In re Pers. Restraint Petition of Daniel Stockwell

• Decision Date: 04 March 2011
• Docket Number: No. 37238–0–II.,37238–0–II.
• Court: Washington Court of Appeals
• Parties: In re Personal Restraint Petition of Daniel STOCKWELL, Petitioner.

160 Wash.App. 172

248 P.3d 576

In re Personal Restraint Petition of Daniel STOCKWELL, Petitioner.

No. 37238–0–II.

Court of Appeals of Washington, Division 2.

Feb. 17, 2011.As Corrected March 4, 2011.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Seattle, WA, for Petitioner.Randall Avery Sutton, Kitsap Co. Prosecutor's Office, Port Orchard, WA, for Respondent.

PART PUBLISHED OPINION

ARMSTRONG, P.J.

[160 Wash.App. 175] ¶ 1 A jury convicted Daniel Stockwell of first degree child molestation and attempted first degree molestation of his step-granddaughters, E.M. and M.S. The trial court found Stockwell was a persistent offender and sentenced him to life without the possibility of parole. On direct appeal, we and the Washington Supreme Court affirmed the convictions and sentence. In this timely personal restraint petition (PRP), Stockwell argues (1) his prior 1986 conviction for first degree statutory rape is not comparable to the current crime of first degree child rape; (2) the trial court erred by sealing jury questionnaires without weighing the five Bone–Club ¹ factors; (3) the trial court erred when ruling on challenges to certain jurors for cause; (4) the trial court erred by sending certain exhibits to the jury room; and (5) his appellate counsel on direct appeal ineffectively represented him by failing to request voir dire transcripts and inadequately briefing the comparability analysis. Finding no unlawful restraint, we deny the petition.

FACTS

¶ 2 In 2004, while babysitting E.M. and M.S., Stockwell touched both girls' vaginas on the outside of their clothes. E.M. was seven years old and M.S. was eight years old at the time. E.M. told Cynthia Conrad, a child interviewer, that Stockwell touched her vagina through her clothes while the two were alone in his living room watching a movie. M.S. told Conrad that she saw Stockwell touch E.M. and that Stockwell touched her in the same way. Conrad took near verbatim notes during the interviews and then transcribed them as soon as possible.

¶ 3 The State charged Stockwell with first degree child molestation for the incident with E.M. and attempted first degree child molestation for the incident with M.S.² A jury convicted Stockwell of both counts. In 1986, Stockwell had pleaded guilty to first degree statutory rape. The trial court found the 1986 first degree statutory rape statute comparable to the current first degree child rape statute and sentenced Stockwell to life without possibility of parole under the persistent offender statute, RCW 9.94A.030(36)(b).

¶ 4 On direct appeal, Stockwell argued that (1) the sentencing court's comparability findings violated his right to a jury trial under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) and (2) his prior conviction of first degree statutory rape was not comparable to first degree child rape. State v. Stockwell, 129 Wash.App. 230, 232–33, 118 P.3d 395 (2005). We affirmed. Stockwell, 129 Wash.App. at 235, 118 P.3d 395. The Supreme Court reviewed the comparability issue and held that the 1986 first degree statutory rape statute was comparable to the current first degree rape of a child statute. State v. Stockwell, 159 Wash.2d 394, 395, 150 P.3d 82 (2007).

ANALYSIS

I. Standard of Review

¶ 5 A personal restraint petition is not a substitute for a direct appeal. In re Pers. Restraint of Hagler, 97 Wash.2d 818, 823–24, 650 P.2d 1103 (1982). A personal restraint petitioner must prove either a constitutional error that caused actual prejudice or a nonconstitutional error that caused a complete miscarriage of justice. In re Pers. Restraint of Cook, 114 Wash.2d 802, 813, 792 P.2d 506 (1990). The petitioner must state the facts on which he bases his claim of unlawful restraint and describe the evidence available to support the allegations; conclusory allegations alone are insufficient. RAP 16.7(a)(2)(i); In re Pers. Restraint of Williams, 111 Wash.2d 353, 365, 759 P.2d 436 (1988).

¶ 6 In evaluating personal restraint petitions, we can: (1) dismiss the petition if the petitioner fails to make a prima facie showing of constitutional or nonconstitutional error; (2) remand for a full hearing if the petitioner makes a prima facie showing but the merits of the contentions cannot be determined solely from the record; or (3) grant the personal restraint petition without further hearing if the petitioner has proven actual prejudice or a miscarriage of justice. Cook, 114 Wash.2d at 810–11, 792 P.2d 506; In re Pers. Restraint of Hews, 99 Wash.2d 80, 88, 660 P.2d 263 (1983).

II. Sealed Jury Questionnaires

¶ 7 Stockwell argues that the trial court violated his right to a public trial by sealing jury questionnaires, thereby causing a structural error requiring a new trial without a showing of prejudice. The State argues that sealing jury questionnaires does not constitute a trial court closure that violates the constitutional guarantee of a public trial. The State also argues that even if we decide that sealing the questionnaires violated Stockwell's public trial rights, it would create a new procedural rule applicable only to cases still on direct review.³ Assuming, without deciding, that sealing the questionnaires has constitutional implications and that Stockwell can raise the issue in this PRP, his argument still fails on the merits.

¶ 8 The State's proposed jury questionnaire stated:

This questionnaire is designed to elicit information about your qualifications to sit as a juror in a pending case, and to shorten the process of jury selection. Please respond to the following questions as completely as possible. The information contained in this questionnaire will become part of the court's permanent record, although all questionnaires will be sealed and will not be available to the general public. During the questioning by the attorneys and the Court, you will be given an opportunity to explain or expand any answers if necessary....

Some of these questions may call for information of a personal nature that you may not want to discuss in an open courtroom with the press and/or the public present. If you feel an answer may invade your right to privacy, you may circle the question number to the left of the question. The Court will then give you an opportunity to explain your request for confidentiality in a closed hearing....

YOU ARE UNDER THE COURT'S ORDER: YOU MAY NOT DISCUSS THIS QUESTIONNAIRE OR YOUR ANSWERS WITH ANYONE.

Exh. 6 at 2 (emphasis added). Stockwell stipulated to using this questionnaire. When instructing the jury, the trial court further explained:

These questionnaires are going to be given to the court and to the attorneys. The questionnaires, after voir dire proceedings are done, are returned back to the clerk of court and they are shredded. They are not seen by anybody outside of the attorneys and the court that need to have this information. The copies are shredded. The originals are filed in a sealed file with the clerk of court for the record-keeping, so I want to let you—advise you of that as to these particular questionnaires.

Also, depending on answers to the questionnaires, there's a question in there about whether you would like to be examined or questioned outside the presence of other jury panel members, and be sure to consider that box there or check that if that is your request, and we will honor that request, also.

Exh. 8 at 22–23 (emphasis added). The trial court questioned several jurors individually at the jurors' request or at the attorneys' request, but it did so in open court and on the record.

¶ 9 Both the Sixth Amendment to the federal constitution and article I, section 22 of our state constitution guarantee a criminal defendant the right to a public trial. U.S. Const., amend. VI; Wash. Const., art. I, § 22. Additionally, article I, section 10 of our state constitution guarantees the public's right to public judicial proceedings, providing: “Justice in all cases shall be administered openly.” To protect these public trial rights, a trial court must weigh the five Bone–Club factors and enter findings before closing a criminal hearing or trial. State v. Brightman, 155 Wash.2d 506, 514–15, 122 P.3d 150 (2005); Bone–Club, 128 Wash.2d at 258–60, 906 P.2d 325. Whether a defendant's right to a public trial has been violated is a question of law, which we review de novo. Brightman, 155 Wash.2d at 514, 122 P.3d 150.

¶ 10 Our Supreme Court recently held that a partial closure of voir dire proceedings is not necessarily structural error. State v. Momah, 167 Wash.2d 140, 156, 217 P.3d 321 (2009). In Momah, the majority stated, “[W]e have held that the remedy must be appropriate to the violation and have found a new trial required in cases where a closure rendered a trial fundamentally unfair.” Momah, 167 Wash.2d at 150, 217 P.3d 321. Because Momah “affirmatively accepted the closure, argued for the expansion of it, actively participated in it, and sought benefit from it,” the court held that “the closure in this case was not a structural error” and reversal was not the appropriate remedy. Momah, 167 Wash.2d at 156, 217 P.3d 321. Three dissenting justices disagreed with the majority's assertion that Momah had requested closed voir dire and that he had benefitted from the closure. Momah, 167 Wash.2d at 157, 159–60, 217 P.3d 321. The dissent also expressed concern that the trial court had not considered the public trial rights of the victim and the public. Momah, 167 Wash.2d at 157, 164–66, 217 P.3d 321. The dissent concluded that the trial court's failure to conduct a Bone–Club analysis was reversible error. Momah, 167 Wash.2d at 157, 217 P.3d 321.

¶ 11 On the same day it filed Momah, the court filed State v. Strode, 167 Wash.2d 222, 223, 217 P.3d 310 (2009), in which it reversed Strode's conviction with the plurality reasoning that the trial court's closure of voir dire violated the defendant's public trial rights, the error was structural, and reversal...