IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71217-9-1 ^
Respondent,
v. DIVISION ONE
DAIN ANDREW MCGILL, UNPUBLISHED OPINION
Appellant. FILED: June 15, 2015
CH
Leach, J. — Dain McGill appeals his conviction of first degree robbery. He
contends that a sidebar conference to address the State's objection during
defense closing argument violated his right to a public trial. Following our
Supreme Court's decision in State v. Smith,1 we hold that because the sidebar
did not implicate McGill's right to a public trial, no violation occurred. We affirm.
Background
During closing argument in McGill's jury trial for robbery in the first degree,
defense counsel discussed the elements of the charged offense:
This is an adversarial process, right? [The prosecutor] and I
have bumped heads the entire time. We object to each other. We
argue. But in an adversarial process, especially a situation like this,
it's easiest for you if I tell what I agree with. What do I agree with?
I agree that this occurred on June 11th. Do I agree it occurred in
Edmonds, Washington? Yes. Snohomish County has jurisdiction.
Do I agree that Ms. Stewart was robbed on that day? I do.
The prosecutor objected: "Judge, I'm sorry, I believe this is approaching
the personal comment, person belief is going on. Maybe I should state that
1 181 Wn.2d 508, 521, 334 P.3d 1049 (2014).
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outside the jury." The court told counsel, "Why don't you approach," and
conducted an off-the-record sidebar discussion with counsel. After the sidebar,
the court did not put its ruling or the substance of the conference on the record,
saying only, "All right. We're ready." Defense counsel then continued closing
argument. The State made no further objection.
A jury convicted McGill as charged. McGill appeals.
Analysis
McGill contends that the trial court violated his right to a public trial by
conducting a "closed" sidebar conference to consider the State's objection to
defense counsel's closing argument. An alleged violation of the right to a public
trial presents a question of law this court reviews de novo.2 The Washington and
United States Constitutions guarantee the right of a criminal defendant to a public
trial.3 Article I, section 10 of the Washington Constitution contains an additional
guaranty of open court proceedings: "Justice in all cases shall be administered
openly, and without unnecessary delay." There is a strong presumption that
courts are to be open at all stages of trial.4
2 State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).
3 U.S. Const, amend. VI ("In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury."); Wash. Const.
art. I, § 22 ("In criminal prosecutions the accused shall have the right to appear
and defend in person, or by counsel, [and] to have a speedy public trial by an
impartial jury.").
4 Sublett, 176Wn.2dat70.
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A party who proposes closure of a proceeding must show "an overriding
interest based on findings that closure is essential to preserve higher values and
narrowly tailored to serve that interest."5 In State v. Bone-Club,6 the Washington
Supreme Court set forth a five-factor test courts must use to evaluate the
constitutionality of a proposed closure. Our Supreme Court has held that a
public trial claim may be raised for the first time on appeal7 and that a violation is
generally a structural error requiring reversal.8
"But 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."9
5 State v. Momah, 167 Wn.2d 140, 148, 217 P.3d 321 (2009); see also
Waller v. Georgia, 467 U.S. 39, 45, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).
6 128 Wn.2d 254, 906 P.2d 325 (1995). In Bone-Club, the court held that
a court must consider the following factors on the record:
"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."
128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers v.
Eikenberrv. 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
7 State v. Nionqe. 181 Wn.2d 546, 554, 334 P.3d 1068, cert, denied. 135
S. Ct. 880 (2014); State v. Wise. 176Wn.2d 1, 15-16, 288 P.3d 1113(2012).
8 Nionqe. 181 Wn.2d at 554; Wise. 176 Wn.2d at 13-14; State v. Paumier.
176 Wn.2d 29, 35, 288 P.3d 1126 (2012).
9 Sublett. 176Wn.2dat71.
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Before deciding if a trial court violated a defendant's right to a public trial, a
reviewing court must determine if "the proceeding at issue implicates the public
trial right, thereby constituting a closure at all."10 In State v. Sublett,11 the court
adopted the "experience and logic" test articulated by the United States Supreme
Court in Press-Enterprise Co. v. Superior Court12 to determine if a particular
process must remain open to the public absent a Bone-Club analysis. The
"experience" prong of this test asks '"whether the place and process have
historically been open to the press and general public.'"13 "The logic prong asks
'whether public access plays a significant positive role in the functioning of the
particular process in question.'"14 If the answer to both questions is yes, the
public trial right attaches, and the trial court must apply the Bone-Club factors on
the record before closing the proceeding to the public.15
In Smith, the court adopted a further three-step inquiry to analyze public
trial right claims. Applying the threshold experience and logic test, a court first
determines if the proceeding implicates the public trial right.16 Second, the court
asks whether a closure occurred.17 Third, the court examines whether the
10 Sublett, 176 Wn.2d at 71; see also State v. Beskurt, 176 Wn.2d 441,
446, 293P.3d 1159(2013).
11 176 Wn.2d 58, 72-75, 292 P.3d 715 (2012).
12 478 U.S. 1, 8-13, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) (Press II).
13 Sublett, 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).
14 Sublett. 176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8).
15 Sublett. 176Wn.2dat73.
16 Smith. 181 Wn.2dat513.
17 Smith. 181 Wn.2dat513.
No. 71217-9-1/5
closure was justified.18 If the court concludes after applying the experience and
logic test that the right to a public trial does not apply to the proceeding at issue,
it need not reach the second and third steps in the analysis.19
Applying the experience and logic test in Smith, the court held that
traditional sidebars do not implicate the right to a public trial.20 Addressing the
experience element, the court noted that sidebar conferences "have historically
occurred outside the view of the public."21 On the logic prong, the court found
"no specific interest that is served by ensuring that the public is privy to a
sidebar."22 Rather, the court found more persuasive reasons in favor of deciding
that the public trial right does not attach. The court noted, for example, the
practical considerations involved in interrupting trial to dismiss the jury every time
the court wishes to admonish or hear an objection from counsel. The court
concluded that "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."23
Here, the sidebar involved a single speaking objection by the State to
defense closing argument. Judging from the fact that the clerk made no note of
the interruption in the trial minutes, the discussion appears to have been brief.
18 Smith. 181 Wn.2dat513.
19 Smith. 181 Wn.2dat519.
20 Smith. 181 Wn.2dat511.
21 Smith. 181 Wn.2dat515.
22 Smith. 181 Wn.2dat518.
23 Smith, 181 Wn.2d at 518 (citing Sublett. 176 Wn.2d at 77).
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Following the sidebar, defense counsel continued in a similar vein: "I agree with
most—my client agrees with most of the to convict instruction, which is
Instruction No. 7. The issue is how this actually occurred." We infer from the
rest of counsel's argument, to which the State did not object, that the trial court
overruled the State's objection.
In a footnote in Smith, our Supreme Court emphasized, "To avoid
implicating the public trial right, sidebars must be limited in content to their
traditional subject areas, should be done only to avoid disrupting the flow of trial,
and must either be on the record or be promptly memorialized in the record."24
The court observed later, "Critically, the sidebars here were contemporaneously
memorialized and recorded, thus negating any concern about secrecy."25
In McGill's trial, the purpose of the sidebar was to address an objection, a
traditional subject area. And the context indicates that the trial court conducted it
to avoid disrupting the flow of trial. But unlike the numerous hallway conferences
in Smith, the sidebar conference here was not recorded or otherwise
memorialized. We conclude nonetheless that Smith controls here.
The record here raises none of the "concerns the public trial right is meant
to address regarding perjury, transparency, or the appearance of fairness."26 Our
Supreme Court has stated the "guiding principle" of a public trial analysis as
24 Smith, 181 Wn.2d at 516 n.10.
25 Smith. 181 Wn.2dat518.
26 Smith. 181 Wn.2d at 518 (citing Sublett. 176 Wn.2d at 77).
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"'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.'"27
Describing sidebars, the court concluded, "Nothing positive is added by allowing
the public to intrude on the huddle at the bench in real time," and "[n]o logic
compels the conclusion that sidebars must be conducted in open court."28
Although the trial court here did not memorialize the substance of the sidebar,
the record shows that the sidebar was consistent with the "guiding principle" our
Supreme Court articulated. The sidebar and the trial court's ruling off the record
did not thwart the defense's strategy or the public's right of access. Nor did they
jeopardize the basic fairness of McGill's criminal trial or the appearance of
fairness essential to public confidence in the system. This record reveals no
reason for us to depart from the holding of Smith that "reasonable and traditional
sidebars used to avoid interruption of a trial do not implicate the public trial
right."29 Therefore, we do not reach the second and third steps of the Smith
analysis. We hold that the sidebar discussion did not violate McGill's right to a
public trial.
27 Smith, 181 Wn.2d at 514-15 (alteration in original) (internal quotation
marks omitted) (quoting Sublett, 176 Wn.2d at 75).
28 Smith, 181 Wn.2d at 518-19.
29 Smith, 181 Wn.2dat521.
No. 71217-9-1/8
Conclusion
Because the single sidebar discussion during closing argument did not
implicate McGill's right to a public trial, no violation of that right occurred. We
affirm.
WE CONCUR:
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