                                                                                                     FILED
                                                                                           COURT OF `APPEALS
                                                                                                   DIVISION II

                                                                                          2011;   DEC . 2    AM 8: 56
                                                                                                                    N
    IN THE COURT OF APPEALS OF THE STATE OFSIFINGI'

                                                                                           BY_
                                                 DIVISION II                                                UTY


 STATE OF WASHINGTON,                                                           No. 44919 -6 -II


                                      Respondent,


        v.

                                                                       PART PUBLISHED OPINION
 DUSTIN WADE MARKS,


                                      Appellant.




       MAxA, J. —      Dustin Marks appeals his convictions for assault, unlawful possession of a


firearm, vehicle prowling, and reckless endangerment. He argues that the trial court violated his

right to a public trial by allowing the parties to exercise peremptory juror challenges in writing at

a sidebar conference rather than orally. We hold that the dismissal of prospective jurors with

peremptory challenges does not implicate the public trial right, and therefore that the trial court' s

procedure did not violate that right. In the unpublished portion of this opinion we address


Marks' challenge of the trial court' s imposition of discretionary legal financial obligations

 LFOs) as part of his sentence. We affirm Marks' convictions and sentence.

                                                         FACTS


        The State charged Marks with first degree assault with a firearm enhancement, first


degree unlawful possession of a firearm, second degree vehicle prowling, and reckless

endangerment. The charges arose from an incident in which he fired shots at a person who

confronted   him   while   he   was   prowling   cars.   The   case proceeded   to   a   jury trial.
44919 -6 -II




         Following voir dire of prospective jurors, the trial court convened with counsel at a

sidebar in open court to take the parties' peremptory challenges of those prospective jurors.

Counsel    noted   their    challenges      in writing   on a   document titled " Peremptory Challenges,"          which




later was filed in open court. Clerk' s Papers at 80. After the sidebar, the trial court went back on

the record and announced the selected members of the jury. Marks did not object to this process,

and the jury was duly empaneled. After a three -day trial, Marks was convicted on all counts.

         Marks appeals.


                                                          ANALYSIS


         Marks argues that the trial court violated his public trial right by allowing counsel to

make peremptory challenges in writing rather than announcing the challenges on the record. We

hold that the exercise of peremptory challenges does not implicate the public trial right.

          A.        LEGAL PRINCIPLES


          The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington State Constitution guarantee a defendant the right to a public trial. State v. Wise,

176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings be


held in open court unless application of the five- factor test set forth in State v. Bone -Club, 128

Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995), supports closure of the courtroom. Whether a


courtroom closure violated a defendant' s right to a public trial is a question of law we review de

novo.    Wise, 176 Wn.2d at 9. 1




1
    Marks did    not object       to the   alleged closure     below. However, " a defendant does not waive his
right   to a   public   trial   by failing to   object   to   a closure at   trial."   Wise, 176 Wn.2d at 15. In
addition,      the defendant      need not show     that the     violation caused       any   prejudice.   Wise, 176 Wn.2d
at 16. A courtroom closure without consideration of the Bone -Club factors is structural error
warranting       a new   trial.    Wise, 176 Wn.2d at 15.

                                                                   2
44919 -6 -I1



          The threshold determination when addressing an alleged violation of the public trial right

is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wn.2d 58, 71,

292 P. 3d 715 ( 2012). "[            N] ot 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."   Sublett, 176


Wn.2d     at   71.   To make this determination, our Supreme Court in Sublett adopted an " experience


and logic" test. 176 Wn.2d at 73. 2

          To address whether there was a court closure implicating the public trial right, we employ

a   two -step   process.      State       v.   Wilson, 174 Wn.         App.   328, 335 -37, 298 P. 3d 148 ( 2013).            First, we


consider whether the particular proceeding at issue " falls within a category of proceedings that
                                                                                                                                   3
our   Supreme Court has already                       acknowledged      implicates     a    defendant'    s public trial right."



Wilson, 174 Wn.          App.      at     337;      see also    Wise, 176 Wn.2d        at   11.   Second, if the proceeding at issue

does not fall within a specific protected category, we determine whether the proceeding

implicates the        public      trial   right      using the Sublett    experience and          logic test.    Wilson, 174 Wn.


App. at 335.




2 Arguably, the preliminary question is whether or not the proceeding at issue ever was closed to
the public. Here, the exercise of peremptory challenges occurred in open court and was recorded
on a document that was filed in open court. The State suggests on this. basis that there was no
closure of the courtroom at all and therefore that Bone -Club does not even apply. We decline to
address this issue because we affirm on other grounds.


3 Our Supreme Court recently stated in State v. Smith that " sidebars do not implicate the public
trial   right."         Wn.2d ,                 334 P. 3d 1049, 1051 ( 2014). And the court concluded after

conducting the experience and logic test that a sidebar conference does not implicate the public
trial right.. Smith, 334 P. 3d at 1055. However, Smith involved legal argument on evidentiary
issues    at sidebar.        334 P. 3d         at   1051.     The court framed the case issue as whether " sidebar
conferences on         evidentiary             matters"       implicate the   right.   334 P. 3d     at   1052 ( emphasis   added).     As

a result, we discern that the court' s holding is limited to that issue.

                                                                          3
44919 -6 -II



B.           PUBLIC TRIAL RIGHT AND PEREMPTORY CHALLENGES


             Marks argues that his public trial right was violated because the right attaches to voir


dire, and the exercise of peremptory challenges is part of voir dire. We disagree that the exercise

of peremptory challenges is a part of voir dire.

             Our Supreme Court repeatedly has held that the public trial right applies to " jury

selection."      E.g., Wise, 176 Wn.2d at 11; State v. Brightman, 155 Wn.2d 506, 515, 122 P. 3d 150


 2005).       However, all of the Supreme Court' s public trial right cases regarding jury selection

have involved the actual questioning ofjurors. E.g., Wise, 176 Wn.2d at 11 - 12; State v.

Paumier, 176 Wn.2d 29, 35, 288 P. 3d 1126 ( 2012). No Supreme Court case has held that the


public trial right applies to the dismissal ofjurors after the questioning is over.

             In Wilson, we held that only the voir dire aspect of jury selection automatically implicates

the   public    trial   right.   174 Wn. App. at 338 -40. We used the term " voir dire" as synonymous

with   the    actual    questioning    of jurors,   referring to the " ` voir dire' of prospective jurors who form


the   venire."     Wilson, 174 Wn. App. at 338. The plurality opinion of our Supreme Court in State

v.   Slert   quoted     this   statement with approval.         Wn.2d ,      334 P. 3d 1088, 1092 ( 2014). 4 This

usage is not consistent with including the exercise of peremptory juror challenges in the meaning

of "voir dire."




4 Justice Gonzalez' s lead opinion in Slert was only joined by three other justices. 334 P. 3d at
1094. However, in her dissent Justice Stephens agreed that voir dire " encompasses the
individual      examination of jurors        concerning their fitness to   serve   in   a particular case."   334 P. 3d
at                     dissenting). Justice. Stephens disagreed with the plurality, opinion in part
     1095 ( Stephens, J.,
because she believed that the consideration ofjury questionnaires constituted an " examination"
of those jurors and therefore was voir dire. 334 P. 3d at 1095 -96 ( Stephens, J., dissenting).

                                                               4
44919 -6 -I1



        In addition, CrR 6.4 distinguishes between voir dire and the exercise of peremptory

challenges.    CrR 6. 4( b)   states: "   A voir dire examination shall be conducted for the purpose of


discovering any basis for challenge for cause and for the purpose of gaining knowledge to enable

the intelligent   exercise of   peremptory      challenges."         Significantly, CrR 6. 4( b) refers to the voir

dire examination. The term " examination" necessarily refers only to the questioning ofjurors,

not to their dismissal. And CrR 6. 4( b) states that voir dire is for the purpose of e. xercising

peremptory challenges, which shows that the questioning of jurors and the exercise of

peremptory challenges are separate phases in the jury selection process.

         Based    on   Wilson   and   CrR 6. 4( b),   we hold that the exercise of peremptory challenges is

not part of voir dire. Therefore, we hold that the exercise of peremptory challenges does not fall

within the category of proceedings that automatically implicates a defendant' s public trial right.

C.       EXPERIENCE AND LOGIC TEST


         Because we hold that the exercise of peremptory challenges does not fall within a

category that our Supreme Court has recognized for application of the public trial right, we next

must apply the experience and logic test to determine whether the public trial right is implicated.

We hold that the exercise of peremptory challenges does not satisfy the experience and logic test

and therefore does not implicate Marks' public trial right.


         The experience and logic test requires us to consider ( 1) whether the process and place of


a   proceeding    historically have been      open    to the   press and general public ( experience     prong),   and




 2) whether access to the public plays a significant positive role in the functioning of the

proceeding ( logic prong). Sublett, 176 Wn. 2d             at      72 -73.   If the answer to both prongs is yes, then


the defendant' s public trial right attaches and a trial court must apply the Bone -Club factors

before closing the proceeding to the public. Sublett, 176 Wn.2d at 72 -73.


                                                               5
44919 -6 -II



          The issue of whether peremptory challenges made during a sidebar conference implicate

the public trial right under the experience and logic test is controlled by our decision in State v.

Dunn, 180 Wn.       App.       570, 321 P. 3d 1283 ( 2014). In Dunn, we held that the exercise of


peremptory     challenges       did   not   satisfy   either   prong    of   the test.   180 Wn.   App.   at   575.   In deciding

this issue, we adopted the reasoning used by Division Three of this court in State v. Love, 176

Wn. App. 911, 309 P. 3d 1209 ( 2013).

          The court in Love noted the absence of any authority suggesting that historical practices

required   that peremptory        challenges      be   exercised     in   public.      176 Wn. App. at 918 -19. The court

in Love   cited   State   v.   Thomas, 16 Wn.         App.     1, 13, 553 P. 2d. 1357 ( 1976), in which this court


suggested   that peremptory           challenges could         be   made     in   private.   176 Wn. App. at 918: The court

in Love also stated that there is no need for public oversight of peremptory challenges, and that

the written record ofjuror challenges satisfies the public interest. 176 Wn. App. at 919 -20. We

agree with this analysis.



          Under Dunn and Love, exercising peremptory challenges does not implicate a defendant' s

public trial right under the experience and logic test. Accordingly, we hold that the trial court' s

procedure for exercising peremptory challenges in writing did not violate Marks' public trial

right. We therefore affirm Marks' convictions.


          A majority of the panel having determined that only the foregoing portion of this opinion will

be printed in the Washington Appellate Reports and that the remainder shall be filed for public record

pursuant to RCW 2. 06. 040, it is so ordered.


          Marks appeals his sentence on grounds that the trial court did not comply with statutory

requirements by failing to consider his ability to pay the legal financial obligations (LFOs) it

assessed against him. Marks argues that the evidence does not support the trial court' s finding


                                                                    6
44919 -6 -II



that he had the ability to pay discretionary LFOs. However, Marks did not raise this issue below

and therefore, we decline to consider it for the first time on appeal.


           At Marks' sentencing, the court imposed both mandatory and discretionary LFOs

amounting to $2; 300. The trial court found that Marks had the ability or likely future ability to

pay the LFOs. Marks did not object to this finding, or to the imposition of the LFOs generally.

We generally will not consider a challenge to such a finding for the first time on appeal. State v.

Blazina, 174 Wn. App. 906, 911 - 12, 301 P. 3d 492, review granted, 178 Wn.2d 1010 ( 2013);

RAP 2. 5( a).


           We have discretion under RAP 2. 5( a) to consider unpreserved challenges to findings on a


defendant' s ability to pay LFOs where the reasons for the challenge are particularly compelling.

See Blazina, 174 Wn. App. at 911; State v. Bertrand, 165 Wn. App. 393, 398, 404, 267 P. 3d 511

 2011) (   considering such a challenge even though the defendant failed to object below when the

facts showed that the defendant was disabled and unable to work and she was required to begin

paying     within   60 days   of   sentencing).     But Marks has not shown any compelling reason to

consider the issue in this case. See Blazina, 174 Wn. App. at 911 ( refusing to consider the

defendant' s challenge for the first time on appeal because the facts were not similar to those in

Bertrand).      Moreover, Marks can contest his ability to pay if the State attempts to enforce the

LFOs. See Bertrand, 165 Wn.             App.   at   405.
44919 -6 -II



        We decline to reach Marks' challenge to the trial court' s finding that he had the ability to

pay LFOs. Therefore, we affirm the trial court' s imposition of discretionary LFOs.

        We affirm Marks' convictions and sentence.




 We concur:




 F'            N, A.   C.J.


 MELNICK
