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   IN THE SUPREME COURT OF THE STATE OF WASHINGTON




In the Matter of the Personal                )
Restraint of                                 )       No. 89693-3
                                             )
ROLAND ARTHUR SPEIGHT,                       )
                                             )
                      Petitioner.            )
                                             )       Filed          DEC 1 1 2014


       C. JOHNSON, I.-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 pubic trial right claim has merit, his

petition must be denied. Consistent with our holding in In re Personal Restraint of

Coggin, No. 89694-1 (Wash. Dec. 11, 2014), a petitioner claiming a public trial



       1
          This case was certified to this court by Division One of the Court of Appeals with In re
Personal Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014). Both cases present the same
central issue but were not consolidated.
In re Pers. Restraint of Speight, No. 89693-3


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

      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.

       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 sheriffs

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.




                                            2
In re Pers. Restraint ofSpeight, No. 89693-3


       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 ofjurors. 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

       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

rig;ht 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,

28~   P.3d 1126 (2012).



---------····---
        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 and J)ress' 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.


                                                   3
In re Pers. RestraintofSpeight, No. 89693-3


         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

e)~.tends   to the qlJestioningof individual prospective jurors. State v. Wise, 176

Wn.2d i, 16':'19, 288.1).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

~ither   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

mostunusual circumstances."' Wise, 17 6 Wn.2d at 11 (quoting Bone-Club, 128

\~n.2d      at 259). Here, the defendant's constitutional right to a public trial was
                           .                  '




violated.

         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). In State


                                                  4
In re Pers. Restraint of Speight, No. 89693-3


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.

       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


                                           5
In re Pers. Restraint of Speight, No. 89693-3


321, 328, 823 P.2d 492 (1992). We carved out an exception to this general rule in

In re Personal Restraint ofMorris, 176 Wn.2d 157, 166, 288 P.3d 1140 (2012),

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, slip op. at 10. 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 nlle for personal restraint petitions and show actual and substantial

prejudice.

       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.




                                             6
In re Pers. Restraint of Speight, No. 89693-3


                                   CONCLUSION

      The petition is denied.




WE CONCUR:




                                                \(~   ):r,p,;




                                          7
In re Pers. Restraint of Speight (Roland Arthur)




                                        No. 89693-3


       MADSEN, C.J. (concurring)-Like in the companion case, In re Personal

Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014), I agree with the lead opinion's

decision to deny Roland Speight's personal restraint petition, but for different reasons.

First, I believe that this court must decide whether motions in limine implicate the public

trial right, and I would decide this question in the negative. Second, I would hold that

Mr. Speight invited the judge to conduct portions of voir dire in chambers. Thus, in

contrast to the lead opinion and in line with my concurrence in Coggin, I believe we need

not determine the prejudice showing required of personal restraint petitioners.

       Nevertheless, because guidance is needed I would agree with the majority that the

error here, failure to engage in the analysis outlined in State v. Bone-Club, 128 Wn.2d

254, 906 P.2d 325 (1995), requires a petitioner in a personal restraint petition to prove

prejudice unless he can demonstrate that the error in his case '"infect[ ed] the entire trial

process"' and deprive the defendant of "'basic protections,"' without which '"no criminal
No. 89693-3
Madsen, C.J. concurring


punishment may be regarded as fundamentally fair."' Neder v. United States, 527 U.S. 1,

8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Brecht v. Abrahamson, 507 U.S.

619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rose v. Clark, 478 U.S. 570, 577,

578, 106 S. Ct. 3101, 92 L. Ed. 2d 460 (1986)).

                                         Discussion

       In contrast to the companion case, here the petitioner alleges two different public

trial right violations. First, he challenges the trial court's decision to hear argument on

motions in limine in chambers rather than in the courtroom, alleging that this behavior

implicated his right to a public trial. While venire members were filling out

questionnaires in the courtroom, the parties and the judge discussed motions in limine on

the record in chambers. The State moved to bar the defendant from inquiring about the

alleged victim's drug convictions. The defense brought several motions, including

motions for the State to disclose certain information, to exclude mention of prior contact

between the defendant and complainant, and to exclude mention of the defendant's

mental disorder. In addition to challenging the judge's consideration of these motions in

limine in chambers, Mr. Speight also makes an identical argument to William Coggin,

namely that the in-chambers voir dire questioning of some venire members violated his

public trial rights. In particular, the trial court conducted voir dire in chambers for 14

prospective jurors who had indicated a preference for private questioning on their written

questionnaire.




                                               2
No. 89693-3
Madsen, C.J. concurring


       In State v. Smith, this court outlined a three step inquiry to assess alleged public

trial right violations. 181 Wn.2d 508, 513,334 P.3d 1049 (2014) (citing State v. Sublett,

176 Wn.2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J., concurring)). We first consider

whether the public trial right is even implicated and only then determine whether there

was in fact a closure and, if so, whether that closure was justified. I d. The lead opinion

acknowledges this framework but does not use it to evaluate the petitioner's motion in

limine challenge. Lead opinion at 4-5. Instead, the lead opinion reasons that "[s]ince

jurors were privately questioned, a closure occurred, and we need not decide whether a

second closure exists in this case." Lead opinion at 5. I disagree with this analysis. The

petitioner raises two separate public trial right violations, each of which must be

separately analyzed. Before reaching the question of whether petitioners must prove

prejudice for collateral challenges to public trial rights, this court should consider, first,

whether the petitioner may be precluded from bringing the challenge due to invited error

or affirmative waiver and, second, following the three step analysis, whether his public

trial rights were violated.

       Turning first to the motion in limine issue, I would hold that under the first prong

of the Smith analysis, motions in limine do not implicate public trial rights. As the lead

opinion recognizes, under Smith's first step we use "the experience and logic test to

evaluate whether a particular proceeding implicates the public trial right." Lead opinion

at 4 (citing Sublett, 176 Wn.2d at 73).




                                                3
No. 89693-3
Madsen, C.J. concurring


       "The first part of the test, the experience prong, asks 'whether the place and

process have historically been open to the press and general public.'" Sublett, 176 Wn.2d

at 73 (quoting Press-Enter. Co. v. Superior Court (Press II), 478 U.S. 1, 8, 106 S. Ct.

2735, 92 L. Ed. 2d 1 (1986)). Motions in limine concern interlocutory pretrial decisions

made by the trial court, typically involving legal questions about the admissibility of

certain evidence. Often these pretrial decisions will be revisited during the course of

proceedings as the evidence develops. As with rulings on contemporaneous objections to

evidence, motions in limine are decided outside the hearing of the jury. See ER 103.

       In Smith, this court applied the experience and logic test to hold that sidebar

conferences involving evidentiary rulings on contemporaneous objections do not

implicate the public trial right. Smith, slip op. at 6-14. There, we noted the history of

conducting sidebars out of view of the public and the practical difficulties with removing

jurors from a courtroom. Id. at 7-8. The reasoning in Smith applies here. During voir

dire in Speight's case, the venire members were using the courtroom to fill out juror

questionnaires before counsel began voir dire questioning in court. The trial judge used

this downtime to discuss motions in limine in chambers rather than moving jurors in and

out of the courtroom multiple times.

       The second part of the test, the logic prong, asks '"whether public access plays a

significant positive role in the functioning of the particular process in question.'" Sublett,

176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). "The guiding principle [for the logic

prong] is 'whether openness will enhance[] both the basic fairness of the criminal trial



                                              4
No. 89693-3
Madsen, C.J. concurring


and the appearance of fairness so essential to public confidence in the system."' Smith,

slip op. at 6-7 (second alteration in original) (internal quotations omitted) (quoting

Sublett, 176 Wn.2d at 75). For motions in limine, I believe the answer to these questions

is no. In Smith, this court reasoned that sidebars do not "invoke any of the concerns the

public trial right is meant to address regarding perjury, transparency, or the appearance of

fairness." Smith, slip op. at 12. Specifically, we noted that the sidebars at issue were

immediately recorded and made available to the public and emphasized the dense legal

nature ofthe questions considered during such discussions. Id. at 12-13. The same

reasoning applies in the motion in limine context. Here, the motions in limine considered

in chambers were contemporaneously recorded verbatim. Thus, the public was not

denied access to the proceedings. As with sidebars, the presence of the public would not

have added anything to the discussion between the judge and counsel regarding questions

of admissibility under the rules of evidence.

       Applying the experience and logic test, I would hold that as long as these

discussions occur on the record and concern primarily evidentiary matters, the public trial

right does not attach.

       Turning to petitioner's second public trial right allegation, I would hold that Mr.

Speight invited the error of conducting voir dire interviews in chambers. As I outline in

my concurrence in the companion case Coggin, in the voir dire context the key inquiry is

whether the defendant '"actively participated"' in the conduct that led to the error.

Coggin, slip op. (concurrence) at 2-3 (quoting State v. Wise, 176 Wn.2d 1, 15 n.8, 288



                                                5
No. 89693-3
Madsen, C.J. concurring


P.3d 1113 (2002)). In State v. Momah, we reasoned that invited error principles applied

where defense counsel agreed beforehand to a juror questionnaire that permitted

individual questioning, never objected to the proposal to conduct this questioning in

chambers (presumably because the private questioning benefited his client), and actively

participated in the questioning. 167 Wn.2d 140, 145-46, 153-56, 217 P.3d 321 (2009);

see also Wise, 176 Wn.2d at 15 n.8 (reaffirming that defendants can invite public trial

violations, pointing to factors outlined in Momah). Similarly, here defense counsel

participated in a pretrial telephone conference between the parties and the judge where

they discussed the creation of a juror questionnaire that would allow jurors to note a

preference for private questioning. Defense counsel then participated in the questioning

of the 14 jurors that occurred in chambers without raising any objection. Though the

language ofthe questionnaire did suggest an "in court" private questioning experience to

the potential jurors, the totality of the circumstances demonstrate that the in-chambers

questioning was in line with defense counsel's expectations following the pretrial

telephone call. Defense counsel did more than simply acquiesce to the trial court's

decision to conduct questioning in chambers; he spoke with opposing counsel and the

judge about the need for a mechanism for private voir dire questioning, agreed to the

questionnaire proposed by the prosecutor, did not question the judge's decision to hold

that private questioning in chambers, and in fact engaged in questioning the prospective

jurors. By all accounts, defense counsel "actively participated" in the in chambers

questioning of jurors and consequently invited the public trial error that resulted.



                                              6
No. 89693-3
Madsen, C.J. concurring


       In sum, I would address petitioner's motion in limine challenge but would hold

that under our experience and logic test, motions in limine do not implicate public trial

rights. I would also dismiss petitioner's challenge to the voir dire procedure on invited

error grounds and thus would not reach the question of prejudice considered by the

majority. I concur in the majority's decision to deny Mr. Speight's petition.




                                              7
No. 89693-3
Madsen, C.J. concurring




                          8
In re Pers. Restraint of Speight (Roland Arthur)




                                     No. 89693-3




      STEPHENS, J. (dissenting)-This case turns largely on the same issue as In

re Personal Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014): whether a

personal restraint petitioner who suffered a violation of his right to a public trial

should be denied a new trial when the petitioner does not also allege ineffective

assistance of appellate counsel. I would hold that personal restraint petitioners

should not have to make a special showing of prejudice beyond establishing the

prejudice of structural public trial error. The reasoning and facts in both cases on

this issue do not differ, so I incorporate the reasoning from my dissent in Coggin

here. Because the lead opinion in both cases "requires personal restraint petitioners

to prove the impossible, and because its holding erodes the promise of open justice

in our courts, I respectfully dissent." Slip op. (dissent) at 2.

      I also point out that because I would grant William Speight's personal restraint

petition on the basis of the improper voir dire closure, it is unnecessary for me to

consider whether the closed motion in limine hearing also warrants a new trial. The

lead opinion does not have this luxury, though it practically ignores the motion in

limine issue. Lead opinion at 4-5. Having determined that the closure of individual

voir dire constituted a public trial violation, the lead opinion moves to the prejudice
In re Pers. Restraint of Speight (Roland Arthur), 89693-3 (Stephens, J. Dissent)




issue and finds no prejudice. I d. at 5-6 (citing Coggin, slip op. at 10). It concludes

that Speight was not actually and substantially prejudiced because "[a]s a result of

the individual questioning, he likely received a more fair trial and an impartial jury."

Id. at 6.

       The individual questioning of jurors took place after the motions in limine

were heard, so whatever prejudice might have occurred from the closed motion

hearing would already have tainted the trial before voir dire began. Thus, the lead

opinion needs to address the motions hearing, not only as to prejudice but as to

whether the public trial right attaches to such a hearing. Its conclusion that the closed

voir dire was not prejudicial because it likely benefited Speight is insufficient; how

did the closed motion hearing work to his benefit? 1 The lead opinion's prejudice

analysis is incomplete under its own post hoc analysis and provides no basis to

dismiss this personal restraint petition in its entirety. See Coggin, slip op. (dissent)

at 9 n.2 (explaining that the lead opinion's prejudice analysis constitutes a post hoc

appellate Bone-Club2 inquiry).


        1
         The State claims that the motions in limine occurred in chambers because the
venire was completing questionnaires in the courtroom. Resp. toPers. Restraint Pet. at 4.
So, it might be argued that the closure facilitated selecting an impartial jury because the
closure shielded prospective jurors from exposure to potentially inadmissible evidence.
This argument fails because the "purpose of a motion in limine is to dispose oflegal matters
so counsel will not be forced to make comments in the presence of the jury which might
prejudice his presentation." State v. Evans, 96 Wn.2d 119, 123, 634 P.2d 845 (1981). The
venire could have filled out questionnaires elsewhere while the court considered the
motions in limine in open court. See In re Pers. Restraint of Orange, 152 Wn.2d 795, 810,
100 P.3d 291 (2004) (concerns stemming from "courtroom management and convenience"
without consideration of the public trial right was insufficient to justify closure of voir
dire).
       2
         State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

                                            -2-
In re Pers. Restraint of Speight (Roland Arthur), 89693-3 (Stephens, J. Dissent)




       For these reasons, I respectfully dissent.




                                            -3-
In re Pers. Restraint of Speight (Roland Arthur), 89693-3 (Stephens, J. Dissent)




                                            4
