GROUNDS FOR RELIEF
FAILURE TO COMPLY WITH CRR 6.15 (F) REGARDING A JURY QUESTION SENT OUT DURING DELIBERATIONS CONCERNING JUDICIAL COMMENTS ON APPLICABILITY OF ACCOMPLICE TESTIMONY WHICH WAS CRUCIAL BECAUSE THE ACCOMPLICE HAD TESTIFIED THAT PETITIONER WAS NOT AN ACCOMPLICE AND THAT SOMEONE ELSE HAD BEEN HIS ACCOMPLICE INHERENTLY DEPRIVING PETITIONER OF SUBSTANTIVE AND PROCEDURAL DUE PROCESS IN A MANNER THAT CARRIES WITH IT A PRESUMPTION OF PREJUDICE FOR FAILURE TO HAVE A HEARING ON SAID JURY QUESTION WITHOUT KNOWING AND INTELLIGENT WAIVER THEREOF CREATING STRUCTURAL AND JURISDICTIONAL DEFECTS.
As supported by several memorandums of authorities set forth below, petitioner was deprived of procedure due process, substantive due process, right to public trial, right to be present, right to appear and defend, right of conflict of interest free counsel, right of effective assistance of trial counsel, and deprived of right of effective assistance of appellate counsel on State direct appeal as of right, see jury question dated 6/10/08 which was not filed until after trial on 6/11/08, which stated:
Jury question: Clarify statement judge made before Ronnie Childers testifies.
Court’s response: I am not able to answer your question at this time.
The memorandums of law set forth below are offered in support of a portion of, but not all, violations of statutory law & both State & Federal constitutions, to wit:
The procedures mandated by CrR 6.15(f) were simply not followed in this case as no hearing was held, and petitioner was not afforded the right to respond to the jury question, see “MANDATORY PROCEDURE FOR JURY QUESTIONS DURING DELIBERATIONS”, below.
If in fact a hearing was held on said jury question, then the required record to be made thereof was not followed, and the court record makes no reference to any hearing on the jury question, see “NO COURT RECORD OF PROCEEDING”.
Said jury question I this case, went directly to the state’s burden of proof beyond a reasonable doubt, where no principal culpability was required, see excerpts from State v. Sublett, 176 Wn.2d 58, 292 p. 3d 715 (Wash. 2012).
The issues raised by said jury question is not susceptible to waiver, see “PUBLIC TRIAL & RIGHT TO BE PRESENT & ASSIST COUNSEL”
Any “prejudice” requirement is inherent because the more onerous standard of review from direct appeal to collateral attack is inherently prejudicial, e.g, “TRIAL ATTORNEY FAILURE TO OBJECT-APPEAL ATTORNEY FAILTURE TO RAISE ISSUE”
MANDATORY PROCEDURE FOR JURY QUESTIONS DURING DELIBERATIONS
State v. Sublett, 176 Wn.2d 58, 292 p. 3d 715 (Wash. 2012):
During its deliberations, the jury submitted a question regarding the accomplice liability instruction. Counsel met in chambers to consider the question and agreed to the court’s answer telling the jury to reread the instructions. No objection was made to this procedure or the answer itself. The written question and answer were put in the record, but there was no colloquy regarding the discussion in the verbatim report of the proceedings.
Sublett was convicted of both premeditated first degree murder and felony murder. He was sentenced to life without the possibility of release under the Persistent Offender Accountability Act (POAAP), RCW 9.94A.570.
Both Sublett and Olsen contend that the trial court violated their public trial right when the court responded to a jury question in chambers, with only counsel present, and that this violation requires automatic reversal.
In applying the experience and logic test to the facts before us, we find the petitioners have failed to establish that the right to a public trial was violated. The petitioners have not identified any case that holds that these proceedings are a closure or violate the defendants’ constitutional rights, and we cannot find one either.
Such questions from the jury are covered by CrR 6.15(f). This rule requires:
- The jury shall be instructed that any question it wishes to ask the court about the instructions or evidence should be signed, dated and submitted in writing to the bailiff. The court shall notify the parties of the contents of the questions and provide them an opportunity to comment upon an appropriate response. Written questions from the jury, the court’s response and any objections thereto shall be made part of the record. The court shall respond to all questions from deliberating jury in open court or in writing. In its discretion, the court may grant a jury’s request to rehear or reply evidence, but should do so in a way that is least likely to be seen as a comment on the evidence, in a way that minimizes the possibility that jurors will give undue weight to such evidence. Any additional instruction upon any point of law shall be given in writing.
NO COURT RECORD OF PROCEEDING
State v. Turner, 169 Wn.2d 448, 238 P.3d 461 (2010):
For purpose of double jeopardy protection against multiple punishments for the same criminal conduct, “punishment” encompasses more than just a sentence for conviction. Even a conviction alone, without an accompanying sentence, can constitute “punishment” implicating the protection against double jeopardy. The separate conviction, apart from any concurrent sentence, has potential adverse collateral consequences that may not be ignored, i.e., the conviction itself, even without imposition of a sentence, carries an onus having punitive effect.
United States v. Cote, 51 F.3d 178, 181-183 (9th Cir. 1995) (Retrial not precluded where conviction was “reversed” but mandate did not contain “Order dismissing the cases or an order directing acquittal”, particularly giving lack of language in opinion to suggest that pane thought retrial was not appropriate).
State v. Njonge, 181 Wn.2d 546, 556,334 P.3d 1068 (“We cannot presume the existence of fact to which the record is silent”), cert. denied, 135 S.Ct. 880 (2014)
State v. Slert, 169 Wn. App. 776, _____ P.3d ____ (2011):
Because the jury selection process begins when prospective juros are sworn and given questionnaires to complete, such proceedings should be conducted on the records to facilitate appellate review.
State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011):
The record did not evidence the fact that defense counsel spoke to the defendant before responding to the trial judge’s e-mail. The violation was not harmless. The alleged instability of three of the potential jurors to serve was never tested by questioning in defendant’s presence, indeed, they were not questioned at all. The State could not show beyond a reasonable doubt that the removal of several potential jurors in defendant’s absence had no effect on the verdict.
State ex rel. Shattack v. French, 82 Wash. 330, 1440 P.2d ___ (Wash. 1914) Certiorari does not life to review order discharging prisoner when such order has not been entered.
State v. Knippling, 141 Wn.App. 50, 168 P.3d 426 (2007) (“When neither party on appeal contends that a proceeding was held and nothing in the record suggest there was even any discussion of it, the appellate court may presume that the proceeding did not take place).
State v. Sublett, 176 Wn/2d 58, 292 P.3d 715 (Wash. 2012)
Both petitioners challenge the content of the accomplice liability jury instruction, and both claim a violation of their article I, section 22 trial rights occurred when the trial judge considered, in chambers and a counsel present, a question from the jury during its deliberations.
Olsen did not object to the instructions implicated by his argument, but he argues his due process rights were violated because the State was not required to prove every element of the offense, this according to his argument, reversal is warranted. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.ed.2d 368 (170) (“The due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of ever fact necessary to constitute the crime with which he is charged”). Under RAP 2.5 (a)(3), we will review an alleged manifest error affecting a constitutional right even if not raised in the trial court. But for relief to be granted, Olsen must show actual prejudice resulting from the error and the error s nonetheless subject to harmless error review. State v. O’Hara, 167 Wn.2d 91, 98-99, 217 P.3d 756 (2010).
The jury sent the following question to the trial court:
Clarification of instruction 21. The structure of the 2nd sentence in the 1st paragraph is unclear. Which of the following is correct for intent? A person (X) is legally accountable for the conduct of another person (Y) when he or she (X) is an accomplice of such other person (Y) in the commission of the crime. – Or – A person (X) is legally accountable for the conduct of another person (Y) when he or she (Y) is an accomplice of such other person {X} in the commission of the crime.
The judge and counsel discussed this question in chambers, and the judge responded to the jury that “I cannot answer your question please re-read your instructions.” SCP at 129. It is within the trial court;s discretion whether to give further instruction to a deliberating jury. State v. Beclkin, 163 Wn.2d 519, 529, 182 P.3d 944 {2008) (citing State v. Brown, 132 Wn.2d 529, 612, 940 P.2d 546 (1997)). Because there was no objection, however, we do not review for abuse of discretion. Rather, Olsen must show actual prejudice caused by a constitutional error. O’Hara, 157 Wn.2d at 98-99, 217 P.3d 756. He does not do so.
PUBLIC TRIAL & RIGHT TO BE PRESENT & ASSIST COUNSEL
State v. Irby, 170 Wn. 2d 874, 246 P.3d 796 (2011):
We hold that the trial court violated Irby’s rights under the due process clause of the fourteenth Amendment and article I, section 22 by conducting a portion of jury selection in Irby’s absence, and we conclude that the violation of these rights was not harmless beyond a reasonable doubt. In light of our decision, it is unnecessary to decide whether the trial court violated Irby’s right to public trial or erred by concluding that he was a persistent offender.
Footnote 6: The right under the state constitution to “appear and defend” is, arguably, broader that the federal due process right to be present. Unlike Snyder, 291 U.S. at 108 (“There is nothing he could do if he were there, and almost nothing he could gain.)), or the extent of which the defendant’s presence may have aided his defense, see id., at 113 (“No one can… have even a passing though that the presence of Snyder would have been an aid to his defense.)), but rather on the chance that defendant’s “substantial rights may be affected” at the stage of trial.
State v. Easterling, 157 Wash.2d 167, 137 P.3d 825(2006)
A criminal defendant’s failure to lodge contemporaneous objection to an order closing courtroom proceeding to the public does not waive the right to challenge the constitutional validity of the order on appeal.
In the prosecution of the codefendant’s in a joint proceeding, one codefendant’s Sixth Amendment right to a public trial is violated if the trial court, at the request of the codefendant, excludes the first codefendant and the public for hearing on a pretrial motion to sever trial or to dismiss the charges without engaging in the analysis required by State v. Bone Club, 128 Wn.2d 254, 906 P.2d 325 (1995) and without establishing on the record’s a compelling interest for closure. The court’s failure to engage in a Bone Club analysis and to enter findings justifying the closure order constitutes prejudicial error, entitling the first codefendant to reversal of judgment. The defendant’s right to a public trial is nit waived simply because the closure was requested by the codefendant who moved for severance or dismissal. It is the party who makes the request, that triggers the trial court’s duty to apply the five part Bone-Club requirements.
TRIAL ATTORNEY FAILURE TO OBJECT-APPEAL ATTORNEY FAILURE TO RAISE ISSUE
State v. Easterling, 157 Wash.2d 167, 137 P.3d 825 (2006):
A criminal defendant’s failure to lodge contemporaneous objection to an order closing courtroom proceeding to the public does not waive the right to challenge the constitutional validity of the order on appeal.
State v. Sublett, 176 Wn.2d 58, 292 P.3d 715 (Wash. 2012):
Olsen did not object to the instructions implicated by his argument, but he argues his due process rights were violated because the State was not required to prove every element of the offense, thus according to his argument, reversal is warranted. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.ed.2d 368 (1970) (“The Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of ever fact necessary to constitute the crime with which he is charged”)… Because there was no objection, however, we do not review for abuse of discretion. Rather, Olsen must show actual prejudice caused by a constitutional error. O’Hara, 157 Wn.2d at 98-99, 217 P.3d 756. He does not do so.
State v. Slert, 186 Wn.2d 869, 383 P.3d 466 (2016)(En Banc):
We recognize that Slert’s attorney was complicit in any error made here, but we are not presented with an ineffective assistance of counsel claim… We hold that Slert has not preserved his right to be present challenge and that the law of the cause doctrine does not bar our review. We also hold that any error was harmless beyond a reasonable doubt.
In re Pers. Restraint of Morris, 176 Wn.2d 157, 288 P.3d 1140 (2012)
Holding that the petitioner is entitled to relief on collateral review on his claim that appellate counsel rendered ineffective assistance by failing to argue the public trial claims because (1) Prejudice would have been presumed and (2) the petitioner would have been granted relief on direct review, the court grants the petition, vacates the petitioner’s convictions, and remand the petitioner’s cause to the trial court for further proceedings.
Patrick L. Morris filled this timely personal restraint petition, alleging a violation of his right to a public trial when the trial court conducted part of voir dire in chambers. Further, he claims is appellate counsel was ineffective for failing to raise the violation on direct review. In In re Personal Restraint of Orange, 152 Wn.2d 795, 814, 100 P.3d 291 (2004), we resolved a similar claim on ineffective assistance of appellate counsel grounds. This case is analytically indistinguishable from Orange. We therefore reaffirm Orange and hold that where appellate counsel fails to raise a public trial right claim, where prejudice would have been presumed on direct review, a petitioner is entitled to relief on collateral review.