      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



STATE OF WASHINGTON,
                                                 )       No. 69159-7-1                                     —i c".

                        Respondent,
                                                 )       DIVISION ONE
        v.                                                                                        ro
                                                                                                  O


JEANETTE MARIE HOPKINS,                          )       UNPUBLISHED OPINION                      ZT-J*     ^C
                                                                                                      CD
                        Appellant.               )       FILED: January 20, 2015                      XT



        Spearman, C.J. — Jeanette Hopkins challenges her conviction of

possession of stolen property in the second degree based on alleged violations

of the public trial right and her due process right to be present at all critical

stages, as well as prosecutorial misconduct. We affirm.

                                              FACTS

        In the spring of 2011, the Skagit County Sheriff's Office began

investigating the theft of a pickup truck and cargo trailer. Verbatim Report of

Proceedings (VRP)1 at 24. Jeanette Hopkins became a person of interest in the

investigation after the truck's owner reported that he had seen the vehicle parked

in Hopkins' driveway. In response to this tip, Deputy Brad Holmes went to speak



        1 There are three volumes of transcripts in this case. Transcripts of proceedings from voir
dire on 7/2/13 are referred to herein as "(voir dire) VRP." Transcripts of proceedings from
sentencing on 8/3/13 are referred to herein as "(sentencing) VRP." Transcripts from trial on 7/2/13
and 7/3/13 are referred to simply as "VRP."
No. 69159-7-1/2


with Hopkins and see if he could observe stolen property on or near her property.

Deputy Holmes specifically asked if the missing cargo trailer was present on her

property. Hopkins told the officer it was not. While there, Deputy Holmes took a

picture of the property, which depicted what he identified as a trailer or cargo

container that was partially obscured by a makeshift structure housing it.

       The next day, the deputy discovered an abandoned cargo trailer on the

side of the road not far from Hopkins' property. The trailer had been recently

painted red, was missing the wheels on the driver's side, and had its vehicle

information number scraped off. Further investigation confirmed that the trailer

was the one previously reported stolen. The deputy also observed drag marks

and deep gouges in the pavement leading from the trailer into a field adjacent to

Hopkins' property.

       Hopkins was charged with possession of stolen property in the second

degree based on her alleged possession of the trailer. The case was set for jury

trial. At the close of voir dire, the trial court convened a sidebar conference,

during which counsel made peremptory challenges via a printed form. The trial

court did not subsequently announce the results of the peremptory challenge

process. Instead, the court filed the form, which indicated the names and

numbers of all the prospective jurors, the two jurors removed by peremptory

challenge (jurors 3 and 5), the party who challenged each juror (the defense),

and the order in which each challenge was exercised. Neither party objected to

this procedure.

       Hopkins testified on her own behalf at trial. She testified that the stolen

truck had been brought to her property by a friend of her husband's. She also

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No. 69159-7-1/3


stated that she owned a red horse trailer, different from the stolen trailer at issue,

which she housed on her property. Hopkins claimed her horse trailer was still on

her property at the time of trial, though this testimony was not corroborated.

Hopkins denied ever having seen the stolen trailer or the drag marks in the road

near her property. She also denied being contacted by the sheriff's deputy

regarding the stolen truck and trailer prior to charges being filed against her.

       On cross examination, the State asked Hopkins whether, at the time of the

alleged crime, she had a methamphetamine abuse problem. Defense counsel

made an objection, which was sustained. The State rephrased, asking: "Were

you using that day?" VRP at 97. The defense objected again, to which the trial

court responded: "Sustained-overruled." Id. Hopkins did not answer the

question. The State then asked Hopkins if she had previously been convicted of

two crimes of dishonesty; she admitted she had.

       At the close of evidence, the State argued that much of Hopkins' defense

had been based on speculation. The State also noted that many points made by

the defense were either unsupported by the record or non-dispositive of Hopkins'

guilt, characterizing these points as "red herring." VRP at 158-61.

       The jury convicted Hopkins as charged. She timely appeals.

                                    DISCUSSION

                         Peremptory Challenge Procedure

       Hopkins challenges her conviction, arguing for the first time on appeal that

the trial court's decision to take peremptory challenges via a written "secret

ballot" form completed by counsel in a sidebar conference violated the public trial
No. 69159-7-1/4


right and Hopkins' due process right to be present at all critical stages. Neither

claim has been preserved for review.

        Under RAP 2.5(a)(3), appellate courts will review an alleged manifest error

affecting a constitutional right even if not raised in the trial court. State v. Sublett,

176 Wn.2d 58, 78, 292 P.3d 715 (2012). But here, Hopkins cannot establish

manifest error with respect to either the public trial right or the right to be present.

        A criminal defendant has a right to a public trial under the state and

federal constitutions. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011)

(citing U.S. Const, amend. VI; Wash. Const, art. I, § 22). The public has a

complementary right to open proceedings. ]d. at 91. In Washington, the public

trial right is safeguarded by the requirement that, before ordering closure of the

courtroom, a trial judge must conduct an inquiry on the record as to each of the

five factors announced in State v. Bone-Club, 128 Wn.2d 254, 258-60, 906 P.2d

325(1995).2

        Hopkins argues that the trial court closed the courtroom when it adopted a

written procedure for exercising peremptory challenges at sidebar without first

conducting a Bone-Club analysis on the record. We disagree. The exercise of

peremptory challenges via the written form in this case was not a "closure" of the

courtroom. State v. Filitaula, 339 P.3d 221, 2014 WL 6896867, at *2 (2014)




          2 Prior to closure, the court must weigh the following factors: (1) the proponent must show
a compelling interest for closure and, when closure is based on a right other than an accused's
right to a fair trial, a serious and imminent threat to that compelling interest; (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; and (5) the order must be no broader in its application or
duration than necessary to serve its purpose.
No. 69159-7-1/5


(finding no implication of the public trial right where the trial court used a written

peremptory challenge procedure identical to the one here); see also, State v.

Marks, 339 P.3d 196, 198, 2014 WL 6778304, at *1-2 (2014) ("the exercise of

cause or peremptory challenges is not part of voir dire" and, therefore, "does not

implicate the public trial right"); State v. Dunn, 180 Wn. App. 570, 575, 321 P.3d

1283, 1285 (2014); State v. Love, 176 Wn. App. 911, 920, 309 P.3d 1209(2013)

(holding that public trial right does not attach to the exercise of for cause and

peremptory challenges during jury selection). Here, the names of the prospective

jurors who were removed by peremptory challenges, as well as the order in

which each challenge was made and the party who made it were recorded by the

court. The document containing this information was made part of the court

record and was available for public inspection. In light of these facts, the claim of

a courtroom closure is untenable and we reject it.

       Hopkins correctly asserts that she had a due process right to be present at

all critical stages of her trial, including voir dire. State v. Irbv. 170 Wn.2d 874,

881-84, 246 P.3d 796 (2011). She contends that this right was violated because

she was not at sidebar with her counsel when he exercised peremptory

challenges on her behalf. The State argues that Hopkins waived this claim

because she did not object to the procedure below and, because she makes no

argument that she was prejudiced by the process, she cannot establish manifest

error as required under RAP 2.5(a)(3). See, Sublett, 176 Wn. 2d at 78 (holding, if
an alleged manifest error affecting a constitutional right is not raised in the trial

court, reliefwill only be granted upon a showing of actual prejudice resulting from

the error). We agree with the State.

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No. 69159-7-1/6


        Love, 176 Wn. App. at 920-21 is instructive on this issue. In that case, the

defendant was present beside his attorney during juror questioning and

apparently had the opportunity to consult with counsel and provide input on

whether to challenge any of the prospective jurors. ]d. at 921. Following voir dire,

the trial court convened a sidebar conference, which included only the judge and

counsel, during which the court heard argument regarding for cause challenges.

Id. Noting that the defendant had succeeded in his cause challenges at the

sidebar conference, we concluded that "he simply [could not] show how he was

prejudiced by the procedure. His due process claim therefore [was] not manifest

error." Id,

        Similarly, in this case the proceeding at issue occurred in open court, with

Hopkins presumably seated next to her attorney at counsel table, after having

observed the questioning of prospective jurors. Under these circumstances, it is

evident that Hopkins had a full and fair opportunity to consult with her attorney

regarding the exercise of peremptory challenges prior to the sidebar conference.3

After voir dire, Hopkins' attorney exercised two peremptory challenges at a

sidebar conference. Neither challenge was objected to. Having succeeded in her

challenges at the sidebar conference, Hopkins, like the defendant in Love,



         3 Thus, the present case is unlike Irbv, in which our Supreme Court expressly noted that
the timing of email communications regarding jury selection between the trial judge and counsel
made it unlikely that defense counsel consulted with the defendant regarding their contents:

        As noted above, Irby was not present during this discussion
        because he was in his jail cell. Furthermore, because the trial judge
        sent his initial e-mail at 1:02 p.m., and Irby's attorneys replied at
        1:53 p.m., it is unlikely that the attorneys spoke to Irby about the
        email in the interim.


Irbv. 170Wn.2dat884.
No. 69159-7-1/7


cannot show that she was prejudiced by the challenge procedure in this case.

Consequently, her due process claim is not manifest error not subject to review

pursuant to RAP 2.5(a)(3).

        Moreover, even if review were proper, we recently held that the exercise

of peremptory challenges as done in this case did not constitute a courtroom

closure. Filitaula, noted at 339 P.3d 221. In that case, as here, the written form

on which the parties' challenges were recorded showed the names and numbers

of the excused jurors, the order in which the challenges were made, and the

identity of the party exercising the challenge. The document was filed in the court

record and was available for public inspection. Under these circumstances, we

reject the argument that the procedure adopted by the trial court was a violation

of the right to a public trial.

                                  Prosecutorial Misconduct


        Hopkins also contends that her conviction should be overturned because

prosecutorial misconduct denied her a fair trial. We disagree.

        In a prosecutorial misconduct claim, the defendant bears the burden of

proving that the prosecutor's conduct was both improper and prejudicial. State v.

Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012) (citing State v. Thorqerson,

172 Wn.2d 438, 442, 258 P.3d 43 (2011)). Once a defendant establishes that a

prosecutor's statements are improper, we determine whether the defendant was

prejudiced under one of two standards of review. |d_, at 760. Ifthe defendant

objected at trial, he must show that the misconduct resulted in prejudice that had

a substantial likelihood of affecting the jury's verdict. Id. (citation omitted). Ifthe

defendant did not object, he is deemed to have waived any error unless the

                                             7
No. 69159-7-1/8


prosecutor's misconduct was so flagrant and ill-intentioned that an instruction

could not have cured the resulting prejudice, jd. at 760-61 (citing State v.

Stenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997)). In that case, the

defendant must show that: (1) no curative instruction would have obviated any

prejudicial effect on the jury; and (2) the misconduct resulted in prejudice that

had a substantial likelihood of affecting the verdict. ]d. (citing Thorgerson, 172

Wn.2d at 445)). In assessing whether the alleged misconduct requires reversal,

we review the improper statements in the context of the entire case. Thorgerson,

172 Wn.2d at 443 (citing State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747

(1994)).

       Hopkins argues that the State's questions regarding her use of

methamphetamine were improper because they violated the trial court's ruling on

her motion in limine, which prohibited "evidence or reference to prior law

enforcement contacts, charges, convictions, or other bad acts." VRP at 17. We

agree. The State's questioning was clearly intended to elicit an admission that

Hopkins was a drug user. This evidence was not probative of Hopkins' character

for truthfulness and not proper impeachment evidence. See, State v. Stockton,

91 Wn. App. 35, 42, 955 P.2d 805 (1998). Rather, it was improperly directed at

Hopkins' prior misconduct and, therefore, violated both the rules of evidence and

the trial court's ruling. JU; ER 404(b), ER 608.

       But Hopkins fails to show resulting prejudice that would justify reversal.

Although evidence of illegal drug use has the potential to stigmatize a defendant

in the eyes of a jury, in this case, there was overwhelming evidence implicating

Hopkins, independent of the alleged illegal drug use. There was testimony from

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No. 69159-7-1/9


the owner of the stolen truck that he had seen the vehicle parked in Hopkins'

driveway. There was testimony from a sheriffs deputy regarding drag marks

leading from the stolen trailer to a field adjacent to Hopkin's property. Both the

victim and the investigating deputy identified a structure which looked, at least

substantially, like the victim's recovered trailer. And, while Hopkins claimed to

have no knowledge of the stolen truck or the fact that the trailer had been stolen,

her testimony was uncorroborated and she admitted on the stand that she had

been convicted of two crimes of dishonesty, giving the jury ample reason to

doubt her. Based on the totality of the evidence, the two unanswered questions

regarding Hopkins' drug use were not prejudicial.

       Hopkins also challenges the State's characterization of portions of

defense counsel's closing argument as "red herring." We disagree that these

remarks were improper.

       A prosecutor's argument to the jury must be confined to the law stated in

the jury instructions. State v. Walker, 164 Wn. App. 724, 736, 265 P.3d 191

(2011). But, "the prosecutor, as an advocate, is entitled to make a fair response

to the arguments of defense counsel." Russell, 125 Wn.2d at 87 (citing United

States v. Hiett, 581 F.2d 1199, 1204 (5th Cir. 1978)). It is not misconduct for a

prosecutor to argue merely that the evidence does not support the defense

theory. I<±

       During closing arguments in this case, the defense asserted, among other

things, that the State's evidence regarding the market value of the trailer was

insufficient and that the structure identified by the victim and sheriff's deputy in

the deputy's photos of Hopkins' property was Hopkins' own horse trailer. The

                                           9
No. 69159-7-1/10


State's characterization of these arguments as "red herring" was a fair response

to the defense argument, suggesting only that insufficient evidence supported the

defense positions. Defense counsel also noted the lack of fingerprint evidence

linking Hopkins to the stolen trailer. The State's comment that this fact was

"[a]nother big red herring" because it was not probative of Hopkins' guilt or

innocence is consistent with the law of this case as set forth in the to-convict

instruction.4 VRP at 162. It was not improper.

        Even if the State's "red herring" comments had been improper, Hopkins'

misconduct claim fails because she cannot show prejudice. Hopkins makes no

argument as to why an instruction would not have cured any prejudice in this

case and the record supports none. And, in the context of the total argument, the

issues in the case, the evidence addressed in the argument, and the instructions




        4 The jury was instructed as follows:

            To convict the defendant of the crime of possessing stolen property in the
        second degree, each of the following five elements of the crime must be proved
        beyond a reasonable doubt:

            (1) That on or about August 10, 2011, the defendant knowingly received,
                retained, possessed, concealed or disposed of stolen property;
            (2) That the defendant acted with knowledge that the property had been
                 stolen;
            (3) That the defendant withheld or appropriated the property to the use of
                someone other than the true owner or person entitled thereto;
            (4) That the stolen property exceeded $750 in value, and
            (5) That any of these acts occurred in the State of Washington.

        If you find from the evidence that the elements have been proved beyond a
        reasonable doubt, then it will be your duty to return a verdict of guilty.

        On the other hand, if, after weighing all of the evidence, you have a reasonable
        doubt as to any one of the elements, then it will be your duty to return a verdict of
        not guilty.

Clerk's Papers at 24.

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No. 69159-7-1/11


given to the jury, the State's "red herring" remarks simply did not have a

substantial likelihood of affecting the verdict.

       Affirmed.



                                                   jfltcj /vn^ CMv
WE CONCUR:



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