                                                                                             COURTFILED

                                                                                                   OF
                                                                                                        APPEALS
                                                                                                 DIVISION 11
                                                                                         2015FEB IQ JH 8: 58
                                                                                         S

                                                                                         BY


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                          DIVISION II

 STATE OF WASHINGTON,                                                 No. 45229 -4 -II


                                Respondent,


        v.

                                                               UNPUBLISHED OPINION
 RENEE M. REYNOLDS,


                                Appellant.




       MAxA, J. —    Renee Reynolds appeals her two convictions of unlawful possession of a


controlled substance. She argues that the trial court violated her public trial right and right to be


present at all critical stages of the proceedings by announcing for cause dismissals of prospective

jurors and allowing the parties to exercise peremptory challenges of prospective jurors at a

sidebar conference. In a statement of additional grounds ( SAG), Reynolds claims that


governmental misconduct tainted her conviction. We affirm.


                                               FACTS


        On July 19, 2012, Department of Corrections Officer Reese Campbell received a

telephone call explaining that Reynolds, who was noncompliant with her community placement

conditions, was at a particular Vancouver home. There was an existing arrest warrant for

Reynolds so Campbell, accompanied by two Vancouver police officers, went to the residence

and was allowed   into the home. Campbell discovered that Reynolds      was   in   an upstairs
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bathroom. Campbell knocked three times, heard the toilet flush, and arrested Reynolds after she

opened the door. The police officers found drug paraphernalia in the toilet and trash can.

         Suspecting that Reynolds had just used or disposed of drugs, a community placement

violation, Campbell exercised his right to search Reynolds' s car. He and another officer


recovered heroin and methamphetamine during the search.

         The State charged Reynolds with two counts of unlawful possession of a controlled


substance based on the discovery of heroin and methamphetamine in her car. During jury

selection, the trial court asked the venire if anyone had any undue problems with serving. Juror

21 responded that he represented Cowlitz PUD and had to attend a public multiparty rate hearing

the next day. The trial court responded that it would discuss it later. Juror 22 also had a conflict,

stating that he had a personal meeting the next day that he could not change.

         Near the end of the attorneys' questioning of jurors the trial court conducted a sidebar

conference to discuss challenges for cause. The sidebar lasted approximately three minutes. The

clerk' s minutes state that at this conference the trial court dismissed prospective jurors 21 and 22

 for   cause."   Clerk'   s   Papers   at   63. The record does not reflect whether one of the parties


challenged these jurors for cause at the sidebar conference, or whether the trial court merely

announced that it was dismissing them. The attorneys also passed an electronic clipboard

between them to exercise peremptory challenges without orally exercising their challenges.

During this process, a sidebar conference was held off the record. The trial court then seated the

jurors and chose an alternative from those remaining in the jury pool.

          The jury found Reynolds guilty of both charged offenses. Reynolds appeals.




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                                                                  ANALYSIS


A.       PUBLIC TRIAL RIGHT


         Reynolds claims that the trial court violated her public trial right by having the attorneys

exercise their peremptory challenges by checking them off an electronic clipboard and by

dismissing two potential jurors for cause during a sidebar conference. We disagree.

             1.      Legal Principles


             We recently explained the legal principles involved in a public trial right challenge:

                  The Sixth Amendment to the United States Constitution and article I, section 22
             of the Washington State Constitution guarantee a defendant the right to a public
         trial.       State    v.   Wise, 176 Wn.2d 1, 9, 288 P. 3d 1113 ( 2012).                      In general, this right
             requires that certain proceedings be held in open court unless application of the
             five- factor test set forth in State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d
             325 ( 1995),          supports       closure   of    the    courtroom.         Whether a courtroom closure
             violated a defendant' s right to a public trial is a question of law we review de novo.
             Wise, 176 Wn.2d at 9.
                  The threshold determination when addressing an alleged violation of the public
             trial   right   is    whether        the proceeding        at   issue   even   implicates the   right.   State v.
             Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012). "[                           N] ot 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."      Sublett, 176 Wn.2d    at   71.   To make
             this determination, our Supreme Court in Sublett adopted an " experience and logic"
             test. 176 Wn.2d at 73.
                 To address whether there was a court closure implicating the public trial right,
             we  employ a two -step process. State v. Wilson, 174 Wn. App. 328, 335 -37, 298
             P. 3d 148 ( 2013). First, we consider whether the particular proceeding at issue " falls
             within a category of proceedings that our Supreme Court has already acknowledged
             implicates        a   defendant'       s public   trial   right."    Wilson, 174 Wn. App. at 337; see also
             Wise, 176 Wn.2d          Second, if the proceeding at issue does not fall within a
                                        at    11.
             specific protected category, we determine whether the proceeding implicates the
             public    trial   right   using the Sublett         experience and         logic test.   Wilson, 174 Wn. App.
             at 335.


State   v.    Marks, No.               Wn.    App. ,           339 P. 3d 196, 198 ( 2014) ( footnotes omitted).




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        2.     Peremptory Juror Challenges

        Reynolds argues that the trial court violated her right to a public trial by allowing

peremptory juror challenges to be made at a sidebar conference. We held in State v. Dunn, 180

Wn.   App.   570, 321 P. 3d 1283 ( 2014),   review     denied, 340 P. 3d 228 ( 2015), and again in Marks,


339 P. 3d at 198, that exercising peremptory challenges does not implicate the public trial right.

Accordingly, we hold that the trial court did not violate Reynolds' s public trial right by allowing

counsel to make peremptory challenges at a sidebar conference.

        3.      Juror Dismissals " For Cause"


        Reynolds argues that the trial court violated her public trial right by allowing counsel to

make juror challenges for cause at a sidebar conference. However, Reynolds has not provided a

sufficient record for us to determine what happened at the sidebar conference. Reynolds' s


inability to show that either party actually challenged jurors 21 and 22 for cause at sidebar

precludes us from finding a public trial right violation.

        Division Three of this court in State v. Love held that the exercise of for cause juror .

challenges     during   a sidebar conference   did   not violate   the defendant'   s public   trial   right.   176 Wn.


       911, 919, 309 P. 3d 1209 ( 2013),                           in part, 340 P. 3d 228 ( 2015).        However,
App.                                        review granted




this division has not yet addressed whether juror challenges for cause implicate the public trial

right. In this case, we need not decide whether a party' s challenges for cause or argument on

those challenges implicates the public trial right.


         Here, the record does not show that the State or Reynolds actually challenged jurors 21

and 22 for cause at the sidebar conference. A party' s challenge is not the only way a juror can be

dismissed for cause. Under RCW 2. 36. 110, the trial court has a duty to excuse any juror who, in



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45229 -4 -II



the opinion of the judge, is unfit to serve as a juror for one of several reasons, including " conduct

or practices   incompatible   with proper and efficient         jury   service."   Here, the trial court may have

decided   during voir   dire questioning   of jurors   21   and   22 —which        was   done in   open court —that




they should be dismissed under RCW 2. 36. 110, and then merely announced that decision to

counsel at the sidebar conference.


        Further, RCW 2. 36. 100( 1) allows a trial court to dismiss a juror for " undue hardship,

extreme inconvenience, public necessity, or any reason deemed sufficient by the court."

Although the clerk' s minutes state that the dismissals were for cause, the questioning ofjurors 21

and 22 showed only that they had unresolvable scheduling conflicts. As a result, the trial court

may have decided to dismiss them under RCW 2.36. 100( 1).

          The question therefore becomes whether a trial court' s announcement to counsel of its


decision dismissing jurors under RCW 2. 36. 100( 1) or RCW 2. 36. 110 implicates the public trial

right. Our Supreme Court has not held that the trial court' s juror dismissals must be announced


in open court. Therefore, we must apply the experience and logic test to determine if the public

trial right applies. Sublett, 176 Wn.2d at 73.


          The experience and logic test does not suggest that the trial court' s announcement of sua


sponte juror dismissals implicates the public trial right. Regarding the experience prong, the

dismissals of jurors 21 and 22 here were " announced" in writing on a document that was filed in

the public record. We are aware of no authority indicating that this procedure is improper, or

that a trial court' s act of announcing juror dismissals historically has been open to the public.

Regarding the logic prong, the public would not play a significant positive role in the functioning




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45229 -4 -II



of the trial court' s announcement of juror dismissals. Therefore, we hold that a trial court' s

announcement that it is dismissing jurors does not implicate the public trial right.

        If one or both of the parties had made juror challenges for cause at the sidebar conference

and the parties argued those challenges, the public trial right may have been implicated. On the

other hand, if the trial court here merely announced at the sidebar conference that it was

dismissing jurors 21 and 22, the trial court did not violate Reynolds' s public trial right. The

problem here is that the record does not disclose what happened at the sidebar conference with

regard to the two jurors who were dismissed for cause.

        Our Supreme Court in State v. Koss held that the defendant bears the responsibility to

provide a record   showing that   a court closure   has   occurred.   181Wn.2d 493, 501 -04, 334 P. 3d


1042 ( 2014).   Similarly, the plurality opinion in State v. Slert held that the defendant has the

burden of providing an adequate record to establish a violation of the public trial right, and in the

absence of an adequate record a court will not infer that the trial court violated the constitution.

181 Wn.2d 598, 607, 334 P. 3d 1088 ( 2014).


        Here, Reynolds has not provided us with a sufficient record to determine whether what

happened at the sidebar conference would implicate the public trial right. As a result, we will

not assume that the trial court violated that right. We reject Reynolds' s argument that the trial

court violated her public trial right with regard to for cause juror challenges.


B.       RIGHT TO BE PRESENT


         Reynolds argues that the trial court violated her constitutional right to be present at all

critical stages of the proceeding when it allowed counsel to make peremptory juror challenges

and dismissed jurors 21 and 22 at sidebar conferences. We disagree.




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45229 -4 -II



          Under the Sixth and Fourteenth Amendments to the United States Constitution and

article I, section 22 of the Washington Constitution, a criminal defendant has a fundamental right

to be present at all " critical stages" of trial. State v. Irby, 170 Wn.2d 874, 880, 246 P. 3d 796

 2011).    Our Supreme Court has recognized that jury selection is a critical stage of trial to which

the right to be present attaches. Id. at 883 -84. We assume without deciding that the right to be

present attached, but hold that the right was not violated.


          Here, Reynolds was present in the courtroom during all of voir dire, and therefore had the

opportunity to hear all questioning that formed the basis for any future juror challenges. Further,

Reynolds was present in the courtroom and witnessed counsel conduct the jury selection process.

There is no evidence that she did not have the opportunity to exercise her right to consult with

her counsel or otherwise be involved in counsel' s use of peremptory or for cause challenges.

The   sidebar conference      did   not   deprive Reynolds   of   the " `   power ...   to give advice or suggestion


or   even to   supersede' "   her counsel. Irby, 170 Wn.2d at 883 ( quoting Snyder v. Commw. of

Mass., 291 U. S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 ( 1934)).

          We hold that the trial court did not violate Reynolds' s right to be present during jury

selection proceedings.




C.        SAG ARGUMENTS

          Reynolds claims that she was denied a fair trial because Officer Campbell lied about


whether he had written a report about her arrest and lied about finding baggies in the toilet. She

also claims that Officer Ronald Stevens lied when he said he took the evidence to the evidence

room. But Reynolds' s assertions involve matters outside the record and therefore cannot be


properly addressed on appeal. State v. McFarland, 127 Wn.2d 322, 335, 338 n.5, 899 P. 2d 1251'


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 1995) (   stating that matters outside record must be raised in a personal restraint petition).

Therefore, we do not consider them.


           We affirm.


           A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




 We concur:




    r •

   JHANSON, C. J.




   EE, J.




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