                                                                                                      A°
                                                                                        COURT OFAPPEALS
                                                                                             DIVISION 11
                                                                                       2015 PIAY 19   AM 9: 05
                                                                                       STATE 0

                                                                                       BY

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGT

                                               DIVISION II

    STATE OF WASHINGTON,                                                 No. 45497 -1 - I1


                                      Respondent,


             v.

                                                                     PUBLISHED OPINION
    CALVERT R. ANDERSON, JR.,


                                      Appellant.




            MAXA, P. J. —    Calvert Anderson appeals his convictions for third degree assault and


obstructing a law enforcement officer. During voir dire, Anderson successfully challenged four

prospective jurors for cause at a sidebar conference. We hold that the trial court violated


Anderson' s constitutional right to a public trial by allowing counsel to make juror challenges for

cause at a sidebar conference without first conducting a Bone -Club' analysis. Therefore, we

reverse Anderson' s convictions and remand for a new trial.

                                                    FACTS


            The State charged Anderson with third degree assault and obstructing a law enforcement

officer after he scuffled with police officers. A jury convicted Anderson of both crimes.




1
    State   v.   Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995).
45497 -1 - II



         During voir dire, Anderson challenged four prospective jurors for cause at a sidebar

conference.     The trial   court   dismissed   all   four   challenged prospective   jurors.' No transcription of


the sidebar conference appears in the record, but the trial court later noted the challenges and

resulting dismissals for the record. The trial court did not conduct a Bone -Club analysis before

the sidebar conference.


         Anderson appeals his convictions.


                                                       ANALYSIS


         Anderson argues that the trial court violated his public trial right by allowing him to

challenge prospective jurors for cause at a sidebar conference, when spectators in the courtroom


presumably      could not   hear    what was   occurring.3      We agree and hold that ( 1) the sidebar

conference addressing juror challenges for cause constituted a closure of courtroom proceedings

because the     public could not     hear   what occurred, ( 2)    under the experience and logic test,


challenging jurors for cause implicates the public trial right, and ( 3) the trial court did not

establish any justification for closing the for cause juror challenge proceedings.

A.       PUBLIC TRIAL RIGHT - GENERAL PRINCIPLES


         The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176




2 The court later dismissed a fifth prospective juror for cause at a second sidebar conference,
apparently sua sponte.


3 Anderson' s own successful challenges for cause form the basis for this appeal, and he did not
object to the process below. However, a defendant does not waive a public trial right claim on
appeal by failing to object to a court closure below. State v. Wise, 176 Wn.2d 1, 15, 288 P. 3d
1113 ( 2012).

                                                               2
45497 -1 - I1



Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings be held


in open court unless the trial court first applies on the record the five -factor test set forth in State

v.   Bone -Club, 128 Wn.2d 254, 258 -59, 906 P. 2d 325 ( 1995), and finds that a closure of the


courtroom is justified. A public trial right violation is structural error, and we presume prejudice


where a trial court closes trial proceedings without                conducting    a   Bone -Club   analysis.   Wise, 176


Wn.2d at 13 - 14.


          In analyzing whether the trial court has violated a defendant' s public trial right, we must

determine       whether (   1) the trial   court closed   the   proceedings   to the   public, ( 2)   the proceedings


implicate the public trial right, and ( 3) the closure was justified. State v. Smith, 181 Wn.2d 508,

513 -14, 334 P. 3d 1049 ( 2014). 4 Whether the trial court has violated a defendant' s right to a

public trial is a question of law that we review de novo. Id. at 513.

B.        CLOSURE OF PROCEEDINGS


          Anderson argues that the trial court effectively closed the proceedings by allowing him to

challenge jurors for cause at a sidebar conference, even though the courtroom remained open to


the public. We agree.




4 Our Supreme Court in Smith, 181 Wn.2d at 513, and State v. Gomez, No. 90329 -8, 2015 WL
1590302,     at *                    stated that the first step in the analysis of a public trial right
                    2 ( Wash. Apr. 9, 2015),
claim is determining whether the proceedings implicate the public trial right, and the second step
in that analysis is assessing        whether    the trial   court closed   the   proceedings.      However, where a

genuine question exists as to whether a closure occurred, that issue may be addressed first. For
instance, in both State v. Andy, 182 Wn.2d 294, 301, 340 P. 3d 840 ( 2014) and Stale v. Njonge,
181 Wn.2d 546, 556 -58, 334 P. 3d 1068,              cert.   denied, 135 S. Ct. 880 ( 2014), the court addressed
whether a closure had occurred before determining whether the proceedings implicated the
defendant' s public trial right.

                                                                3
45497 -1 - II



                A defendant' s public trial right can be violated only if there has been a closure of court

proceedings. State v. Njonge, 181 Wn.2d 546, 556, 334 P. 3d 1068, cert. denied, 135 S. Ct. 880

 2014) ( stating that "[             a] defendant asserting violation of his public trial rights must show that a

closure occurred. ").




                It is   clear   that "[   a] closure occurs ` when the courtroom is completely and purposefully

closed      to    spectators so          that    no one   may    enter and no one   may leave.' "   Smith, 181 Wn.2d at 520


 quoting State            v.    Lormor, 172 Wn.2d 85, 93, 257 P. 3d 624 ( 2011)).              But such a closure of the


entire courtroom is not the only action that constitutes a closure. A closure also occurs when the

public is excluded from particular proceedings within a courtroom. State v. Gomez, No. 90329-

8, 2015 WL 1590302,                      at *   2 ( Wash. Apr. 9, 2015); Lormor, 172 Wn.2d at 92. As a result,


holding proceedings in areas inaccessible to the public, such as the judge' s chambers, also
                                     5
qualifies as a closure.                   Id.; State    v.   Strode, 167 Wn.2d 222, 226, 217 P. 3d 310 ( 2009);    see also




State      v.   Leyerle, 158 Wn.                App.   474, 483, 242 P. 3d 921 ( 2010) ( holding    that proceedings

conducted in a hallway adjacent to the courtroom were closed to the public).

                The record here shows that the trial court neither barred the public from the courtroom


during the sidebar conference nor held the conference in a physically inaccessible location.

However, the entire purpose of a sidebar conference is to prevent anyone other than those present

at   the   sidebar —        an audience typically limited to the judge, counsel, and perhaps court staff —




5 Although our Supreme Court held in Smith that sidebar conferences on evidentiary matters do
not implicate the public trial right, it declined to review whether such conferences constituted a
closure.          181 Wn.2d at 520 -21.

                                                                         4
45497 -1 - II




from hearing what is being said. The question we must decide is whether preventing the public

from hearing a proceeding rises to the level of a closure.6
         To determine whether the trial court closed the proceedings, we examine whether the trial


court' s action actually impeded public scrutiny. See, e. g., In re Pers. Restraint of Orange, 152

Wn.2d 795, 808 -09, 100 P. 3d 291 ( 2004).            In State v. Andy, our Supreme Court addressed

closure in this manner, focusing on the question of whether public access actually was thwarted.

182 Wn.2d 294, 301 -02, 340 P. 3d 840 ( 2014). The court examined the impact of a sign placed


outside the courtroom stating that the courtroom would be closed at times it was in fact still in

session.   Id. at 300 -301.    To determine whether this misleading placement of the sign was a

closure, the court analyzed whether the public actually was excluded from the proceedings. The

court noted that the trial judge made express findings that " the public was able to access the


courtroom at all times during Andy' s trial and that no member of the public was deterred" from

entry. Id. at 301. The court concluded that where the trial court' s action " presented no obstacle


to   members of   the   public who wished      to   attend   the trial," there was no closure. Id. at 302.


         Unlike the sign in Andy, the sidebar conference here presented a clear obstacle to public

scrutiny of Anderson' s challenges. While the trial court did not physically restrict access to the

courtroom, it did prevent meaningful access to the proceedings by conducting the challenges for

cause in a manner such that the public could not hear what was occurring. Taking juror

challenges at sidebar in this way thwarts public scrutiny just as if they were done in chambers or



6 Our Supreme Court in Smith suggested in dicta that the experience and logic test ( discussed
below) bears    on   the   closure question.   181 Wn.2d at 520. However, the court in Gomez clarified
that this test applies only to whether the public trial right attaches to a particular proceeding.
2015 WL 1590302, at * 4 n.3.

                                                             5
45497 -1 - II




outside the courtroom. We hold that the sidebar conference constituted a closure of the juror

selection proceedings because the public could not hear what was occurring.

C.           IMPLICATION OF PUBLIC TRIAL RIGHT


             1.    General Principles


             If a proceeding has been closed to the public, we next must determine whether that

proceeding implicates the public trial right. State v. Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715

 2012): "[        Mot 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."   Id.


             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 ( 201.3).         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."   Id. at


337; see also Wise, 176 Wn.2d at 11 - 12. Second, if the proceeding at issue does not fall within

an acknowledged category implicating the public trial right, we determine whether the

proceeding implicates the public trial right using the " experience and logic" test our Supreme

Court adopted in Sublett. Wilson, 174 Wn. App. at 335.

             2.     Juror Challenges Distinguished from Voir Dire


             Anderson argues that challenges for cause fall within a category of proceedings to which

the public trial right attaches under existing case law. Anderson bases his argument on Supreme

Court cases establishing that voir dire implicates a defendant' s public trial right. See, e. g., Wise,

176 Wn.2d at 11; Strode, 167 Wn.2d at 227. He argues that challenges for cause are part of the




                                                                 6
45497 -1 - II



voir dire process and that the public trial right therefore attaches to such challenges as well. We

disagree.


         Contrary to Anderson' s position, challenges for cause are not part of voir dire. In Wilson,

we held that only the voir dire aspect of jury selection automatically implicates the public trial

right.   174 Wn. App. at 338 -40. We used the term " voir' dire" as synonymous with the actual

questioning     of jurors,   referring to the " ` voir dire' of prospective jurors who form the venire."


Wilson, 174 Wn. App. at 338; see also State v. Slert, 181Wn.2d 598, 605, 334 P. 3d 1088 ( 2014)

 plurality    opinion   quoting this language   with approval).   In State v. Marks, we relied in part on


this language    from Wilson in     holding   that peremptory   challenges are not part of voir   dire. 184


Wn. App. 782, 787 -88, 339 P. 3d 196, petition for review filed, No. 91148 -7 ( Wash. Dec. 29,

2014).   Like the peremptory challenges at issue in Marks, challenges for cause constitute a

distinct proceeding that does not involve the questioning of jurors. See CrR 6. 4 ( distinguishing

voir dire from both peremptory challenges and challenges for cause).

         Here, the record neither shows nor suggests that the sidebar conference involved any

questioning of jurors. Because Anderson' s challenges were not part of the actual questioning of

jurors, they were not part of voir dire. Therefore, our Supreme Court has not yet addressed

whether juror challenges for cause implicate the public trial right.


         3.     Experience and Logic Test


         Because our Supreme Court has not addressed the issue, we must apply the Sublett

experience and logic test to determine whether the exercise of juror challenges for cause




                                                        7
45497 -1 - II



implicates      a   defendant'        s public     trial   right.    This test requires us to consider ( 1) whether the


process and place of a proceeding historically have been open to the press and general public

 experience         prong), and ( 2) whether access to the public plays a significant positive role in the


functioning         of   the proceeding ( logic prong). Sublett, 176 Wn.2d                       at    73. If the answer to both


prongs is yes, then the defendant' s public trial right " attaches" and a trial court must consider the


Bone -Club factors before closing the proceeding to the public. Sublett, 176 Wn.2d at 73.

                    a.     Application of Test to Sidebar Conferences

         In Smith, our Supreme Court concluded after applying the experience and logic test that

the   sidebar conference              in that   case   did   not    implicate the     public   trial   right.   181 Wn.2d at 511.


The   court   broadly       stated      that " sidebars       do    not   implicate the   public   trial   right."   Id. However,


Smith involved legal argument on evidentiary issues at a sidebar conference. Id. at 512. The

court framed the issue as addressing.whether " sidebar conferences on evidentiary matters"

implicate the        right.     Id.   at   513 (   emphasis added).             We view the Supreme Court' s holding in Smith

as limited to that issue, and rule that Smith is not controlling here. Therefore, we must apply the

experience and logic test.


                    b.     Experience Prong

         The experience prong of the Sublett test asks us to examine whether a particular practice

or proceeding historically has been accessible to the public in the. courts of this state. See

Sublett, 176 Wn.2d              at   73.   Because most of the opinions referencing juror challenges for cause



7 In Marks we applied the experience prong and held that the exercise of peremptory juror
challenges      does      not   implicate the        public     trial   right.    184 Wn. App. at 788 -89. However, whether
the exercise ofjuror challenges for cause implicates the public trial right involves a different
issue.

                                                                            8
45497 -1 - II




show that historically such challenges were made in open court, we conclude that the experience

prong supports a holding that such challenges do implicate the public trial right.

              It is difficult to apply the experience prong to juror challenges for cause because the

evidence regarding how trial courts historically have handled such challenges is slim. We are

not aware of any cases or secondary authorities that discuss whether the traditional practice over

the years has been to address for cause juror challenges in public or in private, or even whether

there was a traditional practice.


              However, what evidence we do have indicates that juror challenges for cause historically

have been addressed in public. The published opinions of Washington courts show that


challenges for cause have been exercised and ruled on in open court throughout the history of our

state.   See,       e. g.,   State   v.    Beskurt, 176 Wn.2d 441, 447, 293 P. 3d 1159 ( 2013); State v. Davis, 141


Wn.2d 798, 836, 10 P. 3d 977 ( 2000); State v. Moser, 37 Wn.2d 911, 917, 226 P. 2d 867 ( 1951);


State    v.   Stentz, 30 Wash. 134, 135 -37, 70 P. 241 ( 1902);                    State v. Murphy, 9 Wash. 204, 206 -08,

37 P. 420 ( 1894); State                  v.   Biles, 6 Wash. 186, 188, 33 P. 347 ( 1893); see also State v. Parnell, 77


Wn.2d 503, 504, 463 P. 2d 134 ( 1969);                         Wash. v. City ofSeattle, 170 Wash. 371, 373, 16 P. 2d 597

 1932); State          v.    Croney,       31 Wash. 122, 128, 71 P. 783 ( 1903); State v. Rutten, 13 Wash. 203,


204 -07, 43 P. 30 ( 1895);                  State v. Wilson, 16 Wn. App. 348, 352, 555 P. 2d 1375 ( 1976).

              Challenges for cause also sometimes have been made and ruled on at sidebar, particularly

in   recent years.           See,    e.   g., State   v.   Love, 176 Wn.   App.   911, 915, 309 P. 3d 1209 ( 2013),   review




granted        in   part,    181 Wn.2d 1029 ( 2015). But it appears that at least in earlier times, challenges


for cause at sidebar were quite rare. Only one older civil case provides a possible example of a

challenge for cause exercised at sidebar, and in that case there was a compelling reason to depart


                                                                       9
45497 -1 - II



from the   usual procedure —        the argument for dismissing the juror would have improperly exposed

prospective jurors to information about the defendants' liability insurance. Popof/ v. Mott, 14

Wn.2d 1, 9, 126 P. 2d 597 ( 1942).            Overall, the weight of historical practice favors exercising of

challenges for cause in open court.


          Division Three of our court in Love held that challenges for cause do not satisfy the

experience prong, stating that " there is no evidence suggesting that historical practices required

 for   cause] challenges    to be      made   in   public."   176 Wn. App.          at   918 ( emphasis   added).   The


court' s analysis in Love seems to redefine the Sublett experience prong as an inquiry into

whether challenges for cause historically were required to be made in open court. But the court

in Love   cited no    authority for this interpretation          of   the   experience     prong   analysis.   176 Wn. App.

at918.




          Our reading of the relevant cases indicates that the experience prong actually involves

asking whether the practice traditionally has been open to the public, whether required or not.

E.g., Smith, 181 Wn.2d       at   516 ( stating that "[       w]ithout any evidence the public has traditionally

participated    in   sidebars,   the   experience     prong    cannot       be   met" ( emphasis added)).      This reading is

consistent with the United States Supreme Court' s analysis in Press -Enterprise Co. v. Superior


Court (Press II), 478 U.S. 1, 8, 10, 106 S. Ct. 2735, 92 L. Ed. 2d 1 ( 1986),                         which guided our



Supreme Court in Sublett. 176 Wn.2d at 73 -74. The Court in Press II analyzed whether there


was a " tradition of accessibility" surrounding the proceeding at issue, 478 U.S. at 8, 10, and this

is the proper question to ask here as well. Accordingly, we reject the experience prong analysis

in Love and look to traditional practice, rather than historical requirements.




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45497 -1 - II




          In light of what appears to be the historical practice in Washington courts, the experience


prong favors a holding that challenges for cause implicate the public trial right.

                 b.    Logic Prong

          The logic prong of the Sublett test asks us to examine whether public access plays a

     significant positive role' "       in the functioning of the practice or procedure. at issue. Sublett, 176

Wn. 2d    at   73 ( quoting Press II, 478 U. S.      at   8).   Because public access provides a check against


both actual and apparent abuse of challenges for cause, we hold that the logic prong supports

extension of the public trial right to the exercise of challenges for cause.


          Under the logic prong, we look to the " values served by open courts" and " must consider

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.' "    Sublett, 176 Wn.2d at 74 -75


 quoting Press -Enterprise Co.           v.   Superior Court (Press I), 464 U.S. 501, 508, 104 S. Ct. 819, 78


L. Ed. 2d 629 ( 1984)).         We have held that this basic fairness is enhanced where " the public' s


mere presence passively contributes to the fairness of the proceedings, such as deterring

deviations from established procedures, reminding the officers of the court of the importance of

their functions,      and   subjecting judges to the        check of public        scrutiny."   State v. Bennett, 168 Wn.


App.    197, 204, 275 P. 3d 1224 ( 2012) ( emphasis              omitted);       see also State v. Sadler, 147 Wn. App.

97, 116, 193 P. 3d 1108 ( 2008) ( "[ T] he          purposes underlying apublic trial include ensuring that

the public can see that the accused is dealt with fairly and reminding officers of the court of their
                                                                                                                  8
responsibilities      to   assure   that the defendant receives         a   fair trial" ( citation   omitted)).




8 In Sublett, our Supreme Court expressly rejected our analytical framework in Sadler, pointing
to that opinion as an example of the categorical distinction approach we previously employed.

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45497 -1 - II




         We previously have found that public scrutiny is essential where challenges to

prospective jurors may be abused. See Sadler, 147 Wn. App. at 116 ( holding that Batson9

proceedings implicate the public trial right because " the public has a vital interest" in the issue of

    whether   the   prosecutor   has   excused   jurors because   of   their   race ").   Challenges for cause may be

less prone to arbitrary or improper exercise than peremptory challenges because a party must

offer, and the trial court must find, a legal reason for dismissing a juror for cause. However, the

public still has a vital interest in determining whether parties are making, and the trial court is

ruling on, challenges for cause for legitimate reasons.

         Further, challenges for cause exist specifically to ensure fairness in jury selection and,

ultimately, a fair trial before an impartial jury. See State v. Fire, 145 Wn.2d 152, 164, 34 P. 3d

1218 ( 2001).        Addressing such challenges in public enhances the appearance of fairness in this

process, and may well enhance actual fairness by reminding counsel of the importance of the

juror challenge process, and subjecting the trial court' s rulings to public scrutiny.

         In Love, Division Three of our court held that challenges for cause did not satisfy the

logic prong.        176 Wn. App. at 919 -20. The court seemed to indicate that because challenges for

cause involve legal questions, public oversight is of limited importance. See id. at 920 n.7. But


we have noted that " even in proceedings involving purely legal matters, the public' s presence



176 Wn.2d at 72; see also State v. Halverson, 176 Wn. App. 972, 977 n. 2, 309 P. 3d 795 ( 2013),
review   denied, 179 Wn.2d 1016 ( 2014). However, the Court in Sublett noted no deficiencies in
our discussion of the values served by public scrutiny or on the value of publicity in deterring the
abuse of challenges during jury selection. Further, the court denied review of Sadler after
deciding Sublett. 176 Wn.2d at 1032.
9
    Batson    v.   Kentucky,   476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 ( 1986) ( holding           that a party
cannot exercise peremptory juror challenges on the basis of race).
                                                           12
45497 -1 - II




may    ensure   the fairness      of such proceedings."        Bennett, 168 Wn. App. at 204. While the court in

Love reasoned that making a record of the challenges " satisfies the public' s interest in the case

and assures     that   all   activities   were conducted aboveboard,"          it seemed to discount the idea that


public oversight of the challenges and associated argument would enhance the appearance of


fairness   or   deter deviation from        established procedures.         176 Wn. App. at 920.

         Because our Supreme Court has indicated that the appearance of fairness and deterrence


of deviation from established procedures are important functions of the public trial right, we


disagree with Division Three and conclude that public access plays a significant positive role in


the functioning of juror challenges for cause. Therefore, the logic prong of the Sublett test

indicates that challenges for cause implicate the public trial right.


         Both the experience and logic prongs of the Sublett test support a holding that the

exercise ofjuror challenges for cause should occur in open court. Accordingly, we hold that

juror challenges for cause implicate a criminal defendant' s public trial right.


D.       JUSTIFICATION FOR CLOSURE.


         If the trial court has closed a proceeding to the public and that proceeding implicates the

public trial right, we must determine whether the trial court was justified in closing the

proceeding. In most cases, the trial court must expressly consider the five Bone -Club factors on

the   record.   Smith, 181 Wn.2d           at   520 ( stating that "[   a] closure unaccompanied by a Bone -Club

analysis on the record will almost never be considered justified ").


           Our Supreme Court has recognized that in extremely rare circumstances, a closure could

be justified without a Bone -Club analysis if an examination of the record shows that the trial


court " effectively weighed the defendant' s public trial right against other compelling interests."


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45497 -1 - II



Smith, 181 Wn.2d at 520. The court found no public trial right violation under such

circumstances   in State   v.   Momah, 167 Wn.2d. 140, 156, 217 P. 3d 321 ( 2009). But the court has


acknowledged that it is unlikely to ever again see a case like Momah. Smith, 181 Wn.2d at 520.

         Here, the trial court did not expressly consider the Bone -Club factors before holding the

sidebar conference. Further, there is no basis in the record for concluding that these factors

effectively have been satisfied through a balancing process. Therefore, we hold that the trial

court was not justified in hearing juror challenges for cause at a sidebar conference.

                                              CONCLUSION


         A sidebar conference addressing juror challenges for cause constitutes a closure of the

juror selection proceedings, and implicates a defendant' s public trial right. Here, the trial court


did not conduct a Bone -Club analysis or otherwise provide justification for not addressing for

cause juror challenges in open court. Accordingly, we hold that the trial court erred in

addressing juror challenges for cause at a sidebar conference.

         We reverse Anderson' s convictions and remand for a new trial.




         I concur:




                                                     14
45497 -1 - II



             MELNICK, J. (      concurrence) —          I   concur with     the   result   the majority    reaches.     However, I


write separately to supplement the majority' s analysis under the " experience and logic" test. See

Majority at 7 -8 ( analyzing State v. Sublett, 176 Wn.2d 58, 73 -74, 292 P. 3d 715 ( 2012)).

             I believe there is      additional     authority in CrR 6. 4 to         support      the majority' s position.     This


rule delineates procedures for selecting a jury. Specifically, after examination, when challenging

a juror for cause, a judge may excuse for cause that juror if grounds for the challenge exist. CrR
            10
6. 4( c).        If, however, the     challenge       for   cause   is denied   by the     opposing party, " the      court shall try

the issue        and   determine the law        and   the facts."     CrR 6. 4( d)( 1).     If the challenge is tried, the rules


of   evidence          apply   and   the     challenged      juror may be         called     as   a   witness,   subject to   cross -


examination.            CrR 6. 4 ( d)( 2).     If the court finds the challenge is sufficient or true, the juror shall

be   excluded.         CrR 6. 4( d)( 2).     Conversely, " if not     so   determined      or   found   otherwise,"   the challenge


shall be disallowed. CrR 6. 4( d)( 2).


             Because both the Sixth Amendment to the United States Constitution and article 1, section

22 of the Washington Constitution guarantee a defendant the right to a public trial and because




10 CrR 6. 4( c)( 2) references RCW 4. 44. 150 through 4. 44.200 as governing challenges for cause.
RCW 4. 44. 190 states,


                         a] challenge for actual bias may be taken for the cause mentioned in RCW
                        4. 44. 170( 2).But on the trial of such challenge, although it should appear
                        that the juror challenged has formed or expressed an opinion upon what he
                        or she may have heard or read, such opinion shall not of itself be sufficient
                        to sustain the challenge, but the court must be satisfied, from all the
                        circumstances, that the juror cannot disregard such opinion and try the issue
                        impartially.


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45497 -1 - II



challenges for cause involve trials, a trial court must either hold the trials in open court or utilize

the five part Bone- Clubll test.




11 State v. Bone -Club, 128 Wn.2d 254, 906 P. 2d 325 ( 1995).

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