STATE v. RIVERA, 43839-5-I (Wash.App. 10-8-2001)

FAYE C. KENNEDY, J.

Our State Supreme Court recently ruled that erroneous denial of a litigant's peremptory challenge is never harmless when the objectionable juror actually deliberates. State v. Vreen, 143 Wn.2d 923, 932, 26 P.3d 236 (2001). Salvador Hernandez Rivera's appeal of his first degree murder conviction raises the issue of whether harmless error analysis is appropriate where the trial court fails to accord a criminal defendant the full number of alternate-juror peremptory challenges granted by CrR 6.5, and neither alternate juror actually deliberates. Because the error does not call into question the defendant's constitutional right to a fair trial by an impartial jury and Rivera has not shown prejudice, we conclude that reversal is not required. We also reject Rivera's contention that his right to a public trial was violated when the court closed the courtroom to address a juror's complaints about the hygiene of another juror. We affirm Rivera's conviction.

Salvador Rivera and his brother Manuel Rivera were charged by amended information with murder in the first degree and with being armed with a firearm during the commission of the murder. The victim, Matt Garza, died from a gunshot wound to the head fired at close range. The brothers were tried together.

In non-capital cases, the defense is allowed six peremptory challenges to prospective jurors. CrR 6.4(e)(1). A peremptory challenge is an objection to a juror for which there is no reason given but upon which the court shall exclude him or her. Id. When multiple defendants are tried together, each defendant receives an additional peremptory challenge. Id.

When the court chooses to pick alternate jurors, the defense is allowed an additional peremptory challenge for each alternate juror to be selected. CrR 6.5. And when multiple defendants are tried together each defendant is allowed an additional peremptory challenge with respect to the alternate jurors. Id. Here, the trial court properly allowed the co-defendants a total of eight peremptory challenges under RCW 6.4(e)(1). The court determined that two alternate jurors should be selected. But instead of allowing a total of four peremptory challenges (two for each co-defendant) under CrR 6.5, the trial court allowed a total of only two.

At the conclusion of voir dire, after the parties had accepted the jury, the error with respect to peremptory challenges of the alternate jurors was discovered. The court declined to reopen voir dire, and subsequently denied a motion for mistrial based on the error. When the case was sent to the jury, the alternates were excused. They did not participate in deliberations. During the trial, which otherwise had been open to the public, the trial court conducted a hearing in a closed courtroom, with the parties present, regarding a juror's complaint about a fellow juror's lack of personal hygiene. Rivera did not object to the closure of the courtroom. The trial court did not conduct an on-the-record balancing of the defendants' right to a public trial against the need for the closure before holding the closed hearing.

Rivera argues that the error depriving him of one of his peremptory challenges with respect to the selection of the alternate jurors violated his rights under both Wash. Const. art. 1, § 22 and the Sixth Amendment to the United States Constitution. Rivera also contends that the error deprived him of due process under the Fifth and Fourteenth Amendments to the United States Constitution. He contends that automatic reversal is required even though neither alternate juror deliberated, and even though it is undisputed that the jury that rendered the verdict was fair, impartial and unaffected in any way by the error with respect to selection of the alternate jurors.

The Sixth Amendment guarantees a defendant the right to a fair and impartial jury. State v. Williamson, 100 Wn. App. 248, 251, 996 P.2d 1097 (2000). However, it does not guarantee peremptory challenges. State v. Vreen, 99 Wn. App. 662, 668, 994 P.2d 905, aff'd, 143 Wn.2d 923, 26 P.2d 236 (2001). Instead, peremptory challenges are governed by rule and statute. Williamson, 100 Wn. App. at 251. Where the jury selection process did not materially depart from the applicable rules, a defendant must show actual prejudice to receive a new trial. Id. Neither is the right to a certain number of peremptory strikes, or any at all, embodied in the concept of due process. United States v. Annigoni, 96 F.3d 1132, 1150 (9th Cir. 1996) (en banc) (Kozinski, J., dissenting) (citing Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992)). Nevertheless, peremptory challenge is a part of our common law heritage, and one that was already venerable in Blackstone's time. United States v. Martinez-Salazar, 528 U.S. 304, 311, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) (citing Blackstone, 4 Commentaries 346-48 (1st ed. 1769)). Its purposes include reinforcing a defendant's Sixth Amendment right to trial before an impartial jury, 528 U.S. at 311 (citations omitted), allowing the parties to remove a certain number of jurors who are not challengeable for cause but in whom the parties may perceive bias or hostility — thereby eliminating extremes of partiality on both sides — and to assure the parties that the jury will decide on the basis of the evidence at trial and not otherwise. Annigoni, 96 F.3d at 1137.

The United States Supreme Court has stated, in cases dating back more than a hundred years, that the denial or impairment of the right of peremptory challenge is reversible error. E.g., Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892); Harrison v. United States, 163 U.S. 140, 142, 16 S.Ct. 961, 41 L.Ed. 104 (1896), Swain v. Alabama, 380 U.S. 202, 212, 35 S.Ct. 824, 13 L.Ed.2d 759 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

In Martinez-Salazar, however, the Supreme Court reversed a Ninth Circuit ruling that reversal is a remedy for `loss' of a peremptory used by the defense to rectify the trial court's erroneous refusal to dismiss a juror for cause. The court reasoned that the defendant lost nothing to which he was entitled under federal rule or due process, in that use of a peremptory to excuse a juror who should have been excused for cause is in line with a principle reason for peremptory challenges — the selection of an impartial jury. 528 U.S. at 316-17. Commenting on the automatic reversal rule pronounced in Swain and its predecessors, the high court seemingly sounded a warning that reversal may not be the appropriate remedy for every conceivable impairment of the right of peremptory challenge no matter how slight. 528 U.S. at 317 n. 4.

Our Supreme Court recently ruled that `erroneous denial of a litigant's peremptory challenge cannot be harmless when the objectionable juror actually deliberates[.]' Vreen, 143 Wn.2d at 932. See also Annigoni, 96 F.3d 1132. In both Vreen and Annigoni, the trial court erroneously denied the defendant a peremptory challenge on Batson grounds, and the objectionable juror remained on the jury that convicted the defendants.

The Ninth Circuit has also ruled that a trial court's erroneous denial of a peremptory challenge to an alternate juror who ultimately replaced a member of the jury and rendered a verdict required reversal. Medrano v. City of Los Angeles, 973 F.2d 1499, 1503 (9th Cir. 1992).

In United States v. Patterson, 215 F.3d 776 (7th Cir. 2000), judgment vacated on other grounds, 531 U.S. 1033, 121 S.Ct. 621, 148 L.Ed.2d 531 (2000) the trial court erroneously granted only two extra challenges of alternate jurors, rather than three as required by Fed.R.Crim.P. 24 (c)(2), in a multi-defendant trial utilizing a struck-jury pool. The error did not call into question the impartiality of the jury eventually selected. 215 F.3d at 779. Fed.R.Crim.P. 52(a) provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." 215 F.3d at 781. The Patterson court held the error to be harmless, noting that `when the jury that actually sits is impartial, as this one was, the defendant has enjoyed the substantial right'. Id. at 782.

We conclude that like the defendants in Patterson, Rivera's substantial rights with respect to selection of alternate jurors were not impaired by the error here. Our own CrR 7.6(a)(5) provides that the court may grant a new trial when it affirmatively appears that a substantial right of the defendant was materially affected by an irregularity in the proceedings of the court by which the defendant was prevented from having a fair trial. The error here did not prevent Rivera from having a fair trial before a fair and impartial jury. Accordingly, the trial court did not err by denying Rivera's motion for mistrial.

On one occasion during trial, the court barred the public from the courtroom in order to deal confidentially with a juror's complaint regarding a fellow juror's lack of personal hygiene. Rivera did not object to the closed hearing. The court did not balance competing interests before holding the closed hearing. Rivera contends that the court thereby violated his right to a public trial.

Both the United States and Washington Constitutions protect a criminal defendant's right to a public trial. U.S. Const. Amend. 6; Wash. Const. art. I, § 22. Specifically, the Washington Constitution protects a criminal defendant's right "to have a speedy public trial[.]" Wash. Const. art. I, § 22. The right is "one created for the benefit of the defendant." Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (quoting Gannett v. DePasquale, 443 U.S. 368, 380, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979)). Further, the defendant need show no prejudice resulting from a violation of this right; prejudice is presumed. State v. Bone-Club, 128 Wn.2d 254, 257, 906 P.2d 325 (1995). Failure to object does not act as a waiver. Id.

In order to close the courtroom to the public, the trial court must generally conduct an on-the-record balancing of the defendant's right to a public trial against the need for the closure. Waller, 467 U.S. at 48; Bone Club, 128 Wn.2d at 260-61. A failure to conduct the balancing violates a defendant's right to a public trial under art I, § 22. Id. at 261. The remedy for a violation under art. I, § 22 is remand for a new trial. Id.

The central aim of the public trial guarantee is to ensure that a defendant is treated fairly by allowing the public to observe the defendant's treatment first-hand. Waller, 467 U.S. at 46. The public trial right applies to the evidentiary phases of the trial, and to other "adversary proceedings." Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997). Thus, a defendant has a right to an open court whenever evidence is taken, during a suppression hearing, and during voir dire. Id.; Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984). However, the hearing at issue concerned a juror's complaint regarding another juror's hygiene and a discussion about seating one juror away from another juror. This was a ministerial matter, not an adversarial proceeding. It did not involve any consideration of evidence, or any issue related to the trial. The hearing was akin to a chambers hearing or bench conference, and not part of a trial. Opening such conferences to the public would not further the aims of the public trial guarantee.

Accordingly, when construing the right of a defendant to be present at trial, courts have concluded that the defendant does not have a right to be present during a chambers hearing or bench conference. State v. Bremer, 98 Wn. App. 832, 835, 991 P.2d 118 (2000). Because the defendant has no constitutional right to be present during a chamber conference, there can be no constitutional right to have the public present. Whether a chambers hearing is held in chambers or in a closed courtroom is immaterial. The defendant's right to a public trial is not implicated in either situation. Accordingly, the trial court was not required to engage in balancing the merits of closing the courtroom on the record.

We find no violation of Rivera's right to a fair and impartial jury or to a public trial. Accordingly, we affirm his conviction.

The remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports, but will be filed of public record as provided in RCW 2.06.040.

Rivera pleaded self-defense in the killing of Garza. He argues that the court abused its discretion when it refused to allow his brother Felipe to testify concerning Garza's prior acts of violence of which Mr. Rivera was aware. The State concedes the error and we agree that Felipe's proffered testimony was admissible to show that Rivera reasonably feared Garza. Where self-defense is at issue, evidence of a victim's prior acts is admissible to show that the defendant reasonably feared the victim would harm him. State v. Fondren, 41 Wn. App. 17, 25, 701 P.2d 810 (1985); State v. Safford, 24 Wn. App. 783, 604 P.2d 980 (1979); State v. Adamo, 120 Wn. 268, 207 P. 7 (1922). The question is, therefore, whether the error was harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if there is no probability that the verdict would have been different without the error. Chapman v. California, 386 U.S. 19, 23, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967).

The evidence at trial that Garza's death was an act of premeditated murder rather than self-defense was overwhelming. Witnesses testified that Rivera was angry with Garza over a drug deal and repeatedly told others that he wanted to kill him. Rivera arranged to meet with Garza and armed himself with a loaded gun. Garza was shot in the forehead at very close range.

When found, Garza was clutching a beer can in both hands, and the only knife in the vicinity was a small folding pocketknife in his back pocket. Immediately after the shooting, Rivera told his brother Manny and Gabriel Morales Soto that he had shot Garza over a drug deal. He made no mention of any need for self-defense. When police told Rivera that Garza was not yet dead, Rivera said, `Damn it' and expressed his desire to `finish the job'. Following his arrest, Rivera gave police a series of conflicting statements, claiming that he shot Garza because Garza threatened to knife him, admitting that he never saw a knife because it was too dark but at the same time claiming it was not too dark for Garza to see that Rivera was carrying a firearm. Rivera also told police, `To tell you the truth maybe I was so furious I just pulled [the gun] out and shot him'. At another time, Rivera admitted to police that he was tired of getting ripped off and that he blew up and shot Garza. We also note that Rivera's claim that Garza charged at him with a knife is inconsistent with the fact that Garza was found shot in the forehead, holding a beer can with both his hands, carrying only a small folding knife in a back pocket. Rivera told police that he feared Garza because Garza had stabbed and robbed him once before. A prior bad act directed at Rivera is more compelling evidence of reasonable fear than Filipe's proferred testimony that Rivera was present when Garza was recounting some of his prior bad acts directed at others. Thus the error was ameliorated.

We conclude that the trial court's error in excluding Filipe's testimony was harmless beyond a reasonable doubt. No rational juror could have changed his or her vote based on Filipe's testimony, in light of the evidence (1) that Rivera told others several times in the days before the shooting that he was going to kill Garza out of revenge, (2) that Rivera arranged the meeting with Garza, (3) that Rivera armed himself with a loaded firearm before meeting with Garza, (4) that after the shooting, Rivera told his brother and a friend that he had shot Garza over a drug deal, (5) that Rivera made numerous inconsistent statements to police including tacit admissions that he killed Garza out of anger, not self-defense, (6) that when Rivera learned Garza was not yet dead he was angry and wanted to finish the job, (7) and finally that the physical evidence at the scene of the shooting totally contradicted Rivera's claim that Garza had charged toward him brandishing a knife.

In his Pro Se Supplemental Brief, Rivera presents the following issues.

Rivera argues that he did not receive effective assistance of counsel because his attorney failed to timely report a conflict of interest to the trial court, because he failed to move for a change of venue, and because he failed to object when the prosecuting attorney distorted the evidence during closing argument. Rivera also challenges the sufficiency of the evidence to support a finding of premeditation. And finally, he claims that his statement to police was illegally videotaped and therefore inadmissible under Washington's wiretapping statute. To prevail on a claim of ineffective assistance, a defendant must show (1) that his counsel's actions fell below an objective standard of competence, and (2) that, but for counsel's errors, the results of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). Counsel is strongly presumed competent, and an appellant "must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." Id. at 336. Where a defendant claims ineffective assistance from counsel's failure to object, the defendant must show that the objection would have been sustained. Id. at 337.

Rivera claims that his attorney had a conflict of interest because, having previously represented Garza, the attorney had knowledge of one of Garza's prior bad acts and could have been called as a witness to testify about Garza's prior criminal conduct if he had timely revealed the fact that he had previously represented Garza. Rivera could not have called his attorney as a witness on this basis. In a self-defense case, the victim's specific bad acts are admissible to show that the defendant's fear of harm was reasonable — so long as the evidence also shows that the defendant had knowledge of the bad acts. Thus, the issue was whether Rivera knew of any specific bad acts at the time of the shooting, not whether his attorney knew of them. His claim of ineffective assistance fails on this ground. Rivera does not contend that his attorney's prior representation of Garza, in and of itself, created an actual conflict of interest. Accordingly, we do not address that potential issue.

Rivera also argues that his counsel was ineffective for failing to move for a change of venue. A defendant has a right to a change of venue only where he or she can show an apparent probability of prejudice, usually from excessive and inflammatory pre-trial publicity. State v. Wall, 52 Wn. App. 665, 670, 763 P.2d 462 (1988). The mere existence of pretrial publicity does not justify a change of venue. Id. at 670. Rivera has offered no evidence regarding the nature of the pre-trial publicity and cannot show on the record that he would have won a motion for change of venue. His claim of ineffective assistance also fails on this ground.

Finally, Rivera argues that his counsel was ineffective for failing to object during the State's closing argument. The gravamen of the complaint is that counsel should have objected when the prosecutor argued to the jury that Rivera had lured Garza to the scene in order to kill him when there was ample evidence that Garza arranged the meeting of his own volition. Whether or not to object is a tactical decision and does not constitute deficient performance. Moreover, the prosecution and defense argued competing inferences from the evidence. That the jury adopted the State's inference does not show that Rivera was prejudiced.

Rivera argues that the State did not provide sufficient evidence to support a finding of premeditation. We have already determined that the evidence of premeditation was overwhelming, supra. Any further discussion would be redundant.

Rivera also argues that one of his statements to police was illegally videotaped and therefore inadmissible under the Washington wiretapping statutes. The wiretapping statute only forbids the use of tapes made without a defendant's knowledge. RCW 9.73.050. Here, the video camera was out in the open and Rivera knew his previous statement had been taped. From the totality of the circumstances, the trial court found that Rivera knew he was being taped. The record fully supports this finding. There was no abuse of discretion. Rivera's claim of cumulative error fails. The trial court's erroneous exclusion of Filipe's testimony regarding Garza's prior bad acts was harmless beyond a reasonable doubt. The remaining assignments of error lack merit. Accordingly, there was insufficient error to cumulate.

Affirmed.

WE CONCUR: AGID, J., GROSSE, J.