       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In the Matter of the Personal Restraint            No. 67484-6-1
of
                                                   DIVISION ONE
JEFFREY ROBERT McKEE,
                                                   UNPUBLISHED OPINION
                     Petitioner.
                                                   FILED: July 25, 2016

       Becker, J. — In 2005, a jury found Jeffrey McKee guilty on two counts of

first degree rape and determined that he committed both crimes with a firearm.

McKee's personal restraint petition contends that the trial judge violated his right

to a public trial by closing the courtroom during a portion of voir dire to allow

individual questioning of some of the prospective jurors. Individuals were

questioned in the courtroom outside of the presence of the other jurors, but the

record does not demonstrate that spectators were excluded. Because there is a

lack of evidence that a courtroom closure actually occurred, we deny the petition.

       After excusals for hardship, the court asked the remaining members of the

jury panel, more than 50, to answer a written questionnaire. Some questions

were designed to elicit particular knowledge or bias on the subject of rape. One

question asked if the juror would prefer to discuss any responses out of the

presence of other jurors. The judge informed the panel that the questionnaire
No. 67484-6-1/2



was to aid the attorneys and that one question asked whether "anybody wants to

be talked to individually."

       So that is one thing that we do. I mean, if there's—if you have
       personal information you are hesitant to share in front of a bunch of
       people, we will talk to you individually. There will still be the court
       staff here and the lawyers, but anybody that wants to have sort of a
       semi-private—and of course nobody will be allowed in the
       courtroom—question and answer session about something that
       they just don't feel real comfortable talking about in front of a group
       full of people, that will be part of it. The rest of it the lawyers will
       use these questions to, you know, figure out what kind of questions
       to ask what people, so they are just not facing you cold turkey. So
       that is the reason for this.


(Emphasis added.) Some potential jurors did respond in the affirmative that they

would rather be questioned in detail outside the presence of the other jurors.

The questioning of these jurors occurred in the courtroom and was transcribed.

        McKee contends the judge's statement that "of course nobody will be

allowed in the courtroom" proves that a courtroom closure occurred in violation of

his right to a public trial.

       The wrongful deprivation of the public trial right is a structural error

presumed to be prejudicial. State v. Wise, 176 Wn.2d 1, 14, 288 P.3d 1113

(2012). Before closing a trial to the public, the trial court must support the

decision by considering, on the record, the factors identified in State v. Bone-

Club. 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). Failing to consider the

Bone-Club factors before privately questioning potential jurors violates a

defendant's right to a public trial and warrants a new trial on direct review. In re

Pers. Restraint of Morris. 176 Wn.2d 157, 166, 288 P.3d 1140 (2012). It is

unnecessary to address whether a public trial violation is also presumed
No. 67484-6-1/3



prejudicial on collateral review because a claim like McKee's, brought as a

personal restraint petition, can be resolved on the grounds of ineffective

assistance of appellate counsel. Morris, 176 Wn.2d at 166. When appellate

counsel fails to raise a courtroom closure issue that would have been

presumptively prejudicial error on direct appeal, ineffective assistance by

appellate counsel has been established because there is both deficient

performance and prejudice. Morris, 176 Wn.2d at 166. Under Morris, the

analytical framework we follow to determine whether McKee is entitled to relief is

the same as on direct review.

       A three-step framework is used for analyzing whether a trial court violated

the defendant's public trial right: (1) Did the portion of the proceeding at issue

implicate the public trial right? (2) Was there a closure of that proceeding? and

(3) Was the closure justified through a Bone-Club analysis? State v. Gomez, 183

Wn.2d 29, 33, 347 P3d 876 (2015). The public trial right extends to jury

selection and applies to the questioning of individual prospective jurors. In re

Pers. Restraint of Mines, 190 Wn.App. 554, 564, 364 P3d 121 (2015). The trial

judge in this case did not conduct a Bone-Club analysis. We therefore focus on

the second step, whether a closure of the courtroom occurred during the

individual questioning of jurors.

       The requirement for a Bone-Club analysis comes into play when the

public is fully excluded from proceedings within a courtroom. Gomez, 183 Wn.2d

at 33. The appellant, or in this case the petitioner, bears the burden of supplying

a record that is sufficient to show that the proceeding in question was actually
No. 67484-6-1/4


closed. Gomez, 183 Wn.2d at 34. The burden is not to show that spectators

were in fact excluded as a result of the court's actions. Gomez, 183 Wn.2d at 34-

35. "Rather, the appellant must supply a record that reveals that the court took

actions amounting to a closure, such as explicitly issuing an order completely

closing the proceedings or moving the proceedings to chambers." Gomez, 183

Wn.2d at 35.


       The record does not include the questionnaire that was actually used, but

it does include the preliminary versions proposed by the prosecutor and defense

counsel who collaborated in producing the final version. Both parties proposed

to ask whether the juror would prefer to give responses outside the presence of

the other jurors.

       After the jurors returned their completed questionnaires, the 10 or so

jurors who had requested individual questioning were brought into the courtroom

one by one, questioned, and excused or sent back to the jury room. The

questions were typically phrased in terms of protecting the juror's privacy with

respect to other members of the jury, not with respect to the public in general.

For example:

             [DEFENSE COUNSEL]: My question is, is that something
       you wanted to discuss out of the presence of other jurors?

             [PROSECUTOR]: Okay. Is there anything else that you
       wanted to talk about outside the presence of the other jurors?

              [THE COURT]: Ms. Johnson. We're here because you have
       stated that you wanted to discuss something out of the presence of
       the whole jury.
No. 67484-6-1/5



The transcript mentions each time a different individual juror entered the

courtroom. The presence or absence of spectators in the courtroom is not

mentioned. When the individual questioning sessions concluded, the judge

directed that the remaining jurors be brought as a group into the courtroom to

hear "the rest of the jury selection instructions." The transcript states,

"PROSPECTIVE JURORS PRESENT." There is no indication that the courtroom

was reopened to allow spectators to come in, as one would expect to find if the

courtroom had previously been closed for the "semi-private" sessions.

       The transcript for the next day begins with a single juror present. This was

a juror whose request for individual questioning had been overlooked the

previous afternoon. The court said, "You asked to be talked to outside the

presence of everyone else. Can you tell me why? The juror answered, "Well,

just that there's some of the stuff I wanted to talk about.... I didn't necessarily

want to bring those up in front of everybody else." Again, though the court had

reverted to individual questioning, the record contains no mention of exclusion of

spectators while this individual was questioned and no mention of reopening the

courtroom when regular proceedings resumed.

       McKee points out that some of the jurors who were questioned individually

answered that they did not want to discuss certain information "in public," or "in

open court." But these answers are not evidence that the courtroom was actually

closed to members of the public. The court reporter was present, and her

function had previously been explained to the prospective jurors, so it is unlikely

they believed answers they gave during the individual sessions were completely
No. 67484-6-1/6


confidential. And even if they did, it is not evidence of conduct by the trial judge

that amounted to a courtroom closure.

       McKee contends the record is similar to that in State v. Briqhtman, 155

Wn.2d 506, 122 P.3d 150 (2005). Like here, the argument that a courtroom

closure occurred during jury selection turned entirely on brief remarks by the trial

court before jury selection began. The record contained no other reference to

spectators being in the courtroom or being denied access to the courtroom.

Briqhtman, 155 Wn.2d at 511. The court nevertheless held that a violation of the

public trial right was established because the plain language of the trial court's

ruling imposed a closure. "On appeal, a defendant claiming a violation to the

public trial right is not required to prove that the trial court's order has been

carried out." Briqhtman, 155 Wn.2d at 517.

       Briqhtman is dissimilar because the trial judge in that case stated in no

uncertain terms that observers would not be allowed to witness jury selection.

The judge directed the attorneys to tell interested observers they were not

allowed to be in the courtroom during jury selection. The judge ruled in plain

language that the courtroom would be open only after the trial began.

              "In terms of observers and witnesses, we can't have any
       observers while we are selecting the jury, so if you would tell the
       friends, relatives, and acquaintances of the victim and defendant
       that the first two or three days for selecting the jury the courtroom is
       packed with jurors, they can't observe that. It causes a problem in
       terms of security.
              When we move to the principal trial, anybody can come in
       here that wants to. It is an open courtroom.
              Any other problem?"

Briqhtman, 155 Wn.2d at 511.
No. 67484-6-1/7


       The record supplied by McKee does not reveal that the court took a similar

action amounting to a closure. The trial court's remark to the jury that "nobody

will be allowed in the courtroom" may have been a thought, perhaps even an

intention, but it was not an action or order. The court did not at any time direct

either the court staff or the attorneys to close the door, put up a sign, or instruct

people to leave. The judge's initial reference to a "semi-private" question and

answer session in which "nobody will be allowed in the courtroom" was not a

ruling. To interpret it as such would be inconsistent with the rest of the record

indicating that the uppermost thought for the court and the attorneys was to

encourage frank disclosure by removing the inhibiting presence of other jurors.

       Because of the lack of evidence that spectators were actually excluded,

the analogous case here is not Briqhtman but rather State v. Nionqe, 181 Wn.2d

546, 334 P.3d 1068, cert, denied, 135 S. Ct. 880 (2014). In Nionqe, the court

concluded, "On this record, while it cannot be determined conclusively that

observers were in the courtroom during the proceeding in question, neither can it

be said that the public was excluded. We have required a better factual record to

find a violation of this magnitude." Nionqe. 181 Wn.2d at 558 (footnote omitted).

We similarly hold that the record is not strong enough to support a determination

that the public was excluded. McKee has not established a public trial violation.

       McKee also argues that he is entitled to a new trial because of an

instructional error to which counsel did not object. A jury instruction stated that

juror unanimity was required to answer no to a special verdict interrogatory

asking whether the rapes were committed with a firearm. McKee contends the
No. 67484-6-1/8


instruction violated due process. He relies on State v. Bashaw, 169 Wn.2d 133,

234P.3d 195 (2010), overruled bv State v. Nunez, 174 Wn.2d 707, 285 P.3d 21

(2012). The aspect of Bashaw upon which McKee relies was overruled by

Nunez, a case he does not address. Following Nunez, we conclude McKee is

not entitled to relief on the basis of the special verdict instruction.

       The petition is denied.




WE CONCUR:




§£a^g               &^




                                                                          ro
                                                                          en




                                                                          O
