FILE
IN CLERK'S OFFICE
SUPREME COURT, STATE OF WASHINGTON
SEP 2 5 2014
DATE_ _ _ _.
,.., ....
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 80727-2
Petitioner, ) (consolidated with 86513-2)
)
v. ) EnBanc
) .
BRIAN WILLIAM FRAWLEY, )
)
Respondent. )
·)
STATE OF WASHINGTON, )
)
Respondent, }
)
v. )
)
RONALD EUGENE APPLEGATE, )
)
Petitioner. )
) Filed SEP 2 5 2014
C. JOHNSON, I.-These consolidated criminal cases involve whether a
defendant can waive his right to a public trial under article I, section 22 and/or
State v. Frawley, 80727-2 (consol. with 86513-2)
article I, section 10 of the Washington State Constitution. In State v. Frawley, 140
Wn. 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-Club 1 analysis. In State v. Applegate,
163 Wn. 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
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
1
State v. Bone-Club, 128 Wn.2d 254, 906 P.2d 325 (1995).
2
State v. Frawley, 80727-2 (consol. with 86513-2)
and counsel for both sides then interviewed 35 prospective jurors in chambers.
Eleven prospective jurors were stricken for cause.
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.
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 Wn. App. 713. The State
petitioned this court for review, and consideration of the petition was deferred
pending resolution of State v. Strode, 167 Wn.2d 222, 217 P .3d 310 (2009), and
State v. Momah, 167 Wn.2d 140, 217 P.3d 321 (2009), and then again pending
resolution of State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012). This court then
2
The court had addressed the entire venire the day before without excluding the public by
moving across the hall to a larger courtroom.
3
State v. Frawley, 80727-2 (consol. with 86513-2)
granted the petition for review. State v. Frawley, 17 6 Wn.2d 1030, 299 P .3d 19
(2013).
b. State v. Applegate
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.
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
3
The State indicated that there was one member of the public present in the courtroom. It
does not appear that this individual voiced an objection.
4
State v. Frawley, 80727-2 (consol. with 86513-2)
those factors[ 4J 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.
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
4
The court appeared to be referring to the five factors set out in Bone-Club.
5
Four jurors wished to speak privately regarding the questionnaire, but as the court
indicated, three were near the end of the panel and unlikely to be selected. The remaining juror
was near the beginning of the panel and was more likely to be selected.
6
The court stated multiple times throughout this discussion and at the in-chambers
questioning of the juror that the individual questioning had to and did remain a public
proceeding. During the in-chambers questioning, the judge stated for the record, "The inner and
outer door to my chambers are open. The courtroom door is closed, but this must remain a public
proceeding." RP (Aug. 10, 2009) at 120.
5
State v. Frawley, 80727-2 (consol. with 86513-2)
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.·
The Court of Appeals affirmed Applegate's exceptional sentence. Applegate,
163 Wn. App. 460. 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 Wn.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.
6
State v. Frawley, 80727-2 (consol. with 86513-2)
ANALYSIS
a. Bone-ClubAnalysis
In Wise and State v. Paumier, 176 Wn.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
'lj]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 Wn.2d at 11, but the right is not absolute, Bone-Club, 128 Wn.2d at 259. 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 factors 7 on the record. Wise, 176 Wn.2d at 13. Closure of the courtroom
without this analysis is a structural error for which a new trial is the only remedy.
Wise, 176 Wn.2dat 15.
7. These factors are (l) the proponent of closure must show a compelling interest, and
where that need is based on a right other than an accused's right to a fair trial, the proponent must
sha;w 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 mqst be the least restrictive means available for protecting the threatened
interests; (4) the court:ri:mst weigh the competing interests of the proponent of closure and the
public; and (5) the order must be no broader than necessary in application or duration. Bone-
Club, 128 Wn.2d at 258·59 (quoting Allied Daily Newspapers of Wash. v. Eikenberry, 121
Wn.2d 205,210, 848 P.2d 1258 (1993)).
7
State v. Frawley, 80727-2 (consol. with 86513-2)
In fiVise, the trial court initiated in-chambers questioning of 10 jurors but did
. ''
no~. analyze the Bone-Club faCtors on the record. We reversed Wise's conviction,
holding that the trial court violated his right to a publk trial by implementing a
closure without first engaging in a Bone-Club analysis.
s·imilar to T