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State v. Small

Court of Appeals of Washington, Division 3

November 2, 2017

KELLY E. SMALL, Appellant.

          KORSMO, J.

         Kelly 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 In the unpublished section, we affirm the convictions and remand to superior court to amend his burglary sentence and potentially reconsider Mr.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.


         These 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.

         Both 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.[2] 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.

         During 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.

         Although 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.

         The 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.

         Mr. 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 argument.


         Mr. 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 violation.

         A 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).

         It is 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 ...

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