IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
BENITO MICHAEL RODRIGUEZ,
FILED: April 4, 2011
Grosse, J. — Article I, section 22 of the Washington State Constitution
guarantees a criminal defendant the right to a public trial. The court in this case
violated Benito Rodriguez’s right to a public trial when it conducted a portion of
voir dire in chambers without weighing the factors required by State v. BoneClub.1 Because a failure to conduct an adequate Bone-Club analysis requires
reversal in all but the most exceptional circumstances, we reverse Rodriguez’s
convictions and remand for further proceedings.
The State charged Rodriguez with vehicle prowl, theft, and malicious
mischief. At the beginning of jury selection, the court informed the jury pool that
individual questioning in chambers was available “[if] for any reason you’re
hesitant or unwilling to give an answer in front of this large group of people.”
The court later asked whether there was anything in the jurors’ personal or
professional lives that would make it difficult for them to sit on the jury given the
128 Wn.2d 254, 906 P.2d 325 (1995).
trial’s anticipated length. Juror 12 asked if she could answer in private.
At the end of voir dire, the court and counsel discussed Juror 12’s request
in open court:
THE COURT: . . . Ladies and gentlemen, I know Juror
Number 12 indicated there were some issues on a conflict she had
with hearing the case and she prefers to talk in chambers.
Anybody have a problem with us going back in chambers with
Juror Number 12? Apparently no one has a problem. We’ll meet
with Juror Number 12 in chambers real briefly.
[PROSECUTOR]: Is the court finding this is the least
restrictive way to accomplish this?
THE COURT: It is.
[PROSECUTOR]: No objection by defense either?
[DEFENSE COUNSEL]: No.
The court and the prosecutor proceeded to briefly question the juror in chambers
concerning her hardship and her ability to focus on the trial. Defense counsel
asked no questions.
Juror 12 was not seated on the jury, which found Rodriguez guilty as
charged. He appeals.
Rodriguez contends the court violated his right to a public trial under
article I, section 22 of the Washington State Constitution by conducting a portion
of jury selection in chambers without first applying and weighing the five Bone-
Club factors. We agree.
Section 22 provides: “In criminal prosecutions the accused shall have the
right . . . to have a speedy public trial.”
While the public trial right is not
absolute, Washington courts strictly guard it to assure that proceedings occur
outside the public courtroom in only the most unusual circumstances.2
protect the right, our Supreme Court held in Bone-Club that a trial court must
apply and weigh five factors before closing a portion of a criminal trial.3 Also, the
court must enter specific findings justifying its closure order.4
requirements extend to closure of jury selection,5 and in all but the most
exceptional circumstances, closing voir dire without employing an explicit Bone-
State v. Easterling, 157 Wn.2d 167, 174-75, 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, 804-05, 100 P.3d 291 (2004); Bone-Club, 128
Wn.2d at 258-59.
“1. The proponent of closure . . . 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
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.”
Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily
Newspapers v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
Easterling, 157 Wn.2d at 175 (citing Bone-Club, 128 Wn.2d at 258-59).
Orange, 152 Wn.2d at 804 (quoting Press-Enter. Co. v. Superior Court, 464
U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
Club analysis is reversible error requiring a new trial.6
Here, the court closed voir dire without adequately addressing the BoneClub factors.7 Although the record reflects concern for the juror’s privacy and
perfunctory consideration of the “least restrictive means” factor, it fails to
demonstrate that the “court engaged in the detailed review that is required in
order to protect the public trial right.”8 Closure in the absence of such review
The State argues, however, that Rodriguez waived any error when his
counsel told the court he had no objection to questioning the juror in chambers.
But “the court must ensure that any waiver of Section 22 rights is knowing,
intelligent, and voluntary—which means the court must be sure the defendant
knew he possessed such a right and knowingly waived it.”9 As there was no
State v. Strode, 167 Wn.2d 222, 223, 217 P.3d 310 (2009); see also State v.
Momah, 167 Wn.2d 140, 156, 217 P.3d 321 (2009) (under the unusual facts of
the case, failure to employ Bone-Club analysis held not to be structural error
requiring reversal); see Easterling, 157 Wn.2d at 174, 181 (citing Bone-Club,
128 Wn.2d at 261-62) (violation of right is presumptively prejudicial and requires
a new trial). Our review is de novo. Easterling, 157 Wn.2d at 173-74.
We recognize that a distinction might be drawn for public trial purposes
between the jury selection process and excusing jurors from the venire for
hardship. Cf. State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011) (noting that, for
purposes of a defendant’s right to be present, courts have distinguished
between preliminary hardship inquiries and substantive voir dire). But the State
has not asked us to make that distinction here. Nor would we be inclined to
make such a distinction when, as here, the hardship inquiry occurs in chambers
and takes place after, not before, the lawyers have conducted their voir dire and
communicated the nature of the case to the jury.
Strode, 167 Wn.2d at 228; State v. White, 152 Wn. App. 173, 181, 215 P.3d
251 (2009) (“The trial court must consider alternatives and balance the
competing interests on the record.”).
Ticeson, 2011 WL 167476, at 4 (citing Strode, 167 Wn.2d at 229 n.3); see also
mention of Rodriguez’s public trial right below or any indication that defense
counsel’s assent reflected Rodriguez’s knowing and intelligent waiver of that
right, the record does not establish waiver.
The State also argues that reversal is not warranted because the inchambers voir dire was extremely brief and therefore a de minimis violation of
the public trial right. But as we noted in In re Ticeson, Washington courts,
including our Supreme Court, have repeatedly declined to find violations of the
public trial right de minimis.10 We decline to adopt a de minimis exception here.
That question is best addressed to our State Supreme Court.
Finally, the State contends reversal is not warranted because the
circumstances in this case are analogous to those before the court in State v.
Momah.11 Again, we disagree. Momah was characterized by wide publicity and
grave concerns that prospective jurors with knowledge of the case would
contaminate the entire venire if questioned in open court.12 Momah affirmatively
agreed to private questioning in chambers and his counsel sought to expand the
process to all potential jurors, actively participated in the private questioning,
and exercised numerous challenges for cause.13 The Supreme Court concluded
that this conduct indicated deliberate, tactical choices to protect Momah’s right to
Duckett, 141 Wn. App. at 806-07 (finding no waiver where “the court never
advised [the defendant] of his public trial right or asked him to waive it.”).
No. 63122-5, 2011 WL 167476, at 5 (Wash. Ct. App. Jan. 18, 2011).
167 Wn.2d 140, 217 P.3d 321 (2009).
Momah, 167 Wn.2d at 145-46.
Momah, 167 Wn.2d at 147.
an impartial jury.14 And while the trial court in Momah failed to conduct a precise
Bone-Club analysis, the record showed that it recognized and “carefully
considered” the competing interests in a public trial and an impartial jury. 15 The
Supreme Court found these circumstances distinguished Momah from the court’s
previous public trial cases.16 They distinguish Momah from this case as well.
Accordingly, we must reverse Rodriguez’s convictions.
We reject Rodriguez’s contention that his malicious mischief conviction is
not supported by sufficient evidence and that the underlying charge must
therefore be dismissed. Evidence is sufficient to support a conviction if, viewing
all of the evidence in the light most favorable to the State, any rational juror
could have found all the elements of the crime proved beyond a reasonable
doubt.17 A defendant challenging the sufficiency of the evidence admits the truth
of the evidence and all rational inferences that may be drawn from it.18
Rodriguez contends there was insufficient evidence for the jury to find that
he broke the window on the victim’s truck. The evidence established that the
truck’s back window was locked and in good condition several hours before
Rodriguez entered the truck through the rear slider pane.
entry, there was a hole in the window next to the slider pane that allowed access
Momah, 167 Wn.2d at 155; see also Strode, 167 Wn.2d at 234 (Fairhurst, J.,
concurring) (“the defendant intentionally relinquished a known right.”).
Momah, 167 Wn.2d at 156.
Momah, 167 Wn.2d at 151.
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004).
to the locking clasp on the pane. Rodriguez possessed a small flashlight that
could have been used to break the window, and a witness testified that
Rodriguez was using the flashlight inside the truck. Viewed in the light most
favorable to the State, this evidence was sufficient for the jury to infer that
Rodriguez broke the window.19
Reversed and remanded for further proceedings.
Citing State v. Bencivenga, 137 Wn.2d 703, 708, 711, 974 P.2d 832 (1999),
Rodriguez argues that the jury could not draw that inference because there were
other reasonable inferences implicating someone else. But as the Bencivenga
court noted, the reasonableness of inferences is a matter for the trier of fact.