Fl L E 

IN CLERKS OFFICE 

IUPREME COURT, STAtE OF----

DATE APR 0 9 2015 J 

~~.l 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) 

) No. 90329-8 

Petitioner, ) 

) 

v. ) EnBanc 

) 

BENITO GOMEZ, ) 

) 

Respondent. ) APR 0 9 2015 ) Filed 

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: 

o(}~ I 

) 

0 

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