In re Champaco

In the Matter of the Personal Restraint Petition of: BRIAN CHAMPACO, Petitioner.

NO. 66055-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

September 28, 2015

ORDER AMENDING OPINION

Based on this court's order granting the motion to recall the mandate to correct an inadvertent error, it is hereby

ORDERED that the opinion of this court in this case filed September 28, 2015, is hereby modified as follows:

The word "child" shall be deleted from the first sentence on page 4, and this sentence shall state, "The jury convicted Champaco of attempted first degree rape and first degree burglary with sexual motivation."

The remainder of the opinion shall remain the same.

Done this 3^rd day of February, 2017.

/s/_________

/s/_________

UNPUBLISHED OPINION

LAU, J. — During Brian Champaco's trial for attempted first degree rape and first degree burglary with sexual motivation, the court sealed his competency evaluation and a defense expert's evaluation prepared during the exploration of a diminished capacity defense. Following his convictions on both counts and an unsuccessful direct appeal, Champaco filed this personal restraint petition. The acting chief judge dismissed all issues in the petition except one—"whether the sealing of Champaco's competency evaluations violated his right to a public trial and the public's right to open court records." Because Champaco invited any error regarding his right to a public trial, seeks relief that is not available on these facts, and does not demonstrate actual and substantial prejudice, we deny his petition.

FACTS

Based on allegations that Champaco forced his way into a woman's apartment, demanded sex, and threatened her with a hammer, the State charged him with attempted first degree rape and first degree burglary with sexual motivation.

Prior to trial, Champaco received a competency evaluation at Western State Hospital. When he returned to court, the prosecutor and defense counsel agreed that he was competent to stand trial. After reviewing the evaluation from Western State, the court found Champaco competent and entered findings of fact and conclusions of law. The evaluation was not filed or sealed at that time.

Dr. David White subsequently evaluated Champaco to determine the feasibility of a diminished capacity defense. In his report, Dr. White concluded that Champaco was malingering and exaggerating his cognitive deficits. Defense counsel told the court that he would not be asserting a diminished capacity defense and that Dr. White would not be called as a witness at trial. The court then suggested that "for potential appellate review . . . I'm going to need a sealed statement from you as to what was involved with that exploration, what you found out . . ." Report of Proceedings (RP) (Sept. 12, 2007) at 5. The prosecutor stated she had "no objection to filing a copy of Dr. White's report under seal so it would be part of the record, but not open to the public." RP (Sept. 12, 2007) at 6.

During trial, the parties and the court discussed whether Champaco's evaluations should be sealed:

[PROSECUTOR]: During pretrials we had talked - - [defense counsel] and Ihad talked, discussed with the Court filing the Western State evaluation with the defendant, as well as the defense expert's report, I have photocopiedthose, and I have an order for the Court to seal those, to file under seal. [Defense counsell has signed off on that and so I'd ask the Court [to] file these under seal.

THE COURT: Why do they need to be under seal?

[PROSECUTOR]: Sensitive psychological information about the defendant. It's personal information. We routinely seal the Western State reports. And I don't think [Dr. White's] report is any different, and I believe under the statute it's permissible to file these under seal under [RCW] 10.77.

[DEFENSE COUNSEL]: And we did talk about this pretrial on the first week. And your Honor was assuming that it was filed under seal already, but it had not been filed under seal, which is why we're providing the seal order.

[PROSECUTOR]: That's correct.

THE COURT: Under State vs Ish[i]kawa, if you file something under seal, I'm supposed to have a public hearing and opportunity for the press to appear. And the court, the superior court in general, has been getting some heat over the last couple of years from the newspapers, specifically the Seattle Times, for filing things under seal. So that's my only concern about filing it under seal.

[PROSECUTOR]: I can look up the statutory citation that authorizes the Court to do that and provide that to the Court. I can let the Court know that routinely what happens when somebody is found competent and the Court enters the findings of fact and conclusions of law, the report is filed at that time under seal with a specific statutory cite on the order to file it under seal. For whatever reason that just wasn't done in this case and that's why we're asking to do it now.

THE COURT: I need something oh there to tell me this contains sensitive medical information.

[PROSECUTOR]: I can get that later today, Your Honor.

[DEFENSE COUNSEL]: Yes. Your Honor.

THE COURT: That would help.

RP (Sept. 27, 2007) at 4 (emphasis added). Later, the prosecutor told the court that "[RCW] 10.77.210 . . . directs that the defendant's mental health record shall remain private and not subject to public view." RP (Oct. 1, 2007) at 20. She then told the court "I have prepared an order that includes [the] statutory citation . . . that we would like to file under seal . . . . [Defense Counsel] has signed off on that order, your Honor." RP (Oct. 1, 2007) at 20 (emphasis added).

The jury convicted Champaco of attempted first degree child rape and first degree burglary with sexual motivation. Champaco appealed to this court and we affirmed.

In October 2010, Champaco filed this personal restraint petition arguing, among other things, that the trial court violated his right to a public trial and the public's right to open court records when it sealed his competency and expert evaluations without making the findings required by Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982), and State v. Bone-Club, 128 Wn.2d 254, 258-59, 906 P.2d 325 (1995). Following several stays, we requested supplemental briefing.

In November 2013, the Acting Chief Judge issued an order dismissing all issues in the petition except whether sealing Champaco's evaluations violated his right to a public trial and the public's right to open court records. We subsequently stayed the petition again pending the State Supreme Court's decisions in In re Coggin, 182 Wn.2d 115, 340 P.3d 810 (2014), and In re Speight, 182 Wn.2d 103, 340 P.3d 207 (2014). Following those decisions, we lifted the stay and obtained supplemental briefing regarding their effect on this case.

ANALYSIS

The Washington and United States Constitutions guarantee the right of a criminal defendant to a public trial. WASH. CONST. art. I, section 22; U.S. CONST. amend. VI. Article I, section 10 of the Washington Constitution provides a similar right to the public, stating that "[j]ustice in all cases shall be administered openly." State v. Lormor, 172 Wn.2d 85, 91, 257 P.3d 624 (2011). These rights ensure that court proceedings andcourt records, including competency evaluations, are presumptively open to the public.¹ State v. Chen, 178 Wn.2d 350, 355-56, 309 P.3d 410 (2013). The presumption can be overcome, and a court record sealed, only if the court finds that the factors discussed in Ishikawa² favor sealing. Chen, 178 Wn.2d at 355. To obtain relief for a public trial violation, a personal restraint petitioner must establish actual and substantial prejudice.

In re Pers. Restraint of Coggin, 182 Wn.2d at 120-22; In re Pers. Restraint of Speight, 182 Wn.2d at 107.³

It is undisputed that Champaco's evaluations were court records and that the trial court failed to apply the Ishikawa factors before granting the parties' joint motion to seal them. The parties dispute, however, whether any errors arising from the sealing were invited, whether Champaco must demonstrate actual and substantial prejudice before he is entitled to relief, and what remedies are available on these facts.

Article I, Section 22 / Defendant's Right to a Public Trial

The State contends Champaco invited any violation of his Article 1, section 22 right to a public trial because the prosecution and defense jointly requested the sealing. Despite the State's arguments and the recent discussion of invited error in Coggin, Champaco does not address this issue in any of his filings. We conclude any error was invited.

Under the invited error doctrine, a party may not set up an error at trial and then complain of it on appeal. In re Pers. Restraint of Copland, 176 Wn. App. 432, 442, 309 P.3d 626 (2013). "To determine whether the invited error doctrine is applicable to a case, we may consider whether the petitioner 'affirmatively assented to the error, materially contributed to it, or benefited from it.'" Copland, 176 Wn. App. at 442 (quoting State v. Momah, 167 Wn.2d 140, 154, 217 P.3d 321 (2009)). In this case, it is clear from the record that Champaco's trial counsel and the prosecutor jointly presented thesealing order.⁴ Although the prosecutor took the lead in presenting the order, the record indicates that she spoke on behalf of defense counsel as well. It is also clear that Champaco benefitted from the sealing since the documents contained sensitive mental health information and suggested he was malingering. In these circumstances, Champaco invited any error concerning his personal right to a public trial. See Copland, 176 Wn. App. at 442-43 (where defense counsel initiated and participated in the closure, and the defendant benefitted from it, any error was invited); Coggin, 182 Wn.2d at 119 (petitioner did not invite error by "merely assenting to the State's juror questionnaire and where it was the trial judge who decided to question jurors in chambers").

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