IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. RICKEY RAINEY, Appellant. No. 68846-4-1

ORDER GRANTING MOTION FOR RECONSIDERATION, WITHDRAWING AND REPLACING OPINION Respondent State ofWashington filed a motion for reconsideration ofthe court's opinion filed February 24, 2014. The panel requested and received an answerto the motion from appellant pursuantto RAP 12.4(d). After due consideration, the panel has determined that the motion should be granted and that the opinion should be withdrawn and replaced with an opinion reflecting the changes noted below. Nowtherefore, it is hereby ORDERED that on page 2, the sentence reading "During the trial, the court admitted a certified copy of Rainey's driving record from the Department ofLicensing,

over Rainey's objection" be deleted and replaced by the sentence "During the trial, the court admitted, over Rainey's objection, a letterfrom a records custodian saying that Rainey's driving privilege had been suspended."
It is further ORDERED that on page 13, the sentence reading "Consistentwith the holding in Jasper, the certified copy of Rainey's driving record was testimonial hearsay" be deletedNo. 68846-4-1 Order Granting Motion for Reconsideration, Withdrawing and Replacing Opinion

and replaced by the sentence "Consistentwith the holding in Jasper, the document stating that Rainey's license was suspended was testimonial hearsay."
It is further ORDERED thatthe opinion filed February 24, 2014 is hereby withdrawn and shall be replaced by an opinion reflecting said changes. 

# Datedthis1y dayof /fffi' 2014.

— —!c~

__ —' —, ~G ' 'fro "'"-/ co i-£~j'c:T/VTE OF WASuhvj

: • i. 

### 20lU?R2O tii \'-<

IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON DIVISION ONE STATE OF WASHINGTON, Respondent,

v. RICKEY MITCHELL RAINEY, Appellant. No. 68846-4-

PUBLISHED OPINION FILED: April28, 2014 

### Verellen, A.C.J. — During a hearing on Rickey Rainey's motion for a new trial, the trial court closed the courtroom, conducted an in camera review, and concluded that


### a witness could assert her Fifth Amendment privilege against self-incrimination. The witness did nottake the stand or personally assertthe privilege inopen court before the 

### incamera proceeding occurred and the trial court did notconduct a Bone-Club analysis 

### before closing the courtroom.1 Under the "experience and logic" test, a witness's assertion of the Fifth Amendment privilegeagainst self-incrimination in an evidentiary 

### hearing must occur on the witness stand in open court, unless the court has conducted a Bone-Club analysis and made suitable findings. Becausethat did nothappen here, both Rainey's right to a public trial and the public's right to open proceedings were 

### violated and Rainey is entitled to a new hearing on his motion for a newtrial.

State v. Bone-Club. 128 Wn.2d 254, 906 P.2d 325 (1995).No. 68846-4-1/2 Additionally, as conceded by the State, the admission ofcertified copies of Rainey's driving records at trial violated his Sixth Amendment right to confrontation. Therefore, we reverse Rainey's conviction for driving while license suspended (DWLS) inthe third degree and remand for a new trial on that count. FACTS On May 17, 2009, Officer Chris Sylvain with the Snoqualmie Police Department observed Rickey Rainey driving Rainey's mother's truck. He also observed a female passenger inthe truck. He checked Rainey's driving records and discovered that Rainey's driver's license was suspended. Officer Sylvain attempted to pull Rainey over, 

### but Rainey led Officer Sylvain on a high speed chase backto Rainey's mother's home. When officers approached the home, the truck was parked and Fallon Mayhew, the 

### passenger, was sitting inthe front yard. Mayhew was distraught and pointed in the 

### direction Rainey ran. She told OfficerSylvain that itwas "the scariest ride of herlife."2 The State charged Rainey by amended information withone count ofattempting to elude a pursuing police vehicle and one count of DWLS inthe third degree. The State's witnesses included Officer Sylvain and two other responding police 

### officers. Mayhew had given a sworn statementto the police but could not be located to 

### testify at trial. Rainey did not testify. Duringthe trial, the court admitted, over Rainey's objection, a letter from a records custodian saying that Rainey's driving privilege had been suspended. A jury convicted Rainey on both counts and returned a special verdict that he endangered one or more persons otherthan himself orthe pursuing law enforcement officerwhile eluding a police vehicle.



### 2Report ofProceedings (RP) (Mar. 10, 2010) at 57.No. 68846-4-1/3 Rainey obtained new defense counsel and moved for a new trial on several grounds, including thatthere was newly discovered evidence that he was not driving the truck. This new evidence consisted ofexculpatory statements made by Mayhew to his
new defense counsel. At a hearing on the motion, Rainey indicated that he intended to call Mayhew as a witness. Concerned that Mayhew's testimony might be selfincriminating, the trial court appointed an attorney to represent Mayhew. After consulting with Mayhew, her counsel told the courtthat he advised her not 

### to testify "because there is a possibility of a Fifth Amendment issue."3 In orderto make "a clear record," the trial court indicated that itwould call Mayhew to the stand so that 

### her defense counsel could ask her ifshe was planning to assertthe privilege.4 Before Mayhew took the stand, the State advised the courtthat itmustfirst determine whether Mayhew has a FifthAmendment privilege, and explained that such a determination 

### usually takes place in a closed hearing. The court asked Rainey's counsel ifshe had any objection to that procedure. She admitted that she was not sure ofthe appropriate procedure, but deferred to Mayhew's attorney's decision on the matter. Without 

### considering the Bone-Club factors on the record, the trial court closed the courtroom for 

### an incamera review of Mayhew's right to assertthe privilege.5
3RP(Aug. 27, 2010) at 60. 4Id, at 61. 5 The Bone-Club factors are: 

### "1. The proponent ofclosure or sealing must make some showing [of a compelling interest], and where that need is based on a rightotherthan an accused's right to a fair trial, the proponent must show a 'serious and imminent threat' to that right. 

### " 2. Anyone presentwhen the closure motion is made must be given an opportunity to objectto the closure.No. 68846-4-1/4 After the closed hearing, the trial court reopened the courtroom, and held that Mayhew did have a FifthAmendment privilege and that she chose to exercise that privilege and nottestify. Mayhew never took the stand or claimed the privilege herself in open court. The trial court granted the State's motion to strike Rainey's exculpatory evidence theory for a new trial and denied his othertheories for a new trial. Rainey appeals.
DISCUSSION Right to a Public Trialand Open Proceedings 

### Rainey argues that Mayhew's failure to personally assert her FifthAmendment privilege against self-incrimination inopen court at a hearing on his motion for a new 

### trial violated the public's right to open proceedings and his rightto a publictrial.6 We agree, and remand for a new hearing. 

### The appellant bears the burden of establishing a publictrial rightviolation.7 Whether such a violation exists is a question of law this court reviews de novo.8 A
" 3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests. 

### "4. The court mustweigh the competing interests of the proponent of closure and the public. "5. The order must be no broader in its application or duration than necessary to serve its purpose." Bone-Club. 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily Newspapers ofWash, v. Eikenberrv. 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)). 

### 6The State argues thatwe should decline to reach this argumentbecause itwas 

### raised by Rainey for the first time during oral argument. Rainey identified this issue in 

### his opening brief but did notsupport itwith any specific persuasive argumentorcitation to authority. Becausethe right to a publictrial implicates the fundamental fairness of a criminal proceeding, we reach the merits of this argument. 7State v. Sublett. 176 Wn.2d 58, 75, 292 P.3d 715 (2012) (plurality opinion). 8State v. Momah. 167 Wn.2d 140, 147, 217 P.3d 321 (2009).No. 68846-4-1/5 

### criminaldefendant has a right to a public trialunderthe federal and state constitutions.9 The public has a complementary right to open proceedings underthe federal and state 

### constitutions.10 Butthese rights are not absolute, and a trial court may close part of a trial to which the public trial right applies after applying the Bone-Club guidelines and 

### making specific findings on the record justifying a closure.11 To determine whetherthe public trial right applies, the Supreme Court in State v. 

### Sublett adopted an experience and logictest.12 This test applies to the defendant's right to a public trial and the public's right to open proceedings.13 First, the experience prong asks "'whetherthe place and process have historically been open to the press and 

### general public.'"14 Next, the logic prong asks "'whetherpublicaccess plays a significant positive role in the functioning of the particularprocess in question.'"15 Ifthe answerto

9State v. Lormor. 172 Wn.2d 85, 90-91, 257 P.3d 624 (2011); U.S. Const. amend. VI;Wash. Const, art. I, § 22. 

### 10 |a\ at 91; U.S. Const, amend. I; Wash. Const, art. I, § 10. 11 Momah. 167 Wn.2d at 148. 

### 12176Wn.2d 58, 72-73, 292 P.3d 715 (2012) (plurality opinion). The lead opinion in Sublettwas a plurality opinion by fourjustices. Justice Madsen's concurrence 

### agreed with both the lead opinion's conclusion that not all trial proceedings closed to the public implicate the public trial right and its adoption and application ofthe experience 

### and logic test. Id. at 92-94 (Madsen, C.J., concurring). Therefore, a majority of the court supports these holdings. 13 State v. Burdette. 178Wn.App. 183, 191-92, 313 P.3d 1235 (2013) ("the plain force ofSublett is thatwe use the experience and logic test to determine whether an 

### eventtriggers the protections ofeither set ofconstitutional rights securing open trials") 14 Sublett. 176 Wn.2d at 73 (quoting Press-Enter. Co. v. Superior Court. 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L Ed. 2d 1 (1986)). 15 id (quoting Press-Enter. Co.. 478 U.S. at 8).No. 68846-4-1/6 

### both the experience and logic prongs is yes, the publictrial right attaches and thetrial court must analyze the proposed closure using the Bone-Club factors.16 

### In Sublett. ourSupreme Court concluded that the publictrial rightdid not attach to an in-chambers proceeding where the trial courtanswered a jury question with only counsel present.17 Under the experience prong, the lead opinion looked to CrR6.15, which addressesjury instructions and directs that the question, answer, and objections to jury instructions be included in the record.18 The lead opinion explained that this rule "advances and protects those interests underlying the constitutional requirements of 

### opencourts."19 Furthermore, observing that the courtrule is theonly authority governing juryquestions, the court concluded that a proceeding inopen court to discuss the question itselfand any appropriate answer has not been required historically.20 Moving to the logic prong, the lead opinion concluded that none ofthe values 

### served by the public trial rightwere violated by an in-chambers review of a juryquestion because "[n]owitnesses are involved atthis stage, no testimony is involved, and no risk 

### of perjuryexists."21 Itnoted that CrR6.15's requirementthat the question, answer, and any objections be placed on the record and subjectto public scrutiny and appellate review satisfied the appearance offairness and reminded the prosecutorandjudge of 

### their responsibility because the writing becomes part ofthe public record.22 The lead

16id 17 id at 70, 77. 

### 18 id at 75-77. 

### 19id at 77. 

### 20 id 21 id 22 Id.No. 68846-4-1/7 

### opinionexplained that this proceeding was not "so similar to the trialitself," and concluded that no closure or public trial right violation occurred.23 

### As a matter of first impression, Rainey argues that bothexperience and logic dictate that a witness must assert her Fifth Amendment privilegeagainst selfincrimination inopen court after being called to the stand. We agree. As to the experience prong, State v. Lougin provides a clear statement ofthe procedure to be followed when a witness wishes to assertthe Fifth Amendment 

### privilege against self-incrimination.24 There, Lougin planned to call a codefendantto testify that Lougin was not involved inthe crime.25 Before trial, the trial court ruled that if 

### the codefendanttestified, she would be subjectto complete cross-examination on 

### anything to do with the underlying incident.26 Based on this ruling, the codefendanttold the court that she did not intend to testify.27 During opening statements, Lougin's attorney told thejurythatthe codefendant 

### would testify.28 Thetrial court then instructed the jurythat, due to certain legalrules, the codefendantwould not testify and that her nonappearance should not be considered in 

### arriving at theirverdict.29 Lougin was convicted and on appeal argued that the trial court

23 id 24 50 Wn. App. 376, 749P.2d 173(1988) 25 id at 378. 26 id 27 id 28 id 29 Id.No. 68846-4-1/8 

### erredin allowing the codefendant to make a blanketrefusal totestify.30 This court agreed and explained howthe trial court should have proceeded: Lougin suggests thatthe proper procedure would have been to 

### allowhim to call [hiscodefendant] and question her. Ifat any pointshe claimed a privilege against answering a question, the trial court could rule 

### on her claimas it related to the specific question asked. Lougin is correct 

### that [the codefendant] had a rightto invokethe FifthAmendmentprivilege in response to specific questions and that because she was not a 

### defendant in Lougin's trial, she had norightto decline to testify altogether. It is impossible to know what [his codefendant] would have done if 

### confronted with specific substantive questions. Conceivably, ifproperly advised as to the scope ofher privilege, she could have testified on Lougin's behalfand stillhave avoided incriminating herself. Therefore, the trial court erred in not requiring [the codefendant] to take the stand and then claim the privilege as to specific questions.[31] 

### This result is consistentwithotherWashington cases.32 Therefore, our historical 

### experience dictates that a witness claiming the Fifth Amendment privilege against selfincrimination in an evidentiary hearing must assertthe privilege on the stand in open court.33



### 30 id at 379, 381. 31 Id. at 382. 

### 32 See State v. Parker. 79 Wn.2d 326, 329-33, 485 P.2d 60 (1971) (witness properly asserted the privilege after he was called to the stand and answered more than 25 preliminary questions); Eastham v. Arndt. 28 Wn. App. 524, 525-26, 624 P.2d 1159 

### (1981) (inproceedings supplemental to ajudgment, appellant claimed the privilege under oath and refused to answer questions regarding his assets); Seventh Elect 

### Church in Israel v. Rogers. 34 Wn. App. 105, 107-08, 660 P.2d 280 (1983) (in proceedings supplemental to ajudgment, appellanttook the stand and claimed the 

### privilege inresponse to specific questions); State v. White. 152 Wn. App. 173, 177, 215 P.3d 251 (2009) (witness immediately pleaded the FifthAmendment after being called to testify by the State). 

### 33 Rainey's argumentfocuses on the assertion of the privilege in an evidentiary hearing and not in other contexts. Otherjurisdictions have concluded, and Rainey concedes, that there are circumstances where an attorney may assert the privilege on behalfof a witness, typically when there is a hearing on written materials withoutformal testimony. See United States v. Judson. 322 F.2d 460 (9th Cir. 1963) (attorney retained by income taxpayers under investigation by the internal revenue service had standing to

8No. 68846-4-1/9 

### Moreover, logic requires that the assertion of the privilege happen in open court because it implicates the values served by the publictrial right. In State v. Wise. decided the same day as Sublett. our Supreme Courtexplained: A public trial is a core safeguard in our system of justice. Be it 

### through members of the media, victims, the family or friends of a party, or passersby, the public can keep watch over the administration of justice when the courtroom is open. The open and publicjudicial process helps assure fair trials. Itdeters perjury and other misconduct by participants in a trial. Ittempers biases and undue partiality. The publicnature of trials is a checkon the judicialsystem, which the publicentrusts to adjudicate and 

### renderdecisions of the highest import. It provides for accountability and transparency, assuring thatwhatevertranspires incourtwill not be secret 

### or unscrutinized. Andopenness allows the public to see, firsthand, justice done in its communities.t34l Assertion ofthe privilege against self-incrimination often occurs in a trial or trial 

### like setting during the taking ofwitness testimony where the risk of perjury exists. Requiring a witness claiming the Fifth Amendmentprivilege to do so openly and in full view of the publicsubjects the witness to public scrutiny and satisfies the appearance of fairness that would be absent ifthe assertion could take place behind closed doors. It prevents abuse of the privilege by allparticipants by holding witnesses accountable for their use ofthe privilege while also tempering bias and partiality. Therefore, underthe experience and logic test, the public trial right attaches to a witness's assertion ofher 

### Fifth Amendment privilege against self-incrimination in an evidentiary hearing.
invoke taxpayers' privilege against self-incrimination and to suppress as against government's subpoena, cancelled checks and bank statements which taxpayers had turned overto him at his request); In re Marcario. 2 Cal. 3d 329, 466 P.2d 679, 85 Cal. Rptr. 135 (1970) (defendant's attorney had standing to assertthe privilege against selfincrimination on the defendant's behalfto restrain the enforcement of a discovery order). But, such exceptions do not alterthe well established historical experience in Washington that a witness claiming the privilege in an evidentiary hearing must assert that privilege under oath in open court. 

### 34176Wn.2d 1, 5-6, 288 P.3d 1113(2012).No. 68846-4-1/10 Here, Mayhew did nottake the stand, was not sworn, and did not assertthe privilege against self-incrimination in open court, as the experience and logic test requires. Rather, Mayhew's attorney told the courtthat she would assert the privilege and the trial court closed the courtroom without considering the Bone-Club factors on the record inopen court. Therefore, both Rainey's right to a public trial and the public's 

### right to open proceedings were violated.35 Having determined that Rainey's public trial rights were violated during this posttrial hearing, the next question is what remedy is appropriate. Without citation to 

### any authority applicable to a posttrial hearing, Rainey argues thatthe violation of his public trial rights during this posttrial hearing was a structural error and the proper 

### remedy is reversal of hisconviction, not remandfor a newpublic hearing.36 We disagree. In Wise, our Supreme Court stated that "[w]here a public trial right violation
occurs at a suppression hearing or some othereasily separable part of a trial, remand 

### for a public hearing may be appropriate."37 This isconsistentwith United States Supreme Courtauthority.38 OurSupreme Court concluded that Wise was entitled to a
35 The State argues that Mayhew's attorney properly asserted the privilege for her inopen court. It cites UnitedStates v. Judson. 322 F.2d 460 (9thCir. 1963) and Olson v. Haas. 43 Wn. App. 484, 718 P.2d 1 (1986) insupport of this argument. Both cases involved an attorney's assertion of the privilegeagainst self-incrimination on behalfof his client inresponse to an orderforthe production ofdocuments. Because those cases do not considerthe process required when a witness wishes to assertthe 

### privilege during her testimony in court, they do not require a different result. 36 See State v. Young. 89 Wn.2d 613. 625, 574 P.2d 1171 (1978) (courts may 

### assume thatwhere no authority is cited, counsel has found none after search). 37 Wise. 176Wn.2dat19. 38 See Waller v. Georgia, 467 U.S. 39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 

### (1984) (holding that the appropriate remedy for a public trialviolation was a new 

### suppression hearing, not a newtrial because "the remedy should be appropriate to the violation").

10No. 68846-4-1/11

new trial because the violation occurred during voir dire and itwas "impossible to 

### speculate as to the impact ofthat on Wise's trial."39 Here, the public trial violation occurred during a posttrial hearing on Rainey's motion for a new trial. A motion for a
new trial is, by definition, an attemptto unwind the results of a fully completed trial. It is necessarily separate from the trial itselfand could not have tainted the original trial. Because there is no risk that the courtroom closure inthe posttrial hearing impacted Rainey's trial, a new trial is not necessary and remand for a new hearing on the motion for a new trial is the appropriate remedy. Sixth AmendmentRight to Confrontation 

### Rainey argues, and the State concedes, thatthe admission of certified copies of Rainey's driving records violated his Sixth Amendment right to confrontation, as established inState v. Jasper.40 We acceptthe State's concession. 

### We review an alleged violation of the confrontation clause de novo.41 When a violationhas occurred, we engage in a harmless erroranalysis underthe constitutional standard.42 Constitutional error is presumed to be prejudicial, and the State bears the 

### burden ofproving that the error was harmless.43 The Sixth Amendment's confrontation clause confers upon the accused the right 

### "to be confronted with the witnesses against him."44 In Jasper, the Washington State

39Wise. 176Wn.2dat19. 40 174 Wn.2d 96, 271 P.3d 876 (2012). 41 id at 108. 42 id 43 State v. Lynch. 178 Wn.2d 487, 494, 309 P.3d 482 (2013). 44 U.S. Const, amend. VI.

11No. 68846-4-1/12 

### Supreme Court considered whether certified copies of driving records were testimonial for the purposes ofthe confrontation clause when admitted to show that a defendant's 

### license was suspended during a crime.45 It held that such records are plainlyaffidavits, falling within the core class oftestimonial statements described by the United States 

### Supreme Court in Crawford v. Washington46 and Melendez-Diaz v. Massachusetts47 

### because they are created and used solely forestablishing critical facts at trial.48 The

court also held that when evidence is admitted at trial and later held to violate the 

### confrontationclause, the proper remedy is to remand forretrial.49 Here, the trial court admitted a certified copy of Rainey's driving record without affording himthe opportunity to cross-examine the witness who prepared the record. The records included a document stating that, as of May 17, 2009, Rainey's driver's 

### license was "[suspended inthe third degree," a letterto Rainey notifying himthat his license would be suspended on May 7, 2009 forfailure to respond, appear, pay, or 

### complywith a citation, and a copy of Rainey'sdriver's license.50 The documentstating that Rainey's license was suspended is substantially similar to the records improperly admitted in Jasper. The State concedes that the errorwas not harmless because no 

### otherevidence shows that Rainey's license was suspended for a reason that supports a conviction for third degree DWLS.

45 Jasper. 174 Wn.2d at 104, 115. 46 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). 47 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). 48Jasper. 174 Wn.2d at 115. 49 id at 120. 50Ex. 2.

12No. 68846-4-1/13 The State's concession is well taken. Consistentwith the holding inJasper, the document stating that Rainey's license was suspended was testimonial hearsay. Therefore, the trial court erred in admitting the evidence, that errorwas not harmless, and the proper remedy is to vacate Rainey's third degree DWLS conviction and remand
for a new trial on that count. We reverse Rainey's conviction for DWLS inthe third degree and remand for a

new trial on that count. We affirm Rainey's conviction for attempting to elude a pursuing police vehicle, but remand for a new hearing on his motion for a new trial.

WE CONCUR:



# j^uds*. y nr

13