State v. Shearer

FILE
IN CLERK'S OFFICE
SUPREME COURT, STATE OF WASHINGTON

DATE SEP 2 5 Z014

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Petitioner, ) No. 86216-8
) (consolidated with
v. ) No. 87259-7)
)
GREGORY PIERCE SHEARER, ) En Bane
)
Respondent. )
)
)
STATE OF WASHINGTON, )
)
Petitioner, )
)
v. )
)
HENRY GRISBY III, ) Filed SEP 2 5 2014
)
Respondent. )
)

OWENS, J. -- Defendants have the constitutional right to a public trial.

WASH. CONST. art. I,§ 22. This foundational safeguard helps to ensure a fair trial,

deters misconduct and partiality, and provides accountability for our judicial system.

In 2012, this court reviewed a number of cases involving a defendant's constitutional
State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

right to a public trial. State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012); State v.

Paumier, 176 Wn.2d 29, 288 P.3d 1126 (2012); State v. Sublett, 176 Wn.2d 58, 292

P.3d 715 (2012). In particular, we considered cases in which jurors were individually

questioned in chambers rather than in public. See Wise, 176 Wn.2d at 7-8; Paumier,

176 Wn.2d at 32-33. We concluded that a defendant's right to a public trial applies to

the jury selection process but that jurors can be questioned in private if the trial court

finds that specific circumstances warrant closing the questioning to the public. Wise,

176 Wn.2d at 11-13; Paumier, 176 Wn.2d at 34-35. The trial court determines

whether closing the courtroom is appropriate by analyzing the criteria outlined in

State v. Bone-Club, 128 Wn.2d 254,258-59,906 P.2d 325 (1995). Ifthe trial court

fails to engage in that analysis, closing the questioning to the public violates the

defendant's right to a public trial. Wise, 176 Wn.2d at 12-13; Paumier, 176 Wn.2d at

35.

Our holdings in those 2012 cases control the outcome of the two cases we

consider today. In the unrelated trials of Henry Grisby III and Gregory Shearer, the

trial judges questioned a juror in private without making a finding that specific

circumstances warranted closing the questioning to the public. This was a violation of

both Grisby's and Shearer's right to a public trial.

The State asks us to overrule two key holdings from our 2012 cases on public

trial rights. First, the State asks that we overrule our holding that a defendant's failure

2
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No. 86216-8 (consolidated with No. 87259-7)

to object to a closure at trial does not constitute a waiver of his or her public trial

rights. Second, the State asks that we overrule our holding that public trial rights

violations are structural error and thus prejudice is presumed when a public trial rights

violation is shown. We will overrule our precedent only when it has been shown to be

incorrect and harmful. The State has not made such a showing. Therefore, we apply

the holdings from our 2012 cases here and find that the public trial rights of both

Shearer and Grisby were violated when a portion of juror questioning was closed to

the public without a finding that specific circumstances warranted the closure.

FACTS

State v. Shearer

Based on a violent domestic dispute with his girl friend, Shearer was charged

with felony harassment and fourth degree assault. During voir dire, juror 7 indicated

that she was a victim of and a witness to domestic violence but said she did not want

to talk about it. The judge asked if she would be more comfortable discussing it in

chambers, and she said yes. The trial judge asked if anyone present objected but did

not conduct a Bone-Club analysis. No one objected, and the parties went into

chambers for a seven-minute conference that was on the record. During the

conference, juror 7 disclosed that her grandson had been killed by his father in the

family home and that she felt her experience would affect her view of the case.

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No. 86216-8 (consolidated with No. 87259-7)

Defense counsel moved to dismiss juror 7 for cause. The State did not object, and the

juror was excused.

The jury ultimately found Shearer guilty on both charges. He appealed, raising

a number of claims, including that his public trial rights were violated when the court

questioned one of the jurors in chambers. The Court of Appeals agreed that his public

trial rights were violated and reversed his conviction without reaching the other

issues. State v. Shearer, noted at 162 Wn. App. 1007, 2011 WL 2120054, at *3. The

State petitioned this court for review of the public trial rights issue, which this court

granted. State v. Shearer, 176 Wn.2d 1031, 299 P.3d 19 (2013). The case was

consolidated with State v. Grisby, No. 87259-7.

State v. Grisby

Grisby was charged with delivery of a controlled substance. During voir dire

for his trial, a question arose as to whether juror 18 had a prior criminal conviction

that would disqualify him from jury service. The trial judge asked the attorneys and

Grisby to come into chambers for a conference with juror 18. The judge did not ask

whether anyone objected and did not conduct a Bone-Club analysis prior to the in-

chambers conference. The conference lasted about five minutes, and there is no

record of what occurred during the meeting. Subsequently, the defense used a

4
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No. 86216-8 (consolidated with No. 87259-7)

peremptory challenge on juror 18. 1 The trial proceeded, and Oris by was ultimately

convicted.

Grisby appealed his conviction, contending that his article I, section 22 right to

a public trial was violated when the trial court conducted a portion of voir dire in

chambers without first engaging in a Bone-Club analysis. He also claimed that the

closure violated article I, section 10, which requires that "[j]ustice in all cases shall be

administered openly." WASH. CONST. art. I, § 10. The Court of Appeals reversed the

conviction on the basis of his article I, section 22 claim but did not reach his article I,

section 10 claim. State v. Grisby, noted at 167 Wn. App. 1005, 2012 WL 763116, at

*1-3. The State petitioned this court for review, which this court granted. State v.

Grisby, 176 Wn.2d 1031, 299 P.3d 19 (2013).

ISSUES

1. Can Shearer and Grisby raise the public trial rights issue on appeal even

though they did not object at trial?

2. Were these courtroom closures de minimis?

ANALYSIS

Under the Washington State Constitution, defendants have the right to a public

trial. WASH. CONST. art. I, § 22. However, this right is not absolute. Wise, 176

1
The written transcript erroneously references juror 28, but both the petitioner and the
respondent agree that the audio is clear that this peremptory challenge actually refers to
juror 18 by both name and number.

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No. 86216-8 (consolidated with No. 87259-7)

Wn.2d at 9. There are often competing rights and interests that sometimes justify

limiting public access to a trial. Id. Trial courts balance these competing interests by

considering five criteria identified in Bone-Club. 128 Wn.2d at 258-59. Under Bone-

Club, trial courts must (1) "name the right that a defendant and the public will lose by

moving proceedings into a private room;" (2) "name the compelling interest that

motivates closure;" (3) "weigh these competing rights and interests on the record;" (4)

"provide the opportunity for objection; and" (5) "consider alternatives to closure,

opting for the least restrictive." Wise, 176 Wn.2d at 10.

When a trial court properly engages in a Bone-Club analysis prior to limiting

public access to a trial, we review the court's decision for abuse of discretion. I d. at

11. However, closing part of a trial to the public without considering the Bone-Club

factors is error. Id. at 13. Such a violation of the public trial right is structural error

presumed to be prejudicial. Id. at 14. And as we have held, failing to object at trial

does not constitute a defendant's waiver of the public trial right. I d. at 15. In this

case, the State asks us to reconsider these last two holdings.

1. Shearer and Grisby Can Raise the Public Trial Rights Issue on Appeal Even
Though They Did Not Object at Trial

Our precedent is clear that defendants can raise public trial rights on appeal

even if they did not object to a courtroom closure at trial. Id.; Paumier, 176 Wn.2d at

36-37; State v. Strode, 167 Wn.2d 222,229,217 P.3d 310 (2009); State v. Easterling,

157 Wn.2d 167, 173 n.2, 137 P.3d 825 (2006); see State v. Brightman, 155 Wn.2d

6
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No. 86216-8 (consolidated with No. 87259-7)

506, 517, 122 P.3d 150 (2005) ("[T]he defendant's failure to lodge a

contemporaneous objection at trial did not effect a waiver of the public trial right.");

Bone-Club, 128 Wn.2d at 257 ("Defendant's failure to object contemporaneously did

not effect a waiver."). We base this rule on State v. Marsh, 126 Wash. 142, 217 P.

705 (1923). In Marsh, the defendant's trial was held entirely in private; on appeal, the

defendant alleged a violation of his right to a public trial. !d. at 142-43. The court

approvingly cited cases from other state Supreme Courts that concluded that public

trial rights can be raised for the first time on appeal, and concluded the same. !d. at

146-47 (quoting State v. Hensley, 75 Ohio St. 255, 266, 79 N.E. 462 (1906); People v.

Yeager, 113 Mich. 228,229-30,71 N.W. 491 (1897)).

The State argues that the court should overturn the rule allowing defendants to

raise public trial rights for the first time on appeal. We will not overturn an

established rule absent a clear showing that the rule is incorrect and harmful. In re

Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). The

State argues that this rule meets both criteria. First, the State contends that basing the

rule on Marsh is incorrect because Marsh predated RAP 2.5 and because Marsh was a

unique case where the entire trial was held in private and the defendant did not have

an attorney. Second, the State contends that allowing the defendant to raise public

trial rights for the first time on appeal is harmful because the trial court does not have

the opportunity to correct the error, resulting in unnecessary retrial costs.

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No. 86216-8 (consolidated with No. 87259-7)

The majority of this court has repeatedly rejected these arguments, most

recently in 2012. In a trio of cases released on the same day, a minority of the court

made the same arguments the State makes here. Sublett, 176 Wn.2d at 123-28

(Madsen, C.J., concurring), 150-56 (Wiggins, J., concurring in result); Paumier, 176

Wn.2d at 52-56 (Wiggins, J., dissenting); Wise, 176 Wn.2d at 25 (J.M. Johnson, J.,

dissenting). However, in Wise and Paumier, the majority of this court rejected those

arguments. Wise, 176 Wn.2d at 15; Paumier, 176 Wn.2d at 36-37. Similarly, in

Sublett, a majority of the court did not sign the opinions authored by justices who

made the same arguments the State makes here. See 176 Wn.2d at 123-28 (Madsen,

C.J., concurring), 150-56 (Wiggins, J., concurring in result).

Instead, the court has held that requiring a contemporaneous objection from a

defendant is tantamount to holding that a defendant's silence in the face of a

courtroom closure constitutes a waiver of his or her public trial rights. Wise, 176

Wn.2d at 15. Waiver of a constitutional right must be knowing, voluntary, and

intelligent. See State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994) (and

cases cited therein). As we have held, "[A]n opportunity to object holds no 'practical

meaning' unless the court informs potential objectors of the nature of the asserted

interests." Bone-Club, 128 Wn.2d at 261 (quoting Seattle Times Co. v. Ishikawa, 97

Wn.2d 30, 39, 640 P.2d 716 (1982)). There is no basis for concluding that simply

8
State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

failing to object to a courtroom closure somehow demonstrates a knowing, voluntary,

and intelligent waiver of a defendant's public trial rights.

Furthermore, if trial courts properly apply the Bone-Club structure that this

court has put in place, this issue is moot. As we have held, it is the trial court's

responsibility, not the defendant's, to ensure that the Bone-Club factors are considered

prior to a courtroom closure. !d. at 261. Requiring the defendant to object to a

courtroom closure would shift that burden away from the trial court, in conflict with

our precedent.

Ultimately, the State does not present any new arguments regarding the existing

rule. Absent a showing that our existing rule is incorrect and harmful, we will not

overturn it. To do otherwise would undermine the purpose of stare decisis-to

provide stability within the common law. See Stranger Creek, 77 Wn.2d at 653.

2. These Courtroom Closures Were Not De Minimis

"[I]t is well settled that the right to a public trial also extends to jury selection."

Brightman, 155 Wn.2d at 515. Thus, privately questioning jurors during voir dire

constitutes a trial closure, and a trial court is required to consider the Bone-Club

factors prior to such questioning. Wise, 176 Wn.2d at 11-12. Here, the State

acknowledges that the closures occurred in both cases but argues that the closures

were de minimis. We reject this conclusion because it would conflict with our

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State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

precedent that public trial rights violations are structural error and not subject to a

harmlessness standard.

In 2012, we held that "unless the trial court considers the Bone-Club factors on

the record before closing a trial to the public, the wrongful deprivation of the public

trial right is a structural error presumed to be prejudicial." !d. at 14. That is because

such error "'affect[s] the framework within which the trial proceeds, rather than

simply an error in the trial process itself."' !d. at 13-14 (alteration in original)

(quoting Arizona v. Fulminante, 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d

302 (1991)). We recognized that "any one deprivation of the public trial right will not

likely devastate our system of justice or even necessarily cause a particular trial to be

unfair (though of this latter part we can never be sure)" but that "letting a deprivation

of the public trial right go unchecked affects 'the framework within which the trial

proceeds."' !d. at 17-18 (quoting Fulminante, 499 U.S. at 310). Furthermore,

structural errors are presumed prejudicial because "'it is often difficult[t] to asses[s]

the effect of the error."' !d. at 17 (alterations in original) (internal quotation marks

omitted) (quoting United States v. Marcus, 560 U.S. 258, 263, 130 S. Ct. 2159, 176 L.

Ed. 2d 1012 (2010)). It is especially hard to make a showing of harm resulting from

public trial rights violations because the consequences are difficult to prove in any

particular case. !d. Because of the nature of this type of error, we have held that

public trial rights violations are "not subject to harmlessness analysis." !d. at 14. We

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State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

do not require defendants to show prejudice from public trial rights violations because

"it is impossible to show whether the structural error of deprivation of the public trial

right is prejudicial." !d. at 19.

This standard forecloses the possibility of de minimis violations. 2 In theory, a

de minimis violation would involve a courtroom closure so brief that it did not result

in prejudice to the defendant. But because of the nature of public trial rights, it is

difficult (and often impossible) to show harm from individual violations. Thus,
'
recognizing de minimis violations based on the lack of prejudice to the defendant

would conflict with our precedent that public trial rights violations are structural

errors and not subject to a harmlessness analysis. On this basis, we reject the State's

argument that the closures in these two cases did not violate the defendants' public

trial rights because they were de minimis.

However, we note that "not every interaction between the court, counsel, and

defendants will implicate the right to a public trial, or constitute a closure if closed to

the public." Sublett, 176 Wn.2d at 71 (plurality opinion). The public trial right

attaches only to proceedings that implicate the core values that the right serves to

protect. !d. at 72-73 (holding that an in-chambers meeting to resolve a jury question

did not implicate the public trial right). And some minor exclusions of the public

2 Even prior to the court's 2012 holding that public trial rights violations constitute
structural error, "a majority of this court [had] never found a public trial right violation to
be de minimis." Easterling, 157 Wn.2d at 180 (making this observation in 2006).

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State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

from trial proceedings will not constitute a public trial rights violation because they do

not constitute a courtroom closure. See id. at 71-73; see also State v. Lormor, 172

Wn.2d 85, 87, 257 P.3d 624 (2011) (holding that the exclusion of the defendant's

young daughter from court proceedings was not a courtroom closure). Thus, many of

the closures that may appear de minimis will not actually result in public trial rights

violations under our jurisprudence.

Nonetheless, to the extent that the State argues that the closure in Grisby's case

was for a "ministerial or administrative matter," Suppl. Br. ofPet'r (Grisby) at 19, and

thus did not implicate public trial rights, we disagree. The general purpose of the in-

chambers discussion was to determine whether the juror had a felony conviction, but

there is no record of what occurred in chambers. This situation is almost identical to

Paumier, where the in-chambers discussions included personal health issues, criminal

history, and familiarity with the defendant or the crime. 176 Wn.2d at 33. In that

case, the court held that "individually questioning potential jurors is a courtroom

closure requiring a Bone-Club analysis" and that "[f]ailure to conduct the Bone-Club

analysis is structural error warranting a new trial because voir dire is an inseparable

part of trial." Id. at 35. Paumier is controlling, and thus the trial court was required to

conduct a Bone-Club analysis prior to closing the courtroom.

In addition to violating his public trial rights under article I, section 22, Grisby

claims that the courtroom closure violated the public's right to open courts under

12
State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

article I, section 10. The State contends that Grisby does not have standing to assert a

violation under article I, section 10. Because we conclude that Grisby prevails on his

public trial rights claim under article I, section 22, we do not reach the article I,

section 10 issue.

CONCLUSION

It is settled law that public trial rights violations can be raised for the first time

on appeal, and the State has not shown that rule to be incorrect or harmful. Here, the

public trial rights of both Shearer and Grisby were violated when a portion of jury

selection occurred in chambers without a Bone-· Club analysis. A majority of this court

has never found a closure to be de minimis, and these closures were no exception. To

call these closures de minimis would essentially require the defendants to show

prejudice, in direct conflict with our precedent that public trial rights violations are

structural error that are not subject to a harmlessness standard. We apply our recent,

controlling precedent and affirm the Court of Appeals.

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State v. Shearer/State v. Grisby
No. 86216-8 (consolidated with No. 87259-7)

WE CONCUR:

14
State v. Shearer/State v. Grisby, III, No. 86216-8 (consolidated with No. 87259-7)
(Gordon McCloud, J., concurring)

No. 86216-8

GORDON McCLOUD, J. (concurring)-! agree with the lead opinion that

defendants Shearer and Grisby did not affirmatively waive their public trial rights,

and that a new trial is therefore warranted in both cases. I write separately because

I respectfully disagree with the lead opinion's suggestion that a defendant's waiver

will not be effective unless the trial court also conducts a Bone-Club 1 analysis on the

record. See lead opinion at 9. As I argued in my concurrence/dissent in the

consolidated cases State v. Frawley and State v. Applegate (Frawley), No. 80727-2

(Wash. Sept. 25, 2014), a defendant can affirmatively waive his or her public trial

right without the trial court engaging in a Bone-Club analysis. To be sure, the waiver

must be affirmative and knowing to be effective. And a waiver cannot be

accomplished by mere silence. But a defendant will be held to his or her waiver if

it meets these prerequisites, even if the trial court failed to conduct a Bone-Club

analysis. In Frawley, for example, I found the record was sufficient to support a

1
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
1
State v. Shearer/State v. Grisby, III, No. 86216-8 (consolidated with No. 87259-7)
(Gordon McCloud, J., concurring)

waiver where the defendant engaged in a discussion with his counsel, after which

his counsel stated, "For the record, I have talked it over with Mr. Applegate. He has

no objection and I have no objection to going back into chambers and asking these

questions without the public hearing." Second Am. Verbatim Report of Proceedings

(VRP Applegate) (Aug. 10, 2009) at 119.

By contrast, here, the record shows no similar affirmative waiver of the public

trial right by the defendant. During voir dire, a juror was reluctant to answer personal

questions in public. The following colloquy ensued:

THE COURT: Would you be more comfortable if counsel and
you and I were to meet in chambers so you can discuss it with us there?

JUROR NO.7: Yes.

THE COURT: Is there anyone in this courtroom who feels the
same? Okay.

Is this [sic] anyone in this courtroom who would have any
objection if we leave the courtroom for a moment? If the court reporter,
counsel, and myself, and the defendant went into chambers to ask some
questions of Juror Number 7 in private?

Is there anyone here who would object at all to having that take
place in that manner?

Counsel, why don't we take a few moments and ask Juror 7 to
join us in a moment?

(Whereupon the following proceedings were had in chambers).

2
State v. Shearer/State v. Grisby, III, No. 86216-8 (consolidated with No. 87259-7)
(Gordon McCloud, J., concurring)

Verbatim Report of Proceedings (VRP Shearer) (Jan. 12, 2010) at 38-39. The trial

court did not mention the public trial right, and neither the defendant nor his attorney

made any statement on the record regarding waiver of that right. This record is very

different from that in Applegate's case, where the defendant's attorney, after

consulting with the defendant, expressly stated that the defendant did not object to

proceeding "without the public hearing." VRP Applegate (Aug. 10, 2009) at 119.

A defendant can affirmatively waive his or her right to raise a courtroom

closure issue on appeal or collateral attack. A proper affirmative waiver will bind

the defendant even if the trial court does not conduct a Bone-Club analysis, as I

explained in my opinion in Frawley. But the records in Shearer and Grisby show

no affirmative waiver. 2 I therefore concur with the result reached by the lead opinion

in this case.

2
There is no question that the record in Grisby fails to show waiver. I agree with
the lead opinion and Justice Gonzalez's concurrence/dissent that a new trial is required in
Grisby's case.
3
State v. Shearer/State v. Grisby, III, No. 86216-8 (consolidated with No. 87259-7)
(Gordon McCloud, J., concurring)

4
State v. Shearer/State v. Grisby (Gonzalez, J., concurring in part and dissenting in part)
No. 86216-8 (consolidated with No. 87259-7)

No. 86216-8

GONZALEZ, J. (concurring in part and dissenting in part)-I agree with much in

the court's lead opinion today. Our constitution requires open, public trials. WASH.

CONST. art. I, §§ 10, 22. Absent other constitutionally compelling purposes, such as a

defendant's right to a fair trial or a juror's right to privacy and dignity, courtrooms

must be open and justice must be administered openly. !d.; State v. Lormor, 172

Wn.2d 85, 93-94, 257 P .3d 624 (20 11 ). A violation of article I, sections 10 of our

state constitution is a reversible error in a criminal trial. State v. Wise, 176 Wn.2d 1,

16, 288 P.3d 1113 (2012) (citing State v. Easterling, 157 Wn.2d 167, 181, 137 P.3d

825 (2006)); State v. Marsh, 126 Wash. 142, 147, 217 P. 705 (1923). But our

constitution does not demand we vacate convictions for every error, no matter how

small. Nor should we.

From our very beginnings, Washington has rejected the common law rules

under which even trivial trial error could result in reversal. See, e.g., Ex parte

Frederich, 149 U.S. 70, 74-75, 13 S. Ct. 793, 37 L. Ed. 653 (1893) (citing The King v.

Bourne, (1837) 7 Adol. & El. 58 (K.B.)). Instead, it has been the law here since

1
State v. Shearer/State v. Grisby (Gonzalez, J., concurring in part and dissenting in part)
No. 86216-8 (consolidated with No. 87259-7)

before our constitution was written that "court[ s] shall, in every stage of an action,

disregard any error or defect in pleadings or proceedings, which shall not affect the

substantial rights of the adverse party; and no judgment shall be reversed or affected

by reason of such error or defect." LAWS OF 1854 § 71, at 144 (currently codified at

RCW 4.36.240). Violation of State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325

(1995) is error, but not, in my view, structural error. See, e.g., State v. Momah, 167

Wn.2d 140, 150-52,217 P.3d 321 (2009). But see Wise, 176 Wn.2d at 13-15.

We should not turn Bone-Club into a shibboleth or into a magic incantation that

transforms the constitutional complexion of a closure. It is merely a tool. It is a very

useful tool for determining whether a courtroom may be closed consistent with our

constitution, but not the only tool we have. We have our eyes. We have our

judgment. We have our constitution itself.

In my view, a courtroom can be closed without violating the open courts

provisions of our constitution when it is clear from the record that a compelling reason

justified the closure, those present had the opportunity to object, the closure was the

least restrictive means available to protect the compelling interests, the reasons to

close the court outweighed the reasons not to, and the closure was no broader than

necessary. Momah, 167 Wn.2d at 151-52; Bone-Club, 128 Wn.2d at 258-59.

I agree with this court and the court below that Grisby's conviction must be

reversed. There is simply nothing in the record or our general experience that shows a

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State v. Shearer/State v. Grisby (Gonzalez, J., concurring in part and dissenting in part)
No. 86216-8 (consolidated with No. 87259-7)

compelling reason justified taking the juror in question back into chambers. Nor does

the record show that the judge gave those present the opportunity to object, that the

closure was the least restrictive means available to protect some compelling interests,

that the reasons to close the court outweighed the reasons not to, or that the closure

was no broader than necessary.

The same is not true in Shearer's case. In Shearer's case, the compelling

purpose is apparent: the potential juror's privacy and her unwillingness to discuss her

family's tragedies in open court. See Bone-Club, 128 Wn.2d at 258. Exploring her

experience with that sad tragedy was necessary to protect Shearer's right to an

impartial jury. !d. The judge gave those present the opportunity to object. !d. It is

apparent that the closure was the least restrictive means available to protect that

compelling interest. !d. at 258-59. Our constitution does not demand that those called

to serve on a jury recount their worst memories in open court. !d. at 259. The closure

was no broader than necessary to protect both Shearer's right to an impartial jury and

the juror's right to dignity and privacy. 1

I respectfully concur in part and dissent in part.

I am inclined to agree with the concurrence that defendants who knowingly and affirmatively
1

waive their public trial rights may not raise the issue on review. No such waiver appears here.

3
State v. Shearer/State v. Grisby (Gonzalez, J., concurring in part and dissenting in part)
No. 86216-8 (consolidated with No. 87259-7)

4
State v. Shearer (Gregory Pierce)
consolidated with State v. Grisby, Ill (Henry)
(Wiggins, J., dissenting)

No. 86216-8
(consolidated with No. 87259-7)

WIGGINS, J. (dissenting)-The lead opinion adheres to flawed precedent to

affirm the Court of Appeals and reverse the convictions in these cases. First, it holds

that Gregory Shearer and Henry Grisby Ill can raise a public trial violation on appeal

even though they did not object at trial. Lead opinion at 6. Second, it holds that a

public trial right violation is structural error so there is no such thing as a de minimis

violation. /d. at 9-11. I respectfully dissent.

I agree with Justice Gonzalez that "our constitution does not demand we vacate

convictions for every error, no matter how small." Concurrence/dissent at 1. Thus,

like Justice Gonzalez, I would affirm Shearer's conviction, but I would do so

specifically because Shearer had a chance to object but failed to do so and there has

been no showing of actual prejudice arising from the alleged error. In addition, I write

separately because I would affirm the conviction in Grisby for the same reasons-the

alleged violation was not structural error, and Grisby did not object to the closures at

trial, nor has he satisfied the requirements of RAP 2.5.

As I explain in my dissent in State v. Paumier, 176 Wn.2d 29, 45-48, 288 P.3d

1126 (2012) (Wiggins, J. dissenting), structural error analysis is appropriate only when

applied to extraordinary circumstances that render a criminal trial fundamentally unfair

or an unreliable vehicle for determining guilt or innocence. When a public trial violation
No. 86216-8
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(Wiggins, J., dissenting)

is not structural error and a defendant does not object, RAP 2.5(a)(3) requires the

defendant to show actual prejudice before he or she is entitled to relief.

Here, the errors were not structural. In both cases, counsel and the judge met

with a single juror in chambers to discuss potentially sensitive issues. Thus,

defendants, through their counsel, had the opportunity to question and excuse jurors

for cause or peremptorily. Indeed, following the interviews, Shearer's defense counsel

exercised a for-cause challenge to excuse juror 7 and Grisby's defense counsel

exercised a peremptory challenge to excuse juror 18. The court has never explained

why in-chambers questioning of a single juror on sensitive subjects falls into the class

of constitutional errors that infect the entire trial, such as the complete denial of

counsel, a coerced confession, a biased judge, or denial of self-representation at trial.

It is even more difficult to see how the mere failure to conduct a Bone-Ciub 1 analysis

at trial similarly infects the entire trial process or deprives defendants of "'basic

protections"' such that "'no criminal punishment may be regarded as fundamentally

fair."' Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)

(quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460

(1986)). This is especially true when it appears that the defendant actually benefited

from the questioning. Thus, I would hold that neither error was structural.

In addition, neither Shearer nor Grisby objected to the in-chambers questioning

at trial and there is no indication that the limited questioning adversely impacted the

1 State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).

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No. 86216-8
(consolidated with No. 87259-7)
(Wiggins, J., dissenting)

proceedings. We should not presume prejudice where, had the trial judge performed

a Bone-Club analysis, there is every reason to believe that the trial court would have

avoided voir dire in chambers or would have evaluated the proposed in-chambers

proceeding under Bone-Club and concluded that it satisfied the Bone-Club factors. In

either case, the conviction would almost certainly have been affirmed. Indeed, the

voir dire process used by the trial court in these cases is similar to the process used

in many Washington courts and the process endorsed in Press-Enterprise Co. v.
Superior Court, 464 U.S. 501, 512, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984 ), wherein

the United States Supreme Court held that the jury selection process must be open

but that when dealing with sensitive matters, limited questioning could be conducted

on the record in chambers with counsel present.

We must never shrink from ordering a new trial when the violation of

fundamental constitutional rights has prejudiced a defendant. In re Pers. Restraint of

Morris, 176 Wn.2d 157, 179-80, 288 P.3d 1140 (2012) (Wiggins, J., dissenting). But,

if a defendant cannot show prejudice, we should not order a new trial. /d. Here,

defendants and their counsel failed to object at trial to the in-chambers questioning of

a single juror who, in both cases, was eventually dismissed by defense counsel. The

limited in-chambers voir dire in these cases was not structural error, and on appeal,

neither Grisby nor Shearer has shown any prejudice arising from the alleged closure.

Thus, I would reverse the Courts of Appeal in both cases and affirm the convictions.

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No. 86216-8
(consolidated with No. 87259-7)
(Wiggins, J., dissenting)

I dissent.

4