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State v. Brightman10/6/2005
JUSTICES Concurring: James Johnson Barbara A. Madsen Charles W. Johnson Gerry L Alexander Richard B. Sanders Susan Owens Tom Chambers Mary Fairhurst
EN BANC
Nathan Brightman seeks reversal of his conviction for the second degree murder of Dexter Villa. Brightman claims that his constitutional right to public trial was violated when the trial court closed the courtroom to spectators during jury selection. Brightman also argues that the trial court erred when it declined to give his proposed instruction on justifiable homicide.
We conclude that the trial court erred when it directed that the courtroom would be closed to spectators during jury selection, without fulfilling the requirements set forth in State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). This error entitles Brightman to a new trial. Because the issue may arise again on retrial, we also conclude that the trial court did not err when it refused to give BrightmanRs proposed instruction on the defense of justifiable homicide.
I. Statement of Facts
On October 1, 1998, Brightman approached Villa in the parking lot of Tacoma Community College and asked him for a ride to Gig Harbor. Villa agreed, but instead of driving to Gig Harbor, the pair ended up at a parking area near Titlow Beach. According to three witnesses, after Villa parked, the men began fighting inside the car. Then Brightman got out of the car and headed toward the driverRs side. Villa jumped out of the car, and the fight continued. One witness testified that each man remained on his feet, and it seemed to be a fair fight. Another testified that Villa looked like he was trying to get away, but Brightman was holding onto VillaRs shirt. The third testified that he saw Villa waive his hands in fear. Each witness saw Brightman shoot Villa. Brightman looked over at one of the witnesses in the parking lot, pulled his coat over his face, got in VillaRs car, and drove away.
According to BrightmanRs testimony, when he and Villa were driving away from the community college, he gave Villa $7 for gas. The conversation turned to parties and drugs, and Brightman claims he gave Villa $20 to get him some marijuana. Villa then drove to the parking area near Titlow beach. After Villa parked, he ordered Brightman to get out of his car. Brightman replied that he wanted his money back. Villa leaned across him to open the passenger door, Brightman shoved his hand away, and a fight ensued. Brightman claims that he yelled SQhelp me,RT tried to fight back, and eventually got out of the car. Report of Proceedings (RP) at 1081-82. Villa also got out of the car, and the fight continued. Brightman testified that both men threw punches and both stayed on their feet.
Significantly, Brightman admitted that he resumed the fight once both men were outside of the car, and he had no fear of Villa during the fight. Brightman claimed that he eventually drew a gun, intending only to club Villa with it. Brightman hit Villa with the gun twice, and the second time the gun went off. Villa fell to the ground and Brightman panicked. He testified that he had the clip in his pocket, and he did not know there was a bullet in the chamber. Brightman picked up his money, threw his coat over his face, got in Villa's car, and drove away.
Brightman drove across the Tacoma Narrows Bridge. He tossed the gun and the clip out of the sunroof and off the bridge. They were never recovered. A police officer testified that he tried to stop Brightman, and Brightman started to pull over but then sped away. Brightman parked the car on a gravel road, threw the keys in the bushes, and ran home. Later that night, Brightman's friends returned to
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