IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,


### v. UNTERS LEWIS LOVE, Petitioner. ) ) ) ) ) ) ) ) )



## _______________________ ) No. 89619-4
En Bane

Filed 

### JUL 16 2015 Yu, J.-Thiscase is another opportunityto clarify our evolvingjurisprudence
on open courts. Today we decide ifa particular method ofchallengingjurors after voir dire-a method commonly employed in trial courts around the state-violates the constitutional right to a public trial. At the conclusion ofvoir dire questioning, counsel exercised for cause challenges orally at the bench and subsequently exercised peremptory challenges silently by exchanging a list of jurors and alternatively striking names from it. All ofvoir dire, including thejurorchallenges, occurred in open court, on the record, and in full view of any observer in the

### State 

## v. Love, No. 89619-4 courtroom. We hold the juror challenges in this case were exercised in a manner consistent with the minimum safeguards ofthe public trial right and affirm. BACKGROUND Petitioner Unters Lewis Love elected to go to trial on several counts oftheft and bail jumping. The first day of trial was unremarkable from an open court perspective. Several preliminary matters consumedthe morning, and the trialjudge heard argument and ruled on these motions in open court and on the record. The jury pool was brought into the courtroom after lunch for jury selection. The trial judge placed thejury pool under oath and briefly explained the mechanics ofjury selection, including the parties' rightto challengejurors. Voir dire examinationbegan immediately thereafter. Both the trialjudge and counsel questioned the jury pool in open court; their questions and the potential jurors' responses were on the record. When questioning concluded, the trialjudge asked counsel to approach the bench to discuss for cause challenges in the presence ofthe court reporter: THE COURT: [DEFENSE]: THE COURT: [STATE]: THE COURT: [DEFENSE]: Any for-cause challenges? Fifteen. Fifteen? Any objection? I think that's-the state has no objection to No. 15 being struck for cause. Mm-hm. Any others? Number 30. 2State v. Love, No. 89619-4 THE COURT: [STATE]: Number 30? Yeah. No objection. Verbatim Report Proceedings (Apr. 9, 2012) at 132-33. Jurors 15 and 30 had strongly indicated they could not be impartialjurors in response to questions during voir dire, which occurred in the presence ofLove, other potential jurors, and the public. The trial judge granted both ofLove's for cause challenges. Though the discussion and ruling on these challenges occurred at the bench, the exchange was
ontherecord andvisibleto observers inthe courtroom. Therecord does not indicate ifobservers could hear what was said, but no one was asked to leave the courtroom. Peremptory challenges followed. The record reflects that counsel exercised peremptory challenges silently in the courtroom by exchanging a written list of jurors between themselves. Counsel alternated striking one name from the list (the struck juror sheet), indicating they had exercised a peremptory challenge and removed thejuror, until each side had exhausted its challenges. 1 The struckjuror

1 The method ofexercisingperemptory challenges onpaper appears common in this state and is explicitly required in several counties. See COWLITZ COUNTY SUPER. CT. LOCAL CIV. R. 47(e)(9) ("Theclerk shallkeep a list of jurorspassedfor cause andwhenitis completewillprovide the list to the attorneys for the parties who will, in turn, exercise challenges by striking the name of each challenged juror without oral comment."); FERRY\PEND 0REILLE\STEVENS COUNTY SUPER. CT. LOCAL CIV. R. 47(e)(9) ("The exercise or waiver ofperemptory challenges shall be noted silently."); GRANT COUNTY SUPER. CT. LOCAL CIV. R. 47(c) ("After examination of the panel, counsel will, in turn, exercise peremptory challenges by striking names from a roster of thosepanelmembersnotpreviouslydismissed."); HELLS CANYONCIRCUIT SUPER. CT. LOCALCIV. R. 47(d)(6) ("When questioning by the court and counsel is completed, the Court will allow the private exercise ofperemptory challenges by striking [the] name ofthe first exercised challenge from the panel ofthe first 12jurors remaining after the entire panel has beenpassed for cause."); HELLS CANYON SUPER. CT. LOCAL CRIM. R. 6.3; KITTITAS COUNTY SUPER. CT. LOCAL CIV. R. 47


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### State v. Love, No. 89619-4 sheet, which was filed in the court record and available to the public, shows Love waived his peremptory challenges and the State challenged juror 4. There is no indication that spectators (prospective jurors included) were forced to leave the courtroom, that the courtroom was locked, or that anyone was prohibited from entering. Instead, the courtroom remained open while counsel exercised their peremptory challenges, in the same manner as it was during the discussion ofthe for
cause challenges. The record does not reflect that observers were unable to see counsel exchanging the struckjuror sheet. The trialjudge thereafter announced that ajury had been selected. In open court and on the record, thejudge read the names ofthe first 14jurors left on the struck juror sheet (excluding jurors 4 and 15) and empaneled 12 jurors and two alternates. The judge thanked and dismissed the remaining potential jurorsincludingjurors 4, 15, and 30-without further explanation. The empaneledjury convicted Love on all counts.

("Unless good cause is shown, all peremptory challenges shall be exercised in open Court at the side bar by marking the challenged juror's name on a form to be provided by the Court."); KLICKITAT\SKAMANIA SUPER. CT. LOCAL CIV. R. 9(VI)(A) ("In trial byjury cases, peremptory challenges shallbeexercised secretly [by] mark[ing] andinitial[ing] such challengeuponthe sheet furnished for thatpurpose."); SPOKANE COUNTY SUPER. CT. LOCAL CIV. R. 47(e)(9) ("The exercise or waiver ofperemptory challenges shall be noted secretly on thejury list."); YAKIMA COUNTY SUPER. CT. LOCAL Crv. R. 47(e)(l) ("Allperemptory challenges allowedbylaw shallbeexercised in writing.
. . . The purpose ofthis mle is to preserve the secrecy ofthe peremptory challenge process and all parties and their counsel shall conduct themselves to that end."). Since we disapprove ofsecret proceedings, we assume that references to "secrecy" in these mles refer to exercisingperemptory challenges silently onpaper. 4

### State v. Love, No. 89619-4 Love appeals his convictions, arguing that the method of jury selection in his
case violated his right to a public trial. He maintains that exercising for cause challenges at the bench and peremptory challenges on the struck juror sheet effectively "closed" the courtroom, though it was unlocked and open, because the public was not privy to the challenges in real time. He also argues his right to be present at all critical stages ofthe trial was violated because he could not approach the bench with counsel to discuss the for cause challenges. The Court ofAppeals affirmed in an opinion thatpredates many ofourrecent public trial right cases. 

### State v. Love, 176 Wn. App. 911, 309 P.3d 1209 (2013). We granted review to consider how our open courts jurisprudence affects how parties
can exercise for cause and peremptory challenges at trial. 

### State v. Love, 181 Wn.2d 1029, 340 P.3d 228 (2015). ANALYSIS Love'stwo claims are purelylegal questions, so ourreview is de novo. 

### State v. Irby, 170 Wn.2d 874,880,246 P.3d 796 (2011); 

### State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009). A. PUBLIC TRIAL RIGHT CLAIM We first consider Love's claim that potential jurors were challenged in a
manner that violated his right to a public trial. A criminal defendant's right to a "speedypublictrial" is found in article I, section 22 ofthe Washington Constitution,

5State v. Love, 

### No. 89619-4
one oftwo constitutional components ofour open courts doctrine. Love's standing in this case flows from article I, section 22. 2 

### The other component to open courts, article I, section 10, guarantees the public that "[j]ustice in all cases shall be administered openly, and withoutunnecessarily delay." These related constitutional provisions "serve complementary and interdependent functions in assuring the fairness ofourjudicial system," State v. Bone-Club, 

### 128 Wn.2d 254, 259, 906 P.2d 325 (1995), and are often collectively called the "public trial right." Athree-step framework guides our analysis in publictrial cases. First, we ask if the public trial right attaches to the proceeding at issue. Second, if the right attaches we ask ifthe courtroom was closed. And third, we ask ifthe closure was justified. State v. Smith, 

### 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014) (citing State v. Sublett, 

### 176 Wn.2d 58, 92, 292 PJd715 (2012) (Madsen, C.J., concurring)). The appellant carries the burden on the first two steps; the proponent ofthe closure carries the third. See id. 

### at 516-17. The State argues that Love's claim fails at the outset, urging us to hold that thepublictrial right does notattachto for cause orperemptorychallenges. Typically experience and logic determine ifthe public trial right attaches to a particular court

2 Whether a criminal defendant also has standing to assert the public's right under article I, section 10 is an open question that we need not address in this case. See State v. Shearer, 181 Wn.2d 564,574,334 P.3d 1078 (2014); State v. Herron, 177 Wn. App. 96,318 P.3d 281 (2013), review granted, 182 Wn.2d 1001, 342 P.3d 326 (2015). 

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### State v. Love, No. 89619-4 proceeding, though we can also rely on prior cases that have applied right to the proceeding at issue. 

### Sublett, 176 Wn.2d at 73; 

### State v. Wise, 176 Wn.2d 1, 12 n.4, 288 P.3d 1113 (2012) (noting it was "not necessary to engage in a complete 'experience and logic test,"' instead citing previous cases to support attachment). Ourprior cases hold it "well settledthatthe right to a publictrial
... extends tojury selection," 

### State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005), and we reaffirm thatthe right attaches tojury selection, including for cause and peremptory challenges. Unlike administrative or hardship excusals, for cause and peremptory challenges canraise questions about ajuror's neutrality and a party's motivation for excusingthejurorthatimplicatethe corepurpose ofthe right, and questioningjurors inopen courtis criticaltoprotectthatright. Openandtransparentquestioningfosters public confidence in subsequent challenges to jurors and, ultimately, the composition of juries in criminal trials. We nevertheless affirm Love's conviction because he has not shown a courtroom closure inthis case, failing to carry his burdenunderthe secondprong of
our analysis. We have reversed convictions for two types of closures. The first, obvious type ofclosure occurs "whenthe courtroom is completely andpurposefully closedto spectators so thatno onemayenter andno onemay leave." 

### State v. 

### Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011); 

### see Brightman, 155 Wn.2d at 511-12 (public excluded from courtroom during voir dire); 

### In re Pers. Restraint of Orange,

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### State v. Love, No. 89619-4 152 Wn.2d 795, 801-02, 100 P.3d 291 (2004) (same). Love does not allege the courtroom was closed in this traditional way. The secondtype ofclosure occurs where aportion ofatrial is held someplace "inaccessible"to spectators, usually inchambers. Lormor, 172 Wn.2d at 93; see also State v. Shearer, 181 Wn.2d 564, 568,334P.3d 1078 (2014) (private questioning of juror in chambers); Strode, 167 Wn.2d at 227 (same of multiple jurors); State v. Paumier, 176 Wn.2d 29, 33, 288 P.3d 1126 (2012) (same). Love equates the for cause and peremptory challenges in his trial-which occurred in open court-to those exercised behind a closed chambers door. He argues the possibility that spectators at his trial could nothearthe discussion about for cause challenges or see the struckjuror sheet used for peremptory challenges rendered this portion ofhis trial inaccessible to the public. We find no merit inthat comparison. The public trial right facilitates fair and impartial trials through public scrutiny. Shearer, 181 Wn.2d at 566. The public's presence inthe courtroomreminds those involved aboutthe importance oftheirroles andholdsthem accountable for misconduct.I

### d.; Strode, 167 Wn.2dat 226. Effective public oversight ofthe fairness of a particular trial begins with assurance of the fairness ofthe particularjury. Yet the public had ample opportunity to oversee the selection ofLove'sjury because no portion of the process was concealed from the public; no juror was
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### State v. Love, No. 89619-4 questioned in chambers. To the contrary, observers could watch the trialjudge and counsel askquestions ofpotentialjurors, listento the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneledjury. The transcript ofthe discussion about for cause challenges and the struckjuror sheet showing the peremptory challenges are both publically available. The public was present for and could scrutinize the selection ofLove'sjury from start to finish, affording him the safeguards ofthe public trial right missing in cases where we found closures of jury section. 

### See Wise, 176 Wn.2d at 7-8; 

### Paumier, 176 Wn.2d at 33-34. We hold the procedures used at Love's trial comport with the minimum guarantees ofthe public trial right and find no closure here. Although Love argues for abroadrule that all peremptory challenges mustbe spoken aloud, writtenperemptory challenges are consistentwiththepublictrial right
so long as they are filed in the public record. Spoken peremptory challenges certainly increase the transparency ofjury selection, but there are still legitimate methods ofchallengingjurors in writing, like the practice here, that do not amount to a courtroom closure because they are made in open court, on the record, and subject to public scrutiny. In summary, Love cannot show a closure occurred on these facts and his public trial claim fails.

9

### State v. Love, 

### No. 89619-4
B. RIGHT To BEPRESENT CLAIM 

### Love next argues that his absence from the bench conference where the trial judge and counsel discussed and excused twojurors for cause violated his right to be present at critical stages ofhis trial. 3 

### Our state and federal constitutions protect the right of a criminal defendant to be present "at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness ofthe procedure." Kentucky v. Stincer, 

### 482 U.S. 730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987); In re Pers. Restraint of Lord, 

### 123 Wn.2d 296, 306, 868 P.2d 835 (1994). This protection is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution; our state equivalent is article I, section 22, which, in addition to a "speedy public trial," also entitles defendants to "appear and defend in person." Jury selection is a critical stage of a criminal trial under both the state and federal constitutions. SeeIrby, 

### 170 Wn.2d at 884. Butthe record before us does not demonstrate a violation of Love's right to be present. Love was present in the courtroom during all ofvoir dire, including potentialjurors' answers to questions that form the basis for challenges. Nothing suggests that Love could not consult

3The Court ofAppeals declinedto reachthe merits ofthiserror, finding it unpreserved and outside any ofthe circumstances in RAP 2.5(a). But the record shows that Love himselftried to object to his lawyer conducting the juror challenge process. Love asked the trial judge several times to approachthe bench afterhis lawyer exercisedthe for cause challenges. Thispreservedthe error. 

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### State v. Love, No. 89619-4 with his attorney about whichjurors to challenge ormeaningfullyparticipate in the process. 

### Cfid. (right to bepresentviolated whereportion of juryselection occurred betweenthe court andcounsel overe-mail, withoutconsultationof jaileddefendant). Itis a long-standing rulethat we do "'not, for thepurpose offinding reversible error, presume the existence offacts as to which the record is silent."' 

### Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J. 

### Appeal and Error§ 2666 (1916)). Love's right to bepresent claim also fails. CONCLUSION Potential jurors at Love's trial were questioned and challenged in an open courtroom and on the record. This is all that the public trial right requires ofjury selection. We hold on these facts that exercising for cause challenges at a bench conference and peremptory challenges on a written list do not constitute a closure. Love's convictions are affirmed.

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### State v. Love, No. 89619-4

WE CONCUR:

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