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State v. Whitlock

Supreme Court of Washington, En Banc

June 15, 2017

DAVID R. JOHNSON, Respondent.

          GORDON McCLOUD, J.

         In State v. Smith, this court held that the constitutional right to an open courtroom did not require trial courts to invite the public to attend sidebars. 181 Wn.2d 508, 334 P.3d 1049 (2014). It defined "[p]roper sidebars" as those occurring at sidebar or its equivalent and involving "mundane issues implicating little public interest." Id. at 515-17 & n. 10 (citing State v. Wise, 176 Wn.2d 1, 5, 288 P.3d 1113 (2012)). Typical examples of such mundane issues are scheduling, housekeeping, and decorum.

         In this case, however, the topic of discussion was the proper extent of cross-examination of a confidential informant who was the State's key witness and the location of the discussion was not at sidebar but in the judge's chambers. In fact, the trial court rejected the State's request to address its objection to the scope of cross-examination at sidebar. Instead, the court adjourned the bench trial proceedings, called counsel into chambers, and discussed that critically important and factually complicated issue behind closed doors. The Court of Appeals ruled, in a two to one decision, that this procedure violated the right to an open courtroom and conflicted with Smith. State v. Whitlock, 195 Wn.App. 745, 749, 755, 381 P.3d 1250(2016).

         The State sought review, which we granted. State v. Whitlock, 187 Wn.2d 1002, 386 P.3d 1080 (2017). We affirm the Court of Appeals and reaffirm our adherence to Smith.


         Ralph Whitlock and David Johnson were each charged with multiple counts of robbery and burglary, with firearm and deadly weapon enhancements, arising from a single incident.[1] Whitlock and Johnson waived their jury trial right, and the case was tried to the bench.

         The State's theory was that Whitlock and Johnson arrived at the home of an acquaintance, Tonya Routt; that they were armed with a crowbar and a pistol; that they forced another person at the house, Crista Ansel, to show them around so that they could locate valuables to steal; and that Whitlock and Johnson ultimately stole a television, a safe containing money and drugs, and other items.

         The defense did not deny that Whitlock and Johnson were present at the scene of the robbery. Instead, they sought to undermine the credibility of the State's witnesses and pin the robbery on Ansel. In opening statements, for example, counsel for both defendants impugned Ansel's credibility and singled her out as the only witness who would testify that the defendants committed an assault or carried any weapon.[2]

         There was certainly material for the defense to use in pursuing this theory. The trial testimony of several of the State's witnesses conflicted with statements those witnesses made to law enforcement officers after the robbery. The State attributed these conflicts to intimidation or bribery by Whitlock; the defense attributed the conflicts to either coercion by the police or drug-induced confusion.

         But the defense focused most intensely and consistently on impeaching Ansel. Ansel's lack of credibility was a predominant defense theme throughout trial.

         When Ansel took the stand, she testified that she and six other people were present in the home when the defendants showed up with the crowbar and pistol. She stated that one person at the house immediately began packing to leave with her young daughter, and that another person there was very frightened. Ansel acknowledged that she was not frightened because Whitlock was like a brother to her. But she testified that she led Whitlock around the house, showing him which rooms contained items he was looking for, opening doors for him to prevent him from breaking them down, and asking him not to wake sleeping children. At some point, Ansel testified, Whitlock accidentally struck her in the face with his elbow and apologized. She said that he told her not to do anything stupid and eventually locked her in a bedroom. She also testified that after the robbery, Whitlock's girlfriend threatened her and urged her to leave town.

         On cross-examination, defense counsel asked Ansel if the reason she refrained from calling the police on the night of the robbery was that she had a warrant out for her arrest. Ansel responded that she would not have called the police in any event. Defense counsel then said, "Okay, but you do have dealings with the police, don't you?" Tr. of Proceedings (TP) (Dec. 9, 2014) at 338-39. The State objected. It asked for a sidebar.

         The court called a recess. But it did not hold a sidebar. Instead, despite the fact that this was a bench trial, it called counsel into chambers and met with them there, with no reporter-or defendants-present. The minutes indicate that this recess began at 10:13 a.m. and lasted 10 minutes. Nobody objected.

         When open court proceedings resumed, defense cross-examination continued. But defense counsel did not ask any questions about Ansel's dealings with the police. Ansel then finished testifying, one other witness for the State testified, and the court announced it would take a recess for lunch.

         Just before that recess, the court and counsel placed on the record a description of the in-chambers proceeding. The minutes indicate that this memorialization occurred between 12:04 and 12:09 p.m. The defendants were not present when this record was made; they had already been taken back to jail. The prosecutor explained that he had objected to the defense's line of cross-examination because he viewed it as both irrelevant and an attempt to intimidate Ansel by revealing she was a police informant in front of the defendants. The prosecutor also summarized that the trial court had ruled in the State's favor in chambers: "The Court, uh, agreed with the State in Chambers that, uh, that there was no, uh, material relevance or, uh, towards her credibility on that, on those issues and so the State's interests were, outweighed the, uh, the Defendants' interests in obtaining or, or listening to this testimony." Id. at 425. Defense counsel then explained that he had advanced two bases for questioning Ansel on her "relationship with the police": first, to explain why Ansel would talk with one particular detective even though (according to the defense theory) she was "more afraid of the police than she [was] of Mr. Johnson and Mr. Whitlock"; and second, to set the stage for arguing that Whitlock and Johnson would be unlikely to commit a crime in a home where a known police informant was present. Id. at 425-26. Defense counsel also explained that two decisions resulting from the in-chambers proceeding had "adequately addresse[d] the Defenses' interests": first, the State promised that it would not question Ansel about her discussions with any particular detective; and second, the court ruled that Whitlock and Johnson could testify about their suspicions that Ansel was an informant. Id. at 426. Finally, the court admonished counsel to maintain decorum and show respect and deference to the bench, and counsel apologized. (This was apparently a reference to an earlier exchange.) Id. at 426-27.

         When court reconvened, the defense presented its case. Johnson testified that he suspected Ansel and some of the other State's witnesses were police informants. Counsel did not question Johnson further about this suspicion, so that testimony was limited to Johnson's single statement. All of the eyewitness defense testimony, including Johnson's, placed Johnson and Whitlock at the scene of the robbery. Johnson testified that he and Whitlock were framed; one other defense witness ...

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