FILED JANUARY 31, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
STATE OF WASHINGTON, ) ) No. 35576-4-III Respondent, ) ) v. ) ) UNPUBLISHED OPINION JEAN PAUL WHITFORD, ) ) Appellant. )
FEARING, J. — Jean Paul Whitford challenges his conviction for driving under the
influence of intoxicants (DUI). He asserts error in law enforcement’s executing a warrant
to extract his blood without providing him a copy of the warrant before the draw, the
State’s questioning its expert about the effect of alcohol on an experienced drinker, and
the trial court’s administration of the oath to a bailiff outside open court. We find no
error and affirm the conviction.
FACTS
On May 2, 2015, Spokane County Deputy Sheriff Dustin Palmer, while on patrol,
parked at a gas station in Spokane Valley. At approximately 12:40 a.m., Deputy Palmer
heard a vehicle’s engine revving and gears grinding. He observed a Honda Accord No. 35576-4-III State v. Whitford
speeding westbound on Valleyway. Palmer gave chase as the driver, later identified as
Jean Whitford, traveled through residential areas at a high rate of speed. The vehicle
turned onto a dead end street, after which Whitford turned off the Accord’s headlights.
The car stopped at the end of the street and Whitford, with keys in hand, exited the
vehicle. Deputy Palmer seized and handcuffed Whitford. Palmer smelled alcohol on
Whitford’s breath.
Deputy Dustin Palmer requested Deputy Todd Miller, another officer on patrol, to
assist with the investigation since Miller specializes in DUI investigations. When Deputy
Miller arrived, he interviewed a handcuffed Whitford. Miller observed Whitford’s glassy
eyes and smelled alcohol on Whitford’s breath. Whitford remarked that he visited a
tavern, consumed five pints of alcohol, and was driving home. Deputy Miller conducted
the horizontal gaze nystagmus test and observed six out of six clues of intoxication.
Miller conducted no other field sobriety tests. Miller decided to detain Jean Whitford for
driving while under the influence of alcohol based on the gaze nystagmus test, Whitford’s
inconsistent answers, his speech, and his admission of consuming five pints of alcohol.
After transporting Jean Paul Whitford to jail, Sheriff Deputy Todd Miller garnered
a warrant to seize some of Whitford’s blood. Miller showed Whitford a copy of the
search warrant and read the special evidence warning to Whitford. We do not know to
what extent Miller showed a copy of the warrant to Whitford or to what extent Miller
afforded Whitford the opportunity to read the warrant. Miller did not give Whitford a
2 No. 35576-4-III State v. Whitford
copy of the search warrant before its execution, but he delivered a copy of the warrant to
jail staff so that Whitford could obtain possession of the warrant after being released from
jail. A paramedic drew Whitford’s blood at 2:43 a.m. The draw established two discrete
blood alcohol contents of 0.242 and 0.243, the latter measurement corresponding to the
time of the draw.
PROCEDURE
The State of Washington charged Jean Whitford by amended information with
felony driving while under the influence and first degree driving while license suspended
or revoked. Whitford had prior DUI convictions that elevated the DUI charge to a
felony. Before trial, Whitford pled guilty to first degree driving while license suspended.
At trial, the State called Andrew Gingras, a forensic scientist employed by the
Washington state toxicology laboratory, as a witness. During direct examination,
Gingras testified the results of the two tests conducted on Jean Whitford’s blood
evidenced a blood alcohol level of 0.242 and 0.243 respectively. The State then inquired:
Q And does everyone act the same way at a .08? If you dose everyone in the courtroom up to a .08 level, would all be exhibiting the same signs and symptoms? A No. Q Why is that? A That has to do with something called tolerance. Individuals who are used to drinking alcohol can overcome some of deficits that they might have achieved from the alcohol itself. So a light drinker, someone who doesn’t drink a lot of alcohol or has never consumed alcohol before, you can see a lot of typical signs of alcohol intoxication after their first drink, things like stuttered speech, loss of balance, loss of muscle movement.
3 No. 35576-4-III State v. Whitford
Whereas individuals who are tolerant, have consumed a lot of alcohol throughout time, they wouldn’t observe those same effects until after maybe the second, third, fourth, fifth drink, depending on that person’s tolerance.
Report of Proceedings (RP) at 165-66.
During cross-examination, defense counsel asked Andrew Gingras about the
absorption rate and the burn off rate at which the body eliminates the ethanol or alcohol.
The following colloquy then occurred:
Q Now no two people are created equal; is that correct? A Yes. .... Q The length and speed of the absorption rate would vary among individuals? A It does, yes. Q And you would have no way to know of what Mr. Whitford’s burn off rate or absorption rate would be at this time? A I would only know if I were to observe and test. Q And you haven’t had the opportunity to observe and test Mr. Whitford. A I have done neither.
RP at 172-73.
After questioning Andrew Gingras about retrograde extrapolation of a blood
alcohol level, defense counsel asked about the signs an individual would display at
varying levels of impairment.
Q Now you have extensive experience about what different levels of alcohol will do to the human body, correct? A To some extent. Obviously variances among individuals. So what one person is at a certain level, you might not see in someone else. Q So just like in retrograde extrapolation there are outliers?
4 No. 35576-4-III State v. Whitford
A Yes. Q But you base your retrograde extrapolation on some general principles. A Correct. Q In general, what signs would you see in an individual at a .08?
RP at 178. Counsel specifically asked Gingras about how the imbiber would appear and
act with a blood alcohol concentration of 0.24.
On redirect examination, the State asked toxicologist Andrew Gingras,
Q Okay. Now, sir, let’s go back to the idea about tolerance. Defense counsel asked you a lot about things that you would expect to see. Now when we are talking about a seasoned drinker o[r] even someone who may be an alcoholic, how does that affect your analysis? A So the outward affects would—that individual would appear—
RP at 183. Defense counsel objected and moved for a mistrial. Counsel contended that
the question prejudicially insinuated to the jury that Jean Whitford was an alcoholic. The
State argued that it posed the question as a hypothetical exercise, rather than claiming
Whitford to seasonally drink. The State indicated that it would, after the answer to the
question, ask Gingras about the impact of alcohol on an inexperienced drinker. Since
defense counsel asked Gingras to testify about drinkers with varying levels of a blood
alcohol level, the State wished to show the variations of behavior depending on person to
person.
The trial court denied a mistrial. The court commented that the State’s question
did not suggest Jean Paul Whitford to be a seasoned drinker or alcoholic because of the
context in which the State asked the question. The question was similar in nature to
5 No. 35576-4-III State v. Whitford
questions asked by defense counsel. Nevertheless, the trial court stated it would, in
fairness, likely render a curative instruction or strike the question. Defense counsel
renewed the objection for a mistrial and drew comparisons to other words that would
garner a prejudicial effect. In the event the court was still unwilling to grant a mistrial,
defense counsel asked to strike the question and answer in open court once the jury was
present. The court again denied the request for a mistrial, but struck the question and
answer and further instructed the jury to consider both struck from the trial.
After closing arguments, the trial court administered the oath to a new bailiff who
oversaw the jury. Jean Paul Whitford thereafter moved for a mistrial because the
administration of the oath did not occur in open court. The trial court reserved a ruling
until after the verdict. The jury convicted Jean Whitford of the felony DUI.
At sentencing, the trial court entertained Jean Whitford’s motion for a new trial
based on the bailiff’s oath transpiring outside the courtroom. The court denied the
motion.
LAW AND ANALYSIS
On appeal, Jean Paul Whitford assigns three errors: the admission of testimony of
his blood alcohol level in violation of his right to possess a copy of the blood draw
warrant before the draw; the State’s questioning of its expert whereby the State
insinuated that Whitford was an experienced drinker, if not alcoholic; the trial court’s
assigning a new bailiff to the jury without notice to the parties and the trial court’s
6 No. 35576-4-III State v. Whitford
administrating the bailiff’s oath outside open court. We address these contentions in such
order. We consolidate the last two assignments of error.
Copy of Blood Draw Warrant
CrR 2.3 controls the first issue on appeal. The court rule outlines some procedures
attendant to the execution of search warrants. CrR 2.3(d) states:
The peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken. If no such person is present, the officer may post a copy of the search warrant and receipt. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the person from whose possession or premises the property is taken, or in the presence of at least one person other than the officer. . . .
(Emphasis added.) We note a blood drawing fits awkwardly inside the rule’s reference to
“property” taken from “premises.” Nevertheless, the State does not argue that a blood
draw falls outside the purview of the rule.
Jean Whitford argues Sheriff Deputy Todd Miller did not follow CrR 2.3 when he
failed to give him a copy of the search warrant before extracting blood. Whitford accuses
Miller of acting deliberately. Due to this alleged violation, Whitford believes the results
of the blood draw should have been suppressed. Whitford cites State v. Linder, 190 Wn.
App. 638, 360 P.3d 906 (2015), State v. Ettenhofer, 119 Wn. App. 300, 79 P.3d 478
(2003), and United States v. Gantt, 194 F.3d 987 (9th Cir. 1999), overruled on other
grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008) to support his
7 No. 35576-4-III State v. Whitford
position. In response, the State argues that the deputy did not need to provide a copy of
the warrant before the extraction. The State also argues that any violation of the rule is
not grounds for suppression unless the accused shows prejudice and Whitford shows no
prejudice. The State cites State v. Ollivier, 178 Wn.2d 813, 312 P.3d 1 (2013). After
mentioning the applicable principles, we review the four decisions.
Absent a constitutional violation, the rules for execution and return of a warrant
constitute ministerial acts. State v. Temple, 170 Wn. App. 156, 162, 285 P.3d 149 (2012).
Absent a showing of prejudice to the defendant, procedural noncompliance does not
compel invalidation of the warrant or suppression of its fruits. State v. Temple, 170 Wn.
App. at 162. The court’s ministerial rules for warrant execution do not flow so directly
from the Fourth Amendment’s proscription on unreasonable searches that failure to abide
by the rules compels exclusion of evidence obtained in execution of a search warrant.
State v. Temple, 170 Wn. App. at 162; State v. Kern, 81 Wn. App. 308, 311, 914 P.2d 114
(1996). Other courts suppress evidence resulting from technical violations only when
law enforcement deliberately disregards the rule or if the defendant establishes prejudice.
United States v. Gantt, 194 F.3d at 994 (9th Cir. 1999).
With these principles in mind, we review decisions forwarded by the parties. In
State v. Ollivier, 178 Wn.2d 813 (2013), emphasized by the State, our high court held that
CrR 2.3(d) does not require that a copy of the warrant be provided to a suspect before the
search is commenced. Law enforcement had reason to believe Brandon Ollivier
8 No. 35576-4-III State v. Whitford
possessed child pornography on his computer. Detective Dena Saario obtained a search
warrant for Ollivier’s apartment. Ollivier was present when detectives searched his
apartment and seized three computers, compact disks, and computer storage media.
Saario did not hand Ollivier a copy of the warrant. She instead posted a copy of the
warrant on a bookcase after conclusion of the search.
The Washington Supreme Court devoted the majority of its opinion, in State v.
Ollivier, to Brandon Ollivier’s claim that the State violated his speedy trial rights. In a
summary response to Ollivier’s contention that Detective Dena Saario violated CrR
2.3(d), the court reasoned that the rule did not require provision of a copy of the warrant
before the search began. The court cited the majority view that law enforcement need
exhibit or deliver a copy of the warrant only before departure from the premises. The
Ollivier court ignored the rule’s language that the law enforcement officer must give the
accused a copy of the warrant if the accused is present. Posting of the warrant, if the
accused is present, does not satisfy the rule. The Ollivier court technically read CrR
2.3(d) accurately, because the rule does not identify at what time the officer must hand
the accused a copy of the warrant. One might, however, question the purpose of handing
a copy of the search warrant to the accused after completion of the search.
We move to cases, on which Jean Paul Whitford relies. In State v. Ettenhofer, 119
Wn. App. 300 (2003), a Lewis County sheriff deputy procured a telephonic warrant to
search the home of John Ettenhofer. Before approval of the warrant and during a
9 No. 35576-4-III State v. Whitford
telephone call, the judge administered the witness oath to the deputy, and the deputy
testified to the factual basis supporting probable cause. The judge found probable cause
and authorized a search. The judge never signed a written warrant.
In State v. Ettenhofer, John Ettenhofer challenged his conviction on appeal on the
basis that nobody executed a written search warrant, the judge did not affix his signature
to the warrant, and the deputy failed to give Ettenhofer a copy of the warrant. This
reviewing court invalidated the warrant and reversed Ettenhofer’s conviction. We wrote:
We hold that these failures constitute a warrantless search in violation of CrR 2.3(c), RCW 10.79.040, and article I, section 7 of the Washington State Constitution.
State v. Ettenhofer, 119 Wn. App. at 302. Note that, in this quote, the court referenced
CrR 2.3(c), not CrR 2.3(d). CrR 2.3(c) does not expressly state that a search warrant be
in writing, but the rule suggests a written warrant by the language:
[I]t [the court] shall issue a warrant or direct an individual whom it authorizes for such purpose to affix the court’s signature to a warrant.
Nevertheless, later in the opinion, the court discussed a violation of CrR 2.3(d). The
court wrote:
As principles of statutory construction require that we harmonize CrR 2.3(c) with other relevant rules, we next turn to CrR 2.3(d). That rule requires that “[t]he peace officer taking property under the warrant shall give to the person from whom or from whose premises the property is taken a copy of the warrant and a receipt for the property taken” (emphasis added). As these words are perfectly clear, the Supreme Court’s intent with respect to subsection (d) is not open to debate; it expected that the person
10 No. 35576-4-III State v. Whitford
searched would receive a physical document. Therefore, an oral warrant like the one at issue here does not satisfy the dictates of CrR 2.3(d). Besides proving that CrR 2.3(c) requires a written warrant, section (d) has another function in this case. As the officers did not have a written warrant, they could not have given Ettenhofer a copy of one as the rule commands. Thus, the officers violated CrR 2.3(d) in addition to CrR 2.3(c).
State v. Ettenhofer, 119 Wn. App. at 305 (footnote omitted).
After addressing the violations of CrR 2.3(c) and 2.3(d), the Ettenhofer court
reviewed whether the procedures used by the Lewis County sheriff deputy and judge
violated RCW 10.79.040 and more importantly article I, section 7 of the Washington
State Constitution. The court reasoned that the warrant requirements evident in CrR 2.3,
RCW 10.79.040, and the Washington Constitution are interrelated. The court concluded
that:
[T]he written warrant requirement so clearly evident in CrR 2.3 is also an aspect of the constitutional warrant requirement.
State v. Ettenhofer, 119 Wn. App. at 308. The State argued that the provisions of CrR 2.3
were ministerial in nature and thus John Ettenhofer needed to show prejudice to
invalidate the search warrant. The court followed the rule that an unconstitutional search
renders the search invalid and the defendant need not show prejudice.
State v. Ettenhofer supports the contention of Jean Paul Whitford. Nevertheless,
we struggle to apply the decision in this appeal. The Ettenhofer court did not isolate the
three discrete violations of CrR 2.3 as being sufficient alone to invalidate the warrant.
11 No. 35576-4-III State v. Whitford
The court tied the requirement of delivering a copy of the warrant to the accused as
bolstering its conclusion demanding a written warrant. The court only referred to “the
written warrant requirement” as constitutionally imposed. State v. Ettenhofer, 119 Wn.
App. at 308. State v. Ollivier, 178 Wn.2d 813 (2013), a Supreme Court decision filed ten
years later, probably overrules Ettenhofer without mentioning the decision at least to the
extent the Ettenhofer court discusses the failure to deliver a written search warrant to the
accused.
In State v. Linder, 190 Wn. App. 638 (2015), police arrested Aaron Linder for
driving with a suspended license. During the search incident to arrest, an officer found a
small tin box inside the pocket of Linder’s hoodie. Linder did not give consent to search,
so officers applied for a search warrant. A judge signed the warrant near midnight, so, on
return to the police station with the warrant, Sergeant Steven Parker worked alone.
Parker opened the tin box, inventoried the box’s contents, completed the return of service
form, and deposited items from the box in an evidence locker. The contents included
methamphetamine in cigarette wrapping. The next morning, another officer, also acting
alone, verified the contents in the evidence locker as matching Sergeant Parker’s
inventory.
Aaron Linder moved to suppress the methamphetamine on the ground that
Sergeant Steven Parker breached CrR 2.3(d)’s requirement of conducting the inventory in
the presence of at least one other person besides the officer. The State argued against
12 No. 35576-4-III State v. Whitford
suppression because of the ministerial nature of the rule violation. The trial court granted
Linder’s motion and dismissed the case. We affirmed.
This court, in State v. Linder, agreed to the ministerial character of CrR 2.3(d), but
deemed this characterization irrelevant to exclusion of the evidence since some violations
of the rule can be consequential and some will not. We observed that, absent
suppression, Linder had no adequate remedy for someone’s tampering with the evidence
since no one else could confirm the contents of the box on seizure. The violation could
not have been cured after the fact. Linder’s only recourse would be to deny the accuracy
of the inventory in opposition to the word of a police officer, which, from common
experience, placed Linder at a disadvantage.
This court in Linder also found the credibility of the State’s evidence impaired.
The trial court never found the inventory to be accurate. Instead the trial court wrote
handwritten changes to the proposed findings. The trial court changed a proposed finding
as to what “‘Sergeant Parker found’” in the tin box to what “‘Sergeant Parker testified
he found.’” State v. Linder, 190 Wn. App. at 645. The court also struck three proposed
findings that the items in the box were “accurately” captured by the sergeant’s
photographs and “accurately” inventoried. State v. Linder, 190 Wn. App. at 645.
In United States v. Gantt, 194 F.3d at 990 (9th Cir. 1999), the appeals court
reviewed Fed. R. Crim P. 41(d), the federal analog to CrR 2.3(d). This rule has since
been renumbered Fed. R. Crim P. 41(f)(1)(C). The federal rule provided:
13 No. 35576-4-III State v. Whitford
[T]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken.
When the Federal Bureau of Investigation (FBI) executed a search warrant at Pamela
Gantt’s hotel room, agents did not present Gantt with a copy of the warrant. Instead, they
directed her to sit in the hallway while they conducted a three-hour search. A three-hour
search. The search started getting rough, when Gantt asked to see the search warrant.
Agents briefly showed her the face of the warrant. After conducting the search, the
agents left a copy of the warrant behind in the hotel room while agents transported Gantt
to an FBI office.
The Ninth Circuit Court of Appeals, in United States v. Gantt, noted that rules for
executing a warrant must be interpreted in the light of the important policies underlying
the warrant requirement: to provide the property owner assurance and notice during the
search. The United States Supreme Court has repeatedly observed that an essential
function of the warrant is to assure the individual whose property is searched or seized of
the lawful authority of the executing officer, his need to search, and the limits of his
power to search. The Gantt court wrote:
If a person is present at the search of her premises, agents are faithful to the “assurance” and “notice” functions of the warrant only if they serve the warrant at the outset of the search. A warrant served after the search is completed cannot timely “provide the property owner with sufficient information to reassure him of the entry’s legality.”
14 No. 35576-4-III State v. Whitford
United States v. Gantt, 194 F.3d at 991 (9th Cir. 1999), (citing Michigan v. Tyler, 436
U.S. 499, 508, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978)) (emphasis added).
The Gantt court held that the FBI officers violated Fed. R. Crim P. 41(d). Still,
the court noted that not all violations of the rule demand suppression of the seized
evidence. The court upheld the principle that violations require suppression only if law
enforcement deliberately disregarded the rule or if the defendant was prejudiced. The
Gantt court found suppression was justified because of a deliberate violation. The court
found the violation deliberate because agents failed to show Gantt the complete warrant
even after she asked to see it.
We note one decision on our own. In State v. Temple, 170 Wn. App. 156 (2012),
Matthew Temple identified four errors committed by law enforcement when executing a
search warrant: (1) the officer failed to file the search warrant affidavit, the search
warrant, the search warrant return, and the search warrant inventory with the issuing
court, (2) the search warrant return was not accompanied by the inventory of property
seized, (3) the officer did not provide Temple with a copy of the warrant or a receipt for
the property seized, and (4) the search warrant inventory was not made in the presence of
any other person and falsely stated that it was. For an unknown reason, Temple did not
argue that any of these errors alone invalidated the error, and he only argued
constitutional error. This court did not view the failure to deliver a copy of the warrant to
Temple as problematic.
15 No. 35576-4-III State v. Whitford
We are uncertain whether to conclude that Sheriff Deputy Todd Miller violated
CrR 2.3(d) by not providing Jean Whitford a copy of the warrant before executing it. We
are bound by Washington Supreme Court decisions with regard to Washington court
rules. Although the Supreme Court summarily addressed CrR 2.3(d) in State v. Ollivier,
the decision stands for the proposition that law enforcement need not hand a copy of the
search warrant to the accused, even if the accused is present, and can post the warrant in
some convenient place after the search. Sergeant Todd Miller left a copy of the search
warrant in a location where Whitford could gain possession of the copy.
Regardless of whether Todd Miller violated CrR 2.3(d), we conclude that the trial
court did not err in denying Jean Paul Whitford’s motion to suppress the evidence
extracted from the blood draw. Even under the more liberal Gantt ruling, we must find
prejudice or deliberate violation of the rule to suppress. Unlike in State v. Linder, the
violation did not compromise the accuracy of the evidence. The underlying concerns
with regard to a residence and possessions inside the home lack relevance to human
bodies. A house may contain many rooms, and an owner may justifiably wish to know
over what areas of the home officers may have authority to search. The blood draw
constituted a limited scope search. Whitford advances no argument as to any potential
prejudice.
The record does not support a finding that Deputy Todd Miller’s actions were
deliberate. On a common sense level, Miller exercised a choice whether to give Jean
16 No. 35576-4-III State v. Whitford
Whitford a copy of a warrant before or after a search. He even showed a copy of the
warrant to Whitford. Nonetheless, the Gantt case found an officer acted deliberately
when the defendant specifically asked to survey the warrant, yet the officer still did not
provide a copy. This appeal lacks those circumstances. We have no evidence that
Deputy Miller intended to deprive Whitford of a known right to possess a copy.
Jean Whitford also argues that he possessed a constitutional right that demanded
that law enforcement follow the strictures of CrR 2.3(d). We agree with the broad
principle that a search warrant implicates the United States Constitution Fourth
Amendment and art. I, § 7 of the Washington Constitution. Nevertheless, Whitford cites
no authority for the proposition that an accused holds a constitutional right to the
enforcement of state court rules. In State v. Wraspir, 20 Wn. App. 626, 628, 581 P.2d
182 (1978), this court held that the Fourth Amendment does not require immediate
service of the warrant before the search may begin.
Question about Experienced Drinker
Jean Paul Whitford criticizes the prosecution for asking the State’s expert on
toxicology about the tolerance to alcohol of “a seasoned drinker o[r] even someone who
may be an alcoholic.” RP at 183. Whitford contends the question intimated that he was a
practiced drinker or alcoholic and this intimation proffered an opinion of guilt. He
highlights the stigma attached to the disease of alcoholism. Accordingly, the prosecution,
as argued by Whitford, committed misconduct by inserting this insinuation before the
17 No. 35576-4-III State v. Whitford
jury. Whitford further contends that, even if the trial court had given a curative
instruction, jurors would still have retained their awareness of the prosecutor’s inference.
The State answers that the prosecution posed the question as a hypothetical question and
in response to questions first raised by defense counsel.
A prosecutorial misconduct inquiry consists of two prongs: (1) whether the
prosecutor uttered improper comments, and (2) if so, whether the improper comments
caused prejudice. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). An appellate
court reviews allegations of prosecutorial misconduct under an abuse of discretion. State
v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). A defendant bears the burden of
showing that the prosecutor’s comments are both improper and prejudicial. State v.
Lindsay, 180 Wn.2d at 430. A prosecutor commits misconduct by conveying a personal
opinion regarding the accused person’s guilt or veracity. In re Personal Restraint of
Glassman, 175 Wn.2d 696, 706, 286 P.3d 673 (2012).
We doubt the prosecution implicated Jean Whitford as a seasoned drinker or
conveyed a personal opinion of guilt. The question came only on redirect examination
and only after defense counsel asked the witness a series of hypothetical questions about
the impairment of alcohol based on varying circumstances. The State intended to ask
additional questions that confirmed the question as being a hypothetical not specifically
directed to Jean Whitford. The prosecution also asked about a light drinker, yet Whitford
does not accuse the State of labeling him a light drinker. Both parties presented evidence
18 No. 35576-4-III State v. Whitford
about discrete individuals’ tolerance to alcohol. Defense counsel could have questioned
the witness further to show that the witness had no scientific evidence to believe
Whitford to be an experienced drinker. Whitford argued, in part, in the course of the case
that the blood alcohol level presented by the State must have been erroneous because his
physical condition did not support this high count.
Regardless, we find no prejudice in the question. The court struck the question
and the answer. The witness had barely begun to answer the question. The State did not
argue in closing that Jean Whitford was an alcoholic. The court offered to deliver a
curative instruction.
Public Trial Right
Jean Paul Whitford next contends that the trial court violated his right to a public
trial when the court administered the oath to a substitute bailiff outside the presence of
the jury and outside the public courtroom. This oath occurred at the end of the trial after
closing arguments ended. In reply, the State characterizes the oath of a bailiff as a
ceremonious or administrative act by the trial court that need not occur in open court.
We agree with the State.
We first note the lack of any constitutional, statutory, or regulatory requirement
that a bailiff who oversees a jury must be administered an oath. Still, the lack of a legal
demand for an event to occur during does not necessarily permit that event from being
performed outside open court.
19 No. 35576-4-III State v. Whitford
When addressing a defendant’s constitutional right to a public trial, a reviewing
court must first determine whether the proceeding at issue even implicates the public trial
right constituting a closure. State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715 (2012).
Not every interaction between the court, counsel, and defendants will implicate the right
to a public trial or constitute a closure if closed to the public. State v. Sublett, 176 Wn.2d
at 71. To ascertain whether a defendant’s public trial right has been violated, an appellate
court engages in a three-part inquiry: (1) whether the proceeding at issue implicates the
public trial right, (2) if so, was the proceeding closed, and (3) if so, was the closure
justified. State v. Smith, 181 Wn.2d 508, 521, 334 P.3d 1049 (2014). If an appellate
court concludes that the right to a public trial does not apply to the proceeding at issue,
the court does not reach the second and third steps in the analysis. State v. Smith, 181
Wn.2d at 519.
To resolve whether the public trial right attaches, the reviewing court applies the
“experience and logic” test. State v. Sublett, 176 Wn.2d at 72-73. Under the experience
prong, the court considers whether the proceeding at issue has historically been open to
the public. State v. Sublett, 176 Wn.2d at 73. Under the logic prong, the court asks
whether public access plays a significant positive role in the functioning of the particular
process in question. A defendant must satisfy both prongs. Consideration is given to
whether openness will enhance both the basic fairness of the criminal trial and the
appearance of fairness so essential to public confidence in the system. State v. Whitlock,
20 No. 35576-4-III State v. Whitford
188 Wn.2d 511, 521, 396 P.3d 310 (2017).
In State v. Parks, 190 Wn. App. 859, 862, 363 P.3d 599 (2015), the defendant
argued that the court violated his right to a public trial when the court swore in a large
venire in the jury assembly room. In analyzing the experience prong of the open court
test, this court found that swearing in the venire prior to selection was analogous to an
administrative component of jury selection to which the public trial right did not attach.
State v. Parks, 190 Wn. App. at 866-67.
We find the administration of the oath to a bailiff to be analogous to the
administration of the oath to a jury venire. In addition, Jean Paul Whitford cites no
decision that holds the swearing in of the bailiff must occur in open court. When an
appellant cites no authorities in support of a proposition, the court need not search for
authorities, but may assume that counsel, after diligent search, found none. State v.
Young, 89 Wn.2d 613, 625, 574 P.2d 1171 (1978). The administration of the oath outside
the presence of the public does not impact public confidence in the judicial system.
Jean Paul Whitford also contends that the trial court should have afforded notice to
the parties before substituting a new bailiff to attend to the jury. Whitford cites no law in
support of this contention. He asserts no prejudice resulting from a replacement of the
bailiff. Therefore, we reject the contention.
21 No. 35576-4-111 State v. Whitford
CONCLUSION
We affirm Jean Paul Whitford' s conviction for felony drinking under the influence
of intoxicants.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:·
2g_J) trc:s Pennell, A.C.J.
22 No. 35576-4-III
FEARING, J. (concurring)- I question the holding in State v. Ollivier, 178 Wn.2d
813,312 P.3d 1 (2013). The Ollivier court devoted most of its opinion to another issue.
The court ignored CrR 2.3(d)'s language that the law enforcement officer must give the
accused a copy of the warrant if the accused is present. Posting of the warrant, if the
accused is present, does not satisfy the rule. The Ollivier court technically read CrR
2.3( d) accurately, because the rule does not identify at what time the officer must hand
the accused a copy of the warrant. One might, however, question the purpose of handing
a copy of the search warrant to the accused after completion of the search. Most accused
may not read the warrant, but the accused should be afforded the opportunity to review
the warrant in advance to confirm the legality of the search and the limits of the search' s
authorization.