State v. Frawley

• Citation: 181 Wash.2d 452,334 P.3d 1022
• Decision Date: 25 September 2014
• Docket Number: 86513–2.,Nos. 80727–2,s. 80727–2
• Parties: STATE of Washington, Petitioner, v. Brian William FRAWLEY, Respondent. State of Washington, Respondent, v. Ronald Eugene Applegate, Petitioner.
• Court: United States State Supreme Court of Washington

181 Wash.2d 452

334 P.3d 1022

STATE of Washington, Petitioner

v.Brian William FRAWLEY, Respondent.

State of Washington, Respondent

v.Ronald Eugene Applegate, Petitioner.

Nos. 80727–2

86513–2.

Supreme Court of Washington, En Banc.

Sept. 25, 2014.

Steven J. Tucker, Attorney at Law, Spokane, WA, Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Seattle, WA, for Petitioner.

David N. Gasch, Gasch Law Office, Spokane, WA, Whatcom County Prosecutor's Office, Attorney at Law, Hilary A. Thomas, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Douglas B. Klunder, Attorney at Law, Seattle, WA, Amicus Curiae on behalf of ACLU.

Colin Fieman, Federal Public Defender, Tacoma, WA, Katherine George, Harrison–Benis LLP, Seattle, WA, Amicus Curiae on behalf of Allied Daily Newspapers of Washington/Washington Newspapers Publishers Association/Washington COAlition for Open Government.

Opinion

C. JOHNSON, J.

¶ 1 These consolidated criminal cases involve whether a defendant can waive his right to a public trial under article I, section 22 and/or article I, section 10 of the Washington State Constitution. In State v. Frawley, 140 Wash.App. 713, 167 P.3d 593 (2007), the Court of Appeals reversed Brian Frawley's conviction for first degree felony murder because the trial court closed the courtroom without performing a Bone–Club¹ analysis. In State v. Applegate, 163 Wash.App. 460, 259 P.3d 311 (2011), the Court of Appeals affirmed a jury's determination of aggravating factors supporting Ronald Applegate's exceptional sentence for his 2005 conviction for rape of a child because the defendant waived his public trial right. In both cases, because the State has not established waiver, we affirm Frawley and should reverse Applegate.

Facts and Procedural History

a. State v. Frawley

¶ 2 In 2004, Brian Frawley was charged with first degree felony murder. At trial, voir dire was divided into two phases: individual and general voir dire. At the individual portion of voir dire, some jurors were to be questioned in the judge's chambers regarding their answers on the juror questionnaire. Before this occurred, the court engaged in an extensive colloquy concerning Frawley's right to be present for the individual voir dire and he waived this right to be present. The court and counsel for both sides then interviewed 35 prospective jurors in chambers. Eleven prospective jurors were stricken for cause.

¶ 3 For the general voir dire, the court proposed closing the courtroom to the public out of concern that the space would not be large enough for both the venire and the public.² The court inquired into whether Frawley would waive his right to have the public present and eventually engaged Frawley in another extensive colloquy where the trial judge concluded that Frawley waived his right to have the public present during general voir dire. The jury was selected and eventually convicted Frawley of first degree felony murder.

¶ 4 On appeal, the Court of Appeals issued a split decision in which it held that (1) the trial court improperly closed the courtroom for the individual voir dire without performing a Bone–Club analysis and (2) Frawley did not waive his right to have the public present during individual voir dire. As a result, the Court of Appeals reversed Frawley's conviction. Frawley, 140 Wash.App. 713, 167 P.3d 593. The State petitioned this court for review, and consideration of the petition was deferred pending resolution of State v. Strode, 167 Wash.2d 222, 217 P.3d 310 (2009), and State v. Momah, 167 Wash.2d 140, 217 P.3d 321 (2009), and then again pending resolution of State v. Wise, 176 Wash.2d 1, 288 P.3d 1113 (2012). This court then granted the petition for review. State v. Frawley, 176 Wash.2d 1030, 299 P.3d 19 (2013).

b. State v. Applegate

¶ 5 In 1996, the State charged Ronald Applegate with second degree rape of a child. Applegate fled but was eventually arrested in 2004. He was convicted with three aggravating factors supporting an exceptional sentence, but his sentence was overturned on appeal and remanded for a new trial on the aggravating circumstances only.

¶ 6 Prior to voir dire at the new trial, the trial judge addressed the courtroom, asking if either party or any member of the public present in the courtroom³ would object if individual potential jurors who wanted to could discuss issues raised in the juror questionnaire in a “less open setting.” Applegate Report of Proceedings (RP) (Aug. 10, 2009) at 26. Defense counsel stated that such a determination was entirely within the court's discretion, but the State indicated that the court needed to address whether Applegate himself objected because “[t]he public would be excluded under the circumstances.” RP (Aug. 10, 2009) at 26. The court responded, “Under Momah, as I recall, it didn't even state that the factors need to be specifically addressed, because it still is a trial of record. We can still address those factors⁴ at another time.” RP (Aug. 10, 2009) at 27. The discussion was then tabled until the court could address the entire jury pool later that afternoon.

¶ 7 After voir dire had started, the court identified one juror likely to be questioned privately based on the questionnaire.⁵ The court addressed the courtroom again, asking if any member of the jury pool or public had any objection to the court speaking with the juror in chambers. The court explained, “It would be a public proceeding. Any member of the public that is available to come in [it] will have the outer door open for that purpose.”⁶ RP (Aug. 10, 2009) at 118. The court again asked if there were any objections, but the State voiced concern that Applegate had yet to state whether he objected. The court stated, “[I]n terms of I believe the five factors set forth[,] referred to as the [Bone–Club ] factors[,] I believe those have been met.” RP (Aug. 10, 2009) at 119. The court then asked if Applegate had any objections. Initially, Applegate's attorney stated that he had no objection, but the court sought clarification that Applegate himself rather than just his counsel did not object.

Defense counsel then had a brief sidebar with Applegate and returned on the record to state, “I have talked it over with Mr. Applegate. He has no objection ... to going back into chambers and asking these questions without the public hearing.” RP (Aug. 10, 2009) at 119. The juror was briefly questioned in chambers by both parties, and then all returned to the courtroom to continue voir dire. The juror was impaneled, and the jury eventually returned a special verdict finding each aggravating factor supporting an exceptional sentence of 120 months.

¶ 8 The Court of Appeals affirmed Applegate's exceptional sentence. Applegate, 163 Wash.App. 460, 259 P.3d 311. Applegate then sought review from this court, alleging multiple errors. This court granted review on the public trial issue only and requested additional briefing as to whether any violation of Applegate's public trial right was de minimis. State v. Applegate, 176 Wash.2d 1032, 299 P.3d 19 (2013). The American Civil Liberties Union of Washington, Allied Daily Newspapers of Washington, Washington Newspaper Publishers Association, and Washington Coalition for Open Government joined in filing a brief as amici curiae in both cases.

Analysis

a. Bone–Club Analysis

¶ 9 In Wise and State v. Paumier, 176 Wash.2d 29, 288 P.3d 1126 (2012), this court solidified the role of the public trial right in the context of the voir dire phase of a trial. The public trial right is found in two sections of the Washington constitution: article I, section 22, which guarantees a criminal defendant a right to a “public trial by an impartial jury,” and article I, section 10, which guarantees that “[j]ustice in all cases shall be administered openly.” The public trial right applies to jury selection, including the individual questioning of prospective jurors, Wise, 176 Wash.2d at 11, 288 P.3d 1113, but the right is not absolute, Bone–Club, 128 Wash.2d at 259, 906 P.2d 325. A trial court may question potential jurors individually outside of the public's presence—thereby closing the courtroom—but only after considering the five Bone–Club factors⁷ on the record. Wise, 176 Wash.2d at 13, 288 P.3d 1113. Closure of the courtroom without this analysis is a structural error for which a new trial is the only remedy. Wise, 176 Wash.2d at 15, 288 P.3d 1113.

¶ 10 In Wise, the trial court initiated in-chambers questioning of 10 jurors but did not analyze the Bone–Club factors on the record. We reversed Wise's conviction, holding that the trial court violated his right to a public trial by implementing a closure without first engaging in a Bone–Club analysis.

¶ 11 Similar to Wise, the trial courts here did not perform the Bone–Club analysis on the record. In Frawley, the trial court made no mention of the Bone–Club factors. In Applegate, although the trial judge stated on the record that he had analyzed the Bone–Club factors and twice asked the courtroom if Applegate or any member of the public objected, he failed to articulate a compelling interest for the closure, weigh this compelling interest against any competing interests, or consider alternatives such that the closure was the least restrictive means of protecting any threatened interest and no broader than necessary.

¶ 12 The articulation of a compelling interest ensures that court proceedings are not closed merely for the sake of convenience as a matter of course. See Presley v. Georgia, 558 U.S. 209, 215, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010). Weighing this compelling interest against competing interests ensures that trial courts give due consideration to the interests furthered by maintaining an open proceeding, such as fostering public confidence in the system and the appearance of fairness. Considering alternatives to closure is imperative—even when neither party has offered an...