IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
FILED: March 12, 2012
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.1 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 inchambers conference that occurred here concerned purely legal issues and was
not a constitutional violation. We therefore affirm.
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
In re Detention of Ticeson, 159 Wn. App. 374, 384, 246 P.3d 550
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
The trial proceeded. A jury found Whitman guilty of felony violation of a
no contact order but not guilty of telephone harassment. Whitman appeals.
RIGHT TO PUBLIC TRIAL
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,
Report of Proceedings (October 25, 2010) at 10.
section 10, provides a guarantee of public access to judicial proceedings.3
Together, “[t]hese provisions have a commonality: they protect the right to a
public proceeding.”4 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.”5 Generally, to protect the
right to a public trial, a trial court must address the five factors outlined in State
v. Bone-Club6 prior to trial closure.7 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
State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009).
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
128 Wn.2d 254, 906 P.2d 325 (1995).
Id. at 258-59.
must be no broader in its application or duration than necessary to serve its purpose.
Whether a lower court has violated a defendant’s right to a public trial is a
question of law that we review de novo.8
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,9 “[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 . . . .”1 Thus,
Whitman need not show that the in-chambers discussion resulted in a manifest
error for us to review the alleged error.
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.11 There, Castro alleged that
State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006) (citing
Bone-Club, 128 Wn.2d at 256).
159 Wn. App. 374, 246 P.3d 550 (2011).
Id. at 382.
159 Wn. App. 340, 246 P.3d 228 (2011).
the trial court’s decision in chambers on proposed motions in limine was a violation
of his right to a public trial.12 He argued that these motions “dealt exclusively
with issues related to trial, including the State’s witnesses and the admissibility
of evidence.”13 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.’”14 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.15
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.16 It is not.
There, when discussing the motion to sever presented by Easterling’s codefendant, the court closed the courtroom, not only to the public but to
Easterling himself.17 The supreme court concluded that such an exclusion was a
Id. at 342.
Id. at 344 (internal quotation marks omitted).
Id. (citing Sadler, 147 Wn. App. at 114).
157 Wn.2d 167, 137 P.3d 825 (2006).
Id. at 172.
of Easterling’s right to a public trial.18
Three years later, in State v. Momah,19 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
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.
We affirm the judgment and sentence.
Id. at 179-80.
167 Wn.2d 140, 217 P.3d 321 (2009).
Id. at 150 (emphasis added).