                                                                            FILED 

                                                                          Dec. 19, 2013 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                          )         No. 26404-1-111
                                              )
                     Respondent,              )
                                              )
              v.                              )
                                              )
AMEL WILLIAM DALLUGE,                         )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       BROWN, J. - Amel W. Dalluge appeals his 2006 second degree assault

conviction for punching another inmate in the Grant County jail. Because he partly

contends his public trial rights were violated when the trial court allowed private

examination of certain jurors in a side room, this court stayed his case to await the

disposition of like Supreme Court cases. See In re Pers. Restraint of Morris, 176 Wn.2d

157,288 P.3d 1140 (2012); State v. Sublett, 176 Wn.2d 58,292 P.3d 715 (2012); State

v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012); State v. Wise, 176 Wn.2d 1,288

P.3d 1113 (2012). Under the developed case law, we conclude Mr. Dalluge's public

trial rights were violated. Thus, we do not reach his self-defense contentions or address

his statement of additional grounds for review alleging health record and jury

questionnaire concerns. Accordingly, we reverse.
    No. 26404-1-111
    State v. Dalluge


                                               FACTS

           Kris Nichols (now deceased) and Amel Dalluge were inmates in a Grant County

    jail dormitory. Mr. Nichols a_nd Mr. Dalluge did not get along. One day while Mr.

    Dalluge was in the jail dormitory's upper level, an officer brought Mr. Nichols in a

    wheelchair into the dormitory's lower level. When the officer turned his back, Mr.

    Dalluge charged Mr. Nichols and punched him in the nose. Mr. Dalluge then celebrated

    with a dance and stated, "I got you." Report of Proceedings (RP) at 99.

           The State charged Mr. Dalluge with second degree assault. During pretrial

    hearings, defense counsel informed the court he had decided not to assert a self-

    defense claim, apparently to Mr. Dalluge's dissatisfaction. On the first morning of trial,

4   the trial court granted Mr. Dalluge's self-representation request (with stand-by counsel),
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    but rejected his self-defense claim and related witnesses.

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           Before beginning voir dire, the trial court without consulting the parties, told the

    jury the goal was to empanel an impartial jury and they needed to tell the truth. The
f
I   court explained: "If answering a question truthfully would require you to say something

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    that you would prefer not to make public, just say, 'I'd like to answer privately.' If you

i   do, we'll go through a little exercise where you alone and the parties and I go into a side


I   room, we'll take your answer there, and then return to the courtroom. It is much more

    important that we have the benefit of your candid answer than it is to receive it in a

    public setting." RP at 6-7.




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No. 26404-1-111
State v. Dalluge


       During voir dire, the judge asked the potential jurors if anyone had heard about

the case. Two jurors raised their hands. Juror 46 stated the information he heard

would not influence his decision. Juror 1, however, stated she thought she might be

influenced because "[m]y daughter knows all about it and she's told me." RP at 36.

When the court asked if either side wished to be heard or inquire, Mr. Dalluge

responded, "I'd like to inquire outside the presence [of the jury]." RP at 37. The judge

agreed stating they needed to question the juror "outside the hearing of the rest of the

jury" and then suggested they "step into this side room" since the rest of the jury was in

the courtroom. RP at 37. The judge, court reporter, attorneys, Mr. Dalluge, his stand­

by counsel, and juror 1 then stepped into the side room. The juror realized she was

thinking about an incident involving another Mr. Nichols and she promptly returned to

the courtroom with the remaining potential jurors.

       Later in the voir dire proceedings, juror 27 told the court he believed he would be

biased based on his law enforcement experience. The juror asked to speak privately

about the matter. Mr. Dalluge voiced no objection or agreement. The parties again

stepped into the side room where the juror, a State trooper, stated he knew of Mr.

Nichols' criminal backgroundbut felt he could be fair and unbiased. The court gave Mr.

Dalluge the opportunity to question the juror, but he declined.

      On the second day of trial, Mr. Dalluge relinquished his defense to his appointed

attorney. The jury found Mr. Dalluge guilty as charged. He appealed.




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No. 26404-1-111
State v. Oalluge


                                          ANALYSIS

       The dispositive issue is whether, under these facts, Mr. Dalluge was denied his

constitutional right to a public trial.

       The Sixth Amendment to the United States Constitution provides, "In all criminal

prosecutions, the accused shall enjoy the right to a .. ~ public trial." Similarly, article I,

section 22 of the Washington Constitution guarantees, "In criminal prosecutions the

accused shall have the right ... to have a ... public triaL" The Washington Constitution

provides in article I, section 10 that "mustice in all cases shall be administered openly."

The public trial right is not absolute; it is strictly guarded to assure proceedings occur

outside the public courtroom in the most unusual circumstances. State v. Strode, 167

Wn.2d 222,226,217 P.3d 310 (2009) (citing State v. Easterling, 157 Wn.2d 167, 174­

75, 137 P.3d 825 (2006». "Whether a defendant's constitutional right to a public trial

has been violated is a question of law, subject to a de novo review on direct appeaL!!

Strode, 167 Wn.2d at 225.

       Our Supreme Court has articulated guidelines every trial court must follow before

closing a courtroom to the public. State v. Bone-Club, 128 Wn.2d 254, 258-59, 906

P.2d 325 {1995}. Those criteria are:

                        1. The proponent of closure or sealing 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
               m.ust be given an opportunity to object to the closure.



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 No. 26404-1-111
 State v. Dalluge


                      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.
                      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 (quoting Allied Daily Newspapers v. Eikenberry, 121

 Wn.2d 205,210-11,848 P.2d 1258 (1993». But, before a court addresses the Bone-

 Club factors a closure must be contemplated or requested.

        Here, we presume a closure was contemplated. Strode, 167 Wn.2d at 231. In

. Strode, our Supreme Court held that when a Bone-Club analysis is not conducted prior

 to courtroom closure, prejudice is presumed (Le. structural error which cannot be

 considered harmless) and automatic reversal is mandatory. Id. But, in State        v. Momah,
 167 Wn.2d 140,217 P.3d 321 (2009), our Supreme Court noted not all courtroom

 closures trigger a conclusive presumption of prejudice warranting automatic reversal of

 convictions. Id. at 156. Furthermore, "not every interaction between the court, counsel,

 and defendants will implicate the right to a public trial, or constitute a closure if closed to

 the public." Sublett, 176 Wn.2d at 71.

        In Momah, the trial court, on the recommendation of defense counsel, questioned

 several jurors privately to protect the defendant's right to a fair trial. 167 Wn.2d at 145­

 46. The court noted, "Due to the publicity of Momah's case, the defense and the trial 


 court had legitimate concerns about biased jurors or those with prior knowledge of 


 Momah's case." Id. at 156. The court held that a partial closure of voir dire to 




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No. 26404-1-111
State v. Dal/uge


safeguard the defendant's right to a fair trial was not a structural error and affirmed the

defendant's convictions. Id. at 151-52. The Momah court noted the requirement of a

public trial "is primarily for the benefit of the accused." Id. at 148. With this in mind, the

court placed significance on the fact that the defendant in that case affirmatively

assented to the closure, argued for its expansion, had the opportunity to object but did

not, actively participated in the closed proceeding, and benefited from such closure. Id.

at 151-52. The purpose of the closure, then, was to safeguard the defendant's right to a

fair trial by an impartial jury rather than to protect any other interests. Id. Accordingly,

because the defendant in Momah affirmatively accepted and actively participated in the

closed hearing, our Supreme Court held that the courtroom closure in that circumstance

was "not a structural error" warranting reversal. Id. at 156.

       In Wise, our Supreme Court, citing Momah, reiterated that the public trial right

can be subordinate to the right to a fair and impartial jury. Wise, 176 Wn.2d at 10. The

Court distinguished Momah from other public trial violation cases on two principal

bases: "(1) more than failing to object, the defense affirmatively assented to the closure

of voir dire and actively participated in designing the trial closure and (2) though it was

not explicit, the trial court in Momah effectively considered the Bone-Club factors."

Wise, 176 Wn.2d at 14 (citing Momah, 167 Wn.2d at 151-52).

       Here, unlike in Momah, Mr. Dalluge did not request or endorse the closure the

court preemptively outlined before voir dire began. Mr. Dalluge did not affirmatively

accept the closed courtroom or actively participate in structuring the closed hearing



                                              6

No. 26404-1-111
State v. Oal/uge


process, but merely acceded to the court's direction when asking to question juror 1

outside the presence of the other jurors. Moreover, from this record we cannot

conclude the trial court "effectively considered the Bone-Club factors." Wise, 176

Wn.2d at 14 (citing Momah, 167 Wn.2d at 151-52). The remedy is to reverse and

remand to allow a new trial.

        Reversed.

       A majority of the panel has determined this opinion will not be printed n the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                 Brown, J.
WE CONCUR:


~/rP·
Kulik, J.




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