                                                                FILED 

                                                           SEPTEMBER 5, 2013 

                                                        In the Office of the Clerk of Court 

                                                       WA State Court of Appeals, Division III 




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Petition for Relief from Personal     )         No. 28165-5-III
Restraint of:                                   )
                                                )
                                                )         PUBLISHED OPINION
                                                )
WALTER WILLIAM COPLAND.                         )

       KULIK, J. -      After a long day of drinking with friends, Walter William Copland

fatally shot one of his friends in the head. A Benton County jury convicted him of first

degree manslaughter, with a firearm sentencing enhancement. In this timely petition, he

seeks relief from personal restraint, contending (1) his constitutional right to a public trial

was violated when some potential jurors were interviewed privately in chambers, and

(2) new evidence supports vacation of his judgment and sentence and the setting of a new

triaL We conclude that Mr. Copland's contentions are without merit. Accordingly, we

dismiss the petition.

                                            FACTS

       On September 15,2005, Mr. Copland and his friend John Stevens drank together

most of the day. They eventually ended up on Mr. Stevens's back patio, where they were
No. 28165-5-111
In re Pers. Restraint ofCopland


joined by a mutual friend, Al Anthis. At around 8:00 that night, Mr. Copland said to Mr.

Anthis, "You know, 1 could shoot you or kill you." Report of Proceedings (RP) at 689.

Mr. Anthis replied, "Well, bring it on." RP at 689. Mr. Copland then walked up to Mr.

Anthis, put a gun to his temple, and shot him. Mr. Stevens witnessed the shooting and

called 911. Afterward, Mr. Copland made several statements admitting that he fired the

fatal shot. 1

        The State charged Mr. Copland with first degree murder and first degree

manslaughter, both crimes committed while armed with a deadly weapon, "to-wit: .22

caliber handgun." Response Br., App. A. At trial, the defense was that Mr. Copland

lacked the mental capacity to commit either crime due to intoxication. The jury found

him guilty of first degree manslaughter and found by special verdict that he was armed

with a firearm. He was sentenced to 150 months, including a 60-month firearm

enhancement. This court affirmed his judgment and sentence on appeal. State v.

Copland, noted at 140 Wn. App. 1006, review denied, 163 Wn.2d 1036 (2008), 2007 WL

2254420. The mandate was filed on June 23, 2008.

        On June 15,2009, Mr. Copland filed this timely petition for relief from personal

restraint. After the response brief and the reply brief had been filed, the petition was



        1 The   facts are set out in State v. Copland, noted at 140 Wn. App. 1006, review

                                               2

No. 28 165-5-III
In re Pers. Restraint ofCopland


stayed pending the mandate in State v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012). In

supplemental briefing filed during the stay, Mr. Copland challenged the firearm

enhancement. The stay was lifted on January 11,2013, and the parties were asked to

address the applicability of Wise, State v. Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012),

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

       Relief by way of a collateral challenge to a judgment and sentence is extraordinary.

In re Pers. Restraint ofCoats, 173 Wn.2d 123, 132,267 P.3d 324 (2011). A personal

restraint petition filed within one year after the judgment and sentence is fmal generally

may challenge the conviction on any grounds, but must meet a high standard. Id. The

petitioner must show with a preponderance of the evidence that he or she was actually and

substantially prejudiced by a violation of constitutional rights, or that his or her trial

suffered from a nonconstitutional defect that inherently resulted in a complete miscarriage

ofjustice. Id.; In re Pers. Restraint ofBrett, 142 Wn.2d 868, 874, 16 P.3d 601 (2001).

Additionally, the petitioner may not renew an issue that was raised and rejected on direct

appeal unless the interests ofjustice require relitigation of that issue. In re Pers. Restraint

ofYates, 177 Wn.2d 1, 17,296 P.3d 872 (2013) (quoting In re Pers. Restraint ofDavis,

152 Wn.2d 647, 671, 101 P.3d 1 (2004)). Washington courts have limited the relief


denied, 163 Wn.2d 1036 (2008), 2007 WL 2254420.

                                               3
No. 28165-5-111
In re Pers. Restraint ofCopland


considered in the "interests ofjustice" to cases where an intervening change in the law or

some other circumstance justified the failure to raise a crucial argument on appeal. Id.

(quoting In re Pers. Restraint ofStenson, 142 Wn.2d 710, 720, 16 P.3d 1 (2001)). A

petitioner who renews an issue may not merely present different factual allegations or

raise different legal arguments. Id. (quoting Davis, 152 Wn.2d at 671).

                                        ANALYSIS

       Right to a Public Trial. Mr. Copland contends his constitutional right to a public

trial was violated when some of the potential jurors were interviewed privately in the

judge's chambers. The State contends Mr. Copland waived his right to raise the public

trial issue because he did not raise it on appeal. But a petitioner may raise issues in a

collateral challenge that were not raised on appeal, including arguments that the criminal

proceeding violated constitutional law. See RAP 16.4(c)(2).

       The state and federal constitutions guarantee criminal defendants a right to a

public trial. See CONST. art. I, § 22 (the "accused shall have the right ... to have a speedy

public trial"); U.S. CONST. amend. VI (''the accused shall enjoy the right to a speedy and

public trial"); In re Pers. Restraint ofOrange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004).

Additionally, article I, section 10 of the Washington Constitution guarantees the public's

open access to judicial proceedings ("O]ustice in all cases shall be administered openly").



                                              4

No. 28165-5-111
In re Pers. Restraint ofCopland


The public trial right is so important that its violation is considered a structural error,

meaning it affects the framework within which the trial proceeds. Wise, 176 Wn.2d at 5­

6. A violation of the public trial right is presumed prejudicial on direct appeal, even when

the violation is not preserved by objection. Id. at 16.

       Although vital, the right to a public trial is not absolute. Id. at 9; Paumier, 176

Wn.2d at 34-35. A trial court may close a courtroom if it first balances the public trial

right against competing rights and interests, using the five criteria established in State v.

Bone-Club, 128 Wn.2d 254,258-59,906 P.2d 325 (1995).2 Wise, 176 Wn.2d at 10. As

summarized in Wise, the Bone-Club criteria require the trial court, on the record, to at

least (1) state the public trial right that will be lost by moving proceedings into a private


      2 The Bone-Club factors include:
              "1. The proponent of closure or sealing must make some showing
      [of a compelling interest], and where that need is based on a right other than
      an accused's right to a fair trial, the proponent must show a 'serious and
      imminent threat' to that right.
              "2. Anyone present when the closure motion is made must be given
      an opportunity to object to the closure.
              "3. The proposed method for curtailing open access must be the
      least restrictive means available for protecting the threatened interests.
              "4. The court must weigh the competing interests of the proponent
      of closure and the public.
              "5. The order must be no broader in its application or duration than
      necessary to serve its purpose."
Bone-Club, 128 Wn.2d at 258-59 (alteration in original) (quoting Allied Daily
Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205,210-11,848 P.2d 1258 (1993».

                                               5

No. 28165-5-III
In re Pers. Restraint ofCopland


room, (2) identify the compelling interest that motivates the closure, (3) weigh the

competing rights, (4) give an opportunity to object, and (5) adopt the least restrictive

alternative of closure. Id. Although a trial court may close all or part of a trial after

considering the alternatives, it must'" resist a closure motion except under the most

unusual circumstances.'" Id. at 11 (quoting Bone-Club, 128 Wn.2d at 259).

       It is well settled that the public trial right extends to jury selection. Id. Relevant to

this case, the right applies to the questioning of individual prospective jurors. Id. (citing

State v. Momah, 167 Wn.2d 140, 151-52,217 P.3d 321 (2009); State v. Strode, 167

Wn.2d 222,227,217 P.3d 310 (2009». Mr. Copland contends the trial court did not

consider the Bone-Club factors on the record when it decided to interview certain

potential jurors in chambers. As a result, he asserts, the voir dire process was closed in

violation of the public trial right and the violation is presumed prejudicial. We fIrst

consider whether Mr. Copland meets the standards for relief afforded a petitioner in a

personal restraint petition.

       Prejudice Standard on Collateral Review ora Judgment and Sentence. Mr.

Copland contends he is entitled to relief because the trial court violated his constitutional

right to an open and public trial. Because he raises this issue in a collateral challenge of

his judgment and sentence, he must show with a preponderance of the evidence that he



                                               6

No. 28165-5-II1
In re Pers. Restraint ofCopland


was actually and substantially prejudiced by the constitutional violation. Coats, 173

Wn.2d at 132. At this time, the Washington Supreme Court has not resolved whether a

public trial violation is presumed prejudicial in a collateral challenge as well as in a direct

appeal. Morris declined to rule on this question: "We need not address whether a public

trial violation is also presumed prejudicial on collateral review because we resolve [Mr.]

Morris's claim on ineffective assistance of appellate counsel grounds instead." Morris,

176 Wn.2d at 166. Although a petitioner claiming ineffective assistance of counsel must

also show prejudice-due to the deficient performance of counsel-Morris found

prejudice in the fact that if appellate counsel had raised the public trial issue on appeal,

the defendant would have received a new trial due to structural error. Id.

       Previously, Orange, another collateral review of the public trial issue, reiterated

that the petitioner claiming constitutional error must show that the error'" worked to his

actual and substantial prejudice.'" Orange, 152 Wn.2d at 804 (quoting In re Pers.

Restraint ofLile, 100 Wn.2d 224,225,668 P.2d 581 (1983». Like Morris, however,

Orange found prejudice in review of the effectiveness of appellate counsel. Id. at 814

("had [Mr.] Orange's appellate counsel raised the constitutional violation on appeal, the

remedy for the presumptively prejudicial error would have been, as in Bone-Club, remand

for a new trial"). Orange quoted In re Personal Restraint ofSt. Pierre for the proposition



                                               7

No. 28165-5-III
In re Pers. Restraint ofCopland


that the petitioner's burden of establishing prejudice'" may be waived where the error

gives rise to a conclusive presumption ofprejudice.'" Id. at 804 (quoting In re Pers.

Restraint ofSt. Pierre, 118 Wn.2d 321,328,823 P.2d 492 (1992». But Orange also

noted that St. Pierre explicitly rejected the suggestion made in prior dicta that

constitutional errors that "are per se prejudicial on direct appeal 'will also be presumed

prejudicial for the purposes of personal restraint petitions.'" Id. (quoting St. Pierre, 118

Wn.2d at 328). Indeed, a petitioner raised a similar argument in In re Personal Restraint

ofBenn, 134 Wn.2d 868, 952 P.2d 116 (1998) when he claimed that an erroneous self-

defense instruction was presumptively prejudicial. The Supreme Court noted that

although the error was presumptively prejudicial when raised on direct appeal, "[t]here is

no presumption of prejudice when an instruction is challenged in a personal restraint

proceeding." Id. at 940.

       Recently, Coats examined the history of the personal restraint petition and noted

that, because the petitioner has had a prior opportunity for judicial review, the petitioner

must show that he or she was actually and substantially prejudiced by the constitutional

error. Coats, 173 Wn.2d at 132. This language seems to indicate that the petitioner must

show that he or she was personally and directly disadvantaged by the constitutional

violation. And Division Two of this court recently ruled, in part, that a collateral


                                              8
No. 28165-5-III
In re Pers. Restraint ofCopland


challenge based on an alleged public trial violation was not entitled to a presumption of

prejudice. See In re Pers. Restraint ofStockwell, 160 Wn. App. 172, 181,248 P.3d 576

(2011), review denied, _     Wn.2d _     (2013). Relying on Momah, Stockwell also held

that, under its particular circumstances, the closure ofjuror questionnaires was not a

structural error and affected, at most, the public's right to an open proceeding. Id.

       Considering the weight of opinion that-in almost all cases-petitioners must

show actual and substantial prejudice when they claim constitutional error on collateral

review, this court could dismiss Mr. Copland's public trial claim due to his failure to

argue anything but presumptive prejudice. 3 But also considering the Supreme Court's

specific reservation of a ruling on this issue, as well as the few cases like St. Pierre that

hold that some errors may be presumed prejudicial in personal restraint petitions, we are

not inclined to dismiss on this basis alone.

       Invited Error. The State also urges this court to dismiss because Mr. Copland

invited any public trial error by moving the trial court to close the entire jury selection



       3 For the first time in the reply brief, and again in a supplemental brief, Mr.
Copland contends he had ineffective assistance of appellate counsel and argues that he
was prejudiced because he would have been entitled to a new trial if the public trial
violation had been raised on appeal, citing Orange, 152 Wn.2d at 814-15 and Morris, 176
Wn.2d at 166. Because the issue of ineffective assistance of counsel was raised over one
year after Mr. Copland's judgment and sentence was mandated, it is untimely under
RCW 10.73.090(1) and it does not qualify for an exception to the one-year rule under

                                               9

No. 28165-5-III
In re Pers. Restraint ofCopland


process to the public. A party may not set up an error at trial and then complain of it on

appeal. Momah, 167 Wn.2d at 153; State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d

514 (1990) (quoting State v. Boyer, 91 Wn.2d 342,344-45,588 P.2d 1151 (1979)). To

determine whether the invited error doctrine is applicable to a case, we may consider

whether the petitioner "affirmatively assented to the error, materially contributed to it, or

benefited from it." Momah, 167 Wn.2d at 154.

       In Momah, defense counsel agreed to private questioning of potential jurors and

argued for expansion of the in chambers questioning. Id. at 146. Defense counsel also

actively participated in the questioning to determine the extent of the potential jurors'

prior knowledge of the case and their ability to be fair and impartial. Id. The trial court

did not, however, discuss the Bone-Club factors on the record before the partial closure.

Id. at 145-47. Although Momah found that this was not a "classic case of invited error,"

it applied the basic premise of the invited error doctrine to determine what relief should

be granted for insufficient consideration of the Bone-Club factors. Id. at 154-55.

Because defense counsel "made a deliberate choice to pursue in-chambers voir dire to

avoid 'contamination' of the jury pool by jurors with prior knowledge of [Mr.] Momah's

case" and actively participated in questioning as a tactical choice, Momah held that the


RCW 10.73.100.

                                             10
No. 28165-5-II1
In re Pers. Restraint ofCopland


closure was not a structural error and did not actually prejudice Mr. Momah. Id. at 155­

56.

       The facts ofMr. Copland's case present an even stronger argument for invited

error than the facts in Momah. Unlike in Momah, where the trial court took the initiative

in proposing that selected potential jurors should be questioned in chambers, defense

counsel here asked the trial court to close the courtroom to members ofthe media during

the jury process to prevent contamination ofpotential jurors. The State objected to full

closure as a potential public trial violation, but noted that individual private interviews of

jurors who indicated a desire for privacy might be constitutionally viable if a proper

record was made to support the decision. The court then denied defense counsel's motion

to close the courtroom during voir dire, but eventually agreed to allow the parties to

suggest prospective jurors that should be separately questioned. Defense counsel gave

the court a list ofpotential jurors to question in chambers and actively participated in the

screening.

       Mr. Copland's trial counsel initiated the closure, sought full closure ofthe

courtroom during voir dire, and benefited from the closure because it gave him the

opportunity to discover potential biases in the jurors. It appears that he actively pursued

and participated in the very error that he complains of in this petition: a claimed violation


                                              11 

No. 28165-5-II1
In re Pers. Restraint ofCopland


of his personal right to a public trial under article I, section 22. Momah, 167 Wn.2d at

153; Henderson, 114 Wn.2d at 870 (quoting Boyer, 91 Wn.2d at 344-45).4 This court

may dismiss on the basis of invited error, or may use the same facts to support dismissal

under Momah for failure to show prejudice.

       But a defendant may not be able to waive the public's right under article I, section

10 to open proceedings. Strode, 167 Wn.2d at 229 (four-justice plurality). Thus, even if

we consider dismissing Mr. Copland's article I, section 22 public trial issue as invited

error, we must analyze whether the public's right was violated and what effect that

violation had on Mr. Copland's conviction.

       Violation ofthe Right to a Public Trial. On March 27, 2006, before beginning voir

dire ofprospective jurors, Mr. Copland's trial counsel asked the court to close the

courtroom to members of the media during the jury process to prevent contamination of

potential jurors. In response, the prosecutor noted that Orange prohibits closure of the

courtroom during the jury selection process and said, "I just don't think we can run the

risk of having this case reversed on a decision that would appear to fly in the face of

decisions by the state [S]upreme [C]ourt." RP (Mar. 27,2006) at 271. The prosecutor

added, however, that one exception to complete closure is private interviews for jurors



       4 An argument could also be made that he knowingly, voluntarily, and intelligently

                                             12 

No. 28165-5-II1
In re Pers. Restraint ofCopland


who have notified the court that they want to talk privately in chambers, after the court

has made a proper record to support each private interview. The trial court denied

defense counsel's request to close the courtroom to the media, stating,

       [t]his court does not feel that the case law and the court rules would allow
       such a broad prohibition in regard to not being able to film during the
       course ofthe jury selection process.
               I would agree with [the prosecutor]. I think that there are special
       circumstances where an individual juror may have some issues regarding
       confidentiality, that those jurors could be perhaps interviewed in chambers,
       but a blanket prohibition on the media filming the jury selection process I
       don't think is permissible and I don't think it's appropriate.
               So, I'm going to deny that request.

RP (Mar. 27, 2006) at 272. Members ofthe media in the courtroom then indicated to the

trial court that they would comply with the court's request to film the jurors without

showing their faces. The transcript of the March 27,2006 voir dire proceedings is not in

the record, but the trial court indicated that it would begin by asking for a show of hands

from those potential jurors who knew the victim or details of the case, or who had other

conflicts. This information was expected to help flag the people who would be

interviewed privately. There is no evidence in the record or any showing by Mr. Copland

that any jurors were actually interviewed in private on this first day of voir dire.

       The next day, before beginning voir dire, the prosecutor and defense counsel



waived his right to a public trial proceeding. See Strode, 167 Wn.2d at 229 n.3.

                                              13
No. 28165-5-UI
In re Pers. Restraint ofCopland


addressed the court:

              MR. MILLER [the prosecutor]: I think just that there seems to be
       some jurors it makes sense to interview in chambers. I don't know what the
       court's feeling is. We do have t.v. cameras. Mr. Purtzer [defense counsel]
       and I had a previous discussion about people who have criminal history
       involving themselves or family members or indicate a significant alcohol
       problem with either themselves or somebody close to them. We may get
       more candor if it's done in chambers.
              MR. PURTZER: I agree. I think that's appropriate.
              MR. MILLER: They didn't necessarily check the last box, which is
       do you have anything you want to discuss privately, but, on the other hand,
       I'm not sure they're aware of the importance of alcoholism to this or
       alcohol abuse or use is in this trial. I think Mr. Purtzer and I both would be
       intending to ask relatively detailed questions about that, and I think also the
       same thing when you're talking about someone's criminal history and
       background either as a victim or as a defendant.
              THE COURT: Mr. Purtzer? 

              MR. PURTZER: No, I agree. I think we should do that. 


RP (Mar. 28, 2006) at 2-3. The trial court then asked the parties to identifY the

prospective jurors who should be privately questioned. Based on the responses to the

juror questionnaire, the prosecutor named seven or eight persons that he and defense

counsel had apparently agreed should be questioned apart from the other potential jurors.

Both parties agreed with the trial court that the named jurors would be asked about

alcohol history, criminal history, and the case's publicity. The trial judge and the parties

then recessed to reconvene in chambers and question the identified jurors.

       Voir dire continued on March 29,2006. Defense counsel presented the court with



                                             14 

No. 28165-5-II1
In re Pers. Restraint ofCopland


14 additional jurors he felt should be interviewed in chambers. The prosecutor then told

the court he wanted to make a record that three television stations were in the court and

that he and defense counsel would be interviewing in chambers only those jurors ''who

may have personal, private issues that they would be more likely to discuss in the privacy

of chambers as opposed to open court." RP (Mar. 29, 2006) at 12. Noting that the same

television stations were in the court the day before, the prosecutor stated that the media

had not objected on either day to the voir dire procedure: "So no media has been barred

from these chamber interviews that has objected to the process, and I think that the

reasons we're doing these select jurors, which my understanding has been approved by

the court, are for legitimate reasons andjustity the chambers approach." RP (Mar. 29,

2006) at 12. The court responded that the identified jurors had privacy issues and would

probably be more candid disclosing certain issues in chambers, "and for those reasons the

court does fmd those interviews in chambers are justified." RP (Mar. 29, 2006) at 13.

The trial court then asked the media representatives present in the courtroom if they had

any objection to jury selection proceedings. All of the media representatives indicated

that they had no objection.

       Our task is to determine whether the procedures adopted during these three days of

voir dire proceedings satisfied Bone-Club. Under the minimum Bone-Club criteria



                                             15 

No. 28165-5-III
In re Pers. Restraint ofCopland


established in Wise, we fIrst ask whether the trial court stated that the public trial right

would be abridged by moving voir dire for some jurors into chambers. Wise, 176 Wn.2d

at 11. Although the trial judge did not specifically use the words "right to public trial" or

"Bone-Club" in court, it is clear from the transcript that defense counsel's request to close

the courtroom duringjuror selection was rejected as a potential public trial violation.

Each of the parties understood that interviewing selected jurors in chambers impinged

upon the public's right to an open and public trial.

       The "compelling interest" mentioned by the parties as motivating the partial

closure (Wise's second factor) was threefold: to protect juror privacy in sensitive subject

areas, to allow jurors to be more candid in their answers, and to prevent contamination of

potential jurors from publicity. The larger interest protected is thus Mr. Copland's right

to an impartial jury and a fair trial. See Momah, 167 Wn.2d at 152 (voir dire is a

significant aspect of trial because it allows parties to secure their article I, section 22 right

to a fair and impartial jury through juror questioning).

       Under the third Wise factor (the fourth Bone-Club factor), the court must weigh on

the record the competing rights of the proponent of closure and the public. Wise, 176

Wn.2d at 10-11. When, as here, the defendant has requested the closure to ensure a fair

trial, his or her right to an impartial jury must be harmonized with the public's right to



                                               16 

No. 28165-5-UI
In re Pers. Restraint ofCopland


openness. Momah, 167 Wn.2d at 152. Here, the trial court refused defense counsel's

request to fully close the courtroom during voir dire, agreed with the parties' suggestion

that jurors with specific privacy and bias issues could be interviewed privately, and asked

the media representatives on the second day ifthey objected. The trial court in its ruling

on the closure stated that the privacy issues of certain jurors justified the interviews in

chambers. Compare Wise, 176 Wn.2d at 10 n.3 ("[J]uror privacy is an interest that a trial

court may consider when determining whether to close part of a trial, though it must be

weighed against the defendant's and public's interests in an open trial."). The court's

reluctance to close the courtroom and careful consideration of arguments from both

parties that partial closure was appropriate, implicitly-if not overtly-complied with the

Wise and Bone-Club requirement to weigh competing interests.

       The fourth Wise factor (and second Bone-Club factor) requires the trial court to

give the public an opportunity to object to closure. Wise, 176 Wn.2d at 10-11. Mr.

Copland contends the court's failure to ask those present in the courtroom on March 28,

2006, whether they had any objection to the partial closure was a violation of the public

trial right that requires reversal. (The audience was given an opportunity to object on

March 29,2006.) The record does not reveal whether other spectators were in the

audience, and Mr. Copland does not assert any public trial right other than the right ofthe



                                              17 

No. 28 165-5-III
In re Pers. Restraint ofCopland


media.

         It is still an open question whether a criminal defendant has standing to assert the

public's right to an open trial under article I, section 10. See Wise, 176 Wn.2d at 15-16

n.9 (citing Strode, 167 Wn.2d at 229 (four-justice plurality opinion stating that the

defendant cannot waive the public's right to open proceedings) and at 236 (Fairhurst, J.,

concurring, and stating that the defendant should not be able to assert the right of the

public or the press in order to overturn his or her conviction)). The trial court here did not

specifically ask those present in the courtroom on March 28, 2006, whether they had an

objection to the private questioning of some jurors in chambers. But when asked the next

day if they objected to the jury selection proceedings, the media representatives indicated

that they did not. And they did not rebut the prosecutor's statement that they had not

objected to the partial closures during voir dire on March 28,2006. Thus, even if Mr.

Copland has standing to assert the public's right to an open trial, he fails to show that the

right was violated or that he was ·prejudiced.

         The fifth Wise factor (and fifth Bone-Club factor) requires the trial court to adopt

the least restrictive alternative of closure. In this case, the trial court denied a defense

motion for full closure during voir dire and limited the private interviews to those jurors

who had indicated they had issues with alcohol use and criminal history or who had prior


                                               18 

No. 28165-5-III
In re Pers. Restraint ofCopland


knowledge of the case. Accordingly, the record shows that the trial court attempted to

adopt the least restrictive partial closure of voir dire.

       Conclusion: Application ofMomah. Here, as in Momah, defense counsel

"assented to the closure, argued for its expansion, had the opportunity to object but did

not, actively participated in it, and benefited from it." Momah, 167 Wn.2d at 151. Also

as in Momah, the trial court only agreed to in chambers questioning of some jurors after

consulting with defense counsel and the prosecutor and only to safeguard Mr. Copland's

constitutional right to a fair trial by an impartial jury. Id. Although the trial court did not

explicitly name each of the Bone-Club/Wise factors, the record here is at least as clear as

the record in Momah in showing that the trial court effectively considered those factors in

making its decision. See Momah, 167 Wn.2d at 155-56. Both Wise and Paumier

recognize the "unique facts" supporting partial closure in Momah. See, e.g., Wise, 176

Wn.2d at 15 ("The unique facts of Momah are not present in [Mr.] Wise's case. We

emphasize that it is unlikely that we will ever again see a case like Momah where there is

effective, but not express, compliance with Bone-Club."). As stated in the five-justice

majority in Paumier:

               Today's holding may seem in conflict with our previous decision in
       Momah, but it is not. As we made clear in Wise, Momah relied on unique
       facts to conclude that no public trial right violation occurred when the
       jurors were individually questioned. . .. Specifically, the defendant in

                                               19
No. 28165-5-111
In re Pers. Restraint ofCopland


       Momah "affirmatively assented to the closure of voir dire and actively
       participated in designing the trial closure and [] though it was not explicit,
       the trial court ... effectively considered the Bone-Club factors." Wise, 176
       Wn.2d at [14].

Paumier, 176 Wn.2d at 35-36 (alterations in original). Wise described the "unique facts"

ofMomah thus: "[A]lthough the [trial] court erred in failing to comply with Bone-Club,

the record made clear-without the need for a post hoc rationalization-that the

defendant and public were aware of the rights at stake and that the court weighed those

rights, with input from the defense, when considering the closure." Wise, 176 Wn.2d at

15.

       Here, even more than in Momah, the trial court attempted to employ Bone-Club

criteria, the record is clear that Mr. Copland and the public were aware of the public trial

right, and the trial court weighed the interests of all in determining the least restrictive

alternative. Even if the public trial issue had been raised on appeal, it appears likely that

it would not have justified reversal of the conviction. The closure occurred to protect Mr.

Copland's rights, did not actually prejudice him, and was not challenged by the public.

       The public trial rights under the Sixth Amendment to the United States

Constitution and article I, sections 10 and 22 of the Washington Constitution were not

violated by the partial closure of the jury voir dire in this case. Even if a violation had

occurred, Mr. Copland does not show actual and substantial prejudice to justify relief in

                                              20 

No. 28165-5-UI
In re Pers. Restraint ofCopland


this petition. Coats, 173 Wn.2d at 132.

       New Evidence. Mr. Copland next contends new material facts justify vacation of

his conviction in the interests ofjustice. RAP 16.4(c)(3). He attaches the declarations of

Kay Sweeney, a forensic scientist, and Dr. Emmanuel Lacsina, a forensic pathologist,

who state that the lack of blood spatter or gun residue on Mr. Copland or his clothing

shows that more likely than not he did not fire the gun that killed Mr. Anthis. In fact,

these experts state, the presence and placement of blood spatter and gun residue on Mr.

Anthis's ann and body indicate that he was holding the gun and shot himself. Mr.

Copland claimed at trial that he could not remember what happened that day. He

contends he could not have discovered this expert testimony before trial because he only

learned ofthe possibility that Mr. Anthis shot himself when the State's expert-Dr.

Daniel Selove-mentioned that possibility on the witness stand.

       When raised as a ground for relief in a personal restraint petition, "newly

discovered evidence" is subject to the same standards that apply to a motion for a new

trial. Benn, 134 Wn.2d at 886 (quoting In re Pers. Restraint ofLord, 123 W n.2d 296,

319,868 P.2d 835 (1994)). The petitioner must show that the evidence was discovered

after trial and could not have been discovered before trial in the exercise of due diligence.

Id (quoting Lord, 123 Wn.2d at 319-20). Here, Mr. Copland fails to show that he could


                                             21 

No. 28165-5-111
In re Pers. Restraint ofCopland


not have discovered the evidence before trial that Mr. Anthis shot himself. Ms. Sweeney

sUbjected Mr. Copland's clothing to a microscopic examination and decided that no trace

of blood or gun residue was present. Other than that test, she relied on evidence in the

trial record to reach her conclusion. Dr. Lacsina agreed with her conclusion, based on the

same evidence. Although Mr. Copland contends he could not discover this evidence

earlier because Dr. Selove's medical report did not mention the possibility of a self-

inflicted wound, the record shows that Mr. Copland had access to the same evidence and

could have found the same experts before trial. In fact, defense counsel's first questions

on cross-examination of Dr. Selove were whether the blood spatter on Mr. Anthis might

suggest a self-inflicted wound.

       A new expert opinion, based on facts available to the trial experts, does not

constitute newly discovered evidence that could not, with due diligence, have been

discovered before trial. State v. Harper, 64 Wn. App. 283, 293,823 P.2d 1137 (1992)

(citing State v. Davis, 25 Wn. App. 134, 138,605 P.2d 359 (1980)). Thus, Mr. Copland

fails to justifY vacation of his conviction under RAP 16.4(c)(3). Relief is not justified

under RAP 16.4(c)(3) for newly discovered evidence.

      Firearm Enhancement. Finally, Mr. Copland contends the trial court erred in

imposing a firearm enhancement when the charging document alleged possession of a



                                             22 

No. 28 165-5-III
In re Pers. Restraint o/Copland


deadly weapon. The same issue was raised and rejected on appeal. See Copland, 2007 


WL 2254420 at *4-5. Moreover, this issue was raised in an amendment filed 


after the statutory time limit and is not entitled to an exception to the one-year time bar. 


RCW 10.73.090(1), .100; Benn, 134 Wn.2d at 938-39. 


       Mr. Copland contends reexamination ofthe issue is required in the interests of

justice. As discussed above in the standards ofreview, Washington courts have limited

the relief considered in the "interests ofjustice" to cases where an intervening change in

the law or some other circumstance justified the failure to raise a crucial argument on

appeal. Yates, 177 Wn.2d at 17 (quoting Stenson, 142 Wn.2d at 720). Mr. Copland

contends two new cases support reexamination of the issue on collateral review, citing

State v. Recuenco, 163 Wn.2d 428, 180 P.3d 1276 (2008) and State v. Bainard, 148 Wn.

App.93, 199 P.3d 460, review granted, 166 Wn.2d 1010 (2009). Both cases are

distinguishable. In Recuenco, the defendant was charged with second degree assault with

a deadly weapon, .. , to-wit: a handgun,'" but the special verdict form directed the jury to

find whether he was armed with a deadly weapon. Recuenco, 163 Wn.2d at 431-32.

Despite the jury's finding that the defendant was armed with a deadly weapon, the trial

court erred by imposing a firearm enhancement. The facts in Bainard are similar: the jury

found by special verdict that the defendant was armed with a deadly weapon, yet he


                                              23 

No. 28165-5-II1
In re Pers. Restraint 0/ Copland


received the firearm enhancement. Bainard, 148 Wn. App. at 103-04.

       Here, the jury was instructed to determine by special verdict whether Mr. Copland

was armed with a firearm and he received a firearm enhancement. Even if Recuenco was

relevant to Mr. Copland's argument, it does not apply retroactively to his judgment and

sentence. In re Pers. Restraint a/Scott, 173 Wn.2d 911,920,271 P.3d 218 (2012).

       This untimely issue was raised and rejected on appeal and is without merit. No

retroactive, intervening change in the law justifies relief in the interests ofjustice.

       We dismiss the petition under RAP 16.11 (b) as without merit.




                                                     ~/;-'
                                                     Kulik, J.
                                                                                          -


WE CONCUR:




Sid~'                                                Brown, J.




                                              24 

