                                                                          FILED 

                                                                        JULY 9, 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. 25850-5-111
                                             )
                    Respondent and           )
                    Cross-Appellant,         )
             v.                              )
                                             )
PAUL R. LIVINGSTON,                          )        UNPUBLISHED OPINION
                                             )
                    Appellant and            )
                    Cross-Respondent.        )

      BROWN, J. -   Paul R. Livingston appeals his conspiracy to commit first degree

murder and first degree murder convictions, contending his public trial right was violated

when the court questioned select jurors individually in a separate room based on their

responses to a questionnaire. Mr. Livingston's pro se statement of additional grounds

(SAG) for review alleges ineffective assistance of counsel and court error in accepting

his CrR 3.5 hearing waiver. This court stayed this appeal pending Supreme Court

decisions on similar cases. Following precedent, we reverse.

                                         FACTS

      The State charged Mr. Livingston with conspiracy to commit 'first degree murder

and first degree murder following his confession to his involvement in the shooting

death of Kevin Boyle, a renter in the home connected to an apartment his girlfriend was
No. 25850-5-111
State v. Livingston
                                                                                             I
renting. Before jury selection, the following colloquy between defense counsel and the

court occurred:

              [DEFENSE COUNSEL]: Your Honor, it's been awhile since
              I've tried a case of this nature before you the last one we did
              the questions in [the] jury room. Will we be using much the
              same format?
              THE COURT: That is my preference. One of these days I'm
              probably gonna get called on it, so far I haven't been.
              Because there's the potential for personal disclosure of
              information, particularly on the question. Not so much the


                                                                                             I
              publicity question, but on the question about violent crime
              and that sort of thing. Unless somebody has an objection,
              that's what I usually do, use the jury deliberation room.
              MR. DRESSLER: That's fine with me, your Honor.
              THE COURT: I don't expect to get an objection from
              anybody here. But one of these days I'm gonna have some
              problems. But I respect the jurors' privacy. A couple of
              these questions require some candid answers they might be
              uncomfortable with in a public setting.

Report of Proceedings (RP) (Nov. 2, 2006) at 520-21.

       The transcript of the jury selection process begins with the notation: "(Jury in.)"

RP (Nov. 6, 2006) at 560. The court explained the jury process, and handed out

questionnaires to the assembled prospective jurors. The court told the jury they would

return to the jury assembly room to answer the questionnaire. The court next told the

jury that the questionnaires would be reviewed, U[a]nd for those jurors that we need to

talk with, we will set up some times to return to court." RP (Nov. 6, 2006) at 568. The

court explained, "And we won't be able to tell you when will be back in session together

to start the main part of jury selection until I know how many people we have to talk to




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No. 25850-5-111
State v. Uvingston


individually, figure out the blocks of time, and tell you when we'll be returning." RP

(Nov. 6, 2006) at 568.

       After the court finished reading the questions, the court reporter noted the jury

left the courtroom with "(Jury out)." RP (Nov. 6, 2006) at 571. The court discussed

scheduling, and then the record notes, "(In Recess)." Id. at 572. Next, the court

reporter notes, "(Individual jury voir dire.)." RP (Nov. 6, 2006) at 572. The court,

defense counsel, and the prosecutor privately questioned select individual jurors, one at

a time, regarding their answers to the questionnaire apparently in the jury room.

       One juror asked the court how the process worked, and the court responded,

"We'll go into the process as I described it, but then we had this little separate thing we

needed to do. Once this is done, then with those jurors who remain, we'll go into the

regular process in the courtroom." RP (Nov. 6, 2006) at 579.

       The jury was selected and trial began. The jury found Mr. Livingston guilty as

charged. He appealed.

                                        ANALYSIS

       The dispositive issue is whether Mr. Livingston's public trial right was violated

based on questioning individual jurors in a separate room.

       We must first decide 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.




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No. 25850-5-111
State v. Livingston


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. Wise, 176 Wn.2d at 16-19. The right to a public trial is not

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

criteria 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 222,217 P.3d 310 (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. Strode,

167 Wn.2d 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. 128

Wn.2d at 231. In Wise and Paumier, the court recently 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

solely the court, defense counsel, two deputy prosecutors, and a police detective

present. Mr. Livingston does not appear to be present. Id. The sole explanation of why

the separate questioning was the court's comment to defense counsel, "A couple of



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No. 25850-5-111
State v. Livingston


these questions requires some candid answers they might be uncomfortable with in a

public setting." RP (Nov. 2, 2006) at 521.

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

courtroom when it privately questioned potential jurors during voir dire without first

conducting a Bone-Club analysis. By comparison, in State v. Momah, 167 Wn.2d 140,

151-52,217 P.3d 321 (2009) our Supreme Court found no public trial right violation

where the defendant affirmatively assented to the closure of voir dire, actively

participated in designing the trial closure, and, while it was not explicit, the trial court

effectively considered the Bone-Club factors. Here, the trial court did not explicitly or

implicitly consider the Bone-Club factors or acknowledge it was closing the courtroom.

The single explanation of why the separate questioning was the court's insufficient

comment to defense counsel. Because the facts here are similar to Strode and distinct

from Momah, we follow the precedent and hold Mr. Livingston's public trial rights were

violated when jurors were questioned in a private room without the court first conducting

a Bone-Club analysis. If a trial court does not weigh the Bone-Club factors on the

record before closing trial proceedings to the public, we must reverse and remand for a

new trial because the error is structural, presumptively prejudicial, and never harmless.

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

       Since reversal is necessary based on public trial violation, we do not reach Mr.

Livingston's SAG issues.

       Reversed.



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No. 25850-5-111
State v. Livingston


      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.



                                                       Brown, J.
WE CONCUR:




                                                       Lawrence-Berrey, J.




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