FILED 

JAN. 16,2014 

In the Office of the Clerk ofCourt 

W A State Court of Appeals, Division III 

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

In re the Detention of: 

DONALD T. TOWNSEND. 

DIVISION THREE 


) No. 30752-2-III 

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) UNPUBLISHED OPINION 

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KULIK, J. - This is the second time this case is before us. In an unpublished 

decision, we held that the trial court erred by sealing juror questionnaires without a BoneClub1 analysis. However, we concluded that there was no structural error or prejudice to 

Donald Townsend and remanded for reconsideration ofthe sealing order based on the I 

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! Bone-Club factors. In re Det. ofTownsend, noted at 157 Wn. App. 1039,2010 WL 

I 3221940. Upon remand, the trial court weighed the Bone-Club factors and determined I 

the sealing was proper. Mr. Townsend appeals that decision, contending the trial court's I 

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, failure to evaluate the Bone-Club factors in the ftrst trial cannot be remedied by a ! 

retroactive Bone-Club hearing. We disagree and afftrm the trial court. f 

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1 State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995). 
No.30752-2-III 

In re Det. ofTownsend 

FACTS 

In February 2009, a jury found that Mr. Townsend was a sexually violent predator. 

Two days after the jury returned its verdict, the court, on its own motion, sealed juror 

questionnaires, which had asked whether the juror or someone close to the juror had 

experienced or been accused ofsexual assault. Mr. Townsend appealed, arguing that the 

trial court's procedure in summarily sealing the juror questionnaires, without considering 

the Bone-Club factors, was a structural error that required a new trial, or, alternatively, a 

remand for reconsideration ofthe order to seal based upon the required factors. We 

affirmed the civil commitment, but remanded the matter for a Bone-Club hearing to 

reconsider the sealing ofthe questionnaires. The Washington Supreme Court denied Mr. 

Townsend's petition for review. 

At the hearing on remand, Mr. Townsend argued that the court's initial failure to 

conduct a Bone-Club analysis could not be remedied by a retroactive application ofthe 

Bone-Club factors. He argued, "to go back now and no matter how we do it, it still won't 

give my client the benefit ofjury selection in an open forum." Report ofProceedings at 

10. The State argued that the law ofthe case doctrine precluded revisiting the issue of 

remedy. The trial court concluded the sealing was proper under Bone-Club, finding in 

relevant part: 

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No.30752-2-III 

In re Del. o/Townsend 

5. All present at the time ofthe motion for reconsideration was 

heard were given an opportunity to object to the sealing of portions of these 

questi onnaires. 

6. No one present at the time the motion for sealing the 

questionnaires objected to the sealing ofportions of these questionnaires. 

7. The sealing of only portions of the certain questionnaires is the 

least restrictive means available for protecting the threatened interests. 

8. The Court weighed the competing interests ofthe proponent of 

closure and the pUblic. The sealing ofonly portions of certain 

questionnaires was the result ofthis weighing by the Court. 

9. This order is no broader in its application or duration than 

necessary to serve its purpose. The sealing of only portions of certain 

questionnaires will protect Respondent's compelling interests and the public 

interests as well. 

Clerk's Papers at 362. 

Mr. Townsend appeals. 

ANALYSIS 

Mr. Townsend contends he is entitled to a new trial because the trial court's failure 

to evaluate the Bone-Club factors before sealing the juror questionnaires cannot be cured 

by a retroactive application of the factors. Specifically, he contends that a Bone-Club 

hearing after trial fails to fully address the effects of a closure because "there was no 

actual opportunity for a member of the public to object to the closure." Appellant's Br. at 

12. The State responds that Me Townsend is precluded by the law of the case doctrine 

from revisiting the issue of remedy. 

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No. 30752-2-III 

In re Det. o/Townsend 

"The law ofthe case doctrine provides that once there is an appellate court ruling, 

its holding must be followed in all ofthe subsequent stages ofthe same litigation." State 

v. Schwab, 163 Wn.2d 664,672, 185 P.3d 1151 (2008) (citing Roberson v. Perez, 156 

Wn.2d 33, 41, 123 P.3d 844 (2005)). Thus, '" questions determined on appeal, or which 

might have been determined had they been presented, will not be considered on a 

subsequent appeal ifthere is no substantial change in the evidence.'" Folsom v. County 

o/Spokane, 111 Wn.2d 256,263,759 P.2d 1196 (1988) (quoting Adamson v. Traylor, 66 

Wn.2d 338,339,402 P.2d 499 (1965)). 

Under RAP 2.5(c)(2), we have the discretion to review an earlier decision in the 

same case and, where justice would best be served, decide the case on the basis of our 

opinion ofthe law at the time oflater review. However, we usually only reconsider a 

decision where (1) the decision is "clearly erroneous" and would work a "manifest 

injustice" to one party ifthe decision were not set aside or (2) where there has been an 

"intervening change in controlling precedent" between the time of trial and appeal. 

Roberson, 156 Wn.2d at 42. I 

Here, the issue ofremedy was briefed by the parties and considered by this court in 

Townsend. In the first appeal, Mr. Townsend argued that the trial court violated his I 

public trial right by sealing juror questionnaires after trial without analyzing the I 

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No. 30752-2-111 

In re Det. ofTownsend 

courtroom closure factors required by Bone-Club. He asked us to reverse and remand for 

a new trial or, alternatively, remand for a Bone-Club hearing. We held the trial court's 

failure to conduct a Bone-Club hearing was not structural error

2 and, therefore, reversal 

for a new trial was unnecessary. In determining that the error was not structural, we 

noted the questionnaires were used only for jury selection, which occurred in open court, 

and that nothing indicated the questionnaires were not part ofthe open public proceedings 

during the four-day jury selection process or prior to their sealing after trial. 

In this second appeal, Mr. Townsend points to no controlling change in precedent. 

Nor can he argue our decision was clearly erroneous. Relying on our State Supreme 

Court's plurality decision in In re Detention ofD.F.F., 172 Wn.2d 37, 256 P.3d 357 

(2011), Mr. Townsend contends that remand for a Bone-Club hearing does not address 

the fundamental violation of his constitutional right to a public trial. He maintains the 

court's findings offact 5, 6, 8, and 9 illustrate the inadequacy of a remand hearing 

because a Bone-Club analysis is meaningless after trial. 

2 Structural error is error that defies harmless error analysis and'" necessarily 

render[s] a criminal trial fundamentally unfair or an unreliable vehicle for determining 

guilt or innocence.'" Washington v. Recuenco, 548 U.S. 212, 218-19, 126 S. Ct. 2546, 

165 L. Ed. 2d 466 (2006) (quoting Neder v. United States, 527 U.S. 1,9, 119 S. Ct. 1827, 

144 L. Ed. 2d 35 (1999)). 

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No.30752-2-III 

In re Det. ofTownsend 

Detention ofD.F.F. is inapposite. In that case, the court unanimously held that 

Mental Proceeding Rules (MPR) 1.3, which requires automatic closure of involuntary 

commitment proceedings, violated the right to a public trial. The lead opinion, signed by 

four justices, held that the violation constituted structural error, entitling D.F.F. to new 

commitment proceedings regardless of whether prejudice could be shown. Det. of 

D.F.F., 172 Wn.2d at 42-43. The two concurring justices concluded that D.F.F. was 

entitled to a new proceeding because sufficient prejudice had been shown. Id. at 48-49. 

Unlike Detention ofD.F.F., the error here was not structural and therefore a new 

trial was not warranted. The juror questionnaires were used as screening tools and were 

available for public inspection during and after trial, voir dire occurred in open court, and 

the public had the opportunity to observe the proceedings. In view of these facts, we 

agreed with Mr. Townsend's suggestion to remand for a Bone-Club hearing. Our 

Supreme Court has recently held that when an appellant seeks a new trial to remedy an 

alleged violation of the public's right to open records-without also demonstrating an 

infringement of his right to a public trial-the alleged error does not warrant a retrial. 

State v. Beskurt, 176 Wn.2d 441,447,293 P.3d 1159 (2013). Here, everything "that was 

required to be done in open court was done." Id. at 447-48. 

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No.30752-2-II1 

In re Det. ofTownsend 

Mr. Townsend has not demonstrated that our earlier decision was "clearly 

erroneous" or that there has been an "intervening change in controlling precedent" to call 

into question our decision. Therefore, Townsend is the law of the case. 

There is no basis to revisit our decision in Townsend. The trial court's sealing of 

juror questionnaires after trial was not reversible error necessitating a new trial. 

We affirm. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

Kulik, J. 

WE CONCUR: 

Brown, 1. 

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