In re Morris

• Decision Date: 21 November 2012
• Docket Number: No. 84929–3.,84929–3.
• Citation: 288 P.3d 1140,176 Wash.2d 157
• Court: Washington Supreme Court
• Parties: In the Matter of the Personal Restraint Petition of Patrick L. MORRIS, Petitioner.

176 Wash.2d 157

288 P.3d 1140

In the Matter of the Personal Restraint Petition of Patrick L. MORRIS, Petitioner.

No. 84929–3.

Supreme Court of Washington, En Banc.

Argued May 5, 2012.

Decided Nov. 21, 2012.

David B. Zuckerman, Attorney at Law, Seattle, WA, for Petitioner.

Erik Pedersen, Attorney at Law, Mount Vernon, WA, for Respondent.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, Suzanne Lee Elliott, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of Washington Association of Crimin.

OWENS, J.

[176 Wash.2d 160]¶ 1 Patrick L. Morris filed this timely personal restraint petition, alleging a violation of his right to a public trial when the trial court conducted part of voir dire in chambers. Further, he claims his appellate counsel was ineffective for failing to raise the violation on direct review. In In re Personal Restraint of Orange, 152 Wash.2d 795, 814, 100 P.3d 291 (2004), we resolved a similar claim on ineffective assistance of appellate counsel grounds. This case is analytically indistinguishable from Orange. We therefore reaffirm Orange and hold that where appellate counsel fails to raise a public trial right claim, where prejudice would have been presumed on direct review, a petitioner is entitled to relief on collateral review. Morris additionally challenges evidentiary decisions by the trial court relating to a proposed defense expert witness and argues that his trial counsel was ineffective in handling the expert testimony issue. We hold that Morris fails to meet his burden on the evidentiary and trial counsel issues. Because of Morris's ineffective assistance of appellate counsel, we reverse and remand for a new trial.

FACTS

¶ 2 In 2004, Morris was convicted of two counts of first degree sexual molestation and one count of first degree rape of his daughter, A.W., who was five years old when she disclosed the abuse. Morris's defense was that the allegations were false and part of an effort by A.W.'s mother to terminate his parental rights. The jury disagreed and he was sentenced to 189 months in prison.

¶ 3 The record indicates that jury selection began in open court. After conducting some of the voir dire proceedings in the courtroom, the trial court announced, “Well, Ladies and Gentlemen, we have some interviews to do of those people who indicated they wanted to talk privately. We have quite a few of those to do, actually.” Pers. Restraint Pet. with Legal Arg. & Auths. (PRP), App. A at 45.¹ The trial court then moved proceedings into chambers.

¶ 4 The record does not contain any reference to the factors a court must consider when closing proceedings to the public under State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995).² Nor does it contain any other discussion or acknowledgment of Morris's right to a public trial. The record does not reveal if anyone besides the prospective jurors, counsel, court employees, and the defendant was present in the courtroom before proceedings were moved into chambers. Neither the State nor counsel for Morris moved for the private voir dire and neither objected to conducting the proceedings in chambers. However, Morris did waive his own right to be present during the portion of voir dire conducted in chambers. In so waiving his right to be present, defense counsel indicated that “it would be more likely for jurors to be more forthcoming with what they are talking about if [Morris] were not in the room.” PRP, App. A at 46.

¶ 5 Once in chambers, the prosecutor and defense counsel, along with the trial judge, questioned 14 prospective jurors and excused 6 for cause. The prospective jurors were selected for private interviews based only on their personal preferences indicated in their questionnaires. Some jurors opted for private questioning to discuss prior personal experiences with sexual violence, while others revealed just that they preferred to not talk in front of groups. The remainder of voir dire “resume[d] in the courtroom.” Id. at 93.

[176 Wash.2d 163]¶ 6 During trial, as part of his defense, Morris proposed to call Lawrence Daly, a former police investigator with experience interviewing child victims of sexual abuse, to testify about several subject matters relating to the State's investigation of the case. The State challenged Daly's testimony. After hearing testimony from Daly and the parties' arguments about the admissibility of his testimony, the trial court limited Daly's testimony to certain subject matters. The trial court ruled that Daly could testify about the differences between his interview of A.W. and the interview of A.W. conducted by the State's investigator, Candy Ashbrook, including differences in interview techniques. However, the trial court ruled that Daly could not testify about the suggestibility or potential coaching of A.W. The trial court ruled that testimony about scientific studies about the suggestibility of children was inadmissible under this court's holdings in State v. Swan, 114 Wash.2d 613, 656, 790 P.2d 610 (1990), and State v. Willis, 151 Wash.2d 255, 261, 87 P.3d 1164 (2004).

¶ 7 The trial judge additionally ruled that Daly could not testify about the “standard of care” of law enforcement officers as it compared to Detective Kathleen Ryan's investigation of this case. Detective Ryan acknowledged during cross-examination that she did not personally interview anyone for this case, that she did not carefully read the medical reports, and that the Anacortes Police Department does not have any policies or procedures for the investigation of sexual abuse allegations. With regard to admitting Daly's proposed testimony about a standard police investigation of sexual abuse allegations of a child and how it compares to Detective Ryan's investigation, the trial judge reasoned that “[t]he jury isn't going to be asked to evaluate Detective Ryan's standard of care. [They] may think she's a lousy Detective, but that doesn't really matter in terms of what they have to decide, does it?” Verbatim Report of Proceedings (VRP) (June 14, 2004) at 76.

¶ 8 Morris's defense ultimately did not call Daly as a witness. While both Daly and the defense expressed timing concerns regarding Daly's availability, the reason for not calling him is unclear because, on the same day that he was present and the trial court approved his testimony in part, the defense called Morris, not Daly, to the stand. The defense also rested its case without showing the videotape of Daly's interview of A.W. after which the State called a rebuttal witness and sought to play the videotape of Daly's interview of A.W. for the jury. Defense counsel indicated some concerns about playing the videotape but ultimately did not object:

THE COURT: You want the whole [tape]?

[DEFENSE COUNSEL]: Yes, if it's going to be played at all.

THE COURT: All right. What do you mean “if it's going to be played at all”?

[DEFENSE COUNSEL]: Well, apparently it's going to be played.

THE COURT: No objection then to playing the whole thing from beginning to end?

VRP (June 15, 2004, afternoon) at 3–4. There was no objection. The defense did not object to the foundation of the videotape or to identifying the interviewer as a “defense child interview expert.” VRP (June 16, 2004) at 2–3. The defense did not call Daly to the stand to explain anything about the interview.

¶ 9 On direct appeal, Morris challenged several evidentiary decisions of the trial court, particularly the admission of testimony by four State witnesses. He also claimed ineffective assistance of counsel for his counsel's failure to object to the witnesses' testimony. The appeal did not include a claim regarding the right to a public trial. The Court of Appeals affirmed Morris's conviction. We denied Morris's petition for review and the mandate issued in August 2007. He timely filed this PRP with the Court of Appeals in August 2008, raising several new issues. The Court of Appeals stayed review pending the final resolution of two cases, which impacted the public trial right issue State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), cert. denied,––– U.S. ––––, 131 S.Ct. 160, 178 L.Ed.2d 40 (2010), and State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009) (plurality opinion). Upon their resolution, the Court of Appeals certified Morris's PRP for review by this court based on his public trial right claim. Specifically, the Court of Appeals asked “[w]hether a personal restraint petitioner must establish prejudice before he or she may obtain relief from an alleged violation of the right to a public trial?” Order of Cert. We accepted review of all issues raised in Morris's PRP.

ISSUES

¶ 10 1. Did the trial court violate Morris's right to a public trial by conducting voir dire in chambers?

¶ 11 2. Did the trial court err in refusing to admit portions of proposed expert testimony?

¶ 12 3. Did Morris receive ineffective assistance of counsel at trial for the handling of the expert witness's testimony?

¶ 13 4. Did these errors, if not individually redressible, result in cumulative error?

ANALYSIS

1. Closure of the Courtroom During Voir Dire

¶ 14 Morris claims that the trial judge violated his right to a public trial by privately questioning 14 potential jurors in chambers. We hold that an appellate counsel's failure to raise a public trial right violation under such facts constitutes ineffective assistance of appellate counsel.

¶ 15 When we initially accepted review of this case it was to address how Momah and Strode impacted Orange and the courtroom closure issue. Since accepting review, we have decided two more cases, State v. Wise, 176Wash.2d 1, 288 P.3d 1113 (2012), and State v. Paumier, 176 Wash.2d 29, 288 P.3d 1126 (2012), which guide our analysis on the courtroom closure issue. Those cases make it clear that failing to consider Bone–Club before privately questioning potential jurors violates a defendant's right to a public trial and warrants a new trial on direct review. Wise, 176Wash.2d...