Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       DIVISION ONE 
                                            )
              Respondent,                   )       No. 65564-7-I
                                            )
          v.                                )
                                            )
HENRY GRISBY, III,                          )       UNPUBLISHED OPINION
                                            )
              Appellant.                    )       FILED:  March 12, 2012
________________________________)

       Dwyer, C.J.  --  Henry Grisby, III appeals from his conviction of delivery of 
a controlled substance in violation of the Uniform Controlled Substances Act.1  

During voir dire, the trial court interviewed in chambers a prospective juror 

without first conducting an analysis regarding closure of the pretrial proceeding.  

Absent such an analysis, the closure of criminal trial proceedings constitutes 

reversible error in all but the most exceptional circumstances.  Accordingly, we 

reverse Grisby's conviction and remand for a new trial.

                                            I

       The facts relevant to Grisby's appeal are few and concern only the trial 

       1 Ch. 69.50 RCW. 

No. 65564-7-I/2

court's in-chambers conference with a prospective juror.  

       The State charged Grisby with delivery of a controlled substance in 

violation of the Uniform Controlled Substances Act.  Jury selection for Grisby's

trial was held on March 10 and 11, 2010.  At the end of the first day of voir dire, 

after the jury was excused, the trial court and parties' counsel discussed some 

confusion that had arisen regarding whether one of the potential jurors had a 

prior criminal conviction rendering him ineligible for jury service.  The parties 

determined that the potential juror should be questioned regarding the possible 

conviction during voir dire the next day.  

       On the following morning, the trial court asked the potential juror to 

accompany counsel and Grisby into chambers "just for a moment."  Report of 

Proceedings (RP) (March 11, 2010) at 3. The record then notes a four minute 

recess.  The trial court thereafter stated on the record, "I apologize for the 

interruption," and voir dire continued.  RP at 3. No record was made of the in-

chambers proceeding, brief as it was.

       The jury convicted Grisby as charged.  He appeals.

                                           II

       Grisby contends that the trial court violated his article I, section 22 right to 

a public trial by conducting a portion of voir dire in chambers, thus temporarily 

restricting public access to the pretrial proceeding, without first conducting the 
required analysis for courtroom closure.2  We agree.

       2 Grisby also contends that the public's article I, section 10 right to open courtroom 

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No. 65564-7-I/3

       We review de novo whether a trial court procedure violates a criminal 

defendant's right to a public trial.  State v. Easterling, 157 Wn.2d 167, 173-74, 

137 P.3d 825 (2006).  That right is secured by article I, section 22 of our state's 

constitution, which provides that "[i]n criminal prosecutions the accused shall 

have the right . . . to have a speedy public trial."  "While the right to a public trial 

is not absolute, it is strictly guarded to assure that proceedings occur outside the 

public courtroom in only the most unusual circumstances."  State v. Strode, 167 

Wn.2d 222, 226, 217 P.3d 310 (2009) (citing Easterling, 157 Wn.2d at 174-75).  

Moreover, the right to a public trial is not implicated solely by proceedings 

occurring after the commencement of trial; rather, the right "extends in criminal 

cases to '[t]he process of juror selection,' which 'is itself a matter of importance, 

not simply to the adversaries but to the criminal justice system.'"  Strode, 167 

Wn.2d at 226 (alteration in original) (internal quotation marks omitted) (quoting 

In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004)); see 

also State v. Tinh Trinh Lam, 161 Wn. App. 299, 254 P.3d 891 (2011).

       The presumption of openness of criminal trial proceedings may be 

overcome "'only by an overriding interest based on findings that closure is 

essential to preserve higher values and is narrowly tailored to serve that interest.  

The interest is to be articulated along with findings specific enough that a 

reviewing court can determine whether the closure order was properly entered.'"  

proceedings was violated by the in-chambers voir dire.  Because we resolve this case based 
upon Grisby's right to a public trial, we do not address this separate contention.

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No. 65564-7-I/4

State v. Bone-Club, 128 Wn.2d 254, 260, 906 P.2d 325 (1995) (internal 

quotation marks omitted) (quoting Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 

2210, 81 L. Ed. 2d 31 (1984)).  Accordingly, in Bone-Club, our Supreme Court 

held that "the five criteria a trial court must obey to protect the public's right of 

access before granting a motion to close are likewise mandated to protect a 
defendant's right to public trial."  128 Wn.2d at 259.3  The trial court must also 

enter specific findings justifying its closure order.  Easterling, 157 Wn.2d at 175 

(citing Bone-Club, 128 Wn.2d at 258-59). Where a defendant is denied the

constitutional right to a public trial, prejudice is necessarily presumed.  Bone-

Club, 128 Wn.2d at 261-62.

       Pursuant to our Supreme Court's mandate that the public trial right be 

"strictly guarded," we recently held that a temporary closure of a trial proceeding

required reversal of the defendant's conviction because the trial court had not 

conducted the required Bone-Club analysis.  Lam, 161 Wn. App. at 301.  There,

a juror was briefly questioned in chambers after expressing safety concerns to 

the bailiff; although the record did not indicate whether the defendant was 

present during the in-chambers meeting, it did indicate that defense counsel was 

       3 The five criteria that must be considered by the trial court are: (1) The proponent of 
closure must make some showing for the need for closure.  Where the need for closure is based 
upon any right other than an accused's right to a fair trial, a "serious and imminent threat" to that 
right must be demonstrated.  (2) Anyone present when the closure motion is made must be given 
an opportunity to object.  (3) The method of closure must be the least restrictive means available 
to protect the interest at issue.  (4) The court must weigh the competing interests of the 
proponent of closure and the public.  (5) The order must be no broader than necessary to serve 
its purpose.  Bone-Club, 128 Wn.2d at 258-59 (quoting Allied Daily Newspapers of Wash. v. 
Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).

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No. 65564-7-I/5

present.  Lam, 161 Wn. App. at 301-02.  The State asserted that Lam had failed 

to preserve the public trial issue for appellate review because he had not raised 

the issue before the trial court.  Lam, 161 Wn. App. at 304.  We disagreed, 

observing that "[i]n three recent cases, our Supreme Court has allowed a party 

to assert the denial of a public trial right for the first time on appeal."  Lam, 161 

Wn. App. at 304.  Noting that our Supreme Court has strongly suggested that a 

de minimis standard is inapplicable to public trial right violations, we also

rejected the State's contention that such a standard should be applied in order to 

uphold Lam's conviction.  Lam, 161 Wn. App. at 305-06.

       Similarly, here, in order to protect Grisby's right to a public trial, the trial 

court was required to conduct a Bone-Club analysis prior to the temporary 

closure of voir dire effected by the in-chambers conference with a prospective 

juror.  The fact that Grisby did not object at trial to this temporary closure is of no 

consequence to his ability to challenge the closure on appeal.  See Strode, 167 

Wn.2d at 229 ("[T]he public trial right is considered an issue of such 

constitutional magnitude that it may be raised for the first time on appeal.").  

"Because the record in this case lacks any hint that the trial court considered 

[Grisby's] public trial right as required by Bone-Club, we cannot determine 

whether the closure was warranted."  State v. Brightman, 155 Wn.2d 506, 518, 

122 P.3d 150 (2005). Where a defendant's right to a public trial is violated, the 

proper remedy is a new trial.  Lam, 161 Wn. App. at 307.  Thus, Grisby is 

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No. 65564-7-I/6

entitled to this remedy.4

       4 The State concedes that our decision in Lam controls the disposition of this case.  
However, the State contends that our Supreme Court's current approach to open courts claims is 
flawed.  Specifically, the State contends that a defendant should be required to assert his right to 
a public trial in the trial court in order to preserve that issue for appeal.  The State additionally 
asserts that a defendant does not have standing to assert the article I, section 10 right of the 
public to open courtrooms and that a de minimis standard should apply when evaluating 
courtroom closures.  To the extent that the State must raise these issues in this court in order to 
preserve them for review by our Supreme Court, we note that the State has done so.

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No. 65564-7-I/7

       Reversed and remanded for a new trial. 

We concur:

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