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State v. Burdette

Court of Appeals of Washington, Division 2

December 3, 2013

The State of Washington, Respondent,
Wayne Burdette, Appellant

Page 1236

Appeal from Lewis County Superior Court. Docket No: 11-1-00422-2. Date filed: 08/23/2011. Judge signing: Honorable Richard Lynn Brosey.

Manek R. Mistry and Jodi R. Backlund (of Backlund & Mistry ), for appellant.

Jonathan L. Meyer, Prosecuting Attorney, and Sara I. Beigh, Deputy, for respondent.

AUTHOR: Thomas R. Bjorgen, J. Jill M Johanson, A.C.J. concurs. Christine Quinn-Brintnall, J. (concurring in the result).


Page 1237

Bjorgen, J.

[178 Wn.App. 186] ¶ 1 Wayne Burdette appeals from his jury conviction for obstructing an officer in performance of his lawful duties. He argues (1) the trial court violated his right to a public trial and the public's right to open proceedings [178 Wn.App. 187] by not conducting discussions about the jury instructions and two communications from the jury in open court; (2) the trial court violated his right to be present during critical stages of his trial by discussing its response to the second jury communication outside his presence; and (3) the admission during sentencing of evidence seized from his trailer violated the guarantees against warrantless searches of the federal constitution's Fourth Amendment and the state constitution's article I, section 7. He also alleges that defense counsel was ineffective by not moving to suppress a shotgun seized from his trailer during a warrantless protective sweep.

¶ 2 We hold that the trial court did not violate either Burdette's right to a public trial or the public's right to open proceedings because none of these rights attached to the challenged proceedings. We hold that Burdette's absence during the court's consideration of the second jury communication violated his right to be present at a critical stage of trial, but that this error was harmless. We also hold that based on the record before us, the suppression and ineffective assistance of counsel issues are moot.


I. The Arrests and Search

¶ 3 On the night of June 10, 2011, a Mossyrock police officer stopped Burdette for speeding in his truck and making a turn without signaling. Upon learning the reasons for the traffic stop, Burdette became argumentative and increasingly hostile toward the officer. At one point, Burdette began walking toward the officer with his hand behind his back, despite the officer's

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repeated orders to stop and to get back in his truck. Burdette, who was " highly upset and aggravated," eventually returned to and entered his truck. Report of Proceedings (RP) (Aug, 17, 2011) at 77-78.

[178 Wn.App. 188] ¶ 4 After a Washington State Patrol trooper arrived, the police officer approached Burdette's truck on the driver's side, while the trooper approached from the passenger's side. The trooper saw that Burdette had a gun and warned the officer, who pulled out his firearm and ordered Burdette to show him his hands. Burdette did not comply, but instead reached downward with his right hand out of the officer's sight. After the trooper told the officer that Burdette had a gun at the small of his back, Burdette slowly moved his right hand to the steering wheel. The officer removed Burdette from the truck, handcuffed him, and removed a loaded .40 caliber handgun from Burdette's waistband. Burdette was arrested for driving under the influence.

¶ 5 After Burdette's release from custody on the driving under the influence charge, the State charged him with one count of felony harassment and one count of obstructing a law enforcement officer in the performance of his official duties. The State obtained an arrest warrant based on these charges.

¶ 6 When law enforcement officers went to Burdette's trailer to execute the warrant, they called for him to come outside. As Burdette was being handcuffed, an officer entered the trailer's " threshold" and performed a protective sweep for weapons. Clerk's Papers (CP) at 21. The officer observed a 12-gauge pump action shotgun located " directly inside the doorway" ; the shotgun was positioned so that its barrel was pointed at " head level" at the doorway, and it could be fired while Burdette lay in bed. CP at 21. The sheriff's office subsequently obtained a search warrant for Burdette's trailer and, during the search, found four written statements generally indicating a severe dislike of and murderous intent toward officers.

II. The Jury Instructions and Responses to Jury Communications

¶ 7 After hearing pretrial motions, the trial court and counsel met in chambers to discuss jury instructions. Before [178 Wn.App. 189] closing argument, the trial court stated outside the jury's presence, " Yesterday we met in chambers and went over the jury instructions." RP (Aug. 19, 2011) at 2. The trial court asked for the parties' objections to the instructions, and Burdette stated he had none.

¶ 8 During deliberations, the jury submitted two communications to the trial court. The first communication, submitted at 1:20 p.m., read, " In the Harrassment [sic] (Bodily Injury) charge, why is #2 - 'that the words or conduct of defendant placed officer in reasonable fear that the threat to kill would be carried out'; when (Threat to Kill) charge already states that?" CP at 26 (emphasis omitted). The trial court responded by stating that the instruction was in error and correcting it. The second communication, submitted at 2:26 p.m., on the second day of trial, stated, " Jury is deadlocked over several issues relating to the defendant's intent." CP at 27. The trial court's written response stated, " [P]lease continue to deliberate in an effort to reach verdicts." CP at 27. The court's written responses to both jury communications also stated that they were submitted " after affording all counsel/parties opportunity to be heard." CP at 27. The record does not reflect where any discussions about the trial court's responses were held.[1]

¶ 9 The jury acquitted Burdette of the harassment charge but found him guilty of the obstruction charge. He appeals.


I. Public Trial Right

¶ 10 Burdette argues that the trial court violated his right to a public trial and the public's right to open proceedings by not holding discussions about jury instructions [178 Wn.App. 190] in open court and by not discussing its responses to the two jury communications in open court. Based on our Supreme Court's recent decision in State v. Sublett, 176 Wn.2d 58,

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292 P.3d 715 (2012) (plurality opinion), we hold that the public trial right did not attach to either of these proceedings. Thus, the trial court did not violate either Burdette's or the public's right by not holding these proceedings in open court.

A. The Legal Standards

¶ 11 Whether a violation of the public trial right exists is a question of law we review de novo. State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009), cert. denied, 131 S.Ct. 160 (2010). A criminal defendant has a right to a public trial under the federal and state constitutions. State v. Lormor, 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011); U.S. Const. amend. VI; Wash. Const. art. I, § 22. Likewise, the public has a complementary right to open proceedings under the federal and state constitutions. Lormor, 172 Wn.2d at 91; U.S. Const. amend. I; Wash. Const. art. I, § 10. These rights, however, are not absolute, and a trial court may close the courtroom under certain circumstances. Momah, 167 Wn.2d at 148; State v. Easterling, 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006). Specifically, Washington courts may close a part of ...

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