                                                                          FILED 

                                                                      JANUARY 12,2016 

                                                                  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. 32466-4-111
                     Respondent,               )
                                               )
       v.                                      )
                                               )         UNPUBLISHED OPINION
MARGARITO GORDIAN CRUZ,                        )
                                               )
                     Appellant.                )


       SIDDOWAY, C.J. -     Margarito Cruz appeals his convictions for rape of a child in

the second degree and child molestation in the second degree. He contends the trial court

violated his right to a public trial when it allowed the parties to exercise their peremptory

challenges silently by exchanging a written list ofjurors between themselves. Based on

the recent decision in State v. Love, 183 Wn.2d 598, 354 P.3d 841 (2015), we affirm.

                                          FACTS

       A jury found Mr. Cruz guilty of rape of a child in the second degree and child

molestation in the second degree. Mr. Cruz's convictions were reversed on appeal due to
No. 32466-4-111
State v. Cruz


a violation of his right to a public trial during jury selection, and the matter was remanded

for a new trial.

       Following voir dire in the second trial, counsel exercised peremptory challenges

silently in the courtroom by passing a sheet of paper back and forth, writing down the

names and numbers ofjurors they wished to be excused. The struck juror sheet, which

was filed in the court record the following day, shows the State struck seven jurors and

Mr. Cruz struck six. There is no indication in the record whether any member of the

public had to leave the courtroom, the courtroom was locked, or anyone was barred from

entering. Similarly, the record does not reflect whether the public could not see counsel

passing the struck juror sheet between themselves.

       Following this, the trial judge announced who had been selected to serve on the

jury, including an alternate. The empaneled jury found Mr. Cruz guilty on both counts.

Mr. Cruz appealed.

                                        ANALYSIS

       Article I, section 22 of the Washington Constitution guarantees a criminal

defendant the right to a public trial. In analyzing whether Mr. Cruz's public trial right

was violated, Love is controlling as it involved the same challenge to the exercise of

silent peremptory challenges. There, the Washington Supreme Court found the defendant

did not show either (1) the courtroom was completely and purposefully closed to the




                                             2

No. 32466-4-III
State v. Cruz


public or (2) a portion of the trial was held someplace "inaccessible" to spectators. Love,

183 Wn.2d at 606. The Love court disagreed with the defendant's analogy equating the

exercise of silent peremptory challenges occurring in open court to those proceedings

done behind a closed chambers door. Jd. In so finding, the court reiterated the purpose

of the public trial right: to facilitate fair and impartial trials through public scrutiny. Jd.

And because no portion of the peremptory challenge process was concealed, the public

was able to effectively oversee selection of the jury. Jd. at 607. The court noted the

public could watch the questioning of the jury pool and listen to the answers given, see

counsel exercise challenges at the bench and on paper, evaluate the empaneled jury, and

look at the struck juror sheet if desired. Jd. Thus, the Love court held "the procedures

used at [the defendant's] trial comport with the minimum guarantees of the public trial

right." Jd.

       Here, Mr. Cruz does not differentiate the facts of his case from the facts in Love.

As in Love, Mr. Cruz analogizes the use of silent written peremptory challenges to

closing the courtroom. However, as explicitly noted by the Love court, where written

methods of challenging jurors are used and such methods are done in open court and on

the record, the proceedings are subject to public scrutiny. Jd.




                                                3

No. 32466-4-II1
State v. Cruz


      Affirmed.

      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.




                                              2!~1J>~r
                                            Slddoway, C.J.                      .

WE CONCUR:




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