Personal Restraint Petition Of: Felix D'allesandro ( 2013 )


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  •                                                                                                   r
    2, 0F APPEALS
    1_
    2010 DEC   7             la
    STAI           SHI?4GT
    BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    DIVISION II
    No. 37217 -7 -II
    In re Personal Restraint Petition of
    FELIX JOSEPH D' ALLESANDRO
    PUBLISHED OPINION
    HUNT, J. -            In this   personal   restraint   petition (   PRP),   Felix   Joseph D' Allesandro
    challenges his 2004 jury trial conviction for first degree premeditated murder with a deadly
    weapon.     He argues that his previous appellate counsel rendered ineffective assistance in failing
    to include a Bone -Club' challenge to the temporary courtroom closure during jury selection in
    2
    the   petition   for   review   from his direct   appeal .   Agreeing, we grant this PRP.
    State v. Bone -Club, 
    128 Wash. 2d 254
    , 
    906 P.2d 325
    ( 1995).
    2
    D' Allesandro also argues that ( 1) his trial counsel rendered ineffective assistance by failing to
    move for curative instructions or a mistrial after his ( D' Allesandro' s) co- defendant' s attorney
    repeatedly questioned D' Allesandro about other witnesses' credibility and engaged in incomplete
    impeachment; and ( 2) the trial court violated his constitutional public trial right when, without
    first applying the Bone -Club factors, ( a)
    it temporarily closed the courtroom during jury selection
    to questiori privately approximately one -third of the jury pool, and ( b) it closed the courtroom to
    question a
    sitting juror about his possibly knowing a witness. Because we find the ineffective
    assistance of former appellate counsel argument dispositive, we do not address most of these
    other arguments.
    No. 37217 -7 -II
    FACTS
    The State charged Felix Joseph D' Allesandro and Mert Celebisoy with first degree
    murder while armed with a deadly weapon for the stabbing death of David George. 3 State v.
    Celebisoy, noted at 
    131 Wash. App. 1003
    , 
    2006 WL 14519
    , at * 2, review denied, 
    158 Wash. 2d 1004
    2006). Their high            profile cases were consolidated             for.trial in March 2004.          Celebisoy, 
    2006 WL 14519
    ,    at *   3.   The jury convicted both defendants as charged.
    I. CLOSED COURTROOM DURING INITIAL JURY VOIR DIRE
    Before voir dire began, D' Allesandro' s counsel apparently proposed and prepared a juror
    questionnaire, which asked jurors to indicate whether they wished to be interviewed privately
    about    any     of   the   questions.    The trial court' s instruction sheet accompanying this questionnaire
    stated: "   Further questioning, if any,             will   be     conducted   privately if         you request   it. That is, the
    4
    public and other potential           jurors     will not    be   present. "    State'   s   Third Suppl.     Resp., App. B at 3.
    D' Allesandro subsequently asked the trial court about interviewing prospective jurors who had
    stated on      their juror      questionnaires       that   they   preferred   to be    examined "        privately," as both the
    questionnaires and            the trial   court' s   accompanying instruction               sheet   had   promised.   1 Verbatim
    Report    of   Proceedings ( VRP) ( Mar. 8, 2004) at 2 -3.
    D' Allesandro' s counsel stated:
    3 The facts are set forth in our unpublished decision in D' Allesandro' s 2006 direct appeal. State
    v. Celebisoy, noted at 
    131 Wash. App. 1003
    , 
    2006 WL 14519
    , at * 2, review denied, 
    158 Wash. 2d 1004
    ( 2006).
    4
    Other than the title " the       court' s   instructions," the record does not show who proposed the
    instruction sheet or whether it was the trial court' s standard cover sheet. Nor does the record
    show that the trial court and counsel discussed private voir dire or D' Allesandro' s public trial
    rights before his counsel submitted the questionnaire.
    0)
    No. 37217 -7 -II
    It   occurred   to   me ...        after I had an opportunity to review the jury questionnaires,
    it would make sense for the parties and the Court to interview prospective jurors
    who wished to speak with us privately, to do those interviews prior to voir dire,
    and my rationale is that if those interviews result in any excuses for cause, it
    would diminish the pool right off the bat, and secondly and perhaps more
    importantly from my perspective we don' t run the risk of tainting the remaining
    pool,if we do it on the front end as opposed to doing it on the back end. And I
    know there       are    a   lot    of people   in the — on this side of the bar in the well, and
    normally, at least in my experience, those interviews are conducted in chambers,
    and I would suggest that those interviews take place in an empty courtroom. By
    that, I mean apartfrom the remaining prospective jurors.
    1 VRP ( Mar. 8, 2004)        at    2 ( emphasis   added).      Celebisoy, the State, and the trial court agreed that
    speaking to those jurors             whose     questionnaires       had   requested "   private"    questioning, before
    beginning    the   general voir      dire,   would    be the   most efficient approach.       I VRP   at    3.   Celebisoy' s
    counsel    also commented          that it   might    lessen the    chance " of   tainting   the larger [   jury]   pool."   1
    VRP (Mar. 8, 2004) at 3.
    The trial court responded:
    Well, all of the attorneys are in agreement, and I don' t find myself in
    disagreement, but I        maybe would         like to    make a   further   suggestion.    The jurors
    have been waiting a long time so I would like to invite them in and tell them
    something about how this process is working, and then it occurs to me that in
    addition to those who we' ve flagged as — on the basis that they wanted to be asked
    certain questions in private instead of in public, private meaning in the presence
    of the   attorneys,       the    defendants,    the   clerk, so    on —it    doesn' t mean absolute
    privacy, but it     means outside       of what' s    open   to the   general public —and         that' s a
    procedure we generally affordjurors out ofrespectfor their privacy. They' re not
    the ones on trial here, and sometimes there are personal and embarrassing matters
    that they want to properly disclose, but shouldn' t be made to do so in the glare of
    the whole community necessarily.
    But that in addition to those that have answered " yes" to the question that
    they need to answer certain questions in private, there are some others who' ve
    indicated they know something about this case from the media, and it seems it
    might be prudent to talk to some of those individuals in private so that the
    questions they answer don' t educate the other jurors who profess to not know
    anything about this in the media and that maybe we should expand that group to
    include those individuals and ask them media- related questions at the same time,
    3
    No. 37217 -7 -II
    and then there might be some of those who have to be excused for cause and
    others who don' t, but then that would give us a pool of jurors from which to pick
    which is more like those with which we are usually faced.
    1 VRP ( Mar. 8, 2004)             at   4 -5 (   emphasis      added).    The State and D' Allesandro agreed that this,
    approach was "      fine"      with    them.'    1 VRP ( Mar. 8, 2004) at 5.
    The trial court then discussed the logistics:
    So you can be thinking about [ identifying those who have had some media
    contact          and   think    need                depth interviews], and I think I' ll invite [ the
    further in -
    entire venire] in, make some preliminary remarks as is usually the case, and then
    explain that we' re going to question those jurors who wanted to be questioned
    privately first.
    Would       you     find    out   if my   regular courtroom    is    available     for that? Or we
    could even clear this courtroom I suppose for that.
    I' m thinking maybe what we' ll do is maybe close this courtroom
    temporarily. I mean the trial' s going to be open to the public, but for these in
    camera           interviews,     maybe we'       ll just   ask members   of the   public   to   leave. Then we
    don' t have to upset the counsel table, the court reporter and everybody else, and
    then open the door again to whoever wants to attend once we' re not talking
    privately with a particular juror. I think that might be a way to do that.
    I    see    there'    s   some     observers     here, which are welcome to be here
    throughout the trial, but what we' re talking about is how do we pick everybody
    else   up       and move       them     into the judge'      s chambers?      There' s quite a few people
    here to      even       fit into   a   judge'   s chambers plus a     juror.     Our chambers are not that
    large so I think that' s the common -sense way to do this.
    All right. So anything else before we invite the venire to come in?
    1 VRP ( Mar. 8, 2004) at 7 -8. The State commented that it had nothing further; neither defendant
    The State then asked the trial court whether it was going to question individually those potential
    jurors who had said they knew about the case, even if they had no recollection of any of the
    details. The trial court replied that it would not question every potential juror who had heard
    about the case. The court then directed counsel to
    indicate for [the court] out of those who have had some media contact, those they
    think need further in -
    depth interviews so questions can be asked that don' t
    necessarily educate the balance of the jury about what was reported, especially in
    the most recent article yesterday which was quite revealing.
    1 VRP (Mar. 8, 2004) at 6 -7.
    0
    No. 37217 - -II
    7
    responded or objected.
    The trial court then invited the venire into the courtroom and announced:
    Because there are so many of you and because there was a special questionnaire
    we couldn' t use the usual process that is ordinarily used, so what you' ve begun to
    go through, and what you' ll go through for the balance of the day, I want you to
    know is not how we ordinarily do things in Thurston County Superior Court, and
    the reason that this case is different is because instead of the 35 jurors we usually
    have,     we      have     over   90 jurors,    and not   every        case   has   a questionnaire.            This case
    does. One of the things on this questionnaire asked if certain people want to be
    asked certain questions outside the view of the community, which we generally
    allow for jurors' privacy, and all of those things take time.
    We' re going to do the           voir   dire in this      courtroom      because      of    its   size.   It' s
    the   ceremonial courtroom and                it' s the largest   courtroom        in the   building.         Once we
    get down to the actual jury, which will be 14 jurors, we' ll move up to courtroom
    208, which is department five where I usually sit as the judge in that courtroom.
    The way we' re going to proceed is I' m going to give you some introductory
    remarks         continuing        on   what     I' m   saying     now,       introduce you to the major
    participants, give you your oath as                 jurors,   and     then —I think it makes more sense
    and    is   a   better   use of everyone' s       time —begin          the questioning of the jurors who
    either have asked to be questioned about certain things in private plus certain
    jurors that the attorneys have selected to ask certain questions in private and see —
    of    those     who are questioned        privately —how many                of   those   leave   us.     Then we' ll
    come back with the remaining venire and handle it in a more regular way.
    1 VRP ( Mar. 8, 2004) at 8, 9, 10.
    The trial court identified 18 prospective jurors by number as " jurors who indicated they
    had individual         questions."         1 VRP ( Mar. 8, 2004)           at   22.    Each defense counsel selected at least
    one of     these   jurors for the initial         private    interviews.        The trial court then told the remaining jury
    pool, "[   A] 11 those       except    the   ones   that   were named, you' re excused"                for the       next    two hours.   1
    VRP ( Mar. 8, 2004) at 24.
    After the venire left the courtroom, the trial court commented that ordinarily it would
    take each juror into chambers with the clerk, court reporter, the attorneys, and defendants to
    E
    No. 37217 -7 -II
    undergo    questioning in      private ";     but because there were too many people to fit into chambers, it
    was    going to " turn this     courtroom      into the judge'     s chambers,"    which meant that it was " going to
    ask all   the   public   to   now   leave,   except   for the jurors."      1 VRP ( Mar. 8, 2004)      at    25.   The parties
    do not dispute that the trial court did not expressly address the five Bone -Club factors on the
    record before temporarily closing the courtroom to the public to question prospective jurors in
    private. See Bone 
    -Club 128 Wash. 2d at 258
    -59.
    This   closed portion of       the   proceedings was conducted on           the   record.    The trial court and
    the parties individually questioned approximately 27 prospective jurors, nearly one -third of the
    jury    pool.     The trial court excused approximately 14 prospective jurors for cause, health
    concerns,       and work conflicts.          The trial court then asked the remaining prospective jurors to
    reenter the courtroom for general voir dire; it is not clear from the record whether the trial court
    also allowed members of the public or the defendants' families to reenter the courtroom at this
    time.
    II. POST -TRIAL PROCEDURE
    A. Direct Appeal
    On direct appeal to this court, D' Allesandro asserted in his pro se Statement of
    Additional Grounds ( SAG)             6 that the trial court had violated his public trial rights by closing the
    courtroom       during    a portion of       jury   selection.   Celebisoy,    
    2006 WL 14519
    ,         at *   9.    In a January
    2006    unpublished opinion, we rejected               this   argument "[   b] ecause the trial court took this action at
    6 RAP 10. 10.
    l
    No. 37217 -7 -II
    D' Allesandro'   s request       to   protect    his    right   to   a    fair   and   impartial     jury." Celebisoy, 
    2006 WL 14519
    , at * 9. We explained:
    The doctrine of invited error " prohibits a party from setting up an error at
    trial and then complaining                of    it   on appeal."          State v. Pam, 
    101 Wash. 2d 507
    , 511,
    
    680 P.2d 762
    ( 1984),           overruled on other grounds [ by] State v. Olson, 
    126 Wash. 2d 315
    , 
    893 P.2d 629
    ( 1995).                 Moreover, we note that D' Allesandro has failed to
    demonstrate any prejudice flowing from the trial court' s limited interviewing of
    potentially tainted jurors in              camera, as         he      requested.     Thus, D' Allesandro' s claim
    fails.
    Celebisoy,    
    2006 WL 14519
    ,           at *    10 ( emphasis added).
    In a footnote related to this analysis, this court quoted D' Allesandro' s counsel' s request,
    which request    is   quoted      in full     above.        But this quoted material omitted the last line of defense
    counsel' s   statement     in    which counsel              qualified     his    request    by    stating, `` By   that, I mean apart
    7 We further explained:
    We note our Supreme Court' s recent decision in State v. Brightman, 
    155 Wash. 2d 506
    , 517 -18, 
    122 P.3d 150
    ( 2005),                     which followed In re Personal. Restraint of
    Orange, 
    152 Wash. 2d 795
    , 
    100 P.3d 291
    ( 2004),                      in holding that the trial court erred
    in closing the courtroom to spectators .during the entire jury selection process,
    even though the defendant did not object to the closure.
    Even assuming, without deciding, that the partial courtroom closure here
    rose to the level of the closures in Brightman and Orange, these cases are
    distinguishable.           D' Allesandro not only failed to object to the closure, as in
    Brightman and Orange; but also he expressly requested in camera interviews of
    prospective jurors in order to avoid tainting the jury pool. The trial court granted
    this request for a limited time and a limited purpose, resulting in excusing several
    potentially tainted jurors for cause.
    We acknowledge that our review would have been easier had the trial
    court articulated its application of the five Brightman and [ Bone -Club] factors
    before granting D' Allesandro' s request to exclude the public from this limited
    portion       of   the   jury    voir     dire.         We        further      note,      however, that        even had
    D' Allesandro           not   requested        limited ``.``closure"             of   the    courtroom, (   1)    such in
    camera interviews are appropriate, and ( 2) it could be a legitimate trial strategy
    not to object where such proceedings preserve the impartiality of the jury pool.
    Celebisoy,   
    2006 WL 14519
    ,            at *   10 n. 13 ( emphasis added).
    7
    No. 37217 -7 -II
    from   the remaining    prospective         jurors."      1 VRP ( Mar. 8, 2004)                   at   2(   emphasis    added).       We
    8
    affirmed    D' Allesandro'      s   conviction,       vacated        his    exceptional         sentence     under     Blakely,       and
    remanded    for resentencing.          Celebisoy,     
    2006 WL 14519
    ,               at *   16.
    B. Petition for Review
    In February 2006, D' Allesandro' s appellate counsel petitioned the Washington State
    Supreme Court for review of our decision. Appellate counsel' s sole argument in the petition was
    that the trial court had erred in denying D' Allesandro' s request for a lesser included instruction.
    Four months later, in June 2006, the Court issued State v. Easterling, 
    157 Wash. 2d 167
    ,
    9
    
    137 P.3d 825
    ( 2006),          holding that the trial court had committed reversible error in closing the
    courtroom to Easterling and to the public during a pretrial hearing on his co- defendant' s motion
    to sever jury trials without first conducting a Bone -Club analysis. 
    Easterling, 157 Wash. 2d at 171
    -
    72.    The Court declared: "           The presumptive remedy. for a public trial right violation is reversal
    and remand    for   a new   trial."     
    Easterling, 157 Wash. 2d at 174
    .
    D' Allesandro'     s    petition   for   review       was         still   pending.        D' Allesandro contacted his
    appellate counsel and asked her to raise the Bone -Club challenge based on the Supreme Court' s
    new    Easterling    decision.         Appellate counsel responded that if the Court denied review of
    D' Allesandro'   s petition      for   review,   he   could   file   a personal restraint petition ( PRP),              " arguing any
    8
    Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S. Ct. 2531
    , 
    159 L. Ed. 2d 403
    ( 2004).
    9 Our Supreme Court granted review of Easterling in July 2005, after D' Allesandro' s trial, but
    before   appellate   counsel        filed D' Allesandro'       s petition          for    review.      The Supreme Court heard
    argument    in November 2005, three              months   before D' Allesandro'                 s petition   for   review.
    No. 37217 -7 -II
    issue he feels the          court should consider             including        those   related   to the   Easterling decision."    PRP
    at App. H.
    On October 10,                 our   Supreme Court denied             review.    State v. Celebisoy, 
    158 Wash. 2d 1004
    2006).        We mandated the direct appeal, and on November 28, the trial court resentenced
    D' Allesandro.
    As previously              suggested       by his   appellate counsel,        D' Allesandro filed the instant PRP. In
    support,       he    attached        declarations from his            mother      and    father stating that ( 1)       they had been
    excluded       from the          courtroom          during   at   least   a portion of voir       dire; (   2) they had .wanted to be
    present       during      voir   dire to   show support of their son             but   were excluded, (       3) they were not offered
    the    opportunity to               object,    and (   4)    they would have objected if they had been given the
    opportunity.          His mother also declared that she and D' Allesandro' s father had approached the
    bailiff before leaving the courtroom, explained that D' Allesandro was their son, but were told to
    leave.        PRP     App.          E.    D' Allesandro'      s    father further declared: "         I know that prior to being
    excluded, defense counsel asked the judge ( at [ a] sidebar) if the parents of both defendants could
    10
    stay for      voir   dire. "         PRP App. F.
    We    set   D' Allesandro'        s   PRP for       oral argument    before    a panel of       judges.   Before the first
    oral argument, the panel requested and received supplemental briefing on our Supreme Court' s
    then    recent "     Bone- Club" decisions in State                  v.   Strode, 
    167 Wash. 2d 222
    , 
    217 P.3d 310
    ( 2009),             and
    State    v.   Momah, 
    167 Wash. 2d 140
    , 
    217 P.3d 321
    ( 2009), and our then recent decisions in State v.
    io We note that the record does show that an untranscribed sidebar conference occurred at this
    point in the proceedings. See 1 VRP (Mar. 8, 2004) at 25 -26.
    0
    No. 37217 -7 -II
    Paumier, 155 Wn.         App.    673, 
    230 P.3d 212
    ( 2010),      affd, 
    176 Wash. 2d 29
    , 
    288 P.3d 1126
    ( 2012),
    and   State    v.   Bowen, 157 Wn.      App.   821, 
    239 P.3d 1114
    ( 2010).        The panel heard argument on
    September 3, 2010, and then stayed this case pending our Supreme Court' s decisions in State v.
    Wise, 
    176 Wash. 2d 1
    , 
    288 P.3d 1113
    ( 2012)° and Paumier.
    We lifted the stay in November 2012, after which the parties filed supplemental briefs
    addressing our Supreme Court' s most recent public trial decisions in Wise, Paumier, In re Pers.
    Restraint of Morris, 
    176 Wash. 2d 1
    57, 
    288 P.3d 1140
    ( 2012), and State v. Sublett, 
    176 Wash. 2d 58
    ,
    
    292 P.3d 715
    ( 2012). 11       We then set the case for a second oral argument before a panel of judges.
    ANALYSIS
    D' Allesandro      argues that appellate         counsel      on direct appeal rendered ineffective
    assistance because had she raised the Bone -Club issue and cited Easterling in his petition for
    review, the Supreme Court would have granted review and reversed on grounds of structural
    error and automatic prejudice, and because our opinion in his direct appeal conflicts with the
    Supreme Court' s later -decided Easterling opinion on this issue. We agree.
    11
    The   parties    have   also   filed
    several statements of additional authority.  The State filed an
    additional authority citing State v. Halverson,      Wn. App. _,    
    309 P.3d 795
    , 795 -96 ( 2013),
    petition for review filed, No. 89461 -2 ( Wash. Oct. 23, 2013), in which we rejected a public trial
    violation claim ( based on          questioning   a   sitting juror in   a closed courtroom).   Here, however, we
    do not reach D' Allesandro' s second public trial issue involving the trial court' s questioning of a
    sitting juror; therefore, we do not further consider Halverson. D' Allesandro filed an additional
    authority citing In re Pers. Restraint of Brockie,     Wn.2d _,    
    309 P.3d 498
    , 502 n.2 ( 2013),
    which mentions cases addressing the standard of review applied to issues that are per se
    prejudicial on direct appeal when those issues are raised collaterally in personal restraint
    petitions.     Because we address the public trial issue here as an ineffective assistance of appellate
    counsel       claim (emanating from D' Allesando' s earlier direct appeal), we need not address the
    standard      discussed in Brockie. We do, however, address D' Allesando' s additional authority In
    re Pers. Restraint ofNetherton, 
    177 Wash. 2d 798
    , 801; 
    306 P.3d 918
    ( 2013).
    10
    No. 37217 -7 -II
    I. APPLICABLE STANDARDS OF REVIEW
    Generally,    to be   entitled   to   relief, a   timely PRP12 petitioner must establish " either that he
    or she was actually and substantially prejudiced by constitutional error or that his or her trial
    suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a
    complete miscarriage of justice."         In re Pers. Restraint ofFinstad, 
    177 Wash. 2d 501
    , 506, 
    301 P.3d 450
    ( 2013) (   citing In re Pers. Restraint of Elmore, 
    162 Wash. 2d 236
    , 251, 
    172 P.3d 335
    ( 2007)).
    Courts apply this heightened standard of review to promote finality when the petitioner has had
    previous opportunities        for judicial     review.     See In re Pers. Restraint of Coats, 
    173 Wash. 2d 123
    ,
    132, 
    267 P.3d 324
    ( 2011) ( citing 
    Elmore, 162 Wash. 2d at 251
    ( heightened      standard);   In re Pers.
    Restraint of Isadore, 
    151 Wash. 2d 294
    , 299, 
    88 P.3d 390
    ( 2004) ( no                     prior opportunity for review);
    In re Pers. Restraint of Cook, 
    114 Wash. 2d 802
    , 810 -12, 
    792 P.2d 506
    ( 1990)).
    But when, as is the case in an ineffective assistance of appellate counsel claim, the
    petitioner has not had a previous opportunity to obtain judicial review, this heightened standard
    does   not   apply. 
    Coats, 173 Wash. 2d at 132
    ; 
    Isadore, 151 Wash. 2d at 299
    . Instead, "[ t] o prevail on a
    claim of     ineffective   assistance of appellate counsel, [         Petitioner] must demonstrate the merit of
    any legal issue    appellate counsel          raised   inadequately   or   failed to   raise and also show [ ]    he was
    prejudiced."     See In re Pers. Restraint ofNetherton, 
    177 Wash. 2d 798
    , 801, 
    306 P.3d 918
    ( 2013)
    citing In re Pers. Restraint of Lord, 
    123 Wash. 2d 296
    , 314, 
    868 P.2d 835
    , cent. denied, 
    513 U.S. 12
    The parties agree that D' Allesandro' s PRP is timely under In re Pers. Restraint of Skylstad,
    
    160 Wash. 2d 944
    , 949 -51, 
    162 P.3d 413
    ( 2007).
    11
    No. 37217 -7 -II
    849 ( 1994));   see also 
    Morris, 176 Wash. 2d at 166
    ( citing Smith v. Robbins, 
    528 U.S. 259
    , 285, 
    120 S. Ct. 746
    , 
    145 L. Ed. 2d 756
    ( 2000); 
    Orange, 152 Wash. 2d at 814
    )).
    B. Ineffective Assistance of Appellate Counsel
    To establish deficient performance by appellate counsel, D' Allesandro must show that his
    appellate counsel should have known, but failed, to raise the public trial issue in the petition for
    review.    See 
    Morris, 176 Wash. 2d at 167
    .     To establish prejudice, D' Allesandro must show that
    had   appellate counsel    included the   public        trial issue   in the   petition   for   review, (   1) the Supreme
    Court    would   have     granted   review,     and (    2) the Court would have reversed D' Allesandro' s
    conviction or remanded the case back to this court and we would have reversed the conviction.
    See 
    Netherton, 177 Wash. 2d at 801
    .
    C. Public Trial Rights
    We review whether the trial court has violated a defendant' s public trial right de novo.
    
    Sublett, 176 Wash. 2d at 70
    ( citing 
    Momah, 167 Wash. 2d at 147
    -48 ( citing Bone 
    -Club, 128 Wash. 2d at 256
    )).    Additionally,
    There is a strong presumption that courts are to be open at all stages of the trial.
    A criminal defendant' s right to a public trial is found in article I, section 22 of the
    Washington State Constitution and the Sixth Amendment to the United States
    Constitution, both of which provide a criminal defendant with a " public trial by an
    impartial, jury." The public trial right is not absolute but may be overcome to
    serve an overriding interest based on findings that closure is essential and
    narrowly tailored to      preserve   higher     values.     Waller v. Georgia, 
    467 U.S. 39
    , 45,
    
    104 S. Ct. 2210
    , 
    81 L. Ed. 2d 31
    ( 1984).
    12
    No. 37217 -7 -II
    
    Sublett, 176 Wash. 2d at 70
    -71 ( footnote   omitted).   And "[ i]t is well settled that the public trial right
    extends    to   jury     selection [    including]     the questioning    of   individual   prospective   jurors."   In re
    13
    Pers. Restraint of Copland, 176 Wn.                 App.    432, 439, 
    309 P.3d 626
    ( 2013).
    II. FAILURE TO CHALLENGE CLOSED COURTROOM IN DIRECT APPEAL PETITION FOR REVIEW
    We agree with D' Allesandro that our Supreme Court likely would have taken review of
    his Bone -Club public trial issue and reversed his conviction if his appellate counsel had raised it
    in his direct appeal petition for review because ( 1) the Supreme court issued Easterling while
    D' Allesandro'      s petition was         pending; (   2) Easterling clearly established that ( a) the waiver and
    invited error doctrines do not apply in the public trial context because it is the trial court' s
    responsibility to examine the Bone -Club factors, even when the defense requests courtroom
    14
    closure,        and ( b) such closures are per se prejudicial, calling for automatic reversal and remand
    for   a   new    trial   on    direct    appeal;   and (   3)   our decision in D' Allesandro' s direct appeal was
    contrary to the Supreme Court' s later -filed Easterling decision.
    A. Deficient Performance
    D' Allesandro first satisfies the deficient performance prong of the ineffective assistance
    of appellate counsel test by showing that counsel should have known to raise the public trial
    issue in the      petition     for    review.   See 
    Morris, 176 Wash. 2d at 167
    .   Counsel filed the petition for
    review in February 2006, just over a year after our Supreme Court issued Orange, four months
    13 Mot. for discretionary review filed, No. 89368 -3 ( Wash. Oct. 7, 2013).
    14 D' Allesandro also notes that the record shows that he did not ask the trial court to exclude the
    public; thus, waiver /invited error would not have been a bar to raising this issue in the petition
    for review.
    13
    No. 37217 -7 -II
    after the Court issued Brightman, six months after the Court granted review of Easterling, and
    three   months        after   the Court     heard    argument     in    Easterling.      The Court issued its opinion in
    Easterling15 in June 2006, four months before it denied D' Allesandro' s petition for review; in the
    interim, D' Allesandro had specifically brought Easterling to his appellate counsel' s attention
    decision16)
    when    he   asked     her to    add   the Bone -Club issue .(from             our appellate                 to the petition for
    review,      based     on     this   new    Supreme Court decision.                  Instead,    appellate    counsel   advised
    D' Allesandro that he could wait to raise the issue later in a PRP; this advice was deficient given
    the existing higher standard of prejudice necessary to warrant collateral relief, in contrast to the
    per se prejudice rule applicable on direct appeal for this type of public trial violation. See, e. g.,
    
    Copland, 176 Wash. App. at 439
    -41 ( explaining distinction between automatic reversal on direct
    is We agree with the State that the proceeding at issue in Easterling was substantially different
    from the private voir dire issue here. Nevertheless, our Supreme Court' s broadly stated holding
    in Easterling appears to apply to all public trial violations, at least when challenged on direct
    appeal: (    1) "
    The presumptive remedy for a public trial right violation is reversal and remand for
    a new          and ( 2) a defendant " does not waive his right to appeal an improper closure by
    trial,"
    failing to lodge a contemporaneous objection" because it is the trial court' s responsibility to
    resist courtroom closure and to consider the Bone -Club factors regardless of whether there is an
    objection.          
    Easterling, 157 Wash. 2d at 174
    ,   176   n. 8,    181 ( citing 
    Orange, 152 Wash. 2d at 814
    ;
    
    Brightman, 155 Wash. 2d at 514
    -15).
    16 In our previous 2006 opinion in D' Allesandro' s direct appeal, we relied on both invited error
    and  harmless error analyses, both of which the Supreme Court questioned in Easterling. See
    
    Easterling, 157 Wash. 2d at 176
    , 181; see also Celebisoy, 
    2006 WL 14519
    , at * 10. Although
    Easterling discusses waiver rather than invited error, it emphasizes that it is the trial court' s
    responsibility to conduct the Bone -Club analysis before allowing a closure, regardless of whether
    the defendant has             requested    the   closure or not.       Furthermore, if appellate counsel had included
    the public trial issue in D' Allesandro' s petition for review, counsel likely would have discovered
    that we had relied on an incomplete record quotation to support our invited error analysis, which
    undermines that analysis.
    14
    No. 37217 -7 -II
    appeal for public trial violations in contrast to higher standard of showing actual and substantial
    17
    prejudice   necessary to        prevail   in   a   PRP).
    Moreover, close in time to our Supreme Court' s consideration of D' Allesandro' s petition
    18
    for   review,    it   reviewed    and later        accepted     other   similar public    trial   cases     for   review.        For
    example, our Supreme Court issued Orange, Brightman, and Easterling near or shortly after the
    time D' Allesandro' s counsel filed his petition for review, counsel should have been aware that
    the Court was keenly interested in accepting review of cases involving this emerging issue and
    developing      the    public    trial doctrine.           We hold that D' Allesandro has satisfied the deficient
    performance prong of the ineffective assistance of appellate counsel test based on appellate
    counsel' s initial failure and subsequent refusa119 to include the public trial Bone -Club issue in his
    petition for review to our Supreme Court.
    17 Copland also involved the private interviewing of potential jurors, in chambers, rather than in
    open    public    court.    Here, the trial court would have conducted these private interviews in
    chambers     had there been           sufficient       space;    instead, it   sought     to     create "    chambers"       in the
    courtroom by excluding the public, including D' Allesandro' s family, during these individual
    juror interviews.        Division Three, however, denied Copland' s personal restraint petition because
    the trial court had attempted to apply the Bone -Club criteria and because Copland could not meet
    the high PRP standard of showing actual and substantial prejudice in juxtaposition with the
    parties' and trial court' s efforts to insure a fair and impartial jury to try his case ( in contrast to a
    direct appeal, in which prejudice would have been presumed and reversal would have been
    automatic).      
    Copland, 176 Wash. App. at 441
    , 449.
    18
    Most notably, our Supreme Court accepted Division Three' s certification of Strode in
    November 2007 and granted review of Momah in April 2008.
    19 In so holding, it is not our intent to suggest that appellate counsel must always brief and
    include issues that her client requests; on the contrary, we recognize that the right to counsel
    embodies        the    inherent    value       that   professionals      provide   to    their    clients.        But under the
    circumstances of this case, where the issue is whether appellate counsel should have been aware
    of this pivotal issue, that her client specifically raised the issue and she advised him to handle it
    in a later PRP further establishes counsel' s deficient performance.
    15
    No. 37217 -7 -II
    B. Prejudice
    Turning to the second prong of the ineffective assistance of counsel test, D' Allesandro
    shows prejudice,           namely that ( 1)    our Supreme Court likely would have taken direct review or
    remanded the case back to us for reconsideration, and ( 2) his public trial violation claim would
    likely have been successful in winning reversal of his conviction if the Supreme Court had
    granted review of the public trial issue because he would have been entitled to benefit of the per
    se prejudice /automatic reversal rule for this error on direct appeal and remand for a new trial.
    See 
    Netherton, 177 Wash. 2d at 802
    . If appellate counsel here had included the public trial issue in
    D' Allesandro' s petition for review, the Supreme Court likely would either granted review or
    stayed     the     case   pending the   other public    trial cases   it   was   considering. 20   See 
    Netherton, 177 Wash. 2d at 802
    21; see also e. g., 
    Strode, 167 Wash. 2d at 224
    -25 ( certification from Division Three of
    this   court accepted        in November 2007); 
    Momah, 167 Wash. 2d at 140
    ( petition for review granted
    January 2008).
    20
    We fail to perceive how, as the State asserts, the justices considering D' Allesandro' s petition
    for review would have noticed sua sponte the potential public trial issue, in the absence of this
    issue in the        petition.   Although our Supreme Court has authority to review issues not raised by
    the parties, it generally limits its consideration to the issues the parties place before them in the
    petition     for   review and answer.         See RAP 13. 7( b) ( Court limits review to " questions raised in the
    petition for review and the answer, unless the Supreme Court orders otherwise upon granting
    of   the   motion or petition:");     State v. Collins, 
    121 Wash. 2d 168
    , 178, 
    847 P.2d 919
    ( 1993).
    21 Netherton established ineffective assistance of appellate counsel because, if the relevant issue
    had been raised, the Court would have stayed a petition for review of the Netherton' s direct
    appeal pending a similar case on review and, under that other decision, Netherton would have
    been entitled to relief. 
    Netherton, 177 Wash. 2d at 801
    .
    16
    No. 37217 -7 -II
    D' Allesandro also would have been able to establish that his courtroom closure during
    voir dire was the type of closure that our Supreme Court has held establishes per se prejudice
    requiring         automatic reversal on              direct   appeal.        In Wise, a fivejustice majority of our Supreme
    Court held that ( 1) public trial violations during voir dire are per se prejudicial because this is the
    type      of     structural    error    wherein "       it is impossible to show whether the structural error of
    deprivation         of   the   public   trial   right    is   prejudicial ";       and ( 2) the remedy for a voir dire violation
    must      be     a new   trial because it       is   unreasonable           to think that    a "`` redo "'   of voir dire would provide
    an adequate         remedy.        
    Wise, 176 Wash. 2d at 19
    (   emphasis added);       see also Easterling, 
    157 Wash. 2d 22
    at   181.
    In Momah, our Supreme Court found no public trial right violation when the defendant
    proposed closing the 
    courtroom. 167 Wash. 2d at 151
    -52. Arguably, the facts here are similar. But
    our Supreme Court seems to be retreating from Momah, by recently noting, for example, that
    Momah "          presented a unique confluence of                    facts."       
    Wise, 176 Wash. 2d at 14
    -15; see also 
    Paumier, 176 Wash. 2d at 35
    -36.    Furthermore, unlike in Momah, the full quote from the record here ( in
    contrast to the truncated quote in our 2006 opinion) arguably shows that D' Allesandro' s counsel
    did not ask the trial court to exclude the public from the individual juror voir dire; rather, defense
    counsel          asked    that the      individual           voir    dire simply take          place "      apart from the remaining
    22
    In   Easterling ( which did            not      involve        jury    voir   dire),   a sevenjustice majority ruled that ( 1)
    denial of the right to a public trial " is one of the limited classes of fundamental rights not subject
    to harmless         error analysis,"       and ( 2)p] rejudice is necessarily presumed where a violation of the
    "[
    public      trial   right 
    occurs." 157 Wash. 2d at 181
    ( citing Bone 
    -Club, 128 Wash. 2d at 261
    -62; Neder v.
    United States, 
    527 U.S. 1
    , 8, 
    119 S. Ct. 1827
    , 
    144 L. Ed. 2d 35
    ( 1999)).
    17
    No. 37217 -7 -I1
    23
    prospective jurors. "      1 VRP ( Mar. 8, 2004)           at   2 -3 (   emphasis       added).    And, again unlike in
    Momah, the trial      court    here,    rather   than    D' Aliesandro,          expanded the scope from private
    questioning about personal matters to include questioning potential jurors about media exposure
    a topic that is not likely to be embarrassing or difficult for a potential juror to talk about in
    public).
    Although the   trial   court' s    statements    here         noted   public    trial    rights   generally,   its
    statements also suggested that it was the trial court' s common practice to conduct private voir
    dire on certain private or personal topics in chambers and that the trial court may have believed
    24
    that only the evidentiary     phase    of the trial   was required       to be   open   to the   public.     Finally, unlike
    in Momah, (    1) there is nothing in the record suggesting that the parties and the court otherwise
    discussed how to tailor any closures narrowly, or the public' s right to presence during this part of
    the proceedings25; and ( 2) the trial court did not address the Bone -Club factors on the record,
    Additionally, although D' Allesandro' s counsel proposed the jury questionnaire that advised
    the jurors that they could request to be questioned in private, there is nothing in the record
    showing that D' Allesandro knew that this procedure could potentially implicate his public trial
    rights or that defense counsel' s questionnaire did not merely reflect the standard procedure for
    this   courtroom.   Furthermore, the         questionnaire      did      not   explain what " private"        meant:   That
    explanation was contained in a cover sheet, which the record does not show or even suggest was
    drafted by defense counsel rather than by the court.
    24
    Given that Orange was not filed until eight months after this trial, it is understandable that the
    trial court may not have considered jury selection to be subject to public trial requirements.
    25
    Nor is there any indication in the record that other factors ( such as lack of space) would have
    interfered with questioning the jurors individually in public about their media exposure because
    the trial court questioned the individual jurors in an empty courtroom and the record does not
    show that there were any space issues during this part of the proceedings.
    18
    No. 37217 -7 -II
    26
    either   explicitly,      or   implicitly    as    did the trial    court     in Momah.           As in Morris,. we find
    27
    prejudice here in the fact that if appellate counsel had raised the public trial issue on direct
    appeal, D' Allesandro would have received a new trial due to structural error.28 See 
    Copland, 176 Wash. App. at 440
    .
    We hold that D' Allesandro has shown that ( 1) had counsel raised this public trial issue in
    the petition for review, our Supreme Court would have likely either accepted review or stayed
    the    petition    for   review    pending        other   public   trial    cases   it had   accepted   for   review; (   2) the
    Supreme Court would have held that the trial court violated D' Allesandro' s public trial rights,
    which constituted per se prejudice on direct appeal, or at least remanded to our court to address
    this issue;   and (      3)    D' Allesandro would have been entitled to reversal of his conviction and
    26
    See 
    Wise, 176 Wash. 2d at 12
    -13.    See also 
    Strode, 167 Wash. 2d at 228
    -29; and 232, 234 -36 ( J.
    Fairhurst concurring).
    
    27 176 Wash. 2d at 167
    -68.
    28 To underscore our conclusion about the likelihood of D' Allesandro' s success on direct appeal
    had appellate counsel pursued it, we note several recent Supreme Court opinions addressing the
    public trial issue in the jury voir dire context, holding that, at least on direct review, interviewing
    jurors in private without first conducting a Bone -Club analysis is a structural error that is per se
    prejudicial       warranting      reversal and not subject         to   a   harmless   error analysis.    See e. g., 
    Paumier, 176 Wash. 2d at 32
    , 35; 
    Wise, 176 Wash. 2d at 14
    -15.
    19
    No. 37217 -7 -II
    remand for a new trial.
    Accordingly, we grant D' Allesandro' s PRP and deny the State' s request for costs under
    RCW 10. 73. 160.
    i-
    Hunt, J.
    I
    We   con
    IIA
    Woswick, C. J.
    c.l .
    Maxa, J.
    20