In re the Personal Restraint of Speight

C. Johnson, J.

¶1 Petitioner Ronald Speight filed a timely personal restraint petition, claiming for the first time on collateral review that his right to a public trial under article I, section 22 of the Washington State Constitution, was violated when the trial court decided motions in limine and individually questioned potential jurors in chambers.¹ While Speight’s public trial right claim has merit, his petition must be denied. Consistent with our holding in In re Personal Restraint of Coggin, 182 Wn.2d 115, 340 P.3d 810 (2014) (plurality opinion), a petitioner claiming a public trial right violation for the first time on collateral review must show actual and substantial prejudice. Speight cannot show actual and substantial prejudice arising from the closure; therefore, his petition is denied.

Facts and Procedural History

¶2 On December 3, 2004, Speight drove Kelly Nixon to an inn where Speight was performing routine maintenance as a caretaker. While at the inn, Speight forced Nixon into oral and vaginal intercourse, resulting in torn clothing and injuries to Nixon’s face and leg.

¶3 Speight was charged with second degree rape in San Juan County. At the beginning of jury selection, the judge had jurors fill out questionnaires regarding any experiences they may have had with a sexual offense. While the jurors were filling out these questionnaires, the trial judge, counsel, the clerk, the sheriff’s deputy, and the court reporter went into the judge’s chambers for motions in limine. Then, in response to the juror’s answers to the questionnaires, 14 prospective jurors were questioned in chambers without the court engaging in the analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Several prospective jurors were then excused or dismissed for cause.

¶4 Speight was convicted of second degree rape, and in 2006, the Court of Appeals affirmed his convictions in an unpublished opinion.² Speight filed a timely personal restraint petition in 2007, arguing that his right to a public trial was violated during the in-chambers conference regarding the motions in limine and the individual questioning of jurors.³ Division One stayed the petition multiple times, pending decisions by this court. Division One of the Court of Appeals then certified the case to this court in December 2013, alongside Coggin.

Analysis

¶5 Speight claims that he was denied his constitutional public trial right during pretrial in-limine rulings and the jury selection process. A criminal defendant has a right to a public trial as guaranteed by our state and federal constitutions. U.S. Const. amend. VI; Wash. Const, art. I, § 22 (providing “the accused shall have the right ... to have a speedy public trial”); State v. Paumier, 176 Wn.2d 29, 34, 288 P.3d 1126 (2012).

¶6 We have repeatedly held that the public trial right applies to jury selection. Specifically, it is well established that the public trial right in voir dire proceedings extends to the questioning of individual prospective jurors. State v. Wise, 176 Wn.2d 1, 16-19, 288 P.3d 1113 (2012). While the right to a public trial is not absolute, the trial court here did not conduct the analysis required by Bone-Club either implicitly or explicitly and therefore the closure violated the defendant’s right to a public trial. The State argues that the closure satisfies the five factors required by Bone-Club, but “[a] trial court is required to consider the Bone-Club factors before closing a trial proceeding that should be public.” Wise, 176 Wn.2d at 12 (citing Bone-Club, 128 Wn.2d at 261). From the record, the trial court did not consider any of these factors in its decision whether to question individual jurors in chambers. Moreover, a trial court should “ ‘resist a closure motion except under the most unusual circumstances.’ ” Wise, 176 Wn.2d at 11 (quoting Bone-Club, 128 Wn.2d at 259). Here, the defendant’s constitutional right to a public trial was violated.

¶7 We have not yet addressed whether a closure occurs when a trial judge discusses and rules on motions in limine in chambers. This court uses the experience and logic test to evaluate whether a particular proceeding implicates the public trial right. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (plurality opinion). In State v. Smith, 181 Wn.2d 508, 334 P.3d 1049 (2014), we alluded to the fact that evidentiary motions may not implicate the public trial right, but because sidebars, and not evidentiary conferences, were at issue in that case we did not decide definitively one way or the other. See Smith, 181 Wn.2d at 512 n.3 (“Although the parties disagreed about whether to characterize these hallway conferences as ‘sidebars’ or something else, we analyze them as sidebars here because that is the role these conferences played in the trial. The analysis would not change for on the record evidentiary conferences in chambers.”). Since jurors were privately questioned, a closure occurred, and we need not decide whether a second closure exists in this case.

¶8 Because Speight’s public trial right violation has merit, we must determine whether he must show that he was actually and substantially prejudiced by the violation. We addressed the issue — whether actual and substantial prejudice must be shown from a public trial right violation in order to obtain relief by personal restraint petition — in Coggin. Because the issue is identical and the facts are similar, we incorporate the reasoning from that case here. To summarize, generally, for a petitioner to prevail on collateral review, the petitioner must establish by a preponderance of the evidence that the constitutional error worked to his actual and substantial prejudice. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992). We carved out an exception to this general rule in In re Personal Restraint of Morris, 176 Wn.2d 157, 166, 288 P.3d 1140 (2012) (plurality opinion), where we held that we will presume prejudice for a petitioner who alleges a public trial right violation through an ineffective assistance of appellate counsel claim. But in Coggin we refused to extend this exception any further and held that our interest in finality required us to draw a line and not presume prejudice when a petitioner raises a public trial right violation for the first time on collateral review. Coggin, 182 Wn.2d at 121-22. Therefore, in Coggin we held that a petitioner claiming a public trial right violation for the first time on collateral review must comply with the general rule for personal restraint petitions and show actual and substantial prejudice.

¶9 As a result, Speight can prevail only if he can show that the public trial right violation actually and substantially prejudiced him. Speight does not argue that he was actually and substantially prejudiced, nor do the facts suggest that he was. As a result of the individual questioning, he likely received a more fair trial and an impartial jury.

Conclusion

¶10 The petition is denied.

Wiggins and González, JJ., and Kulik, J. Pro Tem., concur.

1 This case was certified to this court by Division One of the Court of Appeals with In re Personal Restraint of Coggin, 182 Wn.2d 115, 340 P.3d 810 (2014) (plurality opinion). Both cases present the same central issue but were not consolidated.

2 State v. Speight, noted at 136 Wn. App. 1006 (2006).

3 In his opening brief, Speight asserts that his article I, section 22 rights to a public trial and the public’s and press’s article I, section 10 rights to a public trial were violated. Wash. Const, art. I, §§ 10, 22. However, Speight does not further analyze whether the public’s right was violated during the individual questioning of jurors or when the motions in limine were decided in chambers. Therefore, we will analyze only the public trial right issue under article I, section 22.