IN RE: Personal Restraint Petition of Felix Joseph D'ALLESANDRO.

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Court of Appeals of Washington,Division 2.

IN RE: Personal Restraint Petition of Felix Joseph D'ALLESANDRO.

No. 37217–7–II.

-- December 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.

PUBLISHED OPINION

¶ 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.3 State 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 chambers are 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 approximately 14 prospective jurors for cause, health concerns, and work conflicts. The trial court then asked the remaining prospective jurors to reenter the courtroom for general voir dire; it is not clear from the record whether the trial court also allowed members of the public or the defendants' families to reenter the courtroom at this time.

II. Post–Trial Procedure

A. Direct Appeal

¶ 11 On direct appeal to this court, D'Allesandro asserted in his pro se Statement of Additional Grounds (SAG)6 that the trial court had violated his public trial rights by closing the courtroom during a portion of jury selection. Celebisoy, 131 Wash.App. 1003, 2006 WL 14519, at *9. In a January 2006 unpublished opinion, we rejected this argument “[b]ecause the trial court took this action at D'Allesandro's request to protect his right to a fair and impartial jury.” Celebisoy, 131 Wash.App. 1003, 2006 WL 14519, at *9. We explained:

The doctrine of invited error “prohibits a party from setting up an error at trial and then complaining of it on appeal.” State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds [by] State v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995). Moreover, we note that D'Allesandro has failed to demonstrate any prejudice flowing from the trial court's limited interviewing of potentially tainted jurors in camera, as he requested. Thus, D'Allesandro's claim fails.

Celebisoy, 131 Wash.App. 1003, 2006 WL 14519, at *10 (emphasis added).7

¶ 12 In a footnote related to this analysis, this court quoted D'Allesandro's counsel's request, which request is quoted in full above. But this quoted material omitted the last line of defense counsel's statement in which counsel qualified his request by stating, “By that, I mean apart from the remaining prospective jurors.” 1 VRP (Mar. 8, 2004) at 2 (emphasis added). We affirmed D'Allesandro's conviction, vacated his exceptional sentence under Blakely,8 and remanded for resentencing. Celebisoy, 131 Wash.App. 1003, 2006 WL 14519, at *16.

B. Petition for Review

¶ 13 In February 2006, D'Allesandro's appellate counsel petitioned the Washington State Supreme Court for review of our decision. Appellate counsel's sole argument in the petition was that the trial court had erred in denying D'Allesandro's request for a lesser included instruction.

¶ 14 Four months later, in June 2006, the Court issued State v. Easterling, 157 Wash.2d 167, 137 P.3d 825 (2006),9 holding that the trial court had committed reversible error in closing the courtroom to Easterling and to the public during a pretrial hearing on his co-defendant's motion to sever jury trials without first conducting a Bone–Club analysis. Easterling, 157 Wash.2d at 171–72, 137 P.3d 825. The Court declared: “The presumptive remedy for a public trial right violation is reversal and remand for a new trial.” Easterling, 157 Wash.2d at 174, 137 P.3d 825.

¶ 15 D'Allesandro's petition for review was still pending. D'Allesandro contacted his appellate counsel and asked her to raise the Bone–Club challenge based on the Supreme Court's new Easterling decision. Appellate counsel responded that if the Court denied review of D'Allesandro's petition for review, he could file a personal restraint petition (PRP), “arguing any issue he feels the court should consider including those related to the Easterling decision.” PRP at App. H.

¶ 16 On October 10, our Supreme Court denied review. State v. Celebisoy, 158 Wash.2d 1004, 143 P.3d 828 (2006). We mandated the direct appeal, and on November 28, the trial court resentenced D'Allesandro.

C. PRP

¶ 17 As previously suggested by his appellate counsel, D'Allesandro filed the instant PRP. In support, he attached declarations from his mother and father stating that (1) they had been excluded from the courtroom during at least a portion of voir dire; (2) they had wanted to be present during voir dire to show support of their son but were excluded, (3) they were not offered the opportunity to object, and (4) they would have objected if they had been given the opportunity. His mother also declared that she and D'Allesandro's father had approached the bailiff before leaving the courtroom, explained that D'Allesandro was their son, but were told to leave. PRP App. E. D'Allesandro's father further declared: “I know that prior to being excluded, defense counsel asked the judge (at [a] sidebar) if the parents of both defendants could stay for voir dire.”10 PRP App. F.

¶ 18 We set D'Allesandro's PRP for oral argument before a panel of judges. Before the first oral argument, the panel requested and received supplemental briefing on our Supreme Court's then recent “Bone–Club ” decisions in State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009), and State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), and our then recent decisions in State v. Paumier, 155 Wash.App. 673, 230 P.3d 212 (2010), affd, 176 Wash.2d 29, 288 P.3d 1126 (2012), and State v. Bowen, 157 Wash.App. 821, 239 P.3d 1114 (2010). The panel heard argument on September 3, 2010, and then stayed this case pending our Supreme Court's decisions in State v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012)' and Paumier.

¶ 19 We lifted the stay in November 2012, after which the parties filed supplemental briefs addressing our Supreme Court's most recent public trial decisions in Wise, Paumier, In re Pers. Restraint of Morris, 176 Wash.2d 157, 288 P.3d 1140 (2012), and State v. Sublett, 176 Wash.2d 58, 292 P.3d 715 (2012).11 We then set the case for a second oral argument before a panel of judges.

ANALYSIS

¶ 20 D'Allesandro argues that appellate counsel on direct appeal rendered ineffective assistance because had she raised the Bone–Club issue and cited Easterling in his petition for review, the Supreme Court would have granted review and reversed on grounds of structural error and automatic prejudice, and because our opinion in his direct appeal conflicts with the Supreme Court's later-decided Easterling opinion on this issue. We agree.

I. Applicable Standards of Review

A. PRP

¶ 21 Generally, to be entitled to relief, a timely PRP12 petitioner must establish “either that he or she was actually and substantially prejudiced by constitutional error or that his or her trial suffered from a fundamental defect of a nonconstitutional nature that inherently resulted in a complete miscarriage of justice.” In re Pers. Restraint of Finstad, 177 Wash.2d 501, 506, 301 P.3d 450 (2013) (citing In re Pers. Restraint of Elmore, 162 Wash.2d 236, 251, 172 P.3d 335 (2007)). Courts apply this heightened standard of review to promote finality when the petitioner has had previous opportunities for judicial review. See In re Pers. Restraint of Coats, 173 Wash.2d 123, 132, 267 P.3d 324 (2011) (citing Elmore, 162 Wash.2d at 251, 172 P.3d 335 (heightened standard); In re Pers. Restraint of Isadore, 151 Wash.2d 294, 299, 88 P.3d 390 (2004) (no prior opportunity for review); In re Pers. Restraint of Cook, 114 Wash.2d 802, 810–12, 792 P.2d 506 (1990)).

¶ 22 But when, as is the case in an ineffective assistance of appellate counsel claim, the petitioner has not had a previous opportunity to obtain judicial review, this heightened standard does not apply. Coats, 173 Wash.2d at 132, 267 P.3d 324; Isadore, 151 Wash.2d at 299, 88 P.3d 390. Instead, “[t]o prevail on a claim of ineffective assistance of appellate counsel, [Petitioner] must demonstrate the merit of any legal issue appellate counsel raised inadequately or failed to raise and also show [ ]he was prejudiced.” See In re Pers. Restraint of Netherton, 177 Wash.2d 798, 801, 306 P.3d 918 (2013) (citing In re Pers. Restraint of Lord, 123 Wash.2d 296, 314, 868 P.2d 835, cert. denied, 513 U.S. 849, 115 S.Ct. 146, 130 L.Ed.2d 86 (1994)); see also Morris, 176 Wash.2d at 166, 288 P.3d 1140 (citing Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); Orange, 152 Wash.2d at 814, 100 P.3d 291)).

B. Ineffective Assistance of Appellate Counsel

¶ 23 To establish deficient performance by appellate counsel, D'Allesandro must show that his appellate counsel should have known, but failed, to raise the public trial issue in the petition for review. See Morris, 176 Wash.2d at 167, 288 P.3d 1140. To establish prejudice, D'Allesandro must show that had appellate counsel included the public trial issue in the petition for review, (1) the Supreme Court would have granted review, and (2) the Court would have reversed D'Allesandro's conviction or remanded the case back to this court and we would have reversed the conviction. See Netherton, 177 Wash.2d at 801, 306 P.3d 918.

C. Public Trial Rights

¶ 24 We review whether the trial court has violated a defendant's public trial right de novo. Sublett, 176 Wash.2d at 70, 292 P.3d 715 (citing Momah, 167 Wash.2d at 147–48, 217 P.3d 321 (citing Bone–Club, 128 Wash.2d at 256, 906 P.2d 325)). Additionally,

There is a strong presumption that courts are to be open at all stages of the trial. A criminal defendant's right to a public trial is found in article I, section 22 of the Washington State Constitution and the Sixth Amendment to the United States Constitution, both of which provide a criminal defendant with a “public trial by an impartial jury.” The public trial right is not absolute but may be overcome to serve an overriding interest based on findings that closure is essential and narrowly tailored to preserve higher values. Waller v. Georgia, 467 U.S. 39, 45, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

Sublett, 176 Wash.2d at 70–71, 292 P.3d 715 (footnote omitted). And “[i]t is well settled that the public trial right extends to jury selection [including] the questioning of individual prospective jurors.” In re Pers. Restraint of Copland, 176 Wash.App. 432, 439, 309 P.3d 626 (2013).13

II. Failure To Challenge Closed Courtroom in Direct Appeal Petition for Review

¶ 25 We agree with D'Allesandro that our Supreme Court likely would have taken review of his Bone–Club public trial issue and reversed his conviction if his appellate counsel had raised it in his direct appeal petition for review because (1) the Supreme court issued Easterling while D'Allesandro's petition was pending; (2) Easterling clearly established that (a) the waiver and invited error doctrines do not apply in the public trial context because it is the trial court's responsibility to examine the Bone–Club factors, even when the defense requests courtroom closure,14 and (b) such closures are per se prejudicial, calling for automatic reversal and remand for a new trial on direct appeal; and (3) our decision in D'Allesandro's direct appeal was contrary to the Supreme Court's later-filed Easterling decision.

A. Deficient Performance

¶ 26 D'Allesandro first satisfies the deficient performance prong of the ineffective assistance of appellate counsel test by showing that counsel should have known to raise the public trial issue in the petition for review. See Morris, 176 Wash.2d at 167, 288 P.3d 1140. Counsel filed the petition for review in February 2006, just over a year after our Supreme Court issued Orange, four months after the Court issued Brightman, six months after the Court granted review of Easterling, and three months after the Court heard argument in Easterling. The Court issued its opinion in Easterling15 in June 2006, four months before it denied D'Allesandro's petition for review; in the interim, D'Allesandro had specifically brought Easterling to his appellate counsel's attention when he asked her to add the Bone–Club issue (from our appellate decision16 ) to the petition for review, based on this new Supreme Court decision. Instead, appellate counsel advised D'Allesandro that he could wait to raise the issue later in a PRP; this advice was deficient given the existing higher standard of prejudice necessary to warrant collateral relief, in contrast to the per se prejudice rule applicable on direct appeal for this type of public trial violation. See, e.g., Copland, 176 Wash.App. at 439–41, 309 P.3d 626 (explaining distinction between automatic reversal on direct appeal for public trial violations in contrast to higher standard of showing actual and substantial prejudice necessary to prevail in a PRP).17

¶ 27 Moreover, close in time to our Supreme Court's consideration of D'Allesandro's petition for review, it reviewed and later accepted other similar public trial cases for review.18 For example, our Supreme Court issued Orange, Brightman, and Easterling near or shortly after the time D'Allesandro's counsel filed his petition for review, counsel should have been aware that the Court was keenly interested in accepting review of cases involving this emerging issue and developing the public trial doctrine. We hold that D'Allesandro has satisfied the deficient performance prong of the ineffective assistance of appellate counsel test based on appellate counsel's initial failure and subsequent refusal19 to include the public trial Bone–Club issue in his petition for review to our Supreme Court.

B. Prejudice

¶ 28 Turning to the second prong of the ineffective assistance of counsel test, D'Allesandro shows prejudice, namely that (1) our Supreme Court likely would have taken direct review or remanded the case back to us for reconsideration, and (2) his public trial violation claim would likely have been successful in winning reversal of his conviction if the Supreme Court had granted review of the public trial issue because he would have been entitled to benefit of the per se prejudice/automatic reversal rule for this error on direct appeal and remand for a new trial. See Netherton, 177 Wash.2d at 802, 306 P.3d 918. If appellate counsel here had included the public trial issue in D'Allesandro's petition for review, the Supreme Court likely would either granted review or stayed the case pending the other public trial cases it was considering.20 See Netherton, 177 Wash.2d at 802, 306 P.3d 91821 ; see also e.g., Strode, 167 Wash.2d at 224–25, 217 P.3d 310 (certification from Division Three of this court accepted in November 2007); Momah, 161 Wn.2d at 140 (petition for review granted January 2008).

¶ 29 D'Allesandro also would have been able to establish that his courtroom closure during voir dire was the type of closure that our Supreme Court has held establishes per se prejudice requiring automatic reversal on direct appeal. In Wise, a five-justice majority of our Supreme Court held that (1) public trial violations during voir dire are per se prejudicial because this is the type of structural error wherein “it is impossible to show whether the structural error of deprivation of the public trial right is prejudicial”; and (2) the remedy for a voir dire violation must be a new trial because it is unreasonable to think that a ‘ “redo” ‘ of voir dire would provide an adequate remedy. Wise, 176 Wash.2d at 19, 288 P.3d 1113 (emphasis added); see also Easterling, 157 Wash.2d at 181, 137 P.3d 825.22

¶ 30 In Momah, our Supreme Court found no public trial right violation when the defendant proposed closing the courtroom. 167 Wash.2d at 151–52, 217 P.3d 321. Arguably, the facts here are similar. But our Supreme Court seems to be retreating from Momah, by recently noting, for example, that Momah “presented a unique confluence of facts.” Wise, 176 Wash.2d at 14–15, 288 P.3d 1113; see also Paumier, 176 Wash.2d at 35–36, 288 P.3d 1126. Furthermore, unlike in Momah, the full quote from the record here (in contrast to the truncated quote in our 2006 opinion) arguably shows that D'Allesandro's counsel did not ask the trial court to exclude the public from the individual juror voir dire; rather, defense counsel asked that the individual voir dire simply take place “apart from the remaining prospective jurors.”23 1 VRP (Mar. 8, 2004) at 2–3 (emphasis added). And, again unlike in Momah, the trial court here, rather than D'Allesandro, expanded the scope from private questioning about personal matters to include questioning potential jurors about media exposure (a topic that is not likely to be embarrassing or difficult for a potential juror to talk about in public).

¶ 31 Although the trial court's statements here noted public trial rights generally, its statements also suggested that it was the trial court's common practice to conduct private voir dire on certain private or personal topics in chambers and that the trial court may have believed that only the evidentiary phase of the trial was required to be open to the public.24 Finally, unlike in Momah, (1) there is nothing in the record suggesting that the parties and the court otherwise discussed how to tailor any closures narrowly, or the public's right to presence during this part of the proceedings25 ; and (2) the trial court did not address the Bone–Club factors on the record, either explicitly, or implicitly as did the trial court in Momah.26 As in Morris,27 we find prejudice here in the fact that if appellate counsel had raised the public trial issue on direct appeal, D'Allesandro would have received a new trial due to structural error.28 See Copland, 176 Wash.App. at 440, 309 P.3d 626.

¶ 32 We hold that D'Allesandro has shown that (1) had counsel raised this public trial issue in the petition for review, our Supreme Court would have likely either accepted review or stayed the petition for review pending other public trial cases it had accepted for review; (2) the Supreme Court would have held that the trial court violated D'Allesandro's public trial rights, which constituted per se prejudice on direct appeal, or at least remanded to our court to address this issue; and (3) D'Allesandro would have been entitled to reversal of his conviction and remand for a new trial.

¶ 33 Accordingly, we grant D'Allesandro's PRP and deny the State's request for costs under RCW 10.73.160.

HUNT, J.

We concur: WORSWICK, C.J., and MAXA, J.

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