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.
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).
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
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. Whitlock and Johnson waived their jury
trial right, and the case was tried to the bench.
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.
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
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.
defense focused most intensely and consistently on impeaching
Ansel. Ansel's lack of credibility was a predominant
defense theme throughout trial.
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.
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.
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
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
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.
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 ...