In re Petition for Relief from Pers. Restraint Copland

• Decision Date: 05 September 2013
• Docket Number: No. 28165–5–III.,28165–5–III.
• Citation: 176 Wash.App. 432,309 P.3d 626
• Court: Washington Court of Appeals
• Parties: In re the Petition for Relief from Personal Restraint of Walter William COPLAND.

176 Wash.App. 432

309 P.3d 626

In re the Petition for Relief from Personal Restraint of Walter William COPLAND.

No. 28165–5–III.

Court of Appeals of Washington, Division 3.

Sept. 5, 2013.

Brett Andrews Purtzer, Attorney at Law, Tacoma, WA, for Petitioner.

Andrew Kelvin Miller, Benton County Prosecutors Office, Kennewick, WA, for Respondent.

KULIK, J.

[176 Wash.App. 435]¶ 1 After a long day of drinking with friends, Walter William Copland fatally shot one of his friends in the head. A Benton County jury convicted him of first degree manslaughter, with a firearm sentencing enhancement. In this timely petition, he seeks relief from personal restraint, contending (1) his constitutional right to a public trial was violated when some potential jurors were interviewed privatelyin chambers, and (2) new evidence supports vacation of his judgment and sentence and the setting of a new trial. We conclude that Mr. Copland's contentions are without merit. Accordingly, we dismiss the petition.

FACTS

¶ 2 On September 15, 2005, Mr. Copland and his friend John Stevens drank together most of the day. They eventually ended up on Mr. Stevens's back patio, where they were joined by a mutual friend, Al Anthis. At around 8:00 that night, Mr. Copland said to Mr. Anthis, “You know, I could shoot you or kill you.” Report of Proceedings (RP) at 689. Mr. Anthis replied, “Well, bring it on.” RP at 689. Mr. Copland then walked up to Mr. Anthis, put a gun to his temple, and shot him. Mr. Stevens witnessed the shooting and called 911. Afterward, Mr. Copland made several statements admitting that he fired the fatal shot.¹

¶ 3 The State charged Mr. Copland with first degree murder and first degree manslaughter, both crimes committed while armed with a deadly weapon, “to-wit: .22 caliber handgun.” Response Br., App. A. At trial, the defense was that Mr. Copland lacked the mental capacity to commit either crime due to intoxication. The jury found him guilty of first degree manslaughter and found by special verdict that he was armed with a firearm. He was sentenced to 150 months, including a 60–month firearm enhancement. This court affirmed his judgment and sentence on appeal. State v. Copland, noted at 140 Wash.App. 1006, 2007 WL 2254420,review denied,163 Wash.2d 1036, 187 P.3d 268 (2008). The mandate was filed on June 23, 2008.

¶ 4 On June 15, 2009, Mr. Copland filed this timely petition for relief from personal restraint. After the response brief and the reply brief had been filed, the petition was stayed pending the mandate in State v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012). In supplemental briefing filed during the stay, Mr. Copland challenged the firearm enhancement. The stay was lifted on January 11, 2013, and the parties were asked to address the applicability of Wise,State v. Paumier, 176 Wash.2d 29, 288 P.3d 1126 (2012), and In re Personal Restraint of Morris, 176 Wash.2d 157, 288 P.3d 1140 (2012).

¶ 5 Relief by way of a collateral challenge to a judgment and sentence is extraordinary. In re Pers. Restraint of Coats, 173 Wash.2d 123, 132, 267 P.3d 324 (2011). A personal restraint petition filed within one year after the judgment and sentence is final generally may challenge the conviction on any grounds, but must meet a high standard. Id. The petitioner must show with a preponderance of the evidence that he or she was actually and substantially prejudiced by a violation of constitutional rights, or that his or her trial suffered from a nonconstitutional defect that inherently resulted in a complete miscarriage of justice. Id;In re Pers. Restraint of Brett, 142 Wash.2d 868, 874, 16 P.3d 601 (2001). Additionally, the petitioner may not renew an issue that was raised and rejected on direct appeal unless the interests of justice require relitigation of that issue. In re Pers. Restraint of Yates, 177 Wash.2d 1, 17, 296 P.3d 872 (2013) (quoting In re Pers. Restraint of Davis, 152 Wash.2d 647, 671, 101 P.3d 1 (2004)). Washington courts have limited the relief considered in the “interests of justice” to cases where an intervening change in the law or some other circumstance justified the failure to raise a crucial argument on appeal. Id. (quoting In re Pers. Restraint of Stenson, 142 Wash.2d 710, 720, 16 P.3d 1 (2001)). A petitioner who renews an issue may not merely present different factual allegations or raise different legal arguments. Id. (quoting Davis, 152 Wash.2d at 671, 101 P.3d 1).

ANALYSIS

¶ 6 Right to a Public Trial. Mr. Copland contends his constitutional right to a public trial was violated when some of the potential jurors were interviewed privately in the judge's chambers. The State contends Mr. Copland waived his right to raise the public trial issue because he did not raise it on appeal. But a petitioner may raise issues in a collateral challenge that were not raised on appeal, including arguments that the criminal proceeding violated constitutional law. SeeRAP 16.4(c)(2).

¶ 7 The state and federal constitutions guarantee criminal defendants a right to a public trial. SeeConst. art. I, § 22 (the “accused shall have the right ... to have a speedy public trial”); U.S. Const. amend. VI (“the accused shall enjoy the right to a speedy and public trial”); In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004). Additionally, article I, section 10 of the Washington Constitution guarantees the public's open access to judicial proceedings (“[j]ustice in all cases shall be administered openly”). The public trial right is so important that its violation is considered a structural error, meaning it affects the framework within which the trial proceeds. Wise, 176 Wash.2d at 5–6, 288 P.3d 1113. A violation of the public trial right is presumed prejudicial on direct appeal, even when the violation is not preserved by objection. Id. at 16, 288 P.3d 1113.

¶ 8 Although vital, the right to a public trial is not absolute. Id. at 9, 288 P.3d 1113;Paumier, 176 Wash.2d at 34–35, 288 P.3d 1126. A trial court may close a courtroom if it first balances the public trial right against competing rights and interests, using the five criteria established in State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995).²Wise, 176 Wash.2d at 10, 288 P.3d 1113. As summarized in Wise, the Bone–Club criteria require the trial court, on the record, to at least (1) state the public trial right that will be lost by moving proceedings into a private room, (2) identify the compelling interest that motivates the closure, (3) weigh the competing rights, (4) give an opportunity to object, and (5) adopt the least restrictive alternative of closure. Id. Although a trial court may close all or part of a trial after considering the alternatives, it must “ ‘resist a closure motion except under the most unusual circumstances.’ ” Id. at 11, 288 P.3d 1113 (quoting Bone–Club, 128 Wash.2d at 259, 906 P.2d 325).

¶ 9 It is well settled that the public trial right extends to jury selection. Id. Relevant to this case, the right applies to the questioning of individual prospective jurors. Id. (citing State v. Momah, 167 Wash.2d 140, 151–52, 217 P.3d 321 (2009); State v. Strode, 167 Wash.2d 222, 227, 217 P.3d 310 (2009)). Mr. Copland contends the trial court did not consider the Bone–Club factors on the record when it decided to interview certain potential jurors in chambers. As a result, he asserts, the voir dire process was closed in violation of the public trial right and the violation is presumed prejudicial. We first consider whether Mr. Copland meets the standards for relief afforded a petitioner in a personal restraint petition.

¶ 10 Prejudice Standard on Collateral Review of a Judgment and Sentence. Mr. Copland contends he is entitled to relief because the trial court violated his constitutional right to an open and public trial. Because he raises this issue in a collateral challenge of his judgment and sentence, he must show with a preponderance of the evidence that he was actually and substantially prejudiced by the constitutional violation. Coats, 173 Wash.2d at 132, 267 P.3d 324. At this time, the Washington Supreme Court has not resolved whether a public trial violation is presumed prejudicial in a collateral challenge as well as in a direct appeal. Morris declined to rule on this question: “We need not address whether a public trial violation is also presumed prejudicial on collateral review because we resolve [Mr.] Morris's claim on ineffective assistance of appellate counsel grounds instead.” Morris, 176 Wash.2d at 166, 288 P.3d 1140. Although a petitioner claiming ineffective assistance of counsel must also show prejudice—due to the deficient performance of counsel—Morris found prejudice in the fact that if appellate counsel had raised the public trial issue on appeal, the defendant would have received a new trial due to structural error. Id.

¶ 11 Previously, Orange, another collateral review of the public trial issue, reiterated that the petitioner claiming constitutional error must show that the error “ ‘worked to his actual and substantial prejudice.’ ” Orange, 152 Wash.2d at 804, 100 P.3d 291 (quoting In re Pers. Restraint of Lile, 100 Wash.2d 224, 225, 668 P.2d 581 (1983)). Like Morris, however, Orange found prejudice in review of the effectiveness of appellate counsel. Id. at 814, 100 P.3d 291 (“had [Mr.] Orange's appellate counsel raised the constitutional violation on appeal, the remedy for the presumptively prejudicial error would have been, as in Bone–Club, remand for a new trial”). Orange quoted In re Personal Restraint of St. Pierre for the proposition that the petitioner's burden of establishing prejudice “ ‘may be waived where the error gives rise to a conclusive presumption of prejudice.’ ” Id. at 804, 100 P.3d 291 (quoting In re Pers. Restraint of St. Pierre, 118 Wash.2d 321, 328, 823 P.2d 492 (1992)). But Orange also noted that St. Pierre explicitly rejected the suggestion made in prior dicta that...