In re Orange

Decision Date10 November 2004
Docket NumberNo. 72485-7.,72485-7.
Citation152 Wash.2d 795,100 P.3d 291
PartiesIn the Matter of the Personal Restraint Petition of Christopher A. ORANGE, Petitioner.
CourtWashington Supreme Court

Sheryl McCloud, Seattle, for Petitioner.

Steven M. Lowe, Franklin County Prosecutor, Frank Jenny, Deputy, James Floyd Bell, Roach & Petersen, LLP, Pasco, for Respondent.

David Wright Tremaine, Marshall Nelson, Michele Earl-Hubbard, Jeffrey Fisher, Seattle, for Amicus Curiae Allied Daily Newspapers of Washington, Cowles Publishing Company, Seattle Post-Intelligencer, Tacoma News Tribune, Daily Herald Company, Seattle Times Company.

OWENS, J.

In this personal restraint petition, we are asked to decide whether the trial court's closure of the courtroom during voir dire violated defendant Christopher A. Orange's constitutional right to a public trial and, if so, whether the error, raised on collateral review, necessitates remand for a new trial. We also must decide whether Orange's convictions for first degree attempted murder and first degree assault of the same victim, Marcel Walker, violated the double jeopardy clauses of the state and federal constitutions. Additionally, as to Orange's convictions for first degree murder of Brandy McClure and first degree attempted murder of Walker, we must determine whether double jeopardy was violated and, if it was not, whether the imposition of consecutive sentences for those crimes was improper.

The Court of Appeals rejected Orange's arguments on all three issues and denied his personal restraint petition. We reverse on two of the three questions presented. First, we conclude that the trial court violated Orange's constitutional right to a public trial. Because the error would have been per se prejudicial on appeal, the failure of Orange's appellate counsel to raise the issue below constituted ineffective assistance of counsel. The relief for this error is remand for a new trial. Although a new trial will undoubtedly place on the affected community an extremely difficult burden, a burden that will be particularly painful for the families and friends of the victims of the crimes charged in this case, our duty under the constitution is to ensure that, absent a closure order narrowly drawn to protect a clearly identified compelling interest, a trial court may not exclude the public or press from any stage of a criminal trial; in this case, neither the size of the courtroom nor a general concern for security provided an adequate basis for compromising the fundamental tenet "that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged." In re Oliver, 333 U.S. 257, 271-72, 68 S.Ct. 499, 92 L.Ed. 682 (1948) (emphasis added). Second, with respect to Orange's convictions for first degree attempted murder and first degree assault of Walker, we hold that the constitutional prohibition against double jeopardy was violated, necessitating dismissal of one of the charges. Finally, for purposes of guidance on retrial, we hold that Orange's convictions for first degree murder of McClure and first degree attempted murder of Walker did not violate double jeopardy, nor was the trial court's imposition of consecutive sentences for those crimes improper.

FACTS

On October 6, 1994, Orange drove into an Exxon station in Pasco and fired at least 11 shots, emptying his handgun. One bullet struck and killed Brandy McClure, another struck and wounded Marcel Walker, and a third pierced the clothing of Robyn Willer. The State charged Orange with 11 criminal counts: first degree murder of McClure, first degree attempted murder of Walker, first degree assault of Walker and Willer, and reckless endangerment of Willer and six others in the vicinity of the shooting.

At the opening of trial on April 26, 1995, the court discussed with counsel the method for conducting voir dire. Acknowledging that the prospective jurors had completed a lengthy questionnaire, the trial judge explained that they would be interviewed in chambers on eight of the questions — those asking them about past crimes, pretrial publicity, and familiarity with the Orange family's reputation. As the trial judge told counsel, "The rest of [voir dire] you can conduct in open court." Verbatim Report of Proceedings (Trial) (VRP) at 2. Encouraging counsel to use the answers in the questionnaires "as a springboard for further inquiry," the court warned that he would interrupt counsel if either merely asked jurors the same questions included in the questionnaires. Id. at 5. With that, the following discussion ensued:

[THE COURT:] We've been talking — or been asked to discuss the family members of the Oranges being here during the selection of the jury. My only difficulty I have here with that is that this entire courtroom will be filled with the venire, and I don't think I have any place, until we get the jury, for the family to be present, Mr. Egan.
MR. EGAN [defense counsel]: Would it be possible, Your Honor, to have the family seated at the bench alongside the wall of the courtroom.
THE COURT: No or not in my lap either.
MR. EGAN: Would it be all right if they took the back. The family has a significant interest.
THE COURT: I understand it. The trouble with it is the limitations of space. Number one, it would be impossible for me to separate the family from the jurors. Number two, I probably wouldn't even have a place for the family to sit as we select the jury. I understand their concerns and this three-week trial they will be here every inch of the way. But in this process, I just have to play it pretty tough, and I'm going to ask the family — they will have to sit outside.
MR. EGAN: As the process we[nd]s on, Your Honor, and as individual jurors may be excused for cause and space becomes available, will they then be allowed, if there is a bench that can be available to them.
THE COURT: We can reexplore this issue. You bet.
MR. COX [deputy prosecutor]: Your Honor, along the same lines the McClure family has also asked to be present during the jury selection. I have told them there may not be room for them. I'm sure if the Orange family is going to be present for part of the jury selection the McClure family will also want to be in here. And if the Orange family is entitled to it the McClure family —
THE COURT: Yes, it adds to the problem. I am ruling no family members, no spectators will be permitted in this courtroom during the selection of the jury because of the limitation of space, security, etcetera [sic]. That's my ruling.

Id. at 6-7 (emphasis added). After attending to further housekeeping matters, the trial judge returned to the issue of courtroom space:

All right. Gentlemen, I think this was worthwhile and the jury will be here. The family, of course, they [i.e., the prospective jurors] will have to utilize this area, and I certainly apologize that we don't have the facilities for all of the families who are definitely interested, concerned to be here throughout the entire trial, but when the jury is selected, well, we will have [a] lot of room and evidence will be produced at that time, and you may attend.

Id. at 41. The court made no written findings on the issue of courtroom space.

Voir dire began after the midmorning recess on Wednesday, April 26, 1995, continued on Thursday and Friday, and concluded on Monday, May 1. Closing arguments were delivered two weeks later on May 15. Returning its verdict the following day, the jury found Orange guilty on all but the last three counts of reckless endangerment. Orange was sentenced on the eight guilty verdicts on July 11, 1995. The court ordered that his sentences for first degree murder of McClure, first degree attempted murder of Walker, and first degree assault of Willer be served consecutively. The court further provided that Orange's sentence for first degree assault of Walker would be served concurrently with his sentence for first degree attempted murder of Walker.

Orange appealed. The Court of Appeals affirmed his convictions in an unpublished decision. State v. Orange, noted at 97 Wash. App. 1092, 1999 WL 1044204 (finding no error in trial court's exclusion of evidence of victim's reputation for bad acts and declining to order new trial based on deficient self-defense instruction requested by defendant), review denied, 140 Wash.2d 1015, 5 P.3d 9 (2000).

Orange filed a personal restraint petition on February 21, 2001. The Court of Appeals denied the petition in an unpublished decision. In re Pers. Restraint of Orange, noted at 110 Wash.App. 1086, 2002 WL 508351. We granted Orange's motion for discretionary review. After hearing oral argument on November 21, 2002, we ordered a reference hearing to determine the effect of the trial court's ruling on courtroom closure. The record and findings from that hearing, held before Franklin County Superior Court Judge Robert G. Swisher, were received in February 2003, and supplemental briefing was completed two months later.

ISSUES

(1) Did the trial court's closure of the courtroom during voir dire violate Orange's constitutional right to a public trial? If so, is the remedy for the error remand for a new trial?

(2) Did Orange's convictions for first degree attempted murder of Walker and first degree assault of Walker violate double jeopardy?

(3) Did Orange's convictions for first degree murder of McClure and first degree attempted murder of Walker violate double jeopardy? If not, was the imposition of consecutive sentences for those crimes improper?

ANALYSIS

Standard of Review. In his personal restraint petition, Orange claims constitutional error. To obtain relief through a personal restraint petition, a petitioner claiming constitutional error must show that such an error was made and that it "worked to his actual and substantial prejudice." In re Pers....

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