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No. 66202-3-I (Wash. Ct. App. Mar. 12, 2012)

No. 66202-3-I




Cox, J. - Article I, sections 10 and 22 of the Washington State Constitution together guarantee a criminal defendant the right to a public trial. But, the right to a public trial does not apply to the resolution of purely ministerial or legal issues unrelated to disputed facts. Randy Whitman appeals his judgment and sentence for felony violation of a no-contact order. He argues that the discussion heard in chambers regarding joinder of several charges against him was a violation of his public trial right. We disagree and hold that the in-chambers conference that occurred here concerned purely legal issues and was not a constitutional violation. We therefore affirm.

In re Detention of Ticeson, 159 Wn. App. 374, 384, 246 P.3d 550 (2011).

The State charged Whitman with felony violation of a no contact order and, under a separate cause number, with felony telephone harassment. On the first day of trial, defense counsel moved to join the cases for trial. The prosecutor said he might agree to joinder so long as all of his witnesses were available for trial. Later that day, the court heard arguments regarding joinder in chambers. There is nothing in the record to indicate why arguments were held in chambers. At the beginning of the discussion, the judge stated:

The record should reflect that we are in chambers on the State v. Whitman matter, and to alleviate the State's concerns that this brief hearing that we are going to have in chambers might not be open to the public I sent the clerk out to the courtroom, she asked if there was anybody in the courtroom that was not a juror and nobody raised their hand and therefore there isn't anybody out there that would care to attend this hearing.

The State then brought up the question of joining the two cases. The prosecutor agreed that joinder was appropriate and argued for it. Defense counsel then reversed position and objected to joining the two cases. After some discussion, the court concluded that the two cases should be tried together, over defense objection.

Report of Proceedings (October 25, 2010) at 10.

The trial proceeded. A jury found Whitman guilty of felony violation of a no contact order but not guilty of telephone harassment. Whitman appeals.


Whitman argues that the in-chambers discussion regarding joinder was a violation of his right to a public trial. Because the discussion appears to have dealt only with ministerial and legal matters, we disagree.

Article I, section 22, of the Washington State Constitution guarantees criminal defendants the right to a speedy public trial. Additionally, Article I, section 10, provides a guarantee of public access to judicial proceedings.Together, "[t]hese provisions have a commonality: they protect the right to a public proceeding." This public trial right applies "to the evidentiary phases of the trial, and to other 'adversary proceedings.' . . . A defendant does not, however, have a right to a public hearing on purely ministerial or legal issues that do not require the resolution of disputed facts." Generally, to protect the right to a public trial, a trial court must address the five factors outlined in State v. Bone-Club prior to trial closure. The five factors are: (1) the proponent of closure 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; (3) the proposed method for curtailing open access must be the least restrictive means available for protecting the compelling interests; (4) the court must weigh the competing interests of the proponent of closure and the public; and (5) the order must be no broader in its application or duration than necessary to serve its purpose.


State v. Sadler, 147 Wn. App. 97, 114, 193 P.3d 1108 (2008) (quoting State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.3d 292 (2001)) (emphasis in original).

Id. at 258-59.

Whether a lower court has violated a defendant's right to a public trial is a question of law that we review de novo.

State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006) (citing Bone-Club, 128 Wn.2d at 256).

Whitman did not object to the in-chambers discussion. Thus, the State initially argues that, under RAP 2.5(a), we must undertake a manifest error analysis. We reject this argument. As this court has noted, most recently in In re Detention of Ticeson, "[i]t is well settled that a criminal defendant may raise the Section 22 right to a public trial for the first time on appeal . . . ." Thus, Whitman need not show that the in-chambers discussion resulted in a manifest error for us to review the alleged error.

Id. at 382.

We disagree with Whitman's substantive argument that the trial court violated his public trial right. The court first inquired whether there was any member of the public who wished to be present at the in-chambers proceeding. Thereafter, the court did not apply the Bone-Club factors before the in-chambers discussion. The only issue that was discussed in-chambers was whether to join Whitman's two separate cases for trial. We hold that, on this record, the matters discussed in chambers were purely ministerial and legal.

This case is analogous to State v. Castro. There, Castro alleged that the trial court's decision in chambers on proposed motions in limine was a violation of his right to a public trial. He argued that these motions "dealt exclusively with issues related to trial, including the State's witnesses and the admissibility of evidence." As the Division Three court noted, Castro failed to explain why "dealing with 'issues related to trial' would elevate his motions beyond 'purely ministerial or legal.'" It then concluded that the impeachment of Mr. Castro and the exclusion of witnesses were both issues that did not involve any fact finding and consequently did not require that the discussion be open to the public.

159 Wn. App. 340, 246 P.3d 228 (2011).

Id. at 342.

Id. at 344 (internal quotation marks omitted).

Id. (citing Sadler, 147 Wn. App. at 114).


Here, as in Castro, the only issue addressed in-chambers was legal: whether or not Whitman's two cases should be joined for trial. This issue was certainly related to facts to be presented at trial. But that is insufficient to establish that the issue is any less a purely legal one. Consequently, the trial court did not violate Whitman's right to a public trial.

Whitman argues that his case is akin to State v. Easterling. It is not. There, when discussing the motion to sever presented by Easterling's co-defendant, the court closed the courtroom, not only to the public but to Easterling himself. The supreme court concluded that such an exclusion was a violation of Easterling's right to a public trial.

157 Wn.2d 167, 137 P.3d 825 (2006).

Id. at 172.

Id. at 179-80.

Three years later, in State v. Momah, the supreme court summarized its holding in Easterling.

[W]e remanded a case for a new trial where the court closed the courtroom, excluding the defendant from a portion of his own trial, while his codefendant made a motion to sever and struck a deal with the State to testify against him. In that case, the closure affected the fairness of Easterling's trial because the court did not seek or receive input or objection from Easterling, and it prevented him from being present during a portion of his own proceedings.

Whitman was not excluded from his trial. Moreover, the fairness of his trial was not affected by the in-chambers discussion in which the court decided to join the cases. Consequently, Easterling is distinguishable.

Id. at 150 (emphasis added).

We affirm the judgment and sentence.