State v. Smith

• Decision Date: 25 September 2014
• Docket Number: No. 85809–8.,85809–8.
• Citation: 334 P.3d 1049,181 Wash.2d 508
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. William Glen SMITH, Petitioner.

181 Wash.2d 508

334 P.3d 1049

STATE of Washington, Respondent

v.William Glen SMITH, Petitioner.

No. 85809–8.

Supreme Court of Washington, En Banc.

Sept. 25, 2014.

Eric J. Nielsen, Casey Grannis, Nielsen Broman & Koch PLLC, Attorney at Law, Seattle, WA, William Glen Smith (Appearing Pro Se), Kelso, WA, for Petitioner.

James Smith, Cowlitz County Prosecuting Attorney, Kelso, WA, for Respondent.

Opinion

J.M. JOHNSON, J.^*

¶ 1 This case presents the issue of whether sidebar conferences implicate a criminal defendant's right to a public trial under article I, section 22 of the Washington Constitution and require a conviction to be overturned. William Glen Smith claims that the trial court violated his public trial right when courtroom limitations led to holding “sidebar” conferences in a hallway outside the courtroom on the record with counsel present. Smith argues that these sidebars were courtroom closures subject to State v. Bone–Club, 128 Wash.2d 254, 906 P.2d 325 (1995). Because the trial court did not perform a Bone–Club analysis, he requests that this court reverse his conviction and grant him a new trial.

¶ 2 We hold that sidebars do not implicate the public trial right. This court uses the experience and logic test to evaluate whether a particular proceeding implicates the public trial right. State v. Sublett, 176 Wash.2d 58, 73, 292 P.3d 715 (2012). Sidebars are not subject to the public trial right under the experience and logic test because they have not historically been open to the public and because allowing public access would play no positive role in the proceeding. Although the practice of holding sidebars in a hallway outside the courtroom is unusual, the form of these hallway conferences was consistent with the role traditionally filled by sidebars and so they do not implicate the public trial right. We affirm the Court of Appeals.

Facts and Procedural History

¶ 3 Smith was charged by information with 10 counts of third degree rape and fourth degree assault with a sexual motivation. Clerk's Papers (CP) at 4–8. The information was later amended to add one count of second degree perjury. Id. at 56–60. The State brought charges after Smith compelled his niece to enter into a contract purportedly waiving her right to refuse sex or complain civilly or criminally about any sex acts he wanted to perform with her for 10 years.¹

¶ 4 The Cowlitz County courthouse has a peculiar layout making it difficult to hold sidebar discussions between counsel and the trial judge outside the jury's hearing. Suppl. Br. of Pet'r, App. A. To avoid contaminating the jury with potentially prejudicial rulings on evidentiary objections, these sidebar discussions occur in a hallway outside the courtroom. Id. The judge throws a switch before each hallway sidebar that deactivates the recording equipment in the courtroom and activates a camera and microphone in the hallway to keep these sidebars on the record. Id. During Smith's trial, 13² hallway “sidebar”³ conferences occurred. Id. App. A at 2.

After the trial, the jury convicted Smith on four counts of third degree rape and one count of second degree perjury.

¶ 5 On direct appeal Smith alleged, among other things, that 12 of the hallway sidebars violated his public trial right because the trial court failed to conduct a Bone–Club analysis. Pet. for Review at 4. Division Two of the Court of Appeals held that the hallway sidebars did not implicate Smith's public trial right because they “involved purely ministerial and procedural matters.”

State v. Smith, noted at 159 Wash.App. 1011, 2011 WL 55972, at *4. The Court of Appeals affirmed Smith's conviction but remanded only for resentencing. 2011 WL 55972, at *12. We accepted review solely on the public trial rights issue and affirm the conviction with a differing analysis. State v. Smith, 176 Wash.2d 1031, 299 P.3d 20 (2013).

Issue

¶ 6 The issue is whether sidebar conferences on evidentiary matters in a hallway outside the courtroom implicate the public trial right.⁴

Analysis

¶ 7 Whether a defendant's right to a public trial has been violated is a question of law, subject to de novo review on direct appeal. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005) (citing Bone–Club, 128 Wash.2d at 256, 906 P.2d 325 ).

¶ 8 Lower courts in this state continue to struggle with the open courts doctrine derived from article I, section 22. In Sublett, Chief Justice Madsen laid out a helpful analytical framework that guides our analysis of public trial right cases. We

begin by examining ... whether the public trial right is implicated at all ... then turn to the question whether, if the public trial right is implicated, there is in fact a closure of the courtroom; and if there is a closure, whether ... the closure was justified.

176 Wash.2d at 92, 292 P.3d 715 (Madsen, C.J., concurring). Application of these rules and framework in this case should provide guidance to trial courts in future cases. We adopt this three-step framework here.⁵

1. Does the proceeding at issue implicate the public trial right?

¶ 9 The proceeding at issue in this case is a sidebar conference held in a hallway outside the courtroom. For some time our Court of Appeals drew a distinction between legal and ministerial proceedings on one hand and adversarial and factual proceedings on the other.⁶ Sublett, 176 Wash.2d at 72, 292 P.3d 715. In this case, the Court of Appeals used the legal-factual test. Smith, 2011 WL 55972, at *4. While Smith's petition was pending in this court, we decided Sublett, which rejected the old legal-factual distinction in favor of the experience and logic test to determine whether the proceeding at issue implicates the public trial right. 176 Wash.2d at 73, 292 P.3d 715 (citing Press–Enter. Co. v. Superior Court, 478 U.S. 1, 8–10, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) ).

¶ 10 “The first part of the test, the experience prong, asks ‘whether the place and process have historically been open to the press and general public.’ The logic prong asks ‘whether public access plays a significant positive role in the functioning of the particular process in question.’ ” Id. (citations omitted) (quoting Press–Enter., 478 U.S. at 8, 106 S.Ct. 2735 ). The guiding principle is “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.’ ” Id. at 75, 292 P.3d 715 (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) ).

a. The Experience Prong

¶ 11 Sidebar conferences have historically occurred outside the view of the public. See, e.g., State v. Swenson, 62 Wash.2d 259, 279, 382 P.2d 614 (1963) (sidebar to address witness concerns about witness's comfort while testifying); 2 Byron K. Elliott & William F. Elliott, A Treatise on General Practice Containing Rules and Suggestions for the Work of the Advocate in the Preparation for Trial, Conduct of the Trial and Preparation for Appeal 714 (1894) (advocating offers of proof in response to evidentiary objections in writing or otherwise outside the jury's hearing); James W. Jeans, Trial Advocacy § 14.7, at 355 (1975) (advocating use of sidebar conferences as the preferred practice to address issues discreetly outside the hearing of the jury); see also In re Det. of Ticeson, 159 Wash.App. 374, 384–86, 246 P.3d 550 (2011) (abrogated for use of the legal-factual test). The defendant in Ticeson invoked his public trial right to challenge an in-chambers conference on the admissibility of “certain deposition testimony.” Ticeson, 159 Wash.App. at 378, 246 P.3d 550. In rejecting the defendant's claim, the Ticeson court noted that

In the case of sidebar discussions, issues arising with the jury present would always require interrupting trial to send the jury to the jury room, often located some distance from the courtroom, thereby occasioning long delays every time the court wishes to caution counsel or hear more than a simple “objection, Your Honor.” This would do nothing to make the trial more fair, to foster public trust, or to serve as a check on judges by way of public scrutiny.

Id. at 386 n. 38, 246 P.3d 550. The court reasoned that the “public trial right is not served by such a reading, and the ability of judges [to run orderly courtrooms] would be greatly hindered without a corresponding public benefit.” Id. at 386, 246 P.3d 550.⁷

¶ 12 Smith offers no effective response to this history or the practical difficulties in extending our public trial jurisprudence to sidebar conferences on evidence.⁸ Without any evidence the public has traditionally participated in sidebars, the experience prong cannot be met. Instead, Smith relies on several examples that are easily distinguishable.

¶ 13 In Bone–Club, 128 Wash.2d at 256, 906 P.2d 325, this court held that a pretrial suppression proceeding implicated the public trial right. In Bone–Club, the court closed the courtroom during the testimony of an undercover police officer to protect the confidentiality of his undercover activities. Id. at 257, 906 P.2d 325. Sidebars are different. Pretrial suppression hearings rule on issues with a significant impact in the community.⁹ Proper sidebars, on the other hand, deal with the mundane issues implicating little public interest. Wise, 176 Wash.2d at 5, 288 P.3d 1113.¹⁰

¶ 14 In State v. Easterling, 157 Wash.2d 167, 137 P.3d 825 (2006), the court closed the courtroom during a codefendant's combined motion to sever and dismiss. Id. at 172, 137 P.3d 825. The hearing involved discussion about whether the state had acted in bad faith. Id. & n. 7. The proceeding at issue in Easterling was simply not akin to a sidebar. The closure in that case clearly implicated Easterling's rights because of the appearance of impropriety. Courts have a strong “interest in protecting the transparency and fairness of criminal trials.” Id. at 178, 137 P.3d 825. The proceeding in Easterling “undermined...