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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RONALD GLENN DAUGHERTY,

Petitioner,

v.

KENNETH QUINN,

Respondent.

Case No. C06-5051 FDB/KLS

REPORT AND

RECOMMENDATION

NOTED FOR:

August 18, 2006

This 28 U.S.C. § 2254 petition for habeas corpus relief has been referred to Magistrate Judge

Karen L. Strombom pursuant to 28 U.S.C. § 636 (b) and Local MJR 3 and 4. Petitioner seeks

federal habeas corpus relief pursuant to 28 U.S.C. § 2254. (Dkt. # 1). Respondent has answered. 

(Dkt. # 11). This matter is now ripe for review. 

I. INTRODUCTION

Petitioner is in the custody of the Department of Corrections (DOC) pursuant to a 1996

conviction of two counts of first degree child molestation, committed from October 1992 through

February 1994. (Dkt. # 12, Exh. 1). On December 19, 1996, Petitioner was sentenced to an

exceptional sentence of 178 months confinement. Petitioner’s possible early release date is May 27,

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2009. (Id. at Exh. 2). Petitioner challenges his convictions, claiming that the trial court violated his

right to a public trial when it excluded subpoenaed witnesses from the courtroom. 

II. STATEMENT OF THE CASE

A. Factual Background

The Washington Court of Appeals summarized the facts of Petitioner’s case as follows:

The victim in this case, Daugherty’s daughter, A.D., was born in

October 1984, shortly before Daugherty left the family to serve in the military

in Korea. Daugherty and his wife divorced while he was gone and he did not

see his children for almost five years. 

Daugherty remarried and took custody of the children. There

apparently were some family difficulties that caused Daugherty to send the

children to live with their paternal grandparents for about a year. While there,

A.D. told her grandmother that her uncle had improperly touched her vaginal

area. The grandmother thought A.D. was lying and spanked her.

When the children returned to live with Daugherty, he was single again

and had begun dating Laura, A.D.’s stepmother at the time of trial. 

Daugherty and Laura married in July 1993.

In late January or early February 1994, Laura noticed that A.D.

seemed upset and questioned her. Eventually, A.D. told Laura that Daugherty

had touched her vaginal area. Daugherty denied the allegations. The next day

Laura contacted the family pastor, Arthur Hunt. During Hunt’s subsequent

two meetings with A.D., she repeated her allegations in more detail.

A.D. told Hunt that Daugherty had told her that she had played with

his private parts when she was a baby. She also said that Daugherty had her

sleep in his bed during the time they lived in an apartment so she could wake

him when the alarm went off. A.D. said that Daugherty would then “play with

me when I was in bed. He touched my private parts, and I asked him to stop,

and [Daugherty] told me not to talk about it. He’d get in trouble, and I might

get in trouble too.” IV Report of Proceedings (RP) at 558. A.D. said that

Daugherty had touched her a couple of times after he married Laura. She also

told Hunt about the touching incident involving her uncle.

Hunt told the family they needed to call child protective services or he

would. Daugherty made the call and A.D. then repeated her allegations to

Joyce Epstein-Ross, a nurse practitioner who examined her; to Julie Case, a

child interviewer from the prosecutor’s office; and to Dolores Streeter

Beckner, a counselor who conducted meetings with the entire family. 

The State charged Daugherty in November 1995 with two counts of

first degree child molestation. The trial court found that A.D. was competent

to testify and that her statements to the above listed individuals were

admissible under the child hearsay statute, RCW 9A.44.120.

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During trial, A.D. lived in the family home with her father, who

continued to deny the allegations, and with Laura, who indicated that she did

not believe A.D.’s story. In October 1996, the jury found Daugherty guilty as

charged and the trial court imposed an exceptional sentence of 178 months.

More than 16 months later, while Daugherty’s appeal was pending,

A.D. wrote her father a letter in which she recanted her trial testimony,

asserting that her allegations were false. In May 1998, this court granted

Daugherty’s motion to remand his case to the trial court for a hearing on his

motion for a new trial.

A.D. testified at the remand but the trial court found her testimony not

credible and denied the new trial motion. We now consider Daugherty’s

appeal from that ruling, which we consolidated with his appeal from his

convictions.

(Dkt. # 12, Exh. 3, pp. 1-3).

B. Procedural History

Petitioner appealed to the Washington Court of Appeals. (Id. at Exh. 4). The court 

denied his appeal in an unpublished opinion. (Id. at Exh. 3). Petitioner then petitioned for review to

the Washington State Supreme Court. (Id. at Exh. 7). The Washington State Supreme Court denied

review without comment on October 29, 2002, and the Washington Court of Appeals issued its

mandate. (Id. at Exh. 8, 9).

Petitioner filed a personal restraint petition. (Id. at Exh. 10, 11). The Washington Court of

Appeals denied the petition. (Id. at Exh. 15). Petitioner moved for discretionary review in the

Washington Supreme Court, which was denied. (Id. at Exh. 16, 17). Petitioner moved to modify

the ruling and the court denied the motion without comment. (Id. at Exh. 18, 19). Petitioner’s

federal habeas corpus action was filed on January 31, 2006. (Dkt. #1).

C. Exclusion of Witnesses at Trial

Prior to the beginning of trial, the prosecutor indicated a desire to exclude certain family

members, including Linda Spurgin, petitioner’s sister-in-law; Kevin Spurgin, petitioner’s brother-inlaw, and Marilyn Cudney, a teacher’s aid, who worked with petitioner’s wife. The prosecutor

identified these individuals as potential rebuttal witnesses. (Dkt. # 12, Exh. 23, pp. 279-281). As

the State had not served any of the family members with subpoenas, the court did not rule on the

issue of their exclusion at that time. (Id. at 282). Before the petitioner’s wife was due to testify, the

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state served the witnesses with subpoenas, and the issue was again brought before the court. At that

time, the court heard extensive argument between counsel prior to concluding that the family

members should be excluded during the wife’s testimony:

THE COURT: All right, maybe I misunderstood you when you were

talking earlier. So you’re going to ask Mrs. Daugherty what kind of

atmosphere is at home, and these people are either going to

corroborate that or not corroborate that. So when she gets up on the

stand, if for example she were to say everything is warm and fuzzy at

home, and these people when you interview them say, no, things are

tense at home, then you’re going the call them in as witnesses.

MR. NEEB: Or if she said this has been a perfectly comfortable

environment for ‘the victim’ and she hasn’t been under any kind of

strain.

THE COURT: So those two people. Anybody else’s testimony

they’re going to be able to affect or not affect?

MR. NEEB: Of the other people in my case, no.

THE COURT: For Mrs. Daugherty and Amber Daugherty right now,

those folks are going to stay out in the hall. Before Amber testifies

we’re going to have a little hearing and find out if she feels she’s going

to be intimidated. If she is, they’re going to stay out.

(Id. at p. 357).

Following a weekend recess, the trial court held a hearing where the petitioner’s daughter

testified and each side was allowed to question her regarding her feelings about the presence of the

family members in the courtroom. At the conclusion of her testimony, the government asked that the

family members be excluded during the entire testimony in the trial. (Id. at Exh. 24, p. 375). The

court declined to go that far. After hearing argument of counsel, the court ordered the family

members to sit in the back row of the courtroom:

Okay. Well, I certainly can exclude them during Mrs. Daugherty’s

testimony because that’s where, if there’s anything they’re going to

say, it’s going to conflict with what she has to say. 

I think that these are hard cases, very difficult, but the legislature, like

[the prosecutor] said, has shown a tendency to want to protect the

alleged victim as much as possible from the severe consequences of the

courtroom.

So I’m going to at least order that they sit in the back row. That’s all. 

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But there is nothing that came out during this hearing that said that

what the alleged victim was going to say in this case was going to be

contradicted by anything they had to say; only what possibly might be

contradicted–they might contradict something that Laura Daugherty

has to say, and that’s all. And the reason for that is that this young lady

hasn’t talked to any of these people. She doesn’t have anything that

can be contradicted by anything they have to say.

(Id. at pp. 378-79).

III. ISSUES PRESENTED

 Petitioner presents the court with the following ground for relief:

The trial court denied petitioner’s right to a public trial when it

excluded his family members during parts of his trial.

(Dkt. # 1, pp. 7-9). 

 

IV. EVIDENTIARY HEARING

In a proceeding instituted by the filing of a federal habeas corpus petition by a person in

custody pursuant to a judgment of a state court, the “determination of a factual issue” made by that

court “shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1). Under 28 U.S.C. § 2254(e)(1), the

petitioner has “the burden of rebutting the presumption of correctness by clear and convincing

evidence.” Id. 

Where a petitioner “has diligently sought to develop the factual basis of a claim for habeas

relief, but has been denied the opportunity to do so by the state court,” an evidentiary hearing in

federal court will not be precluded. Baja v. Ducharme, 187 F.3d 1075, 1078-79 (9th Cir. 1999)

(quoting Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir. 1998)). On the other hand, if the petitioner

fails to develop “the factual basis of a claim” in the state court proceedings, an evidentiary hearing on

that claim shall not be held, unless the petitioner shows: (A) the claim relies on (i) a new rule of

constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was

previously unavailable; or (ii) a factual predicate that could not have been previously discovered

through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to

establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder

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would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2254(e)(2). 

An evidentiary hearing “is required when the petitioner’s allegations, if proven, would

establish the right to relief.” Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998). It “is not

required on issues that can be resolved by reference to the state court record.” Id. (emphasis in

original). As the Ninth Circuit has stated, “[i]t is axiomatic that when issues can be resolved with

reference to the state court record, an evidentiary hearing becomes nothing more than a futile

exercise.” Id.; United States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986) (evidentiary hearing not

required if motion, files and records of case conclusively show petitioner is entitled to no relief)

(quoting 28 U.S.C. § 2255). 

Here, “[t]here is no indication from the arguments presented” by petitioner “that an

evidentiary hearing would in any way shed new light on the” grounds for federal habeas corpus relief

raised in his petition. Totten, 137 F.2d at 1177. Because, as discussed below, the issues raised by

petitioner may be resolved based solely on the state court record and he has failed to prove his

allegation of constitutional errors, no evidentiary hearing is required. 

V. LEGAL STANDARDS

A. Standard of Review

Federal courts may intervene in the state judicial process only to correct wrongs of a

constitutional dimension. Engle v. Isaac, 456 U.S. 107 (1983). 28 U.S.C. § 2254 is explicit in that a

federal court may entertain an application for writ of habeas corpus “only on the ground that [the

petitioner] is in custody in violation of the constitution or law or treaties of the United States.” 28

U.S.C. § 2254(a)(1995). The Supreme Court has stated many times that federal habeas corpus relief

does not lie for errors of state law. Lewis v. Jeffers, 497 U.S. 764 (1990); Pulley v. Harris, 465 U.S.

37, 41 (1984); Estelle v. McGuire, 502 U.S. 62 (1991). 

Further, a habeas corpus petition shall not be granted with respect to any claim adjudicated

on the merits in the state courts unless the adjudication either (1) resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law, as determined

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by the Supreme Court; or (2) resulted in a decision that was based on an unreasonable determination

of the facts in light of the evidence presented to the state courts. 28 U.S.C. §2254(d). A

determination of a factual issue by a state court shall be presumed correct, and the applicant has the

burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C.

§2254(e)(1).

B. Exhaustion of State Remedies

In order to satisfy the exhaustion requirement, petitioner’s claims must have been fairly

presented to the state's highest court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v.

Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). The record reflects that petitioner exhausted his claim

in the state court within the meaning of 28 U.S.C. § 2254(b).

C. Right to Public Trial

The Sixth Amendment guarantees a defendant “the right to a speedy and public trial.” The

public trial right was created for the benefit of defendants. U.S. v. Sherlock, 962 F.2d 1349, 1356

(9th Cir. 1989) (citing Waller v. Georgia, 467 U.S. 39, 46 (1984); Gannett Co. v. DePasquale, 443

U.S. 368, 380 (1979)). It discourages perjury and ensures that judges, lawyers and witnesses carry

out their respective functions responsibly. Sherlock, 962 F.2d at 1356 (citing Waller, 467 U.S. at 46;

In re Oliver, 333 U.S. 257, 270 & N. 26 (1948)). 

The right to a public trial, however, is not absolute and must give way in some cases to other

interests essential to the fair administration of justice. Sherlock, 962 F.2d at 1356 (citing Waller, 467

U.S. at 45). The Ninth Circuit has upheld a partial closure where family members of the defendants

made the minor victim of a sexual offense feel uncomfortable. See Sherlock, 962 F.2d at 1357. 

“The protection of young victims of sex crimes from the trauma and embarrassment of public

scrutiny justifies closing parts of a criminal proceeding.” Id.

Moreover, the right to a public trial has always been interpreted as being subject to the trial

judge’s power to keep order in the courtroom. United States v. Hernandez, 608 F.2d 741, 747 (9th

Cir. 1979). A reviewing court must ascertain whether the trial court had a “substantial” reason for

the partial closure of a trial. Sherlock, 962 F.2d at 1357. And the court must narrowly tailor the

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closure to fit that reason. Waller, 467 U.S. at 45. The court must articulate the reason “along with

findings specific enough that a reviewing court can determine whether the closure order was properly

entered.” Id.

When a court orders limited closure, the court must satisfy three procedural requirements. 

Sherlock, 962 F.2d at 1358. First, the court must hold a hearing on the closure motion. The court

meets this requirement by giving the defendant the right to be heard. Id. Second, the court must

make factual findings to support the closure. Waller, 467 U.S. at 48. Third, the court must consider

reasonable alternatives to closing the courtroom. Id. 

D. Rule 615 - Exclusion of Witnesses

Rule 615 Federal Rules of Evidence provides, [a]t the request of a party the court shall order

witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the

order on its own motion . . . “. The rule makes the exclusion of witnesses a matter of right and “the

decision is no longer committed to the court’s discretion as it once was.” U.S. v. Ell, 718 F.2d 291,

292 (9th Cir. 1983) (citing Fed. R. Evid. 615 advisory committee note).

VI. DISCUSSION

Petitioner claims that the trial court violated his right to a public trial when it granted the

State’s motion to exclude members of his family from the courtroom during trial. The Washington

Court of Appeals rejected petitioner’s claim:

Daugherty claims that the trial court violated his right to a

public trial when it granted the State’s motion to exclude five

subpoenaed witnesses from the courtroom during Laura’s testimony. 

He contends that these subpoenas were a sham device designed to

exclude the friends and family members from the trial.

The sixth amendment to the United States Constitution and

article I, section 22 of the Washington Constitution, provide the

accused with the right to a public trial. Cohen v. Everett City Council, 85 Wn.2d 385, 387, 535 P.2d 801 (1975). We presume prejudice

when there is a violation of that right. State v. Bone-Cub, 128 Wn.2d

254, 261-62, 906 P.2d 325 (1995); State v. Collins, 50 Wn.2d 740,

745, 314 P.2d 660 (1957). The remedy for a violation is reversal and

remand for a new trial. State v. Rivera, 108 Wn. App. 645, 652, 32

P.3d 292 (2001).

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Daugherty equates the exclusion of the subpoenaed witnesses

during the testimony of one witness with a complete closure of the

courtroom. He then argues that when the trial court closed the court

without first considering the Bone-Club factors, it violated his

constitutional right to a public trial. 128 Wn.2d at 258-59.

In Bone-Club, the trial court cleared and closed the courtroom

during a pretrial suppression hearing at the State’s unexplained

request. 128 Wn.2d at 256-57. The Washington Supreme Court held

that the trial court should have considered five factors and made a

record before ordering the complete closure. Bone-Club, 128 Wn.2d

at 258-59, 261. Because it did not do so, the Supreme Court

remanded for a new trial. Bone-Club, 128 Wn.2d at 261.

But the trial court here did not completely close the

courtroom. It merely ordered the five subpoenaed witnesses, two of

whom the defense later called to testify, to remain outside the

courtroom during Laura’s testimony.

After the State moved for exclusion of the witnesses during

Laura’s and A.D.’s testimony, the trial court elicited the reasons for

the request and then heard testimony from A.D. on the issue. The

court then ruled that the potential witnesses could be present during

A.D.’s testimony but should step out during Laura’s.1

 Based on this

record and the limited nature of the trial court’s order, we find no

abuse of the court’s substantial authority to regulate the conduct of a

trial. See, e.g., State v. Johnson, 77 Wn.2d 423, 428, 462 P.2d 933

(1969); State v. Malone, 20 Wn. App. 712, 714, 582 P.2d 883 (1978). 

Further, we find no authority that would require the trial court to

engage in a Bone-Cluib analysis before taking this limited action. See

128 Wn.2d at 258-59; see also Waller v. Georgia, 467 U.S. 39, 45,

48, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (`1984) (under sixth amendment,

trial court must consider similar factors before ordering complete

closure).

[FN 1The trial court ordered the witnesses to sit in the back of the

courtroom during A.D.’s testimony but they apparently voluntarily left

the courtroom when she testified.]

(Dkt. 12, Exh. 3, pp. 3-5).

The Washington Court of Appeals was also concerned about potential abuse of the subpoena

power. However, because the trial court was careful to make a record of its basis for the witnesses’

exclusion and balanced the petitioner’s right to a public trial with the State’s interest in preserving

the integrity of the potential witnesses, the Court of Appeals was satisfied that petitioner’s

constitutional rights had been protected. (See Id. at 5).

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The Court of Appeals also reviewed petitioner’s concern that the State’s belabored

questioning of his wife as to the presence and identity of certain spectators and its reference to those

individuals again during closing argument “chilled” his right to an open trial:

This type of questioning and argument has the potential to result in an

improper partial closure of the courtroom by “chilling” the attendance

of spectators who fear being singled out. See, e.g., United States v.

DeLuca, 137 F.3d 24, 24, 32, 35 (1st Cir. 1998) (upholding partial

closure caused by screening mechanism that required spectators to

provide written identification before allowed into courtroom); People

v. Jones, 96 N.Y.2d 213, 750 N.E.2d 524, 525-26, 530, 726 N.Y.S.2d

608 (2001) (upholding partial closure caused by screening mechanism

where court officer posted outside courtroom during undercover

officer’s testimony). But nothing in the record before us indicates that

any person who wished to attend the trial failed to do so because of

the State’s actions. See, e.g., Hernandez v. State, 914 S.W.2d 218,

221-22 (Tex. Crim. App. 1996) (no sixth amendment violation where

sheriff’s department randomly photographed spectators before they

were allowed into courtroom; only one witness testified that she

stayed away because of screening mechanism and the presence of at

least 31 spectators suggested public attendance not chilled). Thus,

there is no evidence that Daugherty received anything but a public

trial.

 (Id. at 5-6).

Petitioner has failed to show how the trial court’s exclusion of his family members during his

wife’s testimony violated his right to a public trial. The trial court was within its right to exclude the

witnesses under Rule 615 as potential rebuttal witnesses during Laura Daugherty’s testimony to

prevent them from hearing her testimony. The closure was narrowly tailored to meet the interests of

Rule 615 as the exclusion of specific witnesses was temporary, during Laura Daugherty’s testimony

only, and the witnesses were allowed to reenter the courtroom immediately thereafter. After another

lengthy hearing, during which counsel argued and the child victim testified, the trial judge denied the

prosecution’s request to exclude the witnesses during the daughter’s testimony. The trial court

merely ordered them to sit in the back row of the courtroom. Thus, there is no evidence that the

petitioner was denied a public trial. 

Accordingly, the Washington Court of Appeals affirmation of the trial court’s decision was

not contrary to or an unreasonable application of, clearly established federal law, as determined by

the Supreme Court. 

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VI. CONCLUSION

Based on the foregoing discussion, the Court should DISMISS the petition WITH

PREJUDICE. A proposed order accompanies this report and recommendation.

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure,

the parties shall have ten (10) days from service of this Report to file written objections. See also

Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of

appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule

72(b), the clerk is directed to set the matter for consideration on August 18, 2006 as noted in the

caption. 

DATED this 20th, July, 2006. 

A

Karen L. Strombom

United States Magistrate Judge

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