                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                        September 29, 2015




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II


 In re the Matter of the Personal Restraint of:                      No. 41505-4-II

 DANIEL L. LONGAN,

                                Petitioner.                     UNPUBLISHED OPINION


       LEE, J. – Daniel Longan seeks relief from restraint imposed following his 2008 convictions

on three counts of first degree assault with firearm sentencing enhancements. He claims that his

restraint is unlawful because of a public trial violation, ineffective assistance of defense counsel,

prosecutorial misconduct, an improper special verdict form, and cumulative error. We hold that

none of these claims has merit. Accordingly, we deny his petition.

                                              FACTS

                                      Facts about the Offense

       The following facts are from this court’ s unpublished opinion in State v. Longan, noted at

151 Wn. App. 1061 (2009):

               At about 3:30 a.m. on March 20, 2007, in a high crime area of Longview,
       Officer Michael Berndt saw a green Honda turn quickly into an alley without
       signaling. Berndt followed the vehicle into the alley. The vehicle accelerated to
       50 mph and turned onto 32nd Avenue without signaling. Berndt activated his
       overhead lights and pursued the vehicle. Continuing to speed, the vehicle made a
       turn onto Washington Way without signaling. As the vehicle reached 60 mph,
       Berndt activated his siren. As the vehicle turned onto Nichols Boulevard, Brandt
       saw the passenger’ s arm out the window. After the vehicle turned onto 21st
       Avenue, Brandt saw three muzzle flashes in his direction from the passenger
       window and heard three loud bangs. He notified dispatch that shots were fired at
No. 41505-4-II


       him and continued his pursuit. After the vehicle turned onto Cypress Street and
       back onto 20th Avenue, Brandt saw two more muzzle flashes at him from the
       passenger window and heard two more loud bangs.

              Officer Kevin Sawyer joined in the pursuit. The vehicle crossed the Lewis
       and Clark Bridge into Oregon. After the vehicle turned onto Highway 30, Brandt
       and Sawyer saw another muzzle flash and heard another loud bang come from the
       passenger window of the Honda. The vehicle continued to speed between 70 and
       90 mph on Highway 30 until it hit spike strips and crashed. The officers arrested
       the vehicle’ s driver, Longan, and passenger, Heather Van Hooser, after they
       attempted to flee.

              The State charged Longan with three counts of first degree assault, all with
       firearm enhancements. A jury found Longan guilty on all three counts.

Longan, noted at 151 Wn. App. 1061, 2009 WL 2602063, at * 1.

                              Facts Relevant to Public Trial Issue

       Once the jury venire was assembled and before any voir dire questioning, the court asked

the following general question:

       THE COURT: Is there anybody here who knows of any reason whatsoever why
       you might not be able to sit on this case? We usually get one or two hands.

              Okay, yes, ma’ am?

       JUROR: I do have a health problem that could cause me to be late, or not very
       efficient.

       THE COURT: Okay.

              If—if you know what our schedule is, can you make that work?

       JUROR: I—there’ s— it’s doubtful—I mean, there’ s a doubt that I can.

       THE COURT: Okay.

       JUROR: If you’ d like, I could talk to you privately, if you’ d like to know more
       about that.

       THE COURT: All right, we’ ll come back to it.



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No. 41505-4-II




                  What is your name?

          JUROR: [J.W.].1

          THE COURT: Okay, we will come back to it, if need be.

Excerpt Verbatim Report of Proceedings (EVRP) (cause no. 37942-2-II) (June 23, 2008) at 12-

13.

          Before the trial court excused any jurors based on peremptory challenges, it had the

following discussion in the hallway outside of the courtroom:

          THE COURT: Ladies and gentlemen, if you’ d give us just a moment.

                   J.W.], if you would step out here with us.

          THE COURT: I was looking at that again, and I—I don’ t think this is a problem;
          all right?

                  Hang on just a moment, until [defense counsel] comes out.

                 Okay, I just wanted to ask you about the medical situation, preferably
          without a whole lot of people hearing.

          JUROR: Yes, I appreciate that.

                 It’s kind of complicated. First, I have [ inaudible] and I just—and that’ s a
          blood disease, by the way, okay? So— which causes me to have— to need
          phlebotomies, that type of things [sic].

                  But now I have a secondary condition, and for some reason, I’m having to
          go to the bathroom. Like this morning, I thought I would be late because I was in
          the bathroom a lot. And, so, that’ s— that was my concern, that I wouldn’ t even be
          here on times [sic].

                  So, that—if I were on the [inaudible] the jury—




1
    We use the juror’ s initials to maintain the juror’ s privacy.


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No. 41505-4-II


      THE COURT: We take a break about every hour and a half, or so, and if—I always
      tell the jury if anybody wants a break raise your hand and we’ ll take one, I’m not
      gonna ask you why.

      JUROR: Oh.

      THE COURT: Would that be sufficient for you, do you think?

      JUROR: If I could do that— I can— that ad they have on tv for a while, that’ s kind
      of me, you know, right now.

      THE COURT: Yeah, so, you think that’ ll be sufficient for you?

      JUROR: Yes, but then like—what happens if I’m late, like this morning? See, I
      just—I could’ ve been late.

      THE COURT: Yeah, okay.

      JUROR: Now, I’m fine now, it just seems like I just have that— that one time in
      the morning, and, so that was— but I’m just fine to be [ inaudible] here if you don’ t
      want me having to do that.

      THE COURT: Okay.

             All right. Thank you, ma’ am.

      JUROR: Sure. Thank you.

       STATE]: I think we’ re going to need [ inaudible] the record.

      THE COURT: [ Defense counsel], for the record, at this point, your client was
      comfortable with not coming out here to participate in this?

       DEFENSE COUNSEL]: I specifically advised him of his right to do so, and he
      indicated that he had no problem with my advice; that he would decline the
      invitation; and would be happy to put that on the record—

      THE COURT: Okay, yeah, we’ ll do that outside the presence of the jury.

EVRP at 107-09.




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No. 41505-4-II


                                             ANALYSIS

A.       PUBLIC TRIAL

         Longan asserts that he was denied his right to a public trial when the trial court conferenced

in the hallway outside the courtroom without conducting a Bone-Club2 analysis when the subject

of that conference was whether the juror’ s medical condition would prevent her from serving as a

juror.3 We disagree.

         1. Standard of Review

         The United States and Washington Constitutions guarantee a defendant the right to a public

trial. U.S. CONST. amends. VI, XIV; WASH. CONST. art. I, §22. Whether this right was violated

is a question of law that we review de novo. State v. Paumier, 176 Wn.2d 29, 34, 288 P.3d 1126

2012). The trial court may, under limited circumstances, close the courtroom after applying the

Bone-Club factors and making specific findings on the record justifying closure. “[ N]ot every

interaction between the court, counsel, and defendants will implicate the right to a public trial, or

constitute a closure if closed to the public.” State v. Sublett, 176 Wn.2d 58, 71, 292 P.3d 715

2012). Our Supreme Court has already established that certain proceedings implicate the public

trial right; for those proceedings that it has not, we apply the “experience and logic” test announced




2
    State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995).

3
  We stayed resolution of this petition until our Supreme Court decided State v. Njonge, 181 Wn.2d
546, 334 P.3d 1068 (2014), cert. denied, 135 S. Ct. 880 (2015); In re Pers. Restraint of Coggin,
182 Wn.2d 115, 340 P.3d 810 (2014); In re Pers. Restraint of Speight, 182 Wn.2d 103, 340 P.3d
207 (2014). We do not discuss Njonge, however, because it did not address whether excusing a
juror, privately questioned during voir dire regarding the juror’ s medical condition, violates the
public trial right. Rather, it held that the record was insufficient to show that a closure occurred.



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No. 41505-4-II


in Sublett to determine whether a courtroom closure implicating the public trial right has occurred.

176 Wn.2d at 75-78.4

        In order to prevail on collateral review of an alleged public trial violation, a petitioner must

show actual and substantial prejudice. In re Pers. Restraint of Coggin, 182 Wn.2d 115, 340 P.3d

810 (2014); In re Pers. Restraint of Speight, 182 Wn.2d 103, 340 P.3d 207 (2014). 5 Thus, Longan

has the burden of showing both a closure and actual and substantial prejudice. 6

        2. Actual and Substantial Prejudice

        Longan argues that the trial court closed the courtroom because the area in which the trial

court held its conference was in a hallway closed to the public. Relying on State v. Leyerle, 158

Wn. App. 474, 242 P.3d 921 (2010), where this court held that conducting individual voir dire in

the hallway violated the defendant’ s public trial right, Longan asserts a public trial violation. But




4
 Under this test, “ the experience prong . . . asks ‘ whether the place and process have historically
been open to the press and general public,’” and “[ t]he 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-Enter. Co. v. Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735, 92
L. Ed. 2d 1 (1986)). If the answer to both prongs is yes, the public trial right attaches, and the trial
court must conduct an on-the-record Bone-Club analysis before closing the proceedings. Sublett,
176 Wn.2d at 73.

5
  Longan argues that these cases have no precedential value because they are plurality opinions.
We disagree. “ When there is no majority opinion, the holding is the narrowest ground upon which
a majority agreed.” In re Pers. Restraint of Francis, 170 Wn.2d 517, 532 n.7, 242 P.3d 866 (2010).
Chief Justice Madsen, in her concurrence, explicitly stated that she agreed with the majority that a
petitioner must show actual and substantial prejudice. Coggin, 182 Wn.2d at 123. Thus, five
justices agreed on this point.

6
 In Paumier, the court considered the public trial violation on direct appeal, and therefore,
Paumier needed only to show a closure and not prejudice because prejudiced is presumed. 176
Wn.2d at 36. In our case Coggin and Speight apply, not Paumier.


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No. 41505-4-II


we need not address whether this was a closure because Longan cannot show actual and substantial

prejudice resulting from the trial procedure.

       The Coggin court noted: “‘ The public trial right serves to ensure a fair trial, to remind the

officers of the court of the importance of their functions, to encourage witnesses to come forward,

and to discourage perjury.’” Coggin, 182 Wn.2d at 121 (quoting State v. Brightman, 155 Wn.2d

506, 514, 122 P.3d 150 (2005)). What occurred here did not undermine or implicate any of these

goals. Juror J.W. was concerned that her medical condition might make it impossible for her to

get to court on time or require her to interrupt the trial in order to attend to her needs. The trial

judge afforded her some privacy in explaining her medical condition, which allowed the judge to

make his decision on a more informed basis. None of these concerns threatened the fairness of the

trial or any other goal of the public trial right in any fashion. Longan fails to show that a public

trial violation actually and substantially prejudiced him.

B.     INEFFECTIVE ASSISTANCE OF COUNSEL

       Longan next asserts five grounds supporting his claim of ineffective assistance of trial

counsel. To prevail, Longan must show that (1) the defense counsel’ s conduct was deficient, i.e.,

that it fell below an objective standard of reasonableness; and ( 2) such conduct prejudiced him,

i.e., that there is a reasonable possibility that, but for the deficient conduct, the outcome of the

proceeding would have differed. State v. Grier, 171 Wn.2d 17, 32-33, 246 P.3d 1260 (2011).

       A personal restraint petition must include as grounds for the requested relief a statement of

the facts supporting the claim of unlawful restraint and the evidence available to support these

factual allegations. RAP 16.7(a)( 2)(i);In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759

P.2d 436 (1988). The petitioner must state with particularity facts that, if proven, would entitle



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No. 41505-4-II


him to relief, and he must present evidence showing that his factual allegations are based on more

than speculation and conjecture. In re Pers. Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086,

cert. denied, 506 U.S. 958 (1992). Where the petition relies on conclusory allegations, we must

decline to determine its validity. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813-14, 792 P.2d

506 (1990).

       1. Public Trial Right

       Longan claims that trial counsel’ s failure to object to the hallway discussion violated his

right to effective assistance of counsel because it improperly closed the courtroom and prevented

him from participating in his own defense. This claim fails because Longan voluntarily absented

himself from the hallway discussion and because, as noted above, he cannot show prejudice.

       2. Lack of Investigation

       Longan claims that his trial counsel performed an inadequate investigation because he did

not investigate the bullet holes displayed in the police photographs of his car after the pursuit. He

claims that such an investigation may have revealed that the police shot back at the car, contrary

to the testimony of the police officers involved in the chase.

       In In re Personal Restraint of Davis, 152 Wn.2d 647, 721, 101 P.3d 1 (2004), our Supreme

Court noted that an attorney breaches his duty to his client if he fails “‘ to make reasonable

investigations or to make a reasonable decision that makes particular investigations unnecessary.’”

quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2062, 80 L. Ed. 2d 674 (1984)).

The court further explained that “[ d]efense counsel must, ‘ at a minimum, conduct a reasonable

investigation enabling [ counsel] to make informed decisions about how best to represent [ the]

client.’ This includes investigating all reasonable lines of defense, especially ‘ the defendant’ s



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No. 41505-4-II


most important defense.’” Id. at 721 (alterations in original) (citing In re Pers. Restraint of Brett,

142 Wn.2d 868, 873, 16 P.3d 601 (2001)).

         But Longan’ s claim here is purely speculative. He presents no evidence that the bullet

holes in his car resulted during the car chase.        As such, he fails to show that a reasonable

investigation would have led to exculpatory evidence that could have changed the trial outcome.

Williams, 111 Wn.2d at 365.

         3. Medical Records

         Longan next contends that defense counsel should have obtained his medical records from

an earlier emergency room visit to show that he was recovering from stab wounds and had to wear

a protective vest. He argues that this would have countered the State’ s claim that his “ intent is to

do battle.” Verbatim Report of Proceedings (VRP) (cause no. 37942-2-II) (June 24, 2008) at 150.

         But Longan does not provide these medical records and this court will not speculate as to

their content. Longan simply fails to support his allegations with any evidence, and thus, his claim

fails.

         4. Testimony

         Longan argues that trial counsel’ s failure to allow him to testify after assuring him that he

would get a chance to testify amounted to ineffective assistance of counsel. He argues that had he

been allowed to testify, he could have countered many of the State’ s claims by explaining that he

was fearful for his life, that he did not know that his passenger had a gun, and that he needed the

protective vest because he had been stabbed.

         Counsel violates a defendant’ s right to testify if the decision not to testify is made against

the defendant’ s will. State v. Borsheim, 140 Wn. App. 357, 375-76, 165 P.3d 417 (2007). But in



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No. 41505-4-II


a post-trial assertion of such a violation, the defendant has the burden of showing involuntariness.

State v. Robinson, 138 Wn.2d 753, 765, 982 P.2d 590 (1999). The Robinson court explained the

defendant’ s evidentiary burden:

                  We therefore conclude that in order to prove that an attorney actually
          prevented the defendant from testifying, the defendant must prove that the attorney
          refused to allow him to testify in the face of the defendant’ s unequivocal demands
          that he be allowed to do so. In the absence of such demands by the defendant,
          however, we will presume that the defendant elected not to take the stand upon the
          advice of counsel. If a defendant is able to prove by a preponderance of the
          evidence that his attorney actually prevented him from testifying, he will have
          established that the waiver of his constitutional right to testify was not knowing and
          voluntary.

Id. Other than his own self-serving statements, the record contains no evidence that trial counsel

acted against Longan’ s demands. This is insufficient to support his claim. Williams, 111 Wn.2d

at 365.

          5. Interview Witnesses

          Longan asserts that trial counsel provided ineffective assistance counsel by failing to

interview and present four witnesses, which deprived him of a defense. He argues that these

witnesses would have explained why he bought a protective vest and would have explained the

history between the defendant and his co -defendant. He attached affidavits from these witnesses

explaining how they would have testified. Each witness states that she would have testified that

Longan is a good and caring person. Three witnesses state that Longan was wearing a protective

vest because he had been recently stabbed in the back. And one witness states that Longan’ s co-

defendant is manipulative and deceitful.

          Longan’ s assertion of ineffective assistance of counsel fails for five reasons. First, ER 602

provides that a witness can only testify to matters within her personal knowledge. As none of the



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No. 41505-4-II


witnesses were present during the offense, none could testify to Longan’ s state of mind at the time

of the offense. In fact, none could provide any exculpatory testimony about the incident. They

could only relate that he had a medical reason to wear a protective vest.

       Second, had these witnesses presented character evidence on Longan’ s behalf, the State

would have been able to introduce Longan’ s history of criminal behavior, possession of firearms,

and drug use and sale. ER 404(a). Thus, it was a reasonable tactical choice to not have the jury

learn of Longan’ s past misbehavior.

       Third, defense counsel could reasonably have chosen not to introduce testimony about

Longan’ s medical need to wear a protective vest because this too would have allowed the State to

explore the details of this stabbing.

       Fourth, defense counsel also may have reasonably decided that a jury would not find such

testimony credible as the testimony at trial established that Longan drove purposefully, not

guarding a painful injury, making hard turns to give his co-defendant a better shooting angle.

       Finally, under ER 608(a)-( b), the trial court likely would have excluded the one witness’ s

testimony about the co-defendant’ s trustworthiness.       Longan simply fails to show that trial

counsel’ s decisions fell below an objective standard or that trial counsel’ s choices deprived Longan

of his right to effective assistance of counsel.

C.     PROSECUTORIAL MISCONDUCT

       Longan next asserts that the prosecutor’ s pretrial behavior amounted to reversible

misconduct because the prosecutor refused to plea bargain and entered into a disproportionate plea

bargain with his co-defendant. Specifically, he claims that his co-defendant was the more culpable




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No. 41505-4-II


party and fired all of the shots at the police while he drove, yet she received only a 15-year sentence

and the State’ s best offer to him was 29 years. He describes this as invidious discrimination.

       Prosecutors have broad discretion in making charging decisions. State v. Judge, 100 Wn.2d

706, 713, 675 P.2d 219 (1984). Charging some but not others guilty of the same crime does not

violate the equal protection clause unless the decision was made based on an unjustifiable standard

such as race or religion. Id. Longan fails to make such a showing here.

       The record shows that the State offered Longan a 29-year period of incarceration, dropping

all but one of the firearm enhancements, and reducing the charges to three counts of first degree

assault. Based on his criminal history, this was a mid-point standard range sentence. His co-

defendant, on the other hand, had no criminal history and the 15 -year sentence was a standard

range sentence that included a firearm enhancement. Nothing before this court shows that the

State treated him differently because he was a male. His claim fails.

D.     SPECIAL VERDICT INSTRUCTIONS

       Longan next argues that his special verdict instructions were flawed, relying on State v.

Bashaw, 169 Wn.2d 133, 234 P.3d 195 (2010), and State v. Goldberg, 149 Wn.2d 888, 72 P.3d

1083 ( 2003). But our Supreme Court overturned Goldberg and Bashaw in State v Nunez, 174

Wn.2d 707, 285 P.3d 21 (2012), so special verdict forms are no longer required to comply with

the Bashaw nonunanimity rule. This claim fails.

E.     CUMULATIVE ERROR

       Finally, Longan asserts that even if any single error was insufficient to deprive him of a

fair trial, an accumulation of errors requires a new trial. A defendant may be entitled to a new trial

when errors cumulatively produced at trial were fundamentally unfair. In re Pers. Restraint of



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Lord, 123 Wn.2d 296, 332, 868 P.2d 835, clarified by, 123 Wn.2d 737 (1994) ( citing Walker v.

Engle, 703 F.2d 959, 963 (6th Cir.), cert. denied, 464 U.S. 952 (1983)). The defendant bears the

burden of proving an accumulation of error of sufficient magnitude that retrial is necessary. Lord,

123 Wn.2d at 332. Longan does not, and his claim fails.

        We deny the petition.

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

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.




                                                                        Lee, J.
 We concur:



                    Bjorgen, A.C.J.




                       Maxa, J.




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