### FILED OCT. 3,2013 In the Office ofthe ClerkofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATEOF WASHINGTON, ) ) No. 26354-1-111 Respondent, ) ) 

### v. ) ) JERRYALLENHERRON, ) PUBLISHED OPINION ) Appellant. )
KORSMO, C.J. Recognizing thathe had already waived his ownright to an open publictrial under 

### art. I, 

### § 22 ofthe Washington Constitution, appellantJerry Herron argues that he should be entitledto allege a violation ofthepublic's opentrialrights under art. I, 

### § 10. We concludethathe lacks standingto challengetheprivate voir dire in chambersthathe championed overhis contrary right ofpublicjury selection. His conviction for first degreerapeis affirmed. FACTS The charge arose afterMr. Herron raped an acquaintance atknifepoint in his car alongthehighway between Spokane andPullman. Hehad agreed to givethe young woman, K.B., a rideto Pullman from AirwayHeights. K.B. was 22; Mr. Herronwas 57.No. 26354-1-111 State 

### v. Herron
Law enforcement arrested Mr. Herron the following day. After advice ofrights, he agreed to talk to them "Until I don't want to." During the interview, Mr. Herron denied having sexual relations with K.B. He later answered a question "No. And ifI am goingto get charged I probablyneed an attorney. I didn't do it." Clerk's Papers (CP) at 49. After again denying having sexual relations with K.B., he stated, "Ifit goes farther than that we needto have an attorney or something. I don'tknow." CP at 57. He later terminated the interview. CP at 66. Deoxyribonucleic acid (DNA) testing determined that Mr. Herron's semen was found inthe victim and on some ofherclothing. The case proceeded tojurytrial in June 2007. The issue of jury selection was discussed at the initial readiness hearing in early June. The court indicated it would use ajury questionnaire to find sensitive information that might require individual questioning. Aware ofrecent cases concerningjury selection, the courtnotedthat its former procedure ofquestioningjurors in chambers was in conflictwith the defendant's right tojury selection in the courtroom. Thejudgetold the defense it is "pretty much up to you" how the case wouldproceed. Report of Proceedings (RP) (June 8, 2007) at 72. The defendantpersonally assured thejudgethat he appreciatedthat "verymuch." RP (June 8, 2007) at 72. The following week a pretrial hearing was held and the issue revisited. Defense counsel indicatedhe haddiscussed the matter with Mr. Herron, who waswillingto waive

2No. 26354-I-II1 State 

### v. Herron
his right to a publictrial in orderto question potentialjurorsprivately in chambers. The courtthen addressed Mr. Herron. THE COURT: All right. Mr. Herron, you understand you have a right to a public trial, where no one otherthan perhaps the witnesses are excluded from the courtroom, and where-whenthejury questioning takes place, you have a right tohave anybody thatwants to be herepresent for thatprocess. Do you understand that fully? DEFENDANT: Yes. THE COURT: Andby the same token, ifyou wantto waivethatright so thatjurorswill know that ifthey respondpositively to some ofthese questions about things like have they everbeen accused ofa sex offense or been a victim ofa sex offense oran unwanted sexual touching, have a close friend or family member-we discussed last week, very often individuals are veryreluctant to disclose those things, andparticularly to disclose those things iftheyknow they're going to be talked about in front of, well, for instance, 50 otherjurors and othermembers ofthe public. DEFENDANT: Yes, sir. RP (June 15,2007) at 104-05. Further questions ensued, with the defendant personally assuring the courtthat he wantedto giveup his right to a publictrial and have thejurors questionedprivately in chambers. The prosecutor also presented other options such as questioning thejurors individually in public withthe rest ofthe venire in another location. Mr. Herron assured the courtthat chambers questioning was his preferred approach. The court concluded that Mr. Herron knowingly and voluntarily waived his right to a public trial onthis issue. RP (June 15,2007) at 108-09. Jury selection began three days later and proceeded according to the pretrial discussions. Jurors whose questionnaire answers suggestedthe need for private 3

### No. 26354-1-111 State v. 

### Herron
interviews concerning such matters as prior sexual abuse were questioned in chambers by counsel in the defendant's presence. Thejuryheard the defendant's denial ofsexual contactwith the victimthrough the interviewing officer and also received the DNAtest results. Thejury concludedMr. Herron was guilty offirst degree rape while armedwith
a deadly weapon. He timely appealedtothis court, which stayedthe matter after initial briefing to await the decision in State v. Strode, 167 Wn.2d 222, 217 P.3d 310 (2009). The matter
was then scheduled for consideration by a panel without argument. That panel stayed the matterpending the outcome ofState v. Wise, 176 Wn.2d 1,288 P.3d 1113 (2012). After each stay was lifted, this court requested supplemental briefing from the parties. The matter ultimately proceededto oral argument. ANALYSIS This appeal raises issues concerning the voluntariness ofthe defendant's statement to law enforcement and the closure ofa portion ofthejuryvoir dire. I 

### Both issues have been overtaken in somerespects by intervening case authority. We will address them in the orderthey arose in the trial court.

I 

### Mr. Herron has also filed apro se statement ofaddition grounds (SAG). We find his two claims without merit and will not discuss them. However, we do note that fourth degree assault is not a lesser included offense offirst degree rape. See State v. Walden, 67 Wn. App. 891,893-94,841 P.2d 81 (1992) (fourth degree assault not included offense ofsecond degreerape). 4

### No. 26354-1-III State v. Herron Defendant's Statement 

### Mr. Herron initially argued in his original briefthat he asserted his right to counsel during questioning and that the deputy sherifftherefore had a duty to clarify his desire and/orbreak offquestioning. The authority on which he relied was overturned after his initial briefing to this court. When conducting a custodial interrogation, law enforcement officers have the obligation to advise the suspect (1) ofthe right to remain silent and provide notice that anything said to the police might be used against him, (2) ofthe right to consult with an attorneyprior to answering any questions and have the attorney present for questioning, (3) that counsel will be appointed for him ifdesired, and (4) that he can end questioning at any time. Miranda 

### v. Arizona, 

### 384 U.S. 436,444,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). If, after waiving the Miranda 

### rights and agreeing to speak to police, the suspect changes his mind and desires an attorney, the interrogation must cease until he has spoken to an attorney. Edwards 

### v. Arizona, 

### 451 U.S. 477, 484·85,101 S. Ct. 1880,68L. Ed. 2d 378 (1981). A problem arises when the interview subject makes a less than clear assertion of his right to speak to counsel. When initially facing this issue, the Washington Supreme Courtruled that police officers who face an equivocal assertion ofthe right to counsel must break offinterrogation and seekto clarify the subject's desire. State 

### v. Robtoy, 98 

### Wn.2d 30,39,653 P.2d 284 (1982). However, the United States Supreme Court 5

### No. 26354-1-111 State 

### v. Herron 

### subsequently ruled that police need not clarity an equivocal request for counsel and need only stop interrogation when counsel is explicitly requested. Davis 

### v. UnitedStates, 512 

### U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). Subsequentto the briefing in this case, the Washington Supreme Court clarified thatDavis, 

### not Robtoy, 

### governs equivocal assertions ofthe rightto counsel during interrogation. State 

### v. Radcliffe, 

### 164 Wn.2d 900,906-07, 194 P.3d 250 (2008). In light ofRadcliffe, 

### the appellant's argument fails. Assuming that his statements were even an assertion ofthe desire to have counsel before further conversation with the police,2 

### they
were at best unclear. He told the deputy that "ifI am going to get charged" and "ifit goes farther" he would need an attorney. Both are conditional statements offuture intent. To the extent they could even have been construed to address his current situation, neither statement amounts to an unequivocal assertion that he now desired counsel. UnderDavis 

### andRadcliffe, 

### these statements were not sufficientto require the deputy to break offquestioning. The trial court correctly found the statements to be equivocal and did not err in admitting Mr. Herron's interview at trial. 3

2 

### The two noted statements appear best read as indications that an attorney might be needed in the future ifthe case proceeded as opposed to a desire to have counsel before the interviewproceeded further. 3 

### In light ofour ruling, we need not address the question ofwhether any error would have been harmful. 6No. 26354-1-111 

### State v. 

### Herron
Waiver of 

### § 22Right Although 

### Mr. Herron does not arguethathis waiver ofhis personal rightto a public trial under 

### § 22 was invalid, weneedto briefly discuss the topic in orderto place his other arguments in proper context. We conclude that the record shows that Mr. Herron knowingly and voluntarily gave up his rightto have voir dire conducted in public. Theprovision at issue states: 

### SECTION 22 RIGHTS OF THE ACCUSED. In criminal prosecutions the accused shall have the right
...to have a speedy public trial by an impartialjuryofthe county in which the offense is chargedto have been committed. CONST. art. I, § 22. This section, as quoted, was adopted in 1889 as an original provision ofour constitution. Two ofthe noted rights secured by 

### § 22 are at issue in this case-the right to a "public trial" and the rightto "an impartialjury"to hear thattrial. In orderto waive a constitutional right, there must be "an intentional relinquishment or abandonment ofa known right orprivilege." 

### Johnson v. 

### Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 821. Ed. 1461 (1938). Our court has restatedthat standard this way: "the waiver ofa fundamental constitutional right must be made knowingly, voluntarily, and intelligently." 

### State v. 

### Thomas, 128 Wn.2d 553, 558,910 P.2d 475 (1996). Mr. Herron waived 

### his § 22 right to a public trial underthese standards. Heknew thathehad the right to have voir dire conducted in the courtroom inthepresence ofany


### 7

### No. 26354-1-111 State v. 

### Herron


### member ofthe public who might have been in attendance. Suggestions were made that would have allowed him to conductprivate voir dire in public. Believingthat he would learn more by having the inquiries made in private, he expressly opted for questioning the jurors in chambers. He intentionally relinquished one known right in orderto further his equally important right to obtain an impartialjury. Mr. Herron clearly waived his rightto a public trial. However, our constitution recognizes that

### Mr. Herron was notthe only one who had a right to public proceedings in this case. The effect ofhis waiver on the rights ofthe public is the topic to which we turn next. Public Trial 

### Mr. Herron argues that although he gave up his 

### § 22 right to a public hearing, he did not waive the public'sright under 

### § 10. We conclude that he has no standing to assert thepublic's right and that even ifstanding had existed, his claim would fail under State 

### v. Momah, 

### 167 Wn.2d 140,217P.3d 321 (2009). Art. I, 

### § 10 provides: 

### SECTION 10 ADMINISTRATION OFJUSTICE. Justice in all cases shall be administered openly, and without unnecessary delay. The history of

### § lOis discussed in great detail in ourrecent decision in In re Detention a/Reyes, 

### No. 28167-1-111, 2013 WL 5297338 (Wash. ct. App. Sept. 19,



### 8No. 26354-I-III 

### State 

### v. Herron 2013).4 In

### Reyes, a sexually violentpredator action, the respondent had not asserted his 

### § 10 right when a chambers hearing was conducted on his pretrial motion to dismiss. Following earlierprecedent, we agreed that a civil litigant who does not assert his 

### § 10 right at trial must establishprejudice in orderto show manifest errorthatwould allow him to raisethe issue on appeal underRAP 2.5(a)(3) because a 

### § 10 violation is not structural error. 

### Reyes, slip op. at 28-29. We also concludedthat 

### Mr. Reyes lacked standingto assertthepublic's 

### § 10 right underthe traditional test for standing. 

### Id. at 31­ 32. We did not rule categorically that a litigant would never have standing to assertthe public'sright. 

### Reyes noted thatthe rights createdby the two provisions, although overlapping,
are different. The rights conveyed by § 22 are personal tothe criminal defendant.5 However, 

### § 10 functions as a commandto thejudiciary and is effectively a right held by all citizens ofWashington. 

### Id. at II. A litigant has no special right under 

### § 10 apart from the collective rightheld by al1.6 

### Id. at 11,28. We also did not address the remedy for a 

### § 10 violation. 

### Id. at 25 n.15.

4 

### Reyes was argued to this courtthe same day as Mr. Herron's case. 5

### FederatedPub/'n v. Kurtz, 94 Wn.2d 51,59-61,615 P.2d440 (1980). 6 We questioned whether a litigant can "split" § 10 into both a personal right and a general public right by asserting the public's interest. 

### Reyes, slip op. at 33. 9No. 26354-1-111 State v. Herron Although instructive on certain aspects ofthis case, Reyes is not dispositive. For
one thing, Reyes was not a § 22 case. 7 The Washington Supreme Court has yetto decide ifa criminal defendant can assertthe public's (i.e., § 10) open trial right. Wise, 176 Wn.2d at 16 n.9. The court typically has treated them as one and the same, even while acknowledging that they are differentprovisions serving complementary functions. Momah, 167 Wn.2d at 148. This is unsurprising since the § 22 criminal cases apply the
same five factor test for closing a courtroom that was originally adopted for § 10 cases. State 

### v. Bone-Club, 128 Wn.2d 254, 261, 906 P.2d 325 (1995). Here, Mr. Herron's argument forces us to address the standing issue left open in Wise. Can a criminal defendant assert the public's § 10 rights in a criminal case? For several reasons, some specific to these facts, we conclude the answer is no. First, we do agree with Mr. Herron that § 10 has application to a criminal case. That does not mean that it applies as he argues it should orthat he has standingto argue it. We simply note that the command of§ lOisthatjustice "in all cases shall be administered openly." It, unlike § 22, is not limited to one particular type ofcase. § 10 has been used by third parties, typically the press, to intervene in criminal cases. E.g., Seattle Times 

### v. Ishikawa, 97 Wn.2d 30,37-39,640P.2d 716 (1982) (newspaper challenge to closure ofpretrial hearing in criminal case); FederatedPubl'n, Inc. 

### v. Kurtz,

7As a civil case, § 22 by its express terms ("In criminal prosecution") did not apply to Reyes. 10No. 26354-1-111 

### State 

### v. Herron
94 Wn.2d 51, 615 P.2d 440 (1980) (same). But, as usedby Mr. Herron here, he essentially is simply asserting § 10 as a secondbasis for having thepublic present during the individual voir dire. That is the same right guaranteed by § 22 that he already waived in the trial court. We can envision uses for § 10 by a party to a criminal case-such as the disclosure ofsealed documents-that do not involve public presence in the courtroom. 8 However, when simply asserted as a redundant basis for the § 22 right, we do not believe § 10 has any independent effect as to the defendant. The waiver ofone right was the waiver ofthe other. Secondly, we conclude Mr. Herron does not have standingto assert the public's § 10 right in this case. We discussed § 10 standing in

### Reyes. See Reyes, slip op. at 31. Washington courts apply the three factor test ofthird party standing used bythe United States Supreme Court: The litigant must have suffered an "injury in fact," thus giving him orher a "sufficiently concrete interest" in the outcome ofthe issue in dispute,
... the litigant musthave a close relation to the third party, ... and there must exist some hindrance to the third party's ability to protect his or her own interests. 

### Powersv. Ohio, 499 U.S. 400,411, 111 S.Ct.1364, 113L.Ed.2d411 (1991) (intemal citations omitted); 

### See 

# r.s. v. 

### BoyScouts of Am., 157 Wn.2d 416,424 n.6, 138 P.3d 1053

8 

### It is also possible to envision that a prosecutor could invoke § 10 to challengethe closing ofa hearing. 11No. 26354-1-III 

### State v. Herron (2006) (citing

### Mearns v. 

### Scharbach, 103 Wn. App. 498, 512, 12 P.3d 1048 (2000)); 

### State
v. 

### Burch, 65 Wn. App. 828, 837, 830 P.2d 357 (1992). As with Mr. Reyes, Mr. Herron cannot satisfy the three criteria. First, he has not claimed thathe has suffered any "injury in fact" by the courtroom closure that he himself orchestrated.9 He makes no showing that he has a particularly close relationship with the public at large or, even, anyparticularpeople who may have been present, which would permithim to asserttheir rights.to Finally, there is no reason to believe that the public could not have asserted its own interests in this case. As noted in 

### Reyes, both the press andthe general public have shownthe ability in the past to use 

### § 10 to challenge closed criminal and civil proceedings. 

### See Reyes, slip op. at 18-20,22-23. He clearly does not have standing under traditional standards. Mr. Herron instead argues that because the

### Bone-Club test was not followed, the public's 

### § 10 right was violated. While true in some respects, that argument begs the question ofhis standing to

9 IfMr. Herron had actually desired to argue thathewas harmed by the courtroom closure, his remedy was to argue ineffective assistance by his trial counseL To simply argue on appeal that he had been harmed by the closure without addressing the tactical choice made at trial would present issues ofboth invited error andjudicial estoppel. 

### E.g., State v. Studd, 137 Wn.2d 533, 546, 973 P.2d 1049 (1999);

### Arifinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 861-62,281 P.3d 289 (2012). to We also question whether anyone can properly presentthe interests ofanother when those interests are inimical to his own. Here, for instance, Mr. Herron and his counsel thoughtthatpublic voir dire was harmful to him. How he then could legitimately argue against thatposition on someone else's behalfis unknown and probably unknowable. 12No. 26354-1-III 

### State 

### v. Herron

assert it. The trial courthere did largely follow the 

### Bone-Club test when it questioned the defendant over two hearings in order to obtain an informed decision from the defense concerning its preferred method ofaddressing any sensitive information. The only

### BoneClub factors that it missed were the requirements that the public be given an opportunity to address the proposed closure and that any expressed concerns be weighed against the defendant's need to close the courtroom. I I That was not done, probably because the process was decided upon at a different hearing than when the closure tookplace. Still, the existence ofan error in the

### Bone-Club analysis does not mean that Mr. Herron is automatically entitled to third party standing to assert it. The existence oferror is not itselfa basis for thirdparty standing. Mr. Herron must have more than that-andhe does not. Finally, we address Mr. Herron's claim that the errorhere was structural and therefore he is entitled to reliefdespite lack ofstanding. 12 We think he misconstrues 

### Momah, which is not as limited in application as he believes.

II 

### Bone-Club, 128 Wn.2d at 258-59. 12 Mr. Herron has beenrepresented at different times during the sixyears his case has been in this courtby two experienced counsel who have filed excellent briefs in his behalf; his current counsel alsopresented a fine oral argument to the panel. His arguments have evolved overthe past six years as the case law has evolved. We have chosen to address certain ofhis arguments while recognizing that others have fallen with the development ofthe law since his appeal was taken. Counsel's arguments were not disjointed, even ifour approach to addressing them may make it appear so. 13

### No. 26354-1-III State 

### v. Herron
Momah involved a highly publicizedprosecution for rape. Questionnaires were used to determine which members ofthe venire were aware ofthe case; thosejurors were to be subject to individual questioning in chambers. Momah, 167 Wn.2d at 145-46. Defense counsel agreed to theprocess and also urged that all

### members ofthe venire undergo private questioning. Id. at 146. All counsel actively tookpart in the chambers questioning ofthe prospectivejurors. Id. at 146-47. The trial court never undertook a publicBone-Club analysis before conducting the private questioning. Id. at 152 n.2. The Washington Supreme Court held that the error in failing to conduct the BoneClub analysis was not structural in nature and, since Mr. Momah could not demonstrate that he had been prejudiced, he was not entitled to a new trial. Id. at 156. The defense duringjury selectionbalanced two 

### §22 rights-apublic trial and an impartialjury. Id. Analogizing to invited error, even while acknowledging that it was not an exact fit, the court determined that the defense's agreement to the process and active participation in it 

### took the case outside ofthe structural error context. Id. at 153-54. It stated: From the outset oftrial, we presume Momah made tactical choices to achieve what he perceived as the fairest result.
. . . As a result this closure and defense counsel's active participation in the questioning, Momahwas able to exercise numerous challenges for cause, removing biased and partial jurors from the venire. We find all ofthese actions by Momah's counsel and the trialjudge occurred in order to promote and safeguard the right to an impartialjury
. Id. at 155.

14No. 26354-l-II1 

### State 

### v. Herron Noting that

### Momah has been characterized as a unique fact pattem13 unlikely to be repeated, Mr. Herron argues that the

### Bone-Club error in his case does constitute structural
error. We disagree. Ifanything, his case is more

### Momah-like than 

### Momah itself. We say that primarily because here there was an express waiverby Mr. Herron ofhis own § 22 public trial rights for the limited purpose of jury selection. In

### Momah, the court dealt with what was essentially a waiver by conduct, which it applied only to the remedy rather than the determination oferror. Here, Mr. Herron expressly waived his right to have the private questioning of jurors done in public. He did so for the express purpose offurthering his right to an impartialjury. Thus, there was no 

### § 22 error even though the 

### Bone-Club analysis was not fully followed. As Mr. Herronwas the only person who could raise a 

### § 22 error, this case does not present a § 22 claim.14 The only avenue ofarguingpublic trial left to Mr. Herronwas to raise the § 10 claim, something that we conclude he lacked the ability to do. We do not fault the trial court for its error in not conducting the

### Bone-Club analysis. At the time oftrial here, our court hadnot yet determined that chambers voir

13 

### See Wise, 176 Wn.2d at 14-15. 14 This fact distinguishes 

### Momah from Mr. Herron's case, although not in a manner that favors Mr. Herron. Because there was not an express waiver of§ 22 rights in 

### Momah, Mr. Momahhadthe ability to raise the issue on appeal. Here, Mr. Herron cannot claim a violation ofhis § 22 rights due to his waiver and can only attempt to assert the public's 

### § 10 rights. 15No. 26354-I-III State 

### v. Herron
dire constituted a closure ofthe courtroom. See Strode, 167 Wn.2d at 223,227. Still, the court certainly at least had an inkling about the issue and attempted to clarify defense desires about the balanceto be struck between public trial and an impartialjury. With the benefit ofhindsight, we now know thatBone-Club was required. A trial court facing a
new future unknown is well advised to conduct aBone-Club analysis even ifit is uncertain whetherthere is a necessity to do so. Here, Mr. Herron expressly chose a course ofaction to seek an impartialjury at the expense ofa small limitation on his rightto publicjury selection. Havingknowingly and intelligently made that decision, he cannot assert 

### § 22 error in this appeal. His attempt instead to assert the public's 

### § 10 rights fails for lack ofstanding. Even though he correctly identifies an error in failing to follow the Bone-Club closure analysis, he lacks standingto assert that error on behalfofothers under 

### § 10 and cannot, unlike the defendant in Momah, assert his own rights under 

### § 22 due to his waiver. For all ofthese reasons, we conclude that his public trial arguments fail. The conviction is affirmed.

WE CONCUR:
Brown, J.
16