IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

In the Matter of the Personal ) 

Restraint of ) No. 89693-3 

) 

ROLAND ARTHUR SPEIGHT, ) 

) 

Petitioner. ) DEC 1 1 2014 ) Filed 

C. JOHNSON, I.-Petitioner Ronald Speight filed a timely personal 

restraint petition, claiming for the first time on collateral review that his right to a 

public trial under article I, section 22 of the Washington State Constitution, was 

violated when the trial court decided motions in limine and individually questioned 

potential jurors in chambers. 1 While Speight's public trial right claim has merit, his 

petition must be denied. Consistent with our holding in In re Personal Restraint of 

Coggin, No. 89694-1 (Wash. Dec. 11, 2014), a petitioner claiming a public trial 

1 This case was certified to this court by Division One of the Court of Appeals with In re 

Personal Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014). Both cases present the same 

central issue but were not consolidated. 
In re Pers. Restraint of Speight, No. 89693-3 

right violation 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 petition is denied. 

FACTS AND PROCEDURAL HISTORY 

On December 3, 2004, Speight drove Kelly Nixon to an inn where Speight 

was performing routine maintenance as a caretaker. While at the inn, Speight 

forced Nixon into oral and vaginal intercourse, resulting in torn clothing and 

injuries to Nixon's face and leg. 

Speight was charged with second degree rape in San Juan County. At the 

beginning of jury selection, the judge had jurors fill out questionnaires regarding 

any experiences they may have had with a sexual offense. While the jurors were 

filling out these questionnaires, the trial judge, counsel, the clerk, the sheriffs 

deputy, and the court reporter went into the judge's chambers for motions in 

limine. Then, in response to the juror's answers to the questionnaires, 14 

prospective jurors were questioned in chambers without the court engaging in the 

analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). 

Several prospective jurors were then excused or dismissed for cause. 

2 
In re Pers. Restraint ofSpeight, No. 89693-3 

Speight was convicted of second 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Appeals affirmed his convictions in an unpublished opinion.2 Speight filed a timely 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 that his right to a public trial was 

violated during the in-chambers conference regarding the motions in limine and the 

individual questioning ofjurors. 3 Division One stayed the petition multiple times, 

pending decisions by this court. Division One of the Court of Appeals then 

certified the case to this court in December 2013, alongside Coggin. 

ANALYSIS 

Speight claims that he was denied his constitutional public trial right during 

pretrial in-limine rulings and the jury 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 when the 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 that the public trial right applies to jury selection. 

Specifically, it is well established that the public trial right in voir dire proceedings 

e~tends to the qtlestioningof individual prospective jurors. 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 that the closure satisfies the five factors 

required by Bone-Club, but "[a] trial court is required to consider the Bone-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 ). From the record, the trial court did not .. 

consider any of these factors in its decision whether to question individual jurors in 

chambers.J.v1oreover, a trial court should "'resist a closure motion except under the 

most unusual circumstances."' Wise, 176 Wn.2d at 11 (quoting Bone-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 trial judge 

discusses and rules on motions in limine in chambers. This court uses the 

experience and logic test to evaluate whether a particular proceeding implicates the 

public trial right. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d 715 (2012). In State 

4 
In re Pers. Restraint of Speight, No. 89693-3 

v. Smith, 181 Wn.2d 508, 334 P.3d 1049 (2014), we alluded to the fact that 

evidentiary motions may not implicate the public trial right, but because sidebars, 

and not evidentiary conferences, were at issue in that case we did not decide 

definitively one way or the 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 in the trial. The analysis would not change for on the 

record evidentiary conferences in chambers."). Since jurors were privately 

questioned, a closure occurred, and we need not decide whether a second closure 

exists in this case. 

Because Speight's public trial right violation has merit, we must determine 

whether he must show that he was actually and substantially prejudiced by the 

violation. We addressed the issue-whether actual and substantial prejudice must 

be shown from a public trial right violation in order to obtain relief by personal 

restraint petition-in Coggin. Because the issue is identical and the facts are 

similar, we incorporate the reasoning from that case here. To summarize, 

generally, for a petitioner to prevail on collateral review, the petitioner must 

establish by a preponderance of the evidence that the constitutional error worked to 

his actual and substantial prejudice. In re Pers. Restraint of St. Pierre, 118 Wn.2d 

5 
In re Pers. Restraint of Speight, No. 89693-3 

321,328, 823 P.2d 492 (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 presume prejudice for a petitioner who alleges a public 

trial right violation through an ineffective assistance of appellate counsel claim. 

But in Coggin we refused to extend this exception any further and held that our 

interest in finality required us to draw a line and not presume prejudice when a 

petitioner raises a public trial right violation for the first time on collateral review. 

Coggin, slip op. at 10. Therefore, in Coggin we held that a petitioner claiming a 

public trial right violation for the first time on collateral review must comply with 

the general rule for personal restraint petitions and show actual and substantial 

prejudice. 

As a result, Speight can prevail only if he can show that the public trial right 

violation actually and substantially prejudiced him. Speight does not argue that he 

was actually and substantially prejudiced, nor do the facts suggest that he was. As 

a result of the individual questioning, he likely received a more fair trial and an 

impartial jury. 

6 
In re Pers. Restraint of Speight, No. 89693-3 

CONCLUSION 

The petition is denied. 

WE CONCUR: 

7 
In re Pers. Restraint of Speight (Roland Arthur) 

No. 89693-3 

MADSEN, C.J. (concurring)-Like in the companion case, In re Personal 

Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014), I agree with the lead opinion's 

decision to deny Roland Speight's personal restraint petition, but for different reasons. 

First, I believe that this court must decide whether motions in limine implicate the public 

trial right, and I would decide this question in the negative. Second, I would hold that 

Mr. Speight invited the judge to conduct portions of voir dire in chambers. Thus, in 

contrast to the lead opinion and in line with my concurrence in Coggin, I believe we need 

not determine the prejudice showing required of personal restraint petitioners. 

Nevertheless, because guidance is needed I would agree with the majority that the 

error here, failure to engage in the analysis outlined in State 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 error in his case '"infect[ ed] the entire trial 

process"' and deprive the defendant of "'basic protections,"' without which "'no criminal 
No. 89693-3 

Madsen, C.J. concurring 

punishment may be regarded as fundamentally fair."' Neder v. United States, 527 U.S. 1, 

8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Brecht v. 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 different public 

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 the judge discussed motions in limine on 

the record in chambers. The State moved to bar the defendant from inquiring about the 

alleged victim's drug convictions. The defense brought several motions, including 

motions for the State to disclose certain information, to exclude mention of prior contact 

between the defendant and complainant, and to exclude mention of the defendant's 

mental disorder. In addition to challenging the judge's consideration of these motions in 

limine in chambers, Mr. Speight also makes an identical argument to William Coggin, 

namely that the in-chambers voir dire questioning of some venire members violated his 

public trial rights. In particular, the trial court conducted voir dire in chambers for 14 

prospective jurors who had indicated a preference for private questioning on their written 

questionnaire. 

2 
No. 89693-3 

Madsen, C.J. concurring 

In State v. Smith, this court outlined a three step inquiry to assess alleged public 

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 even implicated and only then determine whether there 

was in fact a closure and, if so, whether that closure was justified. !d. The lead opinion 

acknowledges this framework but does not use it to evaluate the petitioner's motion in 

limine challenge. Lead opinion at 4-5. Instead, the lead opinion reasons that "[s]ince 

jurors were privately questioned, a closure occurred, and we need not decide whether a 

second closure exists in this case." Lead opinion at 5. I disagree with this analysis. The 

petitioner raises two separate public trial right violations, each of which must be 

separately analyzed. Before reaching the question of whether petitioners must prove 

prejudice for collateral challenges to public trial rights, this court should consider, first, 

whether the petitioner may be precluded from bringing the challenge due to invited error 

or affirmative waiver and, second, following the three step analysis, whether his public 

trial rights were violated. 

Turning first to the motion in limine issue, I would hold that under the first prong 

of the Smith analysis, motions in limine do not implicate public trial rights. As the lead 

opinion recognizes, under Smith's first step we use "the experience and logic test to 

evaluate whether a particular proceeding implicates the public trial right." Lead opinion 

at 4 (citing Sublett, 176 Wn.2d at 73). 

3 
No. 89693~3 

Madsen, C .J. concurring 

"The first part of the test, the experience prong, asks 'whether the 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 of the jury. 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 of view of the 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 out juror 

questionnaires before counsel began voir dire questioning in court. The trial judge used 

this downtime to discuss motions in limine in chambers rather than moving jurors in and 

out of the courtroom multiple times. 

The second part of the test, the logic prong, asks "'whether public access plays a 

significant positive role in the functioning of the particular process in question.'" Sublett, 

176 Wn.2d at 73 (quoting Press II, 478 U.S. at 8). "The guiding principle [for the logic 

prong] is 'whether openness will enhance[] both the basic fairness of the criminal trial 

4 
No. 89693-3 

Madsen, C.J. concurring 

and the appearance of fairness 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 court reasoned that sidebars do not "invoke any of the concerns the 

public trial right is meant to address regarding perjury, transparency, or the appearance of 

fairness." Smith, slip op. at 12. Specifically, we noted that the sidebars at issue were 

immediately recorded and made available to the public and emphasized the dense legal 

nature of the 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 of the public would not 

have added anything to the discussion between the judge and counsel regarding questions 

of admissibility under the rules of evidence. 

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 of conducting voir dire interviews in chambers. As I outline in 

my concurrence in the companion case Coggin, in the voir dire context the 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 

5 
No. 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 a juror 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 the judge where 

they discussed the creation of a juror questionnaire that would allow jurors to note a 

preference for private questioning. Defense counsel then participated in the questioning 

of the 14 jurors that occurred in chambers without raising any objection. Though the 

language ofthe questionnaire did suggest an "in court" private questioning experience to 

the potential jurors, the totality of the 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 the judge's decision to hold 

that private questioning in chambers, and in fact engaged in questioning the prospective 

jurors. By all accounts, defense counsel "actively participated" in the in chambers 

questioning of jurors and consequently invited the public trial error that resulted. 

6 
No. 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 of prejudice considered by the 

majority. I concur in the majority's decision to deny Mr. Speight's petition. 

7 
No. 89693-3 

Madsen, C .J. concurring 

8 
In re Pers. Restraint of Speight (Roland Arthur) 

No. 89693-3 

STEPHENS, J. ( dissenting)-This case turns largely on the same issue as In 

re Personal Restraint of Coggin, No. 89694-1 (Wash. Dec. 11, 2014): whether a 

personal restraint petitioner who suffered a violation of his 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 of prejudice beyond establishing the 

prejudice of stn1ctural 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 in both cases "requires personal restraint petitioners 

to prove the impossible, and because its holding erodes the promise of open justice 

in our courts, I respectfully dissent." Slip op. (dissent) at 2. 

I also point out that because I would grant William Speight's personal restraint 

petition on the basis of the improper voir dire closure, it is unnecessary for me to 

consider whether the closed motion 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 of individual 

voir dire constituted a public trial violation, the lead opinion moves to the prejudice 
In re Pers. Restraint of Speight (Roland Arthur), 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 

the individual questioning, he likely received a more fair trial and an impartial jury." 

!d. at 6. 

The individual questioning of jurors 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 

whether the public trial right attaches to such a hearing. Its conclusion that the closed 

voir dire was not prejudicial because it likely benefited 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 post hoc 

appellate Bone-Club2 inquiry). 

1 The State claims that the motions in limine occurred in chambers because the 

venire was completing questionnaires in the courtroom. Resp. toPers. Restraint Pet. at 4. 

So, it might be argued that the closure facilitated selecting an impartial jury because the 

closure shielded prospective jurors from exposure to potentially inadmissible evidence. 

This argument fails because the "purpose of a motion in limine is to dispose oflega1 matters 

so counsel will not be forced to make comments in the presence of the jury which might 

prejudice his 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 in limine in open court. See In re Pers. Restraint of Orange, 152 Wn.2d 795, 810, 

100 P.3d 291 (2004) (concerns stemming from "courtroom management and convenience" 

without consideration of-the-public-trial right was insufficient to justify closure of voir 

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) 

For these reasons, I respectfully dissent. 

-3-
' . 1n re Pers. Restraint of Speight (Roland A.rth~r), 89693-3 (Stephens, J. Dissent) 

4