### FILED JAN. 16,2014 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III
INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Detention of:

DONALD T. TOWNSEND. DIVISION THREE ) No. 30752-2-III ) ) ) UNPUBLISHED OPINION ) ) KULIK, 

### J.

- This isthe secondtimethis case is beforeus. In an unpublished decision, weheldthatthe trial court erredby sealingjurorquestionnaires without aBoneClub 1analysis. However, we concludedthatthere was no structural error orprejudiceto Donald Townsend andremanded for reconsideration ofthe sealing orderbasedon the 

## I I I , ! Bone-Club factors. In re Det. of Townsend, noted at 157 Wn. App. 1039,2010WL 

## I 3221940. Upon remand, the trial courtweighedtheBone-Club factors and determined 

# I the sealingwasproper. Mr. Townsend appeals that decision, contendingthetrial court's 

# I I 

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# I , failure to evaluatethe Bone-Club factors in the ftrst trial cannot be remediedby a ! retroactiveBone-Club hearing. We disagree and afftrm the trial court. 

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1State v. Bone-Club, 128 Wn.2d 254,906P.2d 325 (1995).No.30752-2-III In re Det. of Townsend
FACTS In February 2009, ajury found that Mr. Townsend was a sexually violent predator. Two days afterthejuryreturned its verdict, the court, on its own motion, sealedjuror questionnaires, which had asked whetherthejuror or someone close to thejurorhad experienced orbeen accused ofsexual assault. Mr. Townsend appealed, arguing that the trial court's procedure in summarily sealing thejuror questionnaires, without considering the Bone-Club factors, was a structural error that required a new trial, or, alternatively, a remand for reconsideration ofthe orderto seal based upon the required factors. We affirmed the civil commitment, butremanded the matter for a Bone-Club hearing to reconsider the sealing ofthe questionnaires. The Washington Supreme Court denied Mr. Townsend's petition for review. Atthe 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 of jury 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 underBone-Club, finding in relevantpart:
2No.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 ofportions ofthese questionnaires. 6. No onepresent at the time the motion for sealing the questionnaires objected to the sealing ofportions ofthese questionnaires. 7. The sealing ofonly portions ofthe 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 ofcertain 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 ofonly portions ofcertain 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 thejurorquestionnaires cannot be cured by a retroactive application ofthe factors. Specifically, he contends that a Bone-Club hearing after trial fails to fully address the effects ofa closure because "there was no actual opportunity for a member ofthe public to object to the closure." Appellant's Br. at 12. The State responds that Me Townsend is precluded by the law ofthe case doctrine from revisiting the issue ofremedy.



### 3No. 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) (citingRoberson 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) (quotingAdamson 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 inthe
same case and, wherejusticewould bestbe served, decide the case on the basis ofour opinion ofthe law at the time oflaterreview. 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 oftrial 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 sealingjuror questionnaires after trial without analyzing the 

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# I iNo. 30752-2-111 In re Det. of Townsend

courtroom closure factors required by Bone-Club. He asked us to reverse and remand for
a new trial or, alternatively, remand for aBone-Club hearing. We held the trial court's failure to conduct a Bone-Club hearing was not structural error2 and, therefore, reversal for a new trial was unnecessary. In determining that the error was not structural, we noted the questionnaires were used only forjury selection, which occurred in open court, and that nothing indicated the questionnaires were not part ofthe open public proceedings during the four-dayjury selectionprocess orprior to their sealing after trial. Inthis second appeal, 

### Mr. Townsend points to no controlling change in precedent. Nor canhe argue our decision was clearly erroneous. Relying on our State Supreme Court's plurality decision inIn 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 ofhis constitutionalright to a public trial. He maintains the court's findings offact 5, 6, 8, and 9 illustrate the inadequacy ofa remand hearing because a Bone-Club analysis is meaningless after trial.

2 Structural error is errorthat 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) (quotingNeder v. UnitedStates, 527 U.S. 1,9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). 5 i 

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# I I**~**No.30752-2-III In re Det. of Townsend
Detention of D.F.F. is inapposite. In that case, the court unanimously held that Mental Proceeding Rules (MPR) 1.3, which requires automatic closure ofinvoluntary commitmentproceedings, violated the right to a public trial. The lead opinion, signed by fourjustices, held that the violation constituted structural error, entitling D.F.F. to new commitmentproceedings regardless ofwhether prejudice could be shown. Det. of D.F.F., 172 Wn.2d at 42-43. The two concurringjustices concluded that D.F.F. was entitled to a new proceeding because sufficientprejudice 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. Thejurorquestionnaires 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 ofthese facts, we agreed with Mr. Townsend's suggestionto 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 ofthe public's right to open records-without also demonstrating an infringement ofhis 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.



### 6No.30752-2-II1 In re Det. of Townsend
Mr. Townsend has not demonstrated that our earlier decision was "clearly erroneous" or thatthere has been an "intervening change in controlling precedent" to call into question our decision. Therefore, Townsend is the law ofthe case. There is no basis to revisit our decision in Townsend. The trial court's sealing of jurorquestionnaires after trial was not reversible error necessitating a new trial. We affirm. A majority ofthe 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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