State Of Washington v. Sylvestor Tuggles ( 2015 )


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  •                                                                                                   FILED
    COURT OF APPEALS
    DIVISION II
    20 5 FEB - 3 Al 8: 58
    STATE OF WASHINGTON
    BY
    DE      I
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    STATE OF WASHINGTON,                                                                No. 45236 -7 -II
    Respondent,
    v.
    SYLVESTER TUGGLES,                                                           UNPUBLISHED OPINION
    Appellant.
    JOHANSON, C. J. —             Sylvester Tuggles appeals his jury trial convictions for first degree
    2
    trafficking in   stolen   property,' third degree theft,              and witness   tampering. 3 He argues that the trial
    court violated   his   right   to   a public   trial   under art.     I, § 22 of the Washington State Constitution and
    the Sixth Amendment of the United States Constitution, as well as his right to be present at all
    critical stages of     the   proceedings when           it held   eight sidebars    during his   trial.   Because Tuggles
    1 RCW 9A.82. 050.
    2 RCW 9A.56. 050.
    3
    RCW 9A.72. 120( 1)( b).
    No. 45236 -7 -II
    fails to establish that any of these sidebars violated either his public trial rights or his right to be
    present, we affirm.
    FACTS
    The State charged Tuggles with first degree trafficking in stolen property and third degree
    theft, after he stole and pawned several items from his sister' s home, and with a witness tampering
    charge   based   on several calls        he   made   to his   sister and   brother -in -law.   During the trial, the trial
    court held numerous, unrecorded sidebars outside of the hearing of the defendant, the jury, and the
    public. Tuggles challenges eight of these sidebars.
    The first     sidebar    that Tuggles    challenges addressed an          evidentiary issue.      Specifically, it
    addressed      Tuggles'     s   authentication   objection      to the     admission   of exhibit    5,   a written letter
    allegedly from Tuggles to his sister. Following the sidebar, the trial court overruled the objection
    on the record. It also described the objection on the record more fully following a later sidebar.
    During the second sidebar that Tuggles challenges, the State apparently informed the trial
    court that it was presenting a different witness from the pawn shop than it had previously intended
    to present; defense counsel also apparently requested a short recess. Following this sidebar, while
    the jury was absent, the trial court described this sidebar on the record and called a recess.
    During the third sidebar that Tuggles challenges, the trial court and the parties had
    apparently attempted to discuss the " logistics" of playing portions of a recorded telephone call that
    originated from the jail, but the parties advised the trial court that they had not yet discussed this
    issue. Following this sidebar, the trial court advised the jury that the court was taking a 15- minute
    recess   to   allow   the   parties   to discuss this issue.
    No. 45236 -7 -II
    During the fourth sidebar that Tuggles challenges, the parties and the trial court apparently
    discussed Tuggles' s authentication objection to the admission of a recording of a jail telephone
    call.   Following this sidebar, without specifying what the specific objection was, the trial court
    stated on the record that it had overruled an objection and had admitted the recording.
    The fifth sidebar that Tuggles challenges apparently addressed scheduling issues.
    Following this sidebar, the trial court stated on the record that there were no more witnesses that
    day and excused the jury for the day. The trial court also discussed on the record the schedule for
    the following day.
    The sixth sidebar that Tuggles challenges addressed a hearsay objection and a related
    4
    limiting instruction. Following this objection, the trial court advised the jury that it was admitting
    the relevant testimony for impeachment purposes only.
    The seventh sidebar that Tuggles challenges apparently addressed whether Tuggles could
    refresh   his memory from      a   recording   of a call   he had   made   from jail. Defense counsel did not
    want to explain the grounds for his objection before the jury. Following the sidebar, the trial court
    stated on the record that it had overruled the objection and that it would allow the State to play the
    recording.
    The eighth and final sidebar that Tuggles challenges occurred immediately before
    Tuggles'   s   closing   argument at   defense   counsel' s request.   Following this sidebar, the trial court
    4 Tuggles argues that the trial court did not explain what this sidebar addressed on the record. But
    it is clear from the context that the parties and the trial court discussed the hearsay objection and/or
    a limiting instruction related to the hearsay testimony.
    3
    No. 45236 -7 -II
    called a short recess; it did not explain why the recess was necessary or otherwise describe what
    had been discussed during the sidebar.
    The jury found Tuggles guilty of first degree trafficking in stolen property, third degree
    theft, and witness tampering. Tuggles appeals.
    DISCUSSION
    Tuggles argues that each of these eight closures violated his public trial rights because the
    trial court did not examine the Bone -Clubs factors before engaging in the sidebars and that the
    same eight sidebars also violated his right to be present. We disagree.
    I. PUBLIC TRIAL
    A. APPLICABLE LAW AND STANDARD OF REVIEW
    The Sixth Amendment to the United States Constitution              and art.   I, § 22 of the Washington
    State Constitution guarantee a defendant the right to a public trial. State v. Wise, 
    176 Wn.2d 1
    , 9,
    
    288 P. 3d 1113
     ( 2012).       Generally, this right requires the trial court to hold certain proceedings in
    open court unless it first applies the five -factor Bone -Club test and determines that these factors
    support   the   courtroom closure.          Whether a courtroom closure violated a defendant' s right to a
    public   trial is   a question of   law   we review   de   novo.   Wise, 
    176 Wn.2d at 9
    .
    The threshold determination when addressing an alleged violation of the public trial right
    is   whether   the proceeding       at   issue implicates the defendant'   s public   trial   right.   State v. Sublett,
    
    176 Wn.2d 58
    , 71, 
    292 P. 3d 715
     ( 2012). "[           N] ot every interaction between the court, counsel, and
    defendants will implicate the right to a public trial, or constitute a closure if closed to the public."
    5 State v. Bone -Club, 
    128 Wn.2d 254
    , 258 -59, 
    906 P. 2d 325
     ( 1995).
    4
    No. 45236 -7 -II
    Sublett, 
    176 Wn.2d at 71
    .   The appellant has the burden of establishing an alleged public trial right
    violation. See Sublett, 
    176 Wn.2d at 75
     ( noting that the petitioner failed to establish a public trial
    violation);   State       v.   Wilson, 
    174 Wn. App. 328
    , 346 -47, 
    298 P. 3d 148
     ( 2013) ( noting that the
    appellant had failed to establish that his public trial right was implicated).
    To address whether there was a court closure implicating the public trial right, we first
    consider whether the particular proceeding at issue " falls within a category of proceedings that our
    Supreme Court has already                  acknowledged   implicates        a   defendant'   s public   trial   right."   Wilson, 174
    Wn.    App.   at   337;   see also        Wise, 
    176 Wn.2d at 11
    .   If the proceeding at issue does not fall within
    an acknowledged protected category, we determine whether the proceeding implicates the public
    trial right using the Sublett experience and logic test.6 176 Wn.2d at 73; Wilson, 174 Wn. App. at
    335.
    B. SIDEBARS ADDRESSING ADMISSION OF EVIDENCE
    We first turn to the four sidebars that addressed evidentiary issues. This includes the first,
    fourth, sixth, and seventh sidebars described above.
    Our Supreme Court recently held in State v. Smith, 
    181 Wn.2d 508
    , 512, 518 -19, 
    334 P. 3d 1049
     ( 2014),      that sidebars addressing evidentiary matters do not implicate the defendant' s public
    6
    The   experience       and       logic test   requires us   to consider ( 1)      whether the process and place of a
    proceeding historically have been open to the press and general public (experience prong) and (2)
    whether access to the public plays a significant positive role in the functioning of the proceeding
    logic prong). Sublett, 
    176 Wn.2d at 73
    . If the answer to both prongs is yes, then the defendant' s
    public trial right " attaches" and a trial court must apply the Bone -Club factors before closing the
    proceeding to the public. Sublett, 
    176 Wn.2d at 73
    .
    5
    No. 45236 -7 -II
    trial   right.   Accordingly, under Smith, Tuggles fails to show that these four sidebars violated his
    right to public trial.
    C. ADMINISTRATIVE ISSUES
    The next three sidebars that Tuggles challenges ( the second, third, and fifth sidebars)
    addressed the substitution of a witness, the logistics of playing a recording for the jury and the
    need for a recess to allow the parties to address this issue, and scheduling issues. Tuggles fails to
    address whether sidebars addressing these types of issues fall within a category of proceedings that
    our courts have already acknowledged implicate his public trial right. Additionally, he has failed
    to argue that these types of sidebars implicate his public trial right under the Sublett experience
    and     logic test. 176 Wn.2d      at   73.   Because it is Tuggles' s burden to establish that these allegedly
    closed proceedings implicated his public trial right, see Sublett, 
    176 Wn.2d at 75
    , Wilson, 174 Wn.
    App. at 346 -47, and he fails to present any argument relevant to that issue, we decline to further
    address these sidebars.
    D. UNIDENTIFIED ISSUES
    Finally,   we address    the   eighth sidebar   that Tuggles   challenges.   All we know from the
    record is that following this sidebar, the trial court called a short recess; it did not explain why the
    recess was necessary or otherwise describe what had been discussed during the sidebar.
    Because the record is unclear as to what happened during this sidebar and the resolution of
    this issue relies on facts outside the record, we cannot address this issue on direct appeal. State v.
    7 The briefing in this appeal does not address Smith because the briefing was filed before our
    Supreme Court issued Smith.              Neither party has moved to file supplemental briefing addressing
    Smith.
    6
    No. 45236- 7- 11
    Koss, 
    181 Wn.2d 493
    , 502 -03, 
    334 P. 3d 1042
     ( 2014); State v. McFarland, 
    127 Wn.2d 322
    , 335,
    
    899 P. 2d 1251
     ( 1995).           Thus, on the record before us, Tuggles has not established that a public
    trial right violation occurred in regard to this sidebar.
    II. RIGHT TO BE PRESENT
    Tuggles next argues that the same eight sidebars violated his right to be present at critical
    stages of   the proceedings        because the      sidebars were     held   outside of   his   hearing. 8 We disagree.
    We review whether a defendant' s constitutional right to be present has been violated de
    novo.     State   v.   Irby,   
    170 Wn.2d 874
    , 880, 
    246 P. 3d 796
     ( 2011). "                A criminal defendant has a
    fundamental       right   to be   present at all critical stages of a         trial."   Irby, 
    170 Wn.2d at 880
     ( citing
    Rushen    v.   Spain, 
    464 U. S. 114
    , 117, 
    104 S. Ct. 453
    , 
    78 L. Ed. 2d 267
     ( 1983)).                       This right exists
    when     a . defendant' s "'     presence has a relation, reasonably substantial, to the fullness of his
    opportunity to defend             against     the   charge. '
    Irby,   
    170 Wn.2d at 881
     (   quoting Snyder v.
    Massachusetts, 
    291 U. S. 97
    , 105 -06, 
    54 S. Ct. 330
    , 
    78 L. Ed. 674
     ( 1934), overruled in part on
    other grounds sub nom. Malloy v. Hogan, 
    378 U.S. 1
    , 
    84 S. Ct. 1489
    , 
    12 L. Ed. 2d 653
     ( 1964).
    But " because the relationship between the defendant' s presence and his ` opportunity to
    defend'    must   be ` reasonably        substantial,'   a defendant does not have a right to be present when his
    or   her `presence     would    be   useless, or    the benefit but   a shadow. '       Irby, 
    170 Wn.2d at 881
     ( quoting
    Snyder, 
    291 U.S. at
    106 -07).   For instance, a defendant does not have the right to be present during
    an in- chambers conference between the court and counsel on legal or ministerial matters, at least
    to the   extent   these      matters   do   not require a resolution of      disputed facts.      In re Pers. Restraint of
    8 Although Tuggles does not expressly identify this issue in his assignment of error, we reach this
    issue because it is part of Tuggles' s Sixth Amendment rights, which he identifies in his assignment
    of error, and he presents argument directly related to this issue.
    7
    No. 45236- 7- 11
    Pirtle, 
    136 Wn.2d 467
    , 484, 
    965 P. 2d 593
     ( 1998);     In re Pers. Restraint ofLord, 
    123 Wn.2d 296
    ,
    306, 
    868 P. 2d 835
     ( 1994).
    As to the eighth sidebar that Tuggles challenges, as we noted above, the record does not
    show what was addressed during this sidebar. Thus, we decline to address whether Tuggles was
    denied his right to be present during this sidebar. McFarland, 
    127 Wn.2d at 335
    .
    As to the remaining seven sidebars, all of these sidebars involved matters that were either
    legal ( evidentiary objections) or ministerial ( scheduling, how to present evidence, the substitution
    of a witness).   Even assuming, but not deciding, that a sidebar could violate a defendant' s right to
    be present, Tuggles does not show that these sidebars were critical stages of the proceedings.
    Accordingly, this argument fails.
    Because Tuggles has failed to establish a public trial right violation or a violation of his
    right to be present, we affirm.
    A majority of the panel having determined that this opinion will not be printed in the
    Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
    it is so ordered.
    We concur:
    8