In re the Personal Restraint of Coggin

¶1 In this case we must decide what standard on review is applicable in a personal restraint petition asserting a violation of the right to a public trial under article I, section 22 of the Washington State Constitution.1 Here and in In re Personal Restraint of Speight, 182 Wn.2d 103, 340 P.3d 207 (2014) (plurality opinion), prospective jurors were questioned in chambers without the trial court engaging in the analysis required by State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995). After his convictions were affirmed on appeal, petitioner William Coggin brought this timely personal restraint petition, claiming the private questioning of jurors constituted a closure and raising the issue of whether actual and substantial prejudice must be shown from a public trial right violation in order to obtain relief by personal restraint petition. With the principles of appellate finality in mind, we hold that while Coggin’s public trial rights were violated, a petitioner claiming a public trial right violation for the first time on collateral review must show actual and substantial prejudice. Coggin does not show áctual and substantial prejudice arising from the closure; therefore, his petition is denied.

Facts and Procedural History

¶2 On August 23, 2004, William Coggin went to a home in Whatcom County, where he tried to solicit yard work and *117attempted to sell key chains. Two young sisters were home at the time, and one sister refused both of his offers after opening the door. At the refusal, Coggin pulled out a gun, entered the home, and raped the two sisters. A third sister and the parents arrived home later. Coggin ordered them upstairs at gunpoint, and then he left.

¶3 Coggin was charged with first degree burglary, first degree rape, second degree assault, first degree robbery, and first degree unlawful possession of a firearm, with 11 firearm enhancements. During jury selection, defense counsel expressed a desire for individual juror questioning due to the publicity and sensitive nature of the case. The prosecutor drafted a juror questionnaire, and defense counsel approved the final version. The questionnaire advised the potential jurors that if they preferred to discuss their answers in private, the court would give them an opportunity to explain their answers in a “closed hearing.” Resp. to Pers. Restraint Pet., App. C at 1. The court and the parties questioned 12 prospective jurors in chambers. Before doing so, the court did not engage in the analysis required by Bone-Club. Six prospective jurors were dismissed for cause.

¶4 The jury convicted Coggin. Counsel raised no public trial issue on direct appeal, and in an unpublished opinion, the Court of Appeals affirmed all convictions but the assault conviction.2 Coggin filed a timely personal restraint petition in 2007, arguing that his right to a public trial was violated during jury selection.3 The petition was stayed multiple times in the Court of Appeals, pending decisions by this court. In December 2013, Division One of the Court of Appeals certified the case to this court.

*118Analysis

1. Public Trial Right

¶5 We must first decide whether the trial court’s private questioning of jurors constituted a closure, thereby violating Coggin’s public trial rights. A criminal defendant has a right to a public trial as guaranteed by our state and federal constitutions. U.S. Const, amend. VI; Wash. Const. art. I, § 22 (providing “the accused shall have the right. . . to have a speedy public trial”); State v. Paumier, 176 Wn.2d 29, 34, 288 P.3d 1126 (2012). We have repeatedly held that the public trial right applies to jury selection. Specifically, it is well established that the public trial right in voir dire proceedings extends to the questioning of individual prospective jurors. State v. Wise, 176 Wn.2d 1, 16-19, 288 P.3d 1113 (2012). The right to a public trial is not absolute; a trial court may close the courtroom so long as it considers the five criteria outlined in Bone-Club. Failure to conduct a Bone-Club analysis before closing the proceeding is error generally requiring a new trial because voir dire is an inseparable part of trial. Paumier, 176 Wn.2d at 35.

¶6 Here, the trial court erroneously closed the courtroom when it privately questioned potential jurors during voir dire without first conducting a Bone-Club analysis. The State argues that this case is like State v. Momah, 167 Wn.2d 140, 151-52, 217 P.3d 321 (2009), where we found no public trial right violation. In that case, we emphasized that the defendant affirmatively assented to the closure of voir dire and actively participated in designing the trial closure. Additionally, while it was not explicit, the trial court in Momah effectively considered the Bone-Club factors. However, in this case, the trial court did not explicitly or implicitly consider the Bone-Club factors or acknowledge that it was closing the courtroom. The State provided the juror questionnaire that offered potential jurors a “closed hearing,” and while Coggin approved of the questionnaire, he did not actively participate in designing the trial closure.

*119¶7 The State also argues that Coggin invited any violation of his right to a public trial. “The basic premise of the invited error doctrine is that a party who sets up an error at trial cannot claim that very action as error on appeal and receive a new trial.” Momah, 167 Wn.2d at 153. In determining whether the invited error doctrine applies, we have considered whether the defendant affirmatively assented to the error, materially contributed to it, or benefited from it. For example, we have held that a party may not request a jury instruction and later complain on appeal that the requested instruction was given. See City of Seattle v. Patu, 147 Wn.2d 717, 58 P.3d 273 (2002). In contrast, even with its unique set of facts, we held that Momah did not present a classic case of invited error and rejected relief based on invited error. Similarly, here, Coggin’s actions do not rise to the level of invited error by merely assenting to the State’s juror questionnaire and where it was the trial judge who decided to question jurors in chambers. Therefore, we conclude Coggin did not invite any violation of his right to a public trial.

2. Actual and Substantial Prejudice

¶8 The general rule is when a personal restraint petitioner alleges a constitutional violation, the petitioner must establish by a preponderance of the evidence that the constitutional error worked to his actual and substantial prejudice. In re Pers. Restraint of St. Pierre, 118 Wn.2d 321, 328, 823 P.2d 492 (1992). In In re Personal Restraint of Morris, 176 Wn.2d 157, 166, 288 P.3d 1140 (2012) (plurality opinion), we recognized an exception to this general rule and held that in that case we would presume prejudice where petitioners allege a public trial right violation by way of an ineffective assistance of appellate counsel claim because “[h]ad Morris’s appellate counsel raised this issue on direct appeal, Morris would have received a new trial. ... No clearer prejudice could be established.” Because we decided Morris on ineffective assistance of appellate counsel grounds, we *120did not address whether a meritorious public trial right violation is also presumed prejudicial on collateral review. Based on our cases, we hold no presumption applies in this context.

¶9 As we explained in In re Personal Restraint of Stockwell, 179 Wn.2d 588, 316 P.3d 1007 (2014), a petitioner’s burden on collateral review has evolved over the course of several decades. We have required petitioners who collaterally attack their convictions to satisfy a higher burden, recognizing that a personal restraint petition does not substitute for a direct appeal, and different procedural rules have been adopted recognizing this difference. Where a presumption of prejudice is appropriate for direct review in some cases, it may not be appropriate for collateral review. Stockwell, 179 Wn.2d at 596-97. Even in those cases where the error would never be harmless on direct review, we have not adopted a categorical rule that would equate per se prejudice on collateral review with per se prejudice on direct review. “We have limited the availability of collateral relief because it undermines the principles of finality of litigation, degrades the prominence of trial, and sometimes deprives society of the right to punish admitted offenders.” St. Pierre, 118 Wn.2d at 329 (denying relief where issue of defective charging documents was raised for the first time in a personal restraint petition (citing In re Pers. Restraint of Hagler, 97 Wn.2d 818, 824, 650 P.2d 1103 (1982))).

¶10 We have recognized that the principles of finality of litigation generally require that a higher standard be met before a presumption of prejudice attaches on collateral review. The petitioner’s burden to establish actual and substantial prejudice in a personal restraint petition is generally relaxed only where the error gives rise to a conclusive presumption of prejudice. St. Pierre, 118 Wn.2d at 328. This higher standard on collateral review is met only where, in light of the essential purpose of the constitutional right at issue, a violation of the right would necessarily prejudice the defendant. Morris, 176 Wn.2d at *121181-82 (Wiggins, J., dissenting) (citing St. Pierre, 118 Wn.2d at 329). For example, a petitioner need not prove harm in addition to that which is inherent in proof of the error itself when a petitioner claims ineffective assistance of counsel and prosecutorial withholding of material exculpatory evidence. Stockwell, 179 Wn.2d at 607 (Gordon McCloud, J., concurring). At times, we have applied the exception to the general rule that a petitioner must show actual and substantial prejudice on collateral review, but it is just that — an exception — and must be narrowly recognized and applied, lest the general rule be swallowed by the exception.

¶11 Here, the record reflects Coggin cannot establish prejudice by any violation of his public trial right. We have stated, “The public trial right serves to ensure a fair trial, to remind the officers of the court of the importance of their functions, to encourage witnesses to come forward, and to discourage perjury.” State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). None of these goals are necessarily jeopardized here. While a defendant’s public trial rights are implicated by in-chambers voir dire, prejudice is not “conclusive,” nor can it be presumed on collateral review. This is so because a limited trial closure, in and of itself, does not require reversal where the trial court considers and justifies the closure after applying the Bone-Club factors. We cannot therefore say that a defendant will be prejudiced every time there is a closure. Here, the record establishes, Coggin was charged with rape. The trial judge and the parties were concerned with juror impartiality because the case had received significant news coverage and expressed concern that jurors potentially had prior knowledge of the crime. This private questioning perhaps worked to benefit Coggin by protecting his right to a fair trial by an impartial jury. Under these circumstances, requiring a showing of prejudice is consistent with the general rule applicable to personal restraint petitions.

¶12 The interests of finality and the process underlying appellate review require us to draw a line at some point. *122“Although some errors which result in per se prejudice on direct review will also be per se prejudicial on collateral attack, the interests of finality of litigation demand that a higher standard be satisfied in a collateral proceeding.” St. Pierre, 118 Wn.2d at 329. While, as mentioned above, we have carved out an exception and will presume prejudice for petitioners who allege a public trial right violation by way of an ineffective assistance of appellate counsel claim, we refuse to extend this exception any further.

¶13 Also, as stated above, significant policy reasons support why it is appropriate to presume prejudice stemming from a public trial right violation on direct review but not on collateral review. Collateral review is fundamentally different from a direct appeal, and different rules apply on direct review as compared to collateral review. Primarily, the appellate process exists to remedy trial errors even when constitutionally based. But after a conviction becomes final and a defendant raises a public trial right violation on collateral review, the social costs from reopening the case and retrying it are much greater. The appellate process also exists to develop the body of law governing all cases; collateral review focuses on the facts of the individual defendant, and its purpose is to correct the most egregious errors that cause actual harm. The principles of finality outweigh any public trial rights when the petitioner raises the public trial right issue for the first time on collateral review.

¶14 Here, Coggin does not argue or establish that he was actually and substantially prejudiced, nor do the facts support that conclusion. As a result of the individual questioning of jurors, Coggin’s goal was to benefit from a more fair trial, as jurors were presumably more forthcoming about their relative experiences and their abilities to serve impartially on the jury. While it is difficult to show that a public trial right violation was prejudicial, it is not impossible in every case. Under our established rules, it is the petitioner’s burden on collateral review, which Coggin has not established.

*123Conclusion

¶15 The petition is denied.