     I" 15LbIEV                                                   opinion WasTiled for recora

j oat^an p j m j
MOAaMM'gQ- ^                                                                                   '
  CMIB=JLIS71CF                    COURT OF THE STATE OF WASHINGTON


 In the Matter ofthe Personal Restraint of
                                                               No. 91905-4


 HECTOR SERANO SALINAS,                                       En Banc


                        Respondent.                            Filed -IAN 0 >{ 20t8
                                                      J

         MADSEN,J.—This case addresses the availability and application of the invited

 error doctrine on Hector Serano Salinas's personal restraint petition(PRP), which asserts

 for the first time on collateral review that his public trial right was violated by private

 questioning of some potential jurors in chambers and that his appellate counsel was

 ineffective for failing to raise the public trial right violation on direct review. Based on

 the particular circumstances of this case, we hold that Salinas invited the courtroom

 closure error that he now asserts and is precluded from raising that error. Further,

 consistent with the Supreme Court's recent decision in Weaver v. Massachusetts,

 U.S.      , 137 S. Ct. 1899, 198 L. Ed. 2d 420(2017), we hold that Salinas's assertion of

 ineffective assistance of appellate counsel fails because he has not met his burden of

 showing that he was prejudiced by the courtroom closure error.^

                                              FACTS


         In 2010, a jury convicted Salinas of three counts of first degree rape and one count

 of first degree kidnapping concerning his assault on a homeless woman at a Bellingham



 ' Weaver recognized that closing the courtroom constitutes structural error, but noted different
 categories of structural error, some requiring reversal and others not, as discussed infra.
No. 91905-4



park. See State v. Salinas, 169 Wn. App. 210, 214, 279 P.3d 917(2012), review denied,

176 Wn.2d 1002(2013). He was sentenced as a persistent offender to life without the

possibility of release. Id. at 216; Resp. to PRP, App. A.^ Salinas's direct appeal raised

numerous substantive issues challenging his conviction and sentence. See Salinas, 169

Wn. App. at 216-27. Division One of the Court of Appeals affirmed his conviction and

persistent offender sentence, but remanded for vacation ofthe kidnapping conviction and

for a determination regarding whether the rapes constituted the same criminal conduct.^

Id. at 227.


       Within a year of the resolution of his appeal, Salinas filed the current PRP alleging

a violation of his public trial right during jury selection and that his appellate counsel was

ineffective for failing to raise the issue on direct review. The relevant facts eoneeming

jury voir dire are as follows.

       More than a month before trial, Salinas's defense counsel filed a proposed jury

questionnaire and instruction that informed prospective jurors:

              Some ofthese questions may call for information of a personal
       nature that you may not want to discuss in public. If you feel that your
       answer to any question may invade your right to privacy or might be
       embarrassing to you, you may so indicate on the form that you would prefer
       to discuss your answer in private. You will find instructions for this on the
       questionnaire.



^ Further references to appendices are to documents appended to the State's response to Salinas's
PRP.
^ After remand from the direct appeal, Salinas filed another appeal challenging the recalculation
of his offender score based on his amended judgment and sentence for three coimts offirst
degree rape, but Division One affirmed in an unpublished decision. See State v. Salinas, No.
70125-8-1, slip op.(Wash. Ct. App. July 21, 2014)(unpublished),
http://www.courts.wa.gov/opinions/pdf/701258.pdf.
No. 91905-4



App. B at 2. Question 26 then asked whether the juror would prefer to discuss the answer

to any ofthe questions ''privately rather than in open court''' and asked the juror to

identify the questions by number. Id. at 7(emphasis added). Several ofthe questions

asked about jurors' experience with sexual abuse or misconduct.

       Defense counsel filed two more proposed juror questionnaires before the trial date.

All three questionnaires provided the same advisement to jurors noted above, asked

similar questions about sexual abuse or misconduct, and asked whether the jurors would

prefer to discuss their answers to some questions "privately rather than in open court."

Id.-, App. C at 7; App. D at 7. The prosecutor did not file a proposed juror questionnaire,

did not agree with some of the questions in the defense questionnaire, and did not request

private voir dire.

       On March 8, 2010, the trial court's questionnaire given to the jurors was filed in

open court. The questiormaire included several ofthe same questions defense counsel

had proposed regarding experience with sexual abuse or misconduct, and similarly

advised:


       [I]f your answer to any of the following questions is ofsuch a "sensitive
       nature" that you would like to discuss it "privately", please identify those
       questions by number here:

App. E at 2(formatting omitted).

       During pretrial motions that same day, the trial court noted that seven ofthe

prospective jurors had indicated on their questionnaires that they wanted to speak in

private. The judge suggested that the jurors be sworn in and that the jurors who wanted
No. 91905-4



to speak individually could be dealt with first, before the rest of voir dire. At the end of

pretrial motions the next day, defense counsel suggested:

       I have a suggestion to help the jury here. I don't know if the Court is
       willing to do this is [sic] that we take a break now and bring the jury up
       here, get them sworn, and let the ones go that don't want to talk in private.

Verbatim Report ofProceedings(VRP)(Mar. 9, 2010, Pretrial CR 3.5 Hr'g & Pretrial

Mots.) at 69-70. The judge indicated that was what he had in mind: to swear the jury in

and go through the basic qualifications. The prosecutor stated,"[Wjhen you're talking

about taking them in privately"—^to which the judge responded,"I'm going to ask if

there's anybody in the courtroom who has an objection, otherwise we have to do it in

open courtroom." Id. at 70.

       Later that day, after inquiring whether all the prospective jurors had filled out the

questionnaire, the judge informed the venire:

              As you can see by that [questionaire], this is a case that might
       involve some matters which might be of a sensitive nature. In this ease,
       I'm going to offer an opportunity to those who have indicated that they
       wish to speak in private about some issues the chance to do that. That is
       the first thing we will undertake, and then we will go through the general
       process of picking a jury which will start this afternoon.

VRP(Mar. 9, 2010, Jury Voir Dire) at 3. After addressing some other matters, the judge

returned to the issue of voir dire, noted that some potential jurors had requested to speak

in private, and inquired:

       Is there anyone in this group or anyone in this courtroom at this time who
       has any objection whatsoever to the Court conducting a short interview
       with each of those jurors, potential jurors with counsel and the defendant in
       my chambers all on the record to determine what their concerns are and be
No. 91905-4



       able to have them answer those questions or tell them what their concerns
       are in private? Is there anyone here that has any objection to that?

Id. at 13 (emphasis added). The court then directed the jurors who wished to speak

privately to return at 1:30 p.m. and the remainder to return at 2:30 p.m. Id. at 12-13, 23.

After the recess, the court inquired again:

              I would ask if anyone has an objection to us speaking to them in
       private with us and counsel and defendant and the court reporter? Then I
       will go into chambers. Counsel will come in. The attorneys will come with
       me. The court reporter will set up, and Ms. Ortner will bring you in one at
       a time.


Id. at 23. The record indicates that when the trial court twice called for objections to the

limited in-chambers questioning, no one objected. App. G at 2.

       During in chambers voir dire,jurors discussed their own and their families'

criminal histories and experiences with sexual abuse. As a result ofthe individual voir

dire, three of the jurors were excused for cause.

       As noted, following Salinas's conviction and resolution of his direct appeal, he

filed the present PRP asserting that the in-camera questioning of some potential jurors

violated his public trial right. The PRP contended that the trial court's failure to conduct

a Bone-Club^ analysis before conducting in-chambers voir dire requires reversal of his

conviction and that he was denied effective assistance of appellate counsel when his

appointed attorney failed to raise the public trial issue in his direct appeal. Division One

agreed, reversing his conviction in an unpublished decision. In re Pers. Restraint of

Salinas, No. 71383-3-1, slip op.(Wash. Ct. App. June 15, 2015),


 State V. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).
                                              5
No. 91905-4



http://www.courts.wa.gov/opinions/pdf/713833.pdf. The State moved for discretionary

review, contending that Salinas was foreclosed from raising the voir dire public trial right

violation because he had invited the error. This court granted review. 185 Wn.2d 1024,

369 P.3d 501 (2016).

                                          ANALYSIS


       Invited Error


       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). We have repeatedly held that the public trial right

applies to jury selection. The public trial right extends to voir dire proceedings and the

questioning of individual prospective jurors. State v. Wise, 176 Wn.2d 1, 16-19, 288 P.3d

1113 (2012). The right to a public trial is not absolute, however, and this court has

established that a trial court may close the courtroom so long as it considers the five

criteria outlined in Bone-Club.^ Failure to conduct a Bone-Club analysis before closing

the proceeding is error generally requiring a new trial. Paumier, 176 Wn.2d at 35.

       This court has applied a different rule, however, in the present context of collateral

review in which a public trial violation is asserted for the first time. This court has



^ The five factors are (1)the proponent of closure must make a showing of compelling need,(2)
any person present when the motion is made must be given an opportunity to object,(3)the
means of curtailing open access must be the least restrictive means available for protecting the
threatened interests,(4)the court must weigh the competing interests ofthe public and ofthe
closure, and (5)the order must be no broader in application or duration than necessary.
Bone-Club, 128 Wn.2d at 258-59.
No. 91905-4



recently held that the usual presumption of prejudice applicable to courtroom closure

claims raised on direct appeal does not apply in the PRP context. In re Pers. Restraint of

Coggin, 182 Wn.2d 115, 120, 340 P.3d 810 (2014).^

       In Coggin, in a lead and a concurring opinion, five justices of this court denied the

petitioner's PRP, holding in part that it is petitioner's burden on collateral review to show

that a public trial right violation was prejudicial. Id. at 122, 123 (Madsen, C.J.,

concurring). Because the petitioner relied only on the presumption of prejudice that is

available in a direct appeal, he had failed to meet his burden on collateral review and his

PRP was dismissed. Id. at 122, 123(Madsen, C.J., concurring).

       In Coggin, five justices also agreed that the invited error doctrine is applicable to a

petitioner's assertion of a public trial right violation. In the lead opinion's view,

however, the facts were not sufficient to establish that the error was invited. The Coggin

lead opinion (four votes) reiterated that "'[t]he basic premise of the invited error doctrine

is that a party who sets up an error at trial cannot claim that very action as error on appeal

and receive a new trial.'" Id. at 119(quoting State v. Momah, 167 Wn.2d 140, 153, 217

P.3d 321 (2009)).^ The lead opinion stated, "In determining whether the invited error

doctrine applies, we have considered whether the defendant affirmatively assented to the

error, materially contributed to it, or benefited from it." Id.(emphasis added). Similarly,

the concurrence(one vote) noted that "a party is precluded from raising a public trial



^ Coggin was decided after Salinas filed his PRP.
^ See also State v. Henderson, 114 Wn.2d 867, 871, 792 P.2d 514(1990)(even where
constitutional issues and constitutional rights are involved, invited error precludes appellate
review).
No. 91905-4



right challenge ... where the party invited the error or waived his or her public trial

rights." Id. at 124(Madsen, C.J., concurring). The concurrence opined that in assessing

invited error, the court looks to the "totality of the circumstances," considering "whether

the party engaged in affirmative and voluntary action to induce or contribute to the error

and whether he or she benefited from the trial court's action." Id.(emphasis added).

       The relevant facts in Coggin are as follows. Coggin's charges, which included

first degree burglary, rape, robbery, and unlawful possession of a firearm, concerned the

home invasion and assault oftwo young sisters. During jury selection, defense counsel

expressed a desire for individual juror questioning because ofthe publicity and sensitive

nature ofthe case. The prosecutor drafted a juror questionnaire, and defense counsel

approved the final version. The questionnaire advised the potential jurors that ifthey

preferred to discuss their answers in private, the court would provide an opportunity to do

so in a closed hearing. The court and the parties questioned 12 prospective jurors in

chambers, and 6 prospective jurors were dismissed for cause. The court did not engage

in a Bone-Club analysis before the private questioning of the jurors, nor did the defense

voice any objection to the procedure. Following conviction and resolution of his appeal,

Coggin filed a PRP asserting that his right to a public trial was violated by the private

questioning of some potential jurors. See Coggin, 182 Wn.2d at 117, 125 (Madsen, C.J.,

concurring).

      In Coggin, the lead and concurring opinions disagreed as to whether the evidence

established invited error. To the concurrence, defense counsel's advocating for private



                                              8
No. 91905-4



questioning, approval of the State's juror questionnaire that promised private questioning,

and active participation in the ensuing private questioning was sufficient to bar the

petitioner's public trial right claim as invited error. The lead opinion disagreed, opining

that "Coggin's actions do not rise to the level of invited error" because he "merely

assent[ed\ to the State'sjuror questionnaire and ... it was the trial judge who decided to

question jurors in chambers." Id. at 119(emphasis added). In other words, in the lead

opinion's view, Coggin's mere joining the State's questionnaire was not a sufficient

material contribution to the public trial right error.^ See id.

       In the present case, the omission that troubled the Coggin lead opinion is not

present. Here, defense counsel played the initiating and sustaining role that led to private

questioning ofjurors. Three times before trial, defense counsel submitted proposed juror

questionnaires that invited jurors to identify which questions they would "prefer to

discuss the answer[s] to . . . privately rather than in open court." App. B at 7; App. C at

7; App. D at 7(question 26). The State "did not request thatjurors be questioned in

private." App. F at 2. Accordingly, defense counsel's early and repeated advocacy for

private questioning was the impetus behind the court's questionnaire that similarly

directed jurors: "If any of the questions asked here are ofsuch a 'sensitive' nature that

you would like to discuss it privately, please indicate the number of the question(s) here:

     ." App. E at 4(question 13). Under these facts, Salinas carmot now be heard to



^ The dissent in Coggin did not address invited error except to say,"We should protect the public
trial right by acknowledging that an uninvited, unwaived violation ofthis important right is
always inherently prejudicial." Coggin, 182 Wn.2d at 126 (Stephens, J., dissenting)(emphasis
added).
No. 91905-4



complain that the very procedure he proposed was employed by the trial court. "The

[invited error] doctrine applies when a party takes affirmative and voluntary action that

induces the trial court to take the action that that party later challenges on appeal." 15A

Karl B.Tegland & Douglas J. Ende, Washington Practice: Washington

Handbook ON Civil Procedure § 88.4, at 758(2015 ed.); see also In re Pers. Restraint

ofThompson, 141 Wn.2d 712, 723-24, 10 P.3d 380(2000)(doctrine of invited error

prohibits a party from knowingly setting up an error by an affirmative act and then

complaining on appeal); Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 113, 51

P.3d 790(2002)(same).

       Given defense counsel's role in initiating the request for private questioning,

defense counsel's advocacy for private questioning (including repeated submission of

proposed juror questionnaires that provided for such questioning), defense counsel's

active participation in the private questioning, defendant's benefiting from such

questioning, and defense counsel's failure to object to such proceeding, under these facts

defense counsel not only "materially contributed" to the private questioning but also took

"affirmative and voluntary action to induce" such private questioning. Coggin, 182

Wn.2d at 119, 124.® We hold that under these facts, petitioner may not now assert a


® See also Ames v. Ames, 184 Wn. App. 826, 849, 340 P.3d 232(2014)(a party who "first
suggested the procedure" that the court employed and who "participated in this procedure" is
estopped from subsequently objecting to the procedure because "[ujnder the doctrine ofinvited
error, a party may not materially contribute to an erroneous application of law at trial and then
complain of it on appeal"). Further, while the trial judge will always make the ultimate decision
on whether to adopt a party's proposal, the salient point here is that the proposal to close the
courtroom originated with and was pushed by defense counsel. The significance of defense
counsel's multiple proposed juror questionnaires is that they demonstrated the defense's repeated
                                               10
No. 91905-4



public trial error concerning the private questioning ofjurors because he invited such

error.



         Salinas contends that "[i]t is difficult to fathom any material difference between

Coggin and Salinas's case." Suppl. Br. of Resp't at 15. As discussed above, there are

key differences. In Coggin, the State took the lead in designing the courtroom closure.

Here, defense counsel supplied that role. As the Coggin lead opinion observed,"During

jury selection, defense counsel expressed a desire for individual juror questioning due to

the publicity and sensitive nature of the case. The prosecutor drafted a juror

questionnaire, and defense counsel approved the final version." 182 Wn.2d at 117. The

Coggin lead opinion determined: "The State provided the juror questionnaire that offered

potential jurors a 'closed hearing,' and while Coggin approved of the questionnaire, he

did not actively participate in designing the trial closure." Id. at 118. By contrast,

Salinas's counsel's repeated submissions of proposed questionnaires advocating for

private questioning ofjurors demonstrates the defense's impetus and advocacy for a

closed proceeding and the leading role the defense played in fomenting such closure,

particularly where the State did not request that jurors be questioned in private. Unlike

Coggin, the defense here actively participated in designing the trial closure.

         Ineffective Assistance of Appellate Counsel

         Invited error, as discussed above, also impacts Salinas's claim of ineffective

assistance of appellate counsel. Salinas's PRP relies on In re Personal Restraint of


and sustained advocacy for a closed proceeding, and that such advocacy began more than a
month before voir dire.

                                              11
No. 91905-4



Morris, 176 Wn.2d 157, 288 P.3d 1140(2012)(plurality opinion), as does Division One,

in reversing Salinas's convictions. "To establish ineffective assistance of appellate

counsel, a petitioner must establish that(1)counsel's performance was deficient and (2)

the deficient performance actually prejudiced the defendant." Salinas, No. 71383-3-1,

slip op. at 3 (citing Morris, 176 Wn.2d at 166 (citing In re Pers. Restraint ofOrange, 152

Wn.2d 795, 814, 100 P.3d 291 (2004))). '"[Wjhere appellate counsel fails to raise a

public trial right claim, where prejudice would have been presumed on direct review, a

petitioner is entitled to relief on collateral review.'" Id.(emphasis added)(alteration in

original)(quoting Morrw, 176 Wn.2d at 161 ("reaffirm[ing] Orange'^)).

       Morris held that the case before the court was "no different from the situation in


Orange where the appellate counsel failed to raise the public trial right issue." 176

Wn.2d at 167. Morris noted that, like Orange, the failure to raise the courtroom closure

issue was "not the product of'strategic' or 'tactical' thinking," and it deprived the

petitioner of the opportunity to have the constitutional error deemed per se prejudicial on

direct appeal. Id. at 167-68. However, in both Morris and Orange, the trial court acted

sua sponte in ordering closure. See id. at 162(court moved voir dire into chambers, but

neither the State nor defense counsel moved for private voir dire); see also State v.

Easterling, 157 Wn.2d 167, 177, 137 P.3d 825 (2006)(noting that in Orange, the trial

court ordered closure sua sponte, and that in Bone-Club, the party requesting closure was

the State). Thus, Morris and Orange are not like the present case, in which the impetus

for closure originated with the petitioner. As discussed above, the presence of invited



                                             12
No. 91905-4



error makes Salinas's case different. See State v. Henderson, 114 Wn.2d 867, 871, 792

P.2d 514(1990)(invited error precludes judicial review even where the alleged error

raises constitutional issues).

       "To prevail on a claim of ineffective assistance of appellate counsel,[petitioner]

must demonstrate the merit of any legal issue appellate counsel . . . failed to raise and

also show[]he was prejudiced." In re Pers. Restraint ofNetherton, 111 Wn.2d 798, 801,

306 P.3d 918(2013)(citing        re Pers. Restraint ofLord, 123 Wn.2d 296, 314, 868 P.2d

835, cert, denied, 513 U.S. 849(1994)). Here, in light ofthe invited error, Salinas cannot

demonstrate that his conviction would have been reversed if appellate counsel had raised

the public trial right violation. Thus, he cannot demonstrate prejudice from appellate

counsel's failure to raise the right to public trial violation that he alleges.

       Notably, the "structural error" and resulting presumed prejudice, on which both of

Salinas's PRP claims rely, has been clarified in the Supreme Court's recent decision in

Weaver v. Massachusetts,         U.S.     , 137 S. Ct. 1899, 198 L. Ed. 2d 420(2017). The

relevant facts of Weaver concerning prejudice are analogous to the present case. In

Weaver, a Massachusetts trial court conducted two days ofjury voir dire in a murder trial

in a closed courtroom. The public and defendant's mother and her minister were

excluded from the courtroom by judicial officers because the potential venire pool filled

the 50-60 seat courtroom. Id. at 1906. Defense counsel did not object to the exclusion of

the public at trial, nor did counsel raise the courtroom closure issue on direct appeal.

Five years after defendant's conviction and receipt of a life sentence, defendant sought a



                                               13
No. 91905-4



new trial, asserting ineffective assistance of counsel based on the failure to object to the

courtroom closure. The Supreme Court affirmed rejection of defendant's motion for a

new trial.


       The core holding of Weaver is that if defense counsel objects to courtroom closure

at trial and raises the issue on direct appeal, prejudice is presumed and defendant gets a

new trial. However, where the courtroom closure issue is raised later, e.g., as in Weaver,

in a motion for a new trial based on allegation of ineffective assistance, finality concerns

prevail such that the burden is on defendant to show a reasonable probability of a

different trial outcome or to show that the particular public trial violation was so serious

as to render his trial fundamentally unfair. In other words, absent a timely preservation

of the public trial error and a timely raising of the issue on direct appeal, a defendant

alleging a public trial violation generally must show prejudice in order to get a new trial.

The Supreme Court summarized as follows:

               In the criminal justice system, the constant, indeed unending, duty of
       the judiciary is to seek and to find the proper balance between the necessity
       for fair and just trials and the importance of finality ofjudgments. When a
       structural error is preserved and raised on direct review, the balance is in
       the defendant's favor, and a new trial generally will be granted as a matter
       of right. When a structural error is raised in the context of an ineffective-
       assistance claim, however, finality concerns are far more pronounced. For
       this reason, and in light of the other circumstances present in this case,
       petitioner must show prejudice in order to obtain a new trial. As explained
       above, he has not made the required showing.

Mat 1913.


       Notably, the Weaver court clarified "the concept of structural error" in this

context. Id. at 1907. The court noted three "categories" of structural error: (I) where the


                                             14
No. 91905-4



error affected some interest of defendant other than avoidance of an erroneous conviction

(e.g., the right to self-representation),(2) where the error's effect is too hard to measure

(e.g., where a defendant is denied the right to select his own attorney), and (3) where the

error always results in fundamental unfairness (e.g., where an indigent defendant is

denied an attorney or a judge fails to give a reasonable doubt instruction). Id. at 1908.

The court observed the "critical" point to be that "[a]n error can count as structural even

if the error does not lead to fundamental unfairness in every case." Id. Thus, while "a

violation of the right to a public trial is a structural error" nevertheless,"not every

public-trial violation results infundamental unfairness." Id. at 1908-09(emphasis

added).    The court continued:

       [Wjhile the public-trial right is important for fundamental reasons, in some
       cases an unlawful closure might take place and yet the trial still will be
       fundamentally fair from the defendant's standpoint.

              ... Despite its name, the term "structural error" carries with it no
       talismanic significance as a doctrinal matter. . . . Thus, in the case of a
       structural error where there is an objection at trial and the issue is raised on


  Of particular note conceming Salinas's assertion of stmctural error based on the trial court's
failure to expressly employ a Bone-Club analysis before closure, the Weaver court opined about
the importance of such written findings as follows:
              A public-trial violation can occur, moreover, as it did in Presley [v.
       Georgia, 558 U.S. 209, 130 S. Ct. 721, 175 L. Ed. 2d 675(2010)(per curiam)],
       simply because the trial court omits to make the proper findings before closing the
       courtroom, even if those findings might have been fully supported by the
       evidence. See 558 U.S., at 215, 130 S.Ct. 721. It would be unconvincing to deem
      a trialfundamentally unfairjust because ajudge omitted to announcefactual
      findings before making an otherwise valid decision to order the courtroom
      temporarily closed. As a result, it would be likewise unconvincing ifthe Court
       had said that a public-trial violation always leads to afundamentally unfair trial.
              Indeed,[this] Court has not said that a public-trial violation renders a trial
      fundamentally unfair in every case.
137 S. Ct. at 1909-10(emphasis added).

                                                15
No. 91905-4



       direct appeal, the defendant generally is entitled to "automatic reversal"
       regardless of the error's actual "effect on the outcome."

Id. at 1910 (quoting        v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827, 144 L. Ed. 2d

35 (1999)). The court asked the question: "[W]hat showing is necessary when the

defendant does not preserve a structural error on direct review but raises it later in the

context of an ineffective-assistance-of-counsel claim?" Id. The answer is that defendant


must show deficient performance and resulting prejudice. Id. The Weaver court further

opined:

               As explained above, not every public-trial violation will in fact lead
       to a fundamentally unfair trial. Nor can it be said that the failure to object
       to a public-trial violation always deprives the defendant of a reasonable
       probability of a different outcome. Thus, when a defendant raises a public-
       trial violation via an ineffective-assistance-of-counsel claim, Strickland [v.
       Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674(1984),]
       prejudice is not shown automatically. Instead, the burden is on the
       defendant to show either a reasonable probability of a different outcome in
       his or her case or ... to show that the particular public-trial violation was
       so serious as to render his or her trial fundamentally unfair.

Id. at 1911 (citation omitted).

       The court explained the rationale for placing the burden on the defendant in this

circumstance as follows:


              The reason for placing the burden on the petitioner in this case,
       however, derives both from the nature ofthe error and the difference
       between a public-trial violation preserved and then raised on direct review
       and a public-trial violation raised as [a later] ineffective-assistance-of-
       counsel claim. As explained above, when a defendant objects to a
       courtroom closure, the trial court can either order the courtroom opened or
       explain the reasons for keeping it closed. When a defendant first raises the
       closure in an ineffective-assistance claim, however, the trial court is
       deprived of the chance to cure the violation either by opening the
       courtroom or by explaining the reasons for closure.


                                              16
No. 91905-4




/i/. at 1912 (citation omitted).

       Regarding the preference for finality in this circumstance, the court opined:

               When an ineffective-assistance-of-counsel claim is raised in
       postconviction proceedings, the costs and uncertainties of a new trial are
       greater because more time will have elapsed in most cases. The finality
       interest is more at risk, and direct review often has given at least one
       opportunity for an appellate review oftrial proceedings. These differences
       justify a different standard for evaluating a structural error depending on
       whether it is raised on direct review or raised instead in a [later] claim
       alleging ineffective assistance of counsel.

Id.(citation omitted).

       Applying the above to the facts in Weaver, the Supreme Court found that

petitioner had not met his burden. Despite the fact that the defendant's mother and her

minister had been excluded from two days of voir dire, the court found the following

(among other facts) persuasive: petitioner's trial was not conducted in secret or in a

remote place, the closure was limited to the jury voir dire, the courtroom remained open

during the evidentiary phase ofthe trial, and there was a record made ofthe proceedings

that does not indicate any basis for concern other than the closure itself. Concluding that

the petitioner had not met his burden to show prejudice and, thus, was not entitled to a

new trial, the Supreme Court concluded:

               It is true that this case comes here on the assumption that the closure
       was a Sixth Amendment violation. And it must be recognized that open
       trials ensure respect for the justice system and allow the press and the
       public to judge the proceedings that occur in our Nation's courts. Even so,
       the violation here did not pervade the whole trial or lead to basic unfairness.




                                              17
No. 91905-4



/<i. at 1913. The same is true in Salinas's case since most of his voir dire and the rest of

his trial was conducted in open court.

        Applying Weaver to Salinas's case, it is clear that Weaver refutes Salinas's

contention that prejudice is presumed in this context. Weaver rejects the notion that the

voir dire closure in Salinas, even though such closure is a "structural error," is presumed

prejudicial. In Salinas's case, there was no objection at trial and no assertion of a public-

trial violation on direct appeal. In this circumstance. Weaver places the burden on the

defendant to prove he was prejudiced by such closure. Salinas has not met that burden.''

                                         CONCLUSION


        We hold that under the particular facts of this case, Salinas invited the courtroom

closure error that he now complains of on collateral review and is precluded from raising

that claim by the invited error doctrine. Further, under both Coggin and Weaver, Salinas

cannot establish that his appellate counsel was ineffective because no presumption of

prejudice applies in Salinas's PRP; he has the burden of establishing that the courtroom

closure here actually prejudiced him, and he has not done so. Accordingly, Division

One's grant of Salinas's PRP is reversed and his PRP is denied.




'' The State asks this court to remand for a reference hearing if the record is deemed insufficient
to demonstrate invited error or as needed to resolve any question about appellate counsel's
reason for not raising the public trial violation issue on direct appeal. While the appellate rules
provide for transfer of a PRP to the trial court for a reference hearing if the petition "cannot be
determined solely on the record," RAP 16.11(b), such remand is not necessary. The available
record shows Salinas's initiation and advocacy regarding private questioning ofjurors, and, as
discussed, Coggin and Weaver place the burden on Salinas to establish prejudice. A reference
hearing for the reasons suggested by the State is not warranted.
                                                 18
No. 91905-4




WE CONCUR:




                   ^Aikki.




              19
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)




                                     No. 91905-4



       GORDON McCLOUD, J. (concurring)—I agree with the majority that

Salinas's lawyer invited the brief courtroom closure at issue here. He submitted

three proposed juror questionnaires that invited jurors who preferred private

questioning on sensitive issues to say so. Majority at 2-3. Those particular defense-

proffered statements on the defense-proposed questiormaires clearly formed the

basis for the trial court's adoption of that language in its own questionnaire. Id. at

3-4. The defense then explicitly stated, in open court, in Salinas's presence, its

suggestion for speeding up the process of allowing the jurors who requested it to

'"talk in private.'" Id. at 4(quoting Verbatim Report ofProceedings(Mar. 9, 2010,

Pretrial CR 3.5 & Pretrial Mots.) at 69-70). The judge was the one who acquiesced,

not the defense. Id.


      The defense's invitations in this case constitute invited error under our

consistent decisions on that legal doctrine. For this reason, I agree with the

majority's conclusion that the doctrine ofinvited error bars the defense from raising

courtroom closure as a direct challenge to a conviction on direct appeal. I also agree
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)



 with the majority's conclusion that the doctrine of invited error bars the petitioner

from raising this closure through an ineffective assistance of counsel claim on a

personal restraint petition (PRP)—^the error would not have resulted in reversal on

 direct appeal, so it is not governed by the otherwise-applicable Orange^ rule that

failure to raise courtroom closure on direct appeal constitutes ineffective assistance

of counsel warranting relief without proof of prejudice on a collateral challenge.

U.S. Const, amend. VI; Wash. Const, art. I, § 22.

       I write separately for two reasons. First, I disagree with the majority's

assertion that Weaver^ held that a petitioner alleging ineffective assistance ofcounsel

due to failure to assert a courtroom closure claim can never prevail if "he has not

met his burden of showing that he was prejudiced by the courtroom closure error."

Majority at 1. In fact. Weaver did not require a petitioner raising this claim to prove

actual prejudice to his or her own case to obtain relief, even on a postappeal collateral

challenge. Instead, it held that because of the difficulty or inability to show such

prejudice with the typical courtroom closure claim, the petitioner would also be

entitled to relief, even without a showing ofspecific prejudice to his or her own case,

ifthe closure caused "fundamental unfairness." Weaver, 137 S. Ct. at 1911. It listed


'In re Pers. Restraint ofOrange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004).

2 Weaver v. Massachusetts, _ U.S. _,137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017).
                                           2
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)



a showing of"fundamental unfairness" as an alternative to proof of"prejudice" as a

means of gaining relief. Id. The majority errs in leaving out this critical alternative.

       Next,I write separately because I disagree with some ofthe majority's lengthy

discussion of invited error, including its characterization of our opinions in Coggin

and Momah.^ Majority at 6-11.

       The majority states that our court recently "held" that "the usual presumption

of prejudice applicable to courtroom closure claims raised on direct appeal does not

apply in the PRP context." Id. at 7(citing Coggin, 182 Wn.2d at 120). The majority

credits "a lead and a concurring opinion" with together making up this holding. Id.

The dissent in this case disagrees. Dissent at 3-4. It asserts that "[wjhere a public

trial violation is raised in a PRP claiming ineffective assistance of appellate counsel,

our cases demonstrate that prejudice is presumed." Id. at 5. It cites Morris'^ and

Orange, 152 Wn.2d at 814. Id.

       The dissent certainly has the better ofthis argument. Coggin does not contain

any holding ofthe court on the need to prove actual and substantial prejudice in this

PRP courtroom closure context. The concurrence to which the majority in this case


^ In re Pers. Restraint of Coggin, 182 Wn.2d 115, 120, 340 P.3d 810 (2014)(plurality
opinion); State v. Momah, 167 Wn.2d 140, 153, 217 P.3d 321 (2009).

^ In re Pers. Restraint of Morris, 176 Wn.2d 157, 166, 288 P.3d 1140 (2012)(plurality
opinion).
                                           3
In re Pars. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)



cites explicitly states that it is not reaching that question. Coggin, 182 Wn.2d at 123

("I would instead hold that Coggin invited the courtroom closure during voir dire ..

. . Thus, we need not reach the question of actual and substantial prejudice.").

       We must therefore turn to our traditional rules concerning invited error. One

ofthe most recent summaries ofthat traditional test appears in State v. Frawley, 181

Wn.2d 452, 460-64, 334 P.3d 1022 (2014)(plurality opinion). In Frawley's case,

the court"engaged in an extensive colloquy concerning Frawley's right to be present

for . . . individual voir dire and he waived his right to be present." Id. at 455. The

court and counsel then interviewed some jurors individually in chambers. Id. The

court also closed the courtroom for all of voir dire, but not before engaging in

"another extensive colloquy" and concluding that Frawley waived the right to public

voir dire also. Id. at 456. In the consolidated case State v. Applegate, the trial court

asked, before voir dire, whether any party or member of the public would object to

closed questioning of certain jurors. Id. at 456-57. Defense counsel said the court

had discretion, but the State argued that the court needed to address whether the

defendant personally objected. Id. at 457. Eventually, the court concluded that one

juror should probably be questioned privately. Id. After concluding(summarily and

without any factor-by-factor elaboration) that the five Bone-Club^ factors were


5 State V. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).
                                           4
In re Pars. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCIoud, J., concurring)




satisfied, the court instructed Applegate that the proceedings were presumptively

open and then asked whether he had any objections to questioning the single juror

in chambers, away from the public. Id. at 457-58. Applegate conferred with defense

counsel, who then told the court that he had no objection "'to going back into

chambers and asking these questions without the public hearing.'" Id. at 458.

       The two-justice lead opinion concluded that both cases involved an

unconstitutional courtroom closure because neither court engaged in a real Bone-

Club analysis. Id. at 459-60. But a defendant can waive the public trial right through

a "knowing, voluntary, and intelligent waiver," which means at least "a written

waiver signed by the defendant expressly acknowledging and waiving the right" or

"an equivalent colloquy that satisfies this standard." Id. at 462. The lead opinion

held that the State failed to prove waiver in either case. In Frawley's case,the waiver

question was resolved by Morris, which held that a waiver of the right to presence

does not constitute a waiver of the right to a public trial. Id. And in Applegate's

case, the alleged "waiver" was not "knowing"—Applegate was never "informed of

his right to a public trial or any consequences associated with waiving the right." Id.

at 463. Moreover,"the doctrine of affirmative waiver is inconsistent with the Bone-

Club analysis." Id.
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)



       A two-justice concurrence agreed that neither defendant waived the right to

an open courtroom. Id. at 467. It concluded that neither defendant waived that right

because neither was actually advised, prior to the closure, ofhis public trial right and

the eonsequenees of waiving it. Id. at 466-69(Stephens, J., concurring).

       A three-justice eoncurrence/dissent would have held that a litigant does not

need an on-the-record colloquy to waive the right to a public trial. Id. at 476.

Relying on invited error decisions arising from a variety of different contexts,^ that

concurrence/dissent would have held that an appellate eourt can infer a proper

waiver ofthe public trial right when "a statement on the record by defense counsel.

. ., fairly read, indicates the defendant knew, heard, understood, and agreed" with

the lawyer's waiver. Id. The concurrence/dissent concluded that that standard was

met in Applegate's case but not in Frawley's. Id. at 476-77.

       These three opinions correetly cite and summarize our court's historical

precedent on the topie of invited error.^ All three leave out the gloss placed on that

historical precedent by what this court itself has called the "unique" situation in

Momah. State v. Wise, 176 Wn.2d 1, 14, 288 P.3d 1113(2012); Coggin, 182 Wn.2d

at 119. That historical precedent remains binding. Decisions based on other unique


'Frawley, 181 Wn.2d at 475-76.

^ There was a separate two-justice dissent. Id. at 477-92.
                                            6
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCIoud, J., concurring)



circumstances, on which the majority in this case relies, are not binding outside of

unique circumstances. Majority at 7 (quoting Coggin, 182 Wn.2d at 119 (quoting

Momah, 167 Wn.2d at 153)).

       Under that historical precedent, counsel's statements in Salinas's case are far

more similar to the statements that I believe constituted invited error in Applegate's

case than to the statements that I believe did not constitute invited error in Frawley's

case. Salinas's counsel submitted three written requests to tell jurors that they could

seek questioning not just away from the other jurors, but in "private." Salinas's

counsel's proposals were accepted by the trial court. Salinas's counsel stated, in

open court with his client present, its own suggestion for how to swear in some jurors

and then get on with the task of interviewing the appropriate ones in private. I

believe the rule that our prior invited error cases (except for the "unique" one)

produces is that when "a statement on the record by defense counsel...,fairly read,

indicates the defendant knew, heard, understood, and agreed" with the lawyer's

waiver of the right to an open courtroom, then the waiver is valid. Frawley, 181

Wn.2d at 476(Gordon McCloud, J., concurring in part/dissenting in part). Defense

counsel's written and verbal statements in this case clearly fit within that category.

       That is why I concur. But it is also why I write separately. I disagree with

the majority's decision to expand the exception created by Momah (and reiterated in
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)



one opinion in Coggin) beyond the "unique" circumstances it was designed to

address. I would not characterize Coggin as overturning Orange and Morris—only

four justices in Coggin stated that position as a holding. And I would not

characterize Weaver as holding that criminal defendants who challenge courtroom

closure via ineffective assistance ofcounsel claims must prove actual and substantial

prejudice—it clearly said that proof of fundamental unfairness suffices, even where

specific prejudice is impossible to prove.
In re Pers. Restraint ofSalinas (Hector Serano), No. 91905-4
(Gordon McCloud, J., concurring)
In re Pers. Restraint ofSalinas




                                          No. 91905-4


       JOHNSON, J.(dissenting)—The majority embraces a new exception to a

constitutional public trial violation claim that is not only factually and legally

erroneous but is also inconsistent with cases that expressly reject the argument

relied on by the majority. This new exception promises to swallow the

constitutional rule protecting the right to a public trial under article I, section 22 of

Washington's Constitution.' Properly analyzed, the courtroom closure error here

was not invited, appellate counsel was ineffective in failing to raise this issue on

direct appeal, and the Court of Appeals' decision applying the rule adopted in our

cases should be affirmed.




       '"In criminal prosecutions the accused shall have the right to appear and defend in
person, or by eounsel, to demand the nature and cause of the accusation against him, to have a
copy thereof, to testify in his own behalf, to rneet the witnesses against him face to faee, to have
compulsory process to eompel the attendance of witnesses in his own behalf, to have a speedy
public trial by an impartial jury of the county in which the offense is charged to have been
committed and the right to appeal in all cases: Provided, The route traversed by any railway
coaeh, train or public conveyance, and the water traversed by any boat shall be criminal districts;
and the jurisdiction of all public offenses committed on any such railway car, coach, train, boat
or other publie conveyance, or at any station or depot upon such route, shall be in any county
through which the said car, coach, train, boat or other public conveyance may pass during the
trip or voyage, or in which the trip or voyage may begin or terminate. In no instance shall any
accused person before final judgment be compelled to advance money or fees to secure the rights
herein guaranteed."
In re Pers. Restraint ofSalinas, No. 91905-4
(Johnson, J., dissenting)


        Factually, I disagree with the majority's characterization ofthe record in this

case. While the majority is correct that defense counsel prepared and submitted

proposed questionnaires, the trial judge did not use them. The prospeetive jurors

were given similarly worded questions, but nothing in the record offers any support

for the majority's conclusion that defense counsel urged and asked specific

questions.

        More importantly, regarding the decision to privately question prospective

jurors in chambers, nowhere in the record is there any indication that defense

counsel prompted or in any way contributed to the in-chambers closed proceeding

nor, from a practical standpoint, could defense counsel control that in-chambers

proceeding. The record is clear that the in-chambers questioning was the judge's

idea.


        I disagree with the majority's characterization, from a legal analysis

viewpoint, of the issue resolved in In re Personal Restraint ofCoggin, 182 Wn.2d

115, 119, 340 P.Sd 810(2014)(plurality opinion)—a case that raised a public trial

violation in a personal restraint petition (PRP). What the court analyzed and held

was that in a PRP,the petitioner raising a public trial violation must establish not

only the constitutional violation but also the general requirement of establishing

prejudice on collateral review. Both the Coggin majority and dissent rejected the
In re Pers. Restraint ofSalinas, No. 91905-4
(Johnson, J., dissenting)


argument that any error was invited. Coggin provides no support for the majority's

new rule on invited error. The facts and procedure in Coggin mirror those

presented here, where defense counsel proposed individual juror questioning due to

the claimed publicity and sensitive nature of the case. The prosecutor drafted the

questionnaire, and defense counsel approved the final version. The questionnaire

allowed prospective jurors an opportunity to explain answers in a "closed hearing."

The court did not conduct a Bone-Club^ analysis. The lead opinion stated,"In

determining whether the invited error doctrine applies, we have considered

whether the defendant affirmatively assented to the error, materially contributed to

it, or benefited jftom it," and held that the defendant did not. Coggin, 182 Wn.2d at

119.


       In this case, the Court of Appeals analyzed the invited error claim and

correctly rejected that same argument because the facts did not rise to the level of

invited error. Here, defense counsel similarly proposed individual juror

questioning; defense counsel proposed a juror questionnaire allowing potential

jurors to indicate if they preferred to discuss their answers in private. Defense

counsel suggested—after the court already decided to question jurors in private—

that the court bring up and swear in prospective jurors, and subsequently release


         State V. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
In re Pers. Restraint ofSalinas, No. 91905-4
(Johnson, J., dissenting)


jurors that did not want to speak in private. The court later asked if there were any

objections, but it did not conduct a Bone-Club analysis. The record shows that the

actual closure decision, the questioning of prospective jurors privately in

chambers, and the mechanics of how this would be accomplished originated with

the trial judge. The record is clear that the trial judge erroneously believed the only

requirement was to ask if anyone objected.

       The majority points to the fact that defense counsel, in this case, played the

initiating role that led to the private questioning. Even if this were significant, the

defense played the initiating role in Coggin as well: the defense proposed

individual juror questioning. The distinguishing factor between Coggin and the

instant case was that the State created the questionnaire, but we do not decide

whether a case is or is not invited error based merely on who created the juror

questionnaire.^ The focus is on where the error occurs—^the decision to close the

proceeding without a Bone-Club inquiry.

       The facts and procedure in this case also mirror those presented in State v.

Hummel, 165 Wn. App. 749, 266 P.3d 269(2012), where the Court of Appeals


       ^ Our invited error analysis does not hinge on a proposed juror questionnaire because our
court rules assure prospective jurors that their private information need not be disclosed to the
public. For example, General Rule(OR)31 is a procedural tool that facilitates juror privacy. It
states, "Individual juror information, other than name, is presumed to be private." GR 3l(j). We
cannot find invited error where defense counsel proposes a questionnaire that merely recognizes
the basic understanding of court rules.
In re Pers. Restraint ofSalinas, No. 91905-4
(Johnson, J., dissenting)



reversed based on identical circumstances.'^ There, defense counsel proposed, and

the court adopted, a juror questionnaire allowing prospective jurors to inform

counsel and the court whether they preferred to discuss their answers in private.

The court asked if there were any objections, but it did not conduct a Bone-Club

analysis. Despite the defense wanting a juror questionnaire that suggested private

questioning, as in Coggin and the instant case, the Court of Appeals there correctly

did not find invited error. The facts ofthis case are in all material respects

identical.


       Here, at most, defense counsel proposed a questionnaire that asked if some

potential jurors might prefer discussing certain questions privately. The decision to

close the courtroom was made by the trial judge. The majority finds significance in

the fact that no objection was made. However, a failure to object is not required to

preserve the closure claim, nor does a failure to object constitute invited error.

       Where a public trial violation is raised in a PRP claiming ineffective assistance

of appellate counsel, our cases demonstrate that prejudice is presumed.In re Pers.

Restraint ofMorris, 176 Wn.2d 157, 166, 288 P.3d 1140(2012)(plurality opinion);In

re Pers. Restraint ofOrange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004). Because the




         In fact, the same trial judge presided in this case and Hummel.
In re Pers. Restraint ofSalinas, No. 91905-4
(Johnson, J., dissenting)



facts of this case did not rise to the level of invited error, the Court of Appeals

correctly held Hector Salinas is entitled to relief and should be affirmed.^




                                                                              V




       ^ Curiously, the majority includes a discussion and analysis of Weaver v. Massachusetts,
    U.S.     , 137 S. Ct. 1899, 198 L. Ed. 2d 420(2017), a case involving interpreting the Sixth
Amendment to the United States Constitution. Where we have resolved a state constitutional
claim, the United States Supreme Court lacks the power to overrule those cases. Oiu cases
analyze trial closures under both article I, sections 10 and 22. Even if Weaver can be read to
disallow relief under the Sixth Amendment, the heightened state constitutional rights and our
cases interpreting those provisions remain unaffected.
