In re Pers. Restraint Petition D'Allesandro

• Decision Date: 17 December 2013
• Docket Number: No. 37217–7–II.,37217–7–II.
• Citation: 178 Wash.App. 457,314 P.3d 744
• Court: Washington Court of Appeals
• Parties: In re Personal Restraint Petition of Felix Joseph D'ALLESANDRO.

178 Wash.App. 457

314 P.3d 744

In re Personal Restraint Petition of Felix Joseph D'ALLESANDRO.

No. 37217–7–II.

Court of Appeals of Washington,

Division 2.

Dec. 17, 2013.

Rita Joan Griffith, Attorney at Law, Seattle, WA, Jeffrey Erwin Ellis, Portland, OR, for Petitioners.

Carol L. La Verne, John C. Skinder, Thurston County Prosecutor's Office, Olympia, WA, Jeremy Richard Randolph, Attorney at Law, Cannon Beach, OR, for Respondents.

HUNT, J.

¶ 1 In this personal restraint petition (PRP), Felix Joseph D'Allesandro challenges his 2004 jury trial conviction for first degree premeditated murder with a deadly weapon. He argues that his previous appellate counsel rendered ineffective assistance in failing to include a Bone–Club¹ challenge to the temporary courtroom closure during jury selection in the petition for review from his direct appeal.² Agreeing, we grant this PRP.

FACTS

¶ 2 The State charged Felix Joseph D'Allesandro and Mert Celebisoy with first degree murder while armed with a deadly weapon for the stabbing death of David George.³State v. Celebisoy, noted at 131 Wash.App. 1003, 2006 WL 14519, at *2,review denied,158 Wash.2d 1004, 143 P.3d 828 (2006). Their high profile cases were consolidated for trial in March 2004. Celebisoy, 131 Wash.App. 1003, 2006 WL 14519, at *3. The jury convicted both defendants as charged.

I. Closed Courtroom During Initial Jury Voir Dire

¶ 3 Before voir dire began, D'Allesandro's counsel apparently proposed and prepared a juror questionnaire, which asked jurors to indicate whether they wished to be interviewed privately about any of the questions. The trial court's instruction sheet accompanying this questionnaire stated: “Further questioning, if any, will be conducted privately if you request it. That is, the public and other potential jurors will not be present.” ⁴ State's Third Suppl. Resp., App. B at 3. D'Allesandro subsequently asked the trial court about interviewing prospective jurors who had stated on their juror questionnaires that they preferred to be examined “privately,” as both the questionnaires and the trial court's accompanying instruction sheet had promised. 1 Verbatim Report of Proceedings (VRP) (Mar. 8, 2004) at 2–3.

¶ 4 D'Allesandro's counsel stated:

It occurred to me ... after I had an opportunity to review the jury questionnaires, it would make sense for the parties and the Court to interview prospective jurors who wished to speak with us privately, to do those interviews prior to voir dire, and my rationale is that if those interviews result in any excuses for cause, it would diminish the pool right off the bat, and secondly and perhaps more importantly from my perspective we don't run the risk of tainting the remaining pool, if we do it on the front end as opposed to doing it on the back end. And I know there are a lot of people in the—on this side of the bar in the well, and normally, at least in my experience, those interviews are conducted in chambers, and I would suggest that those interviews take place in an empty courtroom. By that, I mean apart from the remaining prospective jurors.1 VRP (Mar. 8, 2004) at 2 (emphasis added). Celebisoy, the State, and the trial court agreed that speaking to those jurors whose questionnaires had requested “private” questioning, before beginning the general voir dire, would be the most efficient approach. I VRP at 3. Celebisoy's counsel also commented that it might lessen the chance “of tainting the larger [jury] pool.” 1 VRP (Mar. 8, 2004) at 3.

¶ 5 The trial court responded:

Well, all of the attorneys are in agreement, and I don't find myself in disagreement, but I maybe would like to make a further suggestion. The jurors have been waiting a long time so I would like to invite them in and tell them something about how this process is working, and then it occurs to me that in addition to those who we've flagged as—on the basis that they wanted to be asked certain questions in private instead of in public, private meaning in the presence of the attorneys, the defendants, the clerk, so on—it doesn't mean absolute privacy, but it means outside of what's open to the general public—and that's a procedure we generally afford jurors out of respect for their privacy. They're not the ones on trial here, and sometimes there are personal and embarrassing matters that they want to properly disclose, but shouldn't be made to do so in the glare of the whole community necessarily.

But that in addition to those that have answered “yes” to the question that they need to answer certain questions in private, there are some others who've indicated they know something about this case from the media, and it seems it might be prudent to talk to some of those individuals in private so that the questions they answer don't educate the other jurors who profess to not know anything about this in the media and that maybe we should expand that group to include those individuals and ask them media-related questions at the same time, and then there might be some of those who have to be excused for cause and others who don't, but then that would give us a pool of jurors from which to pick which is more like those with which we are usually faced.

1 VRP (Mar. 8, 2004) at 4–5 (emphasis added). The State and D'Allesandro agreed that this approach was “fine” with them.⁵ 1 VRP (Mar. 8, 2004) at 5.

¶ 6 The trial court then discussed the logistics:

So you can be thinking about [identifying those who have had some media contact and think need further in-depth interviews], and I think I'll invite [the entire venire] in, make some preliminary remarks as is usually the case, and then explain that we're going to question those jurors who wanted to be questioned privately first.

Would you find out if my regular courtroom is available for that? Or we could even clear this courtroom I suppose for that.

I'm thinking maybe what we'll do is maybe close this courtroom temporarily. I mean the trial's going to be open to the public, but for these in camera interviews, maybe we'll just ask members of the public to leave. Then we don't have to upset the counsel table, the court reporter and everybody else, and then open the door again to whoever wants to attend once we're not talking privately with a particular juror. I think that might be a way to do that.

I see there's some observers here, which are welcome to be here throughout the trial, but what we're talking about is how do we pick everybody else up and move them into the judge's chambers? There's quite a few people here to even fit into a judge's chambers plus a juror. Our chambersare not that large so I think that's the common-sense way to do this.

All right. So anything else before we invite the venire to come in?

1 VRP (Mar. 8, 2004) at 7–8. The State commented that it had nothing further; neither defendant responded or objected.

¶ 7 The trial court then invited the venire into the courtroom and announced:

Because there are so many of you and because there was a special questionnaire we couldn't use the usual process that is ordinarily used, so what you've begun to go through, and what you'll go through for the balance of the day, I want you to know is not how we ordinarily do things in Thurston County Superior Court, and the reason that this case is different is because instead of the 35 jurors we usually have, we have over 90 jurors, and not every case has a questionnaire. This case does. One of the things on this questionnaire asked if certain people want to be asked certain questions outside the view of the community, which we generally allow for jurors' privacy, and all of those things take time.

...

We're going to do the voir dire in this courtroom because of its size. It's the ceremonial courtroom and it's the largest courtroom in the building. Once we get down to the actual jury, which will be 14 jurors, we'll move up to courtroom 208, which is department five where I usually sit as the judge in that courtroom. The way we're going to proceed is I'm going to give you some introductory remarks continuing on what I'm saying now, introduce you to the major participants, give you your oath as jurors, and then—I think it makes more sense and is a better use of everyone's time—begin the questioning of the jurors who either have asked to be questioned about certain things in private plus certain jurors that the attorneys have selected to ask certain questions in private and see—of those who are questioned privately—how many of those leave us. Then we'll come back with the remaining venire and handle it in a more regular way.

1 VRP (Mar. 8, 2004) at 8, 9, 10.

¶ 8 The trial court identified 18 prospective jurors by number as “jurors who indicated they had individual questions.” 1 VRP (Mar. 8, 2004) at 22. Each defense counsel selected at least one of these jurors for the initial private interviews. The trial court then told the remaining jury pool, “[A]ll those except the ones that were named, you're excused” for the next two hours. 1 VRP (Mar. 8, 2004) at 24.

¶ 9 After the venire left the courtroom, the trial court commented that ordinarily it would take each juror into chambers with the clerk, court reporter, the attorneys, and defendants to “undergo questioning in private”; but because there were too many people to fit into chambers, it was going to “turn this courtroom into the judge's chambers,” which meant that it was “going to ask all the public to now leave, except for the jurors.” 1 VRP (Mar. 8, 2004) at 25. The parties do not dispute that the trial court did not expressly address the five Bone–Club factors on the record before temporarily closing the courtroom to the public to question prospective jurors in private. See Bone–Club 128 Wash.2d at 258–59, 906 P.2d 325.

¶ 10 This closed portion of the proceedings was conducted on the record. The trial court and the parties individually questioned approximately 27 prospective jurors, nearly one-third of the jury pool. The trial court excused...