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In re Personal Restraint of D'Allesandro

Court of Appeals of Washington, Division 2

December 17, 2013

In the Matter of the Personal Restraint of Felix Joseph D'Allesandro, Petitioner

Reconsideration denied February 27, 2014.

Page 745

Appeal from Thurston Superior Court. Docket No: 03-1-01389-1. Date filed: 03/31/2004. Judge signing: Honorable Richard D Hicks.

Rita J. Griffith ; and Jeffrey E. Ellis (of Oregon Capital Resource Center ), for petitioner.

Jon Tunheim, Prosecuting Attorney, and Carol L. La Verne and John C. Skinder, Deputies ; and Jeremy R. Randolph, for respondent.

AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Bradley A. Maxa, J.

OPINION

Page 746

[178 Wn.App. 459] Hunt, J.

¶ 1 In this personal restraint petition (PRP), Felix Joseph D'Allesandro challenges his 2004 jury trial conviction for first degree premeditated murder with a deadly weapon. He argues that his previous appellate counsel rendered ineffective assistance in failing to include a Bone-Club [1] challenge to the temporary courtroom closure [178 Wn.App. 460] during jury selection in the petition for review from his direct appeal.[2] Agreeing, we grant this PRP.

FACTS

¶ 2 The State charged Felix Joseph D'Allesandro and Mert Celebisoy with first degree murder while armed with a deadly weapon for the stabbing death of David George.[3] State v. Celebisoy, noted at 131 Wn.App. 1003, 2006 WL 14519, at *2 review denied, 158 Wn.2d 1004 (2006). Their high profile cases were consolidated for trial in March 2004. Celebisoy, 2006 WL 14519, at *3. The jury convicted both defendants as charged.

I. Closed Courtroom During Initial Jury Voir Dire

¶ 3 Before voir dire began, D'Allesandro's counsel apparently proposed and prepared a juror questionnaire, which asked jurors to indicate whether they wished to be interviewed privately about any of the questions. The trial court's instruction sheet accompanying this questionnaire stated: " Further questioning, if any, will be conducted privately if you request it. That is, the public and other potential jurors will not be present." [4] State's Third Suppl. [178 Wn.App. 461] Resp., App. B at 3. D'Allesandro subsequently asked the trial court about interviewing prospective jurors who had stated on their juror questionnaires that they preferred to be examined " privately," as both the questionnaires and the trial court's accompanying instruction sheet had promised. 1 Verbatim Report of Proceedings (VRP) (Mar. 8, 2004) at 2-3.

¶ 4 D'Allesandro's counsel stated:

It occurred to me ... after I had an opportunity to review the jury questionnaires, it would make sense for the parties and the Court to interview prospective jurors who wished to speak with us privately, to do those interviews prior to voir dire, and my rationale is that if those interviews result in any excuses for cause, it would diminish the pool right off the bat, and secondly and perhaps more importantly from my perspective we don't run the risk of tainting the remaining pool, if we do it on the front end as opposed to doing it on the back end. And I know there are a lot of people in the--on this side of the bar in the well, and normally, at least in my experience, those interviews are conducted in chambers, and I would suggest that those interviews take place in an empty courtroom. By that, I mean apart from the remaining prospective jurors.

Page 747

1 VRP (Mar. 8, 2004) at 2 (emphasis added). Celebisoy, the State, and the trial court agreed that speaking to those jurors whose questionnaires had requested " private" questioning, before beginning the general voir dire, would be the most efficient approach. 1 VRP at 3. Celebisoy's counsel also commented that it might lessen the chance " of tainting the larger [jury] pool." 1 VRP (Mar. 8, 2004) at 3.

¶ 5 The trial court responded:

Well, all of the attorneys are in agreement, and I don't find myself in disagreement, but I maybe would like to make a further suggestion. The jurors have been waiting a long time so I would like to invite them in and tell them something about how this process is working, and then it occurs to me that in [178 Wn.App. 462] addition to those who we've flagged as--on the basis that they wanted to be asked certain questions in private instead of in public, private meaning in the presence of the attorneys, the defendants, the clerk, so on --it doesn't mean absolute privacy, but it means outside of what's open to the general public --and that's a procedure we generally afford jurors out of respect for their privacy. They're not the ones on trial here, and sometimes there are personal and embarrassing matters that they want to properly disclose, but shouldn't be made to do so in the glare of the whole community necessarily.
But that in addition to those that have answered " yes" to the question that they need to answer certain questions in private, there are some others who've indicated they know something about this case from the media, and it seems it might be prudent to talk to some of those individuals in private so that the questions they answer don't educate the other jurors who profess to not know anything about this in the media and that maybe we should expand that group to include those individuals and ask them media-related questions at the same time, and then there might be some of those who have to be excused for cause and others who don't, but then that would give us a pool of jurors from which to pick which is more like those with which we are usually faced.

1 VRP (Mar. 8, 2004) at 4-5 (emphasis added). The State and D'Allesandro agreed that this approach was " fine" with them.[5] 1 VRP (Mar. 8, 2004) at 5.

¶ 6 The trial court then discussed the logistics:

So you can be thinking about [identifying those who have had some media contact and think need further in-depth interviews], [178 Wn.App. 463] and I think I'll invite [the entire venire] in, make some preliminary remarks as is usually the case, and then explain that we're going to question those jurors who wanted to be questioned privately first.
Would you find out if my regular courtroom is available for that? Or we could even clear this courtroom I suppose for that.
I'm thinking maybe what we'll do is maybe close this courtroom temporarily. I mean the trial's going to be open to the public, but for these in camera interviews, maybe we'll just ask members of the public to leave. Then we don't have to upset the counsel table, the court reporter and everybody else, and then open the door again to whoever wants to attend once we're not talking privately with a particular juror. I think that might be a way to do that.
I see there's some observers here, which are welcome to be here throughout the trial, but what we're talking about is how do we pick everybody else up and move them into the judge's chambers? There's quite a few people here to ...

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