Oral Argument January 8, 2014.
Appeal from King County Superior Court. Docket No: 09-1-04433-0. Date filed: 05/04/2012. Judge signing: Honorable James E Rogers.
Gregory C. Link (of Washington Appellate Project ), for appellant.
Daniel T. Satterberg, Prosecuting Attorney, and Lindsey M. Grieve and James M. Whisman, Deputies, for respondent.
AUTHOR: James Verellen, A.C.J. WE CONCUR: J. Robert Leach, J., Mary Kay Becker, J.
[180 Wn.App. 833] ¶ 1 During a hearing on Rickey Rainey's motion for a new trial, the trial court closed the [180 Wn.App. 834] courtroom, conducted an in camera review, and concluded that a witness could assert her Fifth Amendment  privilege against self-incrimination. The witness did not take the stand or personally assert the privilege in open court before the in camera proceeding occurred, and the trial court did not conduct a Bone-Club analysis before closing the courtroom. Under the " experience and logic" test, a witness's assertion of the Fifth Amendment privilege against 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. Because that did not happen 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 new trial.
¶ 2 Additionally, as conceded by the State, the admission of certified 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) in the
third degree and remand for a new trial on that count.
¶ 3 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 in the 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 back to Rainey's mother's home. When officers approached the home, the truck was parked and Fallon Mayhew, the passenger, [180 Wn.App. 835] was sitting in the front yard. Mayhew was distraught and pointed in the direction Rainey ran. She told Officer Sylvain that it was " the scariest ride of her life." 
¶ 4 The State charged Rainey by amended information with one count of attempting to elude a pursuing police vehicle and one count of DWLS in the third degree.
¶ 5 The State's witnesses included Officer Sylvain and two other responding police officers. Mayhew had given a sworn statement to the police but could not be located to testify at trial. Rainey did not testify. During the 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 ...