State Of Washington v. Maximo Bernal-rosas ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, No. 73553-5-1 r-n O-""•'
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Respondent, DIVISION ONE
v.
MAXIMO BERNAL-ROSAS, UNPUBLISHED
Appellant. FILED: September 26, 2016
COX, J. - A jury found Maximo Bernal-Rosas guilty of attempting to elude
a pursuing police vehicle and driving under the influence. On appeal, he
contends that the trial court violated his public trial rights by conducting a sidebar
to address defense counsel's objection during closing argument. But the
challenged sidebar was analogous to those addressed by our supreme court in
State v. Smith,1 and Bernal-Rosas has failed to demonstrate that the sidebar
implicated public trial rights. Because there was no public trial violation, we
affirm.
The state of Washington charged Bernal-Rosas with attempting to elude a
pursuing police vehicle, taking a motor vehicle without permission in the second
degree, and driving while under the influence (DUI) following an incident in which
he drove off in a police vehicle and crashed into a tree.
At trial, Earl Steele testified that at about 11:00 a.m. on December 25,
2013, he heard someone knocking on the door of his Burlington residence.
181 Wash. 2d 508, 334 P.3d 1049 (2014).
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When Steele opened the door, a man later identified as Bernal-Rosas said that
he had been tied up in his house with his wife and kids and that he had escaped.
Steele let the man inside and called 911. Steele reported that a "distressed" and
possibly injured man had appeared at his house.
Skagit County Sherriffs Deputy Jason Moses responded to the 911 call.
After arriving at Steele's house, Moses spoke to Bernal-Rosas, who appeared
"paranoid [and] fidgety" and was moving constantly. Bernal-Rosas repeatedly
told Moses that he had been tied up and mentioned witches and black magic.
Moses also smelled the odor of alcohol on Bernal-Rosas, who acknowledged he
had "a lot" to drink. At some point, Bernal-Rosas' wife and uncle arrived at the
house and spoke with Moses.
Meliton Bernal, Bernal-Rosas' uncle, testified that Bernal-Rosas started
drinking on the afternoon of Christmas Eve and continued drinking during an
evening party. In the early morning hours of Christmas Day, Bernal-Rosas
suddenly became scared and started acting abnormally. After Bernal-Rosas
kicked a hole in a door and broke a lamp, Bernal and Bernal-Rosas' wife tied his
hands and feet. At around 5:00 a.m., Bernal-Rosas was able to free himself and
leave the house. Bernal did not see Bernal-Rosas again until he appeared at
Steele's house.
After a second deputy arrived at Steele's house, Moses placed Bernal-
Rosas into the back seat of his patrol car. Moses told Bernal-Rosas that he was
No. 73553-5-1/3
not under arrest and was not going to jail. Bernal-Rosas asked to be taken to
jail. Moses eventually decided to transport Bernal-Rosas to a hospital for a
mental evaluation.
After about 15 minutes in the patrol car, Bernal-Rosas managed to crawl
into the front seat. Moses, who stood nearby speaking with Bernal-Rosas'
relatives, heard his patrol car shift into gear. Moses then saw "the bumper drop
suddenly, as if it was high acceleration," and Bernal-Rosas drove off. During the
ensuing chase, Washington State Patrol Trooper Anthony Pasternak pursued
Bernal-Rosas at speeds up to 95 mph in a 35 mph zone.
Bernal-Rosas eventually lost control of the car during a turn, plowed
through a picket fence, and crashed into a tree, causing a small car fire.
Pasternak pulled Bernal-Rosas out of the car and, with some difficulty,
handcuffed him. After turning Bernal-Rosas over to the sheriff's deputies,
Pasternak put out the car fire.
Bernal-Rosas continued to struggle and thrash around as the officers
attempted to restrain him. At one point, Bernal-Rosas began "gurgling and
grunting and making some very abnormal noises," raising concerns that he was
having a seizure. Bernal-Rosas calmed down after officers restrained him on a
backboard for transport to the hospital.
After Pasternak observed Bernal-Rosas at the hospital and conducted a
horizontal gaze nystagmus test, he concluded that Bernal-Rosas was impaired
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from the consumption of alcohol. A test of Bernal-Rosas' blood showed an
alcohol level of .084 at the time of the draw. The State's forensic toxicologist
estimated that based on the appropriate "burnoff rate," Bernal-Rosas would have
consumed 25 standard drinks during the preceding 22 hours to reach that alcohol
level.
Doctors at the hospital admitted Bernal-Rosas after determining that his
symptoms, including mental confusion, were consistent with sepsis arising from
an infection. After reviewing Bernal-Rosas' medical record, Dr. Anthony Eusanio,
a psychologist, testified that at the time of the crash, Bernal-Rosas was suffering
from sepsis-related delirium resulting from an upper-respiratory infection and
fever. Dr. Eusanio concluded that the delirium, which was exacerbated by
alcohol consumption, prevented Bernal-Rosas from understanding right from
wrong at the time he drove off in the patrol car.
Bernal-Rosas testified that he did not remember very much about the
charged incidents. He maintained that he had not consumed enough alcohol on
Christmas Eve to become drunk. He claimed he initially felt "normal" after
returning from the Christmas Eve party. At some point, however, there was a
"change," and he recalled becoming nervous and afraid of his wife and uncle. He
felt that a witch had cast "evil spirits" on his relatives. At some point, Bernal-
Rosas ran to a neighbor's house to ask for help because his family had been
kidnapped.
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Bernal-Rosas also recalled becoming increasingly anxious and desperate
while he was sitting in the patrol car. Bernal-Rosas felt he needed to escape and
eventually crawled through a small window into the front seat. After removing the
ammunition from the guns in the front seat, Bernal-Rosas drove off, hoping to
reach the house of a different uncle.
The trial court instructed the jury on the defense of not guilty by reason of
insanity. The jury found Bernal-Rosas not guilty by reason of insanity of the
taking charge, but guilty as charged of attempting to elude and DUI. The court
sentenced Bernal-Rosas to 3 months in jail on the attempting to elude count and
364 days on the DUI count, with 363 days suspended.
PUBLIC TRIAL
Bernal-Rosas contends the trial court violated his right to a public trial
when it conducted a sidebar conference following defense counsel's objection
during closing argument. Bernal-Rosas' primary defense to the charged offenses
was temporary insanity resulting from a sepsis-associated delirium. The trial
court instructed the jury that Bernal-Rosas bore the burden of proving the
defense of insanity by a preponderance of the evidence.
During closing argument, the prosecutor first discussed at length the
evidence supporting the State's case. The prosecutor then commented on
Bernal-Rosas' defense:
[Prosecutor]: That's when it comes to the preponderance of
evidence. Did they convince you that it's more likely true than not
that the alcohol - or the sepsis was the cause of these deliriums?
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Or was it the alcohol, which was reaching its highest level, and
compute - and you can compute it back to what it would have
been, about that time, using those figures that we gave you. It was
that's what was causing this defendant to go off the rails. That's
their burden, to show you that that happened.
[Defense counsel]: Objection.
THE COURT: Approach.
(BENCH CONFERENCE OFF THE RECORD.)
[Prosecutor]: Just to be clear, the state is not saying that -- that the
defense has the burden of proof on anything, other than when they
claim insanity, they have the burden of proof preponderance of the
evidence. And if I -- if their testimony is that it was caused by
sepsis, then they have to prove that. We think what the - the
evidence shows that it is the alcohol. That's all.
So in closing, we have to prove beyond a reasonable doubt that
this car was stolen, and I went through the elements, and I think
we've done that. We have to prove that this car was driven while
he was - the defendant was under the influence, and I believe
we've shown, the state -- we believe the evidence shows that he
was.[2J
Bernal-Rosas claims that because the sidebar was unrecorded and
unmemorialized, it implicated his public trial rights and therefore constituted an
unjustified closure of the proceedings. We disagree.
Both the state and federal constitutions guarantee a defendant the right to
a public trial.3 In general, the right to a public trial requires that trial proceedings
be held in open court unless the trial court finds that a closure of the courtroom is
2 Report of Proceedings (January 16, 2015) at 29-31.
3 See State v. Wise. 176Wn.2d 1,9, 288 P.3d 1113 (2012); Wash. Const, art. I,
§ 22; U.S. CONST, amend. VI.
No. 73553-5-1/7
justified after considering the five-factor test set forth in State v. Bone-Club.4 An
alleged violation of the right to a public trial is a question of law that we review de
novo.5
Our supreme court has adopted a three-step framework for analyzing
alleged violations of the public trial right:
First, we ask if the public trial right attaches to the proceeding at
issue. Second, if the right attaches we ask if the courtroom was
closed. And, third, we ask ifthe closure was justified.161
"But not every interaction between the court, counsel, and defendants will
implicate the right to a public trial or constitute a closure if closed to the public."7
In determining whether a proceeding implicates the public trial right, courts utilize
the two-part "experience and logic" test.8 The experience prong "asks 'whether
the place and process have historically been open to the press and general
public.'"9 The logic prong "asks 'whether public access plays a significant
positive role in the functioning of the particular process in question.'"10 Only if
both questions are answered in the affirmative is the public trial right implicated.11
4128 Wash. 2d 254, 258-59, 906 P.2d 325 (1995).
5 State v. Sublett, 176 Wash. 2d 58, 70, 292 P.3d 715 (2012).
6 State v. Love, 183 Wash. 2d 598, 605, 354 P.3d 841 (2015) (citing State v. Smith.
181 Wash. 2d 508, 513-14, 334 P.3d 1049 (2014)).
7 Sublett. 176Wn.2dat71.
8 id at 72-75.
9 Id. at 73 (quoting Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 106 S.
Ct. 2735, 92 L Ed. 2d 1 (1986)).
10 Id (quoting Press-Enterprise Co., 478 U.S. at 8).
11 Id.
No. 73553-5-1/8
The defendant bears the burden of demonstrating that the challenged process
implicates the public trial right.12
In State v. Smith,13 the defendant argued that multiple sidebar discussions
following evidentiary objections during trial violated his public trial rights. After
applying the experience and logic test, our supreme court concluded that
"reasonable and traditional sidebars used to avoid interruption of a trial do not
implicate the public trial right."14
In analyzing the experience prong, the Smith court noted that sidebar
conferences have historically occurred outside the view of the public.15 The court
stressed the "practical difficulties" that would result from extending public trial
jurisprudence to sidebar conferences on evidence without any resulting public
benefit:
In the case of sidebar discussions, issues arising with the jury
present would always require interrupting trial to send the jury to
the jury room, often located some distance from the courtroom,
thereby occasioning long delays every time the court wishes to
caution counsel or hear more than a simple "objection, Your
Honor." This would do nothing to make the trial more fair, to foster
public trust, or to serve as a check on judges by way of public
scrutiny.'161
12 Love. 183Wn.2dat605.
13 Smith, 181 Wash. 2d 508, 334 P.3d 1049(2014).
14 id at 521.
15 jd at 515.
16 id (quoting In re Detention of Ticeson, 159 Wash. App. 374, 386 n.38, 246 P.3d
550(2011)).
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No. 73553-5-1/9
The Smith court also concluded that the logic prong weighed against
implicating a public trial right. The court again explained the problems
associated with "forcing the jury in and out of the courtroom repeatedly whenever
an objection is made."17 The court further concluded that, more importantly,
evidentiary rulings during traditional sidebars "do not invoke any of the concerns
the public trial right is meant to address regarding perjury, transparency, or the
appearance of fairness."18
Although Smith involved only evidentiary sidebars during trial, the court
recognized that the analysis could apply to other traditional sidebars:
We caution that merely characterizing something as a "sidebar"
does not make it so. To avoid implicating the public trial right,
sidebars must be limited in content to their traditional subject areas,
should be done only to avoid disrupting the flow of trial, and must
either be on the record or be promptly memorialized in the
record.[19]
The sidebar at issue here appears only to have addressed a single
speaking objection during closing argument. Defense counsel's objection was
clearly directed to the prosecutor's comments on burden of proof, a common
subject of objections during closing argument. Such objections routinely require
the trial court to resolve legal, evidentiary, and instructional issues. The
"practical difficulties"20 in managing juries during evidentiary sidebars apply
17 ]d at 518.
18 id
19idat516n.10.
20 id at 516.
No. 73553-5-1/10
equally to sidebars during closing arguments that are frequently contentious in
light of the parties' wide latitude to draw inferences from the evidence. Nothing in
the record suggest that the sidebar here was anything other than a brief
interruption, intended to avoid disrupting the flow of the parties' arguments as
much as possible.
Bernal-Rosas contends the sidebar violated his public trial rights because
the discussion was not recorded or contemporaneously memorialized. The
Smith court explained that recording or memorializing the discussion is a key
factor in determining whether a sidebar implicates the public trial right. Placing
sidebar discussions on the record not only permits the public to determine
precisely what happened during the sidebar, but also serves to negate any
concern about secrecy.21
As Bernal-Rosas acknowledges, however, the record clearly shows that
defense counsel's objection was specifically directed to the prosecutor's
reference to the burden of proof. After the brief sidebar, the prosecutor resumed
closing argument by immediately referring to the prior comment that had
triggered the objection and clarifying both the nature and scope of the State's
burden of proof and the defense's burden of proof on the insanity defense.
Defense counsel raised no further objection. So we must assume that the
prosecutor fully complied with the court's decision made during the sidebar.
21 id at 518.
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No. 73553-5-1/11
The record indicates the trial court recognized the prosecutor's reference
to burden of proof might not be completely clear and acted quickly to direct the
prosecutor to negate any potential confusion. On this record, the nature of
defense counsel's objection and the trial court's resolution of the objection are
clear. Neither recording nor memorialization of the side bar was necessary to
avoid the "concerns the public trial right is meant to address regarding perjury,
transparency, or the appearance of fairness."22
Bernal-Rosas also contends that the experience and logic test implicated
his public trial rights because defense counsel's objection involved "flagrant"
prosecutorial misconduct. He argues that objections involving such misconduct
raise concerns about fairness and the appearance of fairness in criminal trials
that cannot be resolved in secret. But Bernal-Rosas cites no relevant authority to
support such an analysis. More importantly, although the prosecutor's reference
to the burden of proof was possibly confusing, Bernal-Rosas has failed to identify
anything in the record suggesting flagrant misconduct. And we see no such
misconduct in our careful review of the record. Nor has he demonstrated that the
routine sidebar during closing argument here was fundamentally different than
sidebars involving evidentiary objections.
We conclude that the challenged sidebar conference was analogous to
the evidentiary sidebars in Smith. The Smith analysis is therefore controlling,
22 id
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No. 73553-5-1/12
and the single sidebar during closing did not implicate Bernal-Rosas' public trial
rights. Because the sidebar did not implicate Bernal-Rosas' public trial rights, we
need not address whether there was a closure or whether any closure was
justified.23
We affirm the judgment and sentence.
Czk3.
WE CONCUR:
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23 Id at 519 (if the court determines that a process does not implicate the public
trial right, it need not address the remaining steps ofthe analytical framework).
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