In re the Detention of Donald T. Townsend (Majority)

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FILED JAN. 16,2014 In the Office of the Clerk of Court W A State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In re the Detention of: DONALD T. TOWNSEND. ) ) ) ) ) ) No. 30752-2-III UNPUBLISHED OPINION KULIK, J. - This is the second time this case is before us. In an unpublished decision, we held that the trial court erred by sealing juror questionnaires without a Bone Club 1 analysis. However, we concluded that there was no structural error or prejudice to Donald Townsend and remanded for reconsideration of the sealing order based on the Bone-Club factors. In re Det. ofTownsend, noted at 157 Wn. App. 1039,2010 WL I I ! I , 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 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. I i , ! I f I i f f 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 of sexual 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 of the 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 of the 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 of the 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 of Proceedings at 10. The State argued that the law of the case doctrine precluded revisiting the issue of remedy. The trial court concluded the sealing was proper under Bone-Club, finding in relevant part: 2 No.30752-2-III In re Del. o/Townsend 5. All present at the time of the 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 of portions 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 of the proponent of closure and the pUblic. The sealing of only portions of certain questionnaires was the result of this 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. 3 No. 30752-2-III In re Det. o/Townsend "The law of the case doctrine provides that once there is an appellate court ruling, its holding must be followed in all of the subsequent stages of the 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 if there 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 of the 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 if the 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 of remedy 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 public trial right by sealing juror questionnaires after trial without analyzing the I I t t 4 t f i I i 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 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 for jury selection, which occurred in open court, and that nothing indicated the questionnaires were not part of the 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 of fact 5, 6, 8, and 9 illustrate the inadequacy of a remand hearing because a Bone-Club analysis is meaningless after trial. 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)). 2 5 i f I ~ I 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. 6 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. 7

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