FILED 


MAY 28,2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


STATE OF WASHINGTON, ) No. 25006-7-111 

) 

Respondent, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

WILLIAM 1. KRAMER, ) 

) 

Appellant. ) 

LAWRENCE-BERREY, J. William Kramer appeals his conviction for first degree 

child molestation with a persistent offender status. He contends that his right to a public 

trial was violated when the trial court allowed private, in chamber questioning ofjurors 

without first conducting a Bone-Clubl inquiry. We agree and, therefore, reverse his 

conviction and remand for a new triaL 

1 State v. Bone-Club, 128 Wn.2d 254,906 P.2d 325 (1995). 
No. 25006·7-111 

State v. Kramer 

FACTS 

We recite the facts necessary to address Mr. Kramer's public trial challenge only. 

While Mr. Kramer raises additional contentions in his appeal, review of those issues is 

not necessary. Our decision on the violation of his right to a public trial is dispositive. 

Mr. Kramer was charged by amended information with one count of first degree 

child molestation. At a pretrial hearing, the trial court addressed the individual 

questioning ofjurors in chambers. The court explained that some jurors would be called 

into chambers for an in camera hearing to discuss their answer to a question on the juror 

questionnaire concerning sexual abuse. The question was asked, "ifyou or [a] close 

friend or relative had a similar experience, either as the accused or victim or witness." 

Report of Proceedings (Jan. 18,2006) at 34. The court asked the State and defense 

counsel if the process was agreeable. Both parties consented. 

Around one week later, 30 individual jurors who answered the above question in 

the affirmative were questioned in chambers. Both parties participated in the process. 

Before questioning took place, the trial court informed the jury pool in open court that it 

would be calling jurors into chambers one at a time. The court did not conduct a BoneClub analysis prior to individual interviews in chambers. After the individual questioning 

was completed, the venire jurors were questioned in open court. 

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No. 25006-7-III 

State v. Kramer 

The jury found Mr. Kramer guilty of first degree child molestation. The court 

sentenced Mr. Kramer to life in prison without the possibility of parole due to his 

persistent offender status. 

Mr. Kramer appealed to this court in 2006, claiming among other errors, that his 

right to a public trial was violated when the trial court allowed individual voir dire in 

chambers. We stayed his appeal pending a decision by the Supreme Court in State v. 

Frawley, 181 Wn.2d 452, 334 P.3d 1022 (2014). We lifted the stay subsequent to the 

recent decision. We now address his appeal. 

ANALYSIS 

Review of a defendant's public trial right challenge on direct appeal is a question 

of law that receives de novo review. State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 

150 (2005). 

Article I, section 22 of the Washington Constitution and the Sixth Amendment to 

the United States Constitution guarantee a defendant the right to a public trial. State v. 

Njonge, 181 Wn.2d 546,553,334 P.3d 1068, cert. denied, 135 S. Ct. 880, 190 L. Ed. 2d 

711 (2014). However, the right to a public trial is not absolute. Id. A trial court may 

close a courtroom to the public if it finds the closure is justified. Id. Prior to closure, the 

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No. 25006-7-III 

State v. Kramer 

trial court must balance several factors on the record by conducting a Bone-Club analysis. 

ld. 

"Bone-Club requires that trial courts at least: name the right that a defendant and 

the public will lose by moving the proceedings into a private room; name the compelling 

interest that motivates the closure; weigh these.competing rights and interests on the 

record; provide the opportunity for objection; and consider alternatives to closure, opting 

for the least restrictive." State v. Wise, 176 Wn.2d 1, 10,288 P.3d 1113 (2012). 

A defendant's right to a public trial applies to jury selection. ld. at 11. "[T]he 

public trial right in voir dire proceedings extends to the questioning of individual 

prospective jurors." ld. The private questioning of individual jurors in chambers is a 

courtroom closure that requires a Bone-Club analysis before questioning occurs. ld. at 

11-12. 

It is the trial court's responsibility to weigh the Bone-Club factors and enter 

specific findings to support the closure. Bone-Club, 128 Wn.2d at 260-61. On appeal, 

"[w]e do not comb through the record or attempt to infer the trial court's balancing of 

competing interests where it is not apparent in the record." Wise, 176 Wn.2d at 12-13. 

A trial court's failure to give any consideration to the Bone-Club factors before 

closing a courtroom for voir dire is a structural error that is presumed to be prejudicial. 

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No. 25006-7-111 

State v. Kramer 

Wise, 176 Wn.2d at 14.2 An improper courtroom closure violates the fundamental 

constitutional right to a public trial and is not subject to a harmless error analysis. State v. 

Easterling, 157 Wn.2d 167, 181-82, 137 P.3d 825 (2006). We do not consider this kind 

ofpublic trial right violation to be de minimis or trivial. Id. at 180-81. "[W]e cannot 

know what the jurors might have said differently if questioned in the courtroom; what 

members ofthe public might have contributed to either the State's or defense's jury 

selection strategy; or, ifthe judge had properly closed the court under a Bone-Club 

analysis, what objections, considerations, or alternatives might have resulted and 

yielded." Wise, 176 Wn.2d at 18. 

A defendant's failure to object to a public trial violation does not preclude 

appellate review under RAP 2.5. State v. Paumier, 176 Wn.2d 29,36,288 P.3d 1126 

(2012). The improper closure ofthe courtroom during voir dire is presumed to be 

prejudicial to the defendant and, correspondingly, is a manifest error affecting a 

2But see State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009) where the voir dire 

courtroom closure without a Bone-Club analysis was not considered a structural error 

because the trial court effectively considered the Bone-Club factors and the defendant 

was an active proponent of the closure. "At bottom, Momah presented a unique 

confluence of facts: although the court erred in failing to comply with Bone-Club, the 

record made clear-without the need for post hoc rationalization-that the defendant and 

public were aware of the rights at stake and that the court weighed those rights, with input 

from the defense, when considering the closure." Wise, 176 Wn.2d at 14-15. 

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No. 25006-7-III 

State v. Kramer 

constitutional right. Id. at 36-37. Similarly, a defendant's failure to object at trial does 

not equate to a waiver of his right to a public trial. Brightman, 155 Wn.2d at 514-15. 

A defendant may affirmatively waive his right to a public trial if the waiver is 

knowingly, voluntarily, and intelligently given. Frawley, 181 Wn.2d at 461-62 (plurality 

opinion). A valid waiver can occur in the absence of a Bone-Club analysis. Id. at 467 

(plurality opinion) (Stephens, J., concurring, with seven concurring and dissenting 

justices in agreement). The Washington Supreme Court has not agreed on the standard or 

process for ensuring that a defendant's waiver is knowing, voluntary, and intelligent, but 

the prevailing opinion is that waiver "can be met without the same type of 'on-the-record 

colloquy' that waiver of other rights (like the right to counsel) requires." Id. at 473. Still, 

a valid wavier will not be found ifthe record presents no evidence that the defendant 

knew that he was waiving his right to a public trial, understood what the right entailed, 

and voluntarily agreed to waive his right. State v. Shearer, 181 Wn.2d 564,575-76,334 

P.3d 1078 (2014) (plurality opinion) (McCloud, J., concurring). 

Here, Mr. Kramer's right to a public trial was violated. The trial court allowed 

private questioning ofjurors in chambers. This courtroom closure occurred without first 

conducting a Bone-Club analysis. The trial court's failure to give any consideration to the 

Bone-Club factors before allowing private questioning is a structural error that is 

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No. 25006-7-II1 

State v. Kramer 

presumed to be prejudicial to Mr. Kramer. Furthermore, there is no evidence in the 

record that Mr. Kramer knowingly, voluntarily, and intelligently waived his right to a 

public trial. 

The appropriate remedy for a violation of a defendant's constitutional right to a 

public trial is reversal and remand for a new trial. Easterling, 157 Wn.2d at 182. 

"Although a new trial will undoubtedly place on the affected community an extremely 

difficult burden, a burden that will be particularly painful for the families and friends of 

the victims of the [crime] charged in this case, our duty under the constitution is to ensure 

that, absent a closure order narrowly drawn to protect a clearly identified compelling 

interest, a trial court may not exclude the public or press from any stage of a criminal 

trial." In re Pers. Restraint ojOrange, 152 Wn.2d 795,800, 100 P.3d 291 (2004). 

Accordingly, we reverse Mr. Kramer's conviction and remand for a new trial. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040. 

WE CONCUR: 


Lawrence-Berrey, J. 

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