Personal Restraint Petition Of Brian A Q Champaco ( 2015 )

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2015 SEP 28 m 8=50
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal NO. 66055-1-1
Restraint Petition of:
DIVISION ONE
BRIAN CHAMPACO,
UNPUBLISHED OPINION
Petitioner.
FILED: September 28, 2015
Lau, J. — During Brian Champaco's trial for attempted first degree rape and first
degree burglary with sexual motivation, the court sealed his competency evaluation and
a defense expert's evaluation prepared during the exploration of a diminished capacity
defense. Following his convictions on both counts and an unsuccessful direct appeal,
Champaco filed this personal restraint petition. The acting chief judge dismissed all
issues in the petition except one—"whether the sealing of Champaco's competency
evaluations violated his right to a public trial and the public's right to open court
records." Because Champaco invited any error regarding his right to a public trial,
seeks relief that is not available on these facts, and does not demonstrate actual and
substantial prejudice, we deny his petition.
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FACTS
Based on allegations that Champaco forced his way into a woman's apartment,
demanded sex, and threatened her with a hammer, the State charged him with
attempted first degree rape and first degree burglary with sexual motivation.
Prior to trial, Champaco received a competency evaluation at Western State
Hospital. When he returned to court, the prosecutor and defense counsel agreed that he
was competent to stand trial. After reviewing the evaluation from Western State, the court
found Champaco competent and entered findings of fact and conclusions of law. The
evaluation was not filed or sealed at that time.
Dr. David White subsequently evaluated Champaco to determine the feasibility of a
diminished capacity defense. In his report, Dr. White concluded that Champaco was
malingering and exaggerating his cognitive deficits. Defense counsel told the court that he
would not be asserting a diminished capacity defense and that Dr. White would not be
called as a witness at trial. The court then suggested that "for potential appellate
review ... I'm going to need a sealed statement from you as to what was involved with
that exploration, what you found out. . ." Report of Proceedings (RP) (Sept. 12, 2007) at
5. The prosecutor stated she had "no objection to filing a copy of Dr. White's report
under seal so it would be part of the record, but not open to the public." RP (Sept. 12,
2007) at 6.
During trial, the parties and the court discussed whether Champaco's evaluations
should be sealed:
[PROSECUTOR]: During pretrials we had talked - - fdefense counsel] and I
had talked, discussed with the Court filing the Western State evaluation with
the defendant, as well as the defense expert's report, I have photocopied
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those, and I have an order for the Court to seal those, to file under seal.
[Defense counsel] has signed off on that and so I'd ask the Court [to] file
these under seal.
THE COURT: Why do they need to be under seal?
[PROSECUTOR]: Sensitive psychological information about the defendant.
It's personal information. We routinely seal the Western State reports. And I
don't think [Dr. White's] report is any different, and I believe under the statute
it's permissible to file these under seal under [RCW] 10.77.
[DEFENSE COUNSEL]: And we did talk about this pretrial on the first week.
And your Honor was assuming that it was filed under seal already, but it had
not been filed under seal, which is why we're providing the seal order.
[PROSECUTOR]: That's correct.
THE COURT: Under State vs lsh[i]kawa, if you file something under seal,
I'm supposed to have a public hearing and opportunity for the press to
appear. And the court, the superior court in general, has been getting
some heat over the last couple of years from the newspapers, specifically
the Seattle Times, for filing things under seal. So that's my only concern
about filing it under seal.
[PROSECUTOR]: I can look up the statutory citation that authorizes the
Court to do that and provide that to the Court. I can let the Court know that
routinely what happens when somebody is found competent and the Court
enters the findings of fact and conclusions of law, the report is filed at that
time under seal with a specific statutory cite on the order to file it under
seal. For whatever reason that just wasn't done in this case and that's
why we're asking to do it now.
THE COURT: I need something on there to tell me this contains sensitive
medical information.
[PROSECUTOR]: I can get that later today, Your Honor.
[DEFENSE COUNSEL]: Yes. Your Honor.
THE COURT: That would help.
RP (Sept. 27, 2007) at 4 (emphasis added). Later, the prosecutor told the court that
"[RCW] 10.77.210 . . . directs that the defendant's mental health record shall remain
private and not subject to public view." RP (Oct. 1, 2007) at 20. She then told the court "I
have prepared an order that includes [the] statutory citation . . . that we would like to file
under seal.... [Defense Counsel] has signed off on that order, your Honor." RP (Oct. 1,
2007) at 20 (emphasis added).
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The jury convicted Champaco of attempted first degree child rape and first degree
burglary with sexual motivation. Champaco appealed to this court and we affirmed.
In October 2010, Champaco filed this personal restraint petition arguing, among
other things, that the trial court violated his right to a public trial and the public's right to
open court records when it sealed his competency and expert evaluations without
making the findings required by Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640
P.2d 716 (1982), and State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
Following several stays, we requested supplemental briefing.
In November 2013, the Acting Chief Judge issued an order dismissing all issues in
the petition except whether sealing Champaco's evaluations violated his right to a public
trial and the public's right to open court records. We subsequently stayed the petition
again pending the State Supreme Court's decisions in In re Coggin, 182 Wn.2d 115, 340
P.3d 810 (2014), and In re Speight. 182 Wn.2d 103, 340 P.3d 207 (2014). Following
those decisions, we lifted the stay and obtained supplemental briefing regarding their
effect on this case.
ANALYSIS
The Washington and United States Constitutions guarantee the right of a criminal
defendant to a public trial. Wash. Const, art. I, section 22; U.S. Const, amend. VI.
Article I, section 10 of the Washington Constitution provides a similar right to the public,
stating that "|j]ustice in all cases shall be administered openly." State v. Lormor, 172
Wn.2d 85, 91, 257 P.3d 624 (2011). These rights ensure that court proceedings and
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court records, including competency evaluations, are presumptively open to the public.1
State v. Chen, 178 Wn.2d 350, 355-56, 309 P.3d 410 (2013). The presumption can be
overcome, and a court record sealed, only if the court finds that the factors discussed in
Ishikawa2 favor sealing. Chen, 178 Wn.2d at 355. To obtain relief for a public trial
violation, a personal restraint petitioner must establish actual and substantial prejudice.
1 These rights apply to both trial and pretrial proceedings. State v. Njonge. 181
Wn.2d 546, 553, 334 P.3d 1068 (2014).
2 The Ishikawa factors are:
1. The proponent of closure and/or sealing must make some
showing of the need therefor. In demonstrating that need, the movant
should state the interests or rights which give rise to that need as
specifically as possible without endangering those interests
If closure and/or sealing is sought to further any right or interest
besides the defendant's right to a fair trial, a "serious and imminent threat
to some other important interest" must be shown.
2. "Anyone present when the closure [and/or sealing] motion is
made must be given an opportunity to object to the [suggested
restriction]."
3. The court, the proponents and the objectors should carefully
analyze whether the requested method for curtailing access would be both
the least restrictive means available and effective in protecting the
interests threatened. . . . If the endangered interests do not include the
defendant's Sixth Amendment rights, that burden rests with the
proponents.
4. "The court must weigh the competing interests of the defendant
and the public", and consider the alternative methods suggested. Its
consideration of these issues should be articulated in its findings and
conclusions, which should be as specific as possible rather than
conclusory. . . .
5. "The order must be no broader in its application or duration than
necessary to serve its purpose . . . ." If the order involves sealing of
records, it shall apply for a specific time period with a burden on the
proponent to come before the court at a time specified to justify continued
sealing.
Ishikawa, 97 Wn.2d at 37-39 (citations omitted). Ishikawa's five-factor standard was
initially used in Article I, section 10 cases and later applied to Article I, section 22 cases
in Bone-Club, 128 Wn.2d at 258-59.
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In re Pers. Restraint of Coggin, 182 Wn.2d at 120-22; In re Pers. Restraint of Speight,
182Wn.2dat107.3
It is undisputed that Champaco's evaluations were court records and that the trial
court failed to apply the Ishikawa factors before granting the parties' joint motion to seal
them. The parties dispute, however, whether any errors arising from the sealing were
invited, whether Champaco must demonstrate actual and substantial prejudice before
he is entitled to relief, and what remedies are available on these facts.
Article I. Section 22 / Defendant's Right to a Public Trial
The State contends Champaco invited any violation of his Article I, section 22
right to a public trial because the prosecution and defense jointly requested the sealing.
Despite the State's arguments and the recent discussion of invited error in Coggin,
Champaco does not address this issue in any of his filings. We conclude any error was
invited.
Under the invited error doctrine, a party may not set up an error at trial and then
complain of it on appeal. In re Pers. Restraint of Copland, 176 Wn. App. 432, 442, 309
P.3d 626 (2013). "To determine whether the invited error doctrine is applicable to a
case, we may consider whether the petitioner 'affirmatively assented to the error,
materially contributed to it, or benefited from it.'" Copland. 176 Wn. App. at 442 (quoting
State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009)). In this case, it is clear
from the record that Champaco's trial counsel and the prosecutor jointly presented the
3Contrary to Champaco's assertions, a majority of the justices in Coggin and
Speight agreed that a personal restraint petitioner must demonstrate actual and
substantial prejudice to obtain relief for a public trial violation. In re Pers. Restraint of
Schreiber. No. 40553-9-II (Wash. Ct. App. July 28, 2015).
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sealing order.4 Although the prosecutor took the lead in presenting the order, the record
indicates that she spoke on behalf of defense counsel as well. It is also clear that
Champaco benefitted from the sealing since the documents contained sensitive mental
health information and suggested he was malingering. In these circumstances,
Champaco invited any error concerning his personal right to a public trial. See Copland.
176 Wn. App. at 442-43 (where defense counsel initiated and participated in the
closure, and the defendant benefitted from it, any error was invited); Coggin, 182 Wn.2d
at 119 (petitioner did not invite error by "merely assenting to the State's juror
questionnaire and where it was the trial judge who decided to question jurors in
chambers").
Alternatively, even if Champaco had not invited the error, the sole remedy he
seeks—a new trial—is unavailable in these circumstances. Both federal and
Washington courts have held that a new trial is not always required for a public trial
violation and that "'the remedy should be appropriate to the violation.'" State v. Rainev,
180 Wn. App. 830, 843 n.38, 327 P.3d 56 (2014) (quoting Waller v. Georgia, 467 U.S.
39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) and holding that violation of public trial
right during posttrial hearing required remand for new posttrial hearing, not new trial).5
4 In a declaration submitted with Champaco's personal restraint petition,
Champaco's trial counsel states that "the judge asked to see a copy of the mental status
evaluations of Mr. Champaco conducted by Western State Hospital and the
psychologist who we retained. I provided copies to the judge under seal." (Emphasis
added).
5 See also Gibbons v. Savage. 555 F.3d 112, 120 (2d Cir.). cert, denied, 558 U.S.
932, (2009) ("It does not necessarily follow, however, that every deprivation in a
category considered to be 'structural' constitutes a violation of the Constitution or
requires reversal of the conviction, no matter how brief the deprivation or how trivial the
proceedings that occurred during the period of deprivation."); Hoi Man Yung v. Walker,
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In State v. Nionge. 181 Wn.2d 546, 554 n.3, 334 P.3d 1068 (2014), the Washington
Supreme Court stated:
Where the error involves only the closure of a pretrial proceeding that can
be repeated without any effect on the trial, a lesser remedy [than a new
trial] may be appropriate. See Waller. 467 U.S. at 40 (directing new
suppression hearing and noting, "A new trial need be held only if a new,
public suppression hearing results in the suppression of material evidence
not suppressed at the first trial or in some other material change in the
positions of the parties.").
Accord State v. Wise, 176 Wn.2d 1, 19, 288 P.3d 1113 (2012). Thus, even if error, the
sealing of evaluations used in an uncontested pretrial ruling and the pretrial exploration
of an unasserted defense would not warrant a new trial. At most, they would warrant a
remand for reconsideration of the sealing decision following application of the Ishikawa
factors. The remedy Champaco seeks is unavailable on these facts.
Given this conclusion, we need not decide whether the actual and substantial
prejudice requirement announced in Coggin and Speight applies in this case.6
Regardless of whether the requirement applies, Champaco cannot obtain the relief he
seeks. We note, however, that to the extent the requirement applies, Champaco fails to
satisfy it. In fact, he does not even attempt to demonstrate such prejudice. This is not
surprising, since the sealing of evaluations used for an uncontested pretrial competency
determination and an unasserted defense simply could not have affected the outcome
of his trial. There is no showing of actual and substantial prejudice. See In re Pers.
468 F.3d 169, 177 (2nd Cir. 2006) ("new trial is not required to remedy a violation of the
public trial guarantee if some other relief would cure the violation"); Salem v. Yukins,
414 F. Supp. 2d 687 (E.D. Mich. 2006) (appropriate remedy for closing entrapment
hearing was a new entrapment hearing, not a new trial).
6 Champaco contends the prejudice requirement either does not apply here or
applies only to violations of the state, as opposed to the federal, constitutional right to a
public trial.
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Restraint of Schreiber. No. 40553-9-11 (Wash. Ct. App. July 28, 2015); In re Stockwell.
160 Wn. App. 172, 180-81, 248 P.3d 576 (2011).
Article I, Section 10 / Public's Right to Open Proceedings
Champaco also contends that sealing his evaluations violated the public's right to
open proceedings under Article I, section 10. As noted above, once the evaluations
became court records, they were subject "to the constitutional presumption of
openness, which can be rebutted only when the court makes an individualized finding
that the Ishikawa factors weigh in favor of sealing." Chen, 178 Wn.2d at 352. We
conclude, however, that any violation of the public's Article I, section 10 rights is
unavailing for several reasons.
First, Champaco's briefing on this issue is inadequate. He offers no argument or
analysis concerning his standing to assert,7 or the appropriate remedies for, a violation
of the public's right. Our courts have declined to consider conclusory claims based on
the public's right to open proceedings. See State v. Magnano, 181 Wn. App. 689, 693
n.1, 326 P.3d 845 (2014) (failure to provide "separate analysis, argument, or citation to
7 Champaco arguably cannot assert the public's right to open proceedings
because he invited the very closure he challenges on appeal. See generally State v.
Herron, No. 89571-6, slip op. at 9, 12 (Wash. Aug. 20, 2015) (holding that Herron
lacked standing "to assert the general public's right to the open administration of justice"
and that his waiver of his own right to an open courtroom waived that right "for all
purposes"); In re Pet, of Reyes. 176 Wn. App. 821, 845-847, 315 P.3d 532 (2013),
review granted, 182 Wn.2d 1001 (2015) ("If a litigant declines, perhaps for tactical
reasons, to assert his own right to a public hearing, we do not see why he should be
allowed to assert someone else's right to attend. This essentially gives a litigant the
ability to try the case in his preferred manner (without public scrutiny) but obtain a new
trial if things do not go in his favor. ... We conclude that Mr. Reyes lacks standing to
assert the right of others to have attended his hearing.").
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authority regarding the public's right to an open trial."); Coggin, 182 Wn.2d at 117 n.3;
Speight, 182 Wn.2d at 105 n.3.
Second, the sole remedy he seeks—a new trial—is unavailable for the alleged
violation of the public's right to open proceedings. Such violations do not warrant a new
trial absent a violation of the defendant's own right to a public trial. State v. Beskurt,
176 Wn.2d 441, 446, 293 P.3d 1159 (2013); State v. Halverson, 176 Wn. App. 972,
977, 309 p.3d 795 (2013) (citing Beskurt and stating "when an appellant seeks a new
trial to remedy an alleged violation of public's article I, section 10 rights to open
proceedings—without also demonstrating an article I section 22 violation of the
defendant's public trial rights—the alleged error does not warrant a retrial.").
Furthermore, for the reasons discussed in our resolution of Champaco's Article I,
section 22 claim, a new trial is not a remedy "'appropriate to the violation.'" State v.
Rainev, 180 Wn. App. 830, 843 n.38, 327 P.3d 56 (2014) (quoting Waller v. Georgia,
467 U.S. 39, 50, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)); State v. Nionge, 181 Wn.2d
at 554 n.3.
And third, to the extent the actual and substantial prejudice standard applies
here, Champaco fails to satisfy it.
The petition is denied.
WE CONCUR:
JUl, yf
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