Personal Restraint Petition Of John Allen Whitaker ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
IN THE MATTER OF THE ) No. 61980-2-1 r*o
COO
PERSONAL RESTRAINT OF t~j :>^
JOHN ALLEN WHITAKER, ) DIVISION ONE !Z^'-'
) UNPUBLISHED OPINION —4 3^
Tb> t o f-n
Petitioner. ) FILED: JUN 1 7 2013 9?
CD —
crv
PER CURIAM — John Whitaker was convicted in 2004 following a jury trial of
aggravated murder in the first degree and conspiracy to commit murder in the first degree
in Snohomish County Cause No. 02-1-02368-6. He was sentenced to life imprisonment
without the possibility of parole. This court affirmed Whitaker's convictions on appeal.
See No. 54834-4-I. Whitaker filed a personal restraint petition alleging, among other
things, that his right to a public trial was violated when sixjurors were individually
questioned in a closed courtroom during voir dire.
The State concedes that recent Washington Supreme Court authority settles the
following issues: (1) jury voir dire is an established proceeding to which the public trial
right applies, and (2) closing the courtroom during voir direwithout first conducting a
Bone-Club1 analysis is a structural error, requiring reversal ofa defendant's convictions.
See State v. Paumier, 176 Wn 2d 29. 35-37. 288 P.3d 1126 (2012): State v. Wise, 176
Wn.2d 1, 19-20, 288 P.3d 1113 (2012). The State further concedes that this case is
1State v. Bone-Club. 128 Wn.2d 254, 906 P.2d 325 (1995).
No. 61980-2-1/2
analogous to In re Pers. Restraint of Morris, 176Wn.2d 157, 288 P.3d 1140(2012). In
Morris, the trial court privately questioned 14 jurors in chambers without considering the
Bone-Club factors. In re Morris, 176 Wn2d at 161-62. In the context of resolving Morris's
personal restraint petition, the Supreme Court held that appellate counsel's failure to raise
the court closure issue on appeal was both deficient and prejudicial because the error
would have been presumed prejudicial on direct review. In re Morris, 176 Wn.2d at 166-
68. The State concedes that as in Morris, Whitaker is entitled to a new trial because
appellate counsel did not raise the courtroom closure issue on appeal. In re Morris, 176
Wn.2dat168.
We accept the State's concession, reverse Whitaker's convictions, and remand for
a new trial.
£f urn\c—
?
k^L
WE CONCUR:
A-4.&.J