# Fl LE IN CLERKS OFFICE IUPREME COURT, STAtE OF---- DATE 

### APR 09 2015 J

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IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) ) No. 90329-8 Petitioner, ) ) v. ) EnBanc ) BENITO GOMEZ, ) ) Respondent. ) 

### APR 09 2015 ) Filed JOHNSON, J.-This case involves whetherthe trial court closedthe courtroom during trial in violation ofthe defendant's rights under article I, section 22 ofthe Washington Constitution. The Court ofAppeals reversed Benito Gomez's convictions for second degree murder and six counts offirst degree assault onthe grounds that the trialjudge effected anunconstitutional closure ofthe courtroom during trial byhis pretrial commentthat the public would notbepermittedto enter the courtroom oncethe proceedingsbegan. First, we disagree that the trialjudge, by
mere virtue ofmaking this remark, fully excludedthe public from entering the courtroom and, thus, wehave no basis for finding a constitutional violation. Second,
even ifwe couldpresumethe briefcomment was enforced, this limitation toState v. Gomez (Benito), No. 90329-8
courtroom entry does not constitute a closure. We reverse the Court ofAppeals and reinstate Gomez's conviction. FACTS Gomez was chargedwith first degree murder and six counts offirst degree assault after he fatally shot a rival gang member and fired his handgun at fleeing rivals and residents ofa nearby apartment building. Before swearing inthejury, the court considered Gomez's change ofvenue motion, in which Gomez argued that the heavy security in the courthouse would intimidate thejury and conveythe impression that Gomez was dangerous. In denying the motion, the court made a few comments regarding the spectators ofthe 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 orwitnesses and in fact the courtroom is rather full today ofspectators concerning this particular case." 2 Verbatim Report ofProceedings (VRP) at 150. Thejudge continued in a lengthy explanation ofhis ruling to denythe venue change, and couched within that ruling, thejudgemade the comment that Gomez contends closed the proceedings:

2State v. Gomez (Benito), No. 90329-8 We continue to have rules ofprocedure 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 whenpeople come in. 2 VRP at 153. Gomez did not object to thejudge's comment, and the trial continued for the nextthree days. The record contains no indication as to whetherthe court took any action to enforce the policy orwhether any observers were actually excluded as a result ofthe remark. Thejuryfound Gomez guilty ofthe lesser-included crime of second degree murder and six counts offirst degree assault. Gomez appealed, arguing for the first time that the trial court violated his public trial rights bynot allowing the public to enter once the proceedings began. The Court ofAppeals 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), andremanded 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 UnderWashington Constitution article I, section 22, criminal defendants have the right to a public trial. Defendants canraise claims ofpublic trial rights violations for the first time on direct appeal, which we review de novo. We 3State v. Gomez (Benito), No. 90329-8 consider these violations serious, falling into the category ofconstitutional error that entitles the defendant to reversal ofhis conviction and a new trial without requiring any showing ofprejudice. 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) whetherthe portion ofthe proceeding at issue implicates the public trial right, which we analyze using an "experience and logic" analysis, (2) whether there was
a closure ofthatproceeding, and (3) whether the closure wasjustified (did the court conduct a Bone-Club analysis onthe recordpriorto 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 regularproceedings and that because thejudge did not consider theBone-Club factors, a closure ofthose proceedings would notbejustified, so steps (1) and (3) need no analysis. Onlythe second step requires ourreview: whether thejudge's comment alone effected an actual closure ofthe courtroom during the trial. Our cases have largelyused a case by case approach in determining when a closure occurs, but wehave established
some general guidelines.

4State v. Gomez (Benito), No. 90329-8 A complete closure occurs "whenthe courtroom is completely and purposefully closed to spectators so that no one mayenter and no one mayleave." State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). The requirement for a Bone-Club analysis "come[s] into playwhen the public isfully excluded from proceedings within a courtroom."Lormor, 172 Wn.2d at 92 (emphasis added) (citingBone-Club, 128 Wn.2d at 257). For example, we found closures when the trial court fully excluded all spectators during theproceeding, when it fully closed voir dire to spectators, and when thejudgeprivately questionedjurors in chambers. 1 Once it is found a closure has occurred, the appellanthas no further burden. However, the appellant does bearthe burden ofsupplying 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 ofthismagnitude must be evident from the record; "[i]t is a well established principle that"'
... [we] will not, for the purpose offinding reversible error, presume the existence offacts as to which the record is silent.""' State v. Jasper, 174 Wn.2d 96, 123-24, 271 P.3d 876

1See 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 ofa single person is not considered a closure. Lormor, 172 Wn.2d at 93. 5State v. Gomez (Benito), No. 90329-8 (2012) (quoting

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

### AppealandError§ 2666, at 736 (1916))). We recently considered this issue in 

### Njonge, in which the trialjudge explained to spectators, '"Tomorrow when we have thejury selection, there will not be room for all ofyou.... The chance ofall ofyou being able to be here and observe are slim to none during thejury 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 showingthat spectators were totally excluded from thejuror excusals."

### Njonge, 181 Wn.2d at 556 (emphasis added). We clarified, "Wehave required a better factual record to find a violation ofthis magnitude."

### Njonge, 181 Wn.2d at 558. To be clear, the appellant does not generallyhave to show that spectators
were 

### infact excluded as a result ofthe 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 theproceedings 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 ofany observers); State v. Wise, 176 Wn.2d 1, 7, 288 P.3d 1113
6State v. Gomez (Benito), No. 90329-8 because the defendant failed to show that anyone was in fact excluded, butbecause "it [could not] be determined conclusivelythat observers were in the courtroom during the proceeding in question, neither [could] itbe said that the public was excluded."Njonge, 181 Wn.2d at 558. InKoss, we similarlyrefused to infer that an alleged secret, closed meeting between the State's counsel and the trialjudgehad 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 thepublic was fully excluded from entry. In a factually similar case, the Court ofAppeals correctly concludedthat the trialjudge's statement-thathe did not like people coming and going during closing arguments and asked those who did not thinkthey could last throughout the morning to rethinkbeing in the courtroom-didnot amount to a closure because "thecourt did not 'completely' or 'purposefully' close the proceedings." State v. Stark, 183 Wn. App. 893,903,334 P.3d 1196 (2014) (citingLormor, 172 Wn.2d at 93). We agree with this analysis; short ofan explicit orderto close the courtroom,
we do notpresume that the entirepublic was effectivelyprohibited from entry. The

(2012) (same); Orange, 152 Wn.2d at 802 (record demonstrated that the trial courtprohibited 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). 7State v. Gomez (Benito), No. 90329-8 record must establish that the courtroom andproceedings were closedbyexpress direction ofthejudge. Based on the recordhere, we cannot determine whether a closure actually occurred. The only evidence in this record supportive ofa possible closure is the judge's comment onthe first day oftrial, which Gomez contends amounted to a "ruling" for "ageneral prohibition for spectators and an exclusion ofthe public from the trial." Resp't's Suppl. Br. at 5. Far short ofan actual ruling, thejudge said, "We do not allow people to come into the courtroom after [it] is in session." 2 VRP at 153. Thejudge 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. Thejudge did not explicitly order a closure ofthe courtroom, such that we can conclusively determine that the statement itselfwas meant to prevent people from entering or to compel spectators to leave. Rather, thejudgemade the remark in the context ofa lengthyruling 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 ofany 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 ofspectators and none were asked

8State v. Gomez (Benito), No. 90329-8
to leave. Given our existing definition ofa "closure," something more must be shown from the record. Evenifwe presumed that the comment was enforced, thejudge'srule does not constitute a closure. As we discussed in

### Lormor, the appellant must show that thejudge acted to close the courtroom to the public, as opposedto acting to manage the in-court proceedings. As in

### Lormor, the exclusion ofonly one or a few individuals is a matter ofcourtroom operations, in which the trialjudgepossesses broad discretion "to preserve and enforce order in the courtroom and to provide for the orderly conduct ofits proceedings."

### Lormor, 172 Wn.2d at 93-94. Just as trial courtjudges are permitted to exclude distracting individuals, they are permitted to impose reasonable restrictions onthe public's manner ofentry so as to minimize the risk ofdistraction orimpact ontheproceedings. 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 briefcomment made onthe first day oftrial. We have reiterated several times that we do not presume orinfer a violation from a silent

9State v. Gomez (Benito), No.**90329~8** record. We reverse the Court ofAppeals and reinstate Gomez's convictions. 3

WE CONCUR:

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3The State makes two additional arguments in its briefing, neither ofwhich 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 ofthe 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 ifwe 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 ofthe public trial violation "forecloses the possibility ofde 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