Siddoway, J.
¶ 1 Patrick Wayne Karas seeks reversal of his convictions for second degree burglary and third degree theft, asserting his public trial right was violated by an unrecorded chambers conference in which the trial court heard an ER 615 motion to exclude witnesses and a motion in limine. In the published opinion originally filed in this appeal, we held that a public trial violation required us to reverse and remand for a new trial.
¶ 2 On the same morning we filed our original opinion, the Washington Supreme Court filed its opinion in State v. Schierman, in which it held that the closure of a criminal trial can sometimes be too inconsequential, given the purposes of the public trial right, to constitute a violation. ___ Wash.2d ___, 415 P.3d 106, 193 (2018) (Yu, J., concurring/dissenting). It adopted a widely accepted de minimis test from Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996). We granted the State's motion for reconsideration and withdrew our opinion in order to reach the issue of whether the closure in this case was de minimis.
¶ 3 We hold that the public trial right does not apply to rulings excluding witnesses under ER 615 but did apply to motions in limine that were raised before testimony began. Applying the Peterson test, we hold that the closed hearing of at least one of the motions in limine cannot be characterized as de minimis. We again reverse and remand for a new trial.
¶ 4 Facts underlying the charges against Patrick Karas for the most part are unimportant
Report of Proceedings (RP) at 81.
¶ 5 Although not reflected in the report of proceedings, a chambers conference then took place. The report of proceedings takes up again with proceedings in open court, but outside the presence of the jury:
Id. at 82-83. The report of proceedings next indicates, "Lunch recess taken." Id.
¶ 6 The chambers conference was not recorded. Our record does not contain court minutes or any other information on how long the chambers conference lasted.
¶ 7 The report of proceedings picks up again after the lunch recess, when the proceedings continued with opening statements.
¶ 8 The trial court had some familiarity with the conversation in the market that was the subject matter of the motion in limine from a CrR 3.5 hearing that had taken place several months earlier. During that hearing, a detective testified that Mr. Karas might have overheard Micah England, the victim of the burglary and theft, tell a cashier at a nearby market about where, in his fabrication shop, he kept his petty cash. At the CrR 3.5 hearing, the detective told the court:
RP at 18-19. The detective testified that it was when he confronted Mr. Karas about this information that Mr. Karas agreed to tell him what happened. RP at 19.
¶ 9 Because the trial court denied the second motion in limine, the State was able to and did offer Mr. England's testimony about the conversation at trial. Mr. Karas's
RP at 90-91.
¶ 10 At the close of trial, the jury found Mr. Karas guilty of second degree burglary and third degree theft. Following entry of the felony judgment and sentence, Mr. Karas appealed. For the first time, he alleged that the chambers conference on the morning of the first day of trial was a public trial violation.
¶ 11 Mr. Karas contends the trial court violated his right to a public trial when it heard unrecorded arguments and ruled on motions in chambers without conducting a Bone-Club
¶ 12 Article I, section 22 of the Washington Constitution and the Sixth Amendment to the United States Constitution guarantee a defendant the right to a public trial. A public trial right violation may be raised for the first time on appeal. State v. Shearer, 181 Wn.2d 564, 569-71, 334 P.3d 1078 (2014). Whether an accused's constitutional public trial right has been violated is a question of law reviewed de novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).
¶ 13 In analyzing whether a defendant's right to a public trial has been violated, we have previously begun by examining first "whether the public trial right is implicated at all" and "then turn to the question
¶ 14 At issue first is whether the public trial right attached to the trial court's hearing of three motions. The first motion sought routine application of the court's authority to exclude witnesses under ER 615, triggering the State's right under that rule to designate a representative who would not be excluded. The second and third motions were case-specific motions in limine involving the conversation between the victim and the store cashier that Mr. Karas is alleged to have overheard.
¶ 15 In the second motion, Mr. Karas asked the court to exclude any testimony by Officer Douglas Corulli about what the cashier told him about the conversation with Mr. England that could have been overheard by Mr. Karas. That motion was granted.
¶ 16 In the third motion, Mr. Karas asked the court to exclude any testimony by Mr. England about his conversation with the cashier. The court denied the motion to exclude Mr. England's testimony, apparently persuaded that what was said would not be offered for its truth. While denying the motion, the court added, "counsel can renew the objection [as] to that." RP at 83.
¶ 17 From the trial judge's statement on the record that he and the lawyers "discussed only legal issues" in chambers, he appears to have assumed that "legal issues" do not implicate public trial rights. But in State v. Sublett, 176 Wash.2d at 72-73, 292 P.3d 715, our Supreme Court rejected the legal and ministerial nature of proceedings, as distinguished from proceedings that are adversarial and factual, as the basis for determining whether the public trial right applies. Smith, 181 Wash.2d at 514, 334 P.3d 1049. Sublett held that Washington courts are to apply experience and logic to make the determination. Id.
¶ 18 "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.'" Sublett, 176 Wash.2d at 73, 292 P.3d 715 (citations omitted) (quoting Press-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986)). Only if both questions are answered affirmatively does the public trial right apply. Sublett, 176 Wash.2d at 73, 292 P.3d 715. The defendant has the burden to show that the experience and logic test is satisfied. In re Pers. Restraint of Yates, 177 Wn.2d 1, 29, 296 P.3d 872 (2013).
¶ 19 The State places primary reliance for its position that there was no violation on Smith, in which our Supreme Court held that traditional sidebar conferences do not implicate the public trial right. It did not limit its treatment of sidebars to conferences taking place in the courtroom, at the bench; the sidebars in Smith took place in a hallway. But it limited "`[p]roper'" sidebars to "proceedings that `deal with the mundane issues implicating little public interest[,] ... done only to avoid disrupting the flow of trial, and... either ... on the record or ... promptly memorialized in the record.'" State v. Whitlock, 188 Wn.2d 511, 522, 396 P.3d 310 (2017) (some alterations in original) (quoting Smith, 181 Wash.2d at 516 & n.10, 334 P.3d 1049).
¶ 20 Mr. Karas focuses on the Supreme Court's decision a few years later in Whitlock. In Whitlock, in the course of a bench trial, the State objected to questioning of a witness that could reveal to the defendants that she was a police informant. The court recessed proceedings to chambers to hear the lawyers' arguments and make its ruling. The proceedings in chambers were not recorded. While the parties made a record later that day of what had occurred, they did not make it promptly.
¶ 21 In Mr. Whitlock's appeal, the State characterized the chambers conference that had taken place during trial as equivalent to a midtrial sidebar and argued that Smith was controlling. But a unanimous Supreme Court held that the chambers conference in Whitlock was not a "proper" sidebar conference. One reason was that the conference took place in chambers. Because a judge's chambers are closed to the public, the Court refused to treat a chambers conference as the functional equivalent of a conference at the bar. A second reason was the delay in memorializing what had occurred, particularly where there had been no reason for not handling the argument as a sidebar and recording it in real time. Whitlock, 188 Wash.2d at 522-23, 396 P.3d 310.
¶ 22 Mr. Karas's argument proceeds as if Whitlock held that anything that is not a sidebar is subject to the public trial right. But we do not read Whitlock as treating the characteristics of a proper sidebar as the new litmus test for applying the public trial right. It was because the State characterized the chambers conference as sidebar-like and invoked Smith that the Supreme Court focused on whether the conference qualified as a "proper" sidebar. We still examine experience and logic in determining whether the public trial right applies.
¶ 23 We turn first in this case to the trial court's consideration of a request to exclude witnesses and the State's identification of Officer Josh Mathena as its representative to attend the entire trial. Whether to exclude witnesses under ER 615 and who an attorney will designate as a client representative to attend trial falls in the category of housekeeping measures unrelated to the merits of a case. It is not uncommon for such housekeeping measures to be discussed in chambers or in a nonpublic scheduling call, or for them to be decided without discussion by a trial court that simply announces its usual practice. Public access plays no significant positive role in the application of ER 615, which is rarely a matter of dispute and not very consequential if there is a dispute. Routine witness exclusion can fairly be characterized as a "mundane issue[] implicating little public interest." Whitlock, 188 Wash.2d at 513-14, 396 P.3d 310 (quoting Smith, 181 Wash.2d at 515, 334 P.3d 1049).
¶ 24 The closer issue is the motions in limine that the court entertained in chambers. In In re Pers. Restraint of Speight, 182 Wn.2d 103, 106, 340 P.3d 207 (2014), a plurality decision, the lead opinion observed that the Supreme Court "ha[d] not yet addressed whether a closure occurs when a trial judge discusses and rules on motions in limine in chambers." It acknowledged that in Smith, "we alluded to the fact that evidentiary motions may not implicate the public trial right," citing a footnote in which it had stated that while sidebars were at issue, "`The analysis would not change for on the record evidentiary conferences in chambers.'" Id. (quoting Smith, 181 Wash.2d at 512 n.3, 334 P.3d 1049). The lead opinion went on to say that "because sidebars, and not evidentiary conferences, were at issue in that case we did not decide definitively one way or the other." Id. Concluding that it need not reach the issue of whether the public trial right applies
¶ 25 Five members of the Speight court (concurring Justice Madsen and the four dissenters) believed that to reach the majority's disposition of the case — denial of the personal restraint petition — the Court did need to address whether the public trial right applied to motions in limine. The dissenters believed that they alone could ignore the issue, since they would have granted the petition and remanded for a new trial on the basis of a closure of voir dire. The public trial right status of motions in limine was addressed only by Justice Madsen's concurrence, which concluded that "under [the] experience and logic test, motions in limine do not implicate public trial rights." Id. at 112, 340 P.3d 207 (Madsen, J., concurring).
¶ 26 Addressing the experience prong, Justice Madsen concluded:
Id. at 110, 340 P.3d 207. We do not disagree with the observation that motions in limine are decided outside the hearing of the jury, but the question remains whether they have historically been decided somewhere other than in an open courtroom. Even if jurors must be absent, the defendant (when present) and members of the public may listen to proceedings that take place in an open courtroom.
¶ 27 Speight involved motions in limine raised pretrial that were heard on the first morning of trial, as is commonly the case. But because the trial court wanted to hear and decide the motions while members of the venire filled out jury questionnaires in the courtroom, the motions were heard in chambers. Relocating the hearing was understandable under the circumstances, but hearing motions in limine in chambers is not the norm. More often, as in the trial below, motions in limine raised before trial are taken up by a court at a time when jurors or potential jurors are not present. The arguments therefore can and do take place in an open courtroom.
¶ 28 Turning to the logic prong, the State emphasizes the fact that in this case, as in Smith, the motion in limine addressed a hearsay issue it contends was unlikely to be understood by the public. Smith, however, spoke of discussion of hearsay "and the prior inconsistent statement exception," 181 Wash.2d at 519, 334 P.3d 1049, a more arcane evidentiary issue than those presented here. Based on information gleaned from the CrR 3.5 hearing, the defense motion in limine heard in chambers in this case concerned what would have been pure hearsay coming from Officer Corulli. Only slightly more complex was whether a discussion of the victim's cache of cash that Mr. Karas possibly overheard could be proved with testimony from the victim of statements that were not being offered for their truth. These are issues that an attentive and interested member of the public could grasp, whatever the complexity. Public trust is advanced by giving attentive, interested members of the public the opportunity to know why evidence that seems relevant might be excluded for some countervailing reason. See Smith, 181 Wash.2d at 544, 334 P.3d 1049 (Owens, J., dissenting) ("[H]iding discussions over evidence and testimony in private will not further ... goals" of "foster[ing] trust in our judicial system, and ... allow[ing] members of the public to see justice done in their communities.").
¶ 29 Mr. Karas satisfies us that contested motions in limine that are raised before trial and that can easily be resolved at times when jurors are not present have historically been open to the press and the general public, and that the functioning of evidentiary decision-making is served by allowing public access. For the trial court to hear and decide the motions in limine in chambers without considering the Bone-Club factors was an unjustified courtroom closure.
¶ 30 In Schierman, a majority of justices recognized that the Court's precedent rejected
¶ 31 Three justices — Justice Yu and those joining her opinion — found the precedent to be incorrect because it was based on the flawed reasoning that any finding of a de minimis closure would have to be based on whether there was a violation but no prejudice — a determination that cannot be made where structural error is involved. Id. at 192 (Yu, J., concurring/dissenting). They held that the correct inquiry, and a constitutionally permissible one, asks instead whether given the nature of the closure, the values underlying the public trial right were undermined in a given case. Id.
¶ 32 Justice Yu and those joining in her opinion found the Court's precedent to be harmful because it "`leads to delayed justice and additional costs'" that "simply cannot be justified in light of the flawed reasoning underlying our rejection of the possibility of de minimis closures." Id. at 193 (quoting Sublett, 176 Wash.2d at 103, 292 P.3d 715, (Madsen, C.J., concurring)).
¶ 33 Justice Gordon McCloud's lead opinion rejected the contention that the Court's precedent had to be overruled in order to recognize that there could be de minimis closures; it was her position that Mr. Schierman's case presented "a question of first impression."
¶ 34 Like Justice Yu, Justice Gordon McCloud spoke approvingly of the Peterson test. Id. (citing Peterson, 85 F.3d at 43). The Peterson test "assumes the public trial right is implicated by the proceeding, and then asks whether, in light of the particular facts presented in the individual case, an unjustified closure actually undermined [the] purposes [of the public trial right]." Id. at 193 (Yu, J., concurring/dissenting).
¶ 35 The purposes of the public trial right are "well established." Id. at 194. They are:
Id. (quoting In re Det. of Morgan, 180 Wn.2d 312, 325, 330 P.3d 774 (2014) (quoting, in turn, Sublett, 176 Wash.2d at 72, 292 P.3d 715)). To determine whether these purposes were undermined by a given closure, we consider the record, and "may look to the length of time the courtroom was closed, the reason the courtroom was closed, whether the public actually learned what occurred during the closed proceeding, and whether the closed proceedings related to the ultimate question of guilt or innocence." Id. "[N]o single factor is either necessary or sufficient." Id.
¶ 36 The closure at issue in Schierman was a chambers conference with lawyers during jury selection, for the purpose of hearing argument and deciding six challenges for cause.
¶ 37 The closed hearing on the motion to exclude Mr. England's testimony is distinguishable from the closure in Schierman in several important respects.
¶ 38 Different explanations were given in the CrR 3.5 hearing and at trial about how Mr. England became aware of Mr. Karas's presence in the market. In the CrR 3.5 hearing, the detective reported having been told that the cashier informed Mr. England of Mr. Karas's presence after the fact. At trial, Mr. England testified that he saw Mr. Karas in the market himself. One report or the other was mistaken. Had the motion in limine been argued in an open courtroom, this discrepancy might have been detected. Erroneous testimony might thereby have been avoided or perhaps additional witnesses would have been called who could resolve the discrepancy.
¶ 39 There was no need to entertain the motion in chambers. The court had excused the jury. The parties, counsel, and the court could have remained in open court for argument of the motion.
¶ 40 Considering all, the closure cannot be characterized as de minimis. Reversal is required. For that reason, we need not address Mr. Karas's recent motion on costs imposed by trial court.
¶ 41 Reversed and remanded for a new trial.
I CONCUR:
Pennell, A.C.J.
Fearing, J., (concurring)
¶ 42 I disagree with the majority's ruling that a motion to exclude witnesses passes the history prong of the experience and logic test. I disagree that trial courts have historically entertained motions to exclude witnesses in chambers. As a trial lawyer, I observed such motions always being heard in open court outside the presence of the jury. The parties brought and argued the motion at the same time as motions in limine and even frequently, but erroneously, labeled the motion to exclude as a motion in limine. One party conceived of the motion well in advance of trial, and so the trial court did not hear the motion on an emergent basis such as an evidentiary objection that requires a sidebar conference.
¶ 43 I would hold the violation of the public trial right as to the motion to exclude witnesses to be de minimis violation of the right. I therefore concur in the result of the majority.