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