                                                                 FILED
                                                               JAN. 16,2014
                                                       In the Office of the Clerk of Court
                                                     W A State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE 


In re the Detention of:                       )         No. 30752-2-III
                                              )
                                              )
                                              )         UNPUBLISHED OPINION
DONALD T. TOWNSEND.                           )
                                              )

       KULIK, J. - This is the second time this case is before us. In an unpublished

decision, we held that the trial court erred by sealing juror questionnaires without a Bone­

Club 1 analysis. However, we concluded that there was no structural error or prejudice to

Donald Townsend and remanded for reconsideration of the sealing order based on the              I
                                                                                                I
                                                                                                !
Bone-Club factors. In re Det. ofTownsend, noted at 157 Wn. App. 1039,2010 WL                    I
                                                                                                ,
3221940. Upon remand, the trial court weighed the Bone-Club factors and determined
                                                                                                I
                                                                                                I
the sealing was proper. Mr. Townsend appeals that decision, contending the trial court's        I
                                                                                                I
                                                                                                i
                                                                                                ,
                                                                                                !
failure to evaluate the Bone-Club factors in the ftrst trial cannot be remedied by a

retroactive Bone-Club hearing. We disagree and afftrm the trial court.                          I
                                                                                                f
                                                                                                I
                                                                                                i
                                                                                                f
                                                                                                f

       1 State   v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995).
No.30752-2-III
In re Det. ofTownsend


                                           FACTS

       In February 2009, a jury found that Mr. Townsend was a sexually violent predator.

Two days after the jury returned its verdict, the court, on its own motion, sealed juror

questionnaires, which had asked whether the juror or someone close to the juror had

experienced or been accused of sexual assault. Mr. Townsend appealed, arguing that the

trial court's procedure in summarily sealing the juror questionnaires, without considering

the Bone-Club factors, was a structural error that required a new trial, or, alternatively, a

remand for reconsideration of the order to seal based upon the required factors. We

affirmed the civil commitment, but remanded the matter for a Bone-Club hearing to

reconsider the sealing of the questionnaires. The Washington Supreme Court denied Mr.

Townsend's petition for review.

       At the hearing on remand, Mr. Townsend argued that the court's initial failure to

conduct a Bone-Club analysis could not be remedied by a retroactive application of the

Bone-Club factors. He argued, "to go back now and no matter how we do it, it still won't

give my client the benefit ofjury selection in an open forum." Report of Proceedings at

10. The State argued that the law of the case doctrine precluded revisiting the issue of

remedy. The trial court concluded the sealing was proper under Bone-Club, finding in

relevant part:



                                              2

No.30752-2-III
In re Del. o/Townsend


               5. All present at the time of the motion for reconsideration was
       heard were given an opportunity to object to the sealing of portions of these
       questi onnaires.
               6. No one present at the time the motion for sealing the
       questionnaires objected to the sealing of portions of these questionnaires.
               7. The sealing of only portions of the certain questionnaires is the
       least restrictive means available for protecting the threatened interests.
               8. The Court weighed the competing interests of the proponent of
       closure and the pUblic. The sealing of only portions of certain
       questionnaires was the result of this weighing by the Court.
               9. This order is no broader in its application or duration than
       necessary to serve its purpose. The sealing of only portions of certain
       questionnaires will protect Respondent's compelling interests and the public
       interests as well.

Clerk's Papers at 362.

       Mr. Townsend appeals.

                                        ANALYSIS

       Mr. Townsend contends he is entitled to a new trial because the trial court's failure

to evaluate the Bone-Club factors before sealing the juror questionnaires cannot be cured

by a retroactive application of the factors. Specifically, he contends that a Bone-Club

hearing after trial fails to fully address the effects of a closure because "there was no

actual opportunity for a member of the public to object to the closure." Appellant's Br. at

12. The State responds that Me Townsend is precluded by the law of the case doctrine

from revisiting the issue of remedy.




                                              3

No. 30752-2-III
In re Det. o/Townsend


       "The law of the case doctrine provides that once there is an appellate court ruling,

its holding must be followed in all of the subsequent stages of the same litigation." State

v. Schwab, 163 Wn.2d 664,672, 185 P.3d 1151 (2008) (citing Roberson v. Perez, 156

Wn.2d 33, 41, 123 P.3d 844 (2005)). Thus, '" questions determined on appeal, or which

might have been determined had they been presented, will not be considered on a

subsequent appeal if there is no substantial change in the evidence.'" Folsom v. County

o/Spokane, 111 Wn.2d 256,263,759 P.2d 1196 (1988) (quoting Adamson v. Traylor, 66

Wn.2d 338,339,402 P.2d 499 (1965)).

       Under RAP 2.5(c)(2), we have the discretion to review an earlier decision in the

same case and, where justice would best be served, decide the case on the basis of our

opinion of the law at the time oflater review. However, we usually only reconsider a

decision where (1) the decision is "clearly erroneous" and would work a "manifest

injustice" to one party if the decision were not set aside or (2) where there has been an

"intervening change in controlling precedent" between the time of trial and appeal.

Roberson, 156 Wn.2d at 42.                                                                    I

       Here, the issue of remedy was briefed by the parties and considered by this court in

Townsend. In the first appeal, Mr. Townsend argued that the trial court violated his
                                                                                              I
public trial right by sealing juror questionnaires after trial without analyzing the
                                                                                              I
                                                                                              t
                                                                                              t
                                              4                                               t
                                                                                              f
                                                                                              i
                                                                                              I
                                                                                              i
No. 30752-2-111
In re Det. ofTownsend


courtroom closure factors required by Bone-Club. He asked us to reverse and remand for

a new trial or, alternatively, remand for a Bone-Club hearing. We held the trial court's

failure to conduct a Bone-Club hearing was not structural error2 and, therefore, reversal

for a new trial was unnecessary. In determining that the error was not structural, we

noted the questionnaires were used only for jury selection, which occurred in open court,

and that nothing indicated the questionnaires were not part of the open public proceedings

during the four-day jury selection process or prior to their sealing after trial.

       In this second appeal, Mr. Townsend points to no controlling change in precedent.

Nor can he argue our decision was clearly erroneous. Relying on our State Supreme

Court's plurality decision in In re Detention ofD.F.F., 172 Wn.2d 37, 256 P.3d 357

(2011), Mr. Townsend contends that remand for a Bone-Club hearing does not address

the fundamental violation of his constitutional right to a public trial. He maintains the

court's findings of fact 5, 6, 8, and 9 illustrate the inadequacy of a remand hearing

because a Bone-Club analysis is meaningless after trial.




       2  Structural error is error that defies harmless error analysis and'" necessarily
render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.'" Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546,
165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1,9, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999)).

                                                                                             i
                                               5
                                                                                             f
                                                                                             ~
                                                                                             I

                                                                                             I
No.30752-2-III
In re Det. ofTownsend


       Detention ofD.F.F. is inapposite. In that case, the court unanimously held that

Mental Proceeding Rules (MPR) 1.3, which requires automatic closure of involuntary

commitment proceedings, violated the right to a public trial. The lead opinion, signed by

four justices, held that the violation constituted structural error, entitling D.F.F. to new

commitment proceedings regardless of whether prejudice could be shown. Det. of

D.F.F., 172 Wn.2d at 42-43. The two concurring justices concluded that D.F.F. was

entitled to a new proceeding because sufficient prejudice had been shown. Id. at 48-49.

       Unlike Detention ofD.F.F., the error here was not structural and therefore a new

trial was not warranted. The juror questionnaires were used as screening tools and were

available for public inspection during and after trial, voir dire occurred in open court, and

the public had the opportunity to observe the proceedings. In view of these facts, we

agreed with Mr. Townsend's suggestion to remand for a Bone-Club hearing. Our

Supreme Court has recently held that when an appellant seeks a new trial to remedy an

alleged violation of the public's right to open records-without also demonstrating an

infringement of his right to a public trial-the alleged error does not warrant a retrial.

State v. Beskurt, 176 Wn.2d 441,447,293 P.3d 1159 (2013). Here, everything "that was

required to be done in open court was done." Id. at 447-48.




                                              6

No.30752-2-II1
In re Det. ofTownsend


       Mr. Townsend has not demonstrated that our earlier decision was "clearly

erroneous" or that there has been an "intervening change in controlling precedent" to call

into question our decision. Therefore, Townsend is the law of the case.

       There is no basis to revisit our decision in Townsend. The trial court's sealing of

juror questionnaires after trial was not reversible error necessitating a new trial.

       We affirm.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.


                                            Kulik, J.

WE CONCUR:




Brown, 1.




                                               7

