       Fl L E
       IN CLERKS OFFICE
IUPREME COURT, STAtE O F - - - -
    DATE   APR 0 9 2015        J


~~.l
       IN THE SUPREME COURT OF THE STATE OF WASHINGTON




   STATE OF WASHINGTON,                     )
                                            )     No. 90329-8
                            Petitioner,     )
                                            )
           v.                               )      EnBanc
                                            )
   BENITO GOMEZ,                            )
                                            )
                            Respondent.     )
                                            )      Filed         APR 0 9 2015


           JOHNSON, J.-This case involves whether the trial court closed the

   courtroom during trial in violation of the defendant's rights under article I, section 22

   of the Washington Constitution. The Court of Appeals reversed Benito Gomez's

   convictions for second degree murder and six counts of first degree assault on the

   grounds that the trial judge effected an unconstitutional closure of the courtroom

   during trial by his pretrial comment that the public would not be permitted to enter

   the courtroom once the proceedings began. First, we disagree that the trial judge, by

   mere virtue of making this remark, fully excluded the public from entering the

   courtroom and, thus, we have no basis for finding a constitutional violation. Second,

   even if we could presume the brief comment was enforced, this limitation to
State v. Gomez (Benito), No. 90329-8


courtroom entry does not constitute a closure. We reverse the Court of Appeals and

reinstate Gomez's conviction.

                                        FACTS

       Gomez was charged with first degree murder and six counts of first degree

assault after he fatally shot a rival gang member and fired his handgun at fleeing

rivals and residents of a nearby apartment building. Before swearing in the jury,

the court considered Gomez's change of venue motion, in which Gomez argued

that the heavy security in the courthouse would intimidate the jury and convey the

impression that Gomez was dangerous. In denying the motion, the court made a

few comments regarding the spectators of the proceedings: "This is a public

courthouse. Everyone in the public is entitled to appear in this courthouse for

appropriate matters, as either litigants or spectators or witnesses and in fact the

courtroom is rather full today of spectators concerning this particular case." 2

Verbatim Report ofProceedings (VRP) at 150.

       The judge continued in a lengthy explanation of his ruling to deny the venue

change, and couched within that ruling, the judge made the comment that Gomez

contends closed the proceedings:




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State v. Gomez (Benito), No. 90329-8


      We continue to have rules of procedure where people have to be on
      time for proceedings here. We do not allow people to come into the
      courtroom after [it] is in session for not only security reasons but as
      well as the distraction that that causes when people come in.

2 VRP at 153.

       Gomez did not object to the judge's comment, and the trial continued for the

next three days. The record contains no indication as to whether the court took any

action to enforce the policy or whether any observers were actually excluded as a

result of the remark. The jury found Gomez guilty of the lesser-included crime of

second degree murder and six counts of first degree assault. Gomez appealed,

arguing for the first time that the trial court violated his public trial rights by not

allowing the public to enter once the proceedings began. The Court of Appeals

agreed, holding that the trial court improperly closed the courtroom without first

considering the factors set forth in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906

P.2d 325 (1995), and remanded for a new trial. State v. Gomez, noted at 180 Wn.

App. 1012 (2014). We granted review. State v. Gomez, 181 Wn.2d 1002, 332 P.3d

984 (2014).

                                        ANALYSIS

       Under Washington Constitution article I, section 22, criminal defendants

have the right to a public trial. Defendants can raise claims of public trial rights

violations for the first time on direct appeal, which we review de novo. We

                                            3
State v. Gomez (Benito), No. 90329-8


consider these violations serious, falling into the category of constitutional error

that entitles the defendant to reversal of his conviction and a new trial without

requiring any showing of prejudice. State v. Wise, 176 Wn.2d 1, 288 P.3d 1113

(2012).

       In a recent decision, we adopted a three-step framework for analyzing

whether a trial court violated the defendant's public trial right: we determine (1)

whether the portion of the proceeding at issue implicates the public trial right,

which we analyze using an "experience and logic" analysis, (2) whether there was

a closure of that proceeding, and (3) whether the closure was justified (did the

court conduct a Bone-Club analysis on the record prior to closing the proceeding?).

State v. Smith, 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014). In this case, neither

party disputes that the public trial right attaches to the regular proceedings and that

because the judge did not consider the Bone-Club factors, a closure of those

proceedings would not be justified, so steps (1) and (3) need no analysis. Only the

second step requires our review: whether the judge's comment alone effected an

actual closure of the courtroom during the trial. Our cases have largely used a case

by case approach in determining when a closure occurs, but we have established

some general guidelines.




                                           4
State v. Gomez (Benito), No. 90329-8


      A complete closure occurs "when the courtroom is completely and

purposefully closed to spectators so that no one may enter and no one may leave."

State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). The requirement for a

Bone-Club analysis "come[s] into play when the public is fully excluded from

proceedings within a courtroom." Lormor, 172 Wn.2d at 92 (emphasis added)

(citing Bone-Club, 128 Wn.2d at 257). For example, we found closures when the

trial court fully excluded all spectators during the proceeding, when it fully closed

voir dire to spectators, and when the judge privately questioned jurors in

chambers. 1

       Once it is found a closure has occurred, the appellant has no further burden.

However, the appellant does bear the burden of supplying a record that is sufficient

to show that the proceeding in question was actually closed. State v. Koss, 181

Wn.2d 493, 501-02, 334 P.3d 1042 (2014). A violation ofthis magnitude must be

evident from the record; "[i]t is a well established principle that"' ... [we] will not,

for the purpose of finding reversible error, presume the existence of facts as to

which the record is silent.""' State v. Jasper, 174 Wn.2d 96, 123-24, 271 P.3d 876




       1
        See State v. Easterling, 157 Wn.2d 167, 173-74, 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, 807-08, 100 P.3d 291 (2004); Bone-Club, 128 Wn.2d at 257. In contrast, the
exclusion of a single person is not considered a closure. Lormor, 172 Wn.2d at 93.


                                              5
State v. Gomez (Benito), No. 90329-8


(2012) (quoting Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4

C.J. Appeal and Error§ 2666, at 736 (1916))).

       We recently considered this issue in Njonge, in which the trial judge

explained to spectators, '"Tomorrow when we have the jury selection, there will

not be room for all of you .... The chance of all of you being able to be here and

observe are slim to none during the jury selection process.'" State v. Njonge, 181

Wn.2d 546, 550, 334 P.3d 1068 (quoting trial court record), cert. denied, 135 S. Ct.

880 (2014). We held that the comments did not effect a closure because there was

"no conclusive showing that spectators were totally excluded from the juror

excusals." Njonge, 181 Wn.2d at 556 (emphasis added). We clarified, "We have

required a better factual record to find a violation of this magnitude." Njonge, 181

Wn.2d at 558.

       To be clear, the appellant does not generally have to show that spectators

were in fact excluded as a result of the court's actions. Rather, the appellant must

supply a record that reveals that the court took actions amounting to a closure, such

as explicitly issuing an order completely closing the proceedings or moving the

proceedings to chambers. 2 In Njonge, we found that the record was deficient, not


       2
       See State v. Paumier, 176 Wn.2d 29, 32-33, 288 P.3d 1126 (2012) (jurors questioned in
chambers, outside the view of any observers); State v. Wise, 176 Wn.2d 1, 7, 288 P.3d 1113



                                             6
State v. Gomez (Benito), No. 90329-8


because the defendant failed to show that anyone was in fact excluded, but because

"it [could not] be determined conclusively that observers were in the courtroom

during the proceeding in question, neither [could] it be said that the public was

excluded." Njonge, 181 Wn.2d at 558. In Koss, we similarly refused to infer that an

alleged secret, closed meeting between the State's counsel and the trial judge had

taken place when it was not reflected anywhere in the record. Koss, 181 Wn.2d at

502. Applying that approach here, we hold that the comment alone does not

conclusively establish that the public was fully excluded from entry.

       In a factually similar case, the Court of Appeals correctly concluded that the

trial judge's statement-that he did not like people coming and going during

closing arguments and asked those who did not think they could last throughout the

morning to rethink being in the courtroom-did not amount to a closure because

"the court did not 'completely' or 'purposefully' close the proceedings." State v.

Stark, 183 Wn. App. 893,903,334 P.3d 1196 (2014) (citing Lormor, 172 Wn.2d at

93). We agree with this analysis; short of an explicit order to close the courtroom,

we do not presume that the entire public was effectively prohibited from entry. The




(2012) (same); Orange, 152 Wn.2d at 802 (record demonstrated that the trial court prohibited all
spectators and family members from observing voir dire); Bone-Club, 128 Wn.2d at 256 (trial
judge ordered all spectators to leave the courtroom).


                                               7
State v. Gomez (Benito), No. 90329-8


record must establish that the courtroom and proceedings were closed by express

direction of the judge.

       Based on the record here, we cannot determine whether a closure actually

occurred. The only evidence in this record supportive of a possible closure is the

judge's comment on the first day of trial, which Gomez contends amounted to a

"ruling" for "a general prohibition for spectators and an exclusion of the public

from the trial." Resp't's Suppl. Br. at 5. Far short of an actual ruling, the judge

said, "We do not allow people to come into the courtroom after [it] is in session." 2

VRP at 153. The judge also commented, "This is a public courthouse. Everyone in

the public is entitled to appear in this courthouse for appropriate matters, as either

litigants or spectators or witnesses." 2 VRP at 150. The judge did not explicitly

order a closure of the courtroom, such that we can conclusively determine that the

statement itself was meant to prevent people from entering or to compel spectators

to leave. Rather, the judge made the remark in the context of a lengthy ruling on

venue, he mentioned it only once during the proceedings, and there is no other

indication in the record that the court directed the exclusion of any spectators or

that anyone else acted to close the trial to the public. The record shows the

opposite here, that the courtroom was rather full of spectators and none were asked




                                           8
State v. Gomez (Benito), No. 90329-8


to leave. Given our existing definition of a "closure," something more must be

shown from the record.

       Even if we presumed that the comment was enforced, the judge's rule does

not constitute a closure. As we discussed in Lormor, the appellant must show that

the judge acted to close the courtroom to the public, as opposed to acting to

manage the in-court proceedings. As in Lormor, the exclusion of only one or a few

individuals is a matter of courtroom operations, in which the trial judge possesses

broad discretion "to preserve and enforce order in the courtroom and to provide for

the orderly conduct of its proceedings." Lormor, 172 Wn.2d at 93-94. Just as trial

court judges are permitted to exclude distracting individuals, they are permitted to

impose reasonable restrictions on the public's manner of entry so as to minimize

the risk of distraction or impact on the proceedings.

                                       CONCLUSION

     The record does not establish that the court closed the courtroom, and as such,

no basis exists for finding that the trial court violated those public trial rights under

article I, section 22. The record does not contain any indication that the trial court

took action to enforce the brief comment made on the first day of trial. We have

reiterated several times that we do not presume or infer a violation from a silent




                                            9
State v. Gomez (Benito), No.       90329~8




record. We reverse the Court of Appeals and reinstate Gomez's convictions. 3




WE CONCUR:



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                               I



                                                                                             )




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       3
         The State makes two additional arguments in its briefing, neither of which warrants a
detailed analysis. First, the State argues that using an experience and logic analysis, this court
should find that the trial court did not effect a closure because, historically and logically, judges
have possessed wide discretion in controlling the courtroom and maintaining decorum. Pet'r's
Suppl. Br. at 7. But the State's reliance on that analysis is misplaced: we employ the experience
and logic analysis to determine whether the public trial right attaches to a particular proceeding
or portion of the proceedings. State v. Sublett, 176 Wn.2d 58, 72~ 73, 292 P.3d 715 (2012). There
is no question here that the right attaches to the regular trial proceedings.
        Second, the State argues that if we do find that the comment effected a closure, the
closure was de minimis in nature and does not warrant reversal. The State argues that our ruling
in State v. Shearer, 181 Wn.2d 564, 573,334 P.3d 1078 (2014), in which we said that the
structural nature of the public trial violation "forecloses the possibility of de minimis violations,"
should not apply here because unlike Shearer, the record reveals that the public was actually
present during the proceedings. We do not reach that issue here.


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