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309 P.3d 1209
Wash. Ct. App.
2013
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Background

  • Mr. Unters Love was tried jointly on charges in three cause numbers and convicted of six counts of second-degree theft and one count of bail jumping.
  • During voir dire the judge held a bench/sidebar conference to resolve defense challenges for cause; the transcript does not show whether Love personally joined that conference. Defense counsel successfully challenged two jurors for cause; other jurors were discussed but not challenged. The court reporter noted the bench conference concluded and then the peremptory-challenge process began.
  • While peremptory challenges were being processed, Love attempted to approach the bench and loudly complained his counsel could not represent him; the record indicates he was not at the sidebar at that time.
  • One theft count involved a victim (Ms. L.) who gave Love a postdated check and a $500 money order; she later cancelled the check before its date and the check was never presented to a bank; the money order disappeared.
  • Love appealed, arguing the court violated his public-trial rights by hearing cause (and allegedly peremptory) challenges at sidebar, that his due-process right to be present was violated by not having him at the sidebar, and that the cancelled, postdated check had no value for theft valuation purposes.

Issues

Issue Plaintiff's Argument (Love) Defendant's Argument (State) Held
Whether hearing challenges for cause (and peremptory challenges) at sidebar closed the courtroom and violated the state public-trial guarantee Sidebar handling of cause/peremptory challenges closed the courtroom and violated Art. I, § 22 The challenges were heard in open court; even if at sidebar, the experience-and-logic test shows no public-trial violation No closure/error: experience-and-logic test shows cause and peremptory challenges need not be held publicly; written/transcribed record sufficed
Whether Love’s absence from the sidebar where cause challenges were argued violated his due process/right to be present Love had a due-process right to be present at critical stages and was absent from the sidebar; error is constitutional Love did not object below; any constitutional error is not manifest because he suffered no prejudice (counsel succeeded on cause challenges) Not reviewable on appeal: error not preserved and not manifest constitutional error; no prejudice shown
Whether a postdated check later cancelled before its date had value for second-degree theft valuation A cancelled, postdated check had no value when acquired, so theft value falls below the statutory threshold Statutory definition treats value as face amount (amount due/collectible); cancellation and postdating do not negate face value; UCC recognizes liability for postdated checks Sufficient evidence: cancelled or postdated status did not eliminate the check’s face value; conviction upheld

Key Cases Cited

  • State v. Sublett, 176 Wn.2d 58 (discussing and applying the "experience and logic" test for public-trial closures)
  • State v. Bone-Club, 128 Wn.2d 254 (establishing the multi-factor test for courtroom closures)
  • State v. Strode, 167 Wn.2d 222 (confirming jury selection is generally within the public-trial right)
  • State v. Easton, 69 Wn.2d 965 (holding cancellation of a stolen check did not change its statutory face value)
  • State v. Young, 97 Wn. App. 235 (upholding criminal liability for wrongful use of a postdated check under UCC principles)
  • State v. Irby, 170 Wn.2d 874 (defendant’s right to be present at critical trial stages, including voir dire)
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Case Details

Case Name: State v. Love
Court Name: Court of Appeals of Washington
Date Published: Sep 24, 2013
Citations: 309 P.3d 1209; 176 Wash. App. 911; Nos. 30809-0-III; 30810-3-III; 30811-1-III
Docket Number: Nos. 30809-0-III; 30810-3-III; 30811-1-III
Court Abbreviation: Wash. Ct. App.
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