Oral Argument June 3, 2014.
Appeal from King County Superior Court. Docket No: 12-1-03005-3. Date filed: 01/30/2013. Judge signing: Honorable Dean S Lum.
Thomas M. Kummerow (of Washington Appellate Project ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Jennifer P. Joseph, Deputy, for respondent.
AUTHOR: Linda Lau, J. WE CONCUR: James Verellen, A.C.J., Michael J Trickey, J.
[181 Wn.App. 691] ¶ 1 Mathew Magnano appeals his second degree robbery conviction, arguing that the trial court violated his right to a public trial when it replayed an audio recording of a 911 call for the jury in a closed courtroom during deliberations. Because the jury's rehearing of properly admitted recorded evidence in a
closed courtroom during deliberations implicates no public trial right, we affirm Magnano's second degree robbery conviction.
¶ 2 The jury convicted Matthew Magnano of second degree robbery. During trial, the court admitted an audio recording of the robbery victim's 911 call. Defense counsel did not object to its admission. The recording was played once for the jury during the trial.
¶ 3 After closing arguments, the court and counsel agreed on the exhibits that would go back to the jury room. The court and counsel discussed how to handle the 911 recording if the jury asked to hear it again. The prosecutor proposed either to let the jury replay the recording with court-provided audio equipment or let the bailiff play back [181 Wn.App. 692] the recording. Defense counsel said he " [had] no objection. Obviously if they request it, I think they should be able to return to the courtroom and review it." Report of Proceedings (RP) (Nov. 27, 2012) at 170. He also said that he and his client waived their presence during the recording playback and " would feel comfortable with having the bailiff display whatever exhibits that are requested." RP (Nov. 27, 2012) at 170-71, 172.
¶ 4 The jury asked to replay the 911 recording during their deliberations. The trial court consulted both counsel about the request. Magnano appeared by telephone. Defense counsel indicated:
I did speak to Mr. Magnano. We did discuss that. He is - - he has indicated to me that he has no objection, and I have no objection to the jury panel listening to the 911 tape. It was, I believe, played for [the jury] in court. But it can be played for ...