IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
ERIC DWAYNE VENTRESS,
FILED: April 4, 2011
Ellington, J. — Eric Ventress appeals his convictions for first degree burglary,
first degree felony murder, and possession of a stolen firearm. He contends the court
violated his right to a public trial and erred by admitting his recorded statement in
violation of the Washington privacy act, chapter 9.73 RCW. He also argues the
evidence is insufficient to support his burglary and felony murder convictions.
Because Ventress is correct that his public trial right was violated, we reverse and
remand for a new trial. We address other issues that may arise on remand.
On October 3, 2005, Eric Ventress’s brother, Leroy, went to a “drug house” on
St. Paul Street in Bellingham, Washington. Leroy knocked before going in. Inside
were Marco Bland, Mark Whitehead, and Randolph Clark-El. A fight broke out and
Whitehead beat up Leroy and took his belongings. Leroy left the house.
Later that day, Ventress went to the St. Paul Street house. Clark-El let him in.
When Ventress found out about the fight involving his brother, he threatened to come
back if he learned it had not been a fair fight.
Leroy told Ventress he wanted to confront his assailants and retrieve his
belongings. The brothers picked up two guns Leroy had previously stolen and returned
to the St. Paul Street house. Leroy kicked in the front door and confronted Whitehead.
Ventress had at least one of the guns, and stood guard while Leroy fought Whitehead.
When Bland appeared, Ventress fatally shot him. Ventress and Leroy fled.
Unable to locate Ventress but believing he had left town, Detective Ferguson of
the Bellingham Police Department contacted a local Federal Bureau of Investigation
(FBI) agent for assistance. The police department and FBI shared information and
learned that Ventress was on a bus headed to Fort Collins, Colorado. The FBI
arranged for the Fort Collins police to arrest Ventress on a federal warrant. Ventress
made a detailed statement to Fort Collins police admitting that he and his brother
forcibly entered the St. Paul street home armed with stolen guns, and that he shot
Ventress was charged with first degree burglary with a firearm, first degree
felony murder with a firearm, possession of a stolen firearm, and unlawful possession
of a firearm in the second degree.
During jury selection, seven members of the jury pool were questioned in
chambers regarding what they had heard about the case and about being victims of
At trial, the court admitted the recording of Ventress’s statement to Fort Collins
police over his objection that it was recorded without his knowledge, in violation of the
Washington privacy act.
Ventress was convicted as charged, and now appeals.1
Public Trial Right
Ventress contends that by conducting a portion of jury voir dire in chambers
without proper analysis, the court violated his right to a public trial under Washington
Constitution article I, section 22 and the public’s right to open proceedings under
Washington Constitution article I, section 10. We agree.
To protect both section 10 and section 22 rights, courts must apply a five-part
test (known as the Bone-Club test) before restricting public access to judicial
proceedings.2 This requirement applies to closure of jury selection.3 In all but the most
exceptional circumstances, closing voir dire without employing the Bone-Club analysis
is reversible error in which prejudice is presumed and remand for a new trial is
The unlawful possession of a firearm charge was tried on stipulated facts and
was not submitted to the jury. That conviction is unchallenged here.
The Bone-Club requirements are: “‘(1) The proponent of the closure or
sealing 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.’” State v. Bone-Club, 128
Wn.2d 254, 258–59, 906 P.2d 325 (1995) (alteration in original) (quoting Allied Daily
Newspapers v. Eikenberry, 121 Wn.2d 205, 210–11, 848 P.2d 1258 (1993)).
State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 (2009), cert. denied, 131
S. Ct. 160, 178 L. Ed. 2d 40 (2010).
State v. Strode, 167 Wn.2d 222, 226, 217 P.3d 310 (2009); see also Momah,
Here, the court conducted in-chambers voir dire without performing a Bone-Club
analysis. This was error.5
Relying on State v. Momah, the State argues the closure was justified as a
safeguard to Ventress’s right to a fair and impartial jury, and that Ventress waived his
right to a public trial by failing to object and by actively participating in the closed
proceeding.6 On this record, these arguments fail.
Although the Momah court did not conduct a precise Bone-Club analysis, the
record indicated the court recognized and balanced competing interests in a public trial
and an impartial jury, and narrowly tailored the closure to accommodate only those
jurors who indicated they might not be impartial.7 The record further indicated Momah
was aware of his rights and made a deliberate and tactical decision to achieve a fair
result, thereby waiving his section 22 rights.8 Here, nothing in the record demonstrates
either that the court considered Ventress’s right to a public trial before closing
proceedings or that Ventress was sufficiently aware of his public trial right such that he
effected waiver by failing to object.
The State also asserts that, even if the closure was not justified, the violation
was insignificant and did not infringe on Ventress’s right to a public trial. There is no
Washington precedent for this conclusion.9
167 Wn.2d at 156 (failure to employ Bone-Club factors held not to be structural error
Strode, 167 Wn.2d at 224.
167 Wn.2d 140, 217 P.3d 321 (2009).
Id. at 146.
Strode, 167 Wn.2d at 230 (“This court, however, ‘has never found a public trial
The court improperly excluded the public from a portion of jury selection without
conducting a Bone-Club analysis. We thus reverse Ventress’s convictions and remand
for a new trial. We address other issues as may arise on remand.
Ventress argues the court erred by admitting his recorded statement to the
Colorado police in violation of the Washington privacy act, which requires law
enforcement to inform an arrested person that he or she is being recorded.10
Because Ventress’s statement was recorded without his knowledge, the parties
agree that the recording does not comply with the privacy act. Thus, had the statement
been obtained in Washington, it would be inadmissible. But the State relies upon the
silver platter doctrine, which allows Washington courts to admit evidence obtained by
another jurisdiction in accordance with its laws, although the means by which it was
obtained may violate Washington law.11
The doctrine is limited, however, where Washington authorities provide such
extensive “cooperation and assistance” to the authorities in the other jurisdiction that
right violation to be [trivial or] de minimus.’”) (alteration in original) (quoting State v.
Easterling, 157 Wn.2d 167, 180, 137 P.3d 825 (2006)).
RCW 9.73.090(1)(b)(i) (“Video and/or sound recordings may be made of
arrested persons by police officers responsible for making arrests or holding persons in
custody before their first appearance in court. Such video and/or sound recordings
shall conform strictly to the following: (i) The arrested person shall be informed that
such recording is being made and the statement so informing him shall be included in
the recording.” (emphasis added)).
See State v. Brown, 132 Wn.2d 529, 584–91, 940 P.2d 546 (1997); State v.
Gwinner, 59 Wn. App. 119, 126–27, 796 P.2d 728 (1990); accord State v. Fowler, 157
Wn.2d 387, 396 n.5, 139 P.3d 342 (2006) (applying principles of silver platter doctrine
to hold evidence legally gathered in Oregon, but which would be in violation of
Washington law, was admissible in Washington courts).
the other jurisdiction should be considered their “agent,” acting under the color of state
law.12 Ventress contends such was the case here.
The trial court found the following facts. When the Fort Collins police arrested
Ventress, he made unsolicited statements about shooting a man in Washington in
defense of his brother. Fort Collins police so advised the FBI and asked whether an
interview was desired. The FBI provided contact information for the investigating
Bellingham detective, Tim Ferguson. When contacted and advised that Ventress was
making spontaneous statements, Ferguson asked Fort Collins detective Adam
McCambridge to conduct an interview. Ferguson gave McCambridge a synopsis of the
investigation and said that if McCambridge “could do the interview that would be great,
and if you could get a taped statement from him that would be even better.”13
McCambridge obtained a statement and called Ferguson, who asked for further details
about the current location of the murder weapon and the clothing worn by Ventress.
McCambridge asked Ventress about these subjects.
At the Fort Collins police station, it is standard practice to record interviews in
rooms equipped with hidden audio and video recording devices. Ventress was not
advised his statement was being recorded. Bellingham police were not aware of the
procedure being used until after the interview was complete.14
Thus the question is whether the interactions between Fort Collins police and
Gwinner, 59 Wn. App. at 125; see also State v. Johnson, 75 Wn. App. 692,
700, 879 P.2d 984 (1994) (Gwinner guidelines for analyzing “agency” under the silver
platter doctrine are different from those used to analyze formal agency relationship).
Report of Proceedings (Oct. 23, 2006) at 47–48.
Ventress challenges this finding, but it is consistent with the officer’s testimony
and so is supported by substantial evidence.
Bellingham police amounted to an “agency” relationship. The trial court concluded
there was no agency. We agree.
In State v. Gwinner, this court set out guidelines for analyzing the issue of
“agency” under the silver platter doctrine:
“[A]ntecedent mutual planning, joint operations, cooperative
investigations, or mutual assistance between federal and state officers
may sufficiently establish agency and serve to bring the conduct of the
federal agents under the color of state law. On the other hand, mere
contact, awareness of ongoing investigations, or the exchange of
information may not transmute the relationship into one of agency.”
The Gwinner court further considered whether suppression of evidence gathered in
violation of the privacy act would either advance legitimate state interests in protecting
the privacy rights of its citizens or deter state officers from unlawful conduct.16
Washington courts have repeatedly held that conversations with police officers are not
Applying the principles in Gwinner, we agree with the trial court that there was
no agency relationship between the Bellingham and Fort Collins police. Certainly there
were no joint operations and there was no antecedent planning. Rather, Bellingham
police asked police in another state to get a statement from a Washington criminal
suspect who was spontaneously talking to them about a Washington crime. The
59 Wn. App. 119, 125, 796 P.2d 728 (1990) (alteration in original) (quoting
State v. Mollica, 114 N.J. 329, 356, 554 A.2d 1315 (1989)).
Id. at 126; see also Brown, 132 Wn.2d at 589–90 (no agency where
Washington police asked California police to get statement from Washington suspect);
State v. Johnson, 75 Wn. App. 692, 700–01, 879 P.2d 984 (1994) (agency found where
there was ongoing collaborative investigation of Washington residents by Washington
and federal authorities).
Lewis v. Dep’t of Licensing, 157 Wn.2d 446, 460, 139 P.3d 1078 (2006).
Bellingham officer who asked that Ventress’s statement be recorded did not know how
the statement would be recorded, or that it would be without Ventress’s knowledge.18
There is no suggestion the Bellingham police tried to circumvent Washington law, and
the Fort Collins police followed Colorado law. Under these circumstances, no
Washington State interest would be advanced by suppressing the recorded confession.
Ventress’s statement is admissible under the silver platter doctrine.
Sufficiency of the Evidence
Ventress argues the State failed to present evidence sufficient to convict him of
first degree burglary. Evidence is sufficient if it permits a rational trier of fact to find that
the State has established the essential elements of the crime beyond a reasonable
doubt.19 A defendant who challenges the sufficiency of the evidence admits the truth of
the evidence, and all inferences are drawn in favor of the State.20
Relying on testimony that suggests 30 to 40 people visited the St. Paul house
each day, Ventress contends it was unclear who, if anyone, had authority to bar visitors
from entering the house. Even so, Leroy knocked on the door when he first visited, and
there is no evidence that it was typical for visitors to enter by kicking in the door while
armed with guns. The evidence that Ventress did just that was sufficient for the jury to
conclude he entered unlawfully.
Statement of Additional Grounds
Ventress claims he asked for and was denied an attorney during his statement to
See Brown, 132 Wn.2d at 589–90.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
Fort Collins police, thus making his statement inadmissible. We disagree.
Washington courts infer waiver of Miranda21 rights when an arrestee “‘voluntarily
discusses the charged crime with police officers and indicates an understanding of his
rights.’”22 A request for an attorney must be unequivocal.23
The relevant exchange between Ventress and Detective McCambridge is as
You have a right to talk to a lawyer—
I understand that.
—before talking and have him present before you
answer any questions.
Okay. Is there a lawyer going to come?
There isn’t one here right now.
I’m going to talk to you.
Yeah, I want to talk to you, man. You guys got to
know what happened.
Ventress also signed a form acknowledging he understood and waived his rights.
The record shows Ventress was advised of and understood his Miranda rights,
that he failed to make an unequivocal request for an attorney, and that he knowingly,
voluntarily, and intelligently waived his right to remain silent.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
State v. Campos-Cerna, 154 Wn. App. 702, 709, 226 P.3d 185, review denied,
169 Wn.2d 1021 (2010) (quoting State v. Ellison, 36 Wn. App. 564, 571, 676 P.2d 531
State v. Radcliffe, 164 Wn.2d 900, 906–07, 194 P.3d 250 (2008) (citing Davis
v. United States, 512 U.S. 452, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)).
Ex. 23 at 3–4.
Under Strode, the court violated Ventress’s right to a public trial. We thus
reverse and remand for a new trial.