### IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,
v. JERRY ALLEN HERRON, Petitioner. ) ) ) ) ) ) ) ) ) No. 89571-6
EnBane

Filed 

### AUG 20 2015



# _________________________ ) FAIRHURST, J.-We must decide whether Jerry Allen Herron waived his right to a public trial and, ifso, whether he may later assert the public's right to an open proceeding. The Court ofAppeals affirmed Herron's conviction, holding that Herron waived his public trial right and that he lacked standing to assert the rights ofthe 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 halfbefore trial, the trial court held an initial readiness hearing where it informedthe parties that ittypically used ajuryquestionnaire in sexual assault casesState v. Herron, No. 89571-6 to discover sensitive information that might require questioningjurors individually. The court explained that in light ofrecent appellate court decisions, the practice of questioningjurors in chambers conflictedwith 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 objectto that." 

### Id. The prosecuting attorney advised that Herron would need to affirmatively waive his rightto a public trial onthe record in orderto questionjurors in chambers. Alternatively, the prosecuting attorney suggested that the court could question individualjurors in a public setting withthe otherjurors waiting in a separate room. Defense counsel responded that he would not object and that "ifwe're looking for
an affirmative waiver ofapublic examination ofthese individualjurors, Mr. Herron and I are present, we're certainly willing to waive that.
... I think that's going to bear far more fruit thanjust simply a voir dire situation." 

### Id. 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 individualvoirdire intheprivacyofthejudge'schambers. The courtagain explained the procedure and the rationale behind questioning certainjurors in chambers about their experience with sexual assault, ultimately advising Herron that whetherjurors would be questioned in chambers or in open court was "pretty much up to you." 

### Id.

2State v. Herron, No. 89571-6 at 72. The court declinedto make a decision at thathearing and instructedHerronto further discuss the matter with his attorney. At apretrialhearingthe following week, the courtrevisitedthe issue. Defense counsel advised the court that he had discussed the matter with Herron, who was willingto waive his rightto a public trial in orderto question certainjurorsprivately in chambers. The courtthen engaged in an extensive colloquy with Herron. THE COURT: All right. Mr. Herron, you understandyou have a rightto apublictrial, where no one otherthanperhapsthe witnesses are excluded from the courtroom, and where

-- when thejury questioning takes place, you have a right to have anybody that wants to be here present for thatprocess. Do you understand that fully? DEFENDANT: Yes. THE COURT: Andby the same token, ifyou wantto waive that right so thatjurors will know that ifthey respondpositively to some of these questions about things like have they ever been accused ofa 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 veryreluctantto disclose those things, and particularly to disclose those things ifthey know they're going to be talked about in front of, well, for instance, 50 otherjurors and other members ofthe public. DEFENDANT: Yes, sir. 1 VRP at 104-05 (June 15, 2007). The court then reiterated that the decision was completelyup to Herron. Herron expressedthathepreferredto questionthesejurors inchambers. The courtthenverifiedwhetherHerronhad spokento his counsel about the matter, and Herron assured the court that he had. The court again asked Herron

3State v. Herron, No. 89571-6 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 ofhavingjurors interviewed on sensitive topics in an open setting but away from otherjurors, "in an atmosphere that is open to the public, so it would comport with the defendant's rightto 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 avoidjurors from being "influenced by otherpeople."

### Id. at 108. Based onthese extensive colloquies, the trial court found that Herron made a knowing, voluntary, and intelligent waiver ofhis 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 courtbeganvoir dire. Thepartiesmetbriefly inchambers to decide whichjurorswouldrequire individual questioningbasedontheirresponses to juror questionnaires. The court then called these jurors into chambers, and all parties participatedinthe questioning. Fourjurorswere excused for cause as aresult ofthe individualjuror questioning. Ajurywas eventually empaneled, and Herronwas found guilty offirst degree rape while armed with a deadly weapon. The Court ofAppeals affirmed Herron's

4State v. Herron, No. 89571-6 conviction. State v. Herron, 177 Wn. App. 96,318 P.3d 281 (2013). We granted review. State v. Herron, 182 Wn.2d 1001,342P.3d 326 (2015). II. ISSUES 1. Did Herron waive his rightto 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 defendantthe right to a public trial. This public trial right extends to the questioning ofindividualjurors in chambers. State v. Momah, 167 Wn.2d 140, 151-52,217 P.3d 321 (2009). Before a courtroom may be closed, the trial courtmust engage in a fivefactor analysis commonlyreferredto 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, ifso, whether Herron may then assert standing on behalfofthe general public. 1

1We typically engage in a three-step analysis to determine whether there has been a violation ofthe public trial right. State v. Smith, 181 Wn.2d 508, 513, 334 P.3d 1049 (2014). But the issue before us nowis not whethertherehas been aviolation ofthe publictrial rightbut,rather, whether Herron waived his ability to assert such a violation on appeal. 5State v. Herron, No. 89571-6 

### A. Herronknowingly, 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 ofa 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 constitutionalrights meetthis standardin differentways. "Thevalidity ofany waiver of a constitutional right, as well as the inquiry required by the court to establish waiver, will depend on the circumstances ofeach case." State v. Stegall, 

### 124 Wn.2d 719, 725, 881 P.2d 979 (1994). Turning to our public trialjurisprudence, two relevant principles emerge and definethe contours ofavalidwaiver. First, mere silence is not sufficientto 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 ofa meaningful opportunity to object. We stated that "an opportunity to object holds 'no practical meaning' unless the court informs potential objectors of the nature ofthe 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

6State v. Herron, No. 89571-6 

### 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 ofthe 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 maybe achievedthrough awrittenwaiver or "anequivalent 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 ofwaiver "will depend on the circumstances ofeach case"). It

### is readily apparent that this case does not present an instance ofwaiver by silence. Rather, the trial court provided Herron with several meaningful opportunities to object. Roughly a week and a halfbefore trial, the court advised Herron that it would not question individualjurors in chambers ifHerron objected andthe State presented an alternative to closure. Althoughboth defense counsel and

7State v. Herron, No. 89571-6 

### Herron related thatthey preferred to have individualjuror 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. 1VRP at 105 (June 15, 2007). Herron had several meaningful opportunities to objectbut did not do so. Rather than objecting, the record reflects that Herron affirmatively and unequivocally waivedhis rightto apublictrial. The trial court advisedHerron ofhis right to a public trial on several occasions. In response, Herron consistently and repeatedly statedthathe waivedhis publictrial right in orderto examineprospective jurors about sensitive matters in chambers. 2 

### He explained that he preferredjurors "not be influenced by other people" and that in-chambers questioning "would be
more appropriate." 

### Id. at 108. Defense counsel agreed that "an examination in private in your chambers" would "bear far more fruit thanjust simply a voir dire situation." 1VRP at 70 (June 8, 2007). Herron also expressly rejected an alternative to closure, favoring individual questioning ofjurors in chambers instead. The trial

2This case presents a very clear example ofa 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 ofrepetition that exists in this case; however, we must analyze every instance ofwaiver on a case-by-case basis. Stegall, 124 Wn.2d at 725. 8State v. Herron, No. 89571-6 

### court eventually found that Herron made a knowing, voluntary, and intelligent waiver based on these extensive colloquies from two separate hearings. Defense counsel evenindicatedthatHerronwas "willingto sign awrittenwaiverto thateffect
as well." Id. 

### at 109. Under these facts, we agree with both the trial court and the Court ofAppeals 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 ofjustice 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 ofthe general public to demand access to judicial proceedings. Cohen v. Everett City Council, 

### 85 Wn.2d 385, 388, 535 P.2d 801 (1975). Having waivedhis own individualrightto apublic trial, Herronnow attempts to assert the general public's right to the open administration ofjustice. The Court ofAppeals heldthatHerron did nothave standing as athirdparty to assertthe rights

3Herron argues that the trial court exceeded the scope ofthe waiver by holding an inchambers discussion with the parties regarding whichjurors 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 ofjurors. Deciding whichjurors required individual questioning clearly falls within the scope of Herron's waiver. Indeed, had Herron not sought to perform individual questioning ofjurors, 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. 9State v. Herron, No. 89571-6 

### 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 ofthe 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 ofAppeals 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 impartialjury. At one point, defense counsel thanked one potentialjuror for his honesty and candor, explaining, "That's exactly why we're
... going through this process." 1-A VRP at 93 (June 18, 2007). Anotherjuror disclosed for the first time in her life that she hadbeenmolestedby an uncle. Althoughthejudgeoverruledthe defense's challengeto thisjuror,the defense later used a peremptory challenge to excuse her. Eventually, four otherjurors were excused for cause based on the individual questioning. There was no injury.

10State v. Herron, No. 89571-6 

### 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 CourtofAppeals acknowledged, Herron's interesthere
was actually inimical to the public's interest. Herron, 

### 177 Wn. App. at 107 n.lO. Herron sought to obtain a closed proceeding so thatjurors 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 ofinterests" 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 inthis case. Herronarguesthatthetrial courtfailed to providenotice 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 ofthe press or public had two separate occasions to voice any concern. Moreover, the press has regularly asserted its right to the open administration ofjustice. 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

11State v. Herron, No. 89571-6 156 (2013); Bennett v. Smith BundyBerman 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 ofthe press or public from asserting his or her rights. Herron fails to meet any ofthe three factors from Powers and thus cannot assert the rights ofthe general public. To be clear, as a criminal defendant, Herron had standing to raise his own individual rightto a public trial under article I, section 22. And, as a member ofthe public, he had a right to demand the open administration ofjustice under article I, section 10. ButwhenHerronwaivedtherightto anopencourtroom, he waived it for all purposes. And he eagerly waived thatright 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 ofAppeals.

12State v. Herron, No. 89571-6

WE CONCUR: 

# C 

# C7. I

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