State v. Shearer

566 ¶ 1 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 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) (plurality opinion). 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). If the 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. Owens, J. ¶ 2 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. ¶ 3 The State asks us to overrule two key holdings from our 2012 cases on public trial rights. First, the State asks 567 that we overrule our holding that a defendant’s failure 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 ¶ 4 Based on a violent domestic dispute with his girlfriend, 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. Defense counsel moved to dismiss juror 7 for cause. The State did not object, and the juror was excused. ¶ 5 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 568 and reversed his conviction without reaching the other issues. State v. Shearer, noted at 162 Wn. App. 1007, 2011 WL 2120054, at *3, 2011 Wash. App. LEXIS 1259, at *10. 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 ¶ 6 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 peremptory challenge on juror 18.1 The trial proceeded, and Grisby was ultimately convicted. 17 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, 2012 Wash. App. LEXIS 521, at *3-8. The State petitioned this court for review, which this court granted. State v. Grisby, 176 Wn.2d 1031, 299 P.3d 19 (2013). 569 ISSUES ¶ 8 1. Can Shearer and Grisby raise the public trial rights issue on appeal even though they did not object at trial? ¶ 9 2. Were these courtroom closures de minimis? ANALYSIS ¶ 10 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 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. ¶ 11 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. Id. 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. Id. 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 ¶ 12 Our precedent is clear that defendants can raise public trial rights on appeal even if they did not object to a 570 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) (plurality opinion); State v. Easterling, 157 Wn.2d 167, 173 n.2, 137 P.3d 825 (2006); see State v. Brightman, 155 Wn.2d 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. Id. 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. Id. 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)). ¶ 13 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. ¶ 14 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 571 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). ¶ 15 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 failing to object to a courtroom closure somehow demonstrates a knowing, voluntary, and intelligent waiver of a defendant’s public trial rights. ¶[16 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. Id. 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. ¶ 17 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 572 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 ¶ 18 “[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 precedent that public trial rights violations are structural error and not subject to a harmlessness standard. ¶ 19 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.” Id. 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.’ ” Id. 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.’ ” Id. at 17-18 (quoting Fulminante, 499 U.S. at 310). Furthermore, structural errors are presumed prejudicial because “ ‘it is often difficult] to asses [s] the effect of the error.’ ” Id. 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 573 violations because the consequences are difficult to prove in any particular case. Id. Because of the nature of this type of error, we have held that public trial rights violations are “not subject to harmlessness analysis.” Id. at 14. We 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.” Id. at 19. ¶ 20 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. ¶ 21 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. Id. 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 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 624 574 (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. ¶ 22 Nonetheless, to the extent that the State argues that the closure in Grisby’s case was for a “ministerial or administrative matter,” Suppl. Br. of Pet’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. ¶ 23 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 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 ¶ 24 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 575 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. C. Johnson, Fairhurst, and Stephens, JJ., concur. Footnotes [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. [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).