Personal Restraint Petition Of Jeffrey Robert Mckee ( 2016 )

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UNPUBLISHED OPINION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
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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 Wash. 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 Wash. 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 Wash. 2d 157, 166, 288 P.3d 1140 (2012). It is
unnecessary to address whether a public trial violation is also presumed
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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 Wash. 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 Wash. 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
Wash. 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 Wash. 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 Wash. 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
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closed. Gomez, 183 Wash. 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 Wash. 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
Wash. 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.
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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
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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
Wash. 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 Wash. 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 Wash. 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 Wash. 2d at 511.
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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 Wash. 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 Wash. 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
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instruction violated due process. He relies on State v. Bashaw, 169 Wash. 2d 133,
234P.3d 195 (2010), overruled bv State v. Nunez, 174 Wash. 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:
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