IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON ,

Respondent ,

v. PATRICK WAYNE KARAS ,

Appellant

. )

) ) ) ) ) ) ) ) No. 34899

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PUBLISHED OPINION

S IDDOWAY , J.

— 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. We hold that the public trial right does not apply to rulings excluding witnesses under ER 615 but did apply to a motion in limine that had been raised before testimony began and could easily have been heard in the open
courtroom. R eversal and remand for a new trial is required.
PROCEDURAL BACKGROUN D F acts underlying the charges against Patrick Karas for the most part are

u nimportant to this appeal. On the first morning of trial in September 2016 , the jury was 

### FILED APRIL 12 , 2018 In the Office of the Clerk of Court WA State Court of Appeals, Division IIINo. 34899

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2 selected and was read the pattern advance oral instruction

. The trial court then told jurors : Now, folks, we’ re going to take up some matters, outside your presence. And, then, we’ ll have you back here, after lunch, for opening statements. And let’ s have you back in the jury room, at 1:30, and we’ ll try to take up as quickly as we can after 1: 30. R eport of P roceedings (RP) (Apr. 14, 2016) at 81. The trial court cautioned jurors against discussing the case with anyone and told them the bailiff was then going to “ show you where your new home away from home is. ” Id. at 82. Although not reflecte d 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:

THE COURT: Okay. For the record, Counsel met in chambers, and discuss ed only legal issues. And we did discuss some motions. One was a motion to exclude witnesses, by the defendant. The Court granted that motion. And the Court was advised that the State will have Officer Josh Mathena as its representative, to be seated a t counsel table. Everyone else is excluded. There’ s also a motion, by the defenda nt, to keep out testimony by

— who was the officer? Corulli? [DEFENSE COUNSEL] : Corulli. THE COURT: Corulli, who, apparently, in his report, indicates some statements mad e by a cashier, at a business across from the alleged victim’ s business. And the Court granted that motion. Officer Corulli can’ t talk about what the cashier said. It was also indicated that the alleged victim had that conversation with the cashier. And the Court did not grant a motion in limine,No. 34899

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3 preventing the alleged victim from talking about what he said to the cashier. And, the way it was presented, what the cashier said to him, was not being offered to prove the truth of the matter asserted. S o counsel can renew the objection to that, if you want. But, right now, it sounds like that’ s the route we got to go, at this point in time. Anything else we need to put on the record? (Discussion had off record.) Id. at 82

- 83

. The report of proceedin gs next indicates, “Lunch recess taken.” Id. The chambers conference was not recorded. Our record does not contain court minutes or any other information on how long the chamber s conference lasted

. The report of proceedings picks up again after the l unch recess, when the proceedings continued with opening statements. 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 . F or the first time , he alleged that the chambers conference on the morning of the first day of trial was a public trial violation

. Review of the record on appeal reveals only one other filing that sheds light on the subject matter of the unrecorded argument of the motion in limine: the transcript of an earlier CrR 3.5 hearing. During that hearing, an investigating officer testified that Mr. Karas might have overheard the victim of the burglary and theft tell a cashier at a nearby market about where he kept cash. According to the officer, the cashier asked the vi ctim whether he kept cash in order to make change for customers and the victim said he did,No. 34899

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4 and that he kept it in the office of his shop. The cashier later told the victim that Mr.
Karas was in the market and within earshot when they talked about where the cash was located. At the CrR 3.5 hearing, the officer testified that it was when he confronted Mr. Karas about this information that Mr. Karas agreed to tell him what happened.
ANALYSIS Mr. Karas argues that 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 1 analysis.
A rticle I, section 22 of the Washington Constitution and the Sixth Amendm ent to the United States Constitution guarantee a defendant the right to a public trial. A violation of the right to a publ ic trial is structural error from which prejudice is presumed; accordingly, “a new trial is the only remedy.” State v. Frawley , 181 Wn.2d 452, 459 , 334 P.3d 1022 (2014 ); State v. Wise , 176 Wn.2d 1, 13

- 15 , 288 P.3d 1113 (2012) (citing Arizona v. Fulminante , 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). 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 a n 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).

1 State v. Bone

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

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5 In analyzing whether a defendant’s right to a public trial has been viol ated, we “b egin by examining . . . [1] whether the public trial right is implicated at all . . . then turn to the question [2] whether, if the public trial right is implicated, there is in fact a closure of the courtroom; and if there is a closure, [3] whether . . . the closure was justified. ” State v. Smith , 181 Wn.2d 508, 513, 334 P.3d 1049 (2014) (some alterations in original) (quoting State v. Sublett , 176 Wn.2d 58, 92 , 292 P.3d 715 (2012) (Madsen, C.J., concurring)). In this case, as in the Washington Supreme C ourt’s recent decision in State v. Whitlock , the second and third questions are easily answered: proceedings in a judge’s chambers constitute a closure, and because t he trial court did not conduct a Bone

- Club analysis, the closure was not justified. 188 Wn.2d 511, 520

- 21, 396 P.3d 310 (2017).
A t issue is only whether the public trial right atta ched to the trial court’ s hearing of
two 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
repre sentative who would not be excluded. The second motion was a case

- specific motion in limine involving the con versation b etween the victim and the store cashier that Mr. Karas is alleged to have overheard. The State represents that the motion in limine was uncontested, see Br. of Resp’t at 3 , and perhaps it was uncontested that the officer could not testify to wh at he was told about the conversation. But whether the victim could testify to the conversation appears to have been con tested, since the court stated “counsel can renew the objection [ as ] to that

. ” RP (Apr. 14, 2016) at 83.No. 34899

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6 From the trial judge ’s st atement on the record that he and the lawyers “discussed

o nly legal issues” in chambers, he appears to have assumed that “legal issues” do not implicate public trial rights. But in State v. Sublett , 176 Wn.2d at 72

- 73, our Supreme
C ourt rejected the legal and ministerial nature of proceeding s , as distinguished from proceedings that are adversarial and factual , as the basis for determining whether the public trial right applies

. Smith , 181 Wn.2d at 514

. Sublett held that Washington courts are to app ly experience and logic to make the determination. Id. “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 pla ys a significant positive role in the functioning of the particular process in question. ’” Sublett , 176 Wn.2d at 73 (citations omitted) (quoting
Press

- Enter. Co. v. Superior C t
. , 478 U.S. 1, 8 , 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986) ). Only if both questio ns are answered affirmatively does the public trial right apply

. Sublett , 176 Wn.2d at 73. 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). 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 sideb ars to conferences taking place in the court room, at the bench ; the sidebars in Smith took place in a hallway

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7 But it limited “ ‘ proper ’ ” sidebars to “proceedings that ‘ deal with the mundane issues implicating little public interest[,] . . . done only to a void disrupting the flow of trial, and either . . . on the record or . . . promptly memorialized in the record. ’” W hitlock , 188 at 522 (alterations in original) (quoting Smith , 181 Wn.2d at 516 & n.10 )

. It found that the “experience” prong was not established because “[s]idebar conferences have historically occurred outside the view of the public.” Smith , 181 Wn.2d at 515. In holding that the “logic” prong was likewise not shown, it reasoned that “[f]or the public, discussions on hearsay and the p rior inconsistent statement exception [at issue in Smith ] are practically a foreign language,” such that public access would play no positive role in the proceeding. Id. at 519

. It held that a sidebar conference, “even if held outside the courtroom,” doe s not implicate Washington’s public trial right. Id

. 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 de fendants that s he was a police informant. T he 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. In Mr. Whitlock’s appeal, t he State characte rized the chambers conference that had taken place during trial as equivalent to a midtrial sidebar and argued that Smith was controlling. B ut a unanimous Supreme Court held that the chambers conference inNo. 34899

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8 Whitlock was not a “ proper ” sidebar conference. One reason was that the confe rence 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 as 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 Wn.2d at 522

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. 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 tri al 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 whet her the public trial right applies. 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 exclud e 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 . Such housekeeping measures have commonly been discussed in chambers or in a non public scheduling call, or have been decided without discussion by a trial court that simply announces its usual practice

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9 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 Wn.2d at 513

- 14 (quoting Smith , 181 Wn.2d at 515 ). The closer issue is the motion 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 has stated that while sidebars were at issue, “ ‘ The analysis would not change for on the record evidentiary conferences in chambers. ’ ” Id. (quo ting Smith , 181 Wn.2d at 512 n. 3). The lead opinion went on to say that “because sidebars, and not evidentiary con ferences , 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 to hearings on motions in limine, the lead opinion did not address it fur ther. Id. Five members of the Speight c ourt (concurring Justice Madsen and the four dissenters) believed that to reach the majority’s disposition o f 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 theNo. 34899

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10 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 (Madsen, J., concurring). Addressing the experience prong, Ju stice Madsen concluded: Motions in limine concern interlocutory pretrial decisions made by the trial court, typically involving legal questions about the admissibility of certain evidence. Often these pretrial decisions will be revisited during the course of proceedings as the evidence develops. As with rulings on contemporaneous objections to evidence, motions in limine are decided outside the hearing of the jury. Id. at 110 (Madsen, J., concurring). We do not disagree with the observation that motio ns in limine are decided outside the hearing of the jury, but the question remain s whether they have historically been decided somewhe re 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

. 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 motion s while members of the venire filled out jury questionnaires in the courtroom, the motions were heard in chambers. R elocating the hearing was understandable under the circumstances , but we submit that hearing motions in limine inNo. 34899

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11 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. 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 Wn.2d at 519, 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 b een 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 about statements that were not being offered for the ir truth. These are issues that an attentive and interested me mber of the public could grasp. P ublic trust is advanced by giving attentive, interested members of the public the opportunity to k now why evidence that seems relevant might be excluded for some counter vailing reason. See Smith , 181 Wn.2d at 544 (Owens, J., dissenting) (“[H ]iding discussions over evidence
and testimo ny 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

. ”).No. 34899-7-III State v. Karas

Mr. Karas satisfies us that 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 motion in
limine in chambers was a public trial right violation. On direct appeal that violation,
without more, requires reversal. We reverse the judgment and sentence and remand for a

new trial. 2

Siddoway, J.
WE CONCUR:

Pennell, A.CJ.

2 Our disposition renders moot three issues raised by Mr. Karas in a statement of additional grounds.

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