State Of Washington v. Rickey M. Rainey ( 2014 )


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  •     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                            No. 68846-4-1
    Respondent,
    v.
    ORDER GRANTING MOTION
    RICKEY RAINEY,                                  FOR RECONSIDERATION,
    WITHDRAWING AND REPLACING
    Appellant.                       OPINION
    Respondent State of Washington filed a motion for reconsideration of the court's
    opinion filed February 24, 2014. The panel requested and received an answer to the
    motion from appellant pursuant to RAP 12.4(d). After due consideration, the panel has
    determined that the motion should be granted and that the opinion should be withdrawn
    and replaced with an opinion reflecting the changes noted below.
    Now therefore, it is hereby
    ORDERED that on page 2, the sentence reading "During the trial, the court
    admitted a certified copy of Rainey's driving record from the Department of Licensing,
    over Rainey's objection" be deleted and replaced by the sentence "During the trial, the
    court admitted, over Rainey's objection, a letter from a records custodian saying that
    Rainey's driving privilege had been suspended."
    It is further
    ORDERED that on page 13, the sentence reading "Consistent with the holding in
    Jasper, the certified copy of Rainey's driving record was testimonial hearsay" be deleted
    No. 68846-4-1
    Order Granting Motion for Reconsideration,
    Withdrawing and Replacing Opinion
    and replaced by the sentence "Consistent with the holding in Jasper, the document
    stating that Rainey's license was suspended was testimonial hearsay."
    It is further
    ORDERED that the opinion filed February 24, 2014 is hereby withdrawn and
    shall be replaced by an opinion reflecting said changes.
    Dated this 1y day of /fffi '            2014.
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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION ONE
    STATE OF WASHINGTON,                             No. 68846-4-
    Respondent,
    v.
    RICKEY MITCHELL RAINEY,                          PUBLISHED OPINION
    Appellant.                 FILED: April 28, 2014
    Verellen, A.C.J. — During a hearing on Rickey Rainey's motion for a new trial,
    the trial court closed the courtroom, conducted an in camera review, and concluded that
    a witness could assert her Fifth Amendment privilege against self-incrimination. The
    witness did not take the stand or personally assert the privilege in open court before the
    in camera proceeding occurred and the trial court did not conduct a Bone-Club analysis
    before closing the courtroom.1 Under the "experience and logic" test, a witness's
    assertion of the Fifth Amendment privilege against self-incrimination in an evidentiary
    hearing must occur on the witness stand in open court, unless the court has conducted
    a Bone-Club analysis and made suitable findings. Because that did not happen here,
    both Rainey's right to a public trial and the public's right to open proceedings were
    violated and Rainey is entitled to a new hearing on his motion for a new trial.
    State v. Bone-Club. 
    128 Wash. 2d 254
    , 
    906 P.2d 325
    (1995).
    No. 68846-4-1/2
    Additionally, as conceded by the State, the admission of certified copies of
    Rainey's driving records at trial violated his Sixth Amendment right to confrontation.
    Therefore, we reverse Rainey's conviction for driving while license suspended (DWLS)
    in the third degree and remand for a new trial on that count.
    FACTS
    On May 17, 2009, Officer Chris Sylvain with the Snoqualmie Police Department
    observed Rickey Rainey driving Rainey's mother's truck. He also observed a female
    passenger in the truck. He checked Rainey's driving records and discovered that
    Rainey's driver's license was suspended. Officer Sylvain attempted to pull Rainey over,
    but Rainey led Officer Sylvain on a high speed chase back to Rainey's mother's home.
    When officers approached the home, the truck was parked and Fallon Mayhew, the
    passenger, was sitting in the front yard. Mayhew was distraught and pointed in the
    direction Rainey ran. She told Officer Sylvain that it was "the scariest ride of her life."2
    The State charged Rainey by amended information with one count of attempting
    to elude a pursuing police vehicle and one count of DWLS in the third degree.
    The State's witnesses included Officer Sylvain and two other responding police
    officers. Mayhew had given a sworn statement to the police but could not be located to
    testify at trial. Rainey did not testify. During the trial, the court admitted, over Rainey's
    objection, a letter from a records custodian saying that Rainey's driving privilege had
    been suspended. A jury convicted Rainey on both counts and returned a special verdict
    that he endangered one or more persons other than himself or the pursuing law
    enforcement officer while eluding a police vehicle.
    2 Report of Proceedings (RP) (Mar. 10, 2010) at 57.
    No. 68846-4-1/3
    Rainey obtained new defense counsel and moved for a new trial on several
    grounds, including that there was newly discovered evidence that he was not driving the
    truck. This new evidence consisted of exculpatory statements made by Mayhew to his
    new defense counsel. At a hearing on the motion, Rainey indicated that he intended to
    call Mayhew as a witness. Concerned that Mayhew's testimony might be self-
    incriminating, the trial court appointed an attorney to represent Mayhew.
    After consulting with Mayhew, her counsel told the court that he advised her not
    to testify "because there is a possibility of a Fifth Amendment issue."3 In order to make
    "a clear record," the trial court indicated that it would call Mayhew to the stand so that
    her defense counsel could ask her ifshe was planning to assert the privilege.4 Before
    Mayhew took the stand, the State advised the court that it must first determine whether
    Mayhew has a Fifth Amendment privilege, and explained that such a determination
    usually takes place in a closed hearing. The court asked Rainey's counsel if she had
    any objection to that procedure. She admitted that she was not sure of the appropriate
    procedure, but deferred to Mayhew's attorney's decision on the matter. Without
    considering the Bone-Club factors on the record, the trial court closed the courtroom for
    an in camera review of Mayhew's right to assert the privilege.5
    3RP(Aug. 27, 2010) at 60.
    4 Id, at 61.
    5 The Bone-Club factors are:
    "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.
    No. 68846-4-1/4
    After the closed hearing, the trial court reopened the courtroom, and held that
    Mayhew did have a Fifth Amendment privilege and that she chose to exercise that
    privilege and not testify. Mayhew never took the stand or claimed the privilege herself
    in open court. The trial court granted the State's motion to strike Rainey's exculpatory
    evidence theory for a new trial and denied his other theories for a new trial.
    Rainey appeals.
    DISCUSSION
    Right to a Public Trial and Open Proceedings
    Rainey argues that Mayhew's failure to personally assert her Fifth Amendment
    privilege against self-incrimination in open court at a hearing on his motion for a new
    trial violated the public's right to open proceedings and his right to a public trial.6 We
    agree, and remand for a new hearing.
    The appellant bears the burden of establishing a public trial right violation.7
    Whether such a violation exists is a question of law this court reviews de novo.8 A
    " 3. The proposed method for curtailing open access must be the least
    restrictive means available for protecting the threatened interests.
    "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."
    
    Bone-Club. 128 Wash. 2d at 258-59
    (alteration in original) (quoting Allied Daily
    Newspapers of Wash, v. Eikenberrv. 
    121 Wash. 2d 205
    , 210-11, 
    848 P.2d 1258
    (1993)).
    6 The State argues that we should decline to reach this argument because it was
    raised by Rainey for the first time during oral argument. Rainey identified this issue in
    his opening brief but did not support it with any specific persuasive argument or citation
    to authority. Because the right to a public trial implicates the fundamental fairness of a
    criminal proceeding, we reach the merits of this argument.
    7 State v. Sublett. 
    176 Wash. 2d 58
    , 75, 
    292 P.3d 715
    (2012) (plurality opinion).
    8 State v. Momah. 
    167 Wash. 2d 140
    , 147, 
    217 P.3d 321
    (2009).
    No. 68846-4-1/5
    criminal defendant has a right to a public trial under the federal and state constitutions.9
    The public has a complementary right to open proceedings under the federal and state
    constitutions.10 But these rights are not absolute, and a trial court may close part of a
    trial to which the public trial right applies after applying the Bone-Club guidelines and
    making specific findings on the record justifying a closure.11
    To determine whether the public trial right applies, the Supreme Court in State v.
    Sublett adopted an experience and logic test.12 This test applies to the defendant's right
    to a public trial and the public's right to open proceedings.13 First, the experience prong
    asks "'whether the place and process have historically been open to the press and
    general public.'"14 Next, the logic prong asks "'whether public access plays a significant
    positive role in the functioning of the particular process in question.'"15 If the answer to
    9 State v. Lormor. 
    172 Wash. 2d 85
    , 90-91, 
    257 P.3d 624
    (2011); U.S. Const.
    amend. VI; Wash. Const, art. I, § 22.
    10 |a\ at 91; U.S. Const, amend. I; Wash. Const, art. I, § 10.
    11 
    Momah. 167 Wash. 2d at 148
    .
    12
    176 Wash. 2d 58
    , 72-73, 
    292 P.3d 715
    (2012) (plurality opinion). The lead
    opinion in Sublett was a plurality opinion by four justices. Justice Madsen's concurrence
    agreed with both the lead opinion's conclusion that not all trial proceedings closed to the
    public implicate the public trial right and its adoption and application of the experience
    and logic test. 
    Id. at 92-94
    (Madsen, C.J., concurring). Therefore, a majority of the
    court supports these holdings.
    13 State v. Burdette. 178Wn.App. 183, 191-92, 
    313 P.3d 1235
    (2013) ("the plain
    force of Sublett is that we use the experience and logic test to determine whether an
    event triggers the protections of either set of constitutional rights securing open trials")
    14 
    Sublett. 176 Wash. 2d at 73
    (quoting Press-Enter. Co. v. Superior Court. 
    478 U.S. 1
    , 8, 
    106 S. Ct. 2735
    , 92 L Ed. 2d 1 (1986)).
    15 id (quoting Press-Enter. 
    Co.. 478 U.S. at 8
    ).
    No. 68846-4-1/6
    both the experience and logic prongs is yes, the public trial right attaches and the trial
    court must analyze the proposed closure using the Bone-Club factors.16
    In Sublett. our Supreme Court concluded that the public trial right did not attach
    to an in-chambers proceeding where the trial court answered a jury question with only
    counsel present.17 Under the experience prong, the lead opinion looked to CrR 6.15,
    which addresses jury instructions and directs that the question, answer, and objections
    to jury instructions be included in the record.18 The lead opinion explained that this rule
    "advances and protects those interests underlying the constitutional requirements of
    open courts."19 Furthermore, observing that the court rule is the only authority
    governing jury questions, the court concluded that a proceeding in open court to discuss
    the question itself and any appropriate answer has not been required historically.20
    Moving to the logic prong, the lead opinion concluded that none of the values
    served by the public trial right were violated by an in-chambers review of a jury question
    because "[n]o witnesses are involved at this stage, no testimony is involved, and no risk
    of perjury exists."21 It noted that CrR 6.15's requirement that the question, answer, and
    any objections be placed on the record and subject to public scrutiny and appellate
    review satisfied the appearance of fairness and reminded the prosecutor and judge of
    their responsibility because the writing becomes part of the public record.22 The lead
    16 id
    17 id at 70,     77.
    18 id    at 75-77.
    19 id   at 77.
    20 id
    21 id
    22 
    Id. No. 68846-4-1/7
    opinion explained that this proceeding was not "so similar to the trial itself," and
    concluded that no closure or public trial right violation occurred.23
    As a matter of first impression, Rainey argues that both experience and logic
    dictate that a witness must assert her Fifth Amendment privilege against self-
    incrimination in open court after being called to the stand. We agree.
    As to the experience prong, State v. Lougin provides a clear statement of the
    procedure to be followed when a witness wishes to assert the Fifth Amendment
    privilege against self-incrimination.24 There, Lougin planned to call a codefendant to
    testify that Lougin was not involved in the crime.25 Before trial, the trial court ruled that if
    the codefendant testified, she would be subject to complete cross-examination on
    anything to do with the underlying incident.26 Based on this ruling, the codefendant told
    the court that she did not intend to testify.27
    During opening statements, Lougin's attorney told the jury that the codefendant
    would testify.28 The trial court then instructed the jury that, due to certain legal rules, the
    codefendant would not testify and that her nonappearance should not be considered in
    arriving at their verdict.29 Lougin was convicted and on appeal argued that the trial court
    23 id
    24 
    50 Wash. App. 376
    , 749P.2d 173(1988)
    25 id at 378.
    26 id
    27 id
    28 id
    29 
    Id. No. 68846-4-1/8
    erred in allowing the codefendant to make a blanket refusal to testify.30 This court
    agreed and explained how the trial court should have proceeded:
    Lougin suggests that the proper procedure would have been to
    allow him to call [his codefendant] and question her. If at any point she
    claimed a privilege against answering a question, the trial court could rule
    on her claim as it related to the specific question asked. Lougin is correct
    that [the codefendant] had a right to invoke the Fifth Amendment privilege
    in response to specific questions and that because she was not a
    defendant in Lougin's trial, she had no right to decline to testify altogether.
    It is impossible to know what [his codefendant] would have done if
    confronted with specific substantive questions. Conceivably, if properly
    advised as to the scope of her privilege, she could have testified on
    Lougin's behalf and still have avoided incriminating herself. Therefore, the
    trial court erred in not requiring [the codefendant] to take the stand and
    then claim the privilege as to specific questions.[31]
    This result is consistent with other Washington cases.32 Therefore, our historical
    experience dictates that a witness claiming the Fifth Amendment privilege against self-
    incrimination in an evidentiary hearing must assert the privilege on the stand in open
    court.33
    30 id at 379, 381.
    31 
    Id. at 382.
    32 See State v. Parker. 
    79 Wash. 2d 326
    , 329-33, 
    485 P.2d 60
    (1971) (witness
    properly asserted the privilege after he was called to the stand and answered more than
    25 preliminary questions); Eastham v. Arndt. 
    28 Wash. App. 524
    , 525-26, 
    624 P.2d 1159
    (1981) (in proceedings supplemental to a judgment, appellant claimed the privilege
    under oath and refused to answer questions regarding his assets); Seventh Elect
    Church in Israel v. Rogers. 
    34 Wash. App. 105
    , 107-08, 
    660 P.2d 280
    (1983) (in
    proceedings supplemental to a judgment, appellant took the stand and claimed the
    privilege in response to specific questions); State v. White. 
    152 Wash. App. 173
    , 177, 
    215 P.3d 251
    (2009) (witness immediately pleaded the Fifth Amendment after being called
    to testify by the State).
    33 Rainey's argument focuses on the assertion of the privilege in an evidentiary
    hearing and not in other contexts. Other jurisdictions have concluded, and Rainey
    concedes, that there are circumstances where an attorney may assert the privilege on
    behalf of a witness, typically when there is a hearing on written materials without formal
    testimony. See United States v. Judson. 
    322 F.2d 460
    (9th Cir. 1963) (attorney retained
    by income taxpayers under investigation by the internal revenue service had standing to
    8
    No. 68846-4-1/9
    Moreover, logic requires that the assertion of the privilege happen in open court
    because it implicates the values served by the public trial right. In State v. Wise.
    decided the same day as Sublett. our Supreme Court explained:
    A public trial is a core safeguard in our system of justice. Be it
    through members of the media, victims, the family or friends of a party, or
    passersby, the public can keep watch over the administration of justice
    when the courtroom is open. The open and public judicial process helps
    assure fair trials. It deters perjury and other misconduct by participants in
    a trial. It tempers biases and undue partiality. The public nature of trials is
    a check on the judicial system, which the public entrusts to adjudicate and
    render decisions of the highest import. It provides for accountability and
    transparency, assuring that whatever transpires in court will not be secret
    or unscrutinized. And openness allows the public to see, firsthand, justice
    done in its communities. t34l
    Assertion of the privilege against self-incrimination often occurs in a trial or trial
    like setting during the taking of witness testimony where the risk of perjury exists.
    Requiring a witness claiming the Fifth Amendment privilege to do so openly and in full
    view of the public subjects the witness to public scrutiny and satisfies the appearance of
    fairness that would be absent if the assertion could take place behind closed doors. It
    prevents abuse of the privilege by all participants by holding witnesses accountable for
    their use of the privilege while also tempering bias and partiality. Therefore, under the
    experience and logic test, the public trial right attaches to a witness's assertion of her
    Fifth Amendment privilege against self-incrimination in an evidentiary hearing.
    invoke taxpayers' privilege against self-incrimination and to suppress as against
    government's subpoena, cancelled checks and bank statements which taxpayers had
    turned over to him at his request); In re Marcario. 
    2 Cal. 3d 329
    , 
    466 P.2d 679
    , 85 Cal.
    Rptr. 135 (1970) (defendant's attorney had standing to assert the privilege against self-
    incrimination on the defendant's behalf to restrain the enforcement of a discovery
    order). But, such exceptions do not alter the well established historical experience in
    Washington that a witness claiming the privilege in an evidentiary hearing must assert
    that privilege under oath in open court.
    34176Wn.2d 1, 5-6, 288 P.3d 1113(2012).
    No. 68846-4-1/10
    Here, Mayhew did not take the stand, was not sworn, and did not assert the
    privilege against self-incrimination in open court, as the experience and logic test
    requires. Rather, Mayhew's attorney told the court that she would assert the privilege
    and the trial court closed the courtroom without considering the Bone-Club factors on
    the record in open court. Therefore, both Rainey's right to a public trial and the public's
    right to open proceedings were violated.35
    Having determined that Rainey's public trial rights were violated during this
    posttrial hearing, the next question is what remedy is appropriate. Without citation to
    any authority applicable to a posttrial hearing, Rainey argues that the violation of his
    public trial rights during this posttrial hearing was a structural error and the proper
    remedy is reversal of his conviction, not remand for a new public hearing.36 We
    disagree. In Wise, our Supreme Court stated that "[w]here a public trial right violation
    occurs at a suppression hearing or some other easily separable part of a trial, remand
    for a public hearing may be appropriate."37 This is consistent with United States
    Supreme Court authority.38 Our Supreme Court concluded that Wise was entitled to a
    35 The State argues that Mayhew's attorney properly asserted the privilege for
    her in open court. It cites United States v. Judson. 
    322 F.2d 460
    (9th Cir. 1963) and
    Olson v. Haas. 
    43 Wash. App. 484
    , 
    718 P.2d 1
    (1986) in support of this argument. Both
    cases involved an attorney's assertion of the privilege against self-incrimination on
    behalf of his client in response to an order for the production of documents. Because
    those cases do not consider the process required when a witness wishes to assert the
    privilege during her testimony in court, they do not require a different result.
    36 See State v. Young. 
    89 Wash. 2d 613
    . 625, 
    574 P.2d 1171
    (1978) (courts may
    assume that where no authority is cited, counsel has found none after search).
    37 Wise. 176Wn.2dat19.
    38 See Waller v. Georgia, 
    467 U.S. 39
    , 50, 
    104 S. Ct. 2210
    , 
    81 L. Ed. 2d 31
    (1984) (holding that the appropriate remedy for a public trial violation was a new
    suppression hearing, not a new trial because "the remedy should be appropriate to the
    violation").
    10
    No. 68846-4-1/11
    new trial because the violation occurred during voir dire and it was "impossible to
    speculate as to the impact of that on Wise's trial."39 Here, the public trial violation
    occurred during a posttrial hearing on Rainey's motion for a new trial. A motion for a
    new trial is, by definition, an attempt to unwind the results of a fully completed trial. It is
    necessarily separate from the trial itself and could not have tainted the original trial.
    Because there is no risk that the courtroom closure in the posttrial hearing impacted
    Rainey's trial, a new trial is not necessary and remand for a new hearing on the motion
    for a new trial is the appropriate remedy.
    Sixth Amendment Right to Confrontation
    Rainey argues, and the State concedes, that the admission of certified copies of
    Rainey's driving records violated his Sixth Amendment right to confrontation, as
    established in State v. Jasper.40 We accept the State's concession.
    We review an alleged violation of the confrontation clause de novo.41 When a
    violation has occurred, we engage in a harmless error analysis under the constitutional
    standard.42 Constitutional error is presumed to be prejudicial, and the State bears the
    burden of proving that the error was harmless.43
    The Sixth Amendment's confrontation clause confers upon the accused the right
    "to be confronted with the witnesses against him."44 In Jasper, the Washington State
    39 Wise. 176Wn.2dat19.
    40 
    174 Wash. 2d 96
    , 
    271 P.3d 876
    (2012).
    41 id at 108.
    42 id
    43 State v. Lynch. 
    178 Wash. 2d 487
    , 494, 
    309 P.3d 482
    (2013).
    44 U.S. Const, amend. VI.
    11
    No. 68846-4-1/12
    Supreme Court considered whether certified copies of driving records were testimonial
    for the purposes of the confrontation clause when admitted to show that a defendant's
    license was suspended during a crime.45 It held that such records are plainly affidavits,
    falling within the core class of testimonial statements described by the United States
    Supreme Court in Crawford v. Washington46 and Melendez-Diaz v. Massachusetts47
    because they are created and used solely for establishing critical facts at trial.48 The
    court also held that when evidence is admitted at trial and later held to violate the
    confrontation clause, the proper remedy is to remand for retrial.49
    Here, the trial court admitted a certified copy of Rainey's driving record without
    affording him the opportunity to cross-examine the witness who prepared the record.
    The records included a document stating that, as of May 17, 2009, Rainey's driver's
    license was "[suspended in the third degree," a letter to Rainey notifying him that his
    license would be suspended on May 7, 2009 for failure to respond, appear, pay, or
    comply with a citation, and a copy of Rainey's driver's license.50 The document stating
    that Rainey's license was suspended is substantially similar to the records improperly
    admitted in Jasper. The State concedes that the error was not harmless because no
    other evidence shows that Rainey's license was suspended for a reason that supports a
    conviction for third degree DWLS.
    45 
    Jasper. 174 Wash. 2d at 104
    , 115.
    46 
    541 U.S. 36
    , 
    124 S. Ct. 1354
    , 
    158 L. Ed. 2d 177
    (2004).
    47 
    557 U.S. 305
    , 
    129 S. Ct. 2527
    , 
    174 L. Ed. 2d 314
    (2009).
    48 
    Jasper. 174 Wash. 2d at 115
    .
    49 id at 120.
    50 Ex. 2.
    12
    No. 68846-4-1/13
    The State's concession is well taken. Consistent with the holding in Jasper, the
    document stating that Rainey's license was suspended was testimonial hearsay.
    Therefore, the trial court erred in admitting the evidence, that error was not harmless,
    and the proper remedy is to vacate Rainey's third degree DWLS conviction and remand
    for a new trial on that count.
    We reverse Rainey's conviction for DWLS in the third degree and remand for a
    new trial on that count. We affirm Rainey's conviction for attempting to elude a pursuing
    police vehicle, but remand for a new hearing on his motion for a new trial.
    WE CONCUR:
    j^uds*. y
    nr
    13