STATE v. RUSSELL

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Docket Number

No. 34424-6-II.

Attorney(S)

Thomas M. Kummerow (of Washington Appellate Project), for appellant. Arthur D. Curtis, Prosecuting Attorney, and Michael C. Kinnie, Deputy, for respondent.

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Smart Summary

Factual and Procedural Background

On December 9, 2005, the State charged Roy Wayne Russell, Jr., with second degree felony murder for causing the death of 14-year-old C.M.H., found in the basement of Russell's Clark County home. Before trial the court prohibited the print media from photographing juvenile witnesses (and restricted the pooled television camera from pointing at juvenile witnesses), while permitting audio recording and permitting photographs only with the juvenile witness's or a parent's consent. After a jury convicted Russell on January 24, 2006, the trial court found by a preponderance of the evidence that Russell had two qualifying prior convictions under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, and sentenced him to life without parole. Russell appealed.

Legal Issues Presented

Whether the trial court's prohibition on photographing juvenile witnesses without consent violated Russell's constitutional right to a public trial.
Whether Russell had a right to have a jury decide the fact of his prior convictions.
Whether Russell had a right to have prior convictions proved beyond a reasonable doubt before application of the POAA.
Whether the POAA violates the single-subject requirement of the Washington Constitution.
Whether Russell's claims in his Statement of Additional Grounds had merit.

Arguments of the Parties

Appellant's Arguments

The prohibition on photographing juvenile witnesses without consent amounted to a closure of the courtroom and therefore violated Russell's right to a public trial; the trial court failed to apply Bone-Club factors and did not comply with GR 16's presumption of open access.
Russell also advanced issues regarding jury determination and proof beyond a reasonable doubt for prior convictions, and challenged the POAA under the single-subject rule (as framed on appeal).

Respondent's Arguments

The State argued the trial court did not close the courtroom or deny Russell his constitutional right to a public trial; it merely limited photography of juvenile witnesses consistent with its authority and GR 16.

Media's Argument (as reported)

The editor of a local newspaper argued that denying the press the opportunity to photograph juvenile witnesses would deny the public its right to an open courtroom.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995)	Requires trial courts to consider five factors and enter specific findings before ordering courtroom closure; courts must resist closure except in unusual circumstances.	The court held Bone-Club standards govern full closures but found no closure occurred here (only a photography restriction), so it declined to apply Bone-Club's closure-analysis to this restriction.
State v. Easterling, 157 Wn.2d 167, 137 P.3d 825 (2006)	States that whether a trial court violated the right to public trial is an issue of law reviewed de novo (citing Bone-Club).	Used as the standard of review for Russell's public-trial claim (de novo review).
In re Pers. Restraint of Orange, 152 Wn.2d 795, 100 P.3d 291 (2004)	States presumptive remedy for public-trial violation is reversal and remand for new trial; emphasizes error when Bone-Club analysis not performed before full closure.	Cited to note the typical remedy for closure violations and to support distinction between full closures (error when Bone-Club not followed) and the present restriction.
Cohen v. Everett City Council, 85 Wn.2d 385, 535 P.2d 801 (1975)	Referencing constitutional guarantees (Sixth Amendment and article I, §22) of a public trial.	Cited to identify constitutional protections for a public trial invoked in the analysis.
Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 (1982)	Article I, section 10's requirement that justice be administered openly provides public and press a right to open court proceedings.	Cited as authority for the public and press right to open and accessible court proceedings.
State v. Brightman, 155 Wn.2d 506, 122 P.3d 150 (2005)	Explains purposes of the public trial right (fair trial, accountability, encouraging witnesses, discouraging perjury).	Referenced to describe the constitutional purposes served by public trials.
State v. Gregory, 158 Wn.2d 759, 147 P.3d 1201 (2006)	Distinguishes full courtroom closures from temporary/partial exclusions; upholds limited, explained exclusions when within trial-court discretion.	Used to analogize the present restriction (limited and explained, not a full closure) and support that the trial court did not abuse its discretion.

Court's Reasoning and Analysis

The court reviewed de novo whether Russell's public-trial right was violated. It summarized constitutional provisions guaranteeing public trials and noted Bone-Club's requirement that full courtroom closures follow a five-factor analysis with specific findings. The court determined the trial court never prevented public access, removed persons, or otherwise effected a full or partial closure; it only restricted photography of juvenile witnesses without consent and permitted audio recording and photography with consent. The court analogized the restriction to the limited exclusions addressed in Gregory and found the trial court sufficiently explained its reasons (protecting juveniles' ability to testify), held a hearing allowing media input, and tailored the limitation to the case's circumstances. The court further found the trial court complied with GR 16: it made particularized findings, presumed open access, heard from parties/media, explained the limitation's basis, and limited the restriction's scope and duration. The court also noted the trial court considered press ethics and juvenile-protection standards and coordinated with the press to implement consent procedures. Because there was no closure in any sense, the court declined to apply Bone-Club's closure analysis and held the restriction was within the trial court's discretion.

Holding and Implications

AFFIRMED.

Direct effect: The Court of Appeals affirmed Russell's conviction and the trial court's limitation on photographing juvenile witnesses; the trial court's finding of two qualifying prior convictions under the POAA and Russell's life-without-parole sentence were upheld. The court also rejected Russell's other claims (no jury right to decide priors, no right to have priors proved beyond a reasonable doubt under controlling authority, and no single-subject violation of the POAA), and found his additional grounds meritless. The opinion applies existing precedent and does not purport to establish a new legal rule.

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THE STATE OF WASHINGTON, Respondent, v. ROY WAYNE RUSSELL, JR., Appellant.

BRIDGEWATER, J.

¶1 Roy Wayne Russell, Jr., appeals his conviction for second degree murder of 14-year-old C.M.H. We hold that the trial court did not violate Russell's constitutional right to public trial when it prohibited the media from photographing juvenile witnesses without consent because there was no closure of the courtroom in any sense under State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Russell's other claims are meritless under prior case law from our Supreme Court: he did not have the right to have a jury decide the fact that he had prior convictions, nor did he have the right to have that issue proved beyond a reasonable doubt; and the Persistent Offender Accountability Act (POAA) does not violate the single subject requirement of the Washington State Constitution. Russell's claims in his Statement of Additional Grounds are meritless as well. We affirm.

RAP 10.10.

FACTS

¶2 On December 9, 2005, the State charged Roy Russell with one count of second degree felony murder under RCW 9A.32.050(1)(b); RCW 9A.36.021. The information alleged that Russell caused the death of C.M.H., who was found in the basement of his Clark County home.

In the alternative, the State charged Russell with one count of second degree murder under RCW 9A.32.050(1)(a) or one count of first degree manslaughter under RCW 9A.32.060(1)(a).

¶3 Before trial, the State raised its concerns about media coverage of the case. The trial court decided that the broadcast media could operate a pool camera in the court-room but that it would not allow photographs of the jury, under the bench-bar rules. In addition, the trial court decided that the print media could not photograph juvenile witnesses. The court specified that the media could report on and even record the voices of juvenile witness testimony, but that it could not photograph such witnesses and put their images in the press. The trial court also prohibited the pooled television camera from being pointed at the juvenile witnesses during their testimony.

¶4 Following its preliminary ruling, the trial court invited arguments from the print media and the parties. At a hearing held on January 4, 2006, the editor of a local newspaper argued that if the trial court denied the press the opportunity to photograph juvenile witnesses, it would deny the public its right to an open courtroom. Following an extended discussion with the editor and counsel about the competing interests at stake, the trial court affirmed its previous decision that it would not allow the press to photograph juvenile witnesses. But the trial court also stated that it was "not closing the door to the subject." 2 Report of Proceedings (RP) at 148.

¶5 On January 6, 2006, the trial court revisited the issue of photographing juvenile witnesses and it "slightly adjust[ed]" its original decision. 3 RP at 154. Ultimately it decided that it would permit the press to photograph juvenile witnesses only if the witnesses and/or his or her parents agreed to the press taking photographs. Thereafter, the trial court and the press coordinated their efforts to identify which witnesses agreed to being photographed and which did not.

¶6 On January 24, 2006, a jury convicted Russell as charged. At sentencing, the trial court found by a preponderance of the evidence that Russell had two prior convictions "of the most serious offense[]," thereby qualifying him as a persistent offender under the POAA enumerated in RCW 9.94A.570. Clerk's Papers at 431. Following the POAA, the trial court sentenced Russell to life in prison without the possibility of parole. Russell timely appeals.

ANALYSIS PUBLIC TRIAL

¶7 Russell first contends that the trial court violated his right to a public trial when it prohibited the press from photographing the juvenile witnesses without their consent at trial. The State maintains that the trial court did not even entertain the concept of closing the courtroom or denying the defendant his constitutional right to a public trial. The State is correct.

¶8 Whether a trial court has violated a criminal accused's right to public trial is an issue of law, subject to de novo review. State v. Easterling, 157 Wn.2d 167, 174, 137 P.3d 825 (2006) (citing Bone-Club, 128 Wn.2d at 256). The presumptive remedy for such violation is reversal and remand for new trial. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004).

¶9 The Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution each guarantee a criminal accused the right to a public trial. Cohen v. Everett City Council, 85 Wn.2d 385, 387, 535 P.2d 801 (1975). In addition, article I, section 10 of the Washington Constitution states that "[j]ustice in all cases shall be administered openly, and without unnecessary delay." This provision provides the public and press a right to open and accessible court proceedings. Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982). "The public trial right serves to ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and to discourage perjury." State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005).

¶10 Although the right to public trial is not absolute, protection of this basic constitutional right clearly requires a trial court "to resist a closure motion except under the most unusual circumstances." Bone-Club, 128 Wn.2d at 259. To protect the constitutional right to a public trial, the trial court may not close a courtroom without first considering the five requirements enumerated in Bone-Club and second, entering specific findings to justify the closure order. Bone-Club, 128 Wn.2d at 258-59.

¶11 Russell equates the trial court's prohibition on photographing the juvenile witnesses without consent to a complete closure of the courtroom. He then implies that the trial court failed to consider the Bone-Club factors and enter specific findings to justify the closure. See Bone-Club, 128 Wn.2d at 258-59.

¶12 In Bone-Club, the trial court cleared and closed the courtroom during a pretrial suppression hearing at the State's unexplained request. Bone-Club, 128 Wn.2d at 256-57. The Washington Supreme Court held that the trial court erred when it failed to consider five factors and make a record before ordering the complete closure. Bone-Club, 128 Wn.2d at 258-59, 261; see also Orange, 152 Wn.2d at 808 (emphasizing that the trial court erred because it failed to engage in the Bone-Club analysis before permitting a full closure of the proceedings).

¶13 But here, the trial court never completely closed the courtroom. It never prevented any person from entering the courtroom or removed any person from the courtroom. It merely ordered that the press not photograph juvenile witnesses without consent from the juvenile witness and/or the witness's parents. The trial court's prohibition on photographing minor witnesses without consent cannot even be considered akin to a partial closure.

¶14 In State v. Gregory, the Supreme Court distinguished between full closures and temporary, partial closures of the courtroom. State v. Gregory, 158 Wn.2d 759, 815-16, 147 P.3d 1201 (2006). There, Gregory argued that the trial court violated his right to public trial when it required his aunt to leave the courtroom during his grandmother's testimony. Gregory, 158 Wn.2d at 815. The Supreme Court distinguished Brightman, Orange, and Bone-Club, emphasizing that those cases involved full closures of the courtroom, whereas Gregory involved the exclusion of one person from the courtroom for a limited time. Gregory, 158 Wn.2d at 816. Finally, the Gregory court concluded that the trial court did not abuse its broad discretion to regulate the conduct of the trial because it explained its reason for excluding the defendant's aunt, offered the defendant the opportunity to object, and limited the exclusion to a particular witness's testimony. Gregory, 158 Wn.2d at 816.

¶15 Similarly, Russell's claim fails because the trial court never fully closed the courtroom; rather, it merely ordered that the press not photograph the juvenile witnesses without their permission. The trial court explicitly explained its reasons for prohibiting the press from photographing juvenile witnesses, stating that the cameras "could dampen [the juvenile witnesses'] ability to report on the facts. It could dampen their ability to speak." 2 RP at 129. The trial court later stated that allowing the press to photograph the juvenile witnesses "had the potential to have an adverse impact on the children's ability to testify. And I always want my jurors to have a complete picture." 3 RP at 152. Moreover, it is of particular importance to note that the trial court did not prohibit the media from recording the juvenile witnesses' testimony so long as they did not point the camera at the juvenile witnesses. Therefore, the trial court did not violate Russell's right to a fair and open trial. Because there was no closure in any sense, and certainly not a full closure at any time, we decline to discuss whether the trial court complied with the Bone-Club standards. We do however discuss the standards set forth in General Rule 16.

¶16 Russell contends that the trial court "failed to comply with GR 16 in any manner." Br. of Appellant at 12. Specifically, he contends that "[t]he court failed to presume open access of the courtroom." Br. of Appellant at 12. Russell's argument is patently wrong.

¶17 Under GR 16, broadcasting, televising, recording, and taking photographs in the courtroom are permissible, subject to the trial court's permission and conditions, and provided the media personnel do not distract the participants or impair the dignity of the proceedings. GR 16; 13 ROYCE A. FERGUSON, JR., WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE WITH FORMS § 4307, at 234 (3d ed. 2004). Under GR 16(c), a trial court may limit courtroom photography if it makes particularized findings to support its decision. In making these findings, the trial court must presume open access, it shall hear from any party before imposing limitations, and it shall explain its reasons supporting limitations on photography and how they relate to the specific circumstances of the case. GR 16(c)(1)-(3).

¶18 Here, the record clearly shows that the trial court complied with the GR 16 requirements. First, it made particularized findings to support its decision to limit photographing juvenile witnesses, repeatedly stating that it was concerned with cameras hindering the juvenile witnesses' ability to testify. Furthermore, there is no doubt that the trial court based its decision on the presumption of an open courtroom because it repeatedly indicated that his ruling would not infringe on the ability of the public to be aware of the courtroom proceedings. In addition, it held a special hearing to allow members of the media to voice concerns about the ruling. Finally, the trial court supported the limitation on photographing the juvenile witnesses on the specific circumstances of the case. Namely, the record shows that the trial court was cognizant of the sensitive and possibly embarrassing subject matter to which the juvenile witnesses would testify. Its primary concern was that the juvenile witnesses would be able to provide accurate testimony of the facts and circumstances of the case.

¶19 The trial court also considered the ethical standards of the press in regard to publishing images of the juvenile witnesses, ethical and legal standards to protect juveniles in order to minimize harm, and the First Amendment and rights of the press. And, the trial court ensured that the restriction was no broader in its application or duration than necessary. The trial court never closed the courtroom to the public; the pool camera was always recording the proceedings; and all media had free access to the courtroom for all purposes, including recording all of the testimony. The only restriction the trial court placed on the media was that the press could not photograph the juvenile witnesses without prior permission from the witnesses and/or their parents. The court went out of its way to establish a procedure by which it would alert the press to the juvenile witnesses that granted such permission.

¶20 Therefore, based on the record, we hold that the trial court balanced the interests of the defendant's right to a public trial together with its abilities to control the court-room photography under GR 16. Further, the trial court is to be commended for its thorough and careful balancing of all interests. Thus, the trial court acted within its discretion in limiting photography of juvenile witnesses under GR 16.

¶21 Affirmed.

¶22 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON, C.J., and PENOYAR, J., concur.

Review denied at 164 Wn.2d 1020 (2008).