### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

Inthe Matter ofthe Personal 

### ) Restraint of 

### ) No. 89693-3 

### ) ROLAND ARTHUR SPEIGHT, 

### ) ) Petitioner. 

### ) 

## DEC 1 12014 ) Filed
C. JOHNSON, I.-PetitionerRonald Speight filed a timelypersonal restraint petition, claiming for the first time on collateral reviewthat his right to a public trial under article I, section 22 ofthe Washington State Constitution, was violated whenthe trial court decided motions in limine and individually questioned potentialjurors in chambers. 1 

### While Speight's public trial right claim has merit, his petition mustbe denied. Consistent with our holding in

### In rePersonalRestraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014), a petitioner claiming apublic trial

1This case was certified to this courtby Division One ofthe Court ofAppeals withIn re PersonalRestraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014). Both cases present the same central issuebutwere not consolidated.

### In rePers. Restraint of Speight, No. 89693-3 rightviolation for the first time on collateral review must show actual and substantial prejudice. Speight cannot show actual and substantial prejudice arising from the closure; therefore, his petitionis denied. FACTS AND PROCEDURAL HISTORY 

### OnDecember 3, 2004, Speight drove KellyNixonto an innwhere Speight
was performing routine maintenance as a caretaker. While at the inn, Speight forced Nixon into oral and vaginal intercourse, resulting intorn clothing and injuries to Nixon's face and leg. Speight was charged with second degree rape in San Juan County. Atthe beginning of jury selection, thejudgehadjurors fill out questionnaires regarding any experiences theymayhave had with a sexual offense. While thejurors were filling out these questionnaires, the trialjudge, counsel, the clerk, the sheriffs deputy, and the court reporter went into thejudge's chambers for motions in limine. Then, inresponse to thejuror's answers to the questionnaires, 14 prospectivejurors were questioned in chambers without the court engaging in the analysis requiredbyState v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). Severalprospectivejurors were then excused or dismissed for cause.



### 2

### In re Pers. Restraint ofSpeight, No. 89693-3 Speight was convicted ofsecond degree rape, and in 2006, the Court of Appeals affirmed his convictions in an unpublished opinion.2 

### Speight filed a timely personal restraint petition in 2007, arguing thathis rightto a public trial was violated during the in-chambers conference regarding the motions in limine and the individual questioningofjurors. 3 

### Division One stayed the petitionmultiple times, pending decisions by this court. Division One ofthe Court ofAppeals then certified the case to this court in December 2013, alongside 

### Coggin. ANALYSIS Speight claims thathe was denied his constitutional public trial right during pretrial in-limine rulings and thejury selection process. A criminal defendant has a rig;ht to a

### public trial as

### guaranteed by our state and federal constitutions. U.S. CONST. 

### amend. VI; WASH. CONST. art. I,§ 22 (providing "the accused shall have the right
... tohaye a speedy public trial"); 

### State v. Paumier, 176 Wn.2d 29, 34, 288 P.3d 1126 (2012).

,• ', ' .



### ----------·--- 2 State v. Speight, noted at 136 Wn. App. 1006 (2006). 3 In his opening brief, Speight asserts that his article I, section 22 rights to a public trial and the public and !)tess's article I, section 10 rights to a public trial were violated. WASH. CONST. art. I, §§ 10, 22. However, Speight does not further analyze whether the public's right was violated during the individual questioning of jurors or whenthe motions in limine were decided in chambers. Therefore, we will analyze only the public trial right issue under article I, section 22. 3

### In re**P~rs.** 

### RestraintofSpeight, 

### No. 89693-3
We have repeatedly held thatthe public trial right applies tojury selection. Specifically, it is well established thatthe public trial right in voir dire proceedings**e~tends** 

### to

### the qtlestioningofindividual prospectivejurors. State v. Wise, 

### 176 Wn.2d 

### 1, l(j719, 288. V3d 1113 (2012). While the right to a public trial is not**absolute~** 

### the trial court here did not conduct the analysis required by Bone-Club 

### either implicitly or explicitly and therefore, the closure violated the defendant's right to a public trial. The State argues thatthe closure satisfies the five factors required byBone-Club, 

### but "[a] trial court is required to consider theBone-Club 

### factors before 

### closing a trial proceeding that should be public." Wise, 

### 176 Wn.2d at 12 (citing Bone-Club, 

### 128 Wn.2d at 261). Fromthe record, the trial court did not

.. 

### consider any ofthese factors in its decision whether to question individualjurors in chambers.J.v1oreover, a trial court should "'resist a closure motion except under the mostunusual circumstances."' Wise, 

### 176 Wn.2d at 11 (quotingBone-Club, 

### 128 \yn.2d at 259). Here, the defendant's constitutional right to a public trial was



### . . 

### violated. We have not yet addressed whether a closure occurs when a trialjudge discusses and rules on motions in limine in chambers. This court uses the experience and logic test to evaluate whether a particularproceeding implicates the public trial right. State v. Sublett, 

### 176 Wn.2d 58, 73, 292 P.3d 715 (2012). In State 4

### In rePers. Restraintof Speight, 

### No. 89693-3

v. Smith, 

### 181 Wn.2d 508, 334 P.3d 1049 (2014), we alluded to the fact that evidentiary motions maynot implicate the public trial right, butbecause sidebars, and not evidentiary conferences, were at issue inthat case we did not decide definitively one way orthe other. See Smith, 

### 181 Wn.2d at 512 n.3 ("Although the parties disagreed about whether to characterize these hallway conferences as 'sidebars' or something else, we analyze them as sidebars here because that is the role these conferences played inthe trial. The analysis would not change for onthe record evidentiary conferences in chambers."). Sincejurors were privately questioned, a closure occurred, and we need not decide whether a second closure exists inthis case. Because Speight's public trial right violation has merit, we must determine whetherhe must show that he was actually and substantiallyprejudicedbythe violation. We addressed the issue-whether actual and substantial prejudice must be shown from apublic trial right violation in orderto obtainreliefbypersonal restraintpetition-in Coggin. 

### Becausethe issue is identical andthe facts are similar, we incorporate the reasoning from that case here. To summarize, generally, for apetitioner to prevail on collateral review, the petitioner must establishbyapreponderance ofthe evidence thatthe constitutional errorworked to his actual and substantial prejudice. In rePers. Restraint of St. Pierre, 

### 118 Wn.2d 5

### In rePers. Restraint of Speight, No. 89693-3 321,328, 823 P.2d492 (1992). We carved out an exception to this general rule in 

### In rePersonalRestraintofMorris, 176 Wn.2d 157, 166,288 P.3d 1140 (2012), where we held that we will presumeprejudice for a petitioner who alleges apublic trial right violation through an ineffective assistance ofappellate counsel claim. Butin 

### Coggin werefusedto extend this exception any further andheld that our interest in finalityrequiredus to draw a line and notpresumeprejudice when a petitionerraises a public trial right violation for the first time on collateral review. 

### Coggin, slip op. at 10. Therefore, in 

### Coggin weheld that a petitioner claiming a public trial right violation for the first time on collateral review must complywith the general rule for personal restraintpetitions and show actual and substantial prejudice. As a result, Speight canprevail only ifhe can show that the public trial right violation actually and substantiallyprejudicedhim. Speight does not argue that he
was actually and substantiallyprejudiced, nor do the facts suggest thathe was. As
a result ofthe individual questioning, he likelyreceived a more fair trial and an impartialjury.

6

### In re Pers. Restraint of Speight, No. 89693-3

CONCLUSION 

### The petition is denied.

WE CONCUR:

7In re Pers. Restraint of Speight (RolandArthur)

No. 89693-3 MADSEN, C.J. (concurring)-Likein the companion case, In re Personal Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014), I agree withthe lead opinion's decision to denyRoland Speight's personalrestraintpetition, but for different reasons. First, I believe that this courtmust decide whether motions inlimine implicate the public trial right, and I would decide this question in the negative. Second, I would holdthat Mr. Speight invitedthejudgeto conductportions ofvoir dire in chambers. Thus, in contrastto the lead opinion and in line withmy concurrence in Coggin, I believe we need not determine the prejudice showing required ofpersonal restraintpetitioners. Nevertheless, because guidance is needed I would agree withthe majoritythat the
errorhere, failure to engage in the analysis outlined inState v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995), requires a petitioner in a personal restraint petition to prove prejudice unless he can demonstrate that the errorinhis case '"infect[ed] the entire trial process"' and deprive the defendant of"'basicprotections,"' without which "'no criminalNo. 89693-3 Madsen, C.J. concurring punishment may be regarded as fundamentally fair."' Neder v. UnitedStates, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quotingBrechtv. Abrahamson, 507 U.S. 619, 630, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); Rose v. Clark, 478 U.S. 570, 577, 578, 106 S. Ct. 3101,92 L. Ed. 2d 460 (1986)). Discussion In contrast to the companion case, here the petitioner alleges two differentpublic trial right violations. First, he challenges the trial court's decision to hear argument on motions in limine in chambers rather than in the courtroom, alleging that this behavior implicated his right to a public trial. While venire members were filling out questionnaires in the courtroom, the parties and thejudge discussed motions in limine on the record in chambers. The State moved to bar the defendant from inquiring aboutthe alleged victim's drug convictions. The defense brought several motions, including motions for the State to disclose certain information, to exclude mention ofprior contact between the defendant and complainant, and to exclude mention ofthe defendant's mental disorder. In addition to challenging thejudge's consideration ofthese motions in limine in chambers, Mr. Speight also makes an identical argument to William Coggin, namely that the in-chambers voir dire questioning ofsome venire members violatedhis public trial rights. In particular, the trial court conducted voir dire in chambers for 14 prospectivejurors who had indicated a preference for private questioning on their written questionnaire.

2No. 89693-3 Madsen, C.J. concurring
InState v. Smith, this court outlined a three step inquiryto assess allegedpublic trial right violations. 181 Wn.2d 508, 513,334 P.3d 1049 (2014) (citing State v. Sublett, 176 Wn.2d 58, 92, 292 P.3d 715 (2012) (Madsen, C.J., concurring)). We first consider whether the public trial right is evenimplicated and only then determine whether there
was infact a closure and, ifso, whether that closure wasjustified. 

### !d. The lead opinion acknowledges this framework but does notuse it to evaluate the petitioner's motionin limine challenge. Lead opinion at 4-5. Instead, the lead opinionreasons that "[s]ince jurors were privately questioned, a closure occurred, and we neednot decide whether a second closure exists in this case." Lead opinion at 5. I disagree withthis analysis. The petitionerraises two separate public trial right violations, each ofwhich mustbe separately analyzed. Before reaching the question ofwhetherpetitioners mustprove prejudice for collateral challenges to public trial rights, this court should consider, first, whetherthe petitioner maybeprecluded from bringing the challenge due to invited error
or affirmative waiver and, second, following the three step analysis, whetherhis public trial rights were violated. Turning first to the motion in limine issue, I would hold thatunder the first prong ofthe Smith analysis, motions inlimine do not implicatepublic trial rights. As the lead opinionrecognizes, underSmith's first step we use "the experience and logic testto evaluate whether a particularproceeding implicates the public trial right." Lead opinion at4 (citing Sublett, 176 Wn.2d at 73).

3No.**89693~3** Madsen, C.J. concurring
"The first part ofthe test, the experience prong, asks 'whetherthe place and process have historically been open to the press and general public."' Sublett, 176 Wn.2d at 73 (quoting Press-Enter. Co. v. Superior Court (Press II), 478 U.S. 1, 8, 106 S. Ct. 2735, 92 L. Ed. 2d 1 (1986)). Motions in limine concern interlocutory pretrial decisions made by the trial court, typically involving legal questions about the admissibility of certain evidence. Often these pretrial decisions will be revisited during the course of proceedings as the evidence develops. As with rulings on contemporaneous objections to evidence, motions in limine are decided outside the hearing ofthejury. See ER 103. In 

### Smith, this court applied the experience and logic test to hold that sidebar conferences involving evidentiary rulings on contemporaneous objections do not implicate the public trial right. 

### Smith, slip op. at 6-14. There, we noted the history of conducting sidebars out ofview ofthe public and the practical difficulties with removing jurors from a courtroom. 

### !d. at 7-8. The reasoning in 

### Smith applies here. During voir dire in Speight's case, the venire members were using the courtroom to fill outjuror questionnaires before counsel began voir dire questioning in court. The trialjudgeused this downtime to discuss motions in limine in chambers rather than movingjurors in and out ofthe courtroom multiple times. The secondpart ofthe test, the logic prong, asks "'whetherpublic access plays a significantpositive role in the functioning ofthe particularprocess in question.'" Sublett, 176 Wn.2d at 73 (quotingPress II, 478 U.S. at 8). "The guiding principle [for the logic prong] is 'whether openness will enhance[] both the basic fairness ofthe criminal trial

4No. 89693-3 Madsen, C.J. concurring
and the appearance offairness so essential to public confidence in the system."' Smith, slip op. at 6-7 (second alteration in original) (internal quotations omitted) (quoting Sublett, 176 Wn.2d at 75). For motions in limine, I believe the answer to these questions is no. In Smith, this courtreasoned that sidebars do not "invoke any ofthe concerns the publictrial right is meant to address regarding perjury, transparency, or the appearance of fairness." Smith, slip op. at 12. Specifically, we noted thatthe sidebars at issue were immediately recorded and made available to the public and emphasizedthe dense legal nature ofthe questions considered during such discussions. Id. at 12-13. The same reasoning applies in the motion in limine context. Here, the motions in limine considered in chambers were contemporaneously recorded verbatim. Thus, the public was not denied access to the proceedings. As with sidebars, the presence ofthe public would not have added anything to the discussion between thejudge and counsel regarding questions ofadmissibility under the rules ofevidence. Applying the experience and logic test, I would hold that as long as these discussions occur on the record and concern primarily evidentiary matters, the public trial right does not attach. Turning to petitioner's second public trial right allegation, I would hold that Mr. Speight invited the error ofconducting voir dire interviews in chambers. As I outline in my concurrence in the companion case Coggin, in the voir dire contextthe key inquiry is whether the defendant "'actively participated"' in the conduct that led to the error. Coggin, slip op. (concurrence) at2-3 (quoting State v. Wise, 176 Wn.2d 1,15 n.8, 288

5No. 89693-3 Madsen, C.J. concurring P.3d 1113 (2002)). In State v. Momah, we reasoned that invited error principles applied where defense counsel agreed beforehand to ajuror questionnaire that permitted individual questioning, never objected to the proposal to conduct this questioning in chambers (presumably because the private questioning benefited his client), and actively participated in the questioning. 167 Wn.2d 140, 145-46, 153-56, 217 P.3d 321 (2009);
see also Wise, 176 Wn.2d at 15 n.8 (reaffirming that defendants can invite public trial violations, pointing to factors outlined in Momah). Similarly, here defense counsel participated in a pretrial telephone conference between the parties and thejudge where they discussed the creation ofajuror questionnaire that would allowjurors to note a preference for private questioning. Defense counsel then participated in the questioning ofthe 14jurors that occurred in chambers without raising any objection. Though the language ofthe questionnaire did suggest an "in court" private questioning experience to the potentialjurors, the totality ofthe circumstances demonstrate that the in-chambers questioning was in line with defense counsel's expectations following the pretrial telephone call. Defense counsel did more than simply acquiesce to the trial court's decision to conduct questioning in chambers; he spoke with opposing counsel and the judge about the need for a mechanism for private voir dire questioning, agreed to the questionnaire proposed by the prosecutor, did not question thejudge's decision to hold that private questioning in chambers, and in fact engaged in questioning the prospective jurors. By all accounts, defense counsel "activelyparticipated" in the in chambers questioning of jurors and consequently invited the public trial error thatresulted.

6No. 89693-3 Madsen, C.J. concurring
In sum, I would address petitioner's motion in limine challenge but would hold that under our experience and logic test, motions in limine do not implicate public trial rights. I would also dismiss petitioner's challenge to the voir dire procedure on invited
error grounds and thus would not reach the question ofprejudice considered by the majority. I concur in the majority's decision to deny Mr. Speight's petition.

7No. 89693-3 Madsen, C.J. concurring

8

### In rePers. Restraint of Speight (RolandArthur)

No. 89693-3

STEPHENS, J. (

### dissenting)-This case turns largely on the same issue as 

### In
re Personal Restraint ofCoggin, No. 89694-1 (Wash. Dec. 11, 2014): whether a personal restraint petitioner who suffered a violation ofhis right to a public trial should be denied a new trial when the petitioner does not also allege ineffective assistance of appellate counsel. I would hold that personal restraint petitioners should not have to make a special showing ofprejudice beyond establishing the prejudice ofstn1ctural public trial error. The reasoning and facts in both cases on this issue do not differ, so I incorporate the reasoning from my dissent in 

### Coggin here. Because the lead opinion inboth cases "requires personal restraint petitioners to prove the impossible, and because its holding erodes the promise ofopenjustice in our courts, I respectfully dissent." Slip op. (dissent) at 2. I alsopointoutthatbecauseI would grantWilliamSpeight'spersonalrestraint petition on the basis ofthe improper voir dire closure, it is unnecessary for me to considerwhetherthe closedmotion in limine hearing also warrants a new trial. The lead opinion does not have this luxury, though it practically ignores the motion in limine issue. Lead opinion at 4-5. Having determined that the closure ofindividual voirdire constituted apublic trial violation, the lead opinion moves to the prejudiceIn re Pers. Restraint of Speight (RolandArthur), 

### 89693-3 (Stephens, 

### J. Dissent)



### issue and finds no prejudice. 

### !d. at 5-6 (citing 

### Coggin, slip op. at 1 0). It concludes that Speight was not actually and substantially prejudiced because "[a]s a result of theindividual questioning, helikelyreceived amore fair trial and an impartialjury." 

### !d. at 6. 

### The individual questioning ofjurors took place after the motions in limine were heard, so whatever prejudice might have occurred from the closed motion hearing would already have tainted the trial before voir dire began. Thus, the lead opinion needs to address the motions hearing, not only as to prejudice but as to whetherthepublictrialright attachesto suchahearing. Its conclusionthatthe closed voir dire was not prejudicial because it likelybenefited Speight is insufficient; how did the closed motion hearing work to his benefit?1 

### The lead opinion's prejudice analysis is incomplete under its own post hoc analysis and provides no basis to dismiss this personal restraint petition in its entirety. 

### See Coggin, slip op. (dissent) at 9 n.2 (explaining that the lead opinion's prejudice analysis constitutes a posthoc appellate

### Bone-Club2 

### inquiry).

1 

### The State claims that the motions in limine occurred in chambers because the venire was completing questionnaires inthe courtroom. Resp. toPers. Restraint Pet. at 4. So, it might be argued that the closure facilitated selecting an impartialjury because the closure shielded prospectivejurors from exposure to potentially inadmissible evidence. This argumentfails becausethe "purpose ofamotioninlimineis to dispose oflega1matters so counsel will not be forced to make comments in the presence ofthejurywhich might prejudicehis presentation." State v. Evans, 

### 96 Wn.2d 119, 123, 634 P.2d 845 (1981). The venire could have filled out questionnaires elsewhere while the court considered the motions inlimine in opencourt. SeeIn rePers. Restraintof Orange, 

### 152 Wn.2d795, 810, 100 P.3d 291 (2004) (concerns stemming from "courtroommanagement and convenience" without consideration of-the-public-trial right was insufficient to justify closure ofvoir dire). 2 State v. Bone-Club, 

### 128 Wn.2d 254, 906 P.2d 325 (1995). -2-

### In re Pers. Restraint of Speight (Roland

### Arth~r), 89693-3 (Stephens, J. Dissent)



### Forthese reasons, I respectfully dissent.

-3-' 

## . 1n re Pers. Restraint of Speight (Roland

### A.rth~r), 89693-3 (Stephens, 

### J. Dissent)

4