                                                                                                Filed
                                                                                          Washington State
                                                                                          Court of Appeals
                                                                                           Division Two

                                                                                            June 15, 2016



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                No. 45497-1-II

                                Respondent,

        v.

 CALVERT RAUB ANDERSON, JR.,                                     PUBLISHED OPINION

                                Appellant.

       MAXA, J. — Calvert Anderson appeals his convictions for third degree assault and

obstructing a law enforcement officer. In a previous opinion, we held that the trial court violated

Anderson’s constitutional right to a public trial by allowing counsel to make juror challenges for

cause at a sidebar conference. State v. Anderson, 187 Wn. App. 706, 350 P.3d 255, cause

remanded, 184 Wn.2d 1009 (2015). Our holding was based on determinations that (1) a sidebar

conference outside the hearing of the public was a courtroom closure, and (2) juror challenges

for cause implicated the public trial right under the experience and logic test. Id. at 714, 721.

The State filed a petition for review in the Supreme Court.

       The Supreme Court subsequently decided State v. Love, 183 Wn.2d 598, 354 P.3d 841

(2015), cert. denied, 136 S. Ct. 1524 (2016). In Love, the court held that exercising for cause

juror challenges orally at a sidebar and exercising preemptory juror challenges silently on paper

did not constitute courtroom closures triggering the defendant’s public trial right because the

questioning of jurors was done in public, the exercise of juror challenges was visible to observers
No. 45497-1-II


in the courtroom, and the juror challenges were made on the record. Id. at 607. Following its

decision in Love, the Supreme Court granted review in this case and remanded to this court for

reconsideration in light of Love. Anderson, 184 Wn.2d 1009 (2015).

       We now hold that under Love, there was no courtroom closure here because the

questioning of jurors occurred in open court, the parties’ exercise of juror challenges was visible

to courtroom observers, and the trial court summarized the sidebar proceedings on the record and

in open court. As a result, the trial court did not violate Anderson’s public trial right and we

affirm Anderson’s convictions.

                                              FACTS

       The State charged Anderson with third degree assault and obstructing a law enforcement

officer after he scuffled with police officers. A jury convicted Anderson of both crimes.

       During voir dire, the questioning of jurors occurred in open court. Anderson challenged

four prospective jurors for cause at a sidebar conference, which the judge told the jurors they

would not be able to hear. At the sidebar conference, the trial court dismissed the four

challenged prospective jurors. The trial court later dismissed a fifth prospective juror for cause

on its own initiative at a second sidebar conference. The trial court then announced in open court

which prospective jurors would be serving on the jury.

       No transcription of either sidebar conference appears in the record, but the trial court later

noted the challenges and resulting dismissals for the record:

       At a sidebar before we took the morning recess, I excused for cause, based upon
       the challenge by [defense counsel], for cause Jurors 5, 15, 18 and 34. Following
       the second questioning period by [defense counsel], and before we selected the
       jury, I excused Juror No. 27 for cause.




                                                  2
No. 45497-1-II


Report of Proceedings (RP) at 12-13. The trial court did not conduct a Bone-Club analysis

before the sidebar conferences.

       This case returns to us on remand from the Supreme Court.

                                           ANALYSIS

A.     LOVE ANALYSIS

       The question in this case is whether a courtroom closure occurred when the trial court

considered juror challenges at a sidebar conference. In our previous opinion, we held that the

sidebar conference constituted a closure of the juror selection proceedings because the public

could not hear what was occurring. Anderson, 187 Wn. App. at 714. In light of Love, we now

hold that no courtroom closure occurred in this case.

       In Love, the trial court and the parties questioned prospective jurors in open court during

voir dire examination. 183 Wn.2d at 602. When the questioning concluded, counsel approached

the bench to discuss challenges for cause in the presence of a court reporter. Id. Although the

discussion and ruling on the juror challenges occurred at a sidebar conference, the exchange was

on the record and visible to observers in the courtroom. Id. The parties then exercised

preemptory challenges by striking names from a written list of jurors. Id. at 602-603. Love

argued that the procedure used for exercising juror challenges “effectively ‘closed’ the

courtroom, though it was unlocked and open, because the public was not privy to the challenges

in real time.” Id. at 604.




                                                3
No. 45497-1-II


        The Supreme Court stated without elaboration that the public trial right attaches to jury

selection, including for cause and peremptory challenges.1 Id. at 605-606. The court then

addressed whether Love had shown that a courtroom closure had occurred. The court noted that

it had reversed convictions for two types of closures. The first type of closure occurs when the

courtroom is completely and purposefully closed to spectators. Id. at 606. Love did not allege

that the courtroom was closed in this traditional way. Id.

        The second type of closure occurs where a portion of the trial is held in a place that is

inaccessible to spectators. Id. Love argued that “the possibility that spectators at his trial could

not hear the discussion about for cause challenges or see the struck juror sheet used for

preemptory challenges rendered this portion of his trial inaccessible to the public.” Id.

        The court disagreed that addressing for cause juror challenges outside the hearing of

spectators or exercising preemptory challenges on a struck juror sheet constituted a courtroom

closure. The court stated:

        [T]he public had ample opportunity to oversee the selection of Love’s jury
        because no portion of the process was concealed from the public; no juror was
        questioned in chambers. To the contrary, observers could 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. The transcript of the discussion about for
        cause challenges and the struck juror sheet showing the preemptory challenges are
        both publically available. The 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 missing in cases where we found closures.

Id. at 607.



1
 The Supreme Court has confirmed that the public trial right extends to the entire jury selection
process, including peremptory juror challenges. State v. Marks, 185 Wn.2d 143, 145, 368 P.3d
485 (2016).


                                                  4
No. 45497-1-II


B.     APPLICATION OF LOVE

       The facts here are nearly identical to the facts in Love. In both cases, prospective jurors

were questioned in open court during voir dire and the public could see for cause challenges

being made at sidebar. One difference is that in Love, the trial court addressed the juror

challenges for cause with a court reporter present to transcribe the proceedings. 183 Wn.2d at

602. Here, no court reporter transcribed the sidebars at which the trial court and counsel

addressed juror challenges. Therefore, a transcript of the discussion of challenges for cause is

not publicly available. Instead, the trial court summarized on the record in open court what had

happened at sidebar.

       Despite this factual difference, Love controls here. The court in Love did not hold that

the presence of a court reporter at a sidebar conference was required in order to avoid a

courtroom closure. The key factors for the court were that the public could (1) hear the voir dire

questioning that provided the basis for the challenges for cause and (2) observe the sidebar

conference while it was occurring. Id. at 607. Both factors were present here.

       Further, anyone listening to the questioning of the jurors would have been able to easily

discern why the trial court dismissed the five jurors for cause. Juror 5 was a corrections officer

who stated that he would start off with an assumption that the defendant was guilty. Juror 15’s

son was a police officer and two of the State’s witnesses were the son’s fellow officers, and Juror

15 thought he would show partiality toward them. Juror 18 stated that because of a prior

experience serving as a juror in an attempted murder trial, he could never render a not guilty

verdict unless the defendant proved he was not even partially responsible for violence toward

another person. Juror 27’s father was killed by a drunk driver, and he stated that because of his



                                                 5
No. 45497-1-II


strong emotions regarding alcohol he would not be able to be fair if the case involved the

defendant’s consumption of alcohol. And Juror 34 had been married to a police officer who

cheated on her and beat her, and she had a firm conviction that this would not be a good case for

her to serve on as a juror because she could not be fair.

       We hold that no courtroom closure occurred under the facts here. As in Love, the juror

questioning took place in open court. As in Love, the sidebar conference in which the trial court

addressed for cause juror challenges was “visible to observers in the courtroom.” 183 Wn.2d at

602. Unlike in Love, a transcript of the proceedings was not available to the public. But the trial

court stated on the record in open court the results of the sidebar conference. Given these facts,

the trial court’s placing what occurred at sidebar on the record meant that “[t]he public was

present for and could scrutinize the selection of [the] jury from start to finish,” thereby affording

Anderson the safeguards of the public trial right. Id. at 607.

       On reconsideration following remand from the Supreme Court, we hold that the trial

court did not violate Anderson’s public trial right and therefore we affirm his convictions.




                                                      MAXA, A.C.J.


 I concur:



LEE, J.




                                                  6
No. 45497-1-II


       MELNICK, J. — (concurrence) The majority’s reasoning is generally consistent with my

opinion in State v. Effinger, No. 46445-4-II (Wash. Ct. App. June 21, 2016). To the extent that

there are conflicts in the reasoning of the two cases, I adhere to the rationale and analysis employed

in Effinger.




                                                              Melnick, J.




                                                  7
