Opinion
No. 33704-5-II.
November 14, 2007.
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. The trial court was concerned about protecting Harrell's privacy because the testimony could touch on health care issues.
The trial court granted the State's request to permit Harrell's wife to remain in the courtroom during his testimony.
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.
The record does not show when the trial court permitted the public to return to the courtroom, but it called in the jury after it ruled on the evidence issue, lifted a gag order it had imposed on a detective, admitted several exhibits, heard argument on redacting an exhibit, and discussed an alleged threat against a witness.
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." Richardson, 481 U.S. at 206. Redaction of a codefendant's references to the defendant, coupled with an instruction, creates the same situation with respect to a non-testifying codefendant's confession. Richardson, 481 U.S. at 211.
1. Form of Redaction
Here, Bonds agreed with the State's proposed redactions of Miller's and Wilson's statements, and the trial court further redacted the statements in response to Bonds's additional proposals. He now contends, however, that the trial court erred by leaving in Miller's reference to "a guy named Bobby" and his description of the disposal of multiple guns. Br. of Petitioner at 15-16. Under the doctrine of invited error, Bonds cannot set up an error at trial and then complain of it on appeal. In re Pers. Restraint of Breedlove, 138 Wn.2d 298, 312-13, 979 P.2d 417 (1999). And Bonds makes no claim that his counsel was ineffective for failing to request that these statements be redacted. Accordingly, Bonds has waived any claim that the redactions were flawed.
In addition to redacting references to Bonds from Miller's and Wilson's statements, the trial court instructed the jury not to consider one defendant's admission or incriminating statement against another defendant. The trial court therefore properly admitted the codefendants' statements under Bruton.
2. Use of Redaction
Bonds also asserts that, in spite of the Bruton redactions, the State used Miller's and Wilson's statements as evidence against him. He points out that the prosecutor, in his closing argument, urged the jury to look at the evidence as a whole rather than telling the jury that it could not use Miller's and Wilson's statements against Bonds. And he asserts that the prosecutor linked Bonds with Miller's statements that the earlier altercations mattered to him and with Wilson's statement that she called Andre from the AM/PM shortly before the shooting.
Although he does not frame his argument in these terms, Bonds is asserting that the prosecutor committed misconduct in his closing. To make this argument, Bonds must show that the prosecutor's conduct was both improper and prejudicial in the context of the entire record. State v. Hughes, 118 Wn. App. 713, 727, 77 P.3d 681 (2003) (citing State v. Stenson, 132 Wn.2d 668, 718, 940 P.2d 1239 (1997)). Prejudice exists if there is a substantial likelihood that the misconduct affected the verdict. State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006). Where, as here, a defendant does not object or request a curative instruction, the defendant has waived the error unless we find the remark "`so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.'" McKenzie, 157 Wn.2d at 52 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)).
Admission of a codefendant's statement is not improper even where it becomes incriminating when linked to other evidence. Richardson, 481 U.S. at 208-09. Here, the prosecutor was highlighting the links between other evidence (e.g., Bonds's gang affiliation) and the codefendant's statement (e.g., Miller's statement that it upset him when Edwards insulted the gang). Bonds has not shown that these statements, if improper, were so flagrant that a curative instruction could not have cured any prejudice.
C. Crawford's Effect on Bruton
But Bonds asserts that Crawford changed the Bruton analysis. He reasons that Bruton's notion that the confrontation clause is not violated where the trial is otherwise fair is inconsistent with Crawford. Bonds relies on United States v. Gonzalez-Lopez, 548 U.S. ___, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006). In that case, the Court held that depriving the defendant of the right to counsel of choice, also a Sixth Amendment right, is structural error and not subject to harmless error analysis. Gonzalez-Lopez, 126 S. Ct. at 2564-65. The Court compared the government's argument to the contrary to the now-rejected Roberts framework, stating that it "`abstracts from the right to its purposes, and then eliminates the right.'" Gonzalez-Lopez, 126 S. Ct. at 2562 (quoting Maryland v. Craig, 497 U.S. 836, 862, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (Scalia, J., dissenting)). Bonds notes that Bruton is based on the presumption that juries follow their instructions, a "pragmatic" approach that "represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." Richardson, 481 U.S. at 211. It follows, according to Bonds, that Crawford prohibits admission of codefendant statements based on pragmatic considerations.
We have recently held, however, that although Crawford heightened the standard under which a trial court can admit hearsay statements, it did not overrule Bruton and its progeny. In re Pers. Restraint of Hegney, 138 Wn. App. 511, 546, 158 P.3d 1193 (2007). We recognized that a Bruton redaction answers "the threshold question posed in Crawford of when an admission by one defendant can be considered a `witness? against' another defendant in a joint trial." Hegney, 138 Wn. App. at 546 (quoting Mason v. Yarborough, 447 F.3d 693, 699 (9th Cir. 2006) (Wallace, J., concurring)). Under Bruton and its progeny, if a statement is properly redacted and the jury is instructed not to use it against the defendant, the declarant is not a "witness against" the defendant. Hegney, 138 Wn. App. at 546-47. If a codefendant is not a "witness against" the defendant, admitting the codefendant's statement does not implicate the confrontation clause. Hegney, 138 Wn. App. at 547.
Other courts have reached the same conclusion. See, e.g., Commonwealth v. Whitaker, 2005 PA Super. 241, 878 A.2d 914 ("Were we to find that Crawford bars the `contextual implication' of criminal defendants in the properly admitted confessions of non-testifying co-defendants, we would be extending the principles espoused in Crawford to an improper degree."), appeal denied, 586 Pa. 738, 891 A.2d 732 (2005); United States v. Le, 316 F. Supp. 2d 330, 338 (E.D. Va. 2004) (properly redacted codefendant statements are not admitted against the defendant); McCoy v. United States, 890 A.2d 204, 215-16 (D.C.Ct.App. 2006) (same); see also Mason, 447 F.3d at 699 (Wallace, J., concurring). In the one case Bonds cites to the contrary, the court asserts without any analysis that Crawford "broadened" Bruton. Trevino v. State, 218 S.W.3d 234, 238 (Tex.App. 2007). But that court held that the confrontation clause did not apply in a parole revocation hearing and, thus, did not actually apply either Bruton or Crawford. Trevino, 218 S.W.3d at 239.
Because the trial court properly redacted Miller's and Wilson's statements to remove all references to Bonds and instructed the jury not to consider the statements as evidence against Bonds, Miller and Wilson were not "witnesses against" Bonds, and the confrontation clause was not at issue. The trial court did not violate Bonds's right to confront the witnesses against him by admitting the redacted co-defendant statements.
III. Amendment of PRP
The State asserts that we erred in permitting Bonds to amend his petition after RCW 10.73.090's one-year time limit had passed and that Bonds's counsel impermissibly briefed an issue at public expense for which this court did not appoint counsel. Bonds contends that this court should equitably toll the statute of limitations and consider the issue on its merits.
We issued our mandate in Bonds's direct appeal and his conviction became final on May 9, 2005. On July 22, 2005, Bonds filed a timely personal restraint petition, raising the witness confrontation issue under Crawford. We referred Bonds's petition to a panel of judges and appointed counsel on May 4, 2006, nine-and-a-half months after he filed his petition and just five days before the one-year time limit on collateral attack expired. See RCW 10.73.090(1).
RCW 10.73.100 provides an exception to the one-year time limit in certain cases, but Bonds does not assert that any of them apply here.
On July 25, 2006, Bonds's counsel moved under RAP 16.4 to amend the petition to add a claim that the trial court denied Bonds his right to a public trial. The State objected, but a commissioner of this court granted Bonds's motion and also denied the State's motion to reconsider the ruling. A panel of this court denied the State's motion to modify the commissioner's ruling.
The State sought discretionary review of this court's ruling in our Supreme Court. A commissioner of that court observed that, even if equitable tolling applies to personal restraint petitions, Bonds had not asserted that bad faith, deception, or false assurances prevented him from timely filing the amendment, and this court may have erred in permitting the amendment. The commissioner denied review, however, finding that this court's ruling did not merit interlocutory review under RAP 13.5(b)(2) or (3). The commissioner noted that the State was free to argue before this court, as it has done, that the issue is time-barred.
RAP 13.5(b)(2) permits discretionary review if this court has committed probable error that substantially alters the status quo or limits a party's freedom to act. RAP 13.5(b)(3) permits discretionary review if this court has so far departed from the accepted and usual course of judicial proceedings as to call for the exercise of the Supreme Court's revisory powers.
The State relies primarily on In re Pers. Restraint of Benn, 134 Wn.2d 868, 952 P.2d 116 (1998). In that case, the Supreme Court appointed counsel to represent Benn in his personal restraint petition one month after his conviction became final. Benn, 134 Wn.2d at 880. Four years later, Benn moved to amend his petition to add a claim relating to improper jury instructions. Benn, 134 Wn.2d at 938. The Court denied leave to amend, finding that no provision in the rules of appellate procedure permits an amendment to relate back to the date of the pleading and that RAP 18.8(a), which permits the court to waive or alter the provisions of the rules of appellate procedure, does not allow the court to waive or alter statutes. Benn, 134 Wn.2d at 938-39. But Benn did not ask the court to equitably toll RCW 10.73.090's one-year time limit.
We have held that RCW 10.73.090 can be subject to equitable tolling in a proper case because it is a statute of limitations and not jurisdictional. State v. Littlefair, 112 Wn. App. 749, 759, 51 P.3d 116 (2002). Equitable tolling "`permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed.'" Littlefair, 112 Wn. App. at 759 (quoting State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671 (1997)). Appropriate circumstances for equitable tolling usually include bad faith, deception, or false assurances by one party and the exercise of diligence by the other. Littlefair, 112 Wn. App. at 759. Courts typically apply equitable tolling sparingly, and should not apply it to a "`garden variety claim of excusable neglect.'" Littlefair, 112 Wn. App. at 759-60 (quoting Duvall, 86 Wn. App. at 875).
In Littlefair, the defendant was unaware that deportation was a consequence of his guilty plea until the Immigration and Naturalization Service notified him that it was seeking his deportation two years after he entered his plea. Littlefair, 112 Wn. App. at 762-63. His attorney and the court did not follow the procedures that would have notified him of this consequence. Littlefair, 112 Wn. App. at 762. We equitably tolled RCW 10.73.090's one-year limit and permitted him to withdraw his plea. Littlefair, 112 Wn. App. at 763.
Similarly in In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 431-32, 993 P.2d 296 (2000), Division Three also applied equitable tolling to RCW 10.73.090's one-year time limit. In that case, Hoisington pleaded guilty based on the prosecutor and defense counsel's mistaken belief that the maximum term for the crime charged was 10 years. Hoisington, 99 Wn. App. at 425. When the attorneys realized the mistake, defense counsel advised Hoisington to proceed with sentencing without informing him that he could specifically enforce the plea agreement, and the trial court imposed 325 months. Hoisington, 99 Wn. App. at 426-27. Hoisington raised the issue in two unsuccessful appeals and a prior personal restraint petition, but the court failed to address it each time. Hoisington, 99 Wn. App. at 430. In his second petition, the court found the circumstances appropriate for equitable tolling because "[t]he fault is with the court for not addressing his claim when he first raised it in his direct appeal." Hoisington, 99 Wn. App. at 431-32.
And in State v. Robinson, 104 Wn. App. 657, 667, 17 P.3d 653 (2001), Division One recognized that equitable tolling applies to RCW 10.73.090, but declined to apply it. There, the defendant mailed a motion to withdraw her guilty plea three days before the one-year time limit had passed. Robinson, 104 Wn. App. at 661. The county clerk file stamped it three days after the time limit ended. Robinson, 104 Wn. App. at 661. The court reasoned that postal delay, the most likely explanation, is a common experience and a litigant with a looming statute of limitations should know to file in person or by facsimile transmission or mail the document early enough to account for some delay. Robinson, 104 Wn. App. at 668-69.
This case, like Littlefield and Hoisington, is appropriate for equitable tolling. Bonds was diligent in filing his personal restraint petition, filing it less than three months after his conviction became final. And once we appointed counsel, only four days before expiration of the one-year time limit, counsel moved to file the amended petition two-and-a-half months later. Given the voluminous record in this case, counsel acted with diligence in filing that motion. Additionally, although Bonds requested the assistance of counsel in his petition, we did not rule on his request for almost 10 months. RAP 16.11 requires us to promptly review a timely personal restraint petition. And RCW 10.73.150(4) requires that we appoint counsel "in accordance with the procedure contained in rules of appellate procedure 16.11" if the chief judge determines that the petition is not frivolous.
Moreover, although we hold pro se petitioners like Bonds to the standards of an attorney, In re Pers. Restraint of Connick, 144 Wn.2d 442, 455, 28 P.3d 729 (2001), our Supreme Court has recognized the difficulty of identifying the nature of a violation of the public trial right when the trial court has not informed potential objectors of the asserted interests. See State v. Bone-Club, 128 Wn.2d 254, 261, 906 P.2d 325 (1995) (closure of a pretrial proceeding without informing defendant of the nature of the asserted interests deprived the defendant of a meaningful opportunity to object). We find that, as in Hoisington, the fault for the delay lies with the court; accordingly, we equitably toll the one-year statute of limitations of RCW 10.73.090 and consider Bonds's public trial issue.
IV. Right to Public Trial
Bonds asserts that the trial court violated his right to an open trial under Bone-Club, 128 Wn.2d at 256, and the public's right to access his trial under Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 36, 640 P.2d 716 (1982), when it closed the courtroom to the public on four occasions.
Both the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to a public trial. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). Similarly, article I, section 10 of the Washington Constitution guarantees the public the right to openly administered justice, including a right of access to court proceedings. Ishikawa, 97 Wn.2d at 36. A public trial "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." Brightman, 155 Wn.2d at 514 (citing Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996)). We review a claimed violation of the right to a public trial de novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006).
Neither the defendant's nor the public's right to a public trial is absolute, and a court may limit the public's access to protect other interests. Bone-Club, 128 Wn.2d at 259; Ishikawa, 97 Wn.2d at 36. To protect this basic constitutional right, however, the trial court must "resist a closure motion except under the most unusual circumstances." Bone-Club, 128 Wn.2d at 259. The trial court may not close the courtroom to the public without first weighing the five Bone-Club factors and entering specific findings justifying the closure order. Easterling, 157 Wn.2d at 175. The Bone-Club factors, which mirror the requirements to protect the public's right of access, are:
1. The proponent of closure or sealing must make some showing [of a compelling interest], and where that need is based on a right other than an accused's right to a fair trial, the proponent must show a `serious and imminent threat' to that right.
2. Anyone present when the closure motion is made must be given an opportunity to object to the closure.
3. The proposed method for curtailing open access must be the least restrictive means available for protecting the threatened interests.
4. The court must weigh the competing interests of the proponent of closure and the public.
5. The order must be no broader in its application or duration than necessary to serve its purpose.
Bone-Club, 128 Wn.2d at 258-59 (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121 Wn.2d 205, 210-11, 848 P.2d 1258 (1993)).
The right to a public trial extends to pretrial proceedings. Easterling, 157 Wn.2d at 177-78 (hearing on codefendant's motion to sever); In re Pers. Restraint of Orange, 152 Wn.2d 795, 804, 100 P.3d 291 (2004) (voir dire of jury panel); Bone-Club, 128 Wn.2d at 257 (suppression hearing). Thus, the trial court must ensure that "all stages of courtroom proceedings remain open unless the trial court identifies a compelling interest to be served by closure." Easterling, 157 Wn.2d at 178. Here, the court closed Bonds's trial to the public for a pretrial hearing on a witness's competency to testify, an inquiry of a witness as to his expected testimony, an admonishment of a witness, and argument on the admissibility of hearsay testimony. These closures implicate Bonds's and the public's right to a public trial.
A defendant's failure to object does not constitute a waiver of the right to a public trial. Bone-Club, 128 Wn.2d at 261. The opportunity to object has no "practical meaning" unless the trial court has informed the potential objector of the nature of the asserted interests. Bone-Club, 128 Wn.2d at 261. A summary closure therefore deprives a defendant of a meaningful opportunity to object. Bone-Club, 128 Wn.2d at 261. And where the record contains nothing to show that the trial court considered the defendant's public trial right as Bone-Club requires, we cannot determine whether the closure was warranted. Brightman, 155 Wn.2d at 518.
Here, the trial court did not weigh the Bone-Club factors or make specific findings justifying any of the closures. In the first closure, during the hearing on Keith Harrell's competency, the court did not separately balance the need for complete courtroom closure during Harrell's testimony. The court based the closure on Harrell's heightened privacy interest in his health care issues but it did not find a serious or imminent threat to that interest and did not weigh that interest against Bonds's or the public's interest in an open trial.
The trial court did, however, engage in a balancing analysis when it decided to close the court to potential witnesses, including the victims, during both testimony and argument. This partial closure, which Bonds does not challenge, was designed to protect Bonds's right to a fair trial.
In the second closure, during Thomas's testimony, the trial court again failed to weigh the Bone-Club factors or make any findings about the closure on the record. But because Bonds concurred in the closing, he has waived the error. City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002).
In the third and fourth closures, during the court's admonishment of Daniels and the argument on Judith Harrell's testimony, the trial court summarily ordered the public out of the courtroom without considering any of the Bone-Club factors. No party requested these closures and the court made no findings as to why they were necessary. The court did not give Bonds or the public the opportunity to object.
The constitutional right to a public trial is a fundamental right not subject to harmless error analysis. See Bone-Club, 128 Wn.2d at 261-62; Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (citing Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)). We presume prejudice where a violation of the public trial right occurs. Bone-Club, 128 Wn.2d at 261-62 (citing State v. Marsh, 126 Wash. 142, 146-47, 217 P. 705 (1923)). And although the closures here were brief, a majority of our Supreme Court has never found a public trial right violation to be de minimis. Easterling, 157 Wn.2d at 180. Accordingly, the appropriate remedy for the trial court's constitutional error is reversal of Bonds's conviction and remand for new trial.
We grant Bonds's personal restraint petition, reverse his convictions, and remand for retrial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, A.C.J., concur.
PENOYAR, J. — While I agree with the majority that Bonds's confrontation rights were not violated, I disagree with the conclusion that we should address the public trial issue that Bond raised in his amended personal restraint petition (PRP). Thus, I respectfully dissent.
State law prohibits PRPs from being filed more than a year after a judgment is final. See RCW 10.73.090. A court cannot waive the requirements of a statute. The time limitation in RCW 10.73.090(1) "is a mandatory rule that acts as a bar to appellate court consideration of personal restraint petitions filed after the limitation period has passed, unless the petitioner demonstrates that an exception applies." Shumway v. Payne, 136 Wn.2d 383, 397-98, 964 P.2d 349 (1998); see also State v. Robinson, 104 Wn. App. 657, 662, 17 P.3d 653 (2001); In re Pers. Restraint of Benn, 134 Wn.2d 868, 938-39, 952 P.2d 116 (1998) (finding that RAP 18.8(a) does not allow court to waive or alter statutes). The only exceptions to this one-year time bar are enumerated in RCW 10.73.100, and these exceptions do not include a violation of the right to a public trial. Additionally, there is no rule that allows amendments to a PRP. Benn, 134 Wn.2d at 938-39. Nevertheless, the majority is allowing Bonds's amendment more than a year after judgment by applying the doctrine of equitable tolling, which "permits a court to allow an action to proceed when justice requires it, even though a statutory time period has nominally elapsed." State v. Duvall, 86 Wn. App. 871, 874, 940 P.2d 671(1997).
Equitable tolling is only appropriate when it is consistent with the general purposes of the statute and of the statute of limitation. Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 812, 818 P.2d 1362 (1991) (citing Hosogai v. Kadota, 145 Ariz. 227, 231, 700 P.2d 1327 (1985)); Duvall, 86 Wn. App. at 875. The purpose of RCW 10.73.090 is to prevent delay by encouraging "prisoners to bring their collateral attacks promptly." In re Pers. Restraint of Runyan, 121 Wn.2d 432, 450, 853 P.2d 424 (1993). Additionally, the time limit controls "the flow of post-conviction collateral relief petitions" and promotes the finality of litigation. In re Pers. Restraint of Well, 133 Wn.2d 433, 441-42, 946 P.2d 750 (1997). The one-year statute of limitation allows prisoners a "[one]-year window of opportunity" in which to raise any issues without the assistance of counsel. Runyan, 121 Wn.2d at 451. Petitioners do not have any constitutional right to appointed counsel for such post-conviction proceedings. In re Pers. Restraint of Gentry, 137 Wn.2d 378, 390, 972 P.2d 1250 (1999).
Bonds failed to amend his petition within the one-year window of opportunity, and we should deny review of his additional issues. To allow amendment after the one-year period results in delay, changes the normal flow of post-conviction collateral relief, and interferes with finality. It also grants Bonds more than other petitioners are entitled to — the right to raise issues for a one-year period without the assistance of counsel. The majority's decision here — allowing equitable tolling — does not advance, and is indeed inconsistent with, the purposes behind RCW 10.73.090.
Equitable tolling is to be used only sparingly. In re Pers. Restraint of Carlstad, 150 Wn.2d 583, 593, 80 P.3d 587 (2003). The doctrine is extremely limited; it should not apply to "a garden variety claim of excusable neglect." State v. Duvall, 86 Wn. App. at 875 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990)). In fact, a court should only extend equitable tolling in circumstances where there was "bad faith, deception, or false assurances by the [State], and the exercise of diligence by the [Petitioner]." In re Pers. Restraint of Hoisington, 99 Wn. App. 423, 430-31, 993 P.2d 296 (2000) (quoting Duvall, 86 Wn. App. at 875). Thus, justice requires equitable tolling only if Bonds exercised diligence and there is evidence of bad faith, deception, or false assurances by the State that prevented a timely filing. See Hoisington, 99 Wn. App. at 430-31.; Douchette, 117 Wn.2d at 812.
Bonds may have been diligent in submitting his PRP, completing it within three months after his conviction was finalized, but this filing is no more diligent or timely than any petitioner who completes his or her petition within the one-year limitation. There is no reason to distinguish between a petitioner who files his petition nine months after conviction from a petitioner that files his petition a month after conviction; both petitions are timely. At what point is a petitioner so "diligent" that the court will allow equitable tolling? The timing of Bonds's filing does not make him unusual or exceptional. He should not receive the benefit of the rarely invoked equitable tolling doctrine simply because ten months passed between when Bonds completed his petition and when an attorney was appointed to review his petition.
Bonds attributes his failure to amend the petition within the one-year time period to our delay in appointing counsel. Bonds has a statutory right to appointed counsel for a PRP "after the chief judge has determined that the issues raised by the petition are not frivolous." RCW 10.73.150(4). Even if the ten months that passed between the filing of the petition and the appointment of counsel is not considered prompt, this delay was not bad faith, and did not involve deception or false assurances. The rule for applying equitable tolling does not require merely that the State acted in neglect or that the petitioner not be at fault; instead it requires bad faith, deception, or false assurances. None of these circumstances are present in Bonds's case. See State v. Littlefair, 112 Wn. App. 749, 774, 51 P.3d 116 (2002) (Bridgewater, J. dissenting) (failure on the part of the attorney to inform client about consequences of guilty plea, such as deportation, is neglect, not bad faith, deception, or false assurances). Therefore, equitable tolling should not apply to Bonds's amendments to his petition and we should not determine whether Bonds was deprived of his right to a public trial.