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State v. Cockett

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1028 (Wash. Ct. App. 2011)

Opinion

No. 62799-6-I.

Filed: March 14, 2011.

Appeal from a judgment of the Superior Court for King County No. 07-1-07856-4, Joan E. DuBuque, J., entered December 8, 2008.


Affirmed by unpublished opinion per Grosse, J., concurred in by Leach, A.C.J., and Ellington, J.


When a trial court views in chambers a videotape of a deposition that was taken in open court and the tape is admitted in open court during a bench trial, there is no courtroom closure that implicates the public trial right. Accordingly, we affirm.

FACTS

Eric Cockett and M.W. were involved in a romantic relationship beginning in the summer of 2005 and had a son together. In December 2006, Cockett asked M.W. if she would engage in anal sex and she initially consented, but asked him to stop once she experienced pain. He refused and proceeded to rape her. Shortly after, she told a co-worker about the rape. A few days later, she sought medical treatment for anal and vaginal pain she was still experiencing. M.W. did not report the rape to police until several months later.

On October 13, 2007 Cockett went to M.W.'s apartment to take care of their one-year-old child. The two argued and at one point Cockett squeezed M.W's throat, obstructing her breathing. This was done within hearing distance of their son, who was in his crib in a nearby bedroom. Cockett later sent M.W. text messages asking her to forgive him.

A few days after this incident, M.W. went to work, still feeling the pain in her neck. Her supervisor noticed that M.W. did not look well and was moving awkwardly. M.W. then disclosed the rape to her supervisor and the supervisor drove her to the doctor. M.W. told the doctor how Cockett had attacked and choked her. The doctor arranged for M.W. to speak with a social worker, who advised her to obtain a protection order. When M.W. told Cockett that she was going to get a protection order, he sent her text messages asking her to keep the police out of their business.

After meeting with the social worker, M.W. obtained a protection order against Cockett. In support of the protection order, she cited the recent assault and the rape that occurred eight months earlier. A few days later, M.W. was served with a protection order filed by Cockett. After being served, M.W. called police to report the assault and rape incidents.

The State charged Cockett with second degree assault and second degree rape with an aggravating factor that the assault occurred within the sight and sound of a child. The trial was set to begin on September 30, 2008. On the first day of trial, the prosecutor alerted the court that one of its witnesses, social worker Eloise Rice, had to testify before she left for Europe on October 9, 2008. In order to accommodate defense counsel's schedule, the court suggested that the parties take a perpetuation deposition of Rice's testimony. Defense counsel agreed, subject to his motion in limine seeking to exclude Rice's testimony at trial.

The parties conducted a deposition of Rice in open court on October 3, 2008. A few days later, Cockett waived his right to a jury trial and proceeded to a bench trial on the charges. During the State's case, the prosecutor offered the videotape of Rice's deposition and the court admitted it into evidence over defense objection. The court then inquired of counsel:

THE COURT: [D]o we know [sic] to play the deposition in open court, or can I play it on my computer?

[DEFENSE COUNSEL:] You can play it on your computer, Your Honor. We'll accept that.

THE COURT: Thank you. Because I don't have — what do you call it, speakers on this computer.

The court then watched the videotape in chambers.

The court also heard testimony from M.W., her co-workers, medical personnel who treated her after the rape, and her aunt, who testified that Cockett approached her about persuading M.W. to drop the charges and admitted that he had engaged in "abnormal sex acts" with M.W., but claimed that he stopped when she told him it hurt. Cockett testified in his own defense, denying that he had raped or assaulted M.W.

Cockett also called other witnesses that the court did not find credible.

The court found him guilty as charged and also found that the State proved the aggravating circumstance. The court imposed an exceptional sentence of 41 months on the assault charge and an indeterminate sentence of a minimum of 130 months and a maximum of life on the rape charge.

ANALYSIS

I. Public Trial Right

Cockett contends that his right to a public trial was violated when the court viewed the videotaped deposition in chambers. He argues that by doing so, the court closed the courtroom to the public without first engaging in the inquiry required by State v. Bone-Club and determining whether a courtroom closure was justified. We disagree.

128 Wn.2d 254, 906 P.2d 325 (1995). In Bone-Club, the court set forth the following factors that a trial court must consider on the record before ordering a courtroom closure:

1. The proponent of closure or sealing must make some showing [of a compelling state 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.

128 Wn.2d at 258-59.

Both the United States and Washington Constitutions protect a criminal defendant's right to a public trial. The right is one "created for the benefit of the defendant." Failure to conduct the Bone-Club inquiry before closing a courtroom violates the right to a public trial and results in reversal for a new trial.

U.S. Const. amend. VI; Wash. Const. art. I, § 22.

Waller v. Georgia, 467 U.S. 39, 46, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984).

State v. Brightman, 155 Wn.2d 506, 518, 122 P.3d 150 (2005).

"The public trial right applies to the evidentiary phases of the trial, and to other `adversary proceedings.' . . . Thus, a defendant has a right to an open court whenever evidence is taken, during a suppression hearing, and during voir dire."

State v. Rivera, 108 Wn. App. 645, 652-53, 32 P.2d 292 (2001) (quoting Ayala v. Speckard, 131 F.3d 62, 69 (2d Cir. 1997); Press-Enter. Co. v. Superior Court of California, 464 U.S. 501, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)).

Here, while the court's in chambers viewing of the videotaped deposition occurred during the evidentiary phase of trial, it did not amount to taking evidence in a closed proceeding, as Cockett contends. Rather, as the State points out, the court was simply viewing a videotape of deposition testimony that had already been taken in open court and was then offered at trial as an exhibit in open court. And as the State notes, Cockett cites no authority for the proposition that the court's viewing of an admitted exhibit in chambers during a bench trial violates the public trial right. Nor is there anything in the record here to suggest that the court otherwise restricted public access to the videotape or viewed the tape in chambers to exclude the public; rather, it was clear from the record that the only reason the court did so was because the tape could only be heard if played on the computer that was located in chambers. Thus, Cockett fails to show that the viewing of the videotape in chambers amounts to a courtroom closure that implicates the public trial right.

But even if the court's viewing of the videotape in chambers amounted to a courtroom closure in violation of the public trial right, by requesting and affirmatively agreeing that the court do so, Cockett invited the closure and may not now challenge it as error. The basic premise of the invited error doctrine is that a party who sets up an error at trial cannot claim it as error on appeal. The invited error doctrine applies even when the alleged error is of constitutional magnitude. Here, Cockett did not merely fail to object to or acquiesce to the closure, but actually suggested and affirmatively agreed to it. The court specifically asked for his input (i.e., "Do we know [sic] to play the deposition in open court or can I play it on my computer?") and he responded that viewing it in chambers was an acceptable choice to him (i.e., "You can play it on your computer, Your Honor. We'll accept that."). Because he invited the closure, he is barred from now claiming that it violated his public trial right.

State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990).

City of Seattle v. Patu, 147 Wn.2d 717, 720, 58 P.3d 273 (2002); Henderson, 114 Wn.2d at 871.

While the majority opinion in State v. Strode, 167 Wn.2d 222, 229, 217 P.3d 310 (2009), held that Strode's failure to object to the closure or his counsel's participation in the closed voir dire did not constitute a waiver, the facts do not indicate that the closed questioning was actually requested by Strode, just that the judge stated that the questioning was done in chambers "for `obvious' reasons," to ensure confidentiality and that the inquiry would not be "broadcast" to the rest of the jury panel. 167 Wn.2d at 224-25. Thus, unlike here, Strode's failure to object and subsequent participation in the closed voir dire is more appropriately characterized as an acquiescence to the court's conduct, rather than an affirmative request.

See Patu, 147 Wn.2d at 720 (invited error doctrine applies even when the alleged error is one of constitutional magnitude).

II. Ineffective Assistance of Counsel

Cockett next contends that counsel was ineffective by agreeing to the court's inclusion of out-of-state convictions in his offender score. Cockett's attorney filed a sentencing memorandum indicating that he agreed with the State's calculation of the offender score, which included two Alaska convictions: one for third degree misconduct involving a controlled substance (delivery of a controlled substance) and one for fourth degree misconduct involving a controlled substance (possession of a controlled substance). Cockett now contends that these convictions should not have been included in his offender score because they were not comparable to Washington crimes. He concedes that his affirmative agreement to the inclusion of those convictions in his offender score at sentencing amounts to a waiver, but contends instead that counsel's failure to object amounts to ineffective assistance.

To establish a claim of ineffective assistance of counsel, the defendant must show (1) that counsel's performance fell below an objective standard of reasonableness and (2) counsel's deficient representation prejudiced the defendant. To determine comparability, Washington courts apply a two-part test involving legal comparability and factual comparability. First, the sentencing court compares the elements of the out-of-state crime to the similar Washington crime. If the elements are "substantially similar," or if the out-of-state crime is defined more narrowly than in Washington, the out-of-state conviction is included in the offender score. If the foreign crime is defined more broadly than the Washington crime, the court may proceed to the second part of the test to determine factual comparability. This requires the sentencing court to determine whether the defendant's conduct would have violated the comparable statute, as evidenced by the indictment, information or records of the foreign conviction.

State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).

In re Pers. Restraint of Lavery, 154 Wn.2d 249, 255, 111 P.3d 837 (2005).

Lavery, 154 Wn.2d at 255.

State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998).

Lavery, 154 Wn.2d at 255.

Cockett acknowledges that the elements of the possession and delivery crimes are substantially the same in Alaska and Washington. But he contends that they are not comparable because the defenses of unwitting possession and intoxication are available under Washington law but not Alaska law. He relies on Lavery, where the court held that a federal robbery conviction was not comparable because the crime in Washington required specific intent whereas the federal crime did not. The court noted that there were defenses to robbery recognized by Washington case law that might not be available to a general intent crime, such as diminished capacity and intoxication, and that as a result, "Lavery had no motivation in the earlier conviction to pursue defenses that would have been available to him under Washington's robbery statute but were unavailable in the federal prosecution."

Lavery, 154 Wn.2d at 256.

Lavery, 154 Wn.2d at 258.

Comparing the possession crimes here, the State is correct that the Alaska crime is actually narrower, not broader, than the Washington crime. The elements of possession of a controlled substance in Alaska are unlawful and knowing possession of a controlled substance, while the crime in Washington only requires possession of a controlled substance. Thus, the trial court properly included the Alaska conviction in the offender score as a comparable crime in Washington. The availability of the defense of unwitting possession in Washington but not in Alaska does not make the crimes less comparable, as Cockett suggests; such a defense simply has the effect of implying a knowledge element, which is already required in Alaska.

Comparing the delivery crimes, the elements are the same in both states: both statutes define the offense as the knowing delivery of a controlled substance. But Cockett is correct that there are defenses available to the crime in Washington that are not recognized in Alaska. Because the knowledge element requires proof of a particular mental state, an intoxication defense is available under Washington law that is not available under Alaska law. Cockett argues that, as in Lavery, he had no motivation to pursue this defense that would have been available to him in Washington but was not available in Alaska and, therefore, the crime is broader in Alaska and not legally comparable. Thus, Cockett requests either a remand for an evidentiary hearing to determine factual comparability or that the panel review the record to make the determination.

RCW 9A.16.090 provides: "[W]henever the actual existence of any particular mental state is a necessary element to constitute a particular species or degree of crime, the fact of his intoxication may be taken into consideration in determining such mental state." By contrast, Alaska law provides: "[A] person who is unaware of conduct or a circumstance of which the person would have been aware had that person not been intoxicated acts knowingly with respect to that conduct or circumstance." Alaska stat. § 11.81.900(2).

But as the State points out, Lavery did not hold that the availability of different defenses necessarily renders an out-of-state crime legally incomparable. Rather, in Lavery, the actual elements were not legally comparable (general vs. specific intent), and the court observed that this also led to the availability of different defenses. But here, the elements of the delivery crimes were the same and, as the State notes, Cockett points to no case law specifically holding that the availability of different defenses for crimes with the same elements necessarily renders a conviction legally incomparable for purposes of including it in an offender score. Thus, counsel's agreement to inclusion of the Alaska delivery conviction in the offender score cannot be fairly characterized as conduct falling below an objective standard of reasonableness. Cockett therefore fails to establish a claim of ineffective assistance of counsel.

In fact, a recent opinion of this court has held to the contrary. State v. Jordan, ___ Wn. App. ___, 241 P.3d 464 (2010) (difference in self-defense laws did not render Texas conviction for involuntary manslaughter incomparable to Washington offense of second degree murder). Cockett cites State v. Stockwell, 159 Wn.2d 394, 397, 150 P.3d 82 (2007), where the court noted:

Legal comparability analysis is not an exact science, but when, for example, an out-of-state statute criminalizes more conduct than the Washington strike offense, or when there would be a defense to the Washington strike offense that was not meaningfully available to the defendant in the other jurisdiction or at the time, the elements may not be legally comparable. See Lavery, 154 Wn.2d at 256-57.

But as the State points out, in Stockwell, the court actually found that the elements were legally comparable and did not address the effect of different defenses. Stockwell, 159 Wn.2d at 397-400. Additionally, the court stated the above proposition in the permissive, noting that elements "may" not be legally comparable when a defense was not available in both states, and citing Lavery, which as discussed above, involved different elements that implicated different defenses.

We affirm the judgment and sentence.


Summaries of

State v. Cockett

The Court of Appeals of Washington, Division One
Mar 14, 2011
160 Wn. App. 1028 (Wash. Ct. App. 2011)
Case details for

State v. Cockett

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. ERIC WILLIAM COCKETT, Appellant

Court:The Court of Appeals of Washington, Division One

Date published: Mar 14, 2011

Citations

160 Wn. App. 1028 (Wash. Ct. App. 2011)
160 Wash. App. 1028