                                                                                      FILED
                                                                              COURT OF APPEALS

                                                                             2013 SEP --   AM 10: 16

                                                                              STATE OF VIASHINGTOW

                                                                              PY

      IN THE COURT OF APPEALS OF THE STATE OF                                      W IiINGTON
                                             DIVISION II

STATE OF WASHINGTON,                                                         No. 42575 1 II
                                                                                       - -


                                  Respondent,

            V.




JESS JAMES VARNELL,                                              UNPUBLISHED OPINION




            HUNT, P. . —
                   J    Jess    James Varnell appeals his jury conviction for first degree escape. He

argues that the trial court violated his right to a public trial when it conducted an in-
                                                                                        chambers

conference during voir dire and excused two potential jurors without first conducting a Bone -

Club' analysis. He also raises numerous claims in his Statement of Additional Grounds (SAG),
most of which claim ineffective assistance of counsel; he appears also to assert , insufficient

evidence of the knowledge element of his escape conviction. We hold that the' superior court's

failure to conduct a Bone Club analysis was structural error, compelling us to reverse Varnell's
                          -

conviction under the       Supreme   Court's recent decision in State   v.   Wise. We further hold that the

evidence at trial was sufficient to support his escape conviction; thus,there is no double jeopardy

bar to retrial on remand.




    State v. Bone Club, 128 Wn. d 254, 258 59,906 P. d 325 (1995).
                  -           2            -       2
2
    State   v.   Wise, 176 Wn. d 1, 6,288 P. d 1113 (2012).
                             2             3
No. 42575 1 II
          - -


                                                FACTS


         In November 2010, Jess James Varnell pled guilty to attempted unlawful possession of

methamphetamine; the superior court sentenced him to 207 days of confinement, to be served

through "Breaking The Cycle" BTC),a home based alternative to confinement program.
                             (           -
Clerk's Papers (CP)at 100. Conditions for participating in BTC required Varnell to sign in by

noon during the first 30 days of the program, excluding weekends and holidays, and to maintain

a   verifiable   physical   address within Pierce County.   Following the first 30 days, Varnell was

required to check in twice weekly for the next thirty days and to call as instructed. Varnell's

BTC case manager, Joan Spencer, informed him that (1) could change his physical address as
                                                    he

many times as he wished, but that he must submit the change to BTC; 2) he failed to maintain
                                                                    ( if

a verifiable address in Pierce County, he would fail the BTC program and would have to

complete his sentence in the Pierce County Jail; 3) he failed the program, he would have to
                                                 ( if

report to BTC; and (4)failure to report could result in the State's issuing an escape warrant and

charging him with the crime of escape.
          Varnell signed in with BTC on a daily basis until January 5, 2011, after which he failed

to report as required. The State charged him with first degree escape, for which he requested a

jury trial. On the second day of trial,the State reminded the court that two potential jurors had


3
 The BTC program has since changed its name to "Alternative To Confinement." Verbatim
Report of Proceedings (VRP)July 26,2011)at 13.
                            (
4
 Despite serving their sentences outside state -operated facilities, BTC participants are deemed
in custody."VRP ( uly 25, 2011) at 23. Thus, a BTC participant's jail record shows that he is
                   J
in custody"but physically located at the addressed he provides to BTC. VRP ( uly 25, 2011) at
                                                                                 J
23.




                                                    2
No. 42575 1 II
          - -



been excused for cause from the jury venire during a previous in-
                                                                chambers conference, which

they had failed to mention on the record
         THE STATE]: Your Honor, it did occur to me, though, yesterday we had a little
         counsel [sic]in chambers during jury selection where we discussed that number 6
         and number 26?
         VARNELL]:28.
         THE STATE]: 28 should be excused for cause. And I don't think we ever put
         that on the record.
         THE COURT: I don't think we did either.
         THE STATE]: Thank you.
         THE COURT: So we were excusing 6 and 28 for cause. That was because both
         of them had employment and other issues that would not allow them to sit on the
         jam'•

Verbatim Report of Proceedings (VRP)July 26, 2011)at 77. Varnell voiced no objection to this
                                     (

procedure.

         The jury found Varnell guilty of first degree escape. The trial court sentenced Varnell to

a low end standard range sentence of 33 months. Varnell appeals his conviction.
      -
                                              ANALYSIS

         Varnell argues that trial court violated his right to a public trial under the Washington

Constitution, article 1, section 22, and the Sixth Amendment to the United States Constitution

when it held an in-
                  chambers conference during jury selection and excused two potential jurors

off the record and not in open court. Holding that the Supreme Court's recent decision in Wise

controls here, we agree.

                           1. STANDARD OF REVIEW FOR PUBLIC TRIAL RIGHT


          Whether the right to a public trial has been violated is a question of law that we review de

novo.     State   v.   Sublett, 176 Wn. d 58, 70, 292 P. d 715 ( 2012). The state and federal
                                      2                3



s
    The parties did not designate the pre trial voir dire proceedings as part of the record on appeal.
                                           -

                                                    C
No. 42575 1 II
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constitutions guarantee criminal defendants .and the public the right to open and public trials.
U. . CONST. amend. VI; WASH. CONST. art. I, §§ 22.
 S                                           10,                 The right to a public trial is not,

however, an absolute one, and a trial court may close the courtroom under certain circumstances.

State v. Momah, 167 Wn. d 140, 148, 217 P. d 321 (2009),
                      2                  3             cent. denied, 131 S. Ct. 160 (2010);

State v. Easterling, 157 Wn. d 167, 174 75, 137 P. d 825 (2006).Before closing a courtroom,
                           2            -        3

Washington courts must first apply the Bone Club factors and make specific findings on the
                                            -
record to   justify   a   closure.   Momah, 167 Wn. d
                                                  2     at 148 49.
                                                               -     Failure to conduct a Bone Club
                                                                                               -


analysis before closing a proceeding required to be open to the public is a structural error

warranting a new trial. State v. Paumier, 176 Wn. d 29, 35,288 P. d 1126 (2012).But because
                                                2               3

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,"
                                                              courts must first consider "whether

the proceeding at issue implicates the public trial right, thereby constituting a closure at all."

Sublett, 176 Wn. d at 71.
               2




6 The Bone Club factors are as follows:
           -
       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."
Bone Club, 128 Wn. d at 258 59 (
     -             2        - alteration in original) quoting Allied Daily Newspapers v.
                                                      (
Eikenberry, 121 Wn. d 205,210 11,848 P. d 1258 (1993)).
                  2           -        2


                                                   rd
No. 42575 1 II
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              II. VOIR DIRE EXCUSAL OF JURORS IMPLICATES PUBLIC TRIAL RIGHT


       As we recently explained in Wilson, our Supreme Court has already established that the

public trial right applies to jury selection. State v. Wilson, 174 Wn. App. 328, 335 40,298 P. d
                                                                                     -       3

148, 152 (2013) discussing Paumier and Wise). Therefore, here, we address only whether the
                 (

trial court's in-
                chambers excusal of two jurors violated Varnell's public trial right. See Wise,

176 Wn. d at 11; See also Paumier, 176 Wn. d at 34 (quoting Momah, 167 Wn. d at 148)
      2                                  2                               2

This presumption of openness extends to voir dire. "').

       Our Supreme Court has developed a two step process for determining whether a
                                             -

particular proceeding implicates a defendant's public trial right:

       First, does the proceeding fall within a specific category of trial proceedings that
       our Supreme Court has already established implicates the public trial right?
       Second, if the proceeding does not fall within such a specific category, does the
       proceeding satisfy Sublett's experience and logic"test?
                                      "

174 Wn. App. at 335 (footnote    omitted) discussing Paumier, Wise, and Sublett).State
                                          (                                                  v.   SleW

involved facts similar to those here:    Without first conducting a Bone Club analysis, the trial
                                                                         -

court conducted an in-
                     chambers offthe-
                                  - record conference with both counsel and excused four

potential jurors; we held that this proceeding violated Slert's public trial right and his right to be

present.




7 State v. Slert, 169 Wn. App. 766, 774, 282 P. d 101 (2012),
                                              3             review granted, 176 Wn. d 1031
                                                                                  2
2013).



                                                  5
No. 42575 1 II
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         The sparse record before us in this appeal nevertheless reveals that, during "jury

selection" on the first day of trial , the trial court held an in-
                                                                 chambers conference and excused

two    potential jurors "for                      employment and other issues."
                                cause" because of "                                             VRP (July 26,

2011) at     77 (emphasis     added). The State, however, contends that the trial court's excusal of

venire members 6 and 28 was based on "hardship" and "did not turn on any case -specific

reason." Br. of      Resp't at 12.      The record before     us   does not support this assertion. On the


contrary, the record reflects the trial court's for cause"excusal of two potential jurors during the
                                                 "
  chambers conference.
in-                             Without more information, the trial court's mention that these "for

cause" excusals        were   for "employment and other issues "             does not support the State's

contention that the excusals were not for case -specific reasons. We will not resort to guessing

what these "other issues" may have been, especially where the State had the opportunity to

provide additional details when it brought the otherwise silent record to the trial court's attention
                11
the next     day.



8
    It appears that the trial court's use of the term "jury selection" here refers to the "voir dire"
portion of the jury selection process and, therefore, differs from the pre voir dire, administrative,
hardship juror dismissals at issue in Wilson,which did not fall within the category of proceedings
that   our   Supreme   Court has held    implicates   a   defendant's   public   trial   right. Wilson, 174 Wn.
App. at 337. We also recognized the Supreme Court's interchangeable use of the terms "voir
dire"and " ury selection," only in the factual context of cases addressing courtroom closures
         j               but
during    the "voir dire"portion of the "jury selection"process.           Wilson, 174 Wn. App. at 338 40
                                                                                                       -
citing Wise, 176 Wn. d at 11 12;Paumier, 176 Wn. d at 34 35).
                   2         -                 2         -
9
    The respondent erroneously identifies the excused juror as juror 26 in its brief but as the record
reflects, it was juror 28 who     was           for
                                        excused "     cause ".     See VRP (
                                                                           July 26, 2011)at 77.

    VRP ( uly 26, 2011)at 77.
        J

11 We also note that, if there were other parts of the record that support the State's contention, it
could have designated those parts for inclusion in the record on appeal under RAP 9. (c).
                                                                                        2

                                                      M
No. 42575 1 II
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         The State also argues that the in-
                                          chambers conference was not improper and did not

trigger application of the Bone Club factors because it "nvolved the resolution of purely legal
                                -                       i
issues that did not                the resolution of   disputed    facts." Br. of   Resp't   at 14.   Again, the
                         require

record before us on appeal does not support this contention. On the contrary, the record shows

only that the in-
                chambers conference resulted in the excusal of two potential jurors for cause,

outside of open court.

         We commend the parties and the trial court's after -the fact attempt to mitigate the
                                                                  -

previous day's failure to address the Bone Club factors before conducting an in-
                                           -                                   chambers and
      record conference at which
offthe-
    -                                         jurors   were    excused for     cause.   Nonetheless, we are

constrained by our Supreme Court's recent precedent to conclude that the trial court's failure to

address the Bone Club factors before conducting an in-
                 -                                   chambers excusal of two potential jurors

for cause"      was   structural" error    warranting   a    new    trial.   As our Supreme Court recently

explained:

                 Structural error is a special category of constitutional error that "affect[s]
         the framework within which the trial proceeds, rather than simply an error in the
                              L12]
         trial process itself. ,   Where there is structural error "` criminal trial cannot
                                                                    a
         reliably serve its function as a vehicle for determination of guilt or innocence, and
         no   criminal   punishment     may be   regarded     as   fundamentally fair.`
                                                                                      Structural
         error, including deprivation of the public trial right, is not subject to harmlessness
         analysis.141 A defendant "should not be required to prove specific prejudice in
                    [
                               E15]
         order to obtain relief."         Accordingly, unless the trial court considers the Bone —
         Club factors on the record before closing a trial to the public, the wrongful
12
     Arizona v. Fulminante, 499 U. .279, 310, 111 S. Ct. 1246, 113 L.Ed. 2d 302 (1991).
                                 S
13
 Fulminante, 499 U. .at 310 (quoting Rose v. Clark, 478 U. .570, 577 78, 106 S. Ct. 3101, 92
                   S                                     S           -
L.Ed. 2d 460 (1986)citation omitted)).
                    (
14
     Fulminante, 499 U. .at 309 10;Easterling, 157 Wn. d at 181.
                      S         -                    2
15
     Waller v. Georgia, 467.U. .39,49, 104 S. Ct. 2210, 81 L.Ed. 2d 31 (1984).
                             S

                                                         7
No. 42575 1 II
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         deprivation of the public trial right is a structural error presumed to be
         prejudicial.

Wise, 176 Wn. d at 13 14 (
            2         - emphasis added). On this basis alone, the Supreme Court reversed

Wise's conviction. See also Paumier, 176 Wn. d at 35.
                                           2

                        III. SAG CHALLENGE TO SUFFICIENCY OF EVIDENCE


         To the extent that Varnell's SAG challenges the sufficiency of evidence to support his

escape   conviction, this challenge fails. On appeal, we view the evidence in the light most

favorable to the State. State v. Drum, 168 Wn. d 23, 34, 225 P. d 237 (2010).Both parties in
                                             2                3

their respective briefs on appeal set forth ample evidence to support Varnell's conviction such

that retrial on remand will not constitute double jeopardy.

         Holding that Wise requires us to reverse Varnell's conviction based on the Bone Club
                                                                                         -

error alone, we do not reach his other arguments. Accordingly, we reverse and remand for a new

trial.


         A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with      RCW
