Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,                          )           No. 66202-3-I
                                               )          
                       Respondent,             )          DIVISION ONE
                                               )
               v.                              )
                                               )
 RANDY WHITMAN,                                )          UNPUBLISHED
                                               )
                       Appellant.              )          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 in-

chambers 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 

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

No. 66202-3-I/2

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.[2]

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. 

       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, 

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

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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 

       3 State v. Momah, 167 Wn.2d 140, 147, 217 P.3d 321 (2009).

       4 Id.

       5 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). 

       6 128 Wn.2d 254, 906 P.2d 325 (1995).

       7 Id. at 258-59.

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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 

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

       9 159 Wn. App. 374, 246 P.3d 550 (2011). 

       1 Id. at 382.

       11 159 Wn. App. 340, 246 P.3d 228 (2011). 

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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 co-

defendant, 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 

       12 Id. at 342.

       13 Id. at 344 (internal quotation marks omitted). 

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

       15 Id.

       16 157 Wn.2d 167, 137 P.3d 825 (2006). 

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No. 66202-3-I/6

violation 

       17 Id. at 172. 

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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 
       proceedings.[2]  

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. 

WE CONCUR:

       18 Id. at 179-80. 

       19 167 Wn.2d 140, 217 P.3d 321 (2009). 

       2 Id. at 150 (emphasis added). 

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