State v. Paumier

¶1¶34 (dissenting) — Because Rene P. Paumier failed to timely object and preserve the “closed courtroom” issue for our review, I disagree with the majority’s decision to address the merits of the alleged public trial right violation and respectfully dissent. I also disagree with the majority’s reliance on the United States Supreme Court opinion in Presley v. Georgia, _ U.S. _, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010), to reverse Paumier’s convictions.

¶2¶35 In Presley, without applying the standards set out in Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984), the trial court, over the defendant’s objections, excluded Presley’s uncle (and apparently any other member of the public) from attending the jury selection proceedings, stating that there was insufficient room in the courtroom to accommodate prospective jurors and one observer. 130 S. Ct. at 722. Presley’s counsel expressly objected to the exclusion of his client’s uncle, who might well have been of assistance to the defense in selecting a jury, as well as other members of the public, from the jury selection process. Presley, 130 S. Ct. at 722.

¶3¶36 Thus, in Presley, our nation’s highest court had before it a trial court that — over the clear objection of the defendant and the observer — closed the courtroom without applying standards necessary to ensure protection of the defendant’s Sixth and the public’s First Amendment rights to a public trial. In contrast, Paumier did not assert, and in my opinion waived, his Sixth Amendment right to a public *689trial by failing to object to the trial court’s decision to allow jurors to answer questions they considered embarrassing in chambers on the record with all parties present.

¶4¶37 Although Presleyholds that the defendant’s Sixth Amendment right to a public trial extends to the jury selection process,10 it does not hold that this error cannot be waived or that the public trial right under the federal constitution need not be preserved for review. See Reid v. State, 286 Ga. 484, 487-88, 690 S.E.2d 177 (2010) (distinguishing Presley on the basis that Reid did not object to the trial court’s temporary courtroom closure and reasoning, “The improper closing of a courtroom is structural error requiring reversal only if the defendant properly objected at trial and raised the issue on direct appeal”). But see State v. Strode, 167 Wn.2d 222, 229, 217 P.3d 310 (2009) (plurality opinion) (“ ‘defendant’s failure to lodge a contemporaneous objection at trial [does] not effect a waiver [of defendant’s public trial right]’ ” (first alteration in original) (quoting State v. Brightman, 155 Wn.2d 506, 517, 122 P.3d 150 (2005))). Under the invited error doctrine, a reviewing court should decline to address the merits of a claimed error if the appealing party induced the court to commit the conduct later asserted to be error. State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990). The invited error doctrine applies even to manifest constitutional errors. State v. McLoyd, 87 Wn. App. 66, 70, 939 P.2d 1255 (1997), aff’d sub nom. State v. Studd, 137 Wn.2d 533, 973 P.2d 1049 (1999).

¶5¶38 Here, although Paumier did not actively seek to have jurors questioned about sensitive matters in chambers, the record shows that he participated in the process and accepted the benefit of obtaining more candid answers to embarrassing questions. Accordingly, I would hold that Paumier has failed to preserve any objection to the trial court’s in-chambers questioning of potential jurors for ap*690pellate review. I am aware of contrary authority but cannot agree that it rests on sound constitutional basis.

¶6¶39 In addition, Paumier lacks standing to assert the public’s First Amendment right to a public trial. The standing doctrine generally prohibits a party from suing to vindicate another’s rights. Haberman v. Wash. Pub. Power Supply Sys., 109 Wn.2d 107, 138, 744 P.2d 1032, 750 P.2d 254 (1987). Neither Presleynor any other case expressly holds that a criminal defendant may assert the public’s rights to a public trial, although it has ruled on the public’s right through a criminal defendant’s appeal. See, e.g., State v. Bone-Club, 128 Wn.2d 254, 259, 906 P.2d 325 (1995).

¶7¶40 I wholeheartedly agree with the statement in the plurality opinion in Strode that a defendant “cannot waive the public’s right to open proceedings.” 167 Wn.2d at 229. But it does not follow that he has standing to assert that right to overturn a verdict entered by an impartial group: the public’s representatives on the jury. Importantly, this is not a situation in which the defendant’s and the public’s right to a public trial are aligned to the degree that the defendant can fairly represent the public’s interest in exercising its public trial rights or impartially decide whether to press to extend precious taxpayer resources on a new trial. In the context of jury selection, those rights may clearly be in conflict. As demonstrated here, Paumier had an interest in allowing jurors to be questioned privately in order to encourage candid answers to his questions. The public, in contrast, has an interest in knowing that the jury selection process was fair and to discover how, by whom, and, in challenges for cause, why potential jurors were challenged or removed from jury service. I continue to believe that the defendant’s and the public’s interests in a public trial are not sufficiently aligned to allow a defendant who does not object to a juror’s request to be questioned on the record in chambers to remain silent and then allege a violation of the public’s right to a public trial for the first time on appeal.

¶8*691¶41 I also cannot agree that the record before us supports a determination that the trial court abused its discretion by denying Paumier’s untimely request that he represent himself. Unlike the trial court’s file, the record before us in this appeal does not contain any indication of Paumier’s level of function or a history of his relationships with counsel. I am loath to baldly rule that a trial judge has abused her discretion on such an inadequate record.

¶9¶42 In addition, Paumier chose to appeal the judgment in this case. Assuming the majority’s opinion reversing that judgment stands, the correct remedy is a remand for a new trial. In re Pers. Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004). As always, following reversal of a defendant’s conviction, the State may decide not to retry the defendant or the defendant and the State may reach an agreement. That does not, in my opinion, alter the proper statement of the remedy. The evidence presented at trial was sufficient to support the decision of the fair and impartial jury that rendered it and double jeopardy does not bar retrial. Accordingly, even under the majority analysis, our authority is limited to reversing the judgment and remanding to the superior court for a new trial or other proceeding consistent with the majority opinion.

¶10Review granted at 169 Wn.2d 1017 (2010).