                                                                              FILED
                                                                            AUG. 11, 2015
                                                                    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. 33003-6-111
                                                )
                      Respondent,               )
                                                )
              v.                                )         UNPUBLISHED OPINION
                                                )
DAVID MATTHEW HENKLEMAN,                        )

                                                )

                      Appellant.                )


       LAWRENCE-BERREY, J.          David Matthew Henkleman was convicted of second

degree murder while armed with a deadly weapon, first degree assault while armed with a

deadly weapon, and second degree assault while armed with a deadly weapon. The three

convictions arose from his involvement in a bar fight. On appeal, he contends he was

denied his right to a public trial, the trial court erroneously provided the jury with a first

aggressor instruction, and the trial court abused its discretion in sentencing him to

consecutive sentences on two of the counts. We disagree with his contentions and affirm.
No. 33003-6-II1
State v. Henkleman


                                         FACTS

       Early in the morning on December 4,2012, Mr. Henkleman entered a bar, ordered

a drink, and approached Casey Heath on the bar patio. At this time, Mr. Heath was

sitting on the bar patio with his friends Eric Cooper and John Poole. After briefly

speaking with Mr. Heath, Mr. Henkleman made sudden and repeated movements toward

Mr. Heath's torso with his right hand. Mr. Heath abruptly leaped away from Mr.

Henkleman and ran toward the back door leading into the tavern. Mr. Henkleman chased

after Mr. Heath, tackled him, and continued hitting him while he was on the ground.

       Mr. Cooper went to assist Mr. Heath. While Mr. Henkleman was on top of Mr.

Heath, Mr. Cooper hit Mr. Henkleman. Mr. Henkleman then turned his attention to Mr.

Cooper, and through the course of the encounter, Mr. Cooper punched Mr. Henkleman

twice and Mr. Henkleman stabbed Mr. Cooper in his left armpit. After Mr. Cooper was

injured, Mr. Poole became involved. Mr. Poole testified to elbowing and pushing Mr.

Henkleman. Mr. Henkleman responded to Mr. Poole's assault by stabbing Mr. Poole in

the right arm with his knife.

       Police arrived, and Mr. Heath was pronounced dead at the scene. Mr. Heath

suffered eight stab wounds. Mr. Henkleman was charged with three felonies: count I,

second degree murder of Casey Heath while armed with a deadly weapon; count II, first

degree assault of Eric Cooper while armed with a deadly weapon; and count III, second

degree assault of John Poole while armed with a deadly weapon.


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No. 33003-6-II1
State v. Henkleman


       The case was tried to a jury. During voir dire, the court conducted a sidebar

during which the court and parties decided that eight prospective jurors would be

dismissed for cause. After the conclusion of the trial, the court, over the objection of Mr.

Henkleman, provided the jury with a first aggressor instruction as it pertained to the

alleged assaults of Mr. Cooper and Mr. Poole. The jury found Mr. Henkleman guilty on

all three counts. The trial court entered consecutive sentences on counts I and II, and

sentenced Mr. Henkleman to 427 months of confinement. Mr. Henkleman appealed.

                                        ANALYSIS

1.     Whether Mr. Henkleman was denied his right to a public trial

       Mr. Henkleman argues that his right to a public trial was violated when the court

decided to dismiss eight potential jurors at a sidebar.

       Under article I, sections 10 and 22 of the Washington Constitution as well as the

Sixth Amendment to the United States Constitution, a defendant is guaranteed the right to

a public trial. While justice should be administered openly, "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." State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d

715 (2012) (plurality opinion).

       A defendant's failure to object to a public trial violation does not preclude

appellate review under RAP 2.5. State v. Paumier, 176 Wn.2d 29,36,288 P.3d 1126

(2012). "Whether a criminal accused's constitutional public trial right has been violated



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State v. Henkleman


is a question oflaw, subject to de novo review on direct appeal." State v. Easterling, 157

Wn.2d 167,173-74, 137 P.3d 825 (2006). In analyzing whether a defendant's right to a

public trial has been violated, courts should

               "begin by examining ... whether the public trial right is implicated
               at all ... then tum to the question whether, if the public trial right is
               implicated, there is in fact a closure of the courtroom; and if there is
               a closure, whether ... the closure was justified."

State v. Smith, 181 Wn.2d 508,513,334 P.3d 1049 (2014) (alterations in original)

(quoting Sublett, 176 Wn.2d at 92 (Madsen, C.J., concurring)).

       It is clear that public trial rights attach to "jury selection, including for cause and

peremptory challenges." State v. Love, No. 89619-4, slip op. at 7 (Wash. July 16,2015).

Here, dismissal ofjurors during a sidebar conversation implicated Mr. Henkleman's right

to a public trial.

       Nevertheless, because there was no closure, we hold that Mr. Henkleman was not

denied his right to a public trial.

       Washington's Supreme Court has reversed convictions for two types of closures.

Love, slip op. at 7. The first type of closure occurs'" when the courtroom is completely

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

Love, slip op. at 7 (quoting State v. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011)).

"The second type of closure occurs where a portion of a trial is held someplace

'inaccessible' to spectators, usually in chambers." Love, slip op. at 8 (quoting Lormor,




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No. 33003-6-111
State v. Henkleman


172 Wn.2d at 93). "This court has adopted the experience and logic test to determine

whether a closure occurred in the absence of an express closure on the record." Smith,

181 Wn.2d at 520 (citing In re Pers. Restraint a/Yates, 177 Wn.2d 1,28-29,296 P.3d

872 (2013».

      Here, there was no express closure on the record. The record does reflect,

however, that a sidebar conversation took place during the process ofjury selection. At

the conclusion ofjury selection, the court made the following statement on the record.

              THE COURT: I want to go ahead and put on the record the sidebar
      that we had at the beginning of the time when the jury selection process
      was occurring. During that time period, the lawyers indicated that they did
      not have any argument as it related to requests for excusing jurors for
      cause. There was an agreement during that sidebar that juror numbers 15,
      31, 41, 44, 49, 46, 48, and 36 would be excused for cause based upon the
      different physical conditions they had or hardships as it related to siting
      [sic] for the length of this trial.

1 Report of Proceedings (RP) at 85.

      Mr. Henkleman argues that he was denied his right to a public trial when for cause

challenges were made during a sidebar conversation.

      In Love, voir dire was conducted in open court and potential jurors' responses to

questioning were included as part of the record. Slip op. at 1. Counsel exercised for

cause and peremptory challenges to potential jurors during a sidebar conversation. Id.

The sidebar conversation, although held so that the jury could not hear, "was on the

record and visible to observers in the courtroom." Love, slip op. at 3. On appeal, Love




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No. 33003-6-111
State v. Henkleman


argued that potential jurors were challenged in a manner that violated his right to a public

trial.

         In concluding that there was no closure, the court noted that the public was able to

~~watch      the trial judge and counsel ask questions of potential jurors, listen to the answers

to those questions, see counsel exercise challenges at the bench and on paper, and

ultimately evaluate the empaneled jury." Id. at 9. The court went on to explain "[t]he

public was present for and could scrutinize the selection of Love's jury from start to

finish, affording him the safeguards of the public trial right[.]" Id. The court determined

there was no closure and as a result, Love's public trial claim failed.

         Similarly, here, there is no indication that the public was excluded. The courtroom

minutes indicate that court was in open session during the entirety of the jury selection

process.      I   The minutes, as well as the report of proceedings, further indicate that the

court ultimately disclosed the contents of the sidebar conversation on the record. Any

members of the public, who were in the courtroom observing, were informed of what was

discussed during the sidebar. The public was present during the jury selection and could

scrutinize the selection of Mr. Henkleman's jury from start to finish. Mr. Henkleman

was afforded the safeguards of having a public triaJ.2



      I While the process ofjury selection was not transcribed in the report of
proceedings, it is part of the record through courtroom minutes.
         2   Further, although not argued by either party, under RCW 2.36.110, "[i]t shall be       I
                                                                                                    !
                                                                                                    r
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No. 33003-6-111
State v. Henkleman


       Mr. Henkleman was not denied his right to a public trial when it was determined

that potential jurors would be dismissed for cause at a sidebar. There was no closure.

2.     Whether the trial court erred in giving the first aggressor instruction

       Mr. Henkleman contends that the trial court committed reversible error when it

provided the jury with the first aggressor instruction. 3 Mr. Henkleman asserts that the

instruction was improper because he was not the first aggressor toward Mr. Cooper or

Mr. Poole and "there was insufficient evidence that [his] assault of [Mr.] Heath was

intended to provoke a belligerent response from either [Mr.] Cooper or [Mr.] Poole." Br.

of Appellant at 14.



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 bias, prejudice, indifference,
inattention or any physical or mental defect." Further, under RCW 2.36.100(1) a trial
judge has broad discretion to excuse prospective jurors for "undue hardship." Here, the
court indicated that it was excusing jurors because of "different physical conditions they
had or hardships as it related to siting [sic] for the length of this trial." 1 RP at 85. The
court had the duty to excuse any juror who it believed would be a potentially unfit juror.
       3 The instruction stated:
              No person may, by any intentional act reasonably likely to provoke a
       belligerent response, create a necessity for acting in self-defense and
       thereupon use force upon or toward another person. Therefore, if you find
       beyond a reasonable doubt that defendant was the aggressor, and that the
       defendant's acts and conduct provoked or commenced the fight, then self­
       defense is not available as a defense. However, the right of self-defense
       may be revived if the aggressor in good faith withdrew from the aggression
       at such a time and in such a manner as to have clearly apprised Mr. Cooper
       and/or Mr. Poole that he in good faith was desisting, or intended to desist,
       from further aggressive action.
Clerks Papers at 242.


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No. 33003-6-III
State v. Henkleman


       When a defendant seeks to have the jury instructed on self-defense, the State may

seek to have the jury provided with a first aggressor instruction-an instruction providing

that if the jury finds the defendant provoked the need to act in self-defense, his or her

claim for self-defense must fail. See State v. Bea, 162 Wn. App. 570,575,254 P.3d 948

(2011).

       "Aggressor instructions are not favored." State v. Kidd, 57 Wn. App. 95, 100, 786

P.2d 847 (1990). Because "[a] first aggressor instruction potentially removes self-

defense from the jury's consideration, relieving the State of its burden of proving that a

defendant did not act in self-defense," the instruction should be given only sparingly.

Bea, 162 Wn. App. at 575-76 (citing State v. Douglas, 128 Wn. App. 555, 563, 116 P.3d

1012 (2005); State v. Riley, 137 Wn.2d 904,910 n.2, 976 P.2d 624 (1999».

       "[I]t is error to give such an instruction when it is not supported by the evidence."

State v. Wasson, 54 Wn. App. 156, 158-59, 772 P.2d 1039 (1989) (citing State v. Brower,

43 Wn. App. 893,901, 721 P.2d 12 (1986); State v. Upton, 16 Wn. App. 195,204,556

P.2d 239 (1976». Nevertheless, when there is credible evidence from which the jury

could reasonably find that the defendant provoked the need to act in self-defense, it is not

error to provide the instruction. Riley, 137 Wn.2d at 909-10.

       Whether sufficient evidence supported the first aggressor instruction is a question

of law and is, therefore, reviewed de novo. State v. Stark, 158 Wn. App. 952, 959, 244

P.3d 433 (2010). When determining whether evidence was sufficient to support the


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No. 33003-6-II1
State v. Henkleman


giving of an instruction, we view the supporting evidence in the light most favorable to

the party who requested the instruction; accordingly, here, the State needed only to

produce some evidence that Mr. Henkleman was the first aggressor to meet its burden of

production. See Bea, 162 Wn. App. at 577.

       Here, evidence at trial was presented to suggest that Mr. Poole and Mr. Cooper

became involved in the melee because Mr. Henkleman attacked their friend, Mr. Heath.

While Mr. Cooper and Mr. Poole used force against Mr. Henkleman before Mr.

Henkleman used force against them, their use of force was provoked by Mr.

Henkleman's assault of their friend. Specifically, Mr. Poole testified that Mr. Cooper

went to assist Mr. Heath "right away" and that when Mr. Cooper first approached Mr.

Henkleman, Mr. Henkleman was hunched over Mr. Heath. 5 RP at 968. There was

further testimony from Mr. Poole that "I thought that a guy was on top of my friend

beating him-beating him while he was down, and Casey was not fighting." 5 RP at 972.

While other testimony may have indicated that Mr. Henkleman's assault of Mr. Heath

had concluded before Mr. Poole and Mr. Cooper approached Mr. Henkleman, it is for the

jury to discern witness credibility and persuasiveness of evidence. 4 In re Disciplinary


       4 In its ruling on whether an aggressor jury instruction was warranted, the trial
court reasoned:
                There certainly has been evidence that clearly suggests that Mr.
       Cooper and Mr. Poole approached Mr. Henkleman because they knew that
       their friend, Mr. Heath, had been assaulted. And at that point, of course, it
       appears that neither of those gentlemen necessarily understood what had


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No. 33003-6-III
State v. Henkleman


Proceedings Against Kuvara, 97 Wn.2d 743, 747, 649 P.2d 834 (1982). The State met its

burden of production by producing some evidence that Mr. Henkleman's attack of Mr.

Heath provoked Mr. Cooper's and Mr. Poole's involvement in the melee.

       Mr. Henkleman argues that his attack of Mr. Heath was not intended to provoke a

response from Mr. Cooper or Mr. Poole. In support of this argument, Mr. Henkleman

relies on this court's decision in Wasson.

       While the provoking act must be intentional, it cannot be "an act directed toward

one other than the actual victim, unless the act was likely to provoke a belligerent

response from the actual victim." Kidd, 57 Wn. App. at 100 (citing Wasson, 54 Wn.

App. at 159-61). Further, "[i]t has long been established that the provoking act must also

be related to the eventual assault as to which self-defense is claimed." Wasson, 54 Wn.

App. at 159 (citing State v. Hawkins, 89 Wash. 449, 455, 154 P. 827 (1916)).

       Wasson is distinguishable. In Wasson, the court reversed the defendant's

conviction and ordered a new trial after it determined that the trial court erroneously

provided the jury with an aggressor instruction. Id. at 161. There, the defendant was

involved in an altercation with an individual. Id. at 157. Eventually, a third party

appeared and aggressively approached the defendant. Id. at 157-58. The defendant shot


       happened to Mr. Heath at that point and that they first approached Mr.
       Henkleman in an attempt to ensure that Mr. Heath was no longer assaulted.
              There was testimony also perhaps that certainly the assault had
       already been concluded at the time Mr. Poole and Mr. Cooper approached.


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State v. Henkleman


the third party and, at trial, claimed self-defense. Id. The court concluded that no

evidence had been presented that the defendant acted to provoke an assault from the third

party. Id. at 159. The third party was not interfering to protect the other individual;

rather, the third party actually assaulted the other individual prior to aggressively

approaching Mr. Wasson. Id. at 157-58.

       Unlike Wasson, where the original assault was not related to the eventual assault,

Mr. Henkleman's assault ofMr. Heath was related to the eventual assaults on his friends

who were coming to his rescue. While Mr. Henkleman's act of attacking Mr. Heath was

not directed at either of Mr. Heath's friends, a reasonable juror could find that Mr.

Henkleman's attack on Mr. Heath was likely to provoke a response from Mr. Heath's

friends. The giving of the first aggressor instruction, under these facts, was not error.

3. 	   Whether the trial court abused its discretion in sentencing Mr. Henkleman to
       consecutive sentences on counts I and II

       Mr. Henkleman contends the trial court abused its discretion when it imposed a

consecutive sentence for his second degree murder conviction and his first degree assault

conviction.

       RCW 9.94A.589(1)(b) governs sentencing for two or more serious violent

offenses arising from separate or distinct criminal conduct. It provides that when a

defendant is convicted of two or more serious offenses, the sentences imposed "shall be

                                                                                            ~.

7 RP at 1261-62.


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No. 33003-6-III
State v. Henkleman


served consecutively to each other." RCW 9.94A.589(1)(b) (emphasis added).

Notwithstanding this language, a sentencing court has discretion to run the sentences

concurrently if the sentencing court determines there are mitigating factors justifying an

exceptional downward sentence. In re Pers. Restraint ofMulholland, 161 Wn.2d 322,

166 P.3d 677 (2007).

      The court may impose a sentence outside the standard sentence range for an
      offense if it finds, considering the purpose of this chapter, that there are
      substantial and compelling reasons justifying an exceptional sentence ....

              A departure from the standards in RCW 9.94A.589 (1) and (2)
       governing whether sentences are to be served consecutively or concurrently
       is an exceptional sentence.

RCW 9.94A.535.

      Here, Mr. Henkleman was convicted of second degree murder and first degree

assault. The charges arose from separate and distinct criminal conduct-the murder of

Mr. Heath and the assault of Mr. Cooper-and they are both "serious violent offenses" as

defined by RCW 9.94A.030(46)(a)(iii) and (v). Accordingly, absent mitigating factors

justifying an exceptional downward sentence, the sentencing court was required to run

the sentences concurrently.

      Mr. Henkleman argues that the trial court was not aware that it had the discretion

to impose an exceptional downward sentence. However, at sentencing, the court stated:

             In Washington state, there are mandatory sentencing guidelines, and
      I am required to sentence a defendant within that sentencing range. Absent
      extraordinary circumstances, a sentencing range is based upon the


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No. 33003-6-111
State v. Henkleman


       seriousness of the offense and a defendant's offender score. Today, I do
       not find there is anything extraordinary that would require the Court to go
       above or below the sentencing guidelines as defined by the law, and a
       sentence today will be imposed within those guidelines.

RP (Sentencing Hr'g) at 55. The court determined that an exceptional sentence was not

warranted.

       The court was aware it had the discretion to run the sentences concurrently and

impose an exceptional downward sentence but, in its discretion, determined that there

were no circumstances justifYing the exceptional sentence. The trial court did not abuse

its discretion.

       Affirm.

       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.



                                             Lawrence-Berrey, J.

WE CONCUR: 





Brown, J.




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