764581MAJ

~

Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 76458-1
Title of Case: State of Washington v. Shawn Modest, et al.;
Ricko Fernandez Easterling
File Date: 06/29/2006
Oral Argument Date: 11/09/2005


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
King County
03-1-03836-5
Honorable Richard a Jones


JUSTICES
--------
Authored by Gerry L Alexander
Concurring: James Johnson
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Elaine L Winters
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA 98101-3635

Counsel for Respondent(s)
David M Seaver
King Co Pros Office
W554
516 3rd Ave
Seattle, WA 98104-2390


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 76458-1
Respondent, )
)
v. ) En Banc
)
RICKO FERNANDEZ EASTERLING, )
)
Petitioner. )
) Filed June 29, 2006

ALEXANDER, C.J.--Ricko Easterling seeks reversal of his conviction on one
count of unlawful delivery of cocaine. He asserts that the trial court's
decision to close the courtroom at the request of his codefendant during
pretrial motions on the day of their joint trial violated his
constitutional right to a public trial and/or his constitutional right to
be present at all critical stages of his criminal proceeding. Although the
State acknowledges the improper closure of the courtroom, it argues that
the closed proceedings related to the codefendant's, not Easterling's,
trial and, therefore, Easterling's public trial right was not violated. In
addition, the State asserts that Easterling had no right to be present
during closed court consideration of pretrial motions made by the
codefendant because consideration of these motions did not constitute a
"critical stage" of Easterling's trial.
We conclude that the trial court committed an error of constitutional
magnitude when it directed that the courtroom be fully closed to Easterling
and to the public during the joint trial without first satisfying the
requirements set forth in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906
P.2d 325 (1995). The trial court's failure to engage in the required case-
by-case weighing of the competing interests prior to directing the
courtroom be closed rendered unfair all subsequent trial proceedings.
Consequently, we reverse Easterling's conviction and remand for a new
trial. In light of our holding, we decline to reach the question of
whether Easterling's constitutional right to be present at a critical stage
of the criminal proceeding against him was also violated.
I
On January 11, 2003, Seattle police arrested Easterling, Anthony
Jackson, and Shawn Modest during a so-called illegal drug "buy-bust"
operation. Clerk's Papers at 40. The three men were each thereafter
charged in King County Superior Court with one count of unlawful delivery
of cocaine in violation of the Uniform Controlled Substances Act, former
RCW 69.50.401(a)(1)(i) (1998).
Easterling and Jackson were scheduled to be tried together. On the
first day of trial, during pretrial motions, Jackson's counsel moved to
sever Jackson's trial from Easterling's trial. Easterling was present, but
he did not join Jackson's severance motion, nor did he file his own motion
for severance.
Jackson combined his motion to sever with a motion to dismiss.
Jackson's attorney alleged that the charge against Jackson should be
dismissed because the State had unfairly conducted pretrial negotiations
and that the prosecutor had "sandbagged" his client by misleading him
during plea negotiations. Verbatim Report of Proceedings (VRP) (July 14,
2003) at 26. The trial court indicated that Jackson's belief that his case
had not been fairly negotiated did not provide a sufficient basis to grant
the severance motion. Jackson's attorney responded that he wanted to argue
the motions further, but was reluctant to discuss the specifics in open
court and in front of Easterling, in particular.
Without seeking or receiving the State's or Easterling's input or
objection, the trial court ordered the courtroom cleared and specifically
directed Easterling, his attorney, and others to leave. The deputy
prosecuting attorney, court personnel, Jackson, and Jackson's attorney
were, however, allowed to remain. The record of the closed proceedings was
ordered sealed.1
During the closed courtroom proceeding, Jackson's counsel again
asserted that the State had misled him and his client during plea
negotiations by promising, and then withdrawing without notice, a reduced
charge in exchange for a guilty plea and a promise to testify against
Easterling. The trial court asked if further plea negotiations would be
fruitful. When counsel for the State and Jackson agreed that negotiations
could be helpful, the trial court indicated that it would take its morning
break and ordered that the negotiations take place in the closed courtroom
during the recess. An agreement was thereafter reached between respective
counsel.
When court reconvened later that afternoon, Jackson pleaded guilty,
pursuant to the negotiated plea agreement, to an amended and reduced charge
of solicitation to deliver cocaine. The State also agreed to dismiss an
unrelated possession of cocaine charge. Significantly, in return, Jackson
agreed to testify against Easterling. As a result of the plea agreement,
the State altered its theory against Easterling. The trial court then
excused Jackson from the ongoing proceedings without having ruled on his
motions to dismiss and to sever.
The trial proceeded against Easterling alone. Jackson testified
against Easterling and, ultimately, a jury convicted Easterling of the
charge of unlawful delivery of cocaine. On appeal to Division One of the
Court of Appeals, Easterling claimed ineffective assistance of trial
counsel and that the trial court erred in limiting his cross-examination of
Jackson. The Court of Appeals affirmed Easterling's conviction.
In a petition for review filed here, Easterling reasserted his
confrontation claim. He also contended, for the first time, that because
of the courtroom closure, he had been deprived of his constitutional right
to be present at his trial and/or his constitutional right to an open
public trial.2 Despite the State's vigorous objections to the contrary in
its answer to Easterling's petition, we granted review, but only on the
closed courtroom issue.
II
We are first tasked with determining if the trial court's decision to close
the courtroom to Easterling, his counsel, and to all members of the public
during consideration of the codefendant's motion to sever and to dismiss
violated Easterling's and/or the public's constitutional right to a "public
trial." Whether a criminal accused's constitutional public trial right has
been violated is a question of law, subject to de novo review on direct
appeal. Bone-Club, 128 Wn.2d at 256. The presumptive remedy for a public
trial right violation is reversal and remand for a new trial. In re Pers.
Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004).
Article I, section 22 of the Washington Constitution and the sixth
amendment to the United States Constitution each guarantee a criminal
defendant a right to a public trial. Additionally, article I, section 10
of the Washington Constitution provides that "{j}ustice in all cases shall
be administered openly, and without unnecessary delay." This latter
provision gives the public and the press a right to open and accessible
court proceedings. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640
P.2d 716 (1982).
The public trial right extends beyond the taking of a witness's testimony
at trial. It extends to pretrial proceedings. Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (public
trial right extends to preliminary hearing); Orange, 152 Wn.2d at 812
(public trial right extends to voir dire); Bone-Club, 128 Wn.2d at 257
(public trial right extends to pretrial suppression hearing). The public's
constitutional right to the open administration of justice under article I,
section 10 extends to pretrial motions to dismiss. Ishikawa, 97 Wn.2d at
36.
This court has strictly watched over the accused's and the public's right
to open public criminal proceedings.3 As we plainly stated in Bone-Club,
"{a}lthough the public trial right may not be absolute,{4} protection of
this basic constitutional right clearly calls for a trial court to resist a
closure motion except under the most unusual circumstances." Bone-Club,
128 Wn.2d at 259 (emphasis added). In order to protect the accused's
constitutional public trial right, a trial court may not close a courtroom
without, first, applying and weighing five requirements as set forth in
Bone-Club and, second, entering specific findings justifying the closure
order. Bone-Club, 128 Wn.2d at 258-59 (citing Ishikawa, 97 Wn.2d at 37).
These requirements mirror the requirements applied to protect the public's
article I, section 10 right to open proceedings.5
The State does not dispute the fact that the trial court fully closed the
courtroom to consider Jackson's motions or that Easterling, his attorney,
and the public were excluded from this closed proceeding.6 Furthermore, it
does not deny that the trial court's decision to close the courtroom to
hear Jackson's motions did not comport with the Bone-Club requirements and
was not accompanied by specific findings.7 Rather, the State contends that
Easterling's public trial guarantee was not implicated by the improper
closure because the pretrial motions made by the codefendant Jackson did
not pertain to Easterling's trial and/or that the courtroom closure was too
trivial as to not even implicate the constitutional right to a public
trial.8 We address these arguments in turn.
A. Was Easterling's constitutional right to a public trial violated?
The State argues that though Jackson's and Easterling's cases were joined,
the proceedings in question related to Jackson's requests to sever and
dismiss and, thus, were not a part of Easterling's trial. It reasons that
Easterling's public trial right was not violated, even in the face of an
improper courtroom closure, because it was Jackson's public trial right
that was then at issue, and Jackson's attorney waived that right by
requesting the closed proceeding. In response, Easterling asserts that the
trial court's decision to close the courtroom and to entertain a
codefendant's motions to sever and dismiss during a closed, sealed
proceeding were necessarily a part of his trial. Easterling asserts that
this is because Jackson's motions were made prior to severance and directly
impacted the posture, if not the substance, of the State's case against
him.
We agree with both parties that this case does present a unique situation.
In Bone-Club, the party requesting closure was the State. In Orange and
State v. Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005), we were confronted
with cases where the trial court had ordered closure sua sponte. In all
three cases, a single defendant was being tried. Those cases presented
clear cut facts which compelled us to hold that the improper closure
violated the affected defendant's right to a public trial. In this case, a
codefendant requested the courtroom closure, and there was no objection
from the State or the complaining defendant, Easterling. Neither the State
nor Easterling cite to any precedent from this State or other jurisdictions
indicating whether or not a codefendant's pretrial motions implicate the
other codefendant's public trial right. The State briefly argues that the
joinder rules under CrR 4.39 do not compel that result, but a review of
these rules does not lend support to the State's position.
Due to the lack of precedent on this narrow issue, we rely heavily
upon our prior decisions relating to article I, section 22 of our state
constitution, which require trial courts to strictly adhere to the well-
established guidelines for closing a courtroom and upon public policy as
made manifest by the federal and state constitutions which favors keeping
criminal judicial proceedings open to the public unless there is a
compelling interest warranting closure. Accord Brightman, 155 Wn.2d 506;
Orange, 152 Wn.2d 795; Bone-Club, 128 Wn.2d 254. In light of these
precedents, we conclude that Jackson's motion to sever his trial from
Easterling's pertained to Easterling's trial and thereby implicated his
right to a public trial under the Washington Constitution. We hold,
additionally, that the trial court committed reversible error by fully
closing the courtroom to Easterling and the public.
Our holdings are compelled by the record, which demonstrates that
Easterling and Jackson were charged together pursuant to the same
information and were being jointly tried at the time of the courtroom
closure. The record shows also that the request to close the courtroom and
the closed proceeding itself were necessarily a part of Easterling's trial
because they involved a motion to sever Easterling's case from Jackson's
and a motion to dismiss one party from the joint criminal proceeding. The
joint proceedings terminated only when Jackson reached a plea agreement
with the State and agreed to testify against Easterling--a point in time
after the trial court closed the courtroom to the public and to Easterling
and after the closed proceeding was held.
Our holding is further dictated by our interest in protecting the
transparency and fairness of criminal trials by ensuring that all stages of
courtroom proceedings remain open unless the trial court identifies a
compelling interest to be served by closure. The record here demonstrates
that the trial court closed the courtroom to consider Jackson's pretrial
motions without identifying any interest justifying closure of the
courtroom.10 This action undermined the fairness of the process by
precluding Easterling from arguing for or against the motion to sever
during the subsequent closed proceeding. We conclude that this impact upon
the posture of Easterling's case warrants our holding that Jackson's
motions and the proceedings relating to them were a part of Easterling's
trial, thereby implicating his public trial rights.
B. Was the public's constitutional right to an open public trial
violated?
Were we to conclude that the closure did not violate Easterling's
constitutional right to a public trial, the trial court's failure to comply
with Bone-Club still constitutes a violation of the public's right under
article I, section 10 to an open public trial, which exists separately from
Easterling's right. Accord Press-Enterprise Co., 478 U.S. at 7 (the right
to an open public trial is a shared right of the accused under the Sixth
Amendment and the public under the First Amendment, the common concern
being the issue of fairness). We come to this conclusion because the
record plainly shows the trial court specifically excluded the public from
the closed courtroom hearing. This decision to close a part of a criminal
trial to the public runs afoul of the article I, section 10 guaranty of
providing open access to criminal proceedings. It also runs contrary to
this court's consistent position of strictly protecting the public's and
the press's right to view the administration of justice. Accord Allied
Daily Newspapers v. Eikenberry, 121 Wn.2d 205, 848 P.2d 1258 (1993);
Ishikawa, 97 Wn.2d 30.
The State correctly points out that the public's exclusion from a criminal
proceeding does not always amount to finding constitutional error.
However, contrary to what case law and constitutional protections required,
the trial court erred when it neither identified a compelling interest
warranting the public's exclusion from the pretrial process nor made
specific findings that showed it weighed the competing interest of Jackson
as the proponent of closure against the public's interest in maintaining
unhindered access to judicial proceedings. Accord Orange, 152 Wn.2d at 800
(absent a closure order narrowly drawn to protect a clearly identified
interest, a trial court may not exclude the public or press from any stage
of a criminal trial).
In sum, we conclude that the closed proceeding did pertain to, and was a
part of, Easterling's trial. The record shows the trial court closed the
courtroom to Easterling and to the public prior to severance of the joint
proceeding, necessarily impacting the posture and fairness of Easterling's
trial. Further, contrary to what the State would have us hold, we do not
believe that either a criminal defendant's or the public's right to a
public trial is waived simply because a codefendant in a joint criminal
trial requested the courtroom closure. It was the request to close itself,
and not the party who made the request, that triggered the trial court's
duty to apply the five-part Bone-Club requirements. The trial court's
failure to apply that test constitutes reversible error.
C. Was the courtroom closure error de minimis?
The State would have us hold that no infringement on the right to public
trial occurs when a closure is, as they contend this closure was, de
minimis.11 In support of that position, the State cites to Orange in which
a concurring and a dissenting justice posited that some unjustified
courtroom closures may be so "trivial" that they would not
implicate the right to a public trial. Orange, 152 Wn.2d at 824-28. The
State also points to Peterson v. Williams, 85 F.3d 39, 42 (2nd Cir. 1996),
a case in which a federal appeals court found that the inadvertent closure
of a courtroom for a brief period of time was "too trivial" to constitute a
constitutional violation. Although the State and Justice Madsen correctly
note that other jurisdictions have determined that improper courtroom
closures may not necessarily violate a defendant's public trial right, a
majority of this court has never found a public trial right violation to be
de minimis.12 Even if we were to indicate a tolerance for so called
"trivial closures," the closure here could not be placed in that category
because it was deliberately ordered and was neither ministerial in nature
nor trivial in result.
The denial of the constitutional right to a public trial is one of the
limited classes of fundamental rights not subject to harmless error
analysis. See Bone-Club, 128 Wn.2d at 261-62; Neder v. United States, 527
U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (citing Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). Prejudice
is necessarily presumed where a violation of the public trial right occurs.
Bone-Club, 128 Wn.2d at 261-62 (citing State v. Marsh, 126 Wash. 142, 146-
47, 217 P. 705 (1923)). As a result, precedent directs that the
appropriate remedy for the trial court's constitutional error is reversal
of Easterling's unlawful delivery of cocaine conviction and remand for new
trial.
III
Easterling makes an additional argument that the trial court's
decision to close the courtroom infringed on his constitutional right to be
present at all critical stages of his trial. Article I, section 22 of the
Washington Constitution provides that a criminal defendant has the right to
"appear and defend in person . . . {and} to meet the witnesses against him
face to face." See In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868
P.2d 835 (1994) (the core of the right to be present is when evidence is
presented). The right to be present is also protected by court rule. CrR
3.1(a), (b); CrR 3.4(a).
Because we resolve this case by concluding that the trial court's improper
courtroom closure infringed on Easterling's constitutional right to a
public trial, we decline to reach this separate constitutional question.
IV
It is undisputed in this case that the trial court closed the
courtroom to the public and to Ricko Easterling during consideration of a
codefendant's motions for severance and dismissal. It is also not disputed
that the trial court failed to comply with the Bone-Club closure
requirements before ordering the courtroom closure. Because we conclude
that a defendant's right to a public trial extends to courtroom
consideration of pretrial motions made prior to severance by a criminal
codefendant, we hold that Easterling's right to a public trial under
section 22 and the public's section 10 open access to justice right were
violated by the improper closure. The appropriate remedy for this error of
constitutional magnitude is reversal of the conviction and remand for
proceedings consistent with this opinion.

AUTHOR:
Chief Justice Gerry L.
Alexander

WE CONCUR:
Justice Tom Chambers
Justice Charles W. Johnson Justice Susan Owens
Justice Mary E. Fairhurst
Justice James M. Johnson
Justice Bobbe J. Bridge

1The record of the closed proceedings was unsealed by order of the trial
court in March 2004.
2Easterling asserts a constitutional error. We have the discretion to
review an issue raised for the first time on appeal when it involves a
"manifest error affecting a constitutional right." RAP 2.5(a); see RAP
13.4. A criminal accused's rights to a public trial and to be present at
his criminal trial are issues of constitutional magnitude that may be
raised for the first time on appeal. See In re Pers. Restraint of Orange,
152 Wn.2d 795, 800, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 257.
3See State v. Brightman, 155 Wn.2d 506, 509, 122 P.3d 150 (2005) (trial
court erred by closing courtroom during jury selection); Orange, 152 Wn.2d
at 812 (trial court erred by closing courtroom during voir dire); Bone-
club, 128 Wn.2d at 256 (trial court erred by closing courtroom during
suppression hearing); Ishikawa, 97 Wn.2d at 37-39 (trial court's denial of
access to hearing and records violated article I, section 10).
4The presumption in favor of keeping a courtroom open "'may be overcome
only by an overriding interest based on findings that closure is essential
to preserve higher values and is narrowly tailored to serve that interest.
The interest is to be articulated along with findings specific enough that
a reviewing court can determine whether the closure order was properly
entered.'" Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed.
2d 31 (1984) (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501,
510, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
5The requirements are:
"1. The proponent of closure . . . 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) (quoting Allied Daily Newspapers v. Eikenberry,
121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)); Orange, 152 Wn.2d at 806-07.
6In addition to the State's concession, the record shows that the trial
court asked that it be noted on the record when the "closed proceeding"
began and that the record reflect the only people in the courtroom at the
time were Jackson, his attorney, the "State's representation," the court
staff, and court security officers. VRP (July 14, 2003) at 42.
7The record shows that Jackson's attorney requested a closed hearing or a
side bar to discuss the State's alleged bad faith plea negotiations and the
motions in question. In response, the trial court indicated it would not
hold an in-chambers conference, but would grant the request to close so
long as there was a sealed record of the closed proceedings. Then, in
derogation of Bone-Club, the trial court closed the courtroom without
making specific findings on the record, without asking Easterling, his
attorney, or the State whether they objected, and without weighing either
the public's or Easterling's interest in keeping the courtroom proceedings
open against Jackson's interest in closing the proceedings.
8The State argues, additionally, that Easterling's failure to object at
trial to the courtroom closure served as a waiver of his right to appeal
the improper closure. The State's waiver argument is without merit. This
court has explicitly held that a defendant does not waive his right to
appeal an improper closure by failing to lodge a contemporaneous objection.
Brightman, 155 Wn.2d at 514-15 (defendant's failure to object at trial to
improper courtroom closure does not effect a waiver, and does not free the
reviewing court from having to consider the defendant's right to a public
trial); Bone-Club, 128 Wn.2d at 257. Additionally, under the Bone-Club
criteria, the burden is placed upon the trial court to seek the defendant's
objection to the courtroom closure. The record in this case shows that the
trial court did not affirmatively provide Easterling with such an
opportunity.
9CrR 4.3: Joinder of Offenses and Defendants.
10The record shows that when Jackson's attorney asked for a closed hearing,
the only interest he identified to justify the closure was his reluctance
to discuss his client's previous plea negotiations with the State in open
court, and in front of Easterling. Under the first Bone-Club "factor," the
trial court must find that the proponent of closure, Jackson in this case,
made a showing that the courtroom closure was necessary to protect his
right to a fair trial or made a showing of a separate compelling interest.
The trial court closed the courtroom without making this required
determination.
11The State is correct that had Jackson's and Easterling's trial been
severed prior to the courtroom closure, or had the cases not been joined
initially, the courtroom closure would have had no impact on the fairness
of Easterling's case. Furthermore, had the prosecuting attorney and
Jackson's attorney met in the hallway, rather than in the closed courtroom
during a closed proceeding, to discuss the plea agreement, neither the
public's nor Easterling's public trial rights would have been implicated.
However, such is not the factual scenario presented in this case, and we
decline to base our decision upon purely speculative facts.
12A majority of cases relied upon by Justice Madsen applying the de minimis
analysis are federal cases. Application of this "triviality" standard may
be appropriate where a federal court room is fully closed because the
United States Constitution, unlike our state constitution, does not contain
the open administration of justice in all cases requirement that is
contained in article I, section 10 of our state's constitution. Thus,
arguably, there is room for concluding that a public trial right violation
is de minimis or trivial where only a violation of the Sixth Amendment is
asserted. But, such is not the case here where a violation of two separate
provisions of our state constitution were alleged and one of this state's
courtrooms was fully closed to the public and to the defendant. In
addition, there will be no need for Washington's appellate courts to engage
in a triviality-type analysis if our trial courts correctly apply the Bone-
Club guidelines in the first instance. So long as a trial court applies
the required factors and makes findings on the record, a reviewing court,
such as this one, will not have to determine whether a complete courtroom
closure was too trivial as to even implicate the public trial right as the
question on review will focus, instead, on whether the trial court's
decision to close was "justified."
>>