accidental blow to the head. Instead, the
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No. 24958-1-III
State v. De Von
doctor described that the location, nature, and shape of many of the injuries indicated that
they were clearly inflicted injuries and not accidental.
A pediatric neurologist who also evaluated A.R.V. noted the extensive injuries.
The neurologist indicated that A.R.V. suffered from multiple types of trauma occurring
both relatively recently and from a longer time ago. He testified that the severe injury
was not one he would expect to see from a short fall from a woodpile but that most likely
occurred as the result of non-accidental trauma or child abuse. He indicated that the
amount of retinal hemorrhages indicated significant force was applied to A.R.V.'s head
either by shaking or repeated blows.
The jury found Mr. DeVon guilty of homicide by abuse. The court sentenced Mr.
DeVon to 450 months of confinement. The jury found Ms. DeVon guilty of second
degree manslaughter. The court sentenced Ms. DeVon to 27 months of confinement.
Mr. DeVon appealed to this court in 2006, claiming among other errors, that his
right to a public trial was violated when the trial court allowed individual voir dire in
chambers. We stayed his appeal pending a decision by the Supreme Court in State v.
Frawley, 181 Wn.2d 452,334 P.3d 1022 (2014). We lifted the stay subsequent to the
recent decision in Frawley. We now address his appeal.
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State v. De Von
ANALYSIS
I. Whether Mr. De Von's right to a public trial was violated when the trial court
allowed individual questioning ofvenire jurors in chambers
Review of a defendant's public trial right challenge on direct appeal is a question
oflaw that receives de novo review. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d
150 (2005).
Article I, section 22 of the Washington Constitution and the Sixth Amendment to
the United States Constitution guarantee a defendant the right to a public trial. State v.
Njonge, 181 Wn.2d 546, 553, 334 P.3d 1068, cert. denied, l35 S. Ct. 880, 190 L. Ed. 2d
711 (2014). However, the right to a public trial is not absolute. Jd. A trial court may
close a courtroom to the public if it finds the closure is justified. Jd. Prior to closure, the
trial court must balance several factors on the record by conducting a Bone-Club analysis.
Jd.
"Bone-Club requires that trial courts at least: name the right that a defendant and
the public will lose by moving proceedings into a private room; name the compelling
interest that motives closure; weigh these competing rights and interests on the record;
provide the opportunity for objection; and consider alternatives to closure, opting for the
least restrictive." State v. Wise, 176 Wn.2d 1, 10,288 P.3d 1113 (2012).
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No. 24958-1-111
State v. De Von
A defendant's right to a public trial applies to jury selection. [d. at 11. "[T]he
public trial right in voir dire proceedings extends to the questioning of individual
prospective jurors." [d. The private questioning of individual jurors in chambers is a
courtroom closure that requires a Bone-Club analysis before questioning occurs. [d. at
11-12.
It is the trial court's responsibility to weigh the Bone-Club factors and enter
specific findings to support the closure. Bone-Club, 128 Wn.2d at 260-61. On appeal,
"[w]e do not comb through the record or attempt to infer the trial court's balancing of
competing interests where it is not apparent in the record." Wise, 176 Wn.2d at 12-13.
A trial court's failure to give any consideration to the Bone-Club factors before
closing a courtroom for voir dire is a structural error that is presumed to be prejudicial.
Wise, 176 Wn.2d at 14.2 An improper courtroom closure violates the fundamental
constitutional right to a public trial and is not subject to a harmless error analysis. State v.
But see State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009) where the voir dire
2
courtroom closure without a Bone-Club analysis was not considered a structural error
because the trial court effectively considered the Bone-Club factors and the defendant
was an active proponent of the closure. "At bottom, Momah presented a unique
confluence of facts: although the court erred in failing to comply with Bone-Club, the
record made clear-without the need for a post hoc rationalization-that the defendant
and public were aware of the rights at stake and that the court weighed those rights, with
input from the defense, when considering the closure." Wise, 176 Wn.2d at 14-15.
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No. 24958-I-III
State v. DeVon
Easterling, 157 Wn.2d 167, 181-82, 137 P 3d 825 (2006). We do not consider this kind
of public trial right violation to be de minimis or trivial. Id. at 180-81. "[W]e cannot
know what the jurors might have said differently if questioned in the courtroom; what
members of the public might have contributed to either the State's or defense's jury
selection strategy; or, if the judge had properly closed the court under a Bone-Club
analysis, what objections, considerations, or alternatives might have resulted and
yielded." Wise, 176 Wn.2d at 18.
A defendant's failure to object to a public trial violation does not preclude
appellate review under RAP 2.5. State v. Paumier, 176 Wn.2d 29,36,288 P.3d 1126
(2012). The improper closure of the courtroom during voir dire is presumed to be
prejudicial to the defendant and, correspondingly, is a manifest error affecting a
constitutional right. Id. at 36-37. Similarly, a defendant's failure to object at trial does
not equate to a waiver of his right to a public trial. Brightman, 155 Wn.2d at 514-15.
A defendant may affirmatively waive his right to a public trial if the waiver is
knowingly, voluntarily, and intelligently given. Frawley, 181 Wn.2d at 461-62 (plurality
opinion). A valid waiver can occur in the absence of a Bone-Club analysis. Id. at 467
(plurality opinion) (Stephens, J., concurring with seven concurring and dissenting justices
in agreement). The Washington Supreme Court has not agreed on the standard or process
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No. 24958-1-111
State v. DeVon
for ensuring that a defendant's waiver is knowing, voluntary, and intelligent, but the
prevailing opinion is that waiver "can be met without the same type of 'on-the-record
colloquy' that waiver of certain other rights (like the right to counsel) requires." [d. at
473. Still, a valid wavier will not be found if the record presents no evidence that the
defendant knew that he was waiving his right to a public trial, understood what the right
entailed, and voluntarily agreed to waive his right. State v. Shearer, 181 Wn.2d 564,575
76,334 PJd 1078 (2014) (plurality opinion) (McCloud, J., concurring).
Here, Mr. DeVon's right to a public trial was violated. The trial court allowed
private questioning ofjurors in chambers. This courtroom closure occurred without first
conducting a Bone-Club analysis. Moreover, although a large number of venire jurors
responded that they had heard of the case, all venire jurors were questioned individually
in chambers. The trial court's failure to give any consideration to the Bone-Club factors
before allowing private questioning in chambers is a structural error that is presumed to
be prejudicial to Mr. DeVon. Furthermore, there is no evidence in the record that Mr.
DeVon knowingly, voluntarily, and intelligently waived his right to a public trial. Despite
the State's contentions, Mr. DeVon did not suggest the courtroom closure; the suggestion
was made by Mr. DeVon's wife. Also, although Mr. DeVon suggested and argued for
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No. 24958-1-111
State v. De Von
sequestration of the jury, his advocacy for sequestration does not evidence an intention to
waive his right to a public trial.
The appropriate remedy for a violation of a defendant's constitutional right to a
public trial is reversal and remand for a new trial. Easterling, 157 Wn.2d at 182.
"Although a new trial will undoubtedly place on the affected community an extremely
difficult burden, a burden that will be particularly painful for the families and friends of
the victims of the crimes charged in this case, our duty under the constitution is to ensure
that, absent a closure order narrowly drawn to protect a clearly identified compelling
interest, a trial court may not exclude the public or press from any stage of a criminal
trial." In re Pers. Restraint o/Orange, 152 Wn.2d 795,800, 100 P.3d 291 (2004).
II. Whether the State presented sufficient evidence to establish guilt beyond a
reasonable doubt
We address Mr. DeVon's sufficiency of the evidence challenge because, if
successful, the remedy of reversal and dismissal would alleviate the need for a new trial
to address the public trial violation.
Mr. DeVon contends that the State failed to establish all of the elements of
homicide by abuse. Specifically, he contends that the State did not prove that he
previously engaged in a pattern or practice of assault or torture of A.R.V.
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No. 24958-1-III
State v. DeVon
In every criminal prosecution, due process requires that the State prove, beyond a
reasonable doubt, every fact necessary to constitute the charged crime. In re Winship,
397 U.S. 358, 364, 90 S. Ct. 1068,25 L. Ed. 2d 368 (1970). When a defendant
challenges the sufficiency of the evidence, the proper inquiry is "whether, after viewing
the evidence in the light most favorable to the State, any rational trier of fact could have
found guilt beyond a reasonable doubt." State v. Salinas, 119 Wn.2d 192,201, 829 P.2d
1068 (1992). "[A]ll reasonable inferences from the evidence must be drawn in favor of
the State and interpreted most strongly against the defendant." Id. Furthermore, "[a]
claim of insufficiency admits the truth of the State's evidence and all inferences that
reasonably can be drawn therefrom." Id.
Circumstantial evidence and direct evidence are equally reliable. State v.
Goodman, 150 Wn.2d 774,781,83 P.3d 410 (2004). An appellate court "must defer to
the trier of fact on issues of conflicting testimony, credibility of witnesses, and the
persuasiveness of the evidence." State v. Thomas, 150 Wn.2d 821,874-75,83 P.3d 970
(2004).
"A person is guilty of homicide by abuse if, under circumstances manifesting an
extreme indifference to human life, the person causes the death of a child or person under
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No. 24958-I-III
State v. DeVon
sixteen years of age, ... and the person has previously engaged in a pattern or practice of
assault or torture of said child." RCW 9A.32.055.
Here, the evidence is sufficient to show that Mr. DeVon engaged in a practice or
pattern of abuse of A.R.V. The pattern of abuse was established by the extensive medical
evidence showing a huge number of inflicted injuries, pattern injuries, observed changes
in the child's demeanor, injuries observed by other witnesses more than one week before
death, and statements made by both defendants admitting to biting and swatting A.R.V.
After viewing the evidence in the light most favorable to the State, a rational trier of fact
could have found Mr. DeVon guilty beyond a reasonable doubt. Therefore, we reverse
Mr. DeVon's conviction, but remand for a new trial.
III. Whether Judge Allan must recuse herselffrom the new trial
Mr. DeVon also requests that we direct Judge Allan to recuse herself from the
criminal proceeding on remand. He contends that Judge Allan could be perceived as
being impartial, and for this reason, must recuse herself.
Judge Allan previously heard a three-hour shelter care hearing involving the
DeVons' other child. The subject of that hearing concerned the DeVons' request for
increased visitation. Judge Allan did not reduce Mr. DeVon's visitation, but rather
maintained the status quo. In denying Mr. DeVon's earlier motion to recuse, Judge Allan
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No. 24958-1-111
State v. DeVon
stated that she did not have knowledge of personal matters as prohibited by Cannon of
Judicial Conduct, (3)D.3 Mr. DeVon presents no evidence to the contrary. Rather, he
speculates that she might have been exposed to information that made her biased.
The appearance of fairness doctrine is based on the fundamental notion in our
system ofjustice that judges must be fair and unbiased. GMAC v. Everett Chevrolet, Inc.,
179 Wn. App. 126, 153,317 P.3d 1074 (2014). Judges must not only be impartial, but
they must also demonstrate the appearance of impartiality. Id. at 154. "Even 'a mere
suspicion of irregularity, or an appearance of bias or prejudice' should be avoided by the
judiciary." Id. (quoting Chi., Milwaukee, St. Paul & Pac. R.R. v. Wash. State Human
Rights Comm 'n, 87 Wn.2d 802, 809, 557 P.2d 307 (1976)). There must be proof by the
litigant of actual or perceived bias to support an appearance of impartiality claim. Id.
Whether a proceeding satisfies the appearance of fairness doctrine is judged by how it
appears to a reasonably prudent person. Id.
We find no basis to order Judge Allan to recuse herself. Mr. DeVon has failed to
prove actual or perceived bias. Simply because Judge Allan presided over a hearing
3 Former Canon 3(D) provides in relevant part: (1) Judges should disqualify
themselves in a proceeding in which their impartiality might reasonably be questioned,
including but not limited to instances in which: (a) the judge has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.
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No. 24958-I-III
State v. DeVon
which involved Mr. DeVon, and even decided that hearing adversely to him, does not
establish actual or perceived bias. Nor does it establish that she has personal knowledge
of a disputed fact in the criminal proceeding. Moreover, during the criminal trial, Judge
Allan made decisions that favored Mr. DeVon. Judge Allan dismissed the alternative
count against Mr. DeVon of first degree murder by extreme indifference and denied the
State's motion to amend the information to include a count of first degree premeditated
murder. A reasonable prudent person could not perceive that Judge Allan had any actual
or perceived bias against Mr. DeVon.
We reverse Mr. DeVon's conviction and remand for a new 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.
Lawrence-B rrey,
WE CONCUR:
;S~tU~
Siddoway, C.J.
t-/}
14