Small appeals from his Okanogan County convictions for
aggravated first degree murder, first degree rape, and first
degree burglary, primarily challenging the jury selection
process and the sufficiency of the evidence of premeditation.
In the published portion of this opinion, we reject his
public trial argument. In the unpublished section, we affirm
the convictions and remand to superior court to amend his
burglary sentence and potentially reconsider Mr. Small's
legal financial obligations.
convictions arose from cold case investigations in the 1998
death of S.B., a 50-year-old woman living in Omak, and the
2006 sexual assault of B.M., who also was a resident of Omak.
During the investigation into the 2006 crime, a detective in
2010 obtained a DNA sample from Mr. Small. The ensuing
evaluation of that evidence connected Mr. Small to both the
1998 and 2006 crimes.
cases were charged under a single cause number. The trial
court granted Mr. Small's motion to sever the two cases.
The 2006 case involving B.M. was tried first during August
2012, with the jury convicting Mr. Small of rape, burglary,
and forgery. This court affirmed the convictions in the
ensuing appeal. The three charges involving S.B. were
tried to a different jury beginning the following month.
Although the aggravated murder charge did not include a
request for a special sentencing proceeding, a large number
of jurors had to be called in for each case due to the fact
that they were tried close together in time and each had
received significant local publicity. Jury selection took
several days for each trial.
jury selection, the parties exercised peremptory challenges
on paper by passing a sheet back and forth between counsel.
The posttrial location of this document became a matter of
some controversy. It was not listed on the clerk's file
index, leading a clerk of the superior court to advise Mr.
Small's appellate counsel that it was not on file. Mr.
Small made a motion to add the e-mail exchange with the court
clerk's office to the record in order to prove that the
challenge sheet was not filed with the clerk. The prosecutor
responded by filing an affidavit of the chief deputy clerk of
court that contained the challenge sheet and an explanation
that it had been filed with the clerk's office, but not
indexed because it was not a "regular pleading."
Our commissioner permitted supplementation of the record with
both the e-mails and the chief deputy clerk's affidavit
and seating chart. Clerk's Papers (CP) at 186-94.
the peremptory challenge procedure was conducted silently on
paper, a record of jury selection was made at the completion
of the process in conjunction with a renewed defense motion
for change of venue. The court and parties agreed that both
sides had exercised all of their peremptory challenges and
that the jury seated for trial was the jury intended by the
parties. Report of Proceedings (RP) at 972, 1006.
jury found the defendant guilty on all three counts as
charged, and all three of the charged aggravating factors
were found. CP at 40-41. The jury also returned a special
verdict that both the murder and the burglary were committed
with sexual motivation. CP at 43. The trial court ultimately
sentenced Mr. Small to life in prison without the possibility
of parole for the aggravated murder conviction, and to a
lesser concurrent term for the burglary conviction that was
enhanced 24 months by the sexual motivation finding. The
sentences were to be served consecutively to the rape
conviction in this case and to the 380 month term imposed for
the rape of B.M. CP at 19-20.
Small timely appealed to this court. A series of delays,
including two remands from this court for the purpose of
establishing facts surrounding the jury selection process,
delayed the resolution of this appeal for more than four
years. A panel ultimately considered the case without oral
Small argues that his public trial rights were violated by
the failure of the clerk to file the peremptory challenge
document in a timely manner. We do not believe that the
clerk's incorrect advice amounted to a public trial
criminal defendant's right to a public trial is found in
art. I, § 22 of the Washington Constitution and the
Sixth Amendment to the United States Constitution. Both
provide a criminal defendant the right to a public trial by
an impartial jury. The state constitution also provides that
"[j]ustice in all cases shall be administered openly,
" which grants the public an interest in open,
accessible proceedings, similar to rights granted in the
First Amendment to the United States Constitution. Wash.
Const, art. I, § 10; State v. Lormor, 172 Wn.2d
85, 91, 257 P.3d 624 (2011). Whether an accused's
constitutional public trial right has been violated is a
question of law that we review de novo. State v.
Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).
clear that for-cause and peremptory challenges implicate the
public trial right. State v. Love, 183 Wn.2d 598,
605-06, 354 P.3d 841 (2015), cert, denied, 136 S.Ct.
1524, 194 L.Ed.2d 604 (2016). In Love, the defendant
argued silent peremptory challenges, even documented by a
juror strike sheet, violated his right to a public trial. In
disagreeing, the Love court noted:
[T]he public had ample opportunity to oversee the selection
of Love's jury because no portion of the process was
concealed from the public; no juror was questioned in
chambers. To the contrary, observers could watch the trial
judge and counsel ask questions of potential jurors, listen
to the answers to those questions, see counsel exercise
challenges at the bench and on paper, and ultimately evaluate
the empaneled jury. The transcript of the discussion
about for cause challenges and the struck juror sheet showing
the peremptory challenges are both publicly available.
Id. at 607 (emphasis added). The Love court
held that written peremptory challenges "are consistent
with the public trial right so long as they are filed in the