State of Washington v. Patrick Wayne Karas , 415 P.3d 263 ( 2018 )

FILED
APRIL 12, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34899-7-III
Respondent, )
)
v. )
)
PATRICK WAYNE KARAS, ) PUBLISHED OPINION
)
Appellant. )
SIDDOWAY, 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. Reversal and remand for a new trial is required.
PROCEDURAL BACKGROUND
Facts underlying the charges against Patrick Karas for the most part are
unimportant to this appeal. On the first morning of trial in September 2016, the jury was
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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.
Report of Proceedings (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 reflected 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
discussed 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 at counsel table. Everyone else
is excluded.
There’s also a motion, by the defendant, to keep out testimony by—
who was the officer? Corulli?
[DEFENSE COUNSEL]: Corulli.
THE COURT: Corulli, who, apparently, in his report, indicates
some statements made 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,
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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.
So 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 proceedings 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 chambers conference lasted.
The report of proceedings picks up again after the lunch 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. For 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 victim
whether he kept cash in order to make change for customers and the victim said he did,
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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-Club1 analysis.
Article I, section 22 of the Washington Constitution and the Sixth Amendment to
the United States Constitution guarantee a defendant the right to a public trial. A
violation of the right to a public trial is structural error from which prejudice is presumed;
accordingly, “a new trial is the only remedy.” State v. Frawley, 181 Wash. 2d 452, 459, 334
P.3d 1022 (2014); State v. Wise, 176 Wash. 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 Wash. 2d 564, 569-71, 334 P.3d 1078 (2014). Whether an accused’s constitutional
public trial right has been violated is a question of law reviewed de novo. State v.
Easterling, 157 Wash. 2d 167, 173-74, 137 P.3d 825 (2006).
1
State v. Bone-Club, 128 Wash. 2d 254, 906 P.2d 325 (1995).
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In analyzing whether a defendant’s right to a public trial has been violated, we
“begin 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 Wash. 2d 508, 513, 334 P.3d 1049 (2014) (some alterations in original)
(quoting State v. Sublett, 176 Wash. 2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J.,
concurring)). In this case, as in the Washington Supreme Court’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 the trial court did not conduct a Bone-Club
analysis, the closure was not justified. 188 Wash. 2d 511, 520-21, 396 P.3d 310 (2017).
At issue is only whether the public trial right attached 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
representative who would not be excluded. The second motion was a case-specific
motion in limine involving the conversation between 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 what he was told about the conversation. But whether the victim
could testify to the conversation appears to have been contested, since the court stated
“counsel can renew the objection [as] to that.” RP (Apr. 14, 2016) at 83.
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From the trial judge’s statement on the record that he and the lawyers “discussed
only 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
Court rejected the legal and ministerial nature of proceedings, 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 apply 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 plays 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 Ct., 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)).
Only if both questions 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 Wash. 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 sidebars to conferences
taking place in the courtroom, at the bench; the sidebars in Smith took place in a hallway.
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But it limited “‘proper’” sidebars to “proceedings that ‘deal with the mundane issues
implicating little public interest[,] . . . done only to avoid disrupting the flow of trial, and
either . . . on the record or . . . promptly memorialized in the record.’” Whitlock, 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 prior 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,” does
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 defendants that she was a police informant. The 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, the State characterized the chambers conference that
had taken place during trial as equivalent to a midtrial sidebar and argued that Smith was
controlling. But a unanimous Supreme Court held that the chambers conference in
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Whitlock was not a “proper” sidebar conference. One reason was that the conference
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 522-23.
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 trial 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 whether 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 exclude 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 nonpublic scheduling call, or have
been decided without discussion by a trial court that simply announces its usual practice.
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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 Wash. 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. (quoting Smith, 181 Wn.2d at 512 n.3). The
lead opinion went on to say that “because sidebars, and not evidentiary conferences, 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 further. Id.
Five members of the Speight court (concurring Justice Madsen and the four
dissenters) believed that to reach the majority’s disposition of 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 the
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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, Justice 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 motions
in limine are decided outside the hearing of the jury, but the question remains whether
they have historically been decided somewhere 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 motions while members of the venire filled out jury questionnaires in the
courtroom, the motions were heard in chambers. Relocating the hearing was
understandable under the circumstances, but we submit that hearing motions in limine in
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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 been
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 their truth. These
are issues that an attentive and interested member of the public could grasp. Public trust
is advanced by giving attentive, interested members of the public the opportunity to know
why evidence that seems relevant might be excluded for some countervailing reason. See
Smith, 181 Wn.2d at 544 (Owens, J., dissenting) (“[H]iding discussions over evidence
and testimony 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.”).
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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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