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State v. Marks

Court of Appeals of Washington, Division 2

December 2, 2014

The State of Washington, Respondent
v.
Dustin Wade Marks, Appellant

Appeal from Pierce County Superior Court. Docket No: 12-1-00967-0. Judge signing: Honorable James R Orlando. Judgment or order under review. Date filed: 05/17/2013.

Eric J. Nielsen (of Nielsen Broman & Koch PLLC ), for appellant.

Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor, Deputy, for respondent.

Authored by Bradley A. Maxa. Concurring: Rich Melnick, Thomas R Bjorgen.

OPINION

Page 197

Bradley A. Maxa, J.

[184 Wn.App. 784] [¶1] Dustin Marks appeals his convictions for assault, unlawful possession of a firearm, vehicle prowling, and reckless endangerment. He argues that the trial court violated his right to a public trial by allowing the parties to exercise peremptory juror challenges in writing at a sidebar conference rather than orally. We hold that the dismissal of prospective jurors with peremptory challenges does not implicate the public trial right, and therefore that the trial court's procedure did not violate that right. In the unpublished portion of this opinion we address Marks' challenge of the trial court's imposition of discretionary legal financial obligations as part of his sentence. We affirm Marks' convictions and sentence.

FACTS

[¶2] The State charged Marks with first degree assault with a firearm enhancement, first degree unlawful possession of a firearm, second degree vehicle prowling, and reckless endangerment. The charges arose from an incident in which he fired shots at a person who confronted him while he was prowling cars. The case proceeded to a jury trial.

[¶3] Following voir dire of prospective jurors, the trial court convened with counsel at a sidebar in open court to take the parties' peremptory challenges of those prospective [184 Wn.App. 785] jurors. Counsel noted their challenges in writing on a document titled " Peremptory Challenges," which later was filed in open court. Clerk's Papers at 80. After the sidebar, the trial court went back on the record and announced the selected members of the jury. Marks did not object to this process, and the jury was duly empaneled. After a three-day trial, Marks was convicted on all counts.

[¶4] Marks appeals.

ANALYSIS

[¶5] Marks argues that the trial court violated his public trial right by allowing counsel to make peremptory challenges in writing rather than ...


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