State v. Smith

*511¶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 Wn.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 Wn.2d 58, 73, 292 P.3d 715 (2012) (plurality opinion). 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 peijury. Id. at 56-60. The State brought charges after Smith compelled his niece to enter into a contract purportedly waiving her *512right 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 *513at 159 Wn. App. 1011, 2011 WL 55972, at *4, 2011 Wash. App. LEXIS 20, at *13. The Court of Appeals affirmed Smith’s conviction but remanded only for resentencing. 2011 WL 55972, at *12, 2011 Wash. App. LEXIS 20, at *34. We accepted review solely on the public trial rights issue and affirm the conviction with a differing analysis. State v. Smith, 176 Wn.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 Wn.2d 506, 514, 122 P.3d 150 (2005) (citing Bone-Club, 128 Wn.2d at 256).

¶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 Wn.2d at 92 (Madsen, C.J., concurring). Application of these rules and framework in this case should provide *514guidance 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 Wn.2d at 72. In this case, the Court of Appeals used the legal-factual test. Smith, 2011WL 55972, at *4, 2011 Wash. App. LEXIS 20, at *13. 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 Wn.2d at 73 (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). The guiding principle is “whether openness will ‘enhance! ] both the basic fairness of the criminal trial and the appearance *515of fairness so essential to public confidence in the system.’ ” Id. at 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)).

a. The Experience Prong

¶11 Sidebar conferences have historically occurred outside the view of the public. See, e.g., State v. Swenson, 62 Wn.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 Wn. 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 Wn. App. at 378. 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. The court reasoned that the “public trial right is not served by such a reading, and the ability of *516judges [to run orderly courtrooms] would be greatly hindered without a corresponding public benefit.” Id. at 386.7

f 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.

f 13 In Bone-Club, 128 Wn.2d at 256, 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. 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 Wn.2d at 5.10

*517¶14 In State v. Easterling, 157 Wn.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. 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. The proceeding in Easterling “undermined the fairness of the process” because the defendant and his attorney were excluded from the pretrial hearing along with the rest of the public. Id. In this case, Smith’s counsel was present at and participated in every sidebar.

f 15 Smith also cites Rovinsky v. McKaskle, 722 F.2d 197, 198 (5th Cir. 1984). In that case, the Fifth Circuit reversed a conviction where the trial judge heard arguments in chambers on motions to limit the scope of cross-examination of two witnesses. First, the Fifth Circuit did not employ the experience and logic test in concluding the motion hearing should have been conducted in open court. Second, even if the Rovinsky court correctly concluded that the public trial right attached to that hearing, there is an important difference between the type of sidebars here— contemporaneously addressing speaking objections throughout trial — and the motions in Rovinsky. The motions concerned two specific witnesses and were brought before trial commenced but not considered until both witnesses had provided direct testimony. Id. at 199. Like Easterling, the proceeding in Rovinsky is not analogous to the sidebars here.11 Third, the Rovinsky court expressly stated that “[slidebar conferences in which the defendant’s counsel participates without objection do not violate the right to a *518public trial.” Id. at 201. The public trial right is, among other things, a prophylactic measure allowing the public to observe the process and weigh the defendant’s guilt or innocence for itself.12 Id. at 201-02. The sidebars in this case would not aid the public in assessing Smith’s guilt or innocence. Finally, the sidebars here are further distinguishable from the motions in Rovinsky because there is a video and audio record. Any inquiring member of the public can discover exactly what happened at sidebar. Smith has not satisfied the experience prong.

b. The Logic Prong

¶16 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-Enter., 478 U.S. at 8). Smith articulates no specific interest that is served by ensuring that the public is privy to a sidebar, and it is difficult to conceive of one. Indeed, forcing the jury in and out of the courtroom repeatedly whenever an objection is made at trial would be a problematic practice.13 But more importantly, evidentiary rulings that are the subject of traditional sidebars do not invoke any of the concerns the public trial right is meant to address regarding perjury, transparency, or the appearance of fairness. See Sublett, 176 Wn.2d at 77. Critically, the sidebars here were contemporaneously memorialized and recorded, thus negating any concern about secrecy. The public was not prevented from knowing what occurred. Nothing positive is added by allowing the public to intrude on the huddle at the bench in real time. Sublett, 176 Wn.2d *519at 97-98 (Madsen, C.J., concurring) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980) (Brennan, J., concurring)). No logic compels the conclusion that sidebars must be conducted in open court.

¶17 Applying our own logic to the situation does not advance Smith’s argument. Many lawyers fail to fully appreciate the complexities of the hearsay rule and its many exceptions. For the public, discussions on hearsay and the prior inconsistent statement exception are practically a foreign language. Such rulings are exclusively within the province of the trial judge under ER 104(a). Nothing is added to the functioning of the trial by insisting that the defendant or public be present during sidebar or in-chambers conferences. Indeed, the trial court did what ER 104(c) requires in the interest of justice by preventing the jury from hearing discussions on potentially inadmissible evidence. The logic prong weighs against Smith.

¶18 Sidebars have traditionally been held outside the hearing of both the jury and the public. Because allowing the public to “intrude on the huddle” would add nothing positive to sidebars in our courts, we hold that a sidebar conference, even if held outside the courtroom, does not implicate Washington’s public trial right.14 See supra p. 518.

¶19 Finding that the sidebars or evidentiary conferences in this case did not implicate the public trial right, the court need not reach the remaining three steps in this case. However, we provide the following guidance to assist reviewing courts in the future.

*5202. Was there a closure?

f20 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. Lormor, 172 Wn.2d 85, 93, 257 P.3d 624 (2011). This court has adopted the experience and logic test to determine whether a closure occurred in the absence of an express closure on the record. In re Pers. Restraint of Yates, 177 Wn.2d 1, 28-29, 296 P.3d 872 (2013). When no closure exists, the trial court judge “possesses broad discretion [including] the power to remove distracting spectators” and to provide orderly conduct to ensure a fair proceeding. Lormor, 172 Wn.2d at 93-94 (applying RCW 2.28.010).

|21 The court need not reach this step if the answer to the first question is negative. Because the sidebar conferences in this case do not implicate the public trial right, the court need not determine whether they were closed.

3. Was the closure justified?

¶22 A closure unaccompanied by a Bone-Club analysis on the record will almost never be considered justified. A trial court that properly conducts a Bone-Club analysis and enters a finding on the record that the closure is justified will almost never be overturned because such a determination is subject to review for abuse of discretion. Wise, 176 Wn.2d at 11. When a court fails to conduct an express Bone-Club analysis, a reviewing court may examine the record to determine if the trial court effectively weighed the defendant’s public trial right against other compelling interests. State v. Momah, 167 Wn.2d 140, 156, 317 P.3d 321 (2009). However, we have said that “it is unlikely that we will ever again see a case like Momah where there is effective, but not express compliance with Bone-Club” and thus far, our prediction has been correct. Wise, 176 Wn.2d at 15.

*521¶23 Again, because the sidebar conferences in this case do not implicate the public trial right, the court does not consider whether the alleged closure was justified.

Conclusion

f24 This court accepted review on several public trial rights cases this term to clarify the law in this field. We have partially adopted the framework advocated by Chief Justice Madsen in Sublett. The steps of this public trial right framework are: (1) Does the proceeding at issue implicate the public trial right? (2) If so, was the proceeding closed? And (3) if so, was the closure justified?

¶25 Applying the experience and logic test in the first step to this case, we find that sidebars such as the ones presented in this case have not traditionally been open to the public and injecting the public into sidebars would have no positive impact. Accordingly, sidebar conferences do not implicate the public trial right.

¶26 Because reasonable and traditional sidebars used to avoid interruption of a trial do not implicate the public trial right, the court need not reach the remaining two steps of the public trial right framework here. We affirm the Court of Appeals with the caveat that the legal-factual test it relied on was rejected in Sublett.

Madsen, C.J., and C. Johnson, Stephens, and González, JJ., concur.