     IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                       )
                                           )      No. 89619-4
                    Respondent,            )
                                           )
       v.                                  )      En Bane
                                           )
UNTERS LEWIS LOVE,                         )
                                           )
                    Petitioner.            )      Filed       JUL 1 6 2015
   _______________________ )
      Yu, J.-This case is another opportunity to clarify our evolving jurisprudence

on open courts. Today we decide if a particular method of challenging jurors after

voir dire-a method commonly employed in trial courts around the state-violates

the constitutional right to a public trial. At the conclusion of voir dire questioning,

counsel exercised for cause challenges orally at the bench and subsequently

exercised peremptory challenges silently by exchanging a list of jurors and

alternatively striking names from it. All of voir dire, including the juror challenges,

occurred in open court, on the record, and in full view of any observer in the
State v. Love, No. 89619-4

courtroom. We hold the juror challenges in this case were exercised in a manner

consistent with the minimum safeguards of the public trial right and affirm.

                                  BACKGROUND

      Petitioner Unters Lewis Love elected to go to trial on several counts of theft

and bail jumping. The first day of trial was unremarkable from an open court

perspective. Several preliminary matters consumed the morning, and the trial judge

heard argument and ruled on these motions in open court and on the record. The

jury pool was brought into the courtroom after lunch for jury selection. The trial

judge placed the jury pool under oath and briefly explained the mechanics of jury

selection, including the parties' right to challenge jurors.

      Voir dire examination began immediately thereafter. Both the trial judge and

counsel questioned the jury pool in open court; their questions and the potential

jurors' responses were on the record. When questioning concluded, the trial judge

asked counsel to approach the bench to discuss for cause challenges in the presence

of the court reporter:

             THE COURT:           Any for-cause challenges?
             [DEFENSE]:           Fifteen.
             THE COURT:           Fifteen? Any objection?

              [STATE]:            I think that's-the state has no objection to
                                  No. 15 being struck for cause.
             THE COURT:           Mm-hm. Any others?
              [DEFENSE]:          Number 30.


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State v. Love, No. 89619-4

              THE COURT:              Number 30?
               [STATE]:               Yeah. No objection.

Verbatim Report Proceedings (Apr. 9, 2012) at 132-33. Jurors 15 and 30 had

strongly indicated they could not be impartial jurors in response to questions during

voir dire, which occurred in the presence of Love, other potential jurors, and the

public. The trial judge granted both of Love's for cause challenges. Though the

discussion and ruling on these challenges occurred at the bench, the exchange was

on the record and visible to observers in the courtroom. The record does not indicate

if observers could hear what was said, but no one was asked to leave the courtroom.

       Peremptory challenges followed. The record reflects that counsel exercised

peremptory challenges silently in the courtroom by exchanging a written list of

jurors between themselves. Counsel alternated striking one name from the list (the

struck juror sheet), indicating they had exercised a peremptory challenge and

removed the juror, until each side had exhausted its challenges. 1 The struck juror


       1
           The method of exercising peremptory challenges on paper appears common in this state
and is explicitly required in several counties. See COWLITZ COUNTY SUPER. CT. LOCAL CIV. R.
47(e)(9) ("The clerk shall keep a list of jurors passed for cause and when it is complete will provide
the list to the attorneys for the parties who will, in turn, exercise challenges by striking the name
of each challenged juror without oral comment."); FERRY\PEND 0REILLE\STEVENS COUNTY
SUPER. CT. LOCAL CIV. R. 47(e)(9) ("The exercise or waiver of peremptory challenges shall be
noted silently."); GRANT COUNTY SUPER. CT. LOCAL CIV. R. 47(c) ("After examination of the
panel, counsel will, in turn, exercise peremptory challenges by striking names from a roster of
those panel members not previously dismissed."); HELLS CANYON CIRCUIT SUPER. CT. LOCAL CIV.
R. 47(d)(6) ("When questioning by the court and counsel is completed, the Court will allow the
private exercise of peremptory challenges by striking [the] name of the first exercised challenge
from the panel of the first 12 jurors remaining after the entire panel has been passed for cause.");
HELLS CANYON SUPER. CT. LOCAL CRIM. R. 6.3; KITTITAS COUNTY SUPER. CT. LOCAL CIV. R. 47



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State v. Love, No. 89619-4

sheet, which was filed in the court record and available to the public, shows Love

waived his peremptory challenges and the State challenged juror 4. There is no

indication that spectators (prospective jurors included) were forced to leave the

courtroom, that the courtroom was locked, or that anyone was prohibited from

entering.     Instead, the courtroom remained open while counsel exercised their

peremptory challenges, in the same manner as it was during the discussion of the for

cause challenges. The record does not reflect that observers were unable to see

counsel exchanging the struck juror sheet.

       The trial judge thereafter announced that a jury had been selected. In open

court and on the record, the judge read the names of the first 14 jurors left on the

struck juror sheet (excluding jurors 4 and 15) and empaneled 12 jurors and two

alternates.    The judge thanked and dismissed the remaining potential jurors-

including jurors 4, 15, and 30-without further explanation. The empaneled jury

convicted Love on all counts.




("Unless good cause is shown, all peremptory challenges shall be exercised in open Court at the
side bar by marking the challenged juror's name on a form to be provided by the Court.");
KLICKITAT\SKAMANIA SUPER. CT. LOCAL CIV. R. 9(VI)(A) ("In trial by jury cases, peremptory
challenges shall be exercised secretly [by] mark[ing] and initial[ing] such challenge upon the sheet
furnished for that purpose."); SPOKANE COUNTY SUPER. CT. LOCAL CIV. R. 4 7( e)(9) ("The exercise
or waiver of peremptory challenges shall be noted secretly on the jury list."); YAKIMA COUNTY
SUPER. CT. LOCAL Crv. R. 47(e)(l) ("All peremptory challenges allowed by law shall be exercised
in writing. . . . The purpose of this mle is to preserve the secrecy of the peremptory challenge
process and all parties and their counsel shall conduct themselves to that end."). Since we
disapprove of secret proceedings, we assume that references to "secrecy" in these mles refer to
exercising peremptory challenges silently on paper.


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State v. Love, No. 89619-4

      Love appeals his convictions, arguing that the method of jury selection in his

case violated his right to a public trial. He maintains that exercising for cause

challenges at the bench and peremptory challenges on the struck juror sheet

effectively "closed" the courtroom, though it was unlocked and open, because the

public was not privy to the challenges in real time. He also argues his right to be

present at all critical stages of the trial was violated because he could not approach

the bench with counsel to discuss the for cause challenges.

      The Court of Appeals affirmed in an opinion that predates many of our recent

public trial right cases. State v. Love, 176 Wn. App. 911, 309 P.3d 1209 (2013). We

granted review to consider how our open courts jurisprudence affects how parties

can exercise for cause and peremptory challenges at trial. State v. Love, 181 Wn.2d

1029, 340 P.3d 228 (2015).

                                    ANALYSIS

      Love's two claims are purely legal questions, so our review is de novo. State v.

Irby, 170 Wn.2d 874,880,246 P.3d 796 (2011); State v. Strode, 167 Wn.2d 222,

225, 217 P.3d 310 (2009).

A.    PUBLIC TRIAL RIGHT CLAIM

       We first consider Love's claim that potential jurors were challenged in a

manner that violated his right to a public trial. A criminal defendant's right to a

"speedy public trial" is found in article I, section 22 of the Washington Constitution,



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State v. Love, No. 89619-4

one of two constitutional components of our open courts doctrine. Love's standing

in this case flows from article I, section 22. 2 The other component to open courts,

article I, section 10, guarantees the public that "[j]ustice in all cases shall be

administered openly, and without unnecessarily delay." These related constitutional

provisions "serve complementary and interdependent functions in assuring the

fairness of our judicial system," State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d

325 (1995), and are often collectively called the "public trial right."

       A three-step framework guides our analysis in public trial cases. First, we ask

if the public trial right attaches to the proceeding at issue. Second, if the right

attaches we ask if the courtroom was closed. And third, we ask if the closure was

justified. State v. Smith, 181 Wn.2d 508, 513-14, 334 P.3d 1049 (2014) (citing

State v. Sublett, 176 Wn.2d 58, 92, 292 PJd 715 (2012) (Madsen, C.J., concurring)).

The appellant carries the burden on the first two steps; the proponent of the closure

carries the third. See id. at 516-1 7.

       The State argues that Love's claim fails at the outset, urging us to hold that

the public trial right does not attach to for cause or peremptory challenges. Typically

experience and logic determine if the public trial right attaches to a particular court




       2  Whether a criminal defendant also has standing to assert the public's right under article
I, section 10 is an open question that we need not address in this case. See State v. Shearer, 181
Wn.2d 564,574,334 P.3d 1078 (2014); State v. Herron, 177 Wn. App. 96,318 P.3d 281 (2013),
review granted, 182 Wn.2d 1001, 342 P.3d 326 (2015).


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State v. Love, No. 89619-4

proceeding, though we can also rely on prior cases that have applied right to the

proceeding at issue. Sublett, 176 Wn.2d at 73; State v. Wise, 176 Wn.2d 1, 12 n.4,

288 P.3d 1113 (2012) (noting it was "not necessary to engage in a complete

'experience and logic test,"' instead citing previous cases to support attachment).

Our prior cases hold it "well settled that the right to a public trial ... extends to jury

selection," State v. Brightman, 155 Wn.2d 506, 515, 122 P.3d 150 (2005), and we

reaffirm that the right attaches to jury selection, including for cause and peremptory

challenges. Unlike administrative or hardship excusals, for cause and peremptory

challenges can raise questions about a juror's neutrality and a party's motivation for

excusing the juror that implicate the core purpose of the right, and questioning jurors

in open court is critical to protect that right. Open and transparent questioning fosters

public confidence in subsequent challenges to jurors and, ultimately, the

composition of juries in criminal trials.

       We nevertheless affirm Love's conviction because he has not shown a

courtroom closure in this case, failing to carry his burden under the second prong of

our analysis. We have reversed convictions for two types of closures. The first,

obvious type of closure occurs "when the courtroom is completely and purposefully

closed to spectators so that no one may enter and no one may leave." State v. Lormor,

172 Wn.2d 85, 93, 257 P.3d 624 (2011); see Brightman, 155 Wn.2d at 511-12

(public excluded from courtroom during voir dire); In re Pers. Restraint of Orange,



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State v. Love, No. 89619-4

152 Wn.2d 795, 801-02, 100 P.3d 291 (2004) (same). Love does not allege the

courtroom was closed in this traditional way.

      The second type of closure occurs where a portion of a trial is held someplace

"inaccessible" to spectators, usually in chambers. Lormor, 172 Wn.2d at 93; see also

State v. Shearer, 181 Wn.2d 564, 568,334 P.3d 1078 (2014) (private questioning of

juror in chambers); Strode, 167 Wn.2d at 227 (same of multiple jurors); State v.

Paumier, 176 Wn.2d 29, 33, 288 P.3d 1126 (2012) (same). Love equates the for

cause and peremptory challenges in his trial-which occurred in open court-to

those exercised behind a closed chambers door. He argues the possibility that

spectators at his trial could not hear the discussion about for cause challenges or see

the struck juror sheet used for peremptory challenges rendered this portion of his

trial inaccessible to the public.

       We find no merit in that comparison. The public trial right facilitates fair and

impartial trials through public scrutiny. Shearer, 181 Wn.2d at 566. The public's

presence in the courtroom reminds those involved about the importance of their roles

and holds them accountable for misconduct. I d.; Strode, 167 Wn.2d at 226. Effective

public oversight of the fairness of a particular trial begins with assurance of the

fairness of the particular jury.

       Yet the 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



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State v. Love, No. 89619-4

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 peremptory 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 of jury section. See Wise, 176 Wn.2d at 7-8; Paumier, 176

Wn.2d at 33-34. We hold the procedures used at Love's trial comport with the

minimum guarantees of the public trial right and find no closure here.

       Although Love argues for a broad rule that all peremptory challenges must be

spoken aloud, written peremptory challenges are consistent with the public trial right

so long as they are filed in the public record.       Spoken peremptory challenges

certainly increase the transparency of jury selection, but there are still legitimate

methods of challenging jurors in writing, like the practice here, that do not amount

to a courtroom closure because they are made in open court, on the record, and

subject to public scrutiny.

       In summary, Love cannot show a closure occurred on these facts and his

public trial claim fails.




                                            9
State v. Love, No. 89619-4

B.    RIGHT To BE PRESENT CLAIM

      Love next argues that his absence from the bench conference where the trial

judge and counsel discussed and excused two jurors for cause violated his right to

be present at critical stages of his trial. 3 Our state and federal constitutions protect

the right of a criminal defendant to be present "at any stage of the criminal

proceeding that is critical to its outcome if his presence would contribute to the

fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S. Ct. 2658,

96 L. Ed. 2d 631 (1987); In re Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868

P.2d 835 (1994).        This protection is guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution; our state equivalent is article I,

section 22, which, in addition to a "speedy public trial," also entitles defendants to

"appear and defend in person."

       Jury selection is a critical stage of a criminal trial under both the state and

federal constitutions. See Irby, 170 Wn.2d at 884. But the record before us does not

demonstrate a violation of Love's right to be present. Love was present in the

courtroom during all of voir dire, including potential jurors' answers to questions

that form the basis for challenges. Nothing suggests that Love could not consult



       3
         The Court of Appeals declined to reach the merits ofthis error, finding it unpreserved and
outside any ofthe circumstances in RAP 2.5(a). But the record shows that Love himself tried to
object to his lawyer conducting the juror challenge process. Love asked the trial judge several
times to approach the bench after his lawyer exercised the for cause challenges. This preserved the
error.


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State v. Love, No. 89619-4

with his attorney about which jurors to challenge or meaningfully participate in the

process. Cf id. (right to be present violated where portion of jury selection occurred

between the court and counsel over e-mail, without consultation ofjailed defendant).

It is a long-standing rule that we do "'not, for the purpose of finding reversible error,

presume the existence of facts as to which the record is silent."' Barker v. Weeks,

182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J. Appeal and Error§ 2666

(1916)). Love's right to be present claim also fails.

                                    CONCLUSION

       Potential jurors at Love's trial were questioned and challenged in an open

courtroom and on the record. This is all that the public trial right requires of jury

selection. We hold on these facts that exercising for cause challenges at a bench

conference and peremptory challenges on a written list do not constitute a closure.

Love's convictions are affirmed.




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State v. Love, No. 89619-4




WE CONCUR:




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