      IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 71217-9-1                    ^
                      Respondent,
       v.                                         DIVISION ONE


DAIN ANDREW MCGILL,                               UNPUBLISHED OPINION

                     Appellant.                   FILED: June 15, 2015
                                                                                    CH




       Leach, J. — Dain McGill appeals his conviction of first degree robbery. He

contends that a sidebar conference to address the State's objection during

defense closing argument violated his right to a public trial.          Following our

Supreme Court's decision in State v. Smith,1 we hold that because the sidebar

did not implicate McGill's right to a public trial, no violation occurred. We affirm.

                                     Background

       During closing argument in McGill's jury trial for robbery in the first degree,

defense counsel discussed the elements of the charged offense:

               This is an adversarial process, right? [The prosecutor] and I
       have bumped heads the entire time. We object to each other. We
       argue. But in an adversarial process, especially a situation like this,
       it's easiest for you if I tell what I agree with. What do I agree with?
       I agree that this occurred on June 11th. Do I agree it occurred in
       Edmonds, Washington? Yes. Snohomish County has jurisdiction.
       Do I agree that Ms. Stewart was robbed on that day? I do.

       The prosecutor objected: "Judge, I'm sorry, I believe this is approaching

the personal comment, person belief is going on.          Maybe I should state that


       1 181 Wn.2d 508, 521, 334 P.3d 1049 (2014).
No. 71217-9-1/2



outside the jury."    The court told counsel, "Why don't you approach," and

conducted an off-the-record sidebar discussion with counsel. After the sidebar,

the court did not put its ruling or the substance of the conference on the record,

saying only, "All right. We're ready." Defense counsel then continued closing

argument. The State made no further objection.

       A jury convicted McGill as charged. McGill appeals.

                                       Analysis

       McGill contends that the trial court violated his right to a public trial by

conducting a "closed" sidebar conference to consider the State's objection to

defense counsel's closing argument. An alleged violation of the right to a public

trial presents a question of law this court reviews de novo.2 The Washington and

United States Constitutions guarantee the right of a criminal defendant to a public

trial.3 Article I, section 10 of the Washington Constitution contains an additional

guaranty of open court proceedings: "Justice in all cases shall be administered

openly, and without unnecessary delay."          There is a strong presumption that

courts are to be open at all stages of trial.4




       2 State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).
       3 U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury."); Wash. Const.
art. I, § 22 ("In criminal prosecutions the accused shall have the right to appear
and defend in person, or by counsel, [and] to have a speedy public trial by an
impartial jury.").
       4 Sublett, 176Wn.2dat70.
No. 71217-9-1/3



       A party who proposes closure of a proceeding must show "an overriding

interest based on findings that closure is essential to preserve higher values and

narrowly tailored to serve that interest."5 In State v. Bone-Club,6 the Washington

Supreme Court set forth a five-factor test courts must use to evaluate the

constitutionality of a proposed closure.        Our Supreme Court has held that a

public trial claim may be raised for the first time on appeal7 and that a violation is

generally a structural error requiring reversal.8

       "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."9


       5 State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 (2009); see also
Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
       6 128 Wn.2d 254, 906 P.2d 325 (1995). In Bone-Club, the court held that
a court must consider the following factors on the record:
             "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.
             "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."
128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers v.
Eikenberrv. 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
       7 State v. Nionqe. 181 Wn.2d 546, 554, 334 P.3d 1068, cert, denied. 135
S. Ct. 880 (2014); State v. Wise. 176Wn.2d 1, 15-16, 288 P.3d 1113(2012).
       8 Nionqe. 181 Wn.2d at 554; Wise. 176 Wn.2d at 13-14; State v. Paumier.
176 Wn.2d 29, 35, 288 P.3d 1126 (2012).
       9 Sublett. 176Wn.2dat71.


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Before deciding if a trial court violated a defendant's right to a public trial, a

reviewing court must determine if "the proceeding at issue implicates the public

trial right, thereby constituting a closure at all."10 In State v. Sublett,11 the court

adopted the "experience and logic" test articulated by the United States Supreme

Court in Press-Enterprise Co. v. Superior Court12 to determine if a particular

process must remain open to the public absent a Bone-Club analysis.               The

"experience" prong of this test asks '"whether the place and process have

historically been open to the press and general public.'"13 "The logic prong asks

'whether public access plays a significant positive role in the functioning of the

particular process in question.'"14 If the answer to both questions is yes, the

public trial right attaches, and the trial court must apply the Bone-Club factors on

the record before closing the proceeding to the public.15

       In Smith, the court adopted a further three-step inquiry to analyze public

trial right claims. Applying the threshold experience and logic test, a court first

determines if the proceeding implicates the public trial right.16 Second, the court

asks whether a closure occurred.17         Third, the court examines whether the



      10 Sublett, 176 Wn.2d at 71; see also State v. Beskurt, 176 Wn.2d 441,
446, 293P.3d 1159(2013).
      11 176 Wn.2d 58, 72-75, 292 P.3d 715 (2012).
      12 478 U.S. 1, 8-13, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press II).
      13 Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).
      14 Sublett. 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).
       15 Sublett. 176Wn.2dat73.
       16 Smith. 181 Wn.2dat513.
       17 Smith. 181 Wn.2dat513.
No. 71217-9-1/5



closure was justified.18 If the court concludes after applying the experience and

logic test that the right to a public trial does not apply to the proceeding at issue,

it need not reach the second and third steps in the analysis.19

      Applying the experience and logic test in Smith, the court held that

traditional sidebars do not implicate the right to a public trial.20 Addressing the

experience element, the court noted that sidebar conferences "have historically

occurred outside the view of the public."21 On the logic prong, the court found

"no specific interest that is served by ensuring that the public is privy to a

sidebar."22 Rather, the court found more persuasive reasons in favor of deciding

that the public trial right does not attach.    The court noted, for example, the

practical considerations involved in interrupting trial to dismiss the jury every time

the court wishes to admonish or hear an objection from counsel.            The court

concluded that "evidentiary rulings that are the subject of 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."23

       Here, the sidebar involved a single speaking objection by the State to

defense closing argument. Judging from the fact that the clerk made no note of

the interruption in the trial minutes, the discussion appears to have been brief.

       18 Smith.   181   Wn.2dat513.
       19 Smith.   181   Wn.2dat519.
       20 Smith.   181   Wn.2dat511.
       21 Smith.   181   Wn.2dat515.
       22 Smith.   181   Wn.2dat518.
       23 Smith, 181 Wn.2d at 518 (citing Sublett. 176 Wn.2d at 77).
No. 71217-9-1/6



Following the sidebar, defense counsel continued in a similar vein: "I agree with

most—my client agrees with most of the to convict instruction, which is

Instruction No. 7. The issue is how this actually occurred." We infer from the

rest of counsel's argument, to which the State did not object, that the trial court

overruled the State's objection.

        In a footnote in Smith, our Supreme Court emphasized, "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."24

The court observed later, "Critically, the sidebars here were contemporaneously

memorialized and recorded, thus negating any concern about secrecy."25

        In McGill's trial, the purpose of the sidebar was to address an objection, a

traditional subject area. And the context indicates that the trial court conducted it

to avoid disrupting the flow of trial. But unlike the numerous hallway conferences

in   Smith,   the   sidebar   conference   here   was   not   recorded   or   otherwise

memorialized. We conclude nonetheless that Smith controls here.


       The record here raises none of the "concerns the public trial right is meant

to address regarding perjury, transparency, or the appearance of fairness."26 Our

Supreme Court has stated the "guiding principle" of a public trial analysis as


       24 Smith, 181 Wn.2d at 516 n.10.
       25 Smith. 181 Wn.2dat518.
       26 Smith. 181 Wn.2d at 518 (citing Sublett. 176 Wn.2d at 77).
No. 71217-9-1/7



"'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.'"27

Describing sidebars, the court concluded, "Nothing positive is added by allowing

the public to intrude on the huddle at the bench in real time," and "[n]o logic

compels the conclusion that sidebars must be conducted in open court."28
Although the trial court here did not memorialize the substance of the sidebar,

the record shows that the sidebar was consistent with the "guiding principle" our

Supreme Court articulated. The sidebar and the trial court's ruling off the record

did not thwart the defense's strategy or the public's right of access. Nor did they

jeopardize the basic fairness of McGill's criminal trial or the appearance of
fairness essential to public confidence in the system. This record reveals no

reason for us to depart from the holding of Smith that "reasonable and traditional

sidebars used to avoid interruption of a trial do not implicate the public trial

right."29 Therefore, we do not reach the second and third steps of the Smith
analysis. We hold that the sidebar discussion did not violate McGill's right to a

public trial.




      27 Smith, 181 Wn.2d at 514-15 (alteration in original) (internal quotation
marks omitted) (quoting Sublett, 176 Wn.2d at 75).
        28 Smith, 181 Wn.2d at 518-19.
        29 Smith, 181 Wn.2dat521.
No. 71217-9-1/8



                                     Conclusion


          Because the single sidebar discussion during closing argument did not

implicate McGill's right to a public trial, no violation of that right occurred. We

affirm.




WE CONCUR:




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