                                                          FiL~0
                                                  COURT OF APPEAL" DIV
                                                   STATE CF V/A5Hi\'i;TCS:

                                                   2013 OCT -7 AH 9:1+7




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



STATE OF WASHINGTON,                                   No. 66202-3-1


                     Respondent,                       DIVISION ONE

             v.



RANDY WHITMAN,                                         UNPUBLISHED


                     Appellant.                        FILED: October 7, 2013




       Cox, J. - In our first decision, filed on March 12, 2012, we rejected Randy

Whitman's claim that the court violated his right to a public trial and affirmed his

conviction for felony violation of a no-contact order. In State v. Sublett, decided

on November 21, 2012, our supreme court rejected the rule we applied in our

first decision and adopted a new test.1 The supreme court then remanded this
matter for reconsideration in light of Sublett.2 Applying the new test, we affirm.
       The facts are set forth in our earlier opinion and need not be repeated

here. The parties, at our direction, have submitted supplemental briefing.




       1 176 Wn.2d 58, 72-73, 292 P.3d 715 (2012).

       2 State v. Whitman, 177 Wn.2d 1004, 300 P.3d 340 (2013).
No. 66202-3-1/2



                              RIGHT TO PUBLIC TRIAL

        Whitman argues that the trial court violated his constitutionally protected

right to a public trial when, in chambers, it concluded that his two cases would be

consolidated for trial.3 Because public access plays a minimal role in the

functioning of the proceeding at issue, we hold there was no violation of his right

to a public trial.

        Not every interaction between the court, counsel, and defendant will

implicate the right to a public trial, or constitute a closure if closed to the public.4
No Washington case law addresses whether a trial court's in-chambers

conference regarding consolidation of two cases implicates a defendant's public

trial right. To decide whether the right attaches to a particular proceeding, the

Sublett court adopted the experience and logic test.5
        "The first part of the test, the experience prong, asks 'whether the place

and process have historically been open to the press and general public.'"6 The
second part of the test, the logic prong, "asks 'whether public access plays a

significant positive role in the functioning of the particular process in question.'"7
"If the answer to both is yes, the public trial right attaches and the Waller or


        3Supplemental Brief of Appellant at 2-5.

        4 Sublett, 176Wn.2dat71.

        5 Id at 72-73 (citing Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8-10,
106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).

        6 jd, at 73 (quoting Press, 478 U.S. at 8).

        7 Id, (quoting Press, 478 U.S. at 8).
No. 66202-3-1/3



Bone-Club factors must be considered before the proceeding may be closed to

the public."8 Whitman has the burden of satisfying the experience and logic test.9
         In Sublett, the supreme court, in a plurality opinion, 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.10 Under the experience
prong, the lead opinion looked to CrR 6.15, which addresses jury instructions.11
The lead opinion explained that this "rule itself advances and protects those

interests underlying the constitutional requirements of open courts with its

directive to put the question, answer, and objections [to jury instructions] in the

record."12 "This rule is the only authority we can find governing this process, so,

historically, we conclude that a proceeding in open courtto discuss the question
                                                              A O


itself and any appropriate answer has not been required."

         Additionally, under the logic prong, the lead opinion concluded that

"[njone ofthe values served by the public trial right is violated underthe

facts of this case":




         8jd

         9 Id at 75, 78; see also In re Yates, 177 Wn.2d 1, 29, 296 P.3d 872 (2013)
("It is Yates's burden to satisfy the experience and logic test, which he fails to
do.").

         10 Sublett, 176 Wn.2d at 70, 77.

         11 id at 75-77.

         12 Id at 77.

         13 Id.
No. 66202-3-1/4



       No witnesses are involved at this stage, no testimony is involved,
       and no risk of perjury exists. The appearance of fairness is
       satisfied by having the question, answer, and any objections placed
       on the record pursuant to CrR 6.15. Similarly, the requirement that
       the answer be in writing serves to remind the prosecutor and judge
       of their responsibility because the writing will become part of the
       public record and subject to public scrutiny and appellate review.[14]
The lead opinion explained that this proceeding was not "so similar to the trial

itself," and it concluded that a closure or public trial right violation did not occur.15
       Here, the in-chambers proceeding addressed whether separate charges

with different cause numbers should be joined and tried together.16 According to
the report of proceedings, the attorneys and Whitman were present for this

proceeding.17
       Under the experience prong, it is not clear whether this type of proceeding

has been historically conducted in an open courtroom. The State points to RCW

10.37.060 and CrR 4.3.1(a), which gives the trial court discretion to join multiple

offenses against a defendant.18 It argues that"[wjhile the State believes that
motions to consolidate are probably generally heard in open court, the court rule

permits the court on its own to order consolidation, so the rules contemplate that

consolidation can occur without a public hearing."19


       14 id

       15 id
       16 Report of Proceedings (Oct.     25, 2010) at 10

       17 Id.

       18 Supplemental Brief of Respondent at 8-9.

       19 Id. at 9.
No. 66202-3-1/5



       In contrast, Whitman cites a supreme court case, State v. Easterlinq. to

support his contention that this type of proceeding has been historically

conducted in an open courtroom.20 There, the court concluded that co-defendant
Anthony Jackson's motion to sever his charge from Ricko Easterling's charge

should not have been heard in a courtroom closed to Easterling and the public.21
The court reasoned that the motion "did pertain to, and was part of, Easterling's

trial," and it "necessarily impact[ed] the posture and fairness of Easterling's

trial."22 It should be noted that this case was decided before Sublett. Thus, the

supreme court did not apply the experience and logic test.

       We conclude that neither of these arguments clearly establishes whether

this type of proceeding—consideration of a motion to consolidate for trial—has

been historically conducted in an open courtroom. But we need not decide that

question. That is because under the logic prong, it is clear that public access to
this proceeding would have played a minimal role in the functioning ofthis type of
proceeding.

       As the State points out, it is unclear how public access would have played
a "significant positive role in the actual consolidation motion proceeding,
particularly where the matter was addressed in open court" both before and after




       20 Supplemental Brief ofAppellant at 4 (citing State v. Easterling, 157
Wn.2d 167, 137 P.3d 825 (2006)).

       21 Easterling, 157 Wn.2d at 177-80.

       22 Id. at 179-80.
No. 66202-3-1/6



the in-chambers proceeding.23 The record reflects that Whitman moved to join
the charges in open court.24 It also shows that the court entered the orderjoining
the charges in open court, following the in-chambers discussion.25
       Further, similar to Sublett, it appears that "[n]one of the values served by

the public trial right is violated under the facts ofthis case."26 During this in-
chambers proceeding, no witnesses or testimony was involved. Consequently,

there was no risk of perjury. Additionally, the appearance of fairness was

satisfied because the court reporter was present and transcribed the in-chambers

proceeding. Moreover, this transcript became part of the public record and is

subject to public scrutiny and appellate review.

       For these reasons, we conclude that Whitman has not established that a

closure or public trial right violation occurred under the logic prong. Because

Whitman fails to establish one of the prongs, the public trial right did not attach to

the in-chambers proceeding.27




       23 Supplemental Brief of Respondent at 9.
       24 Report of Proceedings (Oct. 25, 2011) at 3.
       25 Report of Proceedings (Oct. 26, 2011) at 22.
       26 Sublett, 176Wn.2dat77.

       27 Id. at 73.
No. 66202-3-1/7



      Whitman contends that the public trial right extends to pretrial

proceedings.28 While the right may extend to many pretrial proceedings,29
Whitman fails to show why the right attaches to the proceeding at issue in this

case. Sublett makes clear that is the properfocus of the inquiry.30 This

argument is not helpful.

       Whitman also argues that public access would have played "a significant

positive role in the functioning ofthe particular process in question."31 He asserts
that "[a] motion to consolidate additional counts, in essence, asks the court to

admit additional evidence."32 But, as shown by the proceeding's transcript, the

trial court did not admit any evidence during the in-chambers proceeding. Thus,

it is unclear how public access would have played a "significant positive role" in

this proceeding. For these reasons, this argument is not persuasive.

       Finally, Whitman argues that the State bears the burden of proving that

the closure of the proceedings comports with constitutional requirements.33 But,




       28
            Supplemental Brief of Appellant at 3.

       29 See, e.g., State v. Bone-Club, 128 Wn.2d 254, 257, 906 P.2d 325
(1995) (explaining that the public trial right attaches to a pretrial suppression
hearing).

       30 Sublett, 176 Wn.2d at 72-73.

       31 Supplemental Brief of Appellant at 4.

       32 id at 5.
       33 Supplemental Brief of Appellant at 1-2.
No. 66202-3-1/8



as noted above, the supreme court has squarely placed the burden on petitioners

to satisfy the experience and logic test.34
       We affirm the judgment and sentence.
                                                          £&%k J~

WE CONCUR:




        lk\ v




        34 See Sublett, 176 Wn.2d at 75, 78; In re Yates, 177 Wn.2d at 29.



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