IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, ) No. 75630-3-1 

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LEACH, J. — Kenneth Barrett appeals his conviction for bail jumping. He 

asserts claims of prosecutorial misconduct, ineffective assistance of counsel, and 

violation of his public trial rights. Because the prosecutor's comments drew 

reasonable inferences from the evidence, we reject Barrett's prosecutorial 

misconduct and ineffective assistance of counsel claims. And recent precedent 

controls Barrett's public trial claim. The trial court did not close the courtroom by 

holding a sidebar during juror selection and thus did not violate Barrett's public 

trial rights. 

FACTS 

The State charged Kenneth Barrett with malicious mischief after he 

intentionally damaged vehicles belonging to the daughter of his deceased 

partner. At his arraignment on this charge, Barrett signed an order and notice 

setting trial date or other hearings and conditions of release. Barrett appeared 
No. 75630-3-1/ 2 

for his next court date, an omnibus hearing, where he signed an agreed order of 

trial continuance. That document listed his status conference for November 12, 

2014, at 9:00 a.m. It warned the defendant that "failure to appear may result in 

issuance of an arrest warrant, forfeiture of bail, and criminal prosecution for bail 

jumping." 

Barrett had not appeared when the trial court called his name at 10:35 

a.m. on November 12. The court issued a bench warrant at the State's request. 

The State amended the information to add a count of bail jumping. 

During jury selection, the trial court held a sidebar in which it 

recommended excusing four jurors for cause. The court reporter did not 

transcribe the sidebar. The court immediately made a record of it, however, and 

explained its reasons for dismissing each juror. Neither party objected to the 

court's description. 

Barrett's defense to the bail jumping charge was that he did not know 

about the court date he missed. He testified to the following. He is legally blind 

and unable to read documents. He signed his court documents in court but could 

not read them. In particular, he could not read the date and time of his 

November 12 hearing. His brother normally told him his court dates, but his 

brother did not tell him about the November 12 court date. He came to court 

"before noon" on November 12 after getting a call from his lawyer. Barrett 

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No. 75630-3-1/ 3 

conceded that he signed the documents listing his court dates in front of a judge, ' 

that he spoke with the judge about what he was signing, and that his counsel 

was present for the conversation. 

A deputy prosecuting attorney, John Michael Jones, testified about the 

trial court's procedures between arrest and trial) The trial court arraigns the 

defendant. At the arraignment, the court receives the defendant's pleas, 

schedules hearings, and sets a trial date. The court announces those hearing 

dates and times to the defendant, defense counsel, and the prosecutor. It also 

gives the parties written orders and notices that state those dates. When a party 

wishes to continue a trial date, the defendant, defense counsel, and the 

prosecutor appear before a judge again to discuss the requested changes. 

In her closing argument, the prosecutor said of Barrett's testimony, "These 

are his court dates. They're not his brother's court dates. And more importantly, 

he's already had notice of those court dates. He signed for them. He's talked to 

the judge about them." Similarly, during rebuttal, she said, "He signed those 

documents, and he had conversations with the Court and his attorney [that 

Deputy Prosecuting Attorney] Jones talked to you about. That happens every 

time." Barrett's counsel did not object to either of these comments. 

I Jones is a Thurston County deputy prosecuting attorney but was not 

involved in prosecuting Barrett. 

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No. 75630-3-1/ 4 

The jury convicted Barrett of bail jumping.2Barrett appeals. 

STANDARD OF REVIEW 

This court reviews a claim of prosecutorial misconduct under an abuse of 

discretion standard.3It reviews an ineffective assistance of counsel claim de 

novo as a mixed question of law and fact.4And it reviews constitutional issues 

and other questions of law de novo.5 

ANALYSIS 

Prosecutorial Misconduct 

Barrett contends that the prosecutor's statements in her closing argument 

that the trial court judge had told Barrett his court date amounted to prosecutorial 

misconduct. We disagree. 

A defendant "bears the burden of proving that the prosecutor's conduct 

was both improper and prejudicial."6 

This court evaluates the challenged statements' propriety in "the context of 

the prosecutor's entire argument, the issues in the case, the evidence discussed 

in the argument, and the jury instructions."7Attorneys have "'latitude to argue the 

2The jury failed to reach a verdict on the malicious mischief charge; 

Barrett later pleaded guilty to a lesser degree of malicious mischief. 

3State v. Ish, 170 Wn.2d 189, 195-96, 241 P.3d 389 (2010). 

4State v. Davis, 174 Wn. App. 623, 639, 300 P.3d 465 (2013). 

5State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013). 

6State v. Emery, 174 Wn.2d 741, 756, 278 P.3d 653 (2012). 

7State v. Dhaliwal, 150 Wn.2d 559, 578, 79 P.3d 432 (2003). 

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No. 75630-3-1/ 5 

facts in evidence and reasonable inferences' in their closing arguments."8But 

they may not "urg[e] the jury to decide a case based on evidence outside the 

record."9 

When, as here, the defendant did not object at trial, the defendant waived 

any error unless the misconduct was "so flagrant and ill intentioned that an 

instruction could not have cured the resulting prejudice."1° "Under this 

heightened standard, the defendant must show that (1) `no curative instruction 

would have obviated any prejudicial effect on the jury' and (2) the misconduct 

resulted in prejudice that 'had a substantial likelihood of affecting the jury 

verdict.'"11 

Here, the prosecutor did not make an improper statement. And even if 

she did, her statements were not "so flagrant and ill intentioned that an 

instruction could not have cured the resulting prejudice."12 

Jones testified that the trial court always announces the dates and times 

of a defendant's upcoming pretrial hearings.13In particular, he testified that the 

8Dhaliwal, 150 Wn.2d at 577 (quoting State v. Smith, 104 Wn.2d 497, 

510, 707 P.2d 1306 (1985)). 

9State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158 (2012). 

10Emery, 174 Wn.2d at 760-61. 

1 Emery, 174 Wn.2d at 760 (quoting State v. Thorgerson, 172 Wn.2d 438, 

455, 258 P.3d 43 (2011)). 

12Emery, 174 Wn.2d at 760-61. 

13Barrett does not assign error to the trial court's admission of Jones's 

testimony explaining a defendant's pretrial hearings. 

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No. 75630-3-1 /6 

trial court would have discussed the date and time of the November 12 status 

conference with Barrett, his counsel, and the prosecutor at Barrett's August 14 

omnibus hearing and that Barrett's signature on the order from that hearing 

means he must have been present. 

Consistent with this testimony, Barrett acknowledged that he spoke with 

and signed each document in front of a judge: 

Q. My question is you have no idea if you put your signature on 

this document either. 

A. It's my name. I put it on it. 

Q. Okay. And all of these would have occurred while you were 

in person in front of the Court, correct? Do you recall being 

in court and signing documents? 

A. Yeah. 

Q. And you recall being in front of the judge signing documents, 

correct? 

A. Yeah. 

Q. And you recall having a conversation with the judge about 

what you were signing? 

A. Yeah, and they pointed out where 1 sign that too. 

Q. When you had that conversation with your judge about what 

you are signing, your counsel was present with you, correct? 

I guess. 

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No. 75630-3-1 /7 

Q. . . . And do you remember being advised by the judge 

specifically that you had to be—your presence was required 

at all hearings in this matter? 

A. Yeah. 

Barrett also acknowledged that he had appeared at other court appearances 

where he was informed of upcoming court dates. 

The prosecutor relied on this evidence in her closing argument.14She 

acted within her wide latitude to make reasonable inferences from the evidence 

when she inferred from Jones's and Barrett's testimony that Barrett had spoken 

to the judge who set his court dates and had heard the dates announced. Her 

statements that Barrett "talked to the judge about" his court dates and "had 

conversations with the Court and his attorney" (presumably about those dates) 

were not improper and thus did not amount to misconduct. 

Moreover, even if the comments were improper, Barrett did not object to 

them and they were not "so flagrant and ill intentioned that an instruction could 

not have cured the resulting prejudice."15Barrett makes only a conclusory 

argument that the statements likely affected the jury's verdict. He provides no 

support for his assertion that an instruction could not have cured any resulting 

14Barrett cites no decisions that have found statements like the ones here 

to be improper. In the case Barrett cites for this proposition, State v. Belgarde, 

the prosecutor connected the defendant, a Native American, to a group called 

the American Indian Movement, which the prosecutor described as "a deadly 

group of madmen." 110 Wn.2d 504, 506, 755 P.2d 174 (1988). 

15 Emery, 174 Wn.2d at 760-61. 

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No. 75630-3-1 /8 

prejudice. And he identifies nothing in the record suggesting flagrant 

misconduct. Barrett thus does not make the heightened showing required when 

a defendant fails to object at trial. 

Ineffective Assistance of Counsel 

Barrett next contends that his attorney's failure to object to the 

prosecutor's statements at closing argument amounts to ineffective assistance of 

counsel. 

To prove ineffective assistance of counsel, a defendant must show, first, 

that counsel provided representation so deficient that it fell below an objective 

standard of reasonableness and, second, that the deficient performance 

prejudiced him.16Matters of trial strategy or tactics do not establish deficient 

performance.17"Counsel's decisions regarding whether and when to object fall 

firmly within the category of strategic or tactical decisions."16"Only in egregious 

circumstances, on testimony central to the State's case, will the failure to object 

constitute incompetence of counsel justifying reversal."16A mistake prejudices a 

16Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 

2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). 

17State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). 

18State v. Johnston, 143 Wn. App. 1,19, 177 P.3d 1127 (2007). 

19Madison, 53 Wn. App. at 763; see Johnston, 143 Wn. App. at 19 

(applying observation to failure to object to prosecutor's remarks). 

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No. 75630-3-1 / 9 

defendant when there is a reasonable probability that but for counsel's errors, the 

result of the trial would have been different.20 

Such "egregious circumstances" are absent here. As discussed above, 

the prosecutor's comments were not improper. The trial court likely would not 

have sustained any objection. Barrett's trial counsel's failure to object was 

objectively reasonable, and his performance was not deficient. Because Barrett 

did not satisfy the first prong of his ineffective assistance claim, we need not 

decide whether there was a "reasonable probability" that the prosecutor's 

comments affected the jury verdict. 

Right to Public Trial 

Finally, Barrett contends that the trial court violated his right to a public 

trial by making for-cause excusals at a sidebar during jury selection. Recent 

decisions by the Supreme Court and Division Two of this court foreclose this 

argument. 

The Washington Constitution, article 1, section 22, and the Sixth 

Amendment to the United States Constitution guarantee a defendant the right to 

a public trial. A defendant may claim for the first time on appeal that this right 

was violated.21 If it was, then this court will presume the defendant was 

20State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). 

21 State v. Koss, 181 Wn.2d 493, 498, 334 P.3d 1042 (2014). 

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No. 75630-3-1 / 10 

prejudiced.22This court follows a three-part analysis to determine whether a 

defendant's public trial right was violated: "First, we ask if the public trial right 

attaches to the proceeding at issue. Second, if the right attaches we ask if the 

courtroom was closed. And third, we ask if the closure was justified."23 

The first part of this analysis is satisfied here: the public trial right does 

attach to jury selection, including for-cause and peremptory challenges.24 

Under the second part, Washington courts recognize two types of 

closures. The first occurs "'when the courtroom is completely and purposefully 

closed to spectators so that no one may enter and no one may leave.'"25The 

second occurs "where a portion of a trial is held someplace 'inaccessible' to 

spectators, usually in chambers."26Barrett does not allege the first type of 

closure here. Barrett's challenge thus depends on whether the sidebar rendered 

jury selection inaccessible to the public. 

22State v. Strode, 167 Wn.2d 222, 231, 217 P.3d 310 (2009). 

23State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015). "The 

appellant carries the burden on the first two steps; the proponent of the closure 

carries the third." Love, 183 Wn.2d at 605. "A closure unaccompanied by a 

Bone-Club analysis on the record will almost never be considered justified." 

State v. Smith, 181 Wn.2d 508, 520, 334 P.3d 1049 (2014) (citing State v. BoneClub, 128 Wn.2d 254, 906 P.2d 325 (1995)). 

24Love, 183 Wn.2d at 606 (explaining that "for cause and peremptory 

challenges can raise questions about a juror's neutrality and a party's motivation 

for excusing the juror that implicate the core purpose of the right, and questioning 

jurors in open court is critical to protect that right"). 

26Love, 183 Wn.2d at 606 (quoting State v. Lormor, 172 Wn.2d 85, 93, 

257 P.3d 624 (2011)). 

26Love, 183 Wn.2d at 606 (quoting Lormor, 172 Wn.2d at 93). 

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No. 75630-3-1/ 11 

Recent decisions of the Supreme Court and Division Two have answered 

"no" to this question. In State v. Love,27the Supreme Court held that a sidebar 

during jury selection implicated the public trial right but was not a courtroom 

closure. During voir dire, the trial court judge called the defense and prosecuting 

attorneys to the bench to discuss for-cause challenges. The court reporter 

recorded the brief exchange, in which the defense asked the court to excuse two 

jurors and the State did not object.28The Supreme Court reasoned that "the 

public had ample opportunity to oversee the selection of Love's jury because no 

portion of the process was concealed from the public; no juror was questioned in 

chambers."29Instead, the court noted, the public could watch the judge and 

attorneys ask questions and make challenges and the public could "ultimately 

evaluate the empaneled jury."3° It noted that the transcript was "publically 

available."31 

After Love, the Supreme Court remanded a similar case for Division Two 

to reconsider.32In State v. Anderson,33the jurors were questioned in open court, 

27 183 Wn.2d 598, 605-06, 354 P.3d 841 (2015). 

28 Love, 183 Wn.2d at 602. The defense asked the trial court to strike two 

jurors, and the State had no objection. 

29 Love, 183 Wn.2d at 607. 

30 Love, 183 Wn.2d at 607. 

31 Love, 183 Wn.2d at 607. 

32 State v. Anderson, 184 Wn.2d 1009 (2015) (granting review and 

remanding). 

33 194 Wn. App. 547, 549, 377 P.3d 278 (2016). 

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No. 75630-3-1 /12 

the defendant made for-cause challenges in a sidebar conference, and the judge 

dismissed those jurors. Later, the court dismissed a fifth juror for cause on its 

own initiative at another sidebar conference. But, unlike in Love, the court made 

no verbatim record of the sidebars; instead, the trial court stated their results for 

the record.34Division Two initially held that the trial court had closed the 

courtroom and violated the defendant's public trial right. On remand, however, 

the court held that the only distinguishing feature from Love—the lack of a 

transcript—did not make the sidebars a closure. The court reasoned that "the 

trial court's placing what occurred at sidebar on the record meant that '[t]he 

public was present for and could scrutinize the selection of [the] jury from start to 

finish,' thereby affording Anderson the safeguards of the public trial right."35 

We agree with Anderson and hold that Love also controls the outcome of 

Barrett's public trial claim. The only distinction Barrett shows between his 

challenge and the one the Supreme Court rejected in Love is the lack of a 

transcript. Division Two squarely addressed this concern in Anderson. Here, as 

in Anderson, the judge gave an oral summary of the sidebar immediately after it 

happened. Both sides agreed that the summary accurately summarized the 

34Anderson, 194 Wn. App. at 549. 

35Anderson, 194 Wn. App. at 552-53 (alteration in original) (quoting Love, 

183 Wn.2d at 607). 

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No. 75630-3-1/ 13 

sidebar.36We presume that the jurors were questioned in open court, and 

afterward the public could "evaluate the empaneled jury."37Anderson properly 

resolved the issue Barrett raises.38 

CONCLUSION 

Because Barrett fails to show that the prosecutor's statements at closing 

argument were either improper or prejudicial, his claims of prosecutorial 

misconduct and ineffective assistance of counsel both fail. And because recent 

cases have found no courtroom closure under facts analogous to those here, 

Barrett's public trial claim also fails. We affirm. 

WE CONCUR: 

36The Supreme Court has approved of "promptly memorializ[ing 

sidebars as a substitute for holding them on the record. Smith, 181 Wn.2d at 516 

n.10. 

37Love, 183 Wn.2d at 607. 

38State v. Effinger, another recent Division Two decision, is in accord with 

Anderson. 194 Wn. App. 554, 561, 375 P.3d 701 (2016), petition for review filed, 

No. 93459-2 (Wash. Aug. 9, 2016). 

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