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State v. Njonge

Supreme Court of Washington, En Banc

September 25, 2014

The State of Washington , Petitioner ,
Joseph Njuguna Njonge , Respondent

Argued October 17, 2013

Page 1069

Appeal from King County Superior Court. No. 08-1-03125-6. Honorable Laura Gene Middaugh.

Daniel T. Satterberg, Prosecuting Attorney, and Donna L. Wise, Deputy, for petitioner.

Casey Grannis (of Nielsen Broman & Koch PLLC ), for respondent.

Suzanne L. Elliott on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.

Sarah A. Dunne, Nancy L. Talner, Douglas B. Klunder, Colin Fieman, and Katherine George on behalf of American Civil Liberties Union of Washington, Allied Daily Newspapers of Washington, Washington Newspaper Publishers Association, and Washington Coalition for Open Government, amici curiae.

AUTHOR: Justice Debra L. Stephens. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Sheryl Gordon McCloud. AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Chief Justice Barbara A. Madsen, James M. Johnson, Justice Pro Tem. AUTHOR: Justice Steven C. Gonzá lez. WE CONCUR: James M. Johnson, Justice Pro Tem.


[181 Wn.2d 548] Debra L. Stephens, Justice

Page 1070

¶ 1 We granted review of the public trial issues in this case, most notably whether the portion of jury [181 Wn.2d 549] selection in which the court excuses jurors for hardship is a proceeding to which the public trial right attaches. The Court of Appeals concluded that it is, and that Joseph Njonge's public trial right was violated when the trial court purportedly excluded observers during hardship excusals. Accordingly, the Court of Appeals remanded for a new trial without reaching Njonge's other assignments of error, including claims that the trial court improperly excluded a family member of the victim (who was also a

Page 1071

witness) and members of the press from portions of voir dire. Based on our review of the record, we conclude the trial court did not close proceedings in violation of Njonge's public trial right. Accordingly, we reverse the Court of Appeals and remand to that court to address Njonge's additional assignments of error on which we did not grant review.


¶ 2 Joseph Njonge worked as a nursing assistant at an assisted living facility. In 2008, he was charged with first degree murder in connection with the death of Jane Britt, the spouse of a resident at the facility.

¶ 3 Pretrial proceedings began on June 2, 2009. During discussion of a pretrial motion to exclude witnesses from trial, the prosecutor asked the trial court if one of the victim's family members, who would also later be called as a witness, could stay for voir dire. The court disallowed it, reasoning:

[W]e are in very cramped quarters for jury selection, and I think about the only place for visitors to sit is going to be in a little anteroom out there . ...
The other thing is, quite frankly, the jurors will be seeing that face throughout the entire process and maybe making some connections with that person when the person gets on the stand. I don't think it's fair; so, I am not going to allow it.

Verbatim Report of Proceedings (VRP) (June 2, 2009) at 46.

¶ 4 [181 Wn.2d 550] The court later explained to counsel and Njonge how it intended to conduct jury selection, noting:

We have received permission to get more than the standard 50 [jurors]. I think we are getting 65. That necessitates a rearrangement of our courtroom, and my Bailiff put out a map for you guys as to how we are going to get this number in. The first two benches must remain clear at all times.
So, we will have jurors seated in front of the jury box. The court reporter is going to move over here; we have a few jurors here. It's kind of a little awkward, but it's more of a jury selection in the round process that way.

Id. at 90-91. As the day's session concluded, the court addressed observers in the courtroom:

Just let me say for the people who are observing. You are certainly welcome to observe. Tomorrow when we have the jury selection, there will not be room for all of you. What we are going to do to allow people to observe is check with the fire marshall ... and make sure that we can keep those first swinging doors open. And if we can do that, then we will allow some people to observe if they wish to do so during jury selection by sitting in that kind of entry hall, if we can do that.
But, otherwise, as you can see, we are already putting chairs up here to accommodate the jury. We may be able to have chairs out there; we may not. We may be able to have the doors open without chairs. We are going to find that out. The chance of all you being able to be here and observe are slim to none during the jury selection process.

Id. at 105-06. The court recessed for the day a few minutes later.

¶ 5 Jury selection began the next day, June 3, 2009. The court called the panel into the courtroom. The record contains no mention about the presence or absence of spectators in the courtroom. Once the venire was settled, the court welcomed the members and explained the importance of jury duty and what role juries play in our basic system of justice. VRP (June 3, 2009) at 9-10. The panel [181 Wn.2d 551] members had previously completed a case-specific questionnaire that included questions about whether they had heard of the case and could be fair. VRP (June 2, 2009) at 85-86; VRP (June 3, 2009) at 2-3, 7, 18. The prospective jurors were sworn in. VRP (June 3, 2009) at 13. The court then conducted its hardship excusal process, which took up most of ...

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