### FILED JULY 23,2013 In theOfficeoftheClerkofCourt W AStateCourtofAppeals, Division III



### IN THE COURT OF APPEALS OFTHE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) 

### No. 25178-1-111 ) 

### Respondent, ) ) 

## v. ) 

### ) JOHN 

### E. LIPINSKI, 

### ) UNPUBLISHED OPINION 

### ) Appellant. 

### ) BROWN, J. - John 

### E. Lipinski appeals his merged first degree manslaughterand second degreefelony murderconvictions (relating to Melissa S. Saldivar) and second degreefelony murderconviction (relating to her prematurely delivered daughter, Mataya). Mr. Lipinski's trial occurred in 2006. Westayed his appeal in 2008to await the outcome of pending publictrial cases because somejurors in Mr. Lipinski's case were interviewed in ajury room, and not in open court. See In re Pers. Restraintof Morris, 176Wn.2d 157,288 P.3d 1140 (2012); State v. Sublett, 176Wn.2d 58, 292 P.3d 715 (2012); State v. Paumier, 176Wn.2d 29,288 P.3d 1126 (2012); State v. Wise, 176Wn.2d 1,288 P.3d 1113 (2012); State v. Momah, 167Wn.2d 140,217 P.3d 321 (2009); State v. Strode, 167Wn.2d 1,288 P.3d 1113 (2009). Applying the developed

### No. 25178-1-111 State v. Lipinski

case lawto ourfacts, we hold public trial principles were violated. Thus, we do not reach Mr. Lipinski's bad-act and new-trial contentions. However, we conclude sufficient evidence supports the felony murderconviction relating to Mataya's death and find no error in the trial court's CrR 

### 3.5 rulings. Accordingly, we reverse and remand fortrial. FACTS During the evening ofAugust 

### 9, 2005, and into the earlier morning hours of August 

### 10, several individualswere drinking atthe home where Mr. Lipinski, Ms. Saldivar, and their one-year-old son were staying. Mr. Lipinski was drinking heavily. Mr. Lipinski was "very intoxicated," butwanted more alcohol. Report of Proceedings (RP) at 

### 387. Ms. Saldivar yelled at him that he did not need any more alcohol; Mr. Lipinski cursed at Ms. Saldivarand told her he would "kill" her. RP at

### 427. Mr. Lipinski, Ms. Saldivar, and their son were eventually asked to leave. The two continued to fight in the car. At approximately 

### 4:00 A.M., Mr. Lipinski brought an unconscious Ms. Saldivarto the emergency room, where she laterdied from cerebral bruising from a bluntforce impact. Their one-year-old son was in the backseat. Doctors revived Ms. Saldivar long enough to deliver Mataya who was born with complications dueto oxygen deprivation from her mother's injuries. She died seven weeks later. OfficerJerryAnderson was dispatched to the hospital. Hospital staff informed the officerthat Mr. Lipinski provided several conflicting versions ofwhat happened. The officers decided totransport Mr. Lipinski to the police station for more questioning. He



### 2No. 25178·1·111 State v. Upinski

was first given his Miranda1warnings and placed in the police car. At about7:00 A.M., Mr. Lipinski was taken to a police station interview room. He initially remained silent, butthen told the detectives he wanted to talk. He was again given his Miranda warnings and he signed a waiver card. Mr. Lipinski told the officers he had gotten out of the car and Ms. Saldivar drove off. She came back and he got in the driver's seat because Ms. Saldivarwas too upsetto drive. He claimed the two continued to argue and then Ms. Saldivar "jumped out ofthe car" while he was driving. RP at233. Aftertaking Mr. Lipinski's statements, the investigating officerwas informed that attorney Scott Hill was retained by Mr. Lipinski's parents. Mr. Hill had been contacted earlier in the day, but did not discover his client's whereabouts until the afternoon. Mr. Lipinski was turned overto Mr. Hill. Following a CrR 3.5 hearing, the court allowed Mr. Lipinski's custodial statements regarding hisversion ofwhat happened. The State charged Mr. Lipinski with second degree murder and second degree felony murder based on the predicate crime ofsecond degree assault for Ms. Saldivar's death and second degreefelony murder based on the predicate crime ofsecond degree assaultfor his daughter's death. During jury selection, thejuryvenire was given questionnaires. Those answering affirmativelyto certain questions regarding pretrial publicitywere brought into thejury
room forquestioning with thejudge, prosecutor, defense attorney, Mr. Lipinski and a

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694 (1966). 

### 3No. 25178-1-111 State v. Lipinski
detective present. The court questioned selected jurors abouttheir knowledge ofthe
case apartfrom the otherjurors to prevent otherjurorsfrom being tainted. Mr. Lipinski did not objectto this process. The sole reference to this process is the record made after a chambers conference, disclosing the prosecutor, defense counsel, and the trial judge mettogetherand "decided upon a schedule in orderto accomplish individual questioning." RP at 262. During trial, there wastestimony that on different occasions, Mr. Lipinski punched Ms. Saldivar, bit her, cut her, and forced her head into a vehicle's dashboard. At her baby shower, Mr. Lipinski got into an argumentwith Ms. Saldivar, shoved hertothe ground and then made a motion as if he kicked her. Dr. Kelly Mathia testified she delivered the parties' baby by emergency c-section approximatelytwo hours after Ms. Saldivar arrived at the hospital. The decision to perform this procedurewas to "save the baby" whose heart rate was up in the "120s." RP at 86. The baby's position was head-down, facing the back ofthe mother. When asked whetherthe right side ofthe baby was facing the right side ofthe mother, Dr. Mathia answered yes, "at that time." RP at 98. She also answered affirmatively when asked ifbabies can turn in uterus during the course ofpregnancy. Tracy Hansen,' a detective trained in accident reconstruction, testified that Ms. Saldivardid not have injuries on herface, the palms of her hands, her legs, or herfeet; rather, her injuries were on the back of her head, her back and elbows. Because ofthis, Ms. Hansen opined Mr. Lipinski's claim Ms. Saldivar stepped or rolled out ofthe carwas



### 4No. 25178-1-111 State v. Lipinski
incorrect. Detective Timothy Madsen testified it was 31 inches from the edge ofthe driver's seat to the passenger-side door handle and, while seat belted, it was easyfor him to reach overand open the door. In his defense, Mr. Lipinski presented the testimony ofSteven Kukuruza, a collision reconstructionist. He opined that Ms. Saldivar could have stepped out and then flew in the air, landing on her back. Thejuryfound Mr. Lipinski guilty ofthe lesser-included offense offirst degree manslaughterand second degree felony murderfor Ms. Saldivar's death (these convictions merged) and second degreefelony murderforthe baby's death. Mr. Lipinski unsuccessfully requested a newtrial based on newlydiscovered evidence. Mr. Lipinski appealed. ANALYSIS A. Public Trial The dispositive issue is whether Mr. Lipinski's constitutional right to a public trial
was violated when the court conducted portions ofvoir dire in ajury room, a separate
room from the main courtroom. Whether a defendant's constitutional right to a public trial has been violated is a question oflawthat we review de novo. Paumier, 176Wn.2d at 34; State v. Lormor, 172Wn.2d 85, 90, 257 P.3d 624 (2011). A criminal defendant has a right to a public trial underthe state and federal constitutions. Lormor, 172Wn.2d at 90-91; U.S. CONST. amends. VI, XIV; CONST. art. I, 

### § 22. Likewise, the public has a complementary right to


### 5No. 25178-1-111 State v. Lipinski
open proceedings underthe state and federal constitutions. Lormor, 172 Wn.2d at 91; U.S. CONST. amend. I; CONST. art. I, 

### § 10. The right to a public trial, however, is not absolute, and a trial court may close the courtroom under certain circumstances. Momah, 167 Wn.2d at 148; State v. Easterling, 157Wn.2d 167, 174-75, 137 P.3d 825 (2006). To protectthe publictrial right and to determinewhether a closure is appropriate, Washington courts must applythe BoneClub2 factors and make specificfindings on the record tojustify a closure. Momah, 167 Wn.2d at 148-49. The criteria for closure are: 1. The proponent ofclosure or sealing must make some showing [ofa compelling interest], and where that need is based on a right otherthan an accused's right to a fairtrial, the proponent must show a "serious and imminent threat" tothat right. 2. Anyone presentwhen the closure motion is made must be given an opportunity to object to the closure. 3. The proposed method for curtailing open access must bethe least restrictive means available for protecting the threatened interests. 4. The court must weigh the competing interests of the proponent ofclosure and the public. 5. The order must be no broader in its application or duration than necessaryto serve its purpose. Bone-Club, 128 Wn.2d at 258-59 (quoting AlliedDailyNewspapers v. Eikenberry, 121 Wn.2d 205,210-11,848 P.2d 1258 (1993». The court is required to consider "alternatives to closure" to ensure the least restrictive means ofclosure is adopted. Paumier, 176Wn.2d at 35; Wise, 176Wn.2d at 10. Failure to conduct a Bone-Club

2 State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995). 

### 6No. 25178-1-111 State v. Lipinski analysis before closing a proceeding required to be open to the public is a structural
errorwarranting a newtrial. Paumier, 176Wn.2d at 35. Our Supreme Court has reasoned, "not every interaction between the court, counsel, and defendants will implicatethe rightto a publictrial, orconstitute a closure ifclosed to the public." Sublett, 176Wn.2d at 71. In Strode, jury members were brought intothejudge's chambers forquestioning regarding sensitive topics, with the trial judge, prosecuting attorney, defense counsel, and the defendant present. Strode, 167Wn.2d at 224. The purpose was to protectthe jurors' privacy interests. OurSupreme Court held thatthis amounted to a closure and, because the court did notfirst conduct a Bone-Club analysis, the defendant's rightto a publictrial was violated. Id. at 231. In Wise and Paumier, the court recently reached similar holdings. Wise, 176Wn.2d at 15; Paumier, 176Wn.2d at 37. The court, however, limited the extent ofthe right to a publictrial in Sublett, by holding that a BoneClub analysis is not required when ajudge answers ajuror's question in chambers with counsel present. Sublett, 176Wn.2d at 135. By comparison in Momah, the trial court, on the recommendation ofdefense counsel, questioned several jurors privatelyto protectthe defendant's rightto a fairtrial. 167Wn.2d at 145-46. The court noted, "due to the publicity ofMomah's case, the defense and the trial court had legitimate concerns about biased jurors orthosewith prior knowledge of Momah's case." Id. at 156. The court decided a partial voir dire closure to safeguard the defendant's right to a fair trial was not a structural errorand



### 7No. 25178-1-111 State v. Lipinski
affirmed the defendant's convictions. Id. at 151-52. In Wise, our Supreme Court, citing Momah, reiterated that the public trial right can be subordinate to the right to a fair and impartialjury. Wise, 176Wn.2d at 10. The court distinguished Momah from other publictrial violation cases on two principle bases: "(1) more than failing to object, the defense affirmatively assented to the closure ofvoir dire and actively participated in designing the trial closure and (2) though itwas notexplicit, the trial court in Momah effectively considered the Bone-Clubfactors." Wise, 176Wn.2d at 14 (citing Momah, 167Wn.2d at 151-52). The State argues this case is most analogous to Momah. But, unlike in Momah,
our bare record does not show (1) Mr. Lipinski affirmatively assented to the closure of voir dire, or (2) the trial court effectively considered the Bone-Clubfactors. See Wise, 176Wn.2d at 14 (citing Momah, 167Wn.2d at 151-52». This case is more analogous to Strode where potential jurorswere given a questionnaire and based on certain answers theywere questioned privately in the judge's chambers with thejudge, prosecutor, defense counsel, and the defendant present. 167Wn.2d at 223-24. The court held this amounted to "a courtroom closure." Id. at 227. And, because the court did not considerthe Bone-Club factors before the closure, Mr. Strode's publictrial right was violated. Id. Like in Strode, Mr. Lipinski's publictrial right was violated bythe closure ofpart ofthe voir dire proceedings without the requisite consideration ofBone-Club. The proper remedy is "remand

...for a new trial that is open to the public, except as the trial court maydirect a closure upon full



### 8No. 25178-1-111 State v. Lipinski scrutiny and consideration ofthe public trial right under Bone-Club." Wise, 176 Wn.2d at 19. In sum, as noted in the facts, the closure record is very minimal to satisfy BoneClub. We do not know who proposed the closure, the seriousness ofthe pretrial publicity, whether anyone present in the courtwas given an opportunityto object, whetherthe proposed closure was the least restrictive meansto address the protected interest, ifanyweighing ofcompeting interest ofthe proponent and the publictook place, and whetherthe closure wastailored to serve its purpose. Accordingly, we must reverse Mr. Lipinski's convictions and remand for a new trial. Given ourconclusion that reversal and a newtrial are warranted, we do not reach Mr. Lipinski's bad-act and new-trial contentions. But, in Part B, we analyze Mr. Lipinski's erR 3.5 contentions; and, in Part e, we address his evidence insufficiency
concerns involving Mataya's death. B. erR 3.5 Statements The issue is whether under erR 3.5 the trial court erred in allowing Mr. Lipinski's custodial statements made after counsel was retained by his parents. We review a trial court's decision after a erR 3.5 hearing by determining whether substantial evidence supports the trial court's findings offact, and whetherthose findings supportthe conclusions of law. State v. Broadaway, 133 Wn.2d 118, 130-31, 942 P.2d 363 (1997). Here, the court found Mr. Lipinski initiated the statements after being advised of his right to counsel.



### 9No. 25178-1-111 State v. Lipinski
It is constitutionally guaranteed, "[n]o person ... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. In Mal/oy v. Hogan, 378 U.S. 1,84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964), the Court held this privilege, incorporated via the Fourteenth Amendment, is enforceable againstthe State. "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation ofthe defendant unless it demonstrates the use ofprocedural safeguards effective to secure the privilege against self-incrimination." Miranda, 384 U.S. at444. The motivation forthe implementation ofthis rule is a concern forthe voluntariness ofconfessions procured by "interrogation practices which
are likely to exert such pressure upon an individual as to disable him from making a free and rational choice." Id. at464-65. Similarly, in all criminal prosecutions, "the accused shall enjoy the right to
... have the assistance ofcounsel for his defense." U.S. CONST. amend. VI. "When custodial interrogation is conducted in planned absence ofcounsel without notifying the defendant ofcounsel's availability and desireto be present during questioning, a defendant has been denied effective assistance ofcounsel." State v. Jones, 19 Wn. App. 850, 852, 578 P.2d 71 (1978). In Jones, the suspectvoluntarily submitted to a polygraph examination afterwaiving his constitutional right to an attorney. Butwhile his polygraph was taking place, an attorney called the police department, told them Mr. Jones's mother had retained him, and asked that Mr. Jones not be interrogated unless he was present. The police explained that the polygraph had already begun and that

10No. 25178-1-111 State v. Lipinski theywould notend it. Atthe end ofthe test, the examinertold Mr. Jonesthat he had failed the examination, and another police officer asked ifthere was anything he wanted to tell the police. Mr. Jones replied thatthere was not, but he thought he would be convicted. Id. at 851-52. Mr. Jones argued thatthis statement should not have been admitted. This case is distinguishable from Jones. Here, nothing indicates the police had any knowledge that Mr. Lipinski's parents had retained Mr. Hill. Moreover, Mr. Lipinski had already made his statements before the police were notified ofMr. Hill's representation. Soon after, Mr. Lipinski was turned overto Mr. Hill. The record does not show any questioning occurred after being notified that counsel was retained. In sum, substantial evidence supportsthefindings that Mr. Lipinski waived his right to counsel, made statementsto officers, and then was notified ofcounsel's representation. Thus, the court properly denied Mr. Lipinski's erR 3.5 motion and allowed his custodial statements. Mr. Lipinski argues no probable cause existed to detain him for questioning, but he did not raise this issue below. And, he failed to assign errorto it in his opening brief. 

### See RAP 10.3(a)(4) (appellant's briefshould include "separate concise statementof each errora party contends was made bythe trial court, togetherwith the issues pertaining to the assignments oferror"). Thus, this issue is waived. Mr. Lipinski, pro se, raises several issues in his statement ofadditional grounds for review. All ofthese issues, except one, were adequately addressed byappellate

11No. 25178-1-111 State v. Lipinski
counsel. See RAP 10.10(a) (statement ofadditional grounds is for issues not adequately addressed by counsel). Wedo address Mr. Lipinski's claim that he did not voluntarily waive his Miranda rights before making statements to the investigating officers. A defendant can knowingly and voluntarily waive his Fifth Amendment rights. '''An express written or oral statement ofwaiver ofthe right to remain silent or ofthe right to counsel is usually strong proofofthe validity ofthatwaiver, but is not inevitably either necessary or sufficientto establish waiver.'" State v. Rupe, 101 Wn.2d 664, 678, 683 P.2d 571 (1984) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 60 

### L. Ed. 2d 286 (1979)). Officers twice gave Mr. Lipinski his Miranda rights. Beforetalking with officers atthe police station, Mr. Lipinski signed a waiver card, strong proofthat his waiver was voluntary. Nothing in the record suggests he was coerced into waiving his right to remain silent. Instead, the waiver was the product ofa free and deliberate choice. Accordingly, his pro se argumentfails. 

### C. Evidence Sufficiency The issue is whether sufficient evidence supports Mr. Lipinski's second degree felony murder charge for Mataya's death. Mr. Lipinski contends there was insufficient evidence that the babywas a "quick child" atthe time ofassaultto support a murder charge. Evidence is sufficientwhen, after viewing the evidence in the light mostfavorable tothe State, any rational trier offact could have found guilt beyond a reasonable doubt.

12No. 25178-1-111 State v. Lipinski
State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 LEd. 2d 560 (1979». When considering the sufficiency ofthe evidence, all reasonable inferences must be drawn in favor ofthe State and interpreted most strongly againstthe defendant. State v. Salinas, 119Wn.2d 192,201,829 P.2d 1068 (1992). A person is guilty ofsecond degree murder if he orshe commits any felony, including assault, and in the course ofthe crime or in immediate flighttherefrom, he or she causes the death ofa person. RCW 9A.32.050(1)(b). Pertinenttothis case, second degree assault may be committed by intentionally and unlawfully causing "substantial bodily harm to an unborn quickchildby intentionally and unlawfully inflicting any injury upon the mother ofsuch child." RCW9A.36.021(1)(b) (emphasis added). Thejurywas instructed that a "quick child" is defined as "one that has been seen moving orfelt moving within the mother's uterus." RP at 908. Here, the baby was delivered by emergency c-section approximately two hours after Ms. Saldivar arrived atthe hospital to "save the baby," whose heart rate was up in the "120s." RP (March 6,2006) at 86. The baby's position was head-down, facing the back ofthe mother "atthattime." RP (March 6, 2006) at98. Dr. Mathia testified that babies mayturn in the uterus during the course of pregnancy. While there is no direct testimony thatthe child moved, Dr. Mathia'stestimony implied as much. Common
sense dictates thatthe baby moved since the babywas at seven months ofgestation and alive in the womb. 

### Afact finder is expected to bring his or herown "opinions,

13No. 25178-1-111 State v. Lipinski insights, commonsense, and everyday life experiences" into the fact-finding process. State v. Carlson, 61 Wn. App. 865, 878, 812 P.2d 536 (1991). Thus, a reasonable inference can be drawn that the unborn baby was a "quick child" at the time of injury. Therefore, viewing the evidence in the light most favorable to the State, we conclude sufficient evidence exists to support Mr. Lipinski's second degree felony murder charge for Mataya's death. Reversed. A majority ofthe 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.

Brown, J. WE CONCUR:

# ~.a7F Siddoway, A.C.J. Kulik, J.



### 14