State Of Washington v. Travis B. Counts ( 2014 )

FILED
C'.OU;.: OF APPEALS
tTg
i.. E! Si0N. 1
20911 SEP - 3 AM 3: 23
IN THE COURT OF APPEALS OF THE STATE SO QN
VVA IIN{ , I
DIVISION II
STATE OF WASHINGTON, No. 44650 -2 -II
Respondent,
v.
UNPUBLISHED OPINION
TRAVIS B. COUNTS,
Appellant.
HUNT, J. — Travis B. Counts appeals his jury trial conviction for second degree assault
domestic violence) with a firearm enhancement. He also challenges the legality of his appeal
bond. He argues that ( 1) the trial court denied his right to a public trial by conducting two
sidebar colloquies with counsel, ( 2) his trial counsel provided ineffective assistance by failing to
preserve the content of the sidebars for the record, and ( 3) the trial court erred by requiring two
sureties as his appeal bond instead of one. We affirm.
FACTS
I. DOMESTIC DISPUTE
The parties do not dispute the facts. Carrie Dodge and Travis Counts, former high
school acquaintances, reconnected in July 2010 and began dating later that year. Their
relationship was unstable: Dodge moved in and out of Counts' home three times between
October 2010 and July 2012.
On July 31, 2012, Dodge and Counts got into a heated argument that escalated into
screaming, foul language, and name calling. Counts picked up a fully operational Ruger mini
14 rifle and pointed it at Dodge; according to Dodge, the rifle touched her head. Counts
44650 -2 -II
removed the bullet from the chamber and walked away. Dodge called the police who arrived at
Counts' home and, after speaking with both parties, arrested Counts.
II. PROCEDURE
The State charged Counts with second degree assault while armed with a firearm.
The State also specially alleged that Counts had committed the assault against a family or
household member ( domestic violence). The case proceeded to a jury trial.
When the trial court read the charges during jury selection, Counts requested a
sidebar' to discuss the issue of whether the court' s comments about domestic violence were
grounds for a mistrial. Counts did not ask for the sidebar to be on the record. Nor did Counts
object to the trial court' s refusal to grant his request for a mistrial during the sidebar.
During a later pretrial hearing, outside the jury' s presence, Counts noted the content
of the earlier sidebar for the record as follows:
DEFENSE COUNSEL]: When the court was reading out the charge, it indicated
assault in the second degree, domestic violence, while armed with a firearm, and
that, of course, clicked in my mind, and I was going to say something after the
fact with regard to that, but then [ the prosecutor], when he started addressing the
panel, started talking about domestic violence, and that's when I asked if we could
approach the court, and we had a little sidebar.
And at that point I believe at that time I asked for —I know at that time I
asked for a mistrial based on those comments, and I would on the record request a
mistrial based on the comments from the court and from [ the prosecutor] during
jury selection with regard to domestic violence.
Verbatim Report of Proceedings ( VRP) at 17.. The trial court denied Counts' renewed motion for
a mistrial, and the trial proceeded.
1 The record on appeal does not contain a transcript of defense counsel' s request for a sidebar or
the verbatim content of the sidebar colloquy.
2
44650 -2 -II
During Dodge' s rebuttal testimony, a dispute arose about the propriety of the State' s
line of questioning, and the trial court requested a sidebar:
PROSECUTOR:] One time, if I understand your testimony correctly, the sheriff
or law enforcement was called to have you removed from his residence; is that
correct?
DODGE:] Yes.
PROSECUTOR:] Were there any other times other than the one time?
DODGE:] NO.
PROSECUTOR:] You' re sure about that?
DODGE:] Promise.
PROSECUTOR:] Now, do you know whether or not Mr. Counts smoked
marijuana while you and he were. dating?
DODGE:] Yes.
PROSECUTOR:] And how do you know that?
DEFENSE COUNSEL:] I'm going to object.
DODGE:] Because --
DEFENSE COUNSEL:] This is not rebuttal.
PROSECUTOR:] Absolutely it is.
THE COURT: Well, I'm going to allow some limited inquiry here, so let's
see what the answer is.
DODGE:] Yes.
PROSECUTOR:] Okay.
DODGE:] And how do I know? Because we would stand there outside and do it
together.
PROSECUTOR:] Outside where?
DODGE:] Outside the house.
PROSECUTOR:] And how often would that happen?
THE COURT: All right. Now may I see counsel at the bench, please.
SIDE -
BAR CONFERENCE.)
PROSECUTOR:] Did Mr. Counts ever drive you to your jobs?
DODGE:] Once in a while.
PROSECUTOR:] Like how often?
DODGE:] Not very often.
VRP at 303 -04. Again, Counts neither objected to this sidebar colloquy nor asked the trial court
to put it on the record.
The jury found Counts guilty as charged. The jury also returned special verdicts
finding that Counts had been armed with a firearm at the time of the assault and that the crime
3
44650 -2 -II
involved domestic violence. The trial court sentenced Counts to a standard range sentence of 42
months in prison. Counts requested an appeal bond, which the trial court granted. Interpreting
chapter 10. 73 RCW, the trial court required two sureties for the appeal bond, each in the amount
of $150, 000. Counts did not object. He now appeals his conviction and the legality of his appeal
bond.
ANALYSIS
I. PUBLIC TRIAL
Counts argues that the trial court violated his right to a public trial by conducting two
sidebar conferences off the record. The State responds that because Counts failed to object and
to preserve this issue at trial, he may not raise it for the first time on appeal. We agree with the
State.
A. Standard of Review
We generally will not review a claim of error raised for the first time on appeal unless it
is a " manifest" error affecting a constitutional right. RAP 2. 5( a)( 3); State v. O' Hara, 167 Wn.2d
91, 98, 217 P. 3d 756 ( 2009). An error is " manifest" if the defendant can plausibly show " that the
asserted error had practical and identifiable consequences" at trial. State v. Lynn, 67 Wn. App.
339, 345, 835 P. 2d 251 ( 1992).
B. No Error Affecting Constitutional Right
We acknowledge that both federal and state constitutions guarantee a criminal defendant
the right to a public trial. State v. Lormor, 172 Wn.2d 85, 90 -91, 257 P. 3d 624 ( 2011); U.S.
CONST. amends. VI, XIV; WASH. CONST. art. I, §22. But here, Counts does not show that the
4
44650 -2 -I1
trial court denied him a public trial.2 On the contrary, the record shows that the sidebars were
conducted in open court, with no one excluded from the courtroom. Second, it was Counts who
requested the first sidebar to address matters he felt were prejudicial for the jury to hear; and he
did not even ask that this first sidebar be put on the record. The second . sidebar, though
requested by the trial court, was in response to Counts' objections to the State' s rebuttal on direct
examination of Dodge. Counts did not object that the sidebar denied his right to a public trial;
nor did he seek to put the colloquy on the record.
But even assuming, without deciding, that holding a sidebar off the record in open court
could be construed as implicating the right to a public trial, we apply the " experience and logic"
test to determine whether a trial court must hold a particular portion of a proceeding in public.
State v. Love, 176 Wn. App. 911, 916, 309 P. 3d 1209 ( 2013) ( quoting State v. Sublett, 176
Wn.2d 58, 141, 292 P. 3d 715 ( 2012)); State v. Dunn, 180 Wn. App. 570, 574 -75, 321 P.3d 12832014) ( adopting the Love analysis). Under this test, we review whether a sidebar not open to the
public was necessary by considering " both history (experience) and the purposes of the open trial
provision ( logic)." Love, 176 Wn. App. at 916 ( citing Sublett, 176 Wn.2d at 73). " The
experience prong asks whether the practice in question historically has been open to the public,
2 We note that a defendant does not waive his right to a public trial if he fails to object. State v.
Bone -Club, 128 Wn.2d 254, 261, 906 P. 2d 325 ( 1995). Here, however, we focus on Counts'
failure to show a courtroom closure that would have triggered a Bone -Club analysis, whether
preserved below or not.
5
44650 - -II
2
3
while the logic prong asks whether public access is significant to the functioning of the right. "
Love, 176 Wn. App. at 916 ( citing Sublett, 176 Wn.2d at 73).
Sidebars have historically not been open to the public. They serve the important purpose
of ensuring a fair trial by insulating potentially prejudicial discussions from the jury' s ears. See,
e.
g. Sublett, 176 Wn.2d at 67 -68. ( public trial right " does not extend to hearings on purely
ministerial or legal issues that do not require the resolution of disputed facts "); State v. Swenson,
62 Wn.2d 259, 272, 382 P. 2d 614 ( 1963), overruled on other grounds by State v. Land, 121
Wn.2d 494, 851 P. 2d 678 ( 1993) ( defendant' s public trial right not implicated when holding a
sidebar conference to address concerns about a witness' s comfort while testifying); Popoff v.
Mott, 14 Wn.2d 1, 9, 126 P. 2d 597 ( 1942) ( defendant' s public trial right not implicated when
holding a sidebar during voir dire on whether to excuse a juror for cause). See also Love, 176
Wn. App. at 920 ( defendant' s public trial right not violated by hearing for cause challenges at
sidebar during jury selection); State v. Castro, 159 Wn. App. 340, 341, 246 P. 3d 228 ( 2011)
defendant' s public trial right not implicated when, after holding a sidebar to decide motions in
limine, the trial court placed its decisions on the record in open court and counsel had an
opportunity to object); State v. Rivera, 108 Wn. App. 645, 653, 32 P. 3d 292 ( 2001) ( defendant' s
public trial right not violated by closing the courtroom for a brief hearing on a juror' s complaint
about another juror' s hygiene). Here, Counts later put the contents of the first sidebar on the
record, out of the jury' s presence.
3 If the answer to both questions is affirmative, then the trial court must apply the Bone -Club test
before closing the courtroom. Love, 176 Wn. App. at 916 ( citing Sublett, 176 Wn.2d at 73);
Bone -Club, 128 Wn.2d at 258 -59.
6
44650 - -II
2
Although no one put the contents of the second sidebar on the record, its contents were
obvious from its having been prompted by Counts' objection that the State' s cross -examination
was prejudicial: The trial court held the sidebar to discuss limiting the scope of a defense
witness' s testimony, which did not require resolution of disputed facts. See State v. Ortiz, 119
Wn.2d 294, 308, 83.1 P. 2d 1060 ( 1992) ( it is within trial court' s discretion to limit lay opinion
testimony). Based on the experience and logic test, we hold that the two sidebars during Counts'
trial did not constitute courtroom closures and did not deny him his constitutional right to a
4
public trial.
II. EFFECTIVE ASSISTANCE OF COUNSEL
Counts also argues that he was denied effective assistance of counsel because his trial
counsel failed to put the sidebar conversations on the record. The State counters that defense
counsel' s performance was not deficient in dealing with the first sidebar and the potentially
4 The record does not show whether Counts himself participated in the sidebars or was prevented
from providing input or advice to his counsel, as he contends. Furthermore, even assuming that
he did not participate directly in the sidebars, he fails to support with specifics how his being
seated only a few feet from his counsel during the sidebars prevented his consulting with counsel
or prejudiced him in any way.
On the contrary, our independent review of the record shows that these sidebars served to
prevent prejudice to Counts. During the first sidebar, which Counts requested, he moved for a
mistrial based on the prosecutor' s allegedly prejudicial comments about domestic violence.
Discussing these potentially prejudicial remarks outside the jury' s hearing minimized any
prejudice. And although the record does not reveal the content of the second sidebar, it, too,
prevented potential prejudice to Counts by insulating the jury from the discussion about whether
the trial court should allow the State to continue questioning Dodge about her and Counts'
marijuana use. The record clearly shows that immediately following this sidebar, the prosecutor
abandoned the marijuana inquiry and switched to a different topic. Counts fails to show any
practical and identifiable consequences" or prejudice from either sidebar. See Lynn, 67 Wn.
App. at 345.
7
44650 -2 -II.
deficient performance in dealing with the second sidebar did not prejudice Counts. Again, we
agree with the State.
To establish ineffective assistance of counsel, Counts must show both that ( 1) his
counsel' s performance was deficient, and ( 2) this deficient performance prejudiced him.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984); State v.
Grier, 171 Wn.2d 17, 32 -33, 246 P. 3d 1260 ( 2011). The defendant' s failure to show either
element ends our inquiry. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P. 2d 563 ( 1996).
Representation is deficient if, after considering all the circumstances, it falls " below an objective
standard of reasonableness." Grier, 171 Wn.2d at 33 ( quoting Strickland, 466 U.S. at 688).
Prejudice exists if there is a reasonable probability that, except for counsel' s errors, the result of
the proceeding would have been different. Grier, 171 Wn.2d at 34 ( citing State v. Kyllo, 166
Wn.2d 856, 862, 215 P. 3d 177 ( 2009)). We review claims of ineffective assistance of counsel de
novo. State v. Sutherby, 165 Wn.2d 870, 883, 204 P. 3d 916 ( 2009) ( citing In re Pers. Restraint
ofFleming, 142 Wn.2d 853, 865, 16 P. 3d 610 ( 2001)).
Counts relies on State v. Koloske in support of his argument that his counsel' s failure to
record the sidebars necessarily prejudiced him. 100 Wn.2d 889, 896, 676 P. 2d 456 ( 1984),
overruled
by State v. Brown, 113 Wn.2d 520, 782 P. 2d 1013 ( 1989). The Koloske court noted,
We realize that the purpose of an unrecorded sidebar conference is to dispose quickly of
uncomplicated issues without repeatedly removing the jury from the courtroom. But ... [ f]ailure
to record the resulting ruling may preclude review." 100 Wn.2d at 896 ( emphasis added).
Koloske does not support Counts' argument here. Koloske did not hold that failure to put an
unrecorded sidebar on the record always precludes appellate review; rather it merely noted that
8
44650 -2 -II
such failure has the potential to curtail appellate review. 100 Wn.2d at 896. Thus, the burden
still remains on Counts to show how his counsel' s failure to put the second sidebar on the record
meets both prongs of the ineffective assistance of counsel test. Counts fails to carry this burden.
We address only the second ineffective assistance of counsel test prong, prejudice. In re
Pers. Restraint of Croce, 174 Wn.2d 835, 847, 280 P. 3d 1102 ( 2012) ( concluding that where
petitioner fails one prong of the Strickland test the court need not consider the other). Counts
fails to show how recording the content of the sidebars would have produced a different jury
verdict. 5 See Grier, 171 Wn.2d at 43 -44 ( holding that defendant could not establish that the jury
would not have convicted him but for counsel' s trial decisions). That the trial court twice denied
defense counsel' s mistrial motions tends to show that the outcome of the trial would not have
been different had counsel put the content of both sidebars on the record. Because Counts fails
to show prejudice, we do not reach the question of whether counsel' s conduct fell " below an
objective standard of reasonableness." Grier, 171 Wn.2d at 33 ( quoting Strickland, 466 U.S. at
688). Counts' ineffective assistance of counsel claim fails.
III. SURETIES
Counts also argues that the trial court erred by ruling that RCW 10. 73. 040 required it to
impose two appeal bonds from two separate sureties in order for Counts to be released from
5
We are not persuaded by Counts' related argument that "[ b] ecause there was no record of what
was omitted from the record, [ he] could not have agreed to the omission." Br. of Appellant at
22. Counts had adequate opportunity to ask the trial court to disclose the content of the
conversationsbefore, during, or after they occurred, and to put them on the record. Moreover,
defense counsel disclosed the content of the first sidebar and put it on the record, thereby
eliminating potential prejudice from the first sidebar' s not being on the record verbatim.
9
44650 - -II
2
custody pending his appeal. Counts asserts that to the extent that RCW 10. 73. 040 conflicts with
CrR 3. 2, the court rule controls the procedure for setting an appeal bond, and it does not require
two separate sureties. 6 The State agrees with Counts' analysis. But because we affirm, the issue
of Counts' appeal bond is moot, and we need not reach the threshold question of whether RAP
2. 5( a) permits Counts to raise this issue for the first time on appeal.
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.
fi ,
Hunt, J.
We concur:
6
CrR 3. 2( b) provides, in part: " If the court determines that the accused is not likely to appear if
released on personal recognizance, the court shall[:] ( 4) Require the execution of a bond. ".
7
State v. App. 22, 26, 197 P. 3d 1206 ( 2008) ( emphasizing that an issue on
Harris, 148 Wn.
appeal is moot if reviewing court can no longer provide the party effective relief).
10