                                                                                         FILED
                                                                                    COURT OF APPEALS
                                                                                            DIM10114 -11

                                                                                   2013 DEC -- 3        AM 9: 19
       IN THE COURT OF APPEALS OF THE STATESIT

                                                  DIVISION II'°
                                                                                               i5E UTY
STATE OF WASHINGTON,                                                            No. 42520 -3 -II


                                   Respondent,
                                                                           PUBLISHED OPINION
         V.



WAYNE BURDETTE,




         BJORGEN, J. —     Wayne Burdette appeals from his jury conviction for obstructing an

officer in performance of his lawful duties. He argues ( 1) the trial court violated his right to a


public trial and the public' s right to open proceedings by not conducting discussions about the

                                                     from the jury in    open court; ( 2)   the trial court violated
jury instructions   and   two   communications




his right to be present during critical stages of his trial by discussing its response to the second

jury communication outside his presence; and ( 3) the admission during sentencing of evidence

seized from his trailer violated the guarantees against warrantless searches of the federal


constitution' s Fourth Amendment and the state constitution' s article I, section 7. He also alleges


that defense counsel was ineffective by not moving to suppress a shotgun seized from his trailer

during a warrantless protective sweep.

         We hold that the trial court did not violate either Burdette' s right to a public trial or the

public' s right to open proceedings, because none of these rights attached to the challenged


proceedings. We hold that Burdette' s absence during the court' s consideration of the second

jury   communication violated      his   right   to be   present at a critical stage of   trial,   but that this   error
No. 42520 -3 - II



was harmless. We also hold that, based on the record before us, the suppression and ineffective

assistance of counsel issues are moot.

                                                    FACTS


                                       1. THE ARRESTS AND SEARCH


        On the night of June 10, 2011, a Mossyrock police officer stopped Burdette for speeding

in his truck and making a turn without signaling. Upon learning the reasons for the traffic stop,

Burdette became argumentative and increasingly hostile toward the officer. At one point,

Burdette began walking toward the officer with his hand behind his back, despite the officer' s

repeated orders to stop and to get back in his truck. Burdette, who was " highly upset and

aggravated"   eventually   returned   to   and entered   his truck. Report   of   Proceedings ( RP) (   Aug, 17,

2011) at 77 -78.


        After a Washington State Patrol trooper arrived, the police officer approached Burdette' s

truck on the driver' s side, while the trooper approached from the passenger' s side. The trooper

saw that Burdette had a gun and warned the officer, who pulled out his firearm and ordered


Burdette to show him his hands. Burdette did not comply, but instead reached downward with

his right hand out of the officer' s sight. After the trooper told the officer that Burdette had a gun

at the small of his back, Burdette slowly moved his right hand to the steering wheel. The officer

removed Burdette from the truck, handcuffed him, and removed a loaded .40 caliber handgun


from Burdette' s waistband. Burdette was arrested for driving under the influence.

         After Burdette' s release from custody on the driving under the influence charge, the State

charged him with one count of felony harassment and one count of obstructing a law




                                                          2
No. 42520 -3 - II



enforcement officer in the performance of his official duties. The State obtained an arrest


warrant based on these charges.


        When law enforcement officers went to Burdette' s trailer to execute the warrant, they

called for him to come outside. As Burdette was being handcuffed, an officer entered the

trailer' s " threshold" and performed a protective sweep for weapons. Clerk' s Papers ( CP) at 21.

The   officer observed a        12 -gauge pump      action shotgun         located " directly inside the            doorway "; the

shotgun was positioned so that its barrel was pointed at " head level" at the doorway, and it could

be fired   while    Burdette     lay   in bed. CP   at   21.   The sheriff's office subsequently obtained a search

warrant for Burdette' s trailer and, during the search, found four written statements generally

indicating a severe dislike of and murderous intent toward officers.

                     II. THE JURY INSTRUCTIONS AND RESPONSES TO JURY COMMUNICATIONS


           After hearing pretrial motions, the trial court and counsel met in chambers to discuss jury

instructions. Before closing argument, the trial court stated outside the jury' s presence,

 Yesterday we       met    in   chambers and went over            the   jury   instructions."      RP ( Aug. 19, 2011) at 2.

The trial court asked for the parties' objections to the instructions, and Burdette stated he had

none.




           During deliberations, the jury submitted two communications to the trial court. The first

communication, submitted at              1: 20 p. m.,   read, "   In the Harrassment [ sic]         (   Bodily Injury) charge,

why is # 2 — `that the words or conduct of defendant placed officer in reasonable fear that the


threat to   kill   would   be   carried out'; when ( Threat         to Kill)     charge   already        states   that ?" CP at 26



 emphasis omitted).         The trial court responded by stating that the instruction was in error and

correcting it. The      second communication, submitted at                     2: 26 p. m.,   on   the   second     day   of   trial,
No. 42520 -3 -II



stated, "     Jury   is deadlocked   over several   issues relating to the defendant'   s   intent." CP at 27. The


trial   court' s written response stated, "[      P] lease continue to deliberate in an effort to reach


verdicts."       CP at 27. The court' s written responses to both jury communications also stated that

they    were submitted " after       affording               parties
                                                 all counsel /         opportunity to be heard."    CP at 27. The


record does not reflect where any discussions about the trial court' s responses were held.'

              The jury acquitted Burdette of the harassment charge, but found him guilty of the

obstruction charge. He appeals.


                                                       ANALYSIS


                                                 I. PUBLIC TRIAL RIGHT


              Burdette argues that the trial court violated his right to a public trial and the public' s right


to open proceedings by not holding discussions about jury instructions in open court and by not

discussing its responses to the two jury communications in open court. Based on our Supreme

Court'    s recent    decision in State   v.   Sublett, 176 Wn.2d 58, 292 P. 3d 715 ( 2012) ( plurality


opinion),       we hold that the public trial right did not attach to either of these proceedings. Thus,


the trial court did not violate either Burdette' s or the public' s right by not holding these

proceedings in open court.


A.            The Legal Standards


              Whether a violation of the public trial right exists is a question of law we review de novo.

State    v.   Momah, 167 Wn. 2d 140, 147, 217 P. 3d 321 ( 2009), cent. denied, 131 S. Ct. 160 ( 2010).




  The record states that the court took a recess " until the jury reaches a verdict" and continues
when the jury returned to read its verdict. See RP ( August 19, 2011) 51.
                                                             2
No. 42520 -3 -II



A criminal defendant has a right to a public trial under the federal and state constitutions. State

v.   Lormor, 172 Wn.2d 85, 90 -91, 257 P. 3d 624 ( 2011); U. S. CONST. amend. VI; WASH. CONST.


art.   I, § 22.      Likewise, the public has a complementary right to open proceedings under the

federal and state constitutions. Lormor, 172 Wn.2d at 91; U. S. CONST. amend. I; WASH. CONST.

art.   I, §   10. These rights, however, are not absolute, and a trial court may close the courtroom

under certain circumstances. Momah, 167 Wn.2d at 148; State v. Easterling, 157 Wn.2d 167,

174 -75, 137 P. 3d 825 ( 2006).               Specifically, Washington courts may close a part of a trial to
                                                                                                   2
which     the      public   trial   right applies     only   after   applying the Bone -Club           guidelines and making


specific findings on the record justifying a closure. Momah, 167 Wn.2d at 148.

              However, " 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."   Sublett, 176


Wn.2d         at   71.   Thus, the first step in the analysis is to determine whether the actions at issue fall

under the umbrella of these rights.




2 These guidelines are:
        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.
State     v.       Bone -Club, 128        Wn.2d       254, 258 -59,         906   P. 2d 325 ( 1995) (       quoting Allied Daily
Newspapers v. Eikenberry, 121 Wn.2d 205, 210 -11, 848 P. 2d 1258 ( 1993)).
                                                                        5
No. 42520 -3 - II



        To make that determination, the Supreme Court in Sublett adopted an " experience and

               3
logic" test.       Sublett, 176 Wn.2d at 72. Sublett admittedly dealt with a criminal defendant' s right

to a public trial under the Washington Constitution, article I, section 22, not the public' s right to


open proceedings under the First Amendment to the United States Constitution or article I,

section 10 of our state constitution. Burdette here raises challenges under both rights. The


Sublett court, though, adopted the experience and logic test from Press -
                                                                        Enter. Co. v. Superior


Court, 478 U. S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d 1 ( 1986) ( Press II), a First Amendment case,


and noted further that the public' s right to open proceedings under article I, section 10 of our

state constitution mirrors the First Amendment. Sublett, 176 Wn.2d at 71 n.6, 73. Sublett also


observed that our Supreme Court has " historically analyzed allegations of a court closure under

either article I, section 10 or article I, section 22 analogously, although each is subject to

different   relief   depending   upon who asserts   the   violation."   Sublett, 176 Wn.2d at 71 n. 6. Thus,


the plain force of Sublett is that we use the experience and logic test to determine whether an


event triggers the protections of either set of constitutional rights securing open trials.4



3 The lead opinion in Sublett was a plurality opinion by four justices. Justice Madsen' s
concurrence, though, agreed with both the lead opinion' s conclusion that not all trial proceedings
closed to the public implicate the public trial right and its adoption and application of the
experience and logic test. Sublett, 176 Wn.2d at 92 -94. Thus, these holdings commanded the
support of a majority of the court. See 176 Wn.2d at 95, 99.

4 The decisions of the Court of Appeals differ as to whether a criminal defendant has standing to
raise the public' s right to open proceedings. In State v. Wise, 148 Wn. App. 425, 442 -43, 200
P. 3d 266 ( 2009),      reversed on other grounds,   176 Wn. 2d 1, 288 P. 3d 1113, 1120 ( 2012), we held
that a criminal defendant does not have standing to raise the public' s right to open proceedings.
On the other hand, Division One held in In re Detention of Ticeson, 159 Wn. App. 374, 381 -83,
246 P. 3d 550 ( 2011), that criminal defendants do have standing to raise the public' s right to open
proceedings, but may not raise such a claim for the first time on appeal absent showing of
 practical and identifiable consequences at trial." 159 Wn. App. at 383. We need not try to

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No. 42520 -3 -II



            The experience and logic test determines whether " the core values of the public trial right


are   implicated"        by     the trial event at     issue. Sublett, 176 Wn.2d                   at   73.   To do so, the test poses two


questions.        First, the      experience       prong    asks "`       whether the place and process have historically

been   open       to the      press and general public. "'             Sublett, 176 Wn.2d at 73 ( quoting Press II, 478

U.S.   at   8).   Next, the logic prong             asks "`   whether public access plays a significant positive role in


the   functioning        of    the    particular process       in    question."'        Sublett, 176 Wn.2d at 73 ( quoting Press

II, 478 U.S.       at   8).    In applying the logic prong, a court should consider " the values served by

open courts."           Sublett, 176 Wn.2d            at   74 -75.    One manner of doing so is through comparison of

the proceeding' s nature to that of the criminal trial itself, such as whether the same criminal

rights attach, the importance of the proceeding in the overall trial, and whether the jury is present

during the        proceeding. Sublett, 176 Wn.2d                     at   74. Not every          case,   though, "   will fit cleanly

within a comparison               between the proceeding                  at   issue   and   trial in   general,"   so the trial or



reviewing         court 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 (   alteration   in    original) (    quoting Press -Enter. Co. v. Superior Court,

464 U. S. 501, 508, 104 S. Ct. 819, 78 L. Ed. 2d 629 ( 1984) ( Press I)). If the answer to both the


experience and logic prong is yes, the public trial right attaches. Sublett, 176 Wn.2d at 73.




unsnarl this apparent conflict here, because the experience and logic test plainly shows that the
trial court did not err under either constitutional guarantee.

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No. 42520 -3 -II .



B.       Responses to Jury Communications


         Burdette argues that the trial court' s failure to discuss the two jury communications in

open court violated his right to a public trial and the public' s right to open proceedings. This

argument stumbles at the outset, since the record does not reflect whether the discussion about


the trial court' s responses to the jury' s communications was held outside the public' s purview or

merely off the record, but in open court. In State v. Bennett, 168 Wn. App. 197, 206 -07, 275

P. 3d 1224 ( 2012),       we observed that appellants bear the burden of demonstrating a violation of

the   public   trial   right and urged parties and counsel       to "   make an adequate record ....         about what




transpired during any conference" not held in open court in order to obtain effective appellate

review. Our admonition applies with equal strength to making a record at trial of where such

conferences occurred. Because the record does not show where the discussions about the jury

communications occurred, we arguably could reject Burdette' s claim because he cannot meet his

burden of demonstrating that these discussions did not occur in open court. However, because

Sublett clearly resolves Burdette' s claim and discussion of the Sublett decision will be beneficial

in subsequent cases, we reach the merits of the issue.


          The Sublett court specifically examined whether consideration of a jury question about an

instruction implicated the        public   trial   right.   Sublett, 176 Wn.2d        at   75.   In applying the
                                                                                      5
experience      prong, the Sublett    court observed        that CrR 6. 15(   f)(1)       was " the only authority [ it



5 CrR 6. 15( f)(1) provides:
                  The jury shall be instructed that any question it wishes to ask the court
          about the instructions or evidence should be signed, dated and submitted in
          writing to the bailiff.       The court shall note the parties of the contents of the
          questions and provide them an opportunity to comment upon an appropriate
          response.         Written   questions      from the     jury, the court' s response and any
          objections thereto shall      be   made apart        of the   record.       The   court shall respond    to
No. 42520 -3 -II



could]   find governing this      process."      Sublett, 176 .Wn.2d at 77. The court further observed that


CrR 6. 15( f)(1) requires the trial court to make the jury' s question, any objections, and the trial

court' s response part of the record, but the rule does not require the trial court to seek objections


and give its response in open court. Sublett, 176 Wn.2d at 76 -77. The Sublett court concluded


that " historically,    ... a proceeding in open court to discuss the [jury] question itself and any

appropriate answer        has   not   been   required."   Sublett, 176 Wn.2d at 77. Thus, the appellants did


not meet the experience prong, and the public trial right did not attach to discussions regarding

jury questions about its instructions. See Sublett, 176 Wn.2d at 77.

         In applying the logic prong, the Sublett              court     held that "[ CrR 6. 15( f)(1)]   advances and




protects those interests underlying the constitutional requirements of open courts with its

directive to    put   the question, answer; and objections in the                record."    Sublett, 176 Wn.2d at 77.


Sublett further reasoned that


          n] one of the values served by the public trial right is violated under the facts of
         this case.  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.        This is
         not a proceeding so similar to the trial itself that the same rights attach, such as
         the right to appear, to cross -examine witnesses, to present exculpatory evidence,
         and    to    exclude   illegally    obtained evidence.-          Neither Sublett nor Olsen claim or




         all    questions   from       a   deliberating jury        in    open    court     or   in writing.    In its

         discretion, the court may grant a jury' s request to rehear or replay evidence, but
         should do so in a way that is least likely to be seen as a comment on the evidence,
         in a way that is not unfairly prejudicial and in a way that minimizes the possibility
         that   jurors   will give undue weight           to   such evidence.        Any additional instruction
          upon any point oflaw shall be given in writing.
 Emphasis added.)



                                                                C
No. 42520 -3 -I1



             argue any of these rights, nor could they since such rights are inapplicable in the
          discussion of, or resolution of, questions from the jury.

Sublett, 176 Wn.2d at 77 -78. Under these criteria, the appellants did not meet the logic prong

either, and the public trial right did not attach to discussion of the jury questions about the

instructions. See Sublett, 176 Wn.2d at 77 -78.


             As in Sublett, the first jury communication in the present appeal posed a question about a

jury instruction. Accordingly, Sublett controls the issue and dictates that the public trial right did

not attach to the trial court' s response to that first communication. For this reason, Burdette' s

claim that his public trial right was violated when the trial court answered the first jury

communication outside of open court fails.


             The   jury   also submitted a second communication       stating, " Jury   is deadlocked over

several      issues relating to the defendant'     s   intent." CP at 27. This communication was not a direct


request for clarification of the jury instructions, but rather appears to be a request for instructions

about how to proceed when the jury feels it is deadlocked on a specific issue. Given the

procedures that govern how a trial court addresses a jury' s claim that it is deadlocked, neither the

experience prong nor the logic prong demonstrates that the public trial right attached.

             A jury' s assertion that it is deadlocked may result in the trial court declaring a mistrial.

State   v.   Jones, 97 Wn.2d 159, 163, 641 P. 2d 708 ( 1982). However, to               create   the "` extraordinary



and   striking "'    circumstances that justify a mistrial, there must be a factual basis for the trial

court' s determination that the jury is hopelessly deadlocked. Jones, 97 Wn.2d at 164 ( quoting

State   v.   Bishop, 6     Wn.   App.   146, 150, 491 P. 2d 1359 ( 1971)).   At times, the jury' s own statement

that it is hopelessly deadlocked can serve as the factual basis for the trial court' s decision to grant

a mistrial. Jones, 97 Wn.2d at 164. However, the trial court may consider additional

                                                             10
No. 42520 -3 -II



circumstances when determining whether the jury' s assertion is a genuine statement of hopeless

deadlock, such as the length of the trial and the length of time the jury has been deliberating.

Jones, 97 Wn.2d at 164.


        Here, the jury' s bald assertion of deadlock came, at most, a few hours after the jury began

deliberating, and the statement came less than an hour after the jury was provided with a

corrected instruction on the harassment charge. Considering these factors, it appears that the trial

judge did not consider the jury' s statement to be a genuine statement of hopeless deadlock,

which would trigger consideration of a mistrial. Furthermore, there is no indication that Burdette


asked for a mistrial based on the jury' s assertion of deadlock.

        We recognize the difference between the trial court considering whether the jury' s

assertion is a genuine statement of hopeless deadlock and considering whether the jury' s

assertion of hopeless deadlock justifies a mistrial. A motion for a mistrial has historically been

heard on the record in open court. Therefore, the experience prong of the Sublett test indicates

that the public trial right would attach. In addition, a motion for a mistrial based on a hung jury

requires   considering the defendant'   s "`   valued right to have his trial completed by a particular

tribunal "'   and the defendant' s constitutional protection against double jeopardy. Jones, 97

Wn.2d at 162 ( quoting Arizona v. Washington, 434 U.S. 497, 503 n. 11, 98 S. Ct. 824, 54 L. Ed.

2d 717 ( 1978)).    Considering the important constitutional rights implicated by a motion for a

mistrial, the logic prong would also require that the defendant' s public trial right attaches.

        However, a jury' s initial request for an instruction about how to proceed if they are

deadlocked is not a motion for a mistrial. Rather, if the trial court has reason to believe that the


statement is not a genuine statement of hopeless deadlock, it is similar to a request for



                                                        11
No. 42520 -3 - II



clarification of the jury instructions governing how to proceed in deliberations. That appears to

be the case here. The jury' s second message was not that it was hopelessly deadlocked on the

case or any of its aspects, but rather was its first communication that it was having trouble

agreeing on a specific legal question, the element of intent. The trial court, significantly, did not

treat the jury' s message as a declaration of deadlock by polling the jurors or by considering a

mistrial. The jury was requesting guidance or clarification on a specific issue. As explained

above, the public trial right does not attach to jury questions regarding clarification of jury

instructions. Sublett, 176 Wn.2d at 76 -77. This request was most similar to that sort of


clarification. Accordingly, given all the facts of this case, Burdette' s public trial right did not

attach to an initial jury question requesting clarification about how to proceed when it feels it is

deadlocked.


         Under the experience and logic test, Burdette' s public trial right did not attach to the


court' s responses to the jury' s communications during deliberation.

C.       Initial Discussions of Jury Instructions


         Turning now to the initial discussion ofjury instructions, Burdette points out that this

event occurred in closed session, because the court stated on the record and in open court,


 Yesterday    we met   in   chambers and went over   the   jury instructions." RP ( Aug. 19, 2011) at 2.

He argues that this discussion violated his right to a public trial and the public' s right to open

proceedings.




         Sublett dealt with jury questions about already issued instructions, not about the

formulation ofjury instructions. Nonetheless, Sublett viewed the issue before it as similar in

nature   to proceedings regarding   jury   instructions in   general.   Sublett, 176 Wn.2d   at   75. It




                                                      12
No. 42520 -3 -II



observed that CrR 6. 15( a) requires the parties to submit proposed instructions in writing.

Sublett, 176 Wn.2d           at    75.   It further observed that, before the trial court instructs the jury, CrR

6. 15( c) requires the trial court to provide counsel the opportunity to object to the instructions in

the jury' s absence. Sublett, 176 Wn.2d at 75. It noted that Washington law requires these

objections, as well as their grounds, to be made on the record to preserve them for review.

Sublett, 176 Wn.2d            at   75 -76.   Finally, the   court stated, "   We have found no challenges to [ CrR


6. 15( a)   or   CrR 6. 15(   c)]   or, prior to [ CrR 6. 15' s] enactment, any case requiring the discussion of

jury   instructions to be held in            open court."    Sublett, 176 Wn.2d at 76.


            These observations disclose the Supreme Court' s view that Washington law has not


historically required such discussions to be held in open court. Thus, Burdette fails to meet the

experience prong, and the public trial right did not attach to any of the jury instruction

discussions in this case.


                                                   II. RIGHT TO BE PRESENT


            Burdette next argues that the trial court violated his right under the federal and state


constitutions to be present during critical stages of his trial when it discussed its response to the

jury' s second communication outside his presence. We agree that the proceedings violated

Burdette' s right to be-present, but hold the error to be harmless in these circumstances.


            In State   v.   Irby,    170 Wn.2d 874, 246 P. 3d 796 ( 2011), the trial judge conducted an e -mail


exchange with counsel over whether certain potential jurors should be excused for cause. The

defendant argued that his exclusion from this exchange violated the Fourteenth Amendment to

the United States Constitution and article I, section 22 of the Washington Constitution.




                                                                   13
No. 42520 -3 -II



          Irby held that under the Sixth and the Fourteenth Amendments to the United States

Constitution, a criminal defendant has a fundamental right to be present at all critical stages of a


trial. Irby, 170 Wn.2d at 880 -81 ( citing Rushen v. Spain, 464 U. S. 114, 117, 104 S. Ct. 453, 78

L. Ed. 2d 267 ( 1983); United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d


486 ( 1985).      The defendant has that               right "`   whenever his presence has a relation, reasonably

substantial,     to the ful[ l] ness      of    his opportunity to defend            against   the   charge. "'   Irby, 170 Wn.2d

at 881 ( quoting Snyder v. Massachusetts, 291 U.S. 97, 105 -06, 54 S. Ct. 330, 78 L. Ed. 674

 1934),   overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct.

1489, 12 L. Ed. 2d 653 ( 1964)).                  Drawing from Irby, we stated in Bennett, 168 Wn. App. at 203-

04, that "[ t] he   defendant' s right to be present encompasses situations in which he may actively

contribute      to his   own    defense, ...        as well as critical stages of trial where his presence has a


relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."

 Internal quotation marks omitted.)


          Irby also noted, though, that because the relationship between the defendant' s presence

and   his "` opportunity to defend "'              must       be "` reasonably      substantial, "'    a defendant does not have a


right   to be   present when       his     or    her "` presence would be useless, or the benefit but a shadow."'


Irby,   170 Wn.2d        at   881 ( quoting Snyder, 291 U. S.                at   106 -07). The due process right to be


present   is therefore        not absolute; rather "`           the presence of a defendant is a condition of due

process    to the   extent     that   a   fair   and   just   hearing   would      be thwarted       by his   absence. "'   Irby, 170

Wn.2d at 881 ( quoting Snyder, 291 U. S. at 107 -08).

          Irby concluded that the e -mail exchange was a portion of the jury selection process, that it

was a critical stage of the trial, and that the defendant had a right to be present under the federal



                                                                        14
No. 42520 -3 -II



constitutional guarantees. Irby, 170 Wn.2d at 882 -84. The court further held that under article I,

section   22   of   the   state constitution,      the    accused    in    a criminal prosecution   has the   right "` to. appear




and   defend in      person and        by   counsel ...        at every stage ofthe trial when his substantial rights

may be    affected. "'       Irby, 170 Wn.2d at 884 -85 ( quoting State v. Shutzler, 82 Wash. 365, 367, 144

P. 284 ( 1914).        Irby held that jury selection was such a stage, and the defendant had a right to be

present at it. Irby, 170 Wn.2d at 885.

          Little case law was found on a defendant' s right to be present during a court' s

consideration of a          jury    communication such as            the   second one posed   here.   Generally, a criminal

defendant " does          not   have   a right   to be   present    during ...    conferences between the court and


counsel on legal matters, at least where those matters do not require a resolution of disputed

facts." In     re   Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P. 2d 835 ( 1994) (                      citation




omitted).      More specifically, our decision in Sublett held that a conference in chambers

concerning " how to respond to the jury' s request for a clarification in one of the trial court' s

instructions" was not a critical stage of the proceedings because it involved only a purely legal

question.      State   v.   Sublett, 156 Wn. App. 160, 183, 231 P. 3d 231 ( 2010),                  aff'd, 176 Wn.2d 58,
                                6
292 P. 3d 715 ( 2012).


          The one case we have examined dealing with the right to be present for discussion of a

statement of        deadlock is United States             v.   Fontanez, 878 F. 2d 33, 34 -35 ( 2d Cir. 1989). In that


case, the jury informed the court that it was unable to reach a verdict. Even though the

government told the court that the defendant was about to be escorted back to the courtroom, the



6 The appellants in Sublett abandoned the right- to -be- present issue in their petitions for review to
the Supreme Court. Sublett, 176 Wn.2d at 68 n. 3.


                                                                      15
No. 42520 -3 -II



court gave a modified Allen? charge to the deadlocked jury and ordered them to resume

deliberations.   Within two hours, the jury returned a guilty verdict.

          The Second Circuit reversed the conviction, holding that the defendant had a right to be

present at this stage. In its analysis the court cited Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057,


25 L. Ed. 2d 353 ( 1970), for the rule that a criminal defendant has the right to be present at " all


stages" of trial. Fontanez, 878 F. 2d at 35. Allen, however, was based on the Confrontation

Clause of the Sixth Amendment and cannot be read to override later decisions such as Rushen


and Gagnon, cited above, linking the constitutional right to be present to " critical" stages of trial.

Allen, 397 U.S. at 338. Fontanez also based its ruling on Federal Rule of Criminal Procedure 43,

which, with limited exceptions, states that a defendant has the right to be present at " all stages"


of   trial. Fontanez, 878 F. 2d at 35.   In sum, even though its " all stages" rule may not be

applicable in state court, Fontanez does hold that a defendant has a constitutional right to be


present when the court is responding to a message that the jury is deadlocked.

          As discussed in part I. B., above, the essence of the second jury communication was an

inquiry as to how the jury should proceed when it felt deadlocked on the defendant' s intent. To a

defendant, all may pivot on how long the court will require a deadlocked jury to continue

deliberations before declaring a mistrial. In some situations, a defendant may desire a quick

mistrial and in others more deliberations in hope of an acquittal. Whatever the case, much is at


stake at this stage and a defendant may reasonably wish to actively participate by making his

opinion known to his lawyer or, if allowed, to the judge. For these reasons, the defendant' s


presence at this stage has a direct relation to the fullness of his opportunity to defend against the


7 See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 ( 1896).
                                                     16
No. 42520 -3 -II



charge.. Therefore, under the rules announced in Irby and Bennett, above, Burdette had a right

under the state and federal constitutions to be present when the response to the second


communication from the jury was discussed.

        A violation of the right to be present at trial, whether anchored in due process or article I,


section 22 of our state constitution, is subject to harmless error analysis. Irby, 170 Wn.2d at 885-

86 ( citing State   v.   Caliguri, 99 Wn.2d 501, 664 P. 2d 466 ( 1983)).   The burden of proving

harmlessness is on the State and it must do so beyond a reasonable doubt. Irby, 170 Wn.2d at




        Although the presence of prejudice was only glancingly briefed, the facts show it very

unlikely that Burdette' s absence had any effect on the judge' s response to the second jury

communication. The trial judge read the jury instructions and the parties gave closing argument

in the morning of the second day of trial. Thus, with an intervening lunch break, the second jury

communication at 2: 26 p.m. could have come only after short deliberations. On this record, the

judge' s directive to continue deliberating after so short a period seems nearly inevitable. Further,

the jury' s message was not that it was hopelessly deadlocked, but that it could not decide

whether the required element of intent was present. With disagreement focused on one issue, the


trial judge had even more reason to direct further deliberations. Finally, Burdette does not argue

what he would have said or done had he been present when the second jury communication was

discussed. Under these circumstances, the error in proceeding without Burdette caused him no

prejudice. The error was harmless beyond a reasonable doubt.




                                                       17
No. 42520 -3 - II



                            III. SUPPRESSION AND INEFFECTIVE ASSISTANCE ISSUES


        Over Burdette' s objection, the State successfully moved the trial court to consider during

sentencing the written statements seized from Burdette' s trailer. The trial court expressly

referred to these statements in imposing Burdette' s term of confinement, but it did not impose

any community custody or other probationary sentence conditions. Burdette completed his term

of confinement on April 13, 2012.


        Burdette now renews his argument that probable cause did not support the search warrant

through which the statements were seized. He also argues for the first time on appeal that the


warrantless protective sweep of his trailer violated his rights under the federal constitution' s

Fourth Amendment and the state constitution' s article I, section 7. Finally, he argues that

defense counsel was ineffective in failing to move to suppress the evidence on the grounds that

the warrantless protective sweep was unlawful. These claims, however, are now moot.

        An issue is moot, among other reasons, if it "involves only abstract propositions or

questions, ...      or   if a   court can no   longer   provide effective relief."   Spokane Research &   Def.

Fund   v.   City   of Spokane, 155 Wn.2d 89, 99, 117 P. 3d 1117 ( 2005).             The controversy at issue in

the litigation must be " a real and substantial controversy admitting of specific relief through a

decree of a conclusive character, as distinguished from an opinion advising what the law would

be   upon a   hypothetical       state of   facts."   Aetna Life Ins. Co. ofHartford, Conn. v. Haworth, 300

U.S. 227, 240 -41, 57 S. Ct. 461, 81 L. Ed. 617 ( 1937).


            The seized writings were admitted only during the sentencing phase of trial; thus, if we

found Burdette' s claims meritorious, the only remedy we could provide would be a remand for

resentencing. Burdette, though, has served his term of confinement and is not on any type of


                                                              18
No. 42520 -3 -II



probation or community custody. Thus, no effective relief can be provided, and the issues are

moot.




         Burdette argues that a ruling in his favor on these issues would still provide him effective

relief if we remanded for a new trial based on the public trial right or right to be present issues.

But, as discussed above, no public trial right was violated and Burdette' s exclusion from


consideration of the second jury communication was harmless error. Consequently, we order no

remand or retrial. Burdette argues also in a single, conclusory sentence that these issues are not

moot because " the lawfulness of the search may impact collateral matters, including any civil

suit [ he] elects       to   pursue."     Reply   Br.   of   Appellant    at   4. However, "[ p] assing treatment of an


issue   or   lack   of reasoned argument            is insufficient to     merit   judicial   consideration."   State v.


Hathaway, 161 Wn. App. 634, 650 n. 10, 251 P. 3d 253, review denied, 172 Wn.2d 1021 ( 2011);

see also      Orwick       v.   City   of Seattle, 103 Wn.2d 249, 256, 692 P. 2d 793 ( 1984) ( " It is not the


function      of   trial   or appellate courts      to do    counsel' s   thinking     and   briefing. "). Thus, we do not

consider Burdette' s collateral consequences argument.

                                                                                                                                 8
         For these           reasons,    the   suppression and    ineffective      assistance of counsel    issues   are moot.




8
    Burdette    also    filed    a statement of additional grounds (             SAG). RAP 10. 10. In his SAG, Burdette
argues   that ( 1) "[        t] he   charges were   unjustified....       It is not illeagle [ sic] to speak in the U. S. A.
See First Amendment! All I have done is                       speak," and ( 2)     "
                                                          Speaking does not justifie [ sic] a
Special] W[ eapons] A[nd] T[ actics] team raid and search of my home. Fourth Amendment."
SAG at 1.
             First, although RAP 10. 10 does not require appellants to refer to the record or cite
authority, it requires them to inform this court of the " nature and occurrence of alleged errors."
Burdette' s assertion of error is too vague to allow this court to identify his alleged First
Amendment issue, and we do not reach it.
             Second, Burdette appears to challenge the protective sweep and subsequent search of his
home. But, as we discuss above, these issues are moot.



                                                                    IM
No. 42520 -3 -II



        We affirm.




                       BFT
 concur:




            A.C. J.




                      20
No. 42520 -3 - II



         QUINN- BRINTNALL, J. ( concurring in the               result) —        I agree with the result reached by the

majority, that Wayne Burdette'               s convictions    should      be   affirmed.   However, I write separately

because, in my opinion, several issues that the majority addresses rely on assumptions regarding

facts outside the record and, thus, are more appropriately addressed through a personal restraint
                     9
petition ( PRP).          Specifically, I do not believe that there are sufficient facts in the record to allow

this court to address the merits of Burdette' s claim that ( 1) the responses to jury communications

violated his public trial right, and ( 2) the trial court violated his right to be present.

         Burdette argues that his public trial right was violated when the court issued responses to


jury   communications.           The majority holds that under the experience and logic test, closing the

courtroom for discussing the proper response to jury communications does not constitute a

closure that implicates the public trial right. But the record before this court does not contain any

information establishing the          court was closed at all. "[          A] closure ` occurs when the courtroom is


completely and purposefully closed to spectators so that no one may enter and no one may

leave. "'    State   v.   Sublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012) (               quoting State v. Lormor, 172

Wn.2d 85, 93, 257 P. 3d 624 ( 2011)).                 Accordingly, to apply the experience and logic test, the

majority assumes the discussion occurred in a closed courtroom. It is well -settled that this court

will not resolve          issues that rely   on   facts   outside   the   record on appeal.    State v. McFarland, 127


Wn.2d 322, 335, 899 P. 2d 1251 ( 1995).                      An issue that relies on facts outside the record is


properly addressed in a PRP. McFarland, 127 Wn.2d at 335.

            I would not have addressed the merits of the above issues due to the inadequate record.

If, however, the record established the- facts the majority assumes, I agree with the result of the


  RAP 16. 3.

                                                                21
No. 42520 -3 - II



majority'    s    analysis.        Specifically, I will note that the majority opinion makes an important

distinction between a jury communication that is a genuine statement of hopeless deadlock and a

jury' s request for instructions about how to proceed when they believe they may be deadlocked.

If the trial court determines that the jury' s communication is a genuine statement of hopeless

deadlock, then the jury communication triggers procedures to examine the situation and consider

whether      a mistrial       is   appropriate.   State   v.   Jones, 97 Wn.2d 159, 164, 641 P. 2d 708 ( 1982).


Accordingly, I agree that a defendant' s public trial right does not attach to a jury communication

until the trial court determines that the communication is a genuine statement of hopeless

deadlock.


         Burdette also asserts that the trial court violated his right to be present at both the initial


discussion regarding jury instructions and the discussions regarding the trial court' s response to

the   jury   communications.           There is no evidence in the record establishing whether Burdette was

present at either of       these     events.   To address Burdette' s claim that the initial discussion regarding

jury instructions violated his right to be present, the majority relies on speculation that Burdette

was not present.




         And to properly address Burdette' s challenge to the trial court' s discussion regarding

responses to the jury communications, the majority also must assume that Burdette was not

present —        an assumption which is contradicted by reasonable inferences from the record.

Although the record is not entirely clear about the procedures the trial court used to review the

jury' s questions, the trial court' s written response to the jury clearly states that the response was

made after        giving   all counsel and parties        the opportunity to be heard.   The reasonable inference


from this statement is that Burdette participated in the decision, regardless of where the



                                                                 22
No. 42520 -3 - II



discussion   occurred.      A reviewing court should not assume facts outside the record, especially

facts which contradict reasonable inferences from facts contained in the record.

         Here,    we    cannot review        Burdette'       s"   right     to be   present"   challenge, without assuming


facts   outside   the   record.   Thus, a PRP, not a direct appeal, is the appropriate mechanism for


Burdette to seek review of any right to be present claim. McFarland, 127 Wn.2d at 335.

         I would not have addressed the merits of the above issues due to the inadequate record.


Because the record clearly establishes that the initial discussion regarding jury instructions

occurred in a closed session in chambers, I concur without reservation in the majority' s decision

                                                        it                 to the initial discussion        jury   instructions. I
regarding Burdette'       s public   trial   right as        relates                                   of




also concur without reservation in the majority' s decisions regarding Burdette' s suppression of

evidence and ineffective assistance of counsel claims.




                                                                  Q       BRIM
                                                                      INN -              ALL, J.




                                                                      23
