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     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                         DIVISION ONE

STATE OF WASHINGTON,                                No. 72101-1-


                      Respondent,

           v.



DONALD HOWARD TURPIN,                               PUBLISHED OPINION


                      Appellant.                    FILED: October 26, 2015


       Verellen, J. — This appeal presents the question whether the public trial right is

implicated when a trial judge excuses a juror who reports as ill while court is not in

session. Donald Turpin fails to show the excusal for illness constituted a process that

has historically been open to the public, and public access does not play a significant

role in that administrative process. Because neither prong of the experience and logic

test is satisfied, Turpin's public trial right is not implicated. Accordingly, we affirm.

                                            FACTS

       The State charged Donald Turpin with burglary in the second degree, theft in the

first degree, trafficking in stolen property in the first degree, and leading organized

crime. At the close of evidence, the court instructed the jury and announced that

closing arguments would begin after a recess for lunch. The lunch recess lasted

approximately two hours. Once the jurors returned, the court stated, "Ladies and

gentlemen, Juror Number 3 got sick, you probably know that, and so we've excused
No. 72101-1-1/2



Juror Number 3. Could our alternate juror please take your materials and please have a

seat right there? You're on the jury now."1

       The clerk's minutes note that the juror's excusal occurred off the record:

        11:27:40 Recess


       Off Record:

        Due to illness, Juror 3 is excused from further consideration of this cause.
       The Court instructs the Bailiff to excuse Juror 3.

       On Record:


        1:22:54 Jury present.

       The court having excused Juror 3, Juror 14 will take Juror 3's place.[2]

       Turpin did not object to the sick juror's excusal or to the replacement with the

alternate juror. The jury ultimately found Turpin guilty as charged.

       Turpin appeals and seeks to "reconstruct" the record to prove a courtroom

closure occurred.

                                         ANALYSIS


       Turpin argues the court violated his public trial right when it excused the sick

juror off the record. But we conclude the court's excusal of the juror did not implicate

Turpin's public trial right.

       An alleged violation of the right to a public trial presents a question of law that

this court reviews de novo.3 Both our federal and state constitutions guarantee a




       1 Report of Proceedings (RP) (May 21, 2014) at 1105.
       2 Clerk's Papers (CP) at 217.
       3 State v. Wise. 176Wn.2d 1, 9, 288 P.3d 1113(2012).
No. 72101-1-1/3



criminal defendant's right to a public trial.4 Article I, section 10 of the Washington

Constitution provides an additional guaranty of open court proceedings. "Justice in all

cases shall be administered openly, and without unnecessary delay."5 There is a strong

presumption that courts are to be open at all stages of trial.6

       A party who proposes closure of a proceeding must show "an overriding interest

based on findings that closure is essential to preserve higher values and narrowly

tailored to serve that interest."7 In State v. Bone-Club, our Supreme Court set forth a

five-factor test courts must use to evaluate the constitutionality of a proposed closure.8




       4 Id, (citing Wash. Const, art. I, § 22; U.S. Const, amend. VI).
       5 Wash. Const, art. I, § 10.
       6 State v. Sublett. 176 Wn.2d 58, 70, 292 P.3d 715 (2012).
       7 State v. Momah. 167 Wn.2d 140, 148, 217 P.3d 321 (2009).
       8128 Wn.2d 254, 906 P.2d 325 (1995). The Supreme Court held that trial courts
must consider the following factors on the record:
               "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 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.
             5. The order must be no broader in its application or duration than
       necessary to serve its purpose."
Jd. at 258-59 (alteration in original) (quoting Allied Daily Newspapers v. Eikenberry. 121
Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
No. 72101-1-1/4



Our Supreme Court has held that a public trial claim may be raised for the first time on

appeal and that a violation is generally structural error warranting a new trial.9

       "But 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."10

Before deciding if the court violated Turpin's right to a public trial, we must determine if

the process at issue "implicates the public trial right, thereby constituting a closure at

all."11 In State v. Sublett, our Supreme Court adopted the experience and logic test

articulated by the United States Supreme Court to determine if a particular process

must remain open to the public absent a Bone-Club analysis.12

       The first part of the test, the experience prong, asks "whether the place
       and process have historically been open to the press and general public."
       The logic prong asks "whether public access plays a significant positive
       role in the functioning of the particular process in question."[13]

The guiding principle is "whether openness will 'enhance[ ] both the basic fairness of the

criminal trial and the appearance of fairness so essential to public confidence in the

system.'"14 If the answer to both questions is "yes," the public trial right attaches, and




      9 State v. Nionqe. 181 Wn.2d 546, 554, 334 P.3d 1068, cert, denied. 135 S. Ct.
880, 190 L Ed. 2d 711 (2014).
       10 Sublett, 176Wn.2dat71.
       11 id,
      12 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (rejecting the distinction between legal
and ministerial proceedings and adversarial and factual proceedings to determine
whether the proceeding at issue implicates the public trial right) (citing Press-Enter. Co.
v. Superior Court. 478 U.S. 1, 8-10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).
       13 jd, (citation omitted) (quoting Press-Enter., 478 U.S. at 8).
       14 jd, at 75. (alteration in original) (quoting Press-Enter, v. Superior Court. 464
U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).
No. 72101-1-1/5


the superior court must apply the Bone-Club factors to evaluate whether a proposed

closure is constitutional.15

       The public trial right analysis has evolved significantly over the last few years. In

2014, our Supreme Court utilized a three-step inquiry to analyze public trial right

claims.16 Applying the threshold experience and logic test, a court first focuses on the

process at issue to determine whether the public trial right is implicated.17 Second, the

court asks whether a closure occurred.18 Third, the court examines whether the closure

was justified.19 If the court concludes after applying the experience and logic test that

the right to a public trial does not apply to the process, it need not reach the second and

third steps in the analysis.20

                                        Experience

       Here, the process at issue is the administrative process of excusing jurors who

report as ill while court is not in session. Washington cases demonstrate that the

"experience" regarding the overall process of excusing sitting jurors and prospective

jurors draws a distinction between purely administrative decisions and decisions based

on challenges for cause.

       In State v. Wilson, Division Two of this court held that Wilson failed to show the

excusal of two jurors who were physically ill before voir dire began in the courtroom was



     15 State v. Paumier, 176 Wn.2d 29, 35, 288 P.3d 1126 (2012): State v. Wise, 176
Wn.2d 1, 12, 288 P.3d 1113 (2012).
       16 State v. Smith, 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014).
       17 id,
       18]d,
       19JU
       20 Id. at 519.
No. 72101-1-1/6



improper or constituted a process that has historically been open to the general public.21

The Wilson court determined that "both the Legislature and our Supreme Court have

acknowledged that a trial court has discretion to excuse jurors outside the public

courtroom for statutorily-defined reasons, provided such juror excusals do not amount to

for-cause excusals or preemptory challenges traditionally exercised during voir dire in

the courtroom."22 Because the trial court had broad discretion to excuse prospective

jurors upon a showing of undue hardship or any reason deemed sufficient by the court

pursuant to RCW 2.36.100(1), Wilson failed to satisfy the experience prong of the

experience and logic test.23

       Other cases also recognize the distinction between pure administrative excusals

and other juror disqualifications.24 The basic distinction between purely administrative

excusals and other disqualifications is consistent with RCW 2.36.110 and CrR 6.5

standards. "RCW 2.36.110 and CrR 6.5 place a continuous obligation on the trial court




       21 174 Wn. App. 328, 345, 298 P.3d 148 (2013).
       22 jd, at 344 (footnote omitted).
       23 id, at 346. RCW 2.36.100(1) provides: "Except for a person who is not
qualified for jury service under RCW 2.36.070, no person may be excused from jury
service by the court except upon a showing of undue hardship, extreme inconvenience,
public necessity, or any reason deemed sufficient by the court for a period of time the
court deems necessary."
       24 See State v. Russell. No. 85996-5, 2015 WL 4943899, at *5 (Wash. Aug. 20,
2015) ("Determining whether a juror is able to serve at a particular time or for a
particular duration (as in hardship and administrative excusals) is qualitatively different
from challenging a juror's ability to serve as a neutral factfinder in a particular case (as
in peremptory and for-cause challenges)."); State v. Love, 183 Wn.2d 598, 606, 354
P.3d 841 (2015) ("Unlike administrative or hardship excusals, for cause and peremptory
challenges can raise questions about a juror's neutrality and a party's motivation for
excusing the juror that implicate the core purpose of the right, and questioning jurors in
open court is critical to protect that right.").
No. 72101-1-1/7



to excuse any juror who is unfit and unable to perform the duties of a juror."25

RCW 2.36.110 states, "It shall be the duty of a judge to excuse from further jury service

any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason

of. . . any physical or mental defect or by reason of conduct or practices incompatible

with proper and efficient jury service."26 Similarly, CrR 6.5 directs that if"at any time

before submission of the case to the jury a juror is found unable to perform the duties[,]

the court shall order the juror discharged."

       Although no cases directly address midtrial off-the-record excusals of jurors who

report as ill, the general "experience" with excusing ill jurors is to allow the trial court to

make such purely administrative decisions off the record. Notably here, the juror's

illness came to light during a lunch recess while court was not in session. The court's

broad discretion to administer the process of dealing with an ill juror necessarily

includes making contemporaneous decisions about whether to excuse that juror.

       Turpin fails to show the excusal of the juror who reported as ill while the court

was not in session constituted a process that has historically been open to the public.

Accordingly, he fails to satisfy the experience prong of the Sublett test.

                                             Logic

       Turpin also fails to satisfy the logic prong of the test. He has not shown that

"public access plays a significant positive role in the functioning of the process of


       25 State v. Jorden, 103 Wn. App. 221, 227, 11 P.3d 866 (2000) (emphasis added)
(trial court's removal of a juror on grounds that her fitness as a juror had been
compromised, without further questioning of the juror, was not an abuse of discretion);
see also State v. Elmore. 155 Wn.2d 758, 773, 123 P.3d 72 (2005) ("Washington and
other courts have granted broad discretion to the trial judge in conducting an
investigation of jury problems.").
       26 (Emphasis added.)
No. 72101-1-1/8


excusing a juror who reports as ill when court is not in session.27 There are few

alternatives when a juror becomes ill during a court recess. Turpin concedes that the

court has the authority to allow an ill juror to receive medical attention, go to the

hospital, or visit a doctor and that the court can make that decision off the record.

       Turpin argues that the court must defer making any "formal" decision whether to

legally excuse a juror until court has resumed. But delaying such a decision is not a

significant positive role in the functioning of that process. On the contrary, it would play

a negative role to compel the court to artificially delay making a decision whether to

excuse an ill juror until court is back in session. An excusal for illness off the record

does not implicate the basic fairness of Turpin's trial or the appearance of fairness

essential to public confidence, especially when, as here, the court promptly announced

its decision in open court as soon as court was back in session.

       Turpin relies upon State v. Jones, where Division Two of this court held that the

random drawing of alternate jurors by the court clerk during a recess at the close of

evidence constituted a courtroom closure that implicated Jones's public trial right.28 In

analyzing the logic prong, the Jones court focused on two of the purposes of the public

trial right: "basic fairness to the defendant and reminding the trial court of the

importance of its functions."29 The court concluded those purposes were implicated

because the off-the-record selection by the court clerk lacked safeguards against

manipulation and chicanery:




       27 Sublett, 176 Wn.2d at 73 (quoting Press-Enter. Co.. 478 U.S. at 8).
       28 175 Wn. App. 87, 91, 303 P.3d 1084 (2013).
       29 jd, at 101-02.

                                              8
No. 72101-1-1/9


      The issue is not that the drawing in this case was a result of manipulation
      or chicanery on the part of the court staff member who performed the task,
      but that the drawing could have been. Where such a drawing occurs
      during a court recess off the record, the defendant and the public lack the
      assurance of a truly random drawing that they would have if the drawing
      were performed in open court on the record. This lack of assurance raises
      serious questions regarding the overall fairness of the trial and indicates
      that court personnel should be reminded of the importance of their duties.
      Accordingly, we conclude that considerations of logic "implicate the core
       values the public trial right serves."[30]

       But the concerns of possible manipulation and chicanery in Jones are not

present here. The record reflects that the juror's off-the-record excusal was promptly

memorialized in the clerk's minutes shortly after the jury returned to their seats after

lunch. And the court contemporaneously went on the record to expressly acknowledge

"Juror Number 3 got sick, you probably know that, and so we've excused Juror Number

3."31 Thus, both the clerk's minutes and the record negated any concerns about

secrecy and informed the public of what had occurred.

       Once the court determined Juror 3 was physically unfit to serve, the logical and

practical course of action was to excuse Juror 3 and seat the alternate juror. Consistent

with Wilson, Juror 3's off-the-record excusal for illness, rather than for cause or

misconduct, was not "'a proceeding so similar to the trial itself that the same rights

attach, such as the right to appear, to cross-examine witnesses, to present exculpatory

evidence, and to exclude illegally obtained evidence.'"32 Instead, it was a purely

administrative process unrelated to the substantive facts of Turpin's case, which did not




       30 Id, (quoting Sublett, 176 Wn.2d at 72).
       31 RP (May 21, 2014) at 1105 (emphasis added).
       32 Wilson, 174 Wn. App. at 346 (quoting Sublett. 176 Wn.2d at 77).
No. 72101-1-1/10



invoke any of the "concerns the public trial right is meant to address regarding perjury,

transparency, or the appearance of fairness."33

       We need not address whether disqualification of a sitting juror on other grounds

would implicate the public trial right. As to illness revealed while court is not in session,

the public trial right is not implicated.

       We need not address Turpin's argument about closure nor his motion to

reconstruct the record as it relates to closure.


       Affirmed.




WE CONCUR:




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       33 Smith. 181 Wn.2d at 518; see State v. Sadler, 147 Wn. App. 97, 114, 193P.3d
1108 (2008) ("A defendant does not, however, have a right to a public hearing on purely
ministerial or legal issues that do not require the resolution of disputed facts.).

                                             10
