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FILEDCOURT OF APPEALSDIM10114 -1 1

2013 DEC -- 3 A M 9: 19INTHECOURT OF APPEALS OF THEST T ST

DIVISION II' i5 E U TYSTATE OF WASHINGTON, No. 42520 -3 -II

Respondent,

V.

WAYNEBURDETTE,

PUBLISHED OPINION

BJORGEN, J. Wayne Burdette appeals from his jury conviction for obstructing anofficer in performance ofhis lawful duties. He argues ( 1 the trial court violated his right to a

public trial an d the public' s right to o pe n proceedings by n ot conducting d iscuss ions abou t thejury instructions andtwo communcatonsfrom the jury inopencourt; (2) the trial court violatedhis right to be present during critical stages of his trial by discussing i ts response to the second

jury communicat ion outs ide his presence; and ( 3 ) the admission during sentencing of evidenceseized from his trailer violated the guarantees against warrantless searches of the federalconstitution' s Fourth Amendment and the state constitution' s article I, section 7. He also alleges

that defense counsel was ineffect ive by not moving to suppress a shotgun seized from his trailerduring a warrantless protective sweep.

We hold that the trial court did not violate either Burdette' s right to a public trial or thepublic' s right to open proceedings, because none of these rights attached to the challenged

proceedings. We hold that Burdette' s absence during the court s consideration of the secondjury communcatonvoatedhis righto be presentata criticalstageotria,but that this error

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was harmless. We also hold that, based on the record before us, the suppression and ineffectiveassistance of counsel issues are moot.

FACTS

1 . THEARRESTS AND SEARCH

On the night of June 10, 2011, a Mossyrock police officer stopped Burdette for speedingin his truck and making a turn without signaling. Upon learning the reasons fo r the traffic stop,Burdette became argumentative an d increasingly hosti le toward the officer. At one point,Burdette began walk ing toward the officer with his hand behind h is back, despite the officer srepeated orders to stop and to ge t back in his truck. Burdette, who was highly upset andaggravated eventuallyreturnedtoandenteredhis truck. ReportoProceedings (RP) ( Aug, 17,2011) at 77 -78.

After a Washington State Patrol trooper arrived, the police officer approached Burdette' struck on the driver' s side, while the trooper approached from the passenger' s side. The troopersaw that Burdette had a gun and warned the officer, who pulled out his firearm and orderedBurdette to s ho w him his hands. Burdette d id not comply, but instead reached downward withhis right hand out of the officer' s sight. After the trooper told the officer that Burdette had a gunat the small of his back, Burdette slowly m o ved h is right hand to the steering wheel. T he officerremoved Burdette from the truck, handcuffed him, and removed a loaded .40 caliber handgun

from Burdette' s waistband. Burdette was arrested for driving under the inf luence.After Burdette' s release from cus tody on the driving under the inf luence charge, the State

charged him with on e count of felony harassment an d on e count of obstructing a law

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enforcement officer in the performance ofhis official duties. The State obtained an arrestwarrant based on these charges.

When law enforcement officers went toBurdette' s trailer to execute the warrant, theycalled for him to come outside. As Burdette was being handcuf fed, an officer entered thetrailer s threshold an d performed a protective sweep for weapons. Clerk s Papers ( CP ) a t 21.The officerobserveda 12 -gaugepump actionshogunlocated directly inside the doorway ;theshotgun was positioned so that its barrel was pointed at head level at the doorway, an d it couldbe firedwhleBurdette lay in bed. CP at21. The sheriff' s office subsequently obtained a searchwarrant for Burdette s trailer and, during the search, found four written statements general lyindicating a severe dislike of an d murderous intent toward officers.

II. THEJURY INSTRUCTIONS AND R E S P O N S E S T O JURY COMMUNICATIONS

After hearing pretrial motions, the trial court and counsel met in chambers to discuss juryinstruct ions. Before closing argument, the trial court stated outs ide the jury' s presence,Yesterday wemetinchambersandwentoverthe jury instructions." RP ( Aug. 19, 2011) at 2 .

The trial court asked for the parties' objections tothe instructions, andBurdette statedhehadnone.

During deliberations, the jury submitted tw o communications to the trial court. The f irstcommuncation,submttedat 1 : 20 p.m,read In the Harrassment [sc (Bodily Injury) charge,why is # 2 that the words or conduct of defendant placed officer in reasonable fear that thethreat to kill woudbe carriedou';when (Threat toKll)chargealready statesthat ?" CP at 26emphassomtted). T he trial court responded by stating that the instruct ion was in error an d

correcting it. The secondcommuncation, submttedat 2:26 p.m,onthe secondday otrial,

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stated Jury is deadlockedoversevera issues relating to the defendant' s intent." CP at 27. Thetrial court s wittenresponsestated [ P ] lease continue to deliberate in an effort to reachverdcts. C P at 27. T he court ' s written responses to both jury communicat ions a lso s ta ted thatthey weresubmtted afteraffording allcounse /partiesopportunity to be heard. CP at 27. Therecord does not ref lect where any d iscuss ions abou t the trial court' s responses were he ld .'

T he jury acquit ted Burdette of the harassment charge, but found him guilty of theobstruction charge. He appeals.

ANALYSIS

I. PUBLIC TRIAL RIGHT

Burdette argues that the trial court violated his right to a public trial and the public' s right

to open proceedings by n ot holding discussions about jury instructions in open court and by notdiscussing its responses to the tw o jury communications in open court. Based on our SupremeCourt' s recentdecision inState v. Sublett, 176 Wn.2d 58, 292 P. 3d 715 ( 2012) (pluralityopnon),we hold that thepublic trial right did not attach to either of these proceedings. Thus,the trial cour t d id no t violate ei ther Burdette ' s o r the public' s right by not holding theseproceedings inopen court.A. The Legal Standards

Whether a violation of the public trial right exists is a question of law we review de novo.State v. Momah, 167 Wn.2d 140, 147, 217 P. 3d 321 ( 2009), cent. denied, 131 S. Ct. 160 ( 2010).

T he record states that th e court took a recess until the jury reaches a verdict and cont inueswhen the jury returned to read its verdict. See RP ( August 19, 2011) 5 1 .2

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A criminal defendant has a right to a public trial under the federal and state constitutions. StatevLormor, 172 Wn.2d 85, 90 -91, 257 P. 3d 624 ( 2011); U. S. CONST. amend. VI; WASH. CONST.art.I, 22 . Likewise, th e public has a complementary right to open proceedings under th efederal and state constitutions. Lormor, 172 Wn.2d at 91; U. S. CONST. amend. I; WASH. C O N S T .art. I, 10. These rights, however, are not absolute, and a trial court may close the courtroomunder certain circumstances. Momah, 16 7 Wn.2 d at 148; S ta te v . Easterling, 15 7 Wn.2 d 167,174 -75, 137 P. 3d 825 ( 2006). Specifically, Washington c ou rts m a y close a part of a trial towhchhepublictrial righappiesonlyafterapplying the Bone -Club 2 guidelines andmakngspecific findings on the record justifying a closure. Momah, 167 Wn.2 d at 148.

However, "not every interaction between the court, counsel, an d defendants willimplicate the righto a pubictria,orconstituea cosureifcosedto the public. Sublett, 176Wn.2d at71. Thus, the first step in the analysis is to determine whether the actions at issue fallunder the umbrella of these rights.

2 These guidelines are:1 . The proponent of closure or sealing must make some showing [ of a compellinginterest], and where that need is based on a right other than an accused' s right to afair trial, the proponent must show a serious and imminent threat to that right.2 . Anyonepresent when t he c losur e motion is m ad e m us t be given an opportunityto object to the closure.3 . T he proposed method for curtailing open access must be the le as t restrictivemeans available for protecting the threatened interests.4. T he court must weigh the competing interests of the proponent of closure andthe public.5 . T he order must be n o broader in its application or duration than necessary toserve its purpose.

State v. Bone -Club, 128 Wn.2d 254, 258 -59, 906 P.2d 325 ( 1995) ( quoting Allied DailyNewspapers v. Eikenberry, 1 2 1 Wn.2 d 205, 210 -1 1 , 848 P. 2 d 1258 ( 1993)).

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To make that determination, the Supreme Court in Sublett adopted an experience andlogic" test.3 Sublett, 17 6 Wn.2 d at 72. Sublet t admittedly dealt with a criminal defendant ' s rightto a public trial under the Washington Constitution, article I, section 22, not the public' s right toopen proceedings under the First Amendment to the United States Constitution or article I,section 10 of our state constitution. Burdette here raises challenges under both rights. TheSublett court, though, adopted the experience and logic test from Press -Enter. Co. v. SuperiorCourt, 478 U.S . 1 , 106 S . Ct. 2735, 92 L. Ed. 2d 1 ( 1986) ( Press II), a First Amendment case,

and noted further that the public' s right to open proceedings under article I, section 10 ofourstate constitution mirrors the First Amendment. Sublett, 176 Wn.2d at 7 1 n.6 , 73. Sublett also

observed th at o ur Supreme Cour t has historically analyzed allegations of a court closure undereither article I, sect ion 10 or article I, sect ion 2 2 analogously, although each is subject todifferent reiedepend ing uponwhoasserts thevoation. Sublett, 176 Wn.2d at 71 n.6 . Thus,theplain force ofSublett is that weuse the experience and logic test to determine whether anevent triggers the protections of either s e t of constitutional rights securing open trials.4

3 The l e a d opinion in Sublett w a s a plurality opinion by four justices. Justice Madsen' sconcurrence, though, agreed with both the lead opinion' s conclusion that not all trial proceedingsclosed to the public implicate the public trial right and its adoption and application of theexperience and logic test. Sublett, 176 Wn.2d at 92 -94. Thus, these holdings commanded thesupport of a majority of the court. See 17 6 Wn.2 d at 95, 99.4 T he decisions of the Court of Appeals differ a s to whether a criminal defendant has standing toraise the public' s right to o pen proceedings. In State v. Wise, 148 Wn. App. 425, 442 -43, 2 00P.3d 266 (2009), reversedonohergrounds 176 Wn.2d 1 , 288 P.3d 1113, 1120 (2012), we heldthat a criminal defendant does not have standing t o rais e th e public' s right to open proceedings.On the o ther hand, DivisionOne held in In re Detention of Ticeson, 159 Wn. App. 374, 381 -83,246 P.3d 550 ( 2011), that criminal defendants do have standing to raise thepublic' s right to openproceedings, but may n ot raise such a claim for the first time o n a pp ea l a bs en t showing ofpracticalandidentifiable consequencesattria. 159 Wn.App. at383. We need not try to

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The experience and logic test determines whether the core values of the public trial rightareimplicated" by the trial eventat issue. Sublett, 176 Wn.2dat73. To do so, the test poses twoquestions. First, the experienceprong asks "` whether the place and process have historicallybeen opento the pressandgenerapubic. Sublett, 17 6 Wn.2 d at 73 ( quoting Press II, 47 8U.S . at 8). Next, the logic prong asks `whether public access plays a significant positive role inthe functioning othe particuarprocessinquestion. Sublett, 17 6 Wn.2d at 73 ( quoting PressII, 478 U.S . at 8). In applying the logic prong, a court shou ld cons ide r the values served byopencourts. Sublett, 176 Wn.2d at74 -75. One manner of doing so is through comparison ofthe proceeding ' s nature to that of the criminal trial itself, such a s whe ther the same criminalrights attach, the importance of the proceeding in the overall trial, an d whether the jury is presentduring the proceeding. Sublett, 176 Wn.2dat74. Not every case though, "will fit cleanlywthna comparsonbetween the proceeding at issue andtria in genera, so the trial orreviewing courtmusconsderwhetheropennesswll enhance] both the basic fairness of thecriminal trial and the appearance of fairness so essential topublic confidence in the system. 'Sublett, 176 Wn.2d at74 -75 ( aterationin origna) (quoting Press -Enter. Co. v. Super ior Court,464 U.S . 501, 508, 104 S . Ct. 819, 78 L. Ed. 2d 629 ( 1984) ( Press I)). Ifthe answer to both theexperience and logic prong is yes, the public trial right attaches. Sublett, 17 6 Wn.2 d at 73.

unsnar l this apparent conflict here, because the experience an d logic test plainly shows that thetrial court did not err under either constitutional guarantee.

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B. Responses to Jury CommunicationsBurdette argues that the trial court' s failure to discuss the tw o jury communications in

open court violated his right to a public trial and the public' s right to openproceedings. Thisargument stumbles at the outset, since the record does not reflect whether the discussion about

the trial court' s responses to the jury' s communications was held outs ide the public s purview ormerely off the record, but in open court. InState v. Bennett, 168 Wn. App. 197, 206 -07, 275P. 3d 1224 ( 2012), w e observed that appel lan ts bear the burden of demonstrating a violation ofthe pubictrial righandurgedpartiesandcounse to "makeanadequaterecord .... abouwhatranspired during any con fe rence n o t h eld in open court ino rd er to obtain effect ive appellatereview. Our admonition applieswith equal strength tomaking a record at trial of where suchconferences occurred. Because th e record does not show where th e d is cu ss io n s a bo ut the jurycommunications occurred, we arguably could re ject Burdet te ' s claim because he cannot meet hisburden of demonstrating that these discussions d id not occur in open court. However, becauseSublett clearly resolves Burdette' s claim and discussion of the Sublett decision will be beneficialin subsequent cases, we reach the merits of the issue.

The Sub le tt cour t specifically examined whether consideration of a jury question about aninstruction implicatedthe publictrial righ. Sublett, 176 Wn.2dat75. In applying th eexperienceprong, the Sublettcourtobservedthat CrR6. 15(f)() 5 was the only authority [ it5 C rR 6. 15( f)( provides:

T he jury shall be instructed that an y question it wishes to as k the courtabout the instructions or evidence should be signed, dated and submitted inwriting to the bailiff. T he court shall note the parties of th e contents of thequestions and provide them an opportunity to comment upon an appropriateresponse. Written questions from the jury, the court's response and anyobectionsthereto shallbe madeapatof the record. The courtshallrespondto

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coud] find governing this process. Sublett, 176 .Wn.2d at 77. The court further observed thatCrR 6. 15( f)( requires the trial court to m a ke t he jury' s question, any objections, a nd the trialcourt' s response part of the record, but the rule does not require the trial court to seek objections

and give its response inopen court. Sublett, 176 Wn.2d at 76 -77. The Sublett court concluded

that "historically, ... a proceeding inopen court to discuss the [jury] question itself an d an yappropriateanswerhas nobeenrequred. Sublett, 176 Wn.2d at 77. Thus, the appellants didnot meet the experience prong, an d the public trial right d id not attach to discussions regardingjury ques tions abou t it s instructions. See Sublett, 176 Wn.2 d at 77.

In applying the logic prong, the Sublettcourtheld that "[ CrR6. 15(f)()] advancesandprotects those interests under ly ing the consti tutional requirements of open courts with itsdirective toputhe questionanswer;andobectionsin the record. Sublett, 176 Wn.2d at 77.Sublett further reasoned that

n] on e of the va lues served by the public trial right is violated under the facts ofthis case No witnesses are involved at this stage, no testimony is involved, an dnoriskoperjury exsts. T he appearance of fairness is satisfied by having thequestion, answer, an d an y object ions placed on the r ecord pursuan t to C rR 6. 1 5 .Similarly, the requi rement that the answer be in writing serves to remind theprosecutor an d judge of their responsibi l i ty because the writing will become partothe publicrecordandsubect to pubicscrutiny andappelaterevew This isnot a proceeding so similar to the trial itself tha t the same rights attach, such a sthe right to appear, to cross -examine witnesses, to present exculpatory evidence,andto excudeillegally obtanedevdence.- Neither Sublett nor Olsen claim or

al questionsfrom a deliberating jury in open court or in writing. In itsdiscretion, the co urt m ay grant a jury' s request to rehear o r replay evidence, butshould do s o in a w ay that is least likely to be seen a s a comment on the evidence,in a w a y th at is not unfairly prejudicial an d in a w a y tha t minimizes the possibilitythat jurors wllgveundueweghto suchevdence. Any additional instructionupo n a ny point of la w shall be given in writing.

Emphasis added.)

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argue an y of these rights, nor could they since such rights are inapplicable in thediscussionof, or resolutionof,questions from the jury.

Sublett, 17 6 Wn.2 d at 77 -78. Under these criteria, the appellants did not meet the logic prongeither, and the public trial right didnot attach to discussion of the jury ques tions about theinstructions. See Sublett, 176 Wn.2d at 77 -78.

As inSublett, the first jury communicat ion in the present appeal posed a question about ajury instruction. Accordingly, Sublett controls the issue and dictates that the public t rial r ight d idnot attach to the trial court' s responseto that first communication. For this reason, Burdette' sclaim that his public trial right w as violated when the trial court answered th e first jurycommunication outside of open court fails.

The jury asosubmttedasecondcommuncatonstating, " Jury is deadlocked oversevera issues relating to the defendant' s intent." CP at 27. This communication was not a directrequest fo r clarification of the jury instructions, but rather appears to be a request fo r instructionsabout ho w to proceed when the jury feels it is deadlocked on a specific issue. Given theprocedures that govern how a trial court addresses a jury' s claim that it is dead locked , neither theexperience prong nor the logic prong demonstrates that the public trial right attached.

Ajury' s assertion that it is deadlocked may resul t in the trial court declar ing a mistrial.State v. Jones, 97 Wn.2d 159, 163, 641 P.2d 708 ( 1982). However, to createthe "` extraordinaryandstrikng "' circumstances that justify a mistrial, there must be a factual basis fo r the trialcourt' s determination that the jury is hopelessly deadlocked. Jones, 97 Wn.2d a t 164 ( quotingState v. Bishop, 6 Wn.App. 146, 150, 491 P. 2d 1359 ( 1971)). At t imes, the jury' ow n statementthat it is hopelessly deadlocked can serve a s the factual basis fo r the trial court' s decision to granta mistrial. Jones, 97 Wn.2d at 164. However, the trial court may consider additional

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circumstances when determining whether the jury' s assert ion is a genuine sta tement of hopelessdeadlock, such a s the length of the trial a nd the length of time the jury has been deliberating.Jones, 97 Wn.2d at 164.

Here, the jury' s bald assertion of deadlock came, at most, a fe w hours a fter the jury begandeliberating, an d the statement came less than an hour after the jury was provided with acorrected instruction on the harassment charge. Consider ing these factors, it appears that the trialju dge d id not consider the jury' s statement to be a genuine statement of hopeless deadlock,which would trigger consideration of a mistrial. Furthermore, there is no indication that Burdetteasked for a mistrial b as ed o n the jury' s assertion of deadlock.

We recognize the difference between the trial court cons idering whether the jury' sassertion is a genuine statement of hopeless deadlock an d considering whether the jury' sassertion of hopeless deadlock justifies a mistrial. A motion for a mistrial has historically beenhe ard o n the record in open court. Therefore, the experience prong of the Sublett test indicatesthat the public trial right would attach. In addition, a motion for a mistrial based on a hung juryrequresconsidering the defendant' s ` valued right to have his trial completed by a particulartribunal "' an d t he de fendan t' s consti tutional protection against doub le jeopardy. Jones, 97Wn.2 d at 162 ( quoting Arizona v. Washington, 43 4 U.S . 497, 503 n. 1 1 , 98 S . Ct . 824, 54 L. Ed.2d 717 ( 1978)). Consider ing the important const itutional r ights implicated by a motion fo r amistrial, the logic prong would also requ ire tha t the defendant ' s public trial right attaches.

However, a jury' s initial request for an instruction about how t o p roceed if they aredeadlocked is not a motion for a mistrial. Rather, ifhe trial court has reason to believe that thestatement is not a genuine statement ofhopeless deadlock, it is similar to a request for

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clarification of the jury instructions governing ho w to proceed in deliberat ions. That appears tobe the case here. T he jury' s second message was no t tha t it was hopelessly deadlocked on thecase or an y of its aspects, but rather was its first communication that it was having t roub leagreeing on a specific legal quest ion, the element of intent. T he trial court, signif icantly, d id nottreat the jury' s message a s a declaration of dead lock by polling the jurors or by considering amistrial. T he jury was requesting guidance o r clarification on a specific issue. As explainedabove, the public trial right does not attach to jury questions regarding clarification ofjuryinstructions. Sublett, 176 Wn.2d at 76 -77. This request was most similar to that sort of

clarification. Accordingly, g iv en a ll the facts of this case, Burdette' s public trial right d id notattach to an initial jury question requesting clarification about how to proceed when it feels it isdeadlocked.

Under the experience and logic test, Burdette' s public trial right did not attach to the

court s responses to the jury' s communications during deliberation.C. Initial Discussions of Jury Instructions

Turning nowto the initial discussion ofjury instructions, Burdettepoints out that thisevent occurred in closed session, because the court stated on the record and in open court,

Yesterday wemetinchambersandwentoverthe jury instructions. RP ( Aug. 19, 2011) at 2 .He argues that this discussion violated his right to a public trial and the public' s right to openproceedngs.

Sublett dealt with jury questions abou t a lr eady issued instructions, not about theformulation ofjury instructions. Nonetheless, Sublett viewed the issue before it a s similar innatureto proceedngsregarding jury instructions ingenera. Sublett, 176 Wn.2dat75. It

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observed that CrR 6. 15( a) require s the pa rt ie s to submit proposed instructions inwriting.Sublett, 176 Wn.2dat75. It further observed that, before the trial court instructs the jury, CrR6 . 15( c ) requires the trial court t o provide counsel the opportunity to object to the instructions inthe jury' s absence. Sublett, 176 W n .2 d at 75. It no ted tha t Washington law requires theseobjections, as well as their grounds, to be made on the record to preserve them for review.Sublett, 176 Wn.2d at75 -76. Finally, the courtstated We have foundno challenges to [CrR6. 15( a) orCrR6. 15( c)] or, prior to [ CrR 6. 1 5 ' s ] enactment, any case requiring the discussion ofjury instructions to be held inopencourt. Sublett, 176 Wn.2d at 76.

These observations disclose the Supreme Court' s view that Washington law has not

historically required such discussions to be held in open court. Thus, Burdette fails to meet theexperience prong, and the public trial right d id not attach to an y of the jury instructiondiscussions in this case.

II. RIGHT TO BE PRESENT

Burdette next argues that the trial court violatedhis right under the federal and state

constitutions to be present during critical stages of his trial when it discussed its response to thejury' s second communicat ion outside his presence. We agree that the proceedings violatedBurdette' s right to be-present, but hold the error to be harmless in these circumstances.

InState v. Irby, 170 Wn.2d 874, 246 P.3d 796 ( 2011), the trial judge conducted an e -mail

exchangewith counsel over whether certain potential jurors should be excused for cause. Thedefendant argued that his exclusion from this exchangeviolated the Fourteenth Amendment tothe United States Constitution and article I, section 22 of the Washington Constitution.

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Irby held that under the Sixth and the Four teenth Amendments to the Uni ted StatesConstitution, a criminal defendant has a fundamental right tobe present at all critical stages of a

trial. Irby, 170 Wn.2d at 880 -8 1 ( citing Rushen v. Spain, 464 U . S . 114, 117, 104 S . Ct. 453, 78L. Ed. 2d 267 ( 1983); UnitedStates v. Gagnon, 470 U.S . 522, 526, 105 S . Ct. 1482, 84 L. Ed. 2d486 ( 1985). The defendant has that righ `whenever his presence has a relation, reasonablysubstantia, to the ful[l]nessohis opportunity to defend aganstthe charge. Irby, 17 0 Wn.2 dat 881 ( quoting Snyder v . Massachusetts, 291 U . S . 97, 105 -06, 54 S . Ct. 330, 78 L. Ed. 67 41934), overruled in part on other grounds sub nom. Malloy v. Hogan, 3 78 U.S . 1 , 84 S . Ct.

1489, 12 L. Ed. 2d 653 ( 1964)). Drawing from Irby, we stated inBennett, 168 Wn. App. a t 203 -04, that "[ t]he defendant ' s right to be present encompasses situations inwhich he may activelycontribuetohis owndefense, ... as well as critical stages of trial where hispresence has arelation, reasonably substantial, to the fullness of his opportunity to de fend aga ins t the charge.Internal quotation marks omitted.)

Irby also noted, though, that because the relationship between the defendant ' s presenceandhis ` opportunity to defend ' mus be ` reasonably substantia, a defendant does not have arighto be presentwhenhis orher `presencewouldbe useless, or the benefit but a shadow. 'Irby, 170 Wn.2d at881 ( quoting Snyder, 291 U.S. at106 -07). The due process right to bepresent is therefore noabsoue;rather `the presence of a defendant is a conditionofdueprocessto the extentthat a fair andjust hearing woudbe thwartedby his absence. Irby, 17 0Wn.2 d at 881 ( quoting Snyder , 2 91 U.S . at 107 -08).

Irby concluded that the e -mai l exchange was a portion of the jury selection process, that itwas a critical stage of the trial, and that the defendant had a right tobe present under the federal

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constitut ional guarantees. Irby, 170 Wn.2 d at 882 -84. T he court further held tha t under article I,section22 othe sateconstituion, he accusedin a crimnalprosecuionhas the righ to.appearanddefend inpersonandby counse ... a t e ve ry stage of the trial when his substantial rightsmay be affected. Irby, 17 0 Wn.2 d at 8 84 -85 ( quoting State v. Shutzler, 82 Wash. 365, 367, 144P. 284 ( 1914). Irby held tha t jury selection was such a stage, and the defendant had a right to bepresent at it. Irby, 17 0 Wn.2 d at 885.

Little case law w as found on a defendant ' s right to be present during a court' sconsderationoa jury communcatonsuchas the secondoneposedhere. Generally, a criminaldefendant does nohave a righto be presentduring ... conferences between the court andcounsel on legal matters, at least where those matters do not require a resolution ofdisputedfacts. InrePers. Restraint ofLord, 123 Wn.2d 296, 306, 868 P.2d 835 ( 1994) ( ctationomtted). More specif ica l ly, our decision in Sublett held tha t a conference in chambersconcerning ho w to respond to the jury' s request fo r a clarification in on e of the trial court' sinstructions w as not a critical stage of the proceedings because it involvedonly a purely legalquestion. State vSublett, 156 Wn.App. 160, 183, 231 P.3d 231 ( 2010), aff'd, 17 6 Wn.2 d 58,292 P.3d 715 ( 2012).6

T he on e case w e have examined dea ling with the right to be present for discussion of astatementodeadlock is UnitedStates v. Fontanez, 878 F.2d 33, 34 -35 ( 2dCir. 1989). In that

case, the jury informed the court that it was unable to reach a verdict. Even though thegovernment told the court that the defendant was about to be escorted back to the courtroom, the

6 The appe llan ts inSublett abandoned the right- o -be- present issue in their petitions for review tothe Supreme Court. Sublett, 176 Wn.2dat 68 n.3 .

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court gave a modifiedAllen?charge to the deadlocked jury an d ordered them to resumedeliberations. Within two hours, the jury returned a guilty verdict.

T he Second Circuit reve rsed the conviction, holding that the de fendant ha d a right to bepresent at this stage. In its analysis the court cited Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057,25 L. Ed. 2d 353 ( 1970), for the rule that a criminal defendant has the right to be present at allstages of trial. Fontanez, 878 F.2d at 35. Allen, however, was based on the ConfrontationClause of the Sixth Amendment and cannot be read to override later decisions such as Rushen

an d Gagnon , ci ted above, linking the consti tutional right to be presen t to critical stages of trial.Allen, 3 97 U.S . at 338. Fontanez a lso based its ruling on Federal Rule of Criminal Procedure 43,which, with limited exceptions, states that a defendant has the right to be present at all stagesoftria.Fontanez, 878 F.2d at 35. In sum, even though its all stages rule may not beapplicable in state court, Fontanez does hold that a defendant has a constitutional right tobe

present when the court is respond ing to a message that the jury is deadlocked.As discussed inpart I. B., above, the essence of t he s econd jury communicationwas an

inquiry a s to ho w the jury should proceed when it felt deadlocked on the defendant ' s intent. T o adefendant, all may pivot on ho w long the court will require a deadlocked jury to continuedel iberations before declaring a mistrial. In some situations, a defendant may desire a quickmistrial and in others more deliberations in hope of an acquittal. Whatever the case, much is at

stake at this stage an d a defendant may reasonab ly wish to actively participate by making hisopinion known tohis lawyer or, if allowed, to the judge. For these reasons, the defendant' spresence at this stage has a direct relation to the ful lness of his opportunity to defend against the

7 See Allen v. UnitedStates, 164 U.S . 492, 17 S . Ct . 154, 41 L. Ed . 528 ( 1896).16

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charge.. Therefore, under the rules announced inIrby an d Bennett, above, Burdette had a rightunder the state and federal constitutions to be present when the response to the second

communicat ion from the jury w as discussed.Aviolation of the right to be present at trial, whether anchored in due process or article I,

section 2 2 of our state constitution, is subject to harmless error analysis. Irby, 17 0 Wn.2 d a t 8 8 5-86 ( citing State vCaliguri, 99 Wn.2d 501, 664 P.2d 466 ( 1983)). The burden of provingharmlessness is on the S tate an d it must do so beyond a reasonable doubt. Irby, 17 0 Wn.2 d at

Although the presence of prejudice was only glancingly briefed, the facts show it veryunlikely that Burdette ' s absence had an y effect on the judge' s response to the second jurycommunication. T he trial judge read the jury instructions an d the parties gave closing argumentin the morning of the se co nd d ay of trial. Thus, with an intervening lunch break, the second jurycommunicat ion at 2 : 2 6 p. m. could have come only a f te r short del iberations. On this record, thejudge' s directive to continue deliberating after so short a period seems nearly inevitable. Further,the jury' s message was no t tha t it was hopelessly deadlocked, but tha t it could not decidewhether the required element of intent was present. Wth disagreement focused on one issue, the

trial judge ha d e ve n more reason to direct further del iberat ions. Finally, Burdette does not arguewhat he would have s aid or d on e ha d he b ee n present when th e s ec on d jury communication w asdiscussed. Unde r these circumstances, the error inproceeding without Burdette caused him noprejudice. The error was harmless beyond a reasonable doubt.

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III. SUPPRESSION AND INEFFECTIVE ASSISTANCE ISSUES

Over Burdette ' s objection, the State success fu lly moved the trial court t o consider duringsentencing the written statements seized from Burdette' s trailer. T he trial court expresslyrefer red to these statements in imposing Burdet te ' s term of confinement, but it d id no t imposeany community cus tody or o ther probationary sentence conditions. Burdette completed his termof confinement on April 13, 2012.

Burdette now renews his argument that probable cause did not support the search warrantthrough which the statements were seized. He also argues for the first time on appeal that thewarrantless protective sweep of his trailer violated his rights under the federal constitution' sFourth Amendment and th e state constitution s article I, section 7. Finally, h e a rgue s thatdefense counsel was ineffective in failing to move to suppress the evidence o n the g rounds tha tthe war ran tless protective sweep was unlawful. These claims, however, are now moot.

An issue is moot, a m on g o the r reasons, if it involves only abstract propositions orquestions ... orifa courtcannolonger provdeeffectivereie. Spokane Research & Def.FundvCity ofSpokane, 155 Wn.2d 89, 99, 117 P.3d 1117 ( 2005). T he controversy at issue inthe litigation must be a real and substantial controversy admitting of specific relief through adecree of a conclusive character, a s distinguished from an opinionadvising what the lawwouldbe upona hypothetical stateofacts. Aetna Life Ins. Co. ofHartford, Conn . v. Haworth, 3 00U.S. 227, 240 -41, 57 S. Ct. 461, 8 1 L. Ed. 617 ( 1937).

The seized writ ings were admitted only during the sentencing phase of trial; thus, ifwefound Burdette' s claims meritorious, the only re m ed y w e could prov ide would be a remand forresentencing. Burdette, though, has served his term of confinement and is not on an y type of

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probation o r commu n ity custody. Thus, no effective relief can be provided, an d the issues aremoo.

Burdette argues that a ruling in his favor on these issues would still provide him effectiverelief ifwe remanded for a new trial based on the public trial right or right to be present issues.But, as discussed above, no public trial right was violated and Burdette' s exclusion fromconsideration of the second jury communicat ion w as harmless error. Consequent ly, w e order noremand or retrial. Burdette argues also in a single, conclusory sentence that these issues are notmoot because the lawfulness of the search may impact col lateral matters, including any civilsut [he] eectsto pursue. Reply Br.oAppellant at4. However, "[ p] assing treatment of anissue orlackoreasonedargument is insufficient tomertjudicial consderation. State v.Hathaway, 161 Wn. App. 634, 650 n. 10, 251 P . 3d 253, rev iew den ied , 172 Wn .2 d 1021 ( 2011);see asoOrwickv. City ofSeattle, 103 Wn.2d249, 256, 692 P.2d 793 ( 1984) ( It is not thefunctionotrial orappelatecourtsto do counse s thinking andbriefing. ). Thus, we do notconsider Burdette' s collateral consequences argument.

For these reasons the suppressonandineffective assstanceocounse issues aremoo.8

8 Burdette asofiled a statementofaddtionalgrounds (SAG). RAP 10 . 10. In his SAG, Burdettearguesthat ( 1 ) [ t]hechargeswereunjustified.... It is not illeagle [ sic] to speak in the U. S. A.See First Amendment AlI have done is speak, and (2) Speaking does not justifie [ sic] aSpecial] W[ eapons] A[nd] T[ actics] team raid an d search of my home. Fourth Amendment.SAGat 1 .

First, although RAP 10. 10 does not require appellants to refer to the record or citeauthority, it requires th em to inform this court of the nature an d occurrence of alleged errors.Burdette ' s assertion of error is to o v ag ue to allow this court to identify his alleged FirstAmendment issue, and we do not reach it.

Second, Burdette appears to chal lenge the protective sweep an d subsequent search of hishome. But, as we discuss above, these issues are moot.

IM

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We affirm.

concur:

A.C. J.

B F T

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QUINN-BRINTNALL, J. ( concurring in the resut) I agree with the result reached by themajority, that Wayne Burdette' s convctionsshoudbe affirmed. However, I write separatelybecause, inmy opinion, several issues that the majority addresses rely on assumptions regardingfacts outside the record and, thus, are more appropriately addressed through a personal restraintpetition (PRP).9 Specifically, I do not be lieve tha t there are sufficient facts in the record to allowthis court to address the merits of Burdette s claim that ( 1 the responses to jury communicationsviolated his public trial right, and (2) the trial court violated his right to be present.

Burdette argues that his public trial right was violated when the court issued responses tojury communcatons. T he majori ty ho ld s tha t u nd er the experience and logic test, closing thecourtroom fo r discussing the proper response to jury communications does not constitute aclosure that implicates the public trial right. But the record before this court does not contain anyinformation establishing the courtwascosedatall. [ A] closure occurs when the courtroom iscompletely and purposefully closed to spectators so that no one may enter and no one mayleave. ' State vSublett, 176 Wn.2d 58, 71, 292 P. 3d 715 ( 2012) ( quoting State v. Lormor, 17 2Wn.2d 85, 93, 257 P.3d 624 ( 2011)). Accordingly, to ap ply the experience an d logic test, themajority assumes the discussion occurred in a closed courtroom. It is well - ett led that this courtwllnoresoveissues that rely onfacts ousdethe recordonappea. State v. McFarland, 127Wn.2d 322, 335, 899 P.2d 1251 ( 1995). An issue that relies on facts outside the record is

properly addressed in a PRP. McFarland, 12 7 Wn.2 d at 3 35 .I would not have addressed the merits of the above issues due to the inadequate record.

If,however, the record established the- facts the majority assumes, I agree with the result of the

RAP 16. 3 .21

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majority' s anayss. Specifically, I will note that the majority opinion makes an importantdist inction between a jury communicat ion that is a genuine statement of hopeless deadlock and ajury' s request fo r instructions about ho w to proceed when the y b elie ve the y may be deadlocked.If the trial court determines that the jury' s communicat ion is a genuine statement of hopelessdeadlock, then the jury communication triggers p ro ce du re s to e xa m in e the situation and considerwhether a mstrial is appropriate. State v Jones, 97 Wn.2d 159, 164, 641 P.2d 708 ( 1982).Accordingly, I agree that a defendant' s public trial right does not attach to a jury communicat ionuntil the trial court determines that the communication is a genuine statement of hopelessdeadlock.

Burdette also asserts that the trial court violated his right to be present at both the initialdiscussion regarding jury instructions an d the d iscuss ions regarding the trial court ' s response tothe jury communcatons. There is no evidence in the record es tab lish ing whe ther Burdette w aspresentatetherothese events. To address Burdette s claim that th e initial discussion regardingjury instructions violated his right to be present, the majority relies on speculation that Burdettewasnopresent.

And to properly address Burdette' s challenge to the trial court' s discussion regard ingresponses to the jury communicat ions, the majority also must assume that Burdette was notpresent an assumption which is c on tra d ic te d b y reasonable in ferences from the record.Although the record is no t entirely c lear abou t the procedures the trial court used to review thejury' s questions, the trial court' s written response to the jury clearly states that the response wasmadeaftergiving allcounseandpartiesthe opportunity to be heard. The reasonable inferencefrom this statement is that Burdette participated in the decision, regardless of where the

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discussion occurred. A rev iewing court should not assume facts outside the record, especiallyfacts which contradict reasonable inferences from facts contained in th e record.

Here, wecanno revewBurdette' s righ to be present challenge, without assumingfacts ousdethe record. Thus, a PRP, not a direct appeal, is the appropriate mechanism forBurdette to seek review of an y right to be present claim. McFarland, 127 Wn.2d a t 3 35.

I would not have addressed the merits of the above issues due to the inadequate record.Because the record clearly establishes that the initial discussion regarding jury instructionsoccurred in a closed session in chambers, I concur without reservation in the majority' decisionregarding Burdette' s publictriarigh as it reatesto the initial discussion ojury instructions. Ialso concur without reservation in the majority' s decisions regarding Burdette' s suppression ofevidence and ineffective assistance of counsel claims.

Q INN -BRIM ALL, J.

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