In re Personal Restraint Petition of Bonds, No. 33704-5-II (Wash. App. 11/14/2007)

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Unpublished Opinion

In re Personal Restraint Petition of ROBERT CHARLES BONDS, JR.

No. 33704-5-II.

Court of Appeals of Washington, Division Two.

Filed: November 14, 2007.

Appeal from Pierce County Superior Court. Docket No: 01-1-06020-3. Judgment or order under review. Date filed: 05/24/2002. Judge signing: Honorable Frank E Cuthbertson.

Counsel for Petitioner(s), Nancy P Collins, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Counsel for Respondent(s), Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA, 98402-2171.

ARMSTRONG, J.

Robert Charles Bonds, Jr. seeks relief from personal restraint imposed following his conviction of two counts of first degree attempted murder and one count of unlawful possession of a firearm. He argues that the trial court (1) violated his right to confront the witnesses against him when it admitted his non-testifying codefendants' statements, and (2) violated his right to a public trial when it closed the courtroom to the public on four occasions. Because the trial court redacted the codefendants' statements to remove any reference to Bonds and instructed the jury not to consider them as evidence against him, admission of the statements did not violate Bonds's confrontation rights. But because the trial court did not conduct the required balancing analysis or make the required findings before closing the courtroom, the trial court violated Bonds's and the public's right to an open trial. And because this is a structural error, which we presume prejudiced Bonds, we grant his petition, reverse his convictions, and remand for a new trial.

FACTS

In 2002, a jury convicted Robert Bonds and two codefendants, Spencer Miller and Tonya Wilson, of two counts of attempted first degree murder; it also convicted Bonds of one count of unlawful possession of a firearm. We affirmed. State v. Miller, No. 28847-8-II, 2004 WL 1835092 (Aug. 17, 2004), review denied, 154 Wn.2d 1002 (2005).

The charges arose from a shooting in the parking lot of a Tacoma AM/PM store. Bonds, Miller, and Bonds's cousin, Andre Bonds, were members of a Tacoma street gang called the Hilltop Crips. Wilson, although not a member of the gang, was a Crips associate. Daron Edwards, who was injured in the shooting, was not a gang member but grew up in Compton, California, where a rival street gang, the Bloods, originated. At the time, Edwards was living with Keith Harrell, another victim of the shooting.

The afternoon before the shooting, Andre and Edwards confronted each other in front of Harrell's residence; Andre displayed a gun. Later, the confrontation escalated when Edwards went to a nightclub that the Crips frequented. Andre and Edwards fought, with Edwards getting the better of Andre. Bonds displayed a gun and threatened Edwards and his friends.

Edwards, Harrell, and several friends later went to the AM/PM, where Bonds, Andre, Miller, Wilson, and others were already gathered. Several individuals on both sides of the dispute were armed. Edwards briefly confronted Andre. Andre then got in his car and, as he drove out of the parking lot, gunfire erupted from multiple locations. Witnesses testified that gunshots came from the car Wilson was driving with Bonds as her passenger and from behind the AM/PM where Miller was standing. Edwards and Harrell were both shot.

During the investigation, Miller gave two taped statements to police and Wilson gave one taped statement. Following a CrR 3.5 hearing, the trial court admitted the statements subject to redaction of all references to Bonds. The State submitted proposed redactions. Bonds agreed to the State's proposed redactions and proposed several additional redactions. The trial court removed several additional references to Bonds from both statements.

During Bonds's trial, the trial court closed the courtroom to the public on four occasions. The first closure occurred during a hearing on Harrell's competency to testify. Just before the hearing, the trial court ruled on the defendants' motion to exclude witnesses from the courtroom during both witness testimony and arguments by counsel. The trial court granted the defense motion, but it also ruled sua sponte that it would fully close the courtroom during Harrell's testimony.¹ The trial court was concerned about protecting Harrell's privacy because the testimony could touch on health care issues.

The trial court closed the courtroom again before Cory Thomas testified on behalf of the State. During the closed session, Thomas testified that he intended to invoke his Fifth Amendment privilege against self-incrimination concerning questions about whether he had possessed a firearm and testified about whether a detective had exerted any improper influence over him. The trial court granted him immunity on a possible charge of possessing a firearm and informed him of a court ruling limiting his testimony. The trial court closed this hearing at the State's request; Bonds concurred in the closing.

The third closure occurred during Salena Daniels's testimony. When she answered a question by complaining about police harassment, the trial court ordered the jury and the public out of the courtroom. The court admonished Daniels that she was bordering on being in contempt of court and that she needed to respond to the questions she was asked. The trial court then brought the jury back in and permitted the public to reenter the courtroom.

Finally, the trial court closed the courtroom during counsel's argument on whether to admit hearsay testimony from Judith Harrell, Keith Harrell's wife. The court had heard testimony on the issue during the previous session without closing the court. But before counsel began arguing the issue, the court cleared the courtroom. Neither party requested the closure.²

Bonds timely filed this personal restraint petition challenging his convictions based on a violation of his right to confrontation. Over the State's objection, we permitted Bonds to amend his petition more than one year after his conviction became final to add the claim that the trial court violated his right to a public trial. The Supreme Court denied discretionary review of our decision permitting Bonds to amend his petition.

ANALYSIS

I. Personal Restraint Petition Standards

A personal restraint petition, like a petition for a writ of habeas corpus, is not a substitute for an appeal. In re Pers. Restraint of Hagler, 97 Wn.2d 818, 823-24, 650 P.2d 1103 (1982). A personal restraint petitioner must prove either constitutional error that results in actual prejudice or nonconstitutional error that results in a miscarriage of justice. In re Pers. Restraint of Cook, 114 Wn.2d 802, 813, 792 P.2d 506 (1990). The petitioner must state the facts on which he bases his claim of unlawful restraint and state the evidence available to support the allegations; conclusory allegations alone are insufficient. RAP 16.7(a)(2)(i); In re Pers. Restraint of Williams, 111 Wn.2d 353, 365, 759 P.2d 436 (1988).

II. Right to Confrontation

Bonds first contends that the trial court's admission of his codefendants' statements violated his right to confront the witnesses against him under Crawford v. Washington, 541 U.S. 36, 60-61, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We disagree.

A. Crawford

The Sixth Amendment to the United States Constitution grants criminal defendants the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. In Crawford, the United States Supreme Court held that the confrontation clause "applies to `witnesses' against the accused—in other words, those who `bear testimony.'" Crawford, 541 U.S. at 51 (quoting 1 N. Webster, An American Dictionary of the English Language (1828)). The State can therefore present prior testimonial statements of an absent witness only if the witness is unavailable to testify and the defendant has had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. In so holding, the Court rejected its prior confrontation framework, which required only that hearsay evidence fall within a firmly rooted hearsay exception or have other particularized guarantees of trustworthiness. Crawford, 541 U.S. at 60-61 (citing Ohio v. Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980)). Because the Crawford court issued its opinion while Bonds's direct appeal was pending, its rule applies to his case. State v. Evans, 154 Wn.2d 438, 444, 114 P.3d 627, cert. denied, 546 U.S. 983 (2005).

Although the Crawford Court declined to provide a comprehensive definition of "testimonial" hearsay, it did say that statements made during police interrogations are testimonial. Crawford, 541 U.S. at 68. The admission of Miller's and Wilson's statements to the police therefore implicates the confrontation clause.

B. Bruton

In Bruton v. United States, 391 U.S. 123, 126, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), the Court recognized that admitting a non-testifying codefendant's confession that implicates the defendant may be so damaging that even instructing the jury to use the confession only against the codefendant is insufficient to cure the resulting prejudice. But admitting a non-testifying codefendant's confession that is redacted to omit all references to the defendant, coupled with an instruction that the jury can use the confession against only the codefendant, does not violate the confrontation clause. Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). This is true even where the codefendant's confession, although not facially incriminating, becomes incriminating when linked with other evidence introduced at trial. Richardson, 481 U.S. at 208-09. The Richardson Court noted that "[o]rdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness `against' a defendant if the jury is instructed to consider that testimony only against a codefendant." Richardso...