This opinion 

### wasflied

### for t'18tY'IifWII
, at OJ 

### FILE IN CLERK'S OFFICE SUPREME COURT, STATE OFWASHINGTON
DATE 

### SEP 2

## 5 2014

## ~~·!(]•¥· -- CHIEF JUSTICE 

### IN THE SUPREME COURT OF THE STATE OF WASHINGTON STATE OF WASHINGTON, NO. 85306-1 Respondent, ENBANC
v. Filed 

### SEP 2 5 

## 2014 ANTHONY DAVID KOSS, Petitioner.

GORDON McCLOUD, J.-This is a case about precedent. Anthony Koss
was convicted of first degree burglary. Before jury deliberations, the judge and counsel met in chambers. There is no transcript ofthe in-chambers proceeding, no reconstructed record, and no agreed summary ofwhat occurred there. Immediately afterwards, however, thejudge stated in open court that she had given counsel the juryinstructions andhadmade arequestedchangeinoneinstruction. Koss therefore infers, and the State agrees (e.g., 

### Br. ofResp't at 10), that it was an in-chambers instructions conference. Koss challenges thatprocedure for the first time on appeal. As discussedbelow, recent controllingprecedent ofthis courtholds that he can raiseState v. Koss (Anthony D.), 

### No. 85306-1

this constitutional claim for the first time on appeal and that the trial court must address several factors on the record before closing a proceeding to which the constitutionalrightto apublictrial attaches. Butrecentprecedent also holds thatthe constitutionalrightto apublictrial does not extendto such apreliminaryinstructions conference. We adhere to all ofthose recent controlling precedents. Koss also argues that the trialjudge received and answered two questions, in writing, during deliberations, in another closed courtproceeding. Butthetranscript, clerk's papers, and docket do not reveal any such proceeding, open or closed. Nor do any declarations, affidavits, or other materials document the existence of a proceeding, open or closed, in which these questions and answers were considered. Recent controlling precedent reaffirms our long-standing nlle that the appellant bears the burden ofproviding arecord showing that the supposedlyunconstitutional event occurred. We reaffirm that recent controlling precedent. The Court ofAppeals affirmed Koss's conviction. Because we adhere to our recent controlling precedent on all the topics listed above, we affirm the Court of Appeals. FACTS Koss knocked on a stranger's door. When she opened it, he asked ifshe was having a party. She said no, and Koss then punched her in the face through her

-2-State v. Koss (Anthony D.), No. 85306-1


### doorway. He was charged with burglary in the first degree. At trial, the defense theorywas that anotherpersonthrewthepunch. ThejuryconvictedKoss as charged. The Court ofAppeals affirmed. State v. Koss, noted at 157 Wn. App. 1039 (2010). Koss presented several issues to this court, butwe acceptedreview ofonlythe public trial issue. We therefore focus onthe facts relevant to that issue. Near the end oftrial, thejudge met with counsel in chambers. There is no transcript ofthat meeting, andtherecord does notreveal the length orcontent ofthat discussion. Whenthejudge and counsel emerged, however, the following colloquy occurred; it sheds some light on what happened in chambers. THE COURT: Go ahead and be seated. We arebackontherecordto go overinstructions. I gave counsel a copy ofthe proposed instructions, and we'll go over the one that Mr. Collins asked to change, but does the State have any objections as proposed? MR. CRUZ: No, Your Honor. Thankyou. THE COURT: Mr. Collins, any objections or exceptions on the instructions? MR. COLLINS: No, YourHonor. THE COURT: And for the record, counsel and I met in chambers. The instruction that states a person commits the crime of burglaryinthe first degree whenhe or she enters orremains unlawfully in a building with the intent to commit a crime against a person or property therein and if in entering or while in the building or in immediate flight therefrom, that person assaults any person, the Court

-3-State v. Koss (Anthony D.), No. 85306-1



### did take out the "or an accomplice," which was included originally in that instruction since that fits the facts in this case. So, Counsel,just for the record, I'm going to go through and tell you howI numbered them so you can know which numbers they are. 2 Verbatim Report ofProceedings (VRP) (Apr. 29, 2009) at 271. This exchange suggests-and the parties agree-that this in-chambers conference was aboutjury instructions. Later, during deliberations,thejurysubmittedtwo writtenquestions. Thefirst
was "Mr. Drake stated that Tony [K]oss was DOC[.] Canwe factor that in? And if
so what is the meaning?" Clerk's Papers (CP) at 61. The court's response, written
on the same page as the question, was "Please re-read yourjury instructions." Id. 

### Thejury's secondwritten inquirywas "NeedCD playerto play 911 call." CP at 62. The court's response, again written on the same page, was "(given one timecomputerplayback)." Id. 

### These questions and answers are documented in the clerk's papers, but there is no corresponding transcript, minute entry, or other part ofthe record that reveals anything further about them. Instead, the transcript shows the following: After receivingthe instructions, thejuryleft the courtroomto begin deliberations. 2 VRP (Apr. 29, 2009) at 346. Immediatelythereafter, the court, the defendant, and counsel discussed (in open court) administrative matters such as counsel's phone numbers

-4-State v. Koss (Anthony D.), 

### No. 85306-1

and the status ofthe defendant's bond. Id. 

### at 346-47. At the end ofthat discussion, the court clerk said, "All rise." Id. 

### at 347. The transcript then reads, "(COURT IN RECESS.)" Id. 

### The very next thing in the transcript is the return ofthejury. Id. 

### Nothing in the transcript or clerk's papers reveals the procedure by which the court handled thejuryquestions. The only challenge to that question-and-answer procedure in the Court of Appeals is violation of the constitutional right to an open courtroom. The only challengeto thatprocedureinthepetitionforreview is violation ofthe constitutional right to an open courtroom. That is the issue upon which review was granted. In supplemental briefing thereafter, the petitioner for the first time argues that this procedure also violated his constitutional and court-rule-based right to be present. ANALYSIS l. STANDARD OF REVIEW 

### The defendant may raise the constitutional right to a public trial for the first time on appeal. State v. Wise, 

### 176 Wn.2d 1, 9, 288 P.3d 1113 (2012); State v. Brightman, 

### 155 Wn.2d 506, 517-18, 122 P.3d 150 (2005) ("defendant's failure to lodge a contemporaneous objection at trial did not effect a waiver ofthe public trial right" (citing State v. Bone-Club, 

### 128 Wn.2d 254, 257, 906 P.2d 325 (1995))). We

-5-State v. Koss (Anthony D.), No. 85306-1

review a claimthat the trial courtviolated the constitutional right to apublic trial de
novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006). II. IN SUBLETT, THIS COURT HELD THATA DEFENDANT'S CONSTITUTIONAL RIGHT TO A PUBLIC TRIALDOES NOT ATTACH TO A PRELIMINARY JURY INSTRUCTION CONFERENCE WITH COUNSEL; THAT HOLDING CONTROLS 

### Koss's FIRST CLAIM "[N]ot every interaction between the court, counsel, and defendants will implicate the right to a public trial, or constitute a closure ifclosed to the public." State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012); see also 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) (publictrialpresumptionnotincompatiblewith private exchanges at the bench and conferences in chambers). Thus, before examiningwhether aviolation occurred, we first considerwhethertheproceeding at issue was one to which the constitutional right to a public trial attaches. Sublett, 176 Wn.2d at 71. Werecently adoptedthe federal experience and logic test as a "useful tool for determining whetherthepublic trial right attaches to aparticularprocess." Id. at 75. In Sublett, we appliedthat experience and logic test to a discussion of juryquestions

-6-State v. Koss (Anthony D.), No. 85306-1

in chambers 

### during deliberations. The

### Sublett court heldthat such aprocedure "did not implicate the public trial right." 1 That is a slightly different issue than the first issue raised by Koss, that is, discussion ofjury instructions 

### prior to deliberations. In reaching its holding, however, 

### Sublett relies by way of analogy on the rules for discussing jury instructions 

### prior to deliberations. 

### Id. ("we view this as similar in nature to proceedings regarding jury instn1ctions in general"). With regard to such preliminary in-chambers instructions conferences, like the first violation claimed here, we stated: We are aware that, quite often, counsel discuss the instructions withthe court during an informal proceeding. But before instructing thejury, counsel is to be given the opportunity to object in the absence ofthe jury. CrR 6.15(c). Any objections to the instructions, as well as the grounds forthe objections, mustbeputintherecordto preservereview
.

. . . We have found no challenges to ... the rule or, prior to the rule's enactment, any case requiring the discussion of juryinstn1ctions to be held in open court. 

### Id. at 75-76. We then applied that reasoning to the slightly different challenged procedure in 

### Sublett-jury questions asked 

### during deliberations-and concluded

1 Sublett, 176 Wn.2d at 77; see also id. at 99-100 (Madsen, C.J., concurring) ("I agree with the court's decision in Sublett that the right to a public trial is not implicated when, in chambers and with counsel present, the trialjudge considers a question submitted bythejuryduring the course ofits deliberations."), 142 (Stephens, J., concurring) ("I agree thatthe procedure followed bythe trial courtin this case was consistent with
...the public trial right.").
-7-State v. Koss (Anthony D.), No. 85306-1



### that because "[t]he same is true regarding a proceeding to discuss a question from the jury about its instructions," that latter proceeding did not implicate the constitutional public trial right, either. !d. at 76, 77. Justice Stephens concurred in Sublett 

### for the same reason, stating that "the answer to this question should be the
same for a hearing responding to a jury question about the instructions as for a hearing addressingjury instructions in the first instance." Id. 

### at 141 (Stephens, J., concurring). Her concurrence states that ifthe public trial right is not offended by holding an in-chambers conference to discussjury instructions before returning to the courtroom to put matters on the record, then it is not offended when thejudge considers a question from a deliberating jury with counsel in chambers before entering the matterinthe record. Id. 2 

### Thejustices' sharedviewthatthe defendant's constitutional right to an open court does not attach to preliminaryin-chambersjury instruction conferences thus seems necessary to the Sublett 

### court's final holding. We therefore applySublett's 

### discussion of juryinstruction conferences to this
case. As discussed above, thejudge and counsel discussed instructions informally in chambers, then returned to the courtroom to put any objections formally on the record. Underboth the lead opinion and Justice Stephens' concurrence in Sublett,

2 The few other courts that have considered this issue agree. See State v. Womelsdorf, 47 Kan. App. 2d 307, 274 P.3d 662 (2012); State v. Swanson, 112 Haw. 343, 145 P.3d 886 (2006).

-8-State v. Koss (Anthony D.), No. 85306-1

thein-chambers discussionof juryinstructions didnotviolatetheconstitutionalright to a public triaP III. THE RECORD DOES NOT SHOW THAT THE TRIAL COURT HELD A DISCUSSION OF JURY QUESTIONS IN CHAMBERS AT ALL; Koss's FAlLURE To PROVIDE A REcoRD SHOWING ANY IN-CHAMBERS PROCEEDING OCCURRED DOOMS HIS SECOND CLAIM Koss also challenges the trial court's handling ofthejury's questions during deliberations. Courtroom closure during such proceedings is precisely what occurred in 

### Sublett. Koss argues that there must have been a substantive, closed proceeding to which Koss was not invitedbut it wasjustnot documented. He is certainly correct that it was not documented.4 Therecord contains only the written questions and answers. It lacks any indication that thejudge consulted

3 The only question before us is whether this procedure violated the defendant's constitutional right to an open courtroom. We do not address whether such closed court proceedings are goodpolicygiventhe importance ofopenness andtransparencyinjudicial proceedings to public confidence inthejudiciary andindeedin all ofgovernment. 4 It is tme that questions from thejury during deliberations are controlled by CrR 6.15(£)(1), which requires notification ofcounsel "ofthe contents ofthe questions," that counselhave "anopportunityto comment," andthatthe court respond "inopen court orin writing." The lead opinion in Sublett states that CrR 6.15(£)(1) "advances and protects those interests underlying the constitutionalrequirements ofopen courts with its directive to put the question, answer, and objections in the record." Sublett, 176 Wn.2d at 77. Similarly, Justice Stephens' concurrence states that "CrR 6.15(£)(1) seems to implement the constitutional requirement." Id. at 141 (Stephens, J., concurring). And ChiefJustice Madsen's concurrence agrees that "the right to a public trial is not implicated when, in chambers and with counsel present, the trialjudge considers a question submitted by the juryduringthe course ofits deliberations." ld. at 99-100 (Madsen, C.J., concurring). Thus, ifthejudge failed to consult with counsel regarding thejury questions, that would violate CrR 6.15(£)(1). Andthe statements in the concurrences inSublett, quoted above, suggest that such a deviation from CrR 6.15(£)(1) implicates constitutional protections. But Koss -9-State v. Koss (Anthony D.), No. 85306-1

with counsel regarding thejury questions either privately orpublicly. It also lacks any indication that she did not do so. The report ofproceedings shows only that the jury exited, that a short discussion occurred inthe courtroom irrelevant to the issue before us, and that thejuryreturned with its verdict. 2 VRP (Apr. 29, 2009) at 346- 47. The trial minutes show only that the defense rested its case at 10:37 a.m., and thejuryreturned with its verdict at 2:35p.m. CP at 71. Neitherpartyreconstructed the relevant portions ofthe record, as is permitted under RAP 9.3 (permitting the party seeking review to prepare a narrative report of proceedings), RAP 9.4 (permitting the parties to prepare an agreed-upon report ofproceedings), RAP 9.9 (permitting the parties to correct or supplement the report ofproceedings before transmittal to the appellate court), and RAP 9.10 (permitting such correction ofthe record even after transmittal to the appellate court). Koss therefore hangs his entire argumentregardingthejuryquestions onthe lackofarecord; he argues, "Therecord has no information ofwhetherthe defendant or counsel were contacted or consulted regarding the court[']s response to thejury." Suppl. Br. ofPet'r at 7. Koss claims that because the record does not reveal whether thejudge discussed the questions with counsel, we must assume that thejudge did not do so.5
did not raise a CrR 6.15 violation in the Court ofAppeals or in his petition for review. Moreover, the record is silent as to whether any such deviation from the rule occurred. 5 Koss also asserts thatthe record does notreveal whether Koss was present, and so we must assume that he was not and that his right to presence was therefore violated. We
-10-State v. Koss (Anthony D.), No. 85306-1



### Manifest errors affecting a constitutional right mayberaised for the first time
on appeal. RAP 2.5(a)(3). We have clearly held that a courtroom closure that implicates the public trial right can constitute such a manifest error. State v. Paumier, 176 Wn.2d 29, 36, 288 P.3d 1126 (2012). But it is also well established that to raise a claim for the first time on appeal, "the trial record must be sufficient to determine the merits ofthe claim." State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (citing State v. Kirkman, 159 Wn.2d 918, 935, 155 P.3d 125 (2007)); seealso State v. Jasper, 174 Wn.2d 96, 123- 24, 271 P.3d 876 (2012) (quoting Barker v. Weeks, 182 Wash. 384, 391, 47 P.2d 1 (1935) (quoting 4 C.J.AppealandError§ 2666, at 736 (1916)). Otherwisethe error is not "manifest." RAP 2.5(a)(3); see also State v. Riley, 121 Wn.2d 22, 31, 846 P.2d 1365 (1993) (error not manifest "where the facts necessary for its adjudication
are not in the record"); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995). 6
accepted review only ofthe public trial issue, however. That was entirely appropriate, because Koss did not raise the denial ofhis right to presence in the Court ofAppeals or in his petition for review.
6 As this court held in its extended discussion ofRAP 2.5(a)(3) in State v. WWJ Corp., there are two components to manifest error. State v. WWJ Corp., 138 Wn.2d 595, 602-03, 980 P.2d 1257 (1999). An error is manifest "only if it results in a concrete detriment to the claimant's constitutional rights, and the claimed error rests upon a plausible argument that is supported by the record." !d. at 603 (citing State v. Lynn, 67 Wn. App. 339,345, 835 P.2d 251 (1992)). We have sometimesreferredto the requirement -11-State v. Koss (Anthony D.), No. 85306-1

Itremains truethatthetrial court, not the defendant, is responsible for making
a record that theproperprocedures were followed before closing a courtproceeding to whichtherightto an opentrial attaches. Bone-Club, 128 Wn.2d at 258-59 (citing Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36-39, 640 P.2d 716 (1982)). But the appellant bears the responsibility to provide a record showing that such a closure occurred in the first place. Ifappellate counsel believes such an error occurred but the record does not prove it, the appellant still has options. Ifthe courtreporter's notes orthe videotape ofthe proceedings are damaged or lost, a party may prepare a narrative report of proceedings, which shouldbe a "fair and accurate statement ofthe occurrences in
.

. . the trial court material to the issues on review." RAP 9.3. The parties may "prepare and sign an agreed report ofproceedings setting forth only so many ofthe facts averred and proved or sought to be proved as are essential to the decision of theissuespresentedfor review." RAP 9.4. Apartymayalso relyonRAP 9.9, which permits correctionorsupplementationofthereport ofproceedingsbeforetransmittal

to show a "concrete detriment to the claimant's constitutional rights" as arequirement to show "actual prejudice." WWJ Corp., 138 Wn.2d at 602-03. But this court recently held thatbecause apublic trial violation is structural error, an appellantneednot showprejudice to the outcome ofthe trial to satisfy RAP 2.5(a)(3)'s prerequisites to raising courtroom closure for the first time on appeal. Wise, 176 Wn.2d at 18 n.11; Paumier, 176 Wn.2d at 36. But the defendant must still show that the claim is supported by the record. WW J Corp., 138 Wn.2d at 603. -12-State v. Koss (Anthony D.), No. 85306-1



### to the appellate court, "on motion ofa party, or on stipulation ofthe parties." RAP 9.10 permits such supplementation of the record even after transmittal to the appellate court. None of that was done here. Thus, Koss failed to show that a courtroom closure occurred at all during proceedings related to thejury's questions. CONCLUSION InBone-Club andmanycases sincethen, e.g.,In rePers. Restraintof Orange, 152 Wn.2d 795, 100 P.3d 291 (2004), we have heldthat the trial court must address several factors on the record before it can close a proceeding to which the constitutional right to a public trial attaches. In Easterling and many cases since then, e.g., State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009); Wise, 176 Wn.2d 1; Paumier, 176 Wn.2d 29, we haveheldthat a criminal defendant can challenge the trial court's failure to comply with the constitutional prerequisites to courtroom closure for the first time on appeal.? In Sublett, we held that the constitutional right to apublic trial does not attach to a preliminaryjuryinstructions conference or to a middeliberations discussion ofjury questions. And in Jasper, we reaffirmed our long-standing rule that the defendantbears the burden ofsupplying us with arecord

7

### In latercases, we saidthatadefendant could also waivetherighttoraise courtroom closure on appeal-butwe have arguably contradictoryprecedent onwhat ittakes to make a valid waiver. Compare Bone-Club, 128 Wn.2d at 257, with State v. Momah, 167 Wn.2d 140, 154-55, 217 PJd 321 (2009). Thatissue need notbe addressed to resolve this case. -13-State v. Koss (Anthony D.), No. 85306-1

thatis sufficientto showthat the claimed error occurred. Together, thoseprecedents resolve this case. The Court ofAppeals is affirmed.

-14-State v. Koss (Anthony D.), No. 85306-1

WE CONCUR:

-15-State v. Koss (Anthony David) (Wiggins, J., concurring in result)

No. 85306-1
WIGGINS, J. (concurring in result)-! agree with the majority's resolution ofthis case. However, I write separately because I believe the logic and experience test is harmful and incorrect. See State v. Smith, No. 85809-8 (concurrence in result) (Wash. Sept. 25, 2014). Thus, I disagree with the majority's application ofthe test to find that the public trial right does not attach to in-chambers discussion ofjury instructions prior to deliberations. Majority at 7-8. Under article I, section 10, every part of the administration of justice is presumptively open. WASH. CaNST. art. I, § 10. Open administration of justice is paramount; '"[a] publictrial is a core safeguard in our system ofjustice."' State v. S/ert, No. 87844-7, slip op. at 5 (Wash. Sept. 25, 2014) (quoting State v. Wise, 176 Wn.2d 1, 5, 288 P.3d 1113 (2012)). The reason we protect open and public trials is to "ensure thatjudges and lawyers are accountable for what occurs during trial. It helps remind them to act with decorum and to consider the**consequen~es** oftheir actions." Smith, slip op. at 8 (dissent). "Public trials also help foster trust in our judicial system, and they allow members ofthe public to seejustice done in their communities." /d.No. 85306-1 (Wiggins, J., concurring in result) Unfortunately, applying the logic and experience test has resulted in arbitrary line-drawing that has not necessarily furthered the goals of public trials. For instance, in this case, we hold that the public trial right does not attach to in-chambers conferences to discuss jury questions. See State v. Sublett, 176 Wn.2d 58, 292 P.2d 715 (2012). 1 But is this or should this always be the case? A recent law review article understandably asks the following: Does the [logic and experience test] permit chambers consideration of all questions from a deliberatingjury, such as questions about evidence, or is it limited to questions about the courfs instructions? What analytical path is to be used for a different sort of question? What if the court and counsel all have new trials underway and cannot be physically present where the jury is deliberating-can they resolve the issue on the telephone, which has been a frequent practice? By email? What about consideration of questions from the jury during trial? If jurors are permitted to submit proposed questions for witnesses, may counsel and the court confer in chambers to decide which questions should be asked? Anne L. Ellington &Jeanine Blackett Lutzenhiser, In Washington State Open Courts Jurisprudence Consists MainlyofOpen Questions, 88 WASH. L. REV. 491,518 (2013). The Sublett plurality adopted the "logic and experience test" because it allows the trial court "to consider the actual proceeding at issue for what it is, without having to force every situation into predefined factors." Sublett, 176 Wn.2d at 73-74 (citing Press-Enter. Co. 

### v. Superior Court, 478 U.S. 1,13-14,106 S. Ct. 2735,92 L. Ed.

1 Notably, Sublettspecifically involved a question from a deliberatingjuryabout already issued instructions. 176 Wn.2d 58. Nonetheless, courts have applied Sublett's holding to a broader range of situations such as in-chambers discussion of proposed jury instructions (State v. Miller, 179 Wn. App. 91, 100-01, 316 P.3d 1143 (2014)); a jury's questions about the formulation ofjury instructions and a request for clarification on how to proceed when thejury felt it was deadlocked (State v. Burdett, 178 Wn. App. 183, 196-97, 313 P.3d 1235 (2013)); and ajury's request for a tape measure and masking tape (State v. McCarthy, 178 Wn. App. 90, 97-98, 312 P.3d 1027 (2013)). 2No. 85306-1 (Wiggins, J., concurring in result) (1986)). Ironically, however, the majority has used the test to categorically permit closures in certain types of proceedings without considering the effect that such closures have on the open administration ofjustice in that particular case. Accordingly, I would reject the logic and experience test and instead presume all stages oftrial are open, which brings us into adherence with the language of article I, section 10 and would advance the benefits of openness and publicity. While there may be areas of constitutional law so complex that confusion is inevitable, the public trial right need not be one ofthem. We should simply announce that the right attaches to all proceedings; we presume all courts are open unless the trial court conducts the five-step analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.3d 325 (1995). I agree with the majority's resolution affirming Koss's conviction but would hold so because Koss failed to objectto a closure. In otherwords, he has failed to establish a record of closure and he has not shown "manifest error affecting a constitutional right." RAP 2.5(a)(3).

3No. 85306-1 (Wiggins, J., concurring in result) I concur in result,.

4