313 P.3d 1235
Wash. Ct. App.2013Background
- On June 10, 2011 Wayne Burdette was stopped for traffic offenses, became confrontational, and was arrested after officers found a loaded handgun on his person.
- He was later charged with felony harassment and obstructing an officer; a search of his trailer after arrest revealed a shotgun near the doorway and written statements hostile to officers.
- At trial, the court (1) had met in chambers to discuss jury instructions before giving them, and (2) during deliberations received two jury communications: one asking about an instruction and one stating the jury was deadlocked on intent; the court answered in writing and the record states counsel/parties were afforded opportunity to be heard.
- The jury acquitted on harassment but convicted Burdette of obstruction; the court referenced the seized written statements at sentencing; Burdette has completed his confinement.
- On appeal Burdette argued (a) violations of the public-trial/open-proceedings right for off-record/in-chambers discussions about instructions and jury communications, (b) violation of his right to be present when the court considered the second jury communication, and (c) Fourth Amendment/state constitutional challenges to the warrantless protective sweep and subsequent search plus ineffective assistance for failing to move to suppress the shotgun.
Issues
| Issue | Plaintiff's Argument (Burdette) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether public-trial/open-proceedings right attached to in-chambers discussion of jury instructions | Court closed discussion of instructions in chambers, violating public and defendant rights | Such pre-instruction conferences historically are not required to be in open court; record insufficient to show prejudice | Did not attach under Sublett; no public-trial violation |
| Whether public-trial/open-proceedings right attached to court responses to jury communications (instruction question and deadlock note) | Court answered jury questions outside open court, violating rights | Responses (and procedure) fall outside scope of public-trial right per Sublett and CrR 6.15; record unclear where discussions occurred | Did not attach; no public-trial violation |
| Whether Burdette’s right to be present was violated when court considered second jury communication (deadlock) outside his presence | Exclusion from discussion deprived Burdette of participation at a critical stage | Court’s direction to continue deliberating was routine and defendant’s presence would have been inconsequential | Right-to-be-present violation occurred but was harmless beyond a reasonable doubt |
| Whether suppression / ineffective-assistance claims regarding warrantless protective sweep and shotgun are reviewable | Evidence from sweep/search should be suppressed; counsel ineffective for not moving to suppress | Even if error, Burdette already served sentence so no effective relief; issues are moot | Moot — no effective relief available; suppression and ineffectiveness claims not adjudicated on merits |
Key Cases Cited
- State v. Sublett, 176 Wn.2d 58 (Wash. 2012) (adopts experience-and-logic test for when public-trial right attaches to specific proceedings)
- State v. Irby, 170 Wn.2d 874 (Wash. 2011) (defendant has constitutional right to be present at critical stages of trial)
- Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (U.S. 1986) (experience-and-logic framework for public access to proceedings)
- State v. Bone-Club, 128 Wn.2d 254 (Wash. 1995) (guidelines for court closure: compelling interest, least restrictive means, findings on record)
- State v. Jones, 97 Wn.2d 159 (Wash. 1982) (standards for declaring mistrial based on jury deadlock)
- United States v. Fontanez, 878 F.2d 33 (2d Cir. 1989) (defendant entitled to be present when court responds to deadlocked-jury communication)
- State v. Bennett, 168 Wn. App. 197 (Wash. Ct. App. 2012) (appellate discussion of record-making and right-to-be-present/public-trial issues)
- State v. Momah, 167 Wn.2d 140 (Wash. 2009) (standard of review and public-trial principles)
- State v. Lormor, 172 Wn.2d 85 (Wash. 2011) (recognition of defendant's public-trial right under state constitution)