State v. Frawley

• Decision Date: 13 September 2007
• Docket Number: No. 25043-1-III.,25043-1-III.
• Citation: 167 P.3d 593,140 Wn. App. 713
• Parties: STATE of Washington, Respondent, v. Brian W. FRAWLEY, Appellant.
• Court: Washington Court of Appeals

167 P.3d 593

140 Wn. App. 713

STATE of Washington, Respondent, v. Brian W. FRAWLEY, Appellant.

No. 25043-1-III.

Court of Appeals of Washington, Division 3.

September 13, 2007.

David N. Gasch, Gasch Law Office, Spokane, WA, for Appellant.

Kevin Michael Korsmo, Attorney at Law, Spokane, WA, for Respondent.

SWEENEY, C.J.

¶ 1 Our Supreme Court has made it clear that the trial of a criminal defendant may not be closed to the public absent a rigorous evaluation and balancing of a number of factors. State v. Bone-Club, 128 Wash.2d 254, 258-59, 906 P.2d 325 (1995). Here, the trial judge excluded the public by conducting a portion of the jury voir dire in chambers without waivers from either the defendant or anyone present in the courtroom. We accordingly reverse and remand for a new trial.

FACTS

¶ 2 Margaret Cordova disappeared during the early morning hours of January 17, 2004, in Spokane, Washington. Jerome Tanks, a friend and relative of Ms. Cordova, was the last person to see her alive. Ms. Cordova left his apartment between 2:00 a.m. and 2:30 a.m. on January 17. He assumed that she had returned to the apartment of other relatives within the same apartment complex. Ms. Cordova never arrived at the other apartment. Her boyfriend and her mother reported her missing on January 18, 2004.

¶ 3 A man who was collecting firewood north of Spokane discovered Ms. Cordova's body on February 22, 2004. Animals had eaten away much of the upper part of the body and little remained but the skeleton. Police found a ligature around her neck with one end secured to her right wrist.

¶ 4 The lower body from the hips to the feet was fairly intact; however, it was unclothed except for a pair of panties that was torn and hanging around her right leg. Ms. Cordova's ankles were tied by a blue drawstring from pajama bottoms she had been wearing.

¶ 5 Dr. Sally Aiken is the Chief Medical Examiner for Spokane County. She testified that it was impossible to determine exactly where or when Ms. Cordova died. Dr. Aiken could not determine whether the ligature around her neck was applied before or after she died. All of the soft tissue around Ms. Cordova's neck was gone. Dr. Aiken concluded that about 20 bruises on Ms. Cordova's lower body were inflicted before her death. She also concluded that the ligatures on Ms. Cordova's legs were tied before she was killed. The DNA¹ of the semen taken from Ms. Cordova's body matched Brian Frawley's DNA.

¶ 6 Mr. Frawley lived in an apartment complex in Spokane with his girl friend, Jessica Hensley, and her brother, Josh Hensley. Mr. Frawley occasionally used Ms. Hensley's Pontiac Grand Am car. Mr. Hensley worked at Northern Farms, which is located next to the area where Ms. Cordova's body was found. Ms. Hensley or Mr. Frawley often drove Mr. Hensley to work. The Washington State Patrol Crime Laboratory found fabric fibers on Ms. Cordova's sweatshirt and pajama bottoms consistent with fibers from the seat of the Pontiac Grand Am.

¶ 7 Mr. Hensley recalled that in either December or January, he, Mr. Frawley, and another friend smoked methamphetamine in the apartment after Ms. Hensley had gone to bed. Sometime between 10:00 and 12:00 p.m., Mr. Frawley left in Ms. Henley's Pontiac. He took the drugs and Ms. Hensley's cell phone with him. Mr. Hensley and his friend called the phone repeatedly because they wanted Mr. Frawley to bring the drugs back to the apartment. Mr. Frawley returned early the next morning. He was crying and upset. He reported that he had hit a girl with Ms. Hensley's car and buried her in the woods. Mr. Hensley checked the car but saw no damage.

¶ 8 Records for Ms. Hensley's cell phone showed a series of six short phone calls received between 10:00 p.m. on January 16 and 3:12 a.m. on January 17. Ms. Cordova disappeared during that time.

¶ 9 Police detectives interviewed Mr. Frawley. He acknowledged his relationship with Ms. Hensley and that he had access to her car. He denied knowing or ever having had sex with Ms. Cordova. He told the detectives that he did not kill Ms. Cordova.

¶ 10 The State charged Mr. Frawley with first degree felony murder. It alleged first or second degree rape or first or second degree kidnapping as the underlying felony.

¶ 11 Mr. Frawley testified at his trial. He said that he first met Ms. Cordova in July or August 2003. Ms. Cordova had been hitchhiking. Mr. Frawley gave her a lift to a shopping mall. He said that they smoked some marijuana together and then went their separate ways. Mr. Frawley said that he next saw Ms. Cordova on January 16, around 10:00 p.m. She was talking on a pay phone outside a fast food restaurant when she recognized him from their previous encounter. She approached him, and they decided to drive to a more private location to smoke methamphetamine. Mr. Frawley said that he and Ms. Cordova drove to a parking lot in back of a drug store where Ms. Cordova traded sex for methamphetamine.

¶ 12 Mr. Frawley said that he then drove her back to where he had picked her up because she was expecting someone to give her a ride. Mr. Frawley says he dropped her off and then drove to Wal-Mart to buy a headlight. He then headed home to the apartment where he arrived at approximately 11:20 p.m. A Wal-Mart manager testified that the store closed at 10 p.m. on January 16.

VOIR DIRE

¶ 13 At trial, the court divided the voir dire of the jurors into two parts. The first consisted of the voir dire of individual jurors (individual voir dire). This involved a short interview with each juror based on the answers he or she gave in response to a questionnaire. This was conducted in the judge's chambers outside the presence of the public or Mr. Frawley. It is undisputed that Mr. Frawley waived his right to be present at this phase of the trial. The court did not, however, ask whether Mr. Frawley would waive his constitutional right to have the public present. Nor did the court ask any of those in the courtroom whether they would waive the right to a public trial.

¶ 14 The court conducted the second phase of the voir dire (general voir dire) in the courtroom. The court, after appropriate inquiry of Mr. Frawley, concluded that Mr. Frawley knowingly and voluntarily waived his right to have the public present during this phase of the voir dire. The court did not request a waiver from any member of the public or press, if any were present.

¶ 15 The jury found Mr. Frawley guilty of first degree felony murder.

DISCUSSION

PUBLIC TRIAL

¶ 16 Mr. Frawley contends that the trial court denied him his constitutional right to a public trial by excluding the public during the voir dire phase of his trial. The State responds that Mr. Frawley freely waived any right to a public trial before the general voir dire of the jury panel. The State also argues that the individual voir dire was appropriately kept from public view because of GR 31(j),² which presumes the privacy of juror information. In any event, the State continues, the Bone-Club factors were satisfied so there was no violation of Mr. Frawley's rights.

¶ 17 Whether a defendant's right to a public trial has been violated is a question of law that we review de novo. State v. Brightman, 155 Wash.2d 506, 514, 122 P.3d 150 (2005). The right to a public trial is guaranteed by the state constitution. Article I, section 10 of the Washington State Constitution guarantees that justice in all cases shall be administered openly. And article I, section 22 of our constitution guarantees that "[i]n criminal prosecutions the accused shall have the right . . . to have a speedy public trial." These same rights are also guaranteed in the Sixth amendment to the United States Constitution.

¶ 18 Our state Supreme Court has recently held that these guarantees include "`the process of juror selection' which `is itself a matter of importance, not simply to the adversaries but to the criminal justice system.'" In re Pers. Restraint of Orange, 152 Wash.2d 795, 804, 100 P.3d 291 (2004) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984)); see Brightman, 155 Wash.2d at 517, 122 P.3d 150; State v. Easterling, 157 Wash.2d 167, 179-82, 137 P.3d 825 (2006).

¶ 19 The State argues that jury questionnaires are typically private documents and that access to them can only be acquired by petitioning the court upon a showing of good cause under GR 31(j). The State urges that this "private" status extends also to any question/response made in relation to that questionnaire. But, it offers no authority for this position. Further, the State's position is undercut by the fact that all discussion of the questionnaires was held on the record. Report of Proceedings at 66.

¶ 20 We can find no material distinction between individual voir dire of jurors in camera and general voir dire of the jury panel. Jury selection is jury selection. Orange, 152 Wash.2d at 804, 100 P.3d 291 (quoting Press-Enter., 464 U.S. at 505, 104 S.Ct. 819); see Brightman, 155 Wash.2d at 517, 122 P.3d 150; Easterling, 157 Wash.2d at 179-82, 137 P.3d 825.

¶ 21 Second, while court rules, specifically GR 31(j), or other considerations of jury privacy can and should influence the judge's decision to exclude the public from certain phases of a trial, they do not trump constitutional requirements that the trial be public. State v. Pelkey, 109 Wash.2d 484, 490, 745 P.2d 854 (1987) (court cannot sustain an interpretation of a court rule which contravenes the constitution); CrRLJ 1.1 ("These rules shall not be construed to affect or derogate from the constitutional rights of any defendant.").

¶ 22 In this case, there was no discussion one way or the other about excluding the public from the individual voir dire. And "[a] waiver is the intentional relinquishment . . . of a known right or privilege." State v. Sweet, 90 Wash.2d 282, 286, 581 P.2d 579 (1978). Here, Mr. Frawley was never presented with an opportunity to waive his right to...