                                                                           FILED 

                                                                         MAY 21, 2015 

                                                                In the Office of the Clerk of Court 

                                                              WA State Court of Appeals, Division III 





          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                             DIVISION THREE 


STATE OF WASHINGTON,                         )         No. 25516-6-111
                                             )
                    Respondent,              )
                                             )
             v.                              )
                                             )
BEN ALAN BURKEY,                             )         UNPUBLISHED OPINION
                                             )
                    Appellant.               )

       BROWN, J. - In 2007, Ben A. Burkey appealed his convictions for first degree

murder, first degree kidnapping, conspiracy to commit kidnapping, first degree robbery,

and first degree assault, contending insufficient evidence supported those convictions.

Before oral argument, Mr. Burkey supplemented his opening brief, adding a public trial

violation based on the jury selection process. After oral argument, this court stayed Mr.

Burkey's appeal to await long-delayed Supreme Court public trial decisions. The parties

elected not to file supplemental briefing after these clarifying decisions. We decide the

evidence amply supports each conviction, but, reverse because, considering the now

well-developed case law, Mr. Burkey did not receive a public trial.

                                         FACTS1




       1 We draw the facts most favorably for the State consistent with our standard of

review for evidence sufficiency.
No. 25516-6-111
State v. Burkey


       On September 4,2005, Mr. Burkey began a fight with Rick Tiwater at Mr.

Burkey's home because he thought Mr. Tiwater was a rat, meaning an informant. Mr.

Burkey informed him he would have his friend, James P. Tesch, come over to help

determine if he was, indeed, a police informant. Mr. Burkey apparently desired Mr.

Tiwater's motorcycle and discussed having it signed over to him, but dropped the plan

when he discovered the motorcycle's serial number was scratched out. This further

heightened Mr. Burkey's suspicions about Mr. Tiwater. Mr. Burkey sent his girlfriend,

Patricia A. Lascelles, to get Mr. Tesch.

      According to Ms. Lascelles, Mr. Tesch arrived at Mr. Burkey's later that night and

confronted Mr. Tiwater. He kicked Mr. Tiwater, dragged him into the kitchen, and then

hit him on the head with a hammer. Mr. Burkey then drove Mr. Tiwater's motorcycle to

a friend's house and parked it. When he returned, Mr. Tesch carried an unconscious

Mr. Tiwater to a friend's Ford Thunderbird and placed him in the backseat. Mr. Burkey

and Mr. Tesch drove away with Mr. Tiwater.

      At daylight, Mr. Burkey and Mr. Tesch returned to Ms. Lascelles' home without

Mr. Tiwater. Mr. Burkey had blood on his coat and boots. Mr. Tesch was carrying Mr.

Tiwater's clothes and a bloody golf club. Mr. Tesch and Mr. Burkey told Ms. Lascelles

to wash the golf club and burn the clothes. Mr. Tesch told Ms. Lascelles to wash the

car. When the clothes would not fully burn, she threw them in the river. Mr. Burkey

drove Mr. Tiwater's motorcycle to Mr. Tesch's home where it was first stored and then

moved to a different location. Mr. Burkey later told a friend he had gone "golfing" the



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State v. Burkey


night before and Mr. Tiwater probably fell into a campfire and would not be returning.

Report of Proceedings (RP) at 500.

       Mr. Tiwater's body was soon discovered near a dirt road in a remote area North

of Spokane. He had been beaten, run over by a car, and his hair burned to the scalp.

A broken mud flap and tire tracks found at the scene were matched to the Ford

Thunderbird. Mr. Tiwater's hair and blood were found on the vehicle's undercarriage. A

boot impression found at the scene matched one of Mr. Burkey's boots. Mr. Burkey's

fingerprints were recovered from the Ford Thunderbird.

       The State charged Mr. Burkey as an actor and/or accomplice, with first degree

murder, first degree kidnapping, conspiracy to commit first degree kidnapping, first

degree robbery, conspiracy to commit first degree robbery, and first degree assault.

       Mr. Burkey waived his right to be present when the jury pool was sworn in by the

court in the main jury room in the presence of the attorneys. The prospective jurors

were given a questionnaire. While the jurors completed their questionnaires, the other

parties returned to the courtroom for a CrR 3.5 hearing. Following the CrR 3.5 hearing,

the court announced a recess and then asked counsel if they had the "jury bios" and

questionnaire answers. The prosecutor informed the court that they did and then the

court recessed. Upon reconvening, individual voir dire was conducted in a separate

room. The record does not indicate who requested the separate questioning. The sole

explanation for the separate questioning was the court's instruction to the potential

jurors that "experience has shown that sometimes there's certain questions best



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State v. Burkey


answered in the privacy of a private room like this." RP (June 12, 2006) at 82. Present

for the questioning was the trial judge, the prosecutor, Mr. Burkey, defense counsel, and

a defense investigator. Thirteen jurors were questioned and five were excused for

cause during the process.

      The next morning, the court convened in the presence of "the parties and

Counsel" to interview juror 48, who was then excused. RP (June 13, 2006 ) at 159.

The judge commented about needing all the jurors together before coming back in for

voir dire so "we don't have the defendant coming in while the jurors are coming into the

room." RP (June 13, 2006) at 166. The record shows the jurors coming into open court

and being introduced to Mr. Burkey. The record is silent about when Mr. Burkey

entered the courtroom. Mr. Burkey did not object to the jury selection proceedings.

      At the end of the State's case-in-chief, Mr. Burkey unsuccessfully challenged the

sufficiency of the State's evidence. Mr. Burkey then testified Mr. Tesch was solely

responsible and he went along because he feared for his and his family's safety.

      The jury found Mr. Burkey guilty as charged and found all the crimes were

committed while he was armed with a deadly weapon. Mr. Burkey unsuccessfully

requested arrest of judgment or a new trial based on insufficient evidence to support the

jury's findings. Before sentencing, the court dismissed the conspiracy to commit first

degree robbery conviction. Mr. Burkey appealed.




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No. 25516-6-111
State v. Burkey


                                          ANALYSIS

                                   A Evidence Sufficiency

       The issue is whether sufficient evidence supports Mr. Burkey's five convictions.

He contends sufficient evidence does not show he acted as a principal, or an

accomplice, to first degree kidnapping, conspiracy to commit first degree kidnapping,

first degree robbery, first degree murder, or first degree assault. He argues the

evidence merely shows he was an innocent bystander. We disagree.

       Evidence is sufficient to support a conviction if, viewed in the light most favorable

to the State, it allows any rational trier of fact to find the essential elements of the crime

beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496,501, 120 P.3d 559 (2005).

An insufficient evidence claim admits the truth of the State's evidence. Id.

       1. First Degree Kidnapping. To convict Mr. Burkey of first degree kidnapping,

the jury had to find beyond a reasonable doubt that he intentionally abducted Mr.

Tiwater with the intent U[t)o facilitate commission of any felony or flight thereafter" or U[t)o

inflict bodily injury on him." RCW 9A40.020(1)(b), (c). '''Abduct' means to restrain a

person by either (a) secreting or holding him or her in a place where he or she is not

likely to be found, or (b) using or threatening to use deadly force." RCW 9A40.010(1).

The testimony showed Mr. Tesch and Mr. Burkey placed an unconscious Mr. Tiwater in

the back of a car and drove him to a remote area. These actions constitute abduction.

Next, Mr. Tiwater was beaten, burned and ran over by a car, resulting in his death. The

abduction facilitated the commission of a felony. While Mr. Burkey argues another



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No. 25516-6-111
State v. Burkey


version of the events, we defer to the trier of fact in matters of witness credibility and

evidence weight. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004).

       2. Conspiracy to Commit Kidnapping. "A person is guilty of criminal conspiracy

when, with intent that conduct constituting a crime be performed, he or she agrees with

one or more persons to engage in or cause the performance of such conduct, and any

one of them takes a substantial step in pursuance of such agreement." RCW

9A.28.040(1). Mr. Burkey summoned Mr. Tesch to his house to deal with Mr. Tiwater,

who they believed was an informant. They discussed Mr. Tiwater's motorcycle and

devised a plan to move it. They worked together to place Mr. Tiwater in the back seat

of the Ford Thunderbird and took him to the outskirts of town. Viewing this evidence in

a light most favorable to the State, Mr. Burkey and Mr. Tesch agreed to kidnap Mr.

Tiwater together and at least one of them took a substantial step in furtherance of the

crime. Thus, sufficie,nt evidence supports the conspiracy to commit kidnapping.

       3. First Degree Robbery. A person commits robbery if he or she unlawfully

takes personal property from another against that person's will and uses force to retain

possession of the property or to prevent or overcome resistance to the taking. RCW

9A.56.190. A person commits first degree robbery if, in the commission of a robbery or

in immediate flight therefrom, he or she inflicts bodily injury. RCW 9A.56.200(1)(a)(iii).

Viewing the evidence in a light most favorable to the State, Mr. Tiwater's motorcycle

was taken against his will and by force. Mr. Burkey had expressed an interest in Mr.

Tiwater's motorcycle. After Mr. Tiwater was unconscious, Mr. Burkey took the



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No. 25516-6-111
State v. Burkey


motorcycle to another residence. Expert and lay testimony support that Mr. Tiwater was

severely beaten prior to the motorcycle being moved to another residence. Because

bodily injury was inflicted, the robbery was elevated to first degree. Thus, sufficient

evidence supports Mr. Tesch's first degree robbery conviction.

       4. First Degree Murder. Relevant here, a person is guilty of first degree murder

when: "He or she commits or attempts to commit the crime of either (1) robbery in the

first or second degree ... or (5) kidnapping in the first or second degree, and in the

course of or in furtherance of such crime or in immediate flight therefrom, he or she, or

another participant, causes the death of a person other than one of the participants."

RCW 9A.32.030(1)(c). As reasoned, sufficient evidence shows Mr. Burkey participated

in the kidnapping and robbery of Mr. Tiwater. Because Mr. Tiwater's death occurred in

the course of these crimes, sufficient evidence supports the first degree murder

conviction.

       5. First Degree Assault. CIA person is guilty of assault in the first degree if he or

she, with intent to inflict great bodily harm: (a) Assaults another with a firearm or any

deadly weapon or by any force or means likely to produce great bodily harm or death."

RCW 9A.36.011(1)(a). "[C]ircumstantial evidence as well as direct evidence carries

equal weight." State v. Varga, 151 Wn.2d 179,201,86 P.3d 139 (2004) (citing State v.

De/marter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980». Direct and circumstantial evidence

show Mr. Burkey assaulted Mr. Tiwater in the first degree. Mr. Burkey initiated a fight

with Mr. Tiwater, who he later helped kidnap. The blood evidence found on Mr.



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    No. 25516-6-111
    State v. Burkey


I   Burkey's coat and boots show presence, and the bloody golf club, and car indicate the
J
    means of force used. While Mr. Burkey argues he was an innocent bystander, we leave

    evidence weight and witness credibility questions to the jury. State v. Maxfield, 125

    Wn.2d 378, 385,886 P.2d 123 (1994). Thus, evidence showed Mr. Burkey, with intent

    to inflict great bodily harm, assaulted Mr. Tiwater by force likely to produce great bodily

    harm or death.

                                           B. Public Trial

           The issue is whether Mr. Burkey's constitutional right to a public trial was violated

    under a record showing the court conducted voir dire in a separate room from the main

    courtroom and Mr. Burkey was not present at all times during jury selection, particularly

    when the court questioned juror 48, and when the jury bios were reviewed.

           1. Public Trial. Mr. Burkey contends the trial court's questioning of individual

    jurors in a separate room violated his public trial rights. We first gecide whether the trial

    court's private questioning constituted a closure. A criminal defendant has a right to a

    public trial as guaranteed by our state and federal constitutions. U.S. CONST. amend.

    VI; WASH. CONST. art. I, § 22. Defendants can raise claims of public trial rights

    violations for the first time on appeal. State v. Wise, 176 Wn.2d 1,9,288 P.3d 1113

    (2012).

           The public trial right in voir dire proceedings extends to the questioning of

    individual prospective jurors. Id. at 16-19. The rjght to a public trial is not absolute,

    however, a trial court may close the courtroom so long as it considers the five criteria



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No. 25516-6-111
State v. Burkey


outlined in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). Failure to

conduct a Bone·Club analysis before closing the proceeding is error generally requiring

a new trial because voir dire is an inseparable part of trial. State v. Paumier, 176 Wn.2d

29,35,288 P.3d 1126 (2012).

       In State v. Strode, 167 Wn.2d 1,288 P.3d 1113 (2009), jury members were

brought into the judge's chambers for questioning regarding sensitive topics, with the

trial judge, prosecuting attorney, defense counsel, and the defendant present. Id. at

224. The purpose was to protect the jurors' privacy interests. Our Supreme Court

decided this amounted to a closure and, because the court did not first conduct a Bone-

Club analysis, the defendant's right to a public trial was violated. Id. at 231. In Wise

and Paumier, the court reached similar holdings. Wise, 176 Wn.2d at 15; Paumier, 176

Wn.2d at 37.

       Our record shows portions of voir dire were conducted in a private room with

defense counsel, Mr. Burkey, a defense investigator, the prosecutor, and the judge

present. The sole explanation of why the separate questioning was the court's

instruction to the potential jurors that, U[E]xperience has shown that sometimes there's

certain questions best answered in the privacy of a private room like this." RP (June 12,

2006) at 82. No Bone-Club analysis was attempted.

       Based on Strode and other later case law, the trial court erroneously closed the

courtroom when it privately questioned potential jurors without first conducting a Bone-

Club analysis. The trial court did not explicitly or implicitly consider the familiar Bone­



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    1
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    1   No. 25516-6-111


I
        State v. Burkey


1       Club factors or acknowledge that it was closing the courtroom. The court's bare
    J
        explanation was legally insufficient. Because the facts here are similar to Strode, we
1       hold Mr. Burkey's public trial rights were violated when jurors were questioned in a
f
j       private room without the court first conducting a Bone-Club analysis. If a trial court does


I       not weigh the Bone-Club factors on the record before closing trial proceedings to the

        public, we must follow precedent and reverse and remand for a new trial because the


II      error is structural, presumptively prejudicial, and never harmless. Wise, 176 Wn.2d at

        14-19; Paumier, 176 Wn.2d at 35-37.
i

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               2. Right to be present. Mr. Burkey next contends he was denied his right to be

        present at all critical stages of his trial because he was not present for the review of the

        jury bios and during questioning of potential juror 48. Under the Sixth and Fourteenth

        Amendments to the United States Constitution, a criminal defendant has a fundamental

        right to be present at all "critical stages" of trial. State v. Irby, 170 Wn.2d 874, 880, 246

        P.3d 796 (2011). Our Supreme Court has recognized that jury selection is a critical

        stage of trial to which the right to be present attaches. Id. at 883-84.

               This contention is raised for the first time on appeal. RAP 2.5(a) precludes

        considering issues for the first time on appeal. RAP 2.5(a)(3), however, allows for

        manifest errors affecting a constitutional right. The first test used for deciding the

        applicability of RAP 2.5(a)(3) is "whether the alleged error is truly constitutional." State

        v. Kranich, 160 Wn.2d 893, 899,161 P.3d 982 (2007) (citation omitted).




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No. 25516-6-111
State v. Burkey


       However, in view of our dispositive holding that Mr. Burkey's convictions must be

reversed based on the violation of his public trial rights, we do not address further his

arguments concerning his right to be present. Moreover, the record is unclear about the

extent of Mr. Burkey's presence or absence. Rather than remand to reconstruct the

record and extend this already lengthy appeal, we do not reach this contention.

      Reversed.

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

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

2.06.040.




WE CONCUR:



2rfUr;UJ~j ~F:-

Siddoway, C.J.                                     Lawrence-Berrey, J.




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