Argued: January 15, 2015.
James L. Nagle, Prosecuting Attorney, and Teresa J. Chen, Deputy, for petitioner.
Janet G. Gemberling (of Janet Gemberling PS ); and Jill Shumaker Reuter (of Nichols Law Firm PLLC ), for respondent.
James M. Whisman on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.
AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.
Charles W. Johnson, J.
[183 Wn.2d 31] [¶1] -- This case involves whether the trial court closed the courtroom during trial in violation of the defendant's rights under article I, section 22 of the Washington Constitution. The Court of Appeals reversed Benito Gomez's convictions for second degree murder and six counts of first degree assault on the grounds that the trial judge effected an unconstitutional closure of the courtroom during trial by his pretrial comment that the public would not be permitted to enter the courtroom once the proceedings began.
First, we disagree that the trial judge, by mere virtue of making this remark, fully excluded the public from entering the courtroom and, thus, we have no basis for finding a constitutional violation. Second, even if we could presume the brief comment was enforced, this limitation to courtroom entry does not constitute a closure. We reverse the Court of Appeals and reinstate Gomez's conviction.
[¶2] Gomez was charged with first degree murder and six counts of first degree assault after he fatally shot a rival gang member and fired his handgun at fleeing rivals and residents of a nearby apartment building. Before swearing in the jury, the court considered Gomez's change of venue motion, in which Gomez argued that the heavy security in [183 Wn.2d 32] the courthouse would intimidate the jury and convey the impression that Gomez was dangerous. In denying the motion, the court made a few comments regarding the spectators of the proceedings: " This is a public courthouse. Everyone in the public is entitled to appear in this courthouse for appropriate matters, as either litigants or spectators or witnesses and in fact the courtroom is rather full today of spectators concerning this particular case." 2 Verbatim Report of Proceedings (VRP) at 150.
[¶3] The judge continued in a lengthy explanation of his ruling to deny the venue change, and couched within that ruling, the judge made the comment that Gomez contends closed the proceedings:
We continue to have rules of procedure where people have to be on time for proceedings here. We do not allow people to come into the courtroom after [it] is in session for not only security reasons but as well as ...