State v. Frawley

*455¶1 These consolidated criminal cases involve whether a defendant can waive his right to a public trial under article I, section 22 and/or 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-Club1 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

¶2 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 and counsel for both sides then interviewed 35 prospective jurors in chambers. Eleven prospective jurors were stricken for cause.

*456f 3 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.

f 4 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) (plurality opinion), and then again pending resolution of State v. Wise, 176 Wn.2d 1, 288 P.3d 1113 (2012). This court then granted the petition for review. State v. Frawley, 176 Wn.2d 1030, 299 P.3d 19 (2013).

b. State v. Applegate

¶5 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.

¶6 Prior to voir dire at the new trial, the trial judge addressed the courtroom, asking if either party or any *457member 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 those factors[4] 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.

¶7 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 *458terms 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 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.

¶8 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.

Analysis

a. Bone-Club Analysis

¶9 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 “[j]us*459tice 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 factors7 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.2d at 15.

¶10 In Wise, the trial court initiated in-chambers questioning of 10 jurors but did not analyze the Bone-Club factors on the record. We reversed Wise’s conviction, holding that the trial court violated his right to a public trial by implementing a closure without first engaging in a Bone-Club analysis.

¶11 Similar to Wise, the trial courts here did not perform the Bone-Club analysis on the record. In Frawley, the trial court made no mention of the Borie-Club factors. In Applegate, although the trial judge stated on the record that he had analyzed the Bone-Club factors and twice asked the courtroom if Applegate or any member of the public objected, he failed to articulate a compelling interest for the closure, weigh this compelling interest against any competing interests, or consider alternatives such that the closure was the least restrictive means of protecting any threatened interest and no broader than necessary.

*460¶12 The articulation of a compelling interest ensures that court proceedings are not closed merely for the sake of convenience as a matter of course. See Presley v. Georgia, 558 U.S. 209, 215, 130 S. Ct. 721, 175 L. Ed. 2d 675 (2010). Weighing this compelling interest against competing interests ensures that trial courts give due consideration to the interests furthered by maintaining an open proceeding, such as fostering public confidence in the system and the appearance of fairness. Considering alternatives to closure is imperative — even when neither party has offered an alternative — because “ ‘[t]he process of juror selection is itself a matter of importance, not simply to the adversaries but to the criminal justice system/ ” Presley, 558 U.S. at 214 (alteration in original) (quoting Press-Enter. Co. v. Superior Court, 464 U.S. 501, 505, 104 S. Ct. 819, 78 L. Ed. 2d 629 (1984)). In light of the important purpose served by each factor, it would be counterintuitive to hold that a trial judge’s obligation to articulate and assess every Bone-Club factor on the record is excused by a single statement that he believed that the factors “ha[d] been met.” RP (Aug. 10, 2009) at 119.

¶13 In both cases, the in-chambers questioning of jurors constituted a closure of the courtroom under Wise, 176 Wn.2d l.8 In neither case did the trial court analyze each Bone-Club factor on the record prior to instituting the closure. Both closures, therefore, were a violation of each defendant’s public trial right.

b. Affirmative Waiver

¶14 In both cases, the State argues that the defendant affirmatively waived his public trial right and therefore cannot challenge the closure. The State in Applegate further *461argues that because Applegate affirmatively waived his right to a public trial and does not have standing to assert a violation of the public’s right to a public trial, he has no claim to assert.

¶15 A “waiver” is an “intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Courts “indulge every reasonable presumption against waiver of fundamental rights,” City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957 (1984) (citing Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942)), and the prosecution bears the burden of establishing a valid waiver, State v. Wicke, 91 Wn.2d 638, 645, 591 P.2d 452 (1979). 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. Compare Thomas, 128 Wn.2d at 559 (“As with the right to self-representation, the right not to testify, and the right to confront witnesses, the judge may assume a knowing waiver of the right from the defendant’s conduct.”), with City of Seattle v. Williams, 101 Wn.2d 445, 452, 680 P.2d 1051 (1984) (knowing waiver requires defendant be informed of his constitutional right to a jury trial, and if the right is waived, he must be afforded a certain number of days in which to change his mind); State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994) (“[T]he inquiry by the court will differ depending on the nature of the constitutional right at issue.”).

¶16 In Strode, this court suggested that because a defendant’s article I, section 22 public trial right is part of the same constitutional provision as the defendant’s right to a jury trial, it should be subject only to waiver in the same manner. Strode, 167 Wn.2d at 229 n.3. A waiver of the right to a jury trial does not require a colloquy or on-the-record advice as to the consequences of a waiver, but it does require an affirmative and unequivocal personal expression of *462waiver from the defendant. Stegall, 124 Wn.2d at 725 (citing Acrey, 103 Wn.2d at 207-08). Our court rules have formalized this process by requiring a written waiver from the defendant. CrR 6.1(a) (“Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.”). Therefore, a knowing, voluntary, and intelligent waiver of the public trial right would require, at the very least, a written waiver signed by the defendant expressly acknowledging and waiving the right. No such procedure was followed in these cases, and the record in these cases does not reveal an equivalent colloquy that satisfies this standard.

¶17 In Frawley’s case, no dispute exists that Frawley was advised of his right to be present during individual voir dire. The question then becomes if and how a waiver of his right to be present affects his right to have the public present. The State argu.es that the underlying purpose of questioning individual jurors — to further juror candor, thus promoting the defendant’s right to an impartial jury— would be defeated if Frawley’s waiver of his right to be present did not also implicitly waive his right to have the public present. We disagree.

¶18 In In re Personal Restraint of Morris, 176 Wn.2d 157, 288 P.3d 1140 (2012) (plurality opinion), we discussed and resolved this argument. In that case, similar to what occurred in Frawley, the defendant waived his presence for the in-chambers questioning of individual jurors in order to promote juror candor. Our plurality opinion held that waiver of the right to be present should not be conflated with waiver of the right to a public trial because waiver of the former does not necessarily imply knowledge of the latter. We found no discussion of the defendant’s public trial right before the closure and thus no waiver of the public trial right.

¶19 In Frawley’s case, because the trial court made no mention of Frawley’s public trial right before the individual *463juror questioning — only his right to be present — Morris controls. We cannot equate a waiver of the right to be present with a waiver of the right to a public trial; we require an independent knowing, voluntary, and intelligent waiver of the public trial right.9

¶20 The record in Applegate also does not support finding a knowing and intelligent waiver. Although defense counsel, upon request from the trial judge, consulted with Applegate before stating that Applegate had no objection to in-chambers juror questioning, no indication was given that Applegate was informed of his right to a public trial or any consequences associated with waiving that right. Thus, neither Frawley nor Applegate made a knowing, voluntary, and intelligent waiver of their right to a public trial provided by article I, section 22.

¶21 While it may be true that a closure should not be subject to challenge on appeal when there is a valid affirmative waiver of a defendant’s article I, section 22 public trial rights, it is necessary to emphasize that the doctrine of affirmative waiver is inconsistent with the Bone-Club analysis. This is the case because the Bone-Club analysis already incorporates a waiver analysis as the second factor, which explicitly compels the trial court to ask if anyone objects to the closure.

¶22 Allowing a closure with only an affirmative waiver by the defendant — and no Bone-Club analysis — negates the very purpose of requiring a Bone-Club analysis, which is to ensure that the trial court “resist a closure ... except under the most unusual circumstances.” Bone-Club, 128 Wn.2d at 259. We confine closures to the “most unusual circumstances” in order to protect both the defendant’s and the public’s right to an open trial. Wise, 176 Wn.2d at 16 (citing State v. Easterling, 157 Wn.2d 167, 174-75, 137 P.3d 825 (2006)). If a trial court allows a closure without applying the *464Bone-Club factors — i.e., without finding a compelling interest justifying the closure or considering alternatives such that the closure is the least restrictive means of protecting that compelling interest — the public’s right to a public proceeding is implicated and remains implicated even where a defendant could be found to have knowingly, voluntarily, and intelligently waived his or her right to have the public present. Because a courtroom closure implicates both the public’s interest in openness under article I, section 10 and the defendant’s interests under article I, section 22, a constitutional violation exists absent proper justification for the closure (as required by Bone-Club) even though we have recognized that under some circumstances, a new trial is not always required to remedy that constitutional violation.

¶23 Further, the public does not waive its right to have “[j]ustice ... administered openly,” Wash. Const, art. I, § 10, simply because no member of the public objected to the closure. “The public has a right to be present whether or not any party has asserted the right.” Presley, 558 U.S. at 214. Allowing a criminal defendant to affirmatively waive his public trial rights could now allow a defendant to consent to locking the courtroom door for the entirety of his criminal trial. Just because a valid affirmative waiver renders a closure free from challenge on appeal should not mean that the error does not occur to the detriment of others.

c. Contemporaneous Objection

¶24 The State in Frawley also argues that under the Rules of Appellate Procedure, a party can claim an error for the first time on review only if the error is “manifest error affecting a constitutional right.” RAP 2.5(a)(3). Such a rule, however, would require this court to overrule many of our cases holding that a party may claim a public trial right error for the first time on appeal. See Paumier, 176 Wn.2d *465at 36-37; Wise, 176 Wn.2d at 15; Easterling, 157 Wn.2d at 173 n.2. This court will overrule an established rule only if a party can show that the rule is incorrect and harmful. City of Federal Way v. Koenig, 167 Wn.2d 341, 346-47, 217 P.3d 1172 (2009) (quoting Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004)). The State has made no showing that the rule in Wise, Paumier, Easterling, and other cases is incorrect or harmful.

¶25 Our public trial jurisprudence has made clear that proceedings to which the public trial right attaches must be kept open and public. The exception to this rule allows courts to institute closures only when necessary, on a case-by-case basis, after performing the Bone-Club analysis. Requiring a contemporaneous objection in order to preserve a public trial error for review would have the opposite effect. Under such a rule, a trial court could permit a closure whenever the defendant did not object, except for situations in which the closure was “manifest” error, as defined by a common law approach. In practice, such a rule would create a perception of trial proceedings that could be presumptively closed, with open proceedings serving as the exception to the rule. This is inconsistent with our public trial rights jurisprudence, and we decline to overrule the long-standing rule that public trial rights violations may be asserted for the first time on appeal.

d. De Minimis

¶26 Lastly, Frawley and Applegate argue that any violation of their public trial right was not de minimis. Specifically, they point out that only federal cases have recognized a de minimis analysis for public trial rights violations. Analyzing the Gunwall10 factors, Applegate argues that the Washington public trial right is broader and more protective than the federal public trial right.

*466¶27 A Gunwall analysis, however, is unnecessary here. While we have relied on and incorporated various aspects of federal law in developing our public trial right jurisprudence, we are solely within the realm of interpreting the state constitution. We do not require Gunwall to take us any further. Looking to Washington law, even if the brief in-chambers questioning of one juror could constitute a de minimis violation of a defendant’s public trial right, such a conclusion would find no place in our public trial rights case law. We have considered a de minimis argument in the context of public trial rights in past cases, and in Easter-ling, 157 Wn.2d at 180, we expressly rejected a de minimis approach as advocated for in the dissenting opinion. We have not deviated from this holding. Thus, in both cases here, the closures were not de minimis.

Conclusion

128 An open and public trial serves as a “core safeguard in our system of justice,” providing accountability and transparency and allowing the “public to see, firsthand, justice done in its communities.” Wise, 176 Wn.2d at 5, 6. People not actually attending trials can be confident that courts are observing standards of fairness, knowing that because anyone is free to attend, established procedures are being followed and deviations will become known. Press-Enter. Co., 464 U.S. at 508. Closures of the courtroom should be instituted only in the rarest of circumstances, as dictated by an on-the-record analysis of the Bone-Club factors. We affirm the Court of Appeals in Frawley and should reverse in Applegate, and we should remand both cases for further proceedings.

Owens, J., concurs.