State v. Whitlock ( 2017 )

This opinion was filed for record
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. SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, NO. 93685-4
Petitioner, EN BANC
V.
Filed JUN 1 5 2017
RALPH E. WHITLOCK,
Respondent.
STATE OF WASHINGTON,
Petitioner,
V.
DAYID R. JOHNSON,
Respondent.
GORDON McCLOUD, J.-In State v. Smith, this court held that the
constitutional right to an open courtroom did not require trial courts to invite the
public to attend sidebars. 181 Wash. 2d 508, 334 P.3d 1049 (2014). It defined
"[p]roper sidebars" as those occurring at sidebar or its equivalent and involving
No. 93685-4
"mundane issues implicating little public interest." Id. at 515-1 7 & n.10 (citing State
v. Wise, 176 Wash. 2d 1, 5,288 P.3d 1113 (2012)). Typical examples of such mundane
issues are scheduling, housekeeping, and decorum.
In this case, however, the topic of discussion was the proper extent of cross-
examination of a confidential informant who was the State's key witness and the
location of the discussion was not at sidebar but in the judge's chambers. In fact,
the trial court rejected the State's request to address its objection to the scope of
cross-examination at sidebar. Instead, the court adjourned the bench trial
proceedings, called counsel into chambers, and discussed that critically important
and factually complicated issue behind closed doors. The Court of Appeals ruled,
in a two to one decision, that this procedure violated the right to an open courtroom
and conflicted with Smith. State v. Whitlock, 195 Wash. App. 745, 749,755,381 P.3d
1250 (2016).
The State sought review, which we granted. State v. Whitlock, 187 Wash. 2d
1002, 386 P.3d 1080 (2017). We affirm the Court of Appeals and reaffirm our
adherence to Smith.
FACTS
Ralph Whitlock and David Johnson were each charged with multiple counts
of robbery and burglary, with firearm and deadly weapon enhancements, arising
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from a single incident. 1 Whitlock and Johnson waived their jury trial right, and the
case was tried to the bench.
The State's theory was that Whitlock and Johnson arrived at the home of an
acquaintance, Tonya Routt; that they were armed with a crowbar and a pistol; that
they forced another person at the house, Crista Ansel, to show them around so that
they could locate valuables to steal; and that Whitlock and Johnson ultimately stole
a television, a safe containing money and drugs, and other items.
The defense did not deny that Whitlock and Johnson were present at the scene
of the robbery. Instead, they sought to undermine the credibility of the State's
witnesses and pin the robbery on Ansel. In opening statements, for example, counsel
for both defendants impugned Ansel's credibility and singled her out as the only
witness who would testify that the defendants committed an assault or carried any
weapon. 2
There was certainly material for the defense to use in pursuing this theory.
The trial testimony of several of the State's witnesses conflicted with statements
1
Clerk's Papers (CP) (Whitlock) at 60-61; CP (Johnson) at 83-84. Whitlock was
also charged with two counts of bribing a witness. CP (Whitlock) at 62-63.
2This was not an entirely accurate forecast of the testimony. In fact, a witness not
present during the robbery testified that she received texts from several victims
immediately afterward, stating that a gun was present, Tr. of Proceedings (TP) (Dec. 8,
2014) at 233-34; another witness testified that he saw Johnson leaving the scene of the
robbery holding a pistol, TP (Dec. 9, 2014) at 385; and a third witness testified that Ansel
told him, at the scene while the robbery was occurring in another room, that the defendants
were armed with a crowbar and a gun, TP (Dec. 10, 2014) at 614.
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those witnesses made to law enforcement officers after the robbery. The State
attributed these conflicts to intimidation or bribery by Whitlock; the defense
attributed the conflicts to either coercion by the police or drug-induced confusion.
But the defense focused most intensely and consistently on impeaching Ansel.
Ansel's lack of credibility was a predominant defense theme throughout trial.
When Ansel took the stand, she testified that she and six other people were
present in the home when the defendants showed up with the crowbar and pistol.
She stated that one person at the house immediately began packing to leave with her
young daughter, and that another person there was very frightened. Ansel
acknowledged that she was not frightened because Whitlock was like a brother to
her. But she testified that she led Whitlock around the house, showing him which
rooms contained items he was looking for, opening doors for him to prevent him
from breaking them down, and asking him not to wake sleeping children. At some
point, Ansel testified, Whitlock accidentally struck her in the face with his elbow
and apologized. She said that he told her not to do anything stupid and eventually
locked her in a bedroom. She also testified that after the robbery, Whitlock's
girlfriend threatened her and urged her to leave town.
On cross-examination, defense counsel asked Ansel if the reason she refrained
from calling the police on the night of the robbery was that she had a warrant out for
her arrest. Ansel responded that she would not have called the police in any event.
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Defense counsel then said, "Okay, but you do have dealings with the police, don't
you?" Tr. of Proceedings (TP) (Dec. 9, 2014) at 338-39. The State objected. It
asked for a sidebar.
The court called a recess. But it did not hold a sidebar. Instead, despite the
fact that this was a bench trial, it called counsel into chambers and met with them
there, with no reporter-or defendants-present. The minutes indicate that this
recess began at 10:13 a.m. and lasted 10 minutes. Nobody objected.
When open court proceedings resumed, defense cross-examination continued.
But defense counsel did not ask any questions about Ansel's dealings with the police.
Ansel then finished testifying, one other witness for the State testified, and the court
announced it would take a recess for lunch.
Just before that recess, the court and counsel placed on the record a description
of the in-chambers proceeding. The minutes indicate that this memorialization
occurred between 12:04 and 12:09 p.m. The defendants were not present when this
record was made; they had already been taken back to jail. The prosecutor explained
that he had objected to the defense's line of cross-examination because he viewed it
as both irrelevant and an attempt to intimidate Ansel by revealing she was a police
informant in front of the defendants. The prosecutor also summarized that the trial
court had ruled in the State's favor in chambers: "The Court, uh, agreed with the
State in Chambers that, uh, that there was no, uh, material relevance or, uh, towards
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No. 93685-4
her credibility on that, on those issues and so the State's interests were, outweighed
the, uh, the Defendants' interests in obtaining or, or listening to this testimony." Id.
at 425. Defense counsel then explained that he had advanced two bases for
questioning Ansel on her "relationship with the police": first, to explain why Ansel
would talk with one particular detective even though (according to the defense
theory) she was "more afraid of the police than she [was] of Mr. Johnson and Mr.
Whitlock"; and second, to set the stage for arguing that Whitlock and Johnson would
be unlikely to commit a crime in a home where a known police informant was
present. Id. at 425-26. Defense counsel also explained that two decisions resulting
from the in-chambers proceeding had "adequately addresse[d] the Defenses'
interests": first, the State promised that it would not question Ansel about her
discussions with any particular detective; and second, the court ruled that Whitlock
and Johnson could testify about their suspicions that Ansel was an informant. Id. at
426. Finally, the court admonished counsel to maintain decorum and show respect
and deference to the bench, and counsel apologized. (This was apparently a
reference to an earlier exchange.) Id. at 426-27.
When court reconvened, the defense presented its case. Johnson testified that
he suspected Ansel and some of the other State's witnesses were police informants.
Counsel did not question Johnson further about this suspicion, so that testimony was
limited to Johnson's single statement. All of the eyewitness defense testimony,
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including Johnson's, placed Johnson and Whitlock at the scene of the robbery.
Johnson testified that he and Whitlock were framed; one other defense witness
testified that he saw Johnson and Whitlock at the scene right before the robbery
occurred but did not actually see them take any property.
In closing, the defense argued that Ansel was the real perpetrator of the
robbery and repeated the assertion that the State's case rested entirely on the
credibility of her testimony. The State responded by pointing out all of the other
evidence that corroborated Ansel's account.
The court convicted Whitlock and Johnson of first degree burglary and first
degree robbery, all with firearm enhancements, and sentenced each man to 180
months. Clerk's Papers (CP) (Whitlock) at 1-77; CP (Johnson) at 98-103.
PROCEDURAL HISTORY
Whitlock and Johnson appealed their convictions on grounds unrelated to the
in-chambers proceeding. The Court of Appeals, however, called for supplemental
briefing on the public trial issue. Whitlock, 195 Wash. App. at 749 ("Our review of
the briefs and the record resulted in us directing the parties to submit briefing on the
obvious but overlooked public trial issue."). 3 The court then held, in a two to one
3
The State asserts that the Court of Appeals raised the public trial issue sua sponte.
But Whitlock filed a pro se "Statement of Additional Grounds for Review" (Statement),
which identified the fact that the in-chambers proceeding had occurred and raised a right-
to-presence claim. Statement at 1, State v. Whitlock, No. 33073-7-III ("Were the
defendant's Constitutionally protected due process rights violated when the trial
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decision, that the in-chambers proceeding violated the defendants' right to a public
trial. It reversed the convictions. Id. at 755; see id. at 756-62 (Korsmo, J.,
dissenting).
The majority4 first explained that the closure was not permitted under our
decision in Smith, which held that "[p ]roper sidebars," involving "mundane issues
implicating little public interest," do not trigger the public trial right under the
experience and logic test. 181 Wash. 2d at 515-17; Whitlock, 195 Wash. App. at 752-53.
The majority reasoned that Smith permits sidebars only when they are (1) '"limited
in content to their traditional subject areas,'" (2) necessary to '"avoid disrupting the
flow of trial,"' and (3) contemporaneously transcribed or "'promptly memorialized
in the record."' Whitlock, 195 Wash. App. at 752-53 (emphasis omitted) (quoting
Smith, 181 Wash. 2d at 516 n.10). The majority concluded that the in-chambers
conference here failed the second and third criteria: it was not necessary to avoid a
proceedings were held without his presence?"). In late January 2016, the Court of Appeals
rejected that pro se Statement for filing, pursuant to State v. Romero, 95 Wash. App. 323,
975 P.2d 564 (1999). Letter from Renee S. Townsley, Clerk/Adm'r, to Ralph Whitlock,
Appellant (Jan. 25, 2016) (on file with court). But three months later, the court sent counsel
a letter directing them to "provide supplemental briefing on the issue raised by Mr.
Whitlock in his pro se [Statement] that the trial court heard argument and rnled upon an
evidentiary objection in chambers and without him present." Letter from Renee S.
Townsley, Clerk/Adm'r, to counsel (Apr. 22, 2016) (on file with court). The letter
specifically directed counsel to brief both the right to presence and the right to a public
trial. Id.
4
Judge Pennell joined the majority in full but also wrote a separate concurrence.
Whitlock, 195 Wash. App. at 755-58 (Pennell, J., concurring).
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No. 93685-4
disruption because the trial was to the bench ( so there was no jury to accommodate),
and it was neither recorded nor promptly memorialized because there were almost
100 pages of transcripts between the sidebar and the memorialization. Id. at 7 53.
The majority then applied the experience and logic test5 and concluded that the in-
chambers proceeding violated the defendants' right to a public trial. Id. at 754.
We granted the State's petition for review. Whitlock, 187 Wash. 2d 1002.
ANALYSIS
A criminal defendant has a right to a public trial under both the United States
Constitution and the Washington State Constitution. State v. Lormor, 172 Wash. 2d
85, 90-91, 257 P.3d 624 (2011); U.S. CONST. amend. VI; WASH. CONST. art. I,§ 22.
"The public trial right is found in two sections of the Washington Constitution:
article I, section 22, which guarantees a criminal defendant a right to a 'public trial
by an impartial jury,' and article I, section 10, which guarantees that 'Li]ustice in all
cases shall be administered openly."' State v. Frawley, 181 Wash. 2d 452, 458-59, 334
P.3d 1022 (2014) (plurality opinion) (alteration in original).
5
This court adopted the experience and logic test in State v. Sublett, 17 6 Wash. 2d 58,
72, 292 P.3d 715 (2012) (plurality opinion). The test derives from the United States
Supreme Court's decision in Press-Enterprise Co. v. Superior Court, which held that a
qualified right of public access attaches to proceedings that ( 1) "have historically been open
to the press and general public" and (2) function properly, or better, because they are
public. 478 U.S. 1, 7-8, 106 S. Ct. 2735, 92 L. E. 2d 1 (1986).
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Whether a defendant's public trial right has been violated is a question of law
reviewed de novo. Wise, 176 Wash. 2d at 9 (quoting State v. Easterling, 157 Wash. 2d
167, 173-74, 137 P.3d 825 (2006)). To answer that question, the court engages in a
three-part inquiry: "(1) Does the proceeding at issue implicate the public trial right?
(2) If so, was the proceeding closed? And (3) if so, was the closure justified?" Smith,
181 Wash. 2d at 521 (citing State v. Sublett, 176 Wash. 2d 58, 92, 292 P.3d 715 (2012)
(Madsen, C.J., concurring)).
In this case, the second and third questions are easy to answer. The proceeding
at issue in this case was certainly a "closure": the proceeding occurred in the judge's
chambers, and that is a private and closed setting. See Frawley, 181 Wash. 2d at 459-
60 & n.8 (conducting trial court proceedings in-chambers so that the public is
excluded constitutes a closure). And the trial court did not conduct a Bone-Club
analysis, 6 so the closure was not justified. Smith, 181 Wash. 2d at 520 ("[a] closure
6
State v. Bone Club, 128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995). Under Bone-
Club, the trial court may not close the courtroom unless it "perform[s] a weighing test
consisting of five criteria":
"1. The proponent of closure or sealing must make some showing [of a
compelling interest], and where that need is based on a right other than an
accused's right to a fair trial, the proponent must show a 'serious and
imminent threat' to that right."
"2. Anyone present when the closure motion is made must be given an
opportunity to object to the closure."
"3. The proposed method for curtailing open access must be the least
restrictive means available for protecting the threatened interests."
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unaccompanied by a Bone-Club analysis on the record will almost never be
considered justified"). See Frawley, 181 Wash. 2d at 460 ("The articulation of a
compelling interest [under the Bone-Club analysis] ensures that court
proceedings are not closed merely for the sake of convenience as a matter of course."
(citing Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct. 721, 175 L. Ed. 2d 675
(2010)) ). We therefore turn to the first question: whether the in-chambers
proceeding at issue in this case implicated the public trial right.
To determine whether the public trial right attaches to a particular proceeding,
we apply the "experience and logic" test. Smith, 181 Wash. 2d at 511 (citing Sublett,
176 Wash. 2d at 73). Under the experience prong, we consider whether the proceeding
at issue has historically been open to the public. In re Det. of Morgan, 180 Wash. 2d
312, 325, 330 P.3d 774 (2014) (citing Sublett, 173 Wash. 2d at 73). Under the logic
prong, we ask "'"whether public access plays a significant positive role in the
functioning of the particular process in question.""' Id. at 325-26 (quoting Sublett,
176 Wash. 2d at 73 (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.
"4. The court must weigh the competing interests of the proponent of
closure and the public."
"5. The order must be no broader in its application or duration than
necessary to serve its purpose."
Id. (second alteration in original) (quoting Allied Daily Newspapers of Wash. v. Eikenberry,
121 Wash. 2d 205, 210-11, 848 P.2d 1258 (1993)).
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Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press II))). If both prongs are satisfied, the public
trial right attaches. Morgan, 180 Wash. 2d at 325 (citing Sublett, l 76 Wash. 2d at 73);
Press II, 478 U.S. at 9. The guiding principle is '"whether openness will "enhance[]
both the basic fairness of the criminal trial and the appearance of fairness so essential
to public confidence in the system.""' Smith, 181 Wash. 2d at 514-15 (alteration in
original) (quoting Sublett, l 76 Wash. 2d at 75 (quoting Press-Enter. Co. v. Superior
Court, 464 U.S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984) (Press I))).
Smith has already answered that question with regard to the proceedings at
issue here. In Smith, which we decided before the Whitlock/Johnson trial, we held
that sidebars do not implicate the public trial right under the experience and logic
test "because [sidebars] have not historically been open to the public and because
allowing public access would play no positive role in the proceeding[ s]." 181 Wash. 2d
at 511.
But we limited that holding to sidebars. We considered whether sidebar
conferences on evidentiary matters held in a hallway outside the courtroom-solely
because of the "peculiar layout" of the courthouse making conferences at the bench
impractical but with video and audio recording equipping that outside hallway for
just such sidebars-implicate the public trial right. Id. at 512. We ruled that
"[p]roper sidebars" do not meet either prong of the experience and logic test and
therefore do not implicate the public trial right at all. Id. at 516-19 & n.10. We
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defined "[p ]roper sidebars" as proceedings that "deal with the mundane issues
implicating little public interest[,] ... done only to avoid disrupting the flow of trial,
and ... either ... on the record or ... promptly memorialized in the record." Id. at
516 & n.10 (citing Wise, 176 Wash. 2d at 5). We also held that the particular
proceedings at issue in that case-all addressing legal challenges and evidentiary
rulings that were so devoted to legal "complexities" as to be "practically a foreign
language"-were proper sidebars. Id. at 518-19; see id. at 539-41 (Owens, J.,
dissenting).
Under Smith, the in-chambers proceeding in this case was definitely not a
"[p]roper sidebar." Id. at 516.
First, it occurred in chambers. Chambers are, by definition, closed to the
public. Frawley, 181 Wash. 2d at 459-60. So the location of the proceeding in this
case cannot be considered the location of a sidebar.
The State implicitly admits this by arguing in this court that such a complete
closure was necessary to avoid publicly exposing Ansel as a police informant.
Suppl. Br. of Pet'r at 11. That, however, simply proves that this was not a regular
sidebar but an intentional courtroom closure to exclude the public.
Second, the in-chambers proceeding was not recorded or promptly
memorialized. The State argues that the in-chambers proceeding was consistent with
Smith because it was eventually memorialized. But there was no reason for any
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No. 93685-4
delay in memorialization at all here. As discussed, this was a bench trial. The entire
objection could have been argued on the record at any time with no inconvenience
to anyone.
Finally, the State argues that the in-chambers proceeding resolved only legal
issues, as opposed to factual ones, and was therefore permissible under Smith. But
Smith did not adopt a strict "legal-factual distinction" for determining whether a
proceeding implicates the public trial right, 181 Wash. 2d at 514 (citing Sublett, 176
Wash. 2d at 73), much less for determining whether a chambers discussion can be
recharacterized as a midtrial sidebar. Further, the objection argued in chambers in
this case was not purely technical or legalistic. It was about a matter easily
accessible to the public: informants and their motives to curry favor with authority.
As the State itself argued to this court, the issue was "wrapped in a very complicated
fact pattern that would not be obvious to the trial court without explanation." Suppl.
Br. of Pet'r at 11-12 (emphasis added). 7 "Fact patterns" are factual.
7 The State also cites precedent holding that a defendant who seeks to compel the
disclosure of an informant's identity must make "a compelling showing of necessity to
overcome the State's interest" in protecting that information. Suppl. Br. of Pet'r at 12
(citing Roviaro v. United States, 353 U.S. 53, 60-61, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957)).
In 1978, this court observed that the proper way for the trial court to balance those interests
was to "hold an in camera session at which the judge hears the informer's testimony and
applies the Roviaro standard." State v. Harris, 91 Wash. 2d 145, 150, 588 P.2d 720 (1978).
Here, the State argues that it would be illogical to allow such in-camera proceedings but
disallow the in-chambers proceeding in this case. Suppl. Br. of Pet'r at 12. This argument
is unpersuasive because our 1978 Harris decision does not address the public trial right at
all. It predates Bone-Club, in which we articulated the five steps that a trial court must take
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No. 93685-4
For these reasons, the Court of Appeals properly determined that the in-
chambers proceeding at issue in this case was not a "[p ]roper sidebar." Smith, 181
Wash. 2d at 516. Following Smith, the in-chambers proceeding implicated the
defendants' right to a public trial.
CONCLUSION
The in-chambers proceeding in this case was not a sidebar, constituted a
courtroom closure, and occurred without the justification that might be provided by
a Bone-Club analysis. The Court of Appeals was therefore correct in ruling that this
courtroom closure constituted a structural error requiring reversal.
We therefore affirm.
before closing a proceeding, to which the right to an open courtroom attaches, in a criminal
trial.
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No. 93685-4
WE CONCUR:
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