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26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RONALD GLENN DAUGHERTY,

Petitioner,

v.

KENNETH QUINN,

Respondent.

Case No. C06-5051 FDB

ORDER ADOPTING REPORT AND

RECOMMENDATION DENYING

PETITIONER’S APPLICATION FOR

WRIT OF HABEAS CORPUS

This matter comes before the Court on the Report and Recommendation of the Magistrate

Judge that Petitioner’s request for habeas corpus relief be denied and the petition be dismissed with

prejudice. The Petitioner has filed Objections to the Report and Recommendation. 

Petitioner’s habeas corpus petition challenges his convictions of child molestation. The

victim of the crimes was Petitioner’s daughter. Petitioner claims the trial court violated his right to a

public trial when it excluded certain family members from the courtroom during the testimony of

Laura Daugherty (Petitioner’s wife and the victim’s step-mother). The State had moved to exclude

these family members as subpoenaed potential rebuttal witnesses to Mrs. Daugherty. 

As detailed by the Magistrate Judge, the Court of Appeals noted that the trial court did not

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26 ORDER - 2

completely close the court room. It merely ordered the five subpoenaed witnesses to remain outside

the court room during Mrs. Daugherty’s testimony. Although the Sixth Amendment provides that

criminal defendants have the right to a public trial, that right is balanced against other rights and

interests. See Waller v. Georgia, 467 U.S. 39, 45 (1984). In Waller, the United States Supreme

Court considered the total closure of a courtroom in the context of a seven-day suppression hearing

and formulated a test for determining when a criminal defendant's right to a public trial is outweighed

by other considerations. See Id. at 44-48. The Waller test includes the following factors: (1) absent

the closure, the overriding interest (of the trial court) is likely to be prejudiced; (2) the closure cannot

be broader than necessary to protect that interest; (3) the trial court must consider reasonable

alternatives to closing the proceeding; and (4) the trial court must make factual findings adequate to

support the closure. Id. at 48.

In the instant action, the Washington Court of Appeals found the Waller test satisfied. 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 trial court was within its right to exclude the witnesses under Rule 615 as potential

rebuttal witnesses. See, U.S. v. Ell, 718 F.2d 291, 292 (9th Cir. 1983). The closure was narrowly

tailored to meet the interests of Rule 615 as the exclusion was temporary, lasting only through the

testimony of Mrs. Daugherty. 

Petitioner’s Objections do not convince this Court otherwise. Although the State moved for

exclusion of the potential witnesses during the testimony of the victim daughter, the trial court ruled

these witnesses could remain in the court room during her testimony. The fact that these witnesses

may have exited the court room during the victim’s testimony does not provide a basis for habeas

corpus relief. Further, the fact that the subpoenaed witnesses ultimately were not called to provide

rebuttal testimony does not defeat the considered basis for the trial court’s Rule 615 exclusion order.

The Court, having reviewed Petitioner’s petition for writ of habeas corpus, Respondent’s

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26 ORDER - 3

answer, the Report and Recommendation of Magistrate Judge Karen L. Strombom, Objections

thereto, and the remaining record, does hereby find and ORDER: 

(1) The Court adopts the Report and Recommendation;

(2) Petitioner’s writ of habeas corpus (Dkt. # 1) is DENIED and DISMISSED WITH

PREJUDICE; and

(3) The Clerk is directed to send copies of this Order to petitioner, counsel for

respondent and to the Hon. Karen L. Strombom.

DATED this 15th day of September, 2006.

AFRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

Case 3:06-cv-05051-FDB Document 19 Filed 09/18/06 Page 3 of 3