State v. Herron

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, ) No. 89571-6
)
Respondent, )
) En Bane
v. )
)
JERRY ALLEN HERRON, )
) Filed AUG 2 0 2015
Petitioner. )
_________________________ )
FAIRHURST, J.-We must decide whether Jerry Allen Herron waived his

right to a public trial and, if so, whether he may later assert the public's right to an

open proceeding. The Court of Appeals affirmed Herron's conviction, holding that

Herron waived his public trial right and that he lacked standing to assert the rights

of the general public. We affirm.

I. FACTS

Herron was charged with rape in the first degree while armed with a deadly

weapon for sexually assaulting an acquaintance at knifepoint in his car. Roughly a

week and a half before trial, the trial court held an initial readiness hearing where it

informed the parties that it typically used a jury questionnaire in sexual assault cases
State v. Herron, No. 89571-6

to discover sensitive information that might require questioning jurors individually.

The court explained that in light of recent appellate court decisions, the practice of

questioning jurors in chambers conflicted with Herron's public trial right. Thus, the

court stated that "if there is any objection, I can't -- follow that procedure--." 1

Verbatim Report of Proceedings (VRP) at 69 (June 8, 2007). Defense counsel

indicated, "We certainly don't object to that." Id.

The prosecuting attorney advised that Herron would need to affirmatively

waive his right to a public trial on the record in order to question jurors in chambers.

Alternatively, the prosecuting attorney suggested that the court could question

individual jurors in a public setting with the other jurors waiting in a separate room.

Defense counsel responded that he would not object and that "if we're looking for

an affirmative waiver of a public examination of these individual jurors, Mr. Herron

and I are present, we're certainly willing to waive that. ... I think that's going to

bear far more fruit than just simply a voir dire situation." I d. at 70.

At this point, the court inquired whether Herron understood the conversation

and Herron replied that he did, expressly agreeing with the idea of conducting

individual voir dire in the privacy of the judge's chambers. The court again explained

the procedure and the rationale behind questioning certain jurors in chambers about

their experience with sexual assault, ultimately advising Herron that whether jurors

would be questioned in chambers or in open court was "pretty much up to you." Id.

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at 72. The court declined to make a decision at that hearing and instructed Herron to

further discuss the matter with his attorney.

At a pretrial hearing the following week, the court revisited the issue. Defense

counsel advised the court that he had discussed the matter with Herron, who was

willing to waive his right to a public trial in order to question certain jurors privately

in chambers. The court then engaged in an extensive colloquy with Herron.

THE COURT: All right. Mr. Herron, you understand you have a
right to a public trial, where no one other than perhaps the witnesses are
excluded from the courtroom, and where -- when the jury questioning
takes place, you have a right to have anybody that wants to be here
present for that process. Do you understand that fully?

DEFENDANT: Yes.

THE COURT: And by the same token, if you want to waive that
right so that jurors will know that if they respond positively to some of
these questions about things like have they ever been accused of a sex
offense or been a victim of a sex offense or an unwanted sexual
touching, have a close friend or family member -- we discussed last
week, very often individuals are very reluctant to disclose those things,
and particularly to disclose those things if they know they're going to
be talked about in front of, well, for instance, 50 other jurors and other
members of the public.

DEFENDANT: Yes, sir.

1 VRP at 104-05 (June 15, 2007). The court then reiterated that the decision was

completely up to Herron. Herron expressed that he preferred to question these jurors

in chambers. The court then verified whether Herron had spoken to his counsel about

the matter, and Herron assured the court that he had. The court again asked Herron

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if he was sure that he wanted to proceed with the closure, and Herron again

responded that he was.

At this point, the court turned to the prosecuting attorney for input, who

suggested that Herron be given the option of having jurors interviewed on sensitive

topics in an open setting but away from other jurors, "in an atmosphere that is open

to the public, so it would comport with the defendant's right to a public trial." Id. at

106. The court presented this option to Herron, but Herron again stated that he

preferred to "have it done not in public" to avoid jurors from being "influenced by

other people." Id. at 108.

Based on these extensive colloquies, the trial court found that Herron made a

knowing, voluntary, and intelligent waiver of his public trial right. Defense counsel

then stated that Herron would be willing to sign a written waiver to that effect, but

it does not appear that one was ever executed.

Three days later, the court began voir dire. The parties met briefly in chambers

to decide which jurors would require individual questioning based on their responses

to juror questionnaires. The court then called these jurors into chambers, and all

parties participated in the questioning. Four jurors were excused for cause as a result

of the individual juror questioning.

A jury was eventually empaneled, and Herron was found guilty of first degree

rape while armed with a deadly weapon. The Court of Appeals affirmed Herron's

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conviction. State v. Herron, 177 Wn. App. 96,318 P.3d 281 (2013). We granted

review. State v. Herron, 182 Wn.2d 1001,342 P.3d 326 (2015).

II. ISSUES

1. Did Herron waive his right to a public trial?

2. Does Herron have standing to assert the general public's right to the
open administration of justice?

III. ANALYSIS

Article I, section 22 of the Washington Constitution guarantees a criminal

defendant the right to a public trial. This public trial right extends to the questioning

of individual jurors in chambers. State v. Momah, 167 Wn.2d 140, 151-52,217 P.3d

321 (2009). Before a courtroom may be closed, the trial court must engage in a five-

factor analysis commonly referred to as the Bone-Club analysis. State v. Bone-Club,

128 Wn.2d 254, 259-60, 906 P.2d 325 (1995).

It is undisputed that the courtroom here was closed when individual jurors

were questioned in chambers. Moreover, the record indicates that the trial court did

not expressly engage in a Bone-Club analysis. The resolution of this case thus

depends on whether Herron validly waived his public trial right and, if so, whether

Herron may then assert standing on behalf of the general public. 1

1
We typically engage in a three-step analysis to determine whether there has been a
violation of the public trial right. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). But
the issue before us now is not whether there has been a violation of the public trial right but, rather,
whether Herron waived his ability to assert such a violation on appeal.

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A. Herron knowingly, voluntarily, and intelligently waived his public trial right

We review whether a defendant waived a constitutional right de novo. State

v. Robinson, 171 Wn.2d 292, 301, 253 P.3d 84 (2011). In general, the waiver of a

constitutional right must be made knowingly, voluntarily, and intelligently. State v.

Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996). But waivers of different

constitutional rights meet this standard in different ways. "The validity of any waiver

of a constitutional right, as well as the inquiry required by the court to establish

waiver, will depend on the circumstances of each case." State v. Stegall, 124 Wn.2d

719, 725, 881 P.2d 979 (1994).

Turning to our public trial jurisprudence, two relevant principles emerge and

define the contours of a valid waiver. First, mere silence is not sufficient to constitute

waiver. State v. Wise, 176 Wn.2d 1, 15, 288 P.3d 1113 (2012) (defendant does not

waive right to a public trial by failing to object). Rather, the defendant must be

provided with a meaningful opportunity to object. For instance, in Bone-Club, 128

Wn.2d at 261, we held that the trial court's "summary closure" deprived the

defendant of a meaningful opportunity to object. We stated that "an opportunity to

object holds 'no practical meaning' unless the court informs potential objectors of

the nature of the asserted interests." Id. (quoting Seattle Times Co. v. Ishikawa, 97

Wn.2d 30, 39, 640 P.2d 716 (1982)). We similarly acknowledged in State v.

Easterling, 157 Wn.2d 167, 176 n.8, 137 P.3d 825 (2006), that a defendant does not

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waive his ability to challenge an improper closure on appeal by failing to lodge a

contemporaneous objection. Notably, we faulted the trial court for failing to

affirmatively provide the defendant with an opportunity to object.Jd.

Second, a knowing, voluntary, and intelligent waiver of the public trial right

would not require on-the-record advice as to the consequences of a waiver but,

rather, may be obtained through "an affirmative and unequivocal personal

expression of waiver" that the defendant understands his right and voluntarily

chooses to waive it. State v. Frawley, 181 Wn.2d 452,461-62, 334 P.3d 1022 (2014)

(plurality opinion). This may be achieved through a written waiver or "an equivalent

colloquy that satisfies this standard." ld. at 462.

While these factors are not exhaustive, they permit us to resolve the case

before us. There may be other factors in any given case that would establish that a

waiver was or was not knowing, voluntary, and intelligent. We must address those

factors as they arise. Stegall, 124 Wn.2d at 725 (validity of waiver "will depend on

the circumstances of each case").

It is readily apparent that this case does not present an instance of waiver by

silence. Rather, the trial court provided Herron with several meaningful

opportunities to object. Roughly a week and a half before trial, the court advised

Herron that it would not question individual jurors in chambers if Herron objected

and the State presented an alternative to closure. Although both defense counsel and

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Herron related that they preferred to have individual juror questioning conducted in

chambers, the trial court instructed Herron to discuss the issue further with defense

counsel and postponed any decision. One week later, the court revisited the topic

again and stated to Herron that "it is totally your decision as to how [voir dire] is

handled" and again provided Herron with an alternative option to closure. 1 VRP at

105 (June 15, 2007). Herron had several meaningful opportunities to object but did

not do so.

Rather than objecting, the record reflects that Herron affirmatively and

unequivocally waived his right to a public trial. The trial court advised Herron of his

right to a public trial on several occasions. In response, Herron consistently and

repeatedly stated that he waived his public trial right in order to examine prospective

jurors about sensitive matters in chambers. 2 He explained that he preferred jurors

"not be influenced by other people" and that in-chambers questioning "would be

more appropriate." I d. at 108. Defense counsel agreed that "an examination in

private in your chambers" would "bear far more fruit than just simply a voir dire

situation." 1 VRP at 70 (June 8, 2007). Herron also expressly rejected an alternative

to closure, favoring individual questioning of jurors in chambers instead. The trial

2
This case presents a very clear example of a public trial waiver due in part to the sheer
repetition by which Herron expressed his desire to waive his public trial right. We note that a
waiver may be valid without the same degree of repetition that exists in this case; however, we
must analyze every instance of waiver on a case-by-case basis. Stegall, 124 Wn.2d at 725.

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court eventually found that Herron made a knowing, voluntary, and intelligent

waiver based on these extensive colloquies from two separate hearings. Defense

counsel even indicated that Herron was "willing to sign a written waiver to that effect

as well." Id. at 109. Under these facts, we agree with both the trial court and the

Court of Appeals and hold that Herron made a knowing, voluntary, and intelligent

waiver. 3

B. Herron does not have standing to assert the general public's right to the open
administration of justice

Article I, section 10 guarantees the open administration of justice without

reference to any individual, stating simply that "[j]ustice in all cases shall be

administered openly, and without unnecessary delay." This provision thus permits a

member of the general public to demand access to judicial proceedings. Cohen v.

Everett City Council, 85 Wn.2d 385, 388, 535 P.2d 801 (1975).

Having waived his own individual right to a public trial, Herron now attempts

to assert the general public's right to the open administration of justice. The Court

of Appeals held that Herron did not have standing as a third party to assert the rights

3
Herron argues that the trial court exceeded the scope of the waiver by holding an in-
chambers discussion with the parties regarding which jurors required individual questioning. We
need not reach that issue in this case because Herron waived his right to a public trial in order to
conduct individual questioning of jurors. Deciding which jurors required individual questioning
clearly falls within the scope of Herron's waiver. Indeed, had Herron not sought to perform
individual questioning of jurors, the trial court would never have been required to decide which
jurors required individual questioning in the first place, and the challenged discussion would not
have occurred.

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of the general public. Herron, 177 Wn. App. at 107-08. To determine whether

Herron had third party standing, the court applied the three-part test announced by

the United States Supreme Court in Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364,

113 L. Ed. 2d 411 ( 1991 ). First, the litigant must show that that he or she "suffered

an 'injury in fact,"' thus giving him or her a "'sufficiently concrete interest' in the

outcome of the issue in dispute." !d. at 411 (quoting Singleton v. Wulff, 428 U.S.

106, 112, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976)). Second, "the litigant must have

a close relation to the third party." !d. Finally, "there must exist some hindrance to

the third party's ability to protect his or her own interests." !d.

Here, the Court of Appeals correctly determined that Herron did not suffer

any injury in fact from the closure. Herron, 177 Wn. App. at 107. Contrary to

suffering an injury, Herron actually benefited from the in-chambers questioning

because he was better able to obtain a fair and impartial jury. At one point, defense

counsel thanked one potential juror for his honesty and candor, explaining, "That's

exactly why we're ... going through this process." 1-A VRP at 93 (June 18, 2007).

Another juror disclosed for the first time in her life that she had been molested by an

uncle. Although the judge overruled the defense's challenge to this juror, the defense

later used a peremptory challenge to excuse her. Eventually, four other jurors were

excused for cause based on the individual questioning. There was no injury.

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Turning to the second factor, Herron cannot show any close relationship with

the public at large. Herron argues that he has a special relationship with the public

because he shares an interest in the perception of fairness and integrity of the

prosecution. However, as the Court of Appeals acknowledged, Herron's interest here

was actually inimical to the public's interest. Herron, 177 Wn. App. at 107 n.lO.

Herron sought to obtain a closed proceeding so that jurors could candidly discuss

their views on sexual assault, thus better allowing Herron to discover and remove

biased jurors. This contrasts with the public's interest to have access to jury

selection. Thus, there is no "congruence of interests" that would sustain a finding of

a special relationship. Powers, 499 U.S. at 414.

Finally, there is no reason to believe that the public could not have asserted

its own interests in this case. Herron argues that the trial court failed to provide notice

to the public before closing the court, depriving the public from asserting its own

interests. But the trial court and parties discussed the closure in open court on two

separate days. Thus, members of the press or public had two separate occasions to

voice any concern. Moreover, the press has regularly asserted its right to the open

administration of justice. See, e.g., Ishikawa, 97 Wn.2d at 32; Federated Publ 'ns,

Inc. v. Kurtz, 94 Wn.2d 51,52-53,615 P.2d 440 (1980); State ex rel. Superior Court

v. Sperry, 79 Wn.2d 69, 72-73, 483 P.2d 608 (1971). So have individual members

ofthe general public. See, e.g., State v. Richardson, 177 Wn.2d 351,357,302 P.3d

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156 (2013); Bennett v. Smith Bundy Berman Britton, PS, 176 Wn.2d 303, 307, 291

P.3d 886 (2013). The trial court did not impose any barriers that would prevent a

member of the press or public from asserting his or her rights. Herron fails to meet

any of the three factors from Powers and thus cannot assert the rights of the general

public.

To be clear, as a criminal defendant, Herron had standing to raise his own

individual right to a public trial under article I, section 22. And, as a member of the

public, he had a right to demand the open administration of justice under article I,

section 10. But when Herron waived the right to an open courtroom, he waived it for

all purposes. And he eagerly waived that right here. Fairness, finality, and common

sense dictate that a defendant should not be able to assert the general public's right

to the open administration of justice after waiving and causing the very violation of

which he now complains.

IV. CONCLUSION

Herron waived his right to a public trial, and Herron lacks standing to assert

the general public's right to the open administration of justice. We affirm the Court

of Appeals.

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WE CONCUR:

C C7.
I

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