                                                                                    FILED
                                                                           COURT OP-APPEALS
                                                                                  DIVISION II

                                                                          2014 NOV -       AM ! O: 04

                                                                          STATE OF WASHINGTON
                                                                           BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

    STATE OF WASHINGTON,                                                   No. 44895 -5 -II


                                     Respondent,


             v.



    VANESSA MARIE WHITFORD,                                        UNPUBLISHED OPINION


                                     Appellant.


            JOHANSON, C. J. —      Vanessa Whitford appeals her jury trial conviction for first degree

robbery. She argues that the trial court violated her public trial rights when it allowed the attorneys

to exercise their peremptory      challenges   in writing. We hold that   under   Love,'   Dunn,2 and Webb, 3


the exercise of peremptory challenges in writing does not implicate Whitford' s public trial rights

and affirm her conviction.




1 State v. Love, 176 Wn. App. 911, 309 P. 3d 1209 ( 2013).

2 State v. Dunn, 180 Wn. App. 570, 321 P. 3d 1283 ( 2014).
3
    State   v.   Webb,   Wn.    App. ,    333 P. 3d 470 ( 2014).
No. 44895 -5 -II



                                                                   FACTS


           In August 2012, Whitford attempted to steal property from a store and, in the process,

brandished      a   knife. The State           charged   Whitford      with   first degree robbery. 4


           The trial   court conducted voir              dire   of   the   potential   jurors in   open court.   After Whitford


and the State questioned the prospective jurors and exercised their for -cause challenges, the trial


court addressed the venire and stated,



           Ladies and Gentlemen, at this time the two lawyers will be exercising those
           peremptory challenges I told you about. If you have a piece of reading material or
           you'   d like to   speak      softly to    your neighbor --         of course, not about     the   case --   you


           may do so. I do need you to stay seated and let' s make sure those yellow tabs are
           way up high        so   it   will   be   easier   for   the lawyers to       remember.      So you can read

           whatever you would like and /or pull out your computer, if you' ve got it in your lap,
           but you have to stay seated.

Report of Proceedings ( RP) (             May 9, 2013, Jury Voir Dire) at 83 -84. The State and Whitford then

exercised their peremptory challenges on a written form that the court later filed with the court

clerk.5 Based on the completed form, the trial court announced which jurors had been selected,

seated them for trial, and excused the others. The court did not announce which party had excused

which      juror but the      completed          form    shows who          challenged which        juror.    The jury convicted

Whitford on one count of first degree robbery. She appeals her conviction.

                                                                ANALYSIS


           Whitford argues that the trial court violated her public trial rights when it allowed counsel

to   exercise     peremptory       challenges        in writing. We disagree. Love, Dunn, and Webb control the




4 RCW 9A.56.200.

5
    This   process appears         in the   record as "(     Attorneys picking          jury)"     RP ( May 9, 2013, Jury Voir
Dire) at 84.

                                                                       2
No. 44895 -5 - II



result in this case and, accordingly, we hold that the trial court did not violate Whitford' s public

trial rights.


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

Washington State Constitution guarantee a defendant' s right to a public trial. State v. Wise, 176


Wn.2d 1, 9, 288 P. 3d 1113 ( 2012).                   We review alleged violations of a defendant' s public trial


rights    de   novo.    State      v.   Smith,         Wn.2d ,           334 P. 3d 1049, 1052 ( 2014) (          citing State v.

Brightman, 155 Wn.2d 506, 514, 122 P. 3d 150 ( 2005)).                        The first step when addressing an alleged

violation of the public trial right is to determine whether the proceeding at issue implicates the

right    in the first   place.     Smith, 334 P.3d at 1052 ( citing State v. Sublett, 176 Wn.2d 58, 92, 292

P. 3d 715 ( 2012) ( Madsen, C. J., concurring)).                    In State v. Love, Division Three of this court held

that peremptory         challenges       do   not   implicate   a   defendant' s   public   trial rights.   176 Wn. App. 911,

920, 309 P. 3d 1209 ( 2013).             We adopted Division Three' s holding in State v. Dunn, 180 Wn. App.

570, 575, 321 P. 3d 1283 ( 2014).


           In State v. Webb we held that a peremptory challenge process that required counsel to

exercise their peremptory challenges in writing in the jury' s presence did not implicate the

defendant'      s public   trial   rights.           Wn.   App. ,        333 P. 3d 470, 472 -73 ( 2014). The process in


Webb is identical to the peremptory                   challenge process at         issue in this   case.    As in Webb, at trial


here, counsel exercised their peremptory challenges by marking them on a written form. The trial

court announced which jurors were selected and which were excused and filed the completed form


in the    public record.
No. 44895 -5 -II



        Following Love, Dunn, and Webb, we hold that Whitford' s public trial right was not

implicated in this case and her appeal fails at the first step in the public trial right analysis.

Accordingly, we affirm Whitford' s conviction for first degree robbery.

        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 2. 06. 040,


it is so ordered.




 We concur:




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