                                                                                                       I=~_
                                                                                                        D
                                                                                                QURT 01 - ,
                                                                                                        APPEALS
                                                                                                   DIVISmij ii
                                                   201                                                           40
     IN THE COURT OF APPEALS OF THE STATE OF WASHI:v,
                                                   T   GTQ
                                                                                                                 ON
                                              DIVISION II                                  14
                                                                                                    DMV
STATE OF WASHINGTON,                                                      No. 42268 9 II
                                                                                    - -


                               Respondent,

       V.




JACOB HUBBLE,                                                       UNPUBLISHED OPINION




       PENOYAR J. —Jacob       Hubble appeals his first degree robbery conviction. He argues that

the trial court improperly closed the courtroom three times to discuss three issues: the number of

alternate jurors, a motion in limine, and jury instructions. Hubble also argues that the prosecutor

improperly commented on Hubble's exercise of his right to remain silent and that the accomplice
liability statue is unconstitutionally overbroad. We conclude that no improper closure occurred
because none of the proceedings Hubble singles out here has historically been held in open court

and thus his claims fail the "experience and logic"test. We also conclude that the prosecutor's

comment was an acceptable missing -witness argument and not a comment on Hubble's silence.
              have   recently held   that the   accomplice liability    instruction is not overbroad. We
Finally, we

affirm.


                                                   FACTS


I.        FACTUAL BACKGROUND


          In the early morning hours of August 9, 2010, Jeremy Allison was at his trailer with
Emerald     Culberg and her friend, Sandra. Culberg claimed they went to Allison's home that

morning to smoke methamphetamine, asserting that all three did, though in varying amounts.
Allison admitted he and     Culberg    were     going   to   smoke the drug that morning, but denied that
42268 9 II
      - -




anyone ended up    doing   so.   Allison and Culberg had exchanged text messages that morning

about meeting at his trailer and, once there, about Sandra's presence.

        While at Allison's trailer, Culberg sent a text message to Jacob Hubble, her boyfriend.'
Shortly after, Hubble and another man identified only as " Mike" drove up into Allison's

driveway. Report of Proceedings (RP) Nov. 18, 2010) at
                                     (                              94.    At this point, Allison's and

Culberg's accounts of what happened next diverge markedly.

        According to Allison, Hubble and Mike came through the trailer door. Hubble pulled a

three-
     cell" Maglite flashlight out of his pocket and started questioning Allison about text

messages he had sent to Culberg. RP (Nov. 18, 2010) at 38. When Allison reached behind him
to get his phone so he could show Hubble the text messages, Hubble tried grabbing the phone out
of Allison's hand. As Allison and Hubble wrestled over the phone, Hubble told Mike to grab

Allison's safe, which was on the bed behind Allison. When Mike grabbed the safe's handle,

Allison let go of the phone and grabbed Mike's wrist. Allison claims that Hubble then hit him
over   the head with the   flashlight, though Allison did   not   see   Hubble hit him.   The blow split

Allison's scalp open. Agitated, Allison pushed Hubble and Mike onto his couch, grabbing the

flashlight out of Hubble's hand. Allison began swinging back. Hubble and Mike ran out the
trailer door and quickly drove away. Allison's keys, phone, and safe, which had all been in his
trailer before this incident, were now missing.




  Culberg stated that because "[
                              Allison]kept hitting on me, getting more irritated I wouldn't get
rid of Sandra," sent Hubble a text message, asking him if he could pick her up, though she
                she
claims she did not tell him why. RP (Nov. 18, 2010) at 91. Allison related that, at the time, he
did not know who Hubble was or that Culberg was Hubble's girlfriend.
                                                  2
42268 9 II
      - -



         According to Culberg, Hubble, alone, knocked on the door and Sandra let him in. Upset

that Hubble had come to get Culberg, Allison raised his voice to Culberg, but Hubble put himself

between them. As Hubble started yelling at Allison, Culberg grabbed the safe and threw it out

the door into the yard. Allison pushed Hubble, who fell back toward Culberg, knocking her to

the ground. As Hubble got back up,Allison punched him near the cheekbone. The two wrestled

and Allison pinned Hubble to the ground, continuing to punch him. As Sandra ran out of the

trailer, Mike ran in. Culberg pulled the flashlight out of her purse, swinging it at Allison, but he

grabbed it from her mid -swing. Now armed with the flashlight, Allison starting hitting Hubble's
back with it. Mike tried to take the flashlight from Allison, but Allison hit Mike's knuckles with

the flashlight each time he tried to grab it. Culberg grabbed Allison's keys and cell phone from
the floor and threw them in her purse. Hubble managed to escape from underneath Allison as the

flashlight dropped to the floor. Mike jumped over Allison, and the two men ran out of the trailer,
followed by Culberg. Culberg grabbed the safe out of the yard and took it with her.

         Allison called 911. The police arrived 15 minutes later. Paramedics examined Allison

because he was bleeding from the head. Detective McGinty observed "[ laceration to the top
                                                                   a]

of [Allison's] and some sort of abrasion or scratch to the lower left shin on his leg."RP
             head
Nov. 18, 2010) at 79. Allison found the flashlight in his trailer and turned it over to the police.
McGinty took custody of the flashlight when he arrived at the scene; the flashlight was later
checked for fingerprints.




2
    Allison claims that the flashlight flew out of his hand on the last swing he took as Hubble ran
out the door.
                                                  3
42268 9 IJ
      - -




IL        PROCEDURAL BACKGROUND


          The State charged Hubble with first degree robbery. At the start of Hubble's jury trial,

the court noted for the record that "we' e had a pretrial conference, there will be one alternate
                                       v

      looks
juror],          like we' e set up for that. No need to sequester the
                        r                                                       jury. Witnesses will be

excluded with the exception of obviously the defendant and the state's chief investigating officer

who is [Detective McGinty]." (Nov. 18, 2010) at 3..
                           RP

          The trial court then heard Hubble's and the State's motions in limine. The parties agreed

to enter a stipulation that Hubble's fingerprints were found on the batteries inside the Maglite

flashlight   that Hubble   allegedly   used to hit Allison   on   the   head. Responding to the State's

motion "to preclude any inquiry into whether the state's witness, Jeremy Allison, has ever

ingested, possessed, or sold any type of controlled substance," court noted that
                                                              the
          We had. a discussion about this in chambers, and apparently there is some
          evidence to be presented by the defense that on the night in question, that during
          the relevant time period on this particular day, that Mr. Allison was involved in
          methamphetamine use with one of the defense witnesses, Emerald Culberg.

RP -(
   Nov. 18, 2010)- 14 15. Defense counsel then explained that the evidence was relevant
                at -      _
because it addressed Allison's ability to perceive and recall the events of the alleged robbery.

The prosecutor conceded the evidence's relevance on that point, clarifying that the State objected

to admitting evidence of Allison's drug use outside that date as a form of character assassination.


3
     After McGinty's testimony,the defense read the stipulation into the record. It stated:

           Stipulation, Jacob Hubble hereby stipulates that the Lewis County Sheriff's
           Office retrieved a D cell mag light flashlight on August 9th, 2010 from Jeremy
           Allison.   Law enforcement attempted to lift fingerprints from the outside of the
           flashlight and no prints were' found. Fingerprints were found on the batteries
           inside of the mag light that matched those of Jacob Hubble.

 RP (Nov. 18, 2010)at 83 84.
                         -
                                                     4
42268 9 II
      - -



The court then made its ruling, grant[ ng]the motion [to exclude] anything that's not concerned
                                "    i

with the events of ...   August 9th of 2010."RP (Nov. 18, 2010)at 16.

        After the jury heard all the evidence and was dismissed for the day, the court invited

counsel into chambers to talk about jury instructions. The following morning, the court noted

that the "[ ecord should reflect we had a jury instruction conference last night and came up with
         r]

a set of jury instructions." RP (Nov. 19, 2010) at 3. Over the State's objection, the court then

accepted     the   defense's   additional   instruction   regarding evidentiary limitation on prior

inconsistent statements.       The court instructed the jury, including instructions on accomplice

liability and the defendant's right to remain silent.
         In closing argument, the defense argued that the State's failure to locate eyewitnesses
Mike and Sandra and to obtain evidence from them left holes in the State's case. The prosecutor

directed his first words in rebuttal toward this argument:

                 Ladies and gentlemen, the implication that the state did not take this case
         seriously or that we did not do our job in trying to prosecute this matter
         effectively is frankly offensive because we did all we could with what we had.
                                Maybe.we
                   Who is Mike ?._             don't know who Mike is.___
                                                       _           the defendant
                                                                     Maybe_
         didn't want to cough him up.

RP (Nov. 19, 2010) at 27. Here, the defense made an objection that the court overruled. The
prosecutor continued:

                   Maybe   the defendant didn't want to      cough   him up.   Maybe Emerald
         Culberg didn't want to implicate her friend, her associate, and tell law
         enforcement who he really was. Maybe Sandra is in Mexico. Maybe we can't
         find these people. Maybe we have no idea where they are. We're looking for
         them doesn't mean we have them, doesn't mean we have their statements.

RP (Nov. 19, 20 10)at 27 28.
                         -

4
    This instruction against self -
                                  incrimination stated: "The defendant is not compelled to testify,
and the fact that the defendant has not testified cannot be used to infer guilt and should not
prejudice him in any way." s Papers (CP)at 50.
                         Clerk'
                                                      5
42268 9 II
      - -



       The   jury   found Hubble   guilty of   first   degree robbery. He received a sentence of 168

months. Hubble timely appeals his conviction.

                                               ANALYSIS


1.     PUBLIC TRIAL RIGHT


       Hubble contends that the trial court violated his constitutionally protected right to a

public trial, hen, in chambers, it ( )
            w                      1 selected, with the parties' agreement, an alternate juror; 2)
                                                                                                (
discussed the State's motion in limine with counsel; and (3)discussed jury instructions with

counsel. Because none of these proceedings has historically implicated the public trial right, and

because public access plays a minimal role in the functioning of these proceedings, Hubble's

argument is unpersuasive.

       Whether the trial court violated the defendant's right to a public trial is a question of law
                         a



that we review de novo. State v. Sublett, 176 Wn. d 58, 70, 292 P. d 715 (2012). Article I,
                                                2                3

section 22 of the Washington State Constitution and the Sixth Amendment to the United States

Constitution give criminal defendants the right to a public trial by an impartial jury. Sublett, 176
Wn. d at 70 71. "[
  2         -         T] e right to a public trial serves to ensure a fair trial, to remind the
                       h
prosecutor and judge of their responsibility to the accused and the importance of their functions,
to encourage witnesses to come forward, and to discourage perjury."Sublett, 176 Wn. d at 72.
                                                                                  2

       We apply the experience and logic test to determine whether the public trial right attaches

to a particular trial proceeding. Sublett, 176 Wn. d at 72 73. This test consists of two prongs.
                                                 2         -

First, the experience prong asks "` hether the place and process have historically been open to
                                  w
the press and   general public. "' Sublett, 176 Wn. d at 73 ( quoting Press -Enterprise Co. v
                                                  2

Superior Court, 478 U. . 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 ( 1986).Second,the logic prong
                     S
asks "` hether public access plays a significant positive role in the functioning of the particular
      w
                                                        6
42268 9 II
      - -




process in     question. "' Sublett, 176 Wn. d at 73 ( quoting Press -Enterprise, 478 U. . at 8).
                                           2                                           S

Unless the answer to both prongs is yes, the public trial right does not attach to the particular

proceeding. Sublett, 176 Wn. d at 73.
                           2

         Hubble has not argued that proceedings like the in-
                                                           chambers motion in limine discussion
                                                                                     ,

and the in-
          chambers jury instruction conference have historically been held in open court, and

we know of no such history. See Sublett, 176 Wn. d at 75. Because neither of these proceedings
                                               2

satisfies the experience prong of the experience and logic test, it is unnecessary for us to reach

the logic prong.

         Hubble's claim that his public trial right was violated during the in-
                                                                              chambers conference

where it was decided that an alternate juror would be seated also fails under the experience

prong.      Hubble has not identified any case holding that an in-
                                                                 chambers decision to have an

alternate     juror   is   a   closure   or   violates   a   defendant's constitutional       rights.   See Sublett, 176

Wn. d
  2      at   75.     Determining whether         to have an alternate    juror   is   a   discretionary decision for the

trial court that historically has not necessarily been conducted in an open courtroom. Hubble's

claim that his public trial right was violated is unpersuasive.

II.      PROSECUTOR'S COMMENT ABOUT A MISSING WITNESS


         Hubble contends that when the prosecutor argued that a potential witness, Mike, was

unavailable because "[maybe the defendant didn't want to cough him up," prosecutor
                       ]                                              the

violated Hubble's privilege against self -
                                         incrimination. Br. of Appellant at 11. We disagree. The
prosecutor's comments here were in response to the defense's charge that the State had failed to

5
  Indeed, in the supplemental briefing that we requested from the parties on this issue, Hubble
again alleges that the in-
                         chambers discussions on admissible evidence and jury instructions were
proceedings that implicated the public trial right, but fails altogether to mention this alternate -
juror proceeding, much less to affirm that it too was subject to the public trial right.
                                                                  7
42268 9 II
      - -




produce Mike as a witness. Because Mike was peculiarly within the defense's power to produce

and his testimony probably would have helped the defense's case, the prosecutor's comment was

not improper, especially as a response to an issue the defense first raised.

       A prosecutor cannot comment on the lack of evidence the defense presented because the

defendant has no duty to present evidence. State v. Cheatam, 150 Wn. d 626, 652, 81 P. d 830
                                                                   2                 3

2003). But Washington courts have adopted the missing-
                                                     witness doctrine as an exception to

this general rule. State v. Blair, 117 Wn. d 479, 485 86, 816 P. d 718 (1991). The missing -
                                         2            -        2

witness doctrine allows a prosecutor to comment on a defendant's failure to produce a witness if

the absent witness is peculiarly available to the defense and would naturally be in his interest to

produce. Blair, 117 Wn. d at 490 91. A witness is available to the defense if he is peculiarly
                      2          -
within the party's power to produce, the testimony concerns a matter of importance as opposed
to a trivial matter, the evidence is not merely cumulative, the witness's absence is not otherwise

explained, the witness is not incompetent or his testimony privileged, and the testimony does not
infringe on the defendant's constitutional rights. Cheatam, 150 Wn. d at 652 53. The missing-
                                                                  2          -

witness doctrine also does not apply where the missing witness's testimony, if favorable to the

party who naturally would have called the witness, would necessarily be self incriminatory.
                                                                             -
Blair, 117 Wn. d at 489 90.
             2          -

        In closing argument, the defense pointed to Mike's and Sandra's absence to argue that the

State had not met its burden of proof:

                I ask you, there should be questions that you have related to this evidence.
        Where's Mike. Who's Mike. What investigation was done to locate Mike, an eye
        witness to the crime. I didn't hear anything from the state. And that should be a
        question because you know what, no doubt Mike would be able to shed some
        light on what happened here. Where's Sandra. What investigation did they do to
        try to find her?What did they do to get a statement from her, to track her down. I

                                                  3
42268 9 II
      - -




        didn't hear anything. And you should be wondering why didn't the state provide
        me this crucial evidence, eye witness evidence to fill the holes.

RP (Nov. 19, 2010) at 19. The prosecutor responded to the issue of these. missing witnesses on

rebuttal:


               Ladies and gentlemen, the implication that the state did not take this case
        seriously or that we did not do our job in trying to prosecute this matter
        effectively is frankly offensive because we did all we could with what we had.
                Who is Mike?Maybe we don't know who Mike is. Maybe the defendant
        didn't want to cough him up.
                Here, defense makes an objection the court overrules.]
               Maybe    the defendant didn't want to     cough   him up.    Maybe Emerald
        Culberg didn't want to implicate her friend, her associate, and tell law
        enforcement who he really was. Maybe Sandra is in Mexico. Maybe we can't
        find these people. Maybe we have no idea where they are. We're looking for
        them doesn't mean we have them, doesn't mean we have their statements.

RP (Nov. 19, 2010)at 27 28.
                        -

        The defense singles out the prosecutor's response on rebuttal that "[ aybe the defendant
                                                                           m]

didn't want to cough him up," a violation of Hubble's right against self -
                            as                                           incrimination. RP

Nov. 19, 2010) at 27. The defense's claim, however, makes the dubious assumption that the
State would have called Mike as a witness because his testimony would have strengthened its

case.   But it seems more likely that Mike, as Hubble's associate, would have corroborated

Culberg's account of events, and would have done so without incriminating himself, Mike's
testimony would have reinforced the evidence that Allison had been the aggressor and that
6
    In rebuttal, the prosecutor predicted that if Mike and Sandra had provided evidence, that
evidence would not have been self incriminating:
                                  -

                And what if they did make statements. What kinds of things do you think
         would be in their statement. The same kind of self -
                                                            serving, I don't want to get
         into trouble, I just want to save my own skin statements that were in Emerald
         Culberg's statement when she talked to law enforcement when she wasn't
         charged with this offense.

RP (Nov. 19, 2010)at 28.
                                                  9
42268 9 II
      - -




Culberg had stolen the property. As each side at trial called only one witness, Mike's testimony

would not have been merely cumulative, nor would it have been on trivial matters. In sum, it

appears that it would have been in Hubble's best interest, and not the State's, produce Mike as
                                                                              to
a witness.


       Furthermore, it appears that Mike was peculiarly available to the defense. The prosecutor

noted that the State was looking for him but had not located him yet, and the defense offered no

other explanation for his absence. Given that Hubble knew Mike, and that Allison did not know
him beyond his short interaction with him on that August morning, the defense was in a unique

position   to   produce   Mike   so   he could    offer evidence relevant   to   the   case.    Thus, when the

defense first pointed out in closing argument that Mike's absence left holes in the State's case,

the prosecutor's comments in reply—
                                  including the comment about Hubble not wanting to
produce Mikewere proper under the missing-
            —                            witness doctrine.
III.   WASHINGTON'S ACCOMPLICE LIABILITY STATUTE IS NOT OVERBROAD

       Hubble argues that Washington's accomplice liability statute, RCW 9A. 8. is
                                                                         020,
                                                                           0

unconstitutionally overbroad. Under this statute, a person is guilty as an accomplice if w]
                                                                                         "[ ith
                that it will promote        facilitate the commission of the crime, he     or   she ... [   a] or
                                                                                                             ids
knowledge                              or




agrees to aid such other person in planning or committing it." 9A. 8.
                                                             RCW 020(
                                                                 a)(ii).
                                                                    3)(
                                                                    0




                                                         10
42268 9 II
      - -




Hubble argues that the definition of "aid" in the Washington pattern jury instruction for

accomplice liability, by including assistance given by words or encouragement, criminalizes a

vast amount of speech that the First Amendment protects.
         We rejected this same challenge in State v. Ferguson, 164 Wn. App. 370, 375 76, 264
                                                                                     -

P. d 575 (2011) citing State v. Coleman, 155 Wn. App. 951, 960 61, 231 P. d 212 (2010)).
 3              (                                              -        3

Hubble acknowledges Ferguson and Coleman, but argues that the courts decided them

incorrectly and should therefore reconsider
            —                                   them —because the courts' reliance on the mens rea


               does not meet the federal standard      Brandenburg   v.   Ohio   imposed:   The First
requirement

Amendment protects speech advocating criminal activity unless it " directed to inciting or
                                                                 is

producing imminent lawless action and is likely to incite or produce such action."395 U. .444,
                                                                                       S
447, 89 S. Ct. 1827, 23      L. Ed. 2d 430 (1969).     But in Ferguson, this court addressed the

Brandenburg standard, concluding that "[ ecause the [accomplice liability] statute's language
                                      b]
forbids advocacy directed at and likely to incite or produce imminent lawless action, it does not

forbid the mere advocacy of law violation that is protected under the holding of Brandenburg."

164 Wn.App. at 376. We once again reject this constitutional challenge.




7
    The instruction for accomplice liability defines "aid"as

          all assistance whether given by words, acts, encouragement, support, or presence.
          A person who is present at the scene and ready to assist by his or her presence is
          aiding in the commission of the crime. However, more than mere presence and
          knowledge of the criminal activity of another must be shown to establish that a
          person present is an accomplice.

11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10. 1,at 217
                                                                         5
3d ed. 2008).
                                                  11
42268 9 II
      - -



       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

040,
2.6.it is so ordered.
 0




                                                     Jar,J.
We concur:




 L'L 2 *
  I    Q,                        I




       Van Deren, J.




                                              12.
