### FILED MAY 28,2015 In the Office ofthe ClerkofCourt WA State CourtofAppeals, Division III
INTHE COURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE 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### v. ) UNPUBLISHED OPINION 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 molestationwith a persistent offender status. He contendsthathis right to a public trial was violatedwhenthe trial court allowedprivate, in chamberquestioning of jurors without first conducting a

### Bone-Clubl inquiry. We agree and, therefore, reversehis conviction andremand for a newtriaL

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. Kramerraises additional contentions in his appeal, review ofthose issues is not necessary. Our decision on the violation ofhis right to a public trial is dispositive. Mr. Kramer was charged by amended information with one count offirst degree child molestation. At a pretrial hearing, the trial court addressed the individual questioning of jurors in chambers. The court explained that somejurors wouldbe called into chambers for an in camera hearing to discuss their answer to a question on thejuror 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 orwitness." Report ofProceedings (Jan. 18,2006) at 34. The court asked the State and defense counsel ifthe process was agreeable. Bothparties consented. Around one week later, 30 individualjurors who answered the above question in the affirmative were questioned in chambers. Both partiesparticipated in the process. Before questioning tookplace, the trial court informed thejurypool in open court that it would be callingjurors into chambers one at a time. The court did not conduct a BoneClub analysis priorto individual interviews in chambers. Afterthe individual questioning

was completed, the venirejurors were questioned in open court.

2No. 25006-7-III 

### State v. Kramer
Thejury found Mr. Kramer guilty offirst degree child molestation. The court sentenced Mr. Kramer to life in prison without the possibility ofparole due to his persistent offender status. Mr. Kramer appealed to this court in 2006, claiming among othererrors, thathis right to a public trial was violated when the trial court allowed individual voir dire in chambers. We stayed his appeal pending a decision bythe Supreme Courtin 

### State v. Frawley, 181 Wn.2d 452, 334 P.3d 1022 (2014). We lifted the stay subsequentto the recent decision. We now address his appeal. ANALYSIS Review ofa defendant'spublic trial right challenge on direct appeal is a question oflaw that receives de novoreview. 

### State v. Brightman, 155 Wn.2d 506, 514, 122 P.3d 150 (2005). Article I, section 22 ofthe Washington Constitution and the Sixth Amendmentto the United States Constitution guarantee a defendant the right to a public trial. 

### State v. Njonge, 181 Wn.2d 546,553,334P.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 ifit finds the closure isjustified. 

### Id. Priorto closure, the

3No. 25006-7-III 

### State v. 

### Kramer
trial court mustbalance several factors on the recordby conducting a 

### Bone-Club analysis. 

### ld. 

### "Bone-Club requires thattrial courts at least: name the rightthat a defendant and the public will lose by moving the proceedings into a private room; name the compelling interest that motivates the closure; weighthese.competing rights and interests on the record; providethe 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 rightto a public trial applies tojury selection. ld. at 11. "[T]he public trial right in voir dire proceedings extends to the questioning ofindividual prospectivejurors." 

### ld. The private questioning ofindividualjurors in chambers is a courtroom closure that requires a

### Bone-Club analysis before questioning occurs. 

### ld. at 11-12. Itis the trial court's responsibility to weighthe

### Bone-Club factors and enter specific findings to supportthe closure. 

### Bone-Club, 128 Wn.2d at 260-61. On appeal, "[w]e do not comb through the record or attempt to inferthe 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 considerationto the 

### Bone-Club factors before closing a courtroom for voir dire is a structural errorthat is presumed to be prejudicial.

4

### 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 considerthis kind ofpublic trial right violation to be de minimis ortrivial. 

### Id. at 180-81. "[W]e cannot know what thejurors might have said differently ifquestioned in the courtroom; what members ofthe public might have contributed to either the State's or defense'sjury selection strategy; or, ifthejudgehad properly closed the courtunder 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 objectto a public trial violation does notpreclude 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

2

### Butsee 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 ofthe closure. "At bottom, 

### Momah presented a unique confluence offacts: although the courterred in failing to comply with

### Bone-Club, the record made clear-withoutthe need for post hoc rationalization-thatthe defendant and public were aware ofthe rights at stake and that the courtweighed those rights, with input from the defense, when considering the closure." 

### Wise, 176 Wn.2d at 14-15. 5No. 25006-7-III 

### State 

### v. Kramer
constitutional right. 

### Id. at 36-37. Similarly, a defendant's failure to object at trial does not equateto a waiver ofhis right to a public trial. 

### Brightman, 155 Wn.2d at 514-15. A defendant may affirmatively waive his right to a public trial ifthe waiver is knowingly, voluntarily, and intelligently given. 

### Frawley, 181 Wn.2d at461-62 (plurality opinion). A valid waiver can occur in the absence ofa

### Bone-Club analysis. 

### Id. at 467 (plurality opinion) (Stephens, J., concurring, with seven concurring and dissenting justices in agreement). The Washington Supreme Courthas 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 ofotherrights (like the right to counsel) requires." 

### Id. at 473. Still,

a valid wavier will notbe found ifthe record presents no evidencethat the defendant knew that he was waiving his right to a public trial, understood whatthe 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 of jurors 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

6No. 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 publictrial. The appropriate remedy for a violation ofa defendant's constitutional right to a public trial is reversal and remand for a new trial. 

### Easterling, 157 Wn.2d at 182. "Although a newtrial will undoubtedly place on the affected community an extremely difficultburden, a burden that will be particularly painful for the families and friends of the victims ofthe [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 orpress from any stage ofa criminal trial." 

### In re Pers. Restraint ojOrange, 152 Wn.2d 795,800, 100 P.3d 291 (2004). Accordingly, wereverse Mr. Kramer's conviction and remand for a new trial. A majority ofthe panel has determined this opinion will notbeprinted 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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