In re Pers. Restraint Petition of Schreiber

189 Wash.App. 110

357 P.3d 668

In the Matter of the Personal Restraint Petition of Robin Taylor SCHREIBER, Petitioner.

No. 40553–9–II.

Court of Appeals of Washington, Division 2.

July 28, 2015.

Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, for Petitioner.

Anne Mowry Cruser, Clark County Prosecuting Attorney, Vancouver, WA, for Respondent.

PART PUBLISHED OPINION

WORSWICK, P.J.

¶ 1 After a jury trial, Robin Schreiber was convicted of second degree murder with a firearm sentencing enhancement. He received an exceptional sentence because his victim was a law enforcement officer. Schreiber argues, among other things, that the trial court violated his right to a public trial. In the published portion of this opinion, we hold that Schreiber fails to establish actual and substantial prejudice resulting from any courtroom closure. In the unpublished portion of this opinion, we hold that Schreiber fails to establish any other claim of unlawful restraint. Accordingly, we deny his personal restraint petition.

FACTS

¶ 2 Robin Schreiber was convicted of second degree murder in the 2004 death of Clark County Sheriff's Sergeant Brad Crawford. Some aspects of his trial were shielded from the public view. First, during jury selection, the trial court gave prospective jurors a confidential questionnaire. We assume arguendo that these jury questionnaires were filed under seal.¹ Second, in response to a report that two prospective jurors saw Schreiber in handcuffs in the hallway, the trial court and counsel for both parties privately questioned the prospective jurors in chambers, after Schreiber's counsel waived Schreiber's right to be present. Third, according to Schreiber, spectators were excluded from the courtroom during voir dire due to a lack of space. And fourth, according to Schreiber, the trial court directed the bailiff to speak privately with an empaneled juror.

¶ 3 A jury ultimately found Schreiber guilty of intentional second degree murder. Schreiber appealed, and we affirmed in an unpublished decision. This personal restraint petition followed.

ANALYSIS

Personal Restraint Petition Principles

¶ 4 When considering constitutional arguments raised in a personal restraint petition, we determine whether the petitioner can show that a constitutional error caused actual and substantial prejudice. In re Pers. Restraint of Coggin, 182 Wash.2d 115, 119, 340 P.3d 810 (2014)plurality opinion). A stricter standard governs our consideration of nonconstitutional arguments raised in a personal restraint petition. When considering nonconstitutional arguments, we determine whether the petitioner has established that the claimed error is “a fundamental defect resulting in a complete miscarriage of justice.” In re Pers. Restraint of Yates, 177 Wash.2d 1, 18, 296 P.3d 872 (2013).

¶ 5 A personal restraint petition must state with particularity the factual allegations underlying the petitioner's claim of unlawful restraint. In re Pers. Restraint of Rice, 118 Wash.2d 876, 885–86, 828 P.2d 1086 (1992). Bald assertions and conclusory allegations are not sufficient. Rice, 118 Wash.2d at 886, 828 P.2d 1086.

¶ 6 Petitioner's allegations must also have evidentiary support. Rice, 118 Wash.2d at 886, 828 P.2d 1086. If the trial court record does not support the factual allegations, then the petitioner must show through affidavits or other forms of corroboration that competent and admissible evidence will establish the factual allegations. Rice, 118 Wash.2d at 886, 828 P.2d 1086. The petitioner may not rely on mere speculation, conjecture, or inadmissible hearsay. Rice, 118 Wash.2d at 886, 828 P.2d 1086. A personal restraint petition cannot renew an issue that was raised and rejected on direct appeal, unless the interests of justice require the issue's relitigation. In re Pers. Restraint of Davis, 152 Wash.2d 647, 671, 101 P.3d 1 (2004).

¶ 7 If the petitioner fails to make a prima facie showing of either actual and substantial prejudice or a fundamental defect, we deny the personal restraint petition. Yates, 177 Wash.2d at 17–18, 296 P.3d 872. If the petitioner makes such a showing, but the record is not sufficient to determine the merits, we remand for a reference hearing. Yates, 177 Wash.2d at 17–18, 296 P.3d 872. If, however, we are convinced the petitioner has proven actual and substantial prejudice or a fundamental defect, we grant the petition. Yates, 177 Wash.2d at 17–18, 296 P.3d 872.

Right to a Public Trial

¶ 8 Schreiber argues that he is entitled to relief from restraint because the trial court violated his right to a public trial by closing the proceedings without conducting the analysis required by State v. Bone–Club, 128 Wash.2d 254, 258–59, 906 P.2d 325 (1995). We disagree, holding that Schreiber fails to make out a prima facie showing of actual and substantial prejudice caused by any closure.

¶ 9 The Washington Constitution protects a criminal defendant's right to a public trial. Wash. Const. art. I, § 22. A trial court may close a courtroom only if closure is warranted under the five-part test set forth in Bone–Club, 128 Wash.2d at 258–59, 906 P.2d 325. Closing a courtroom without first conducting the required Bone–Club analysis is a structural error. State v. Paumier, 176 Wash.2d 29, 35, 288 P.3d 1126 (2012).

A. Actual and Substantial Prejudice Standard

¶ 10 On direct review, a public trial violation requires reversal regardless of whether the defendant has shown prejudice. Paumier, 176 Wash.2d at 37, 288 P.3d 1126. But in a personal restraint petition, the petitioner bears the burden of demonstrating that a constitutional violation caused actual and substantial prejudice. Coggin, 182 Wash.2d at 119, 340 P.3d 810 (plurality opinion).

¶ 11 In Coggin and Speight, our Supreme Court recently held that a petitioner must show actual and substantial prejudice to prevail on collateral review of an alleged public trial violation. Coggin, 182 Wash.2d at 120–22, 340 P.3d 810 (plurality opinion); In re Pers. Restraint of Speight, 182 Wash.2d 103, 107, 340 P.3d 207 (2014) (plurality opinion). In both Coggin and Speight, Chief Justice Madsen filed concurring opinions agreeing with the decision to deny the petitions, but on the ground that the petitioners invited the closure. Coggin, 182 Wash.2d at 123, 340 P.3d 810 (Madsen, C.J., concurring); Speight, 182 Wash.2d at 108, 340 P.3d 207 (Madsen, C.J., concurring). Chief Justice Madsen made clear, however, that she agreed with the plurality that a petitioner must show actual and substantial prejudice to prevail on a public trial claim on collateral review. Coggin, 182 Wash.2d at 123, 340 P.3d 810 (Madsen, C.J., concurring); Speight, 182 Wash.2d at 108, 340 P.3d 207 (Madsen, C.J., concurring). Thus, Coggin and Speight require a petitioner to make a showing of actual and substantial prejudice resulting from a public trial violation to prevail on collateral review.

B. Schreiber Fails To Show Actual and Substantial Prejudice

¶ 12 Schreiber claims that the trial court violated his right to a public trial four times, by failing to conduct Bone–Club hearings before (1) giving prospective jurors confidential questionnaires that were later filed under seal, (2) excluding spectators from voir dire due to a lack of space in the courtroom, (3) questioning two prospective jurors in chambers, and (4) directing the bailiff to speak privately with a juror during the trial. It is undisputed that the trial court conducted no Bone–Club hearings.

¶ 13 But even assuming closures occurred, Schreiber neither argues nor demonstrates that any of these closures caused him actual and substantial prejudice. Schreiber argues only that these closures were structural errors requiring reversal. Because Schreiber is required to demonstrate actual and substantial prejudice, his public trial arguments fail.² Coggin, 182 Wash.2d at 122, 340 P.3d 810.

¶ 14 For these reasons and those stated in the unpublished portion of this opinion, we deny Schreiber's petition.

¶ 15 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.

ADDITIONAL ARGUMENTS

¶ 16 Schreiber also argues that we should grant his personal restraint petition because (1) the trial court violated his right to be present; (2) his appellate counsel was ineffective for failing to argue that a forensic expert's testimony violated Schreiber's right to confront the witnesses against him; (3) newly discovered evidence of the forensic expert's misfeasance and malfeasance warrants vacation of his conviction; (4) the trial judge and presiding juror slept during his trial; (5) the trial court violated Schreiber's right to confront the witnesses against him by limiting cross-examination of an eyewitness and refusing to allow discovery of the eyewitness's psychological records; (6) the evidence was insufficient to support the jury's special verdict on the firearm enhancement, and the trial court erred by instructing the jury on the firearm enhancement; and (7) the law enforcement aggravating factor did not exist at the time of Schreiber's offense, so the trial court applied an ex post facto law that codified the aggravating factor. We disagree, holding that Schreiber fails to establish any prima facie claim of actual and substantial prejudice or fundamental defect resulting in a complete miscarriage of justice. See Yates, 177 Wash.2d at 17, 296 P.3d 872.

ADDITIONAL FACTS

¶ 17 Sergeant Crawford, the police officer whom Schreiber killed, was among the officers who responded to a 911 call reporting that Schreiber was extremely upset, armed with a rifle, and alone in his house. A standoff at Schreiber's house ensued.

¶ 18 Inside his house, Schreiber drank beer, pointed his rifle at patrol cars and officers, and called his ex-wife to say that she would not have to worry about him anymore. Eventually,...