                                                                                FILED 

                                                                           OCT. 3,2013 

                                                                   In the Office of the Clerk of Court 

                                                                 W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                            )
                                                )        No. 26354-1-111
                      Respondent,               )
                                                )
       v.                                       )
                                                )
JERRY ALLEN HERRON,                             )        PUBLISHED OPINION
                                                )
                     Appellant.                 )


       KORSMO, C.J.      Recognizing that he had already waived his own right to an open

public trial under art. I, § 22 of the Washington Constitution, appellant Jerry Herron

argues that he should be entitled to allege a violation of the public's open trial rights

under art. I, § 10. We conclude that he lacks standing to challenge the private voir dire in

chambers that he championed over his contrary right of public jury selection. His

conviction for first degree rape is affirmed.

                                           FACTS

       The charge arose after Mr. Herron raped an acquaintance at knifepoint in his car

along the highway between Spokane and Pullman. He had agreed to give the young

woman, K.B., a ride to Pullman from Airway Heights. K.B. was 22; Mr. Herron was 57.
No. 26354-1-111
State v. Herron


       Law enforcement arrested Mr. Herron the following day. After advice of rights,

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 if I am

going to get charged I probably need an attorney. I didn't do it." Clerk's Papers (CP) at

49. After again denying having sexual relations with K.B., he stated, "If it goes farther

than that we need to have an attorney or something. I don't know." CP at 57. He later

terminated the interview. CP at 66.

       Deoxyribonucleic acid (DNA) testing determined that Mr. Herron's semen was

found in the victim and on some of her clothing. The case proceeded to jury trial in June

2007. The issue ofjury selection was discussed at the initial readiness hearing in early

June. The court indicated it would use a jury questionnaire to find sensitive information

that might require individual questioning. Aware of recent cases concerning jury

selection, the court noted that its former procedure of questioning jurors in chambers was

in conflict with the defendant's right to jury selection in the courtroom. The judge told

the defense it is "pretty much up to you" how the case would proceed. Report of

Proceedings (RP) (June 8, 2007) at 72. The defendant personally assured the judge that

he appreciated that "very much." RP (June 8, 2007) at 72.

      The following week a pretrial hearing was held and the issue revisited. Defense

counsel indicated he had discussed the matter with Mr. Herron, who was willing to waive




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No. 26354-I-II1
State v. Herron


his right to a public trial in order to question potential jurors privately in chambers. The

court then addressed Mr. Herron.

            THE COURT: All right. Mr. Herron, you understand you have a right
       to a public trial, where no one other than perhaps the witnesses are
       excluded from the courtroom, and where-when the jury questioning takes
       place, you have a right to have anybody that wants to be here present for
       that process. Do you understand that fully?
            DEFENDANT: Yes.
            THE COURT: And by the same token, if you want to waive that right
       so that jurors will know that if they respond positively to some of these
       questions about things like have they ever been accused of a 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 very reluctant to disclose those things, and particularly to disclose those
       things if they know they're going to be talked about in front of, well, for
       instance, 50 other jurors and other members of the public.
            DEFENDANT: Yes, sir.

RP (June 15,2007) at 104-05.

       Further questions ensued, with the defendant personally assuring the court that he

wanted to give up his right to a public trial and have the jurors questioned privately in

chambers. The prosecutor also presented other options such as questioning the jurors

individually in public with the rest of the venire in another location. Mr. Herron assured

the court that chambers questioning was his preferred approach. The court concluded

that Mr. Herron knowingly and voluntarily waived his right to a public trial on this 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 suggested the need for private

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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. The jury heard the defendant's denial of sexual

contact with the victim through the interviewing officer and also received the DNA test

results. The jury concluded Mr. Herron was guilty of first degree rape while armed with

a deadly weapon.

       He timely appealed to this court, which stayed the 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

matter pending the outcome of State 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 proceeded to oral argument.

                                           ANALYSIS

       This appeal raises issues concerning the voluntariness of the defendant's statement

to law enforcement and the closure of a portion of the jury voir dire. I Both issues have

been overtaken in some respects by intervening case authority. We will address them in

the order they arose in the trial court.




       IMr. Herron has also filed a pro se statement of addition 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 of first degree rape. See State v. Walden,
67 Wn. App. 891,893-94,841 P.2d 81 (1992) (fourth degree assault not included offense
of second degree rape).

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No. 26354-1-III
State v. Herron


       Defendant's Statement

       Mr. Herron initially argued in his original brief that he asserted his right to counsel

during questioning and that the deputy sherifftherefore had a duty to clarify his desire

and/or break off questioning. 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) of the right to remain silent and provide notice that

anything said to the police might be used against him, (2) of the right to consult with an

attorney prior to answering any questions and have the attorney present for questioning,

(3) that counsel will be appointed for him if desired, 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. 1880,68 L.

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

Court ruled that police officers who face an equivocal assertion of the right to counsel

must break off interrogation and seek to clarify the subject's desire. State v. Robtoy, 98

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

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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. United States, 512

U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994).

       Subsequent to the briefing in this case, the Washington Supreme Court clarified

that Davis, not Robtoy, governs equivocal assertions of the right to counsel during

interrogation. State v. Radcliffe, 164 Wn.2d 900,906-07, 194 P.3d 250 (2008). In light

of Radcliffe, the appellant's argument fails. Assuming that his statements were even an

assertion of the desire to have counsel before further conversation with the police, 2 they

were at best unclear. He told the deputy that "if I am going to get charged" and "if it

goes farther" he would need an attorney. Both are conditional statements of future 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.

Under Davis and Radcliffe, these statements were not sufficient to require the deputy to

break off questioning.

       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 if the case proceeded as opposed to a desire to have counsel
before the interview proceeded further.
       3 In light of our ruling, we need not address the question of whether any error
would have been harmful.

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No. 26354-1-111
State v. Herron


       Waiver of§ 22 Right

       Although Mr. Herron does not argue that his waiver of his personal right to a

public trial under § 22 was invalid, we need to briefly discuss the topic in order to place

his other arguments in proper context. We conclude that the record shows that Mr.

Herron knowingly and voluntarily gave up his right to have voir dire conducted in public.

       The provision 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
       impartial jury of the county in which the offense is charged to have been
       committed.

CONST. art. I, § 22. This section, as quoted, was adopted in 1889 as an original provision

of our constitution. Two of the noted rights secured by § 22 are at issue in this case-the

right to a "public trial" and the right to "an impartial jury" to hear that trial.

       In order to waive a constitutional right, there must be "an intentional

relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304

U.S. 458, 464, 58 S. Ct. 1019, 821. Ed. 1461 (1938). Our court has restated that

standard this way: "the waiver of a 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 under these standards. He knew

that he had the right to have voir dire conducted in the courtroom in the presence of any



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No. 26354-1-111
State v. Herron


member of the public who might have been in attendance. Suggestions were made that

would have allowed him to conduct private voir dire in public. Believing that 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 order to further his

equally important right to obtain an impartial jury.

        Mr. Herron clearly waived his right to a public trial. However, our constitution

recognizes that Mr. Herron was not the only one who had a right to public proceedings in

this case. The effect of his waiver on the rights of the 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's right under § 10. We conclude that he has no standing to

assert the public's right and that even if standing had existed, his claim would fail under

State v. Momah, 167 Wn.2d 140,217 P.3d 321 (2009).

        Art. I, § 10 provides:

        SECTION 10 ADMINISTRATION OF JUSTICE. Justice in all cases
        shall be administered openly, and without unnecessary delay.

        The history of § lOis discussed in great detail in our recent decision in In re

Detention a/Reyes, No. 28167-1-111, 2013 WL 5297338 (Wash. ct. App. Sept. 19,




                                              8

No. 26354-I-III
State v. Herron


2013).4 In Reyes, a sexually violent predator action, the respondent had not asserted his

§ 10 right when a chambers hearing was conducted on his pretrial motion to dismiss.

Following earlier precedent, we agreed that a civil litigant who does not assert his § 10

right at trial must establish prejudice in order to show manifest error that would allow

him to raise the issue on appeal under RAP 2.5(a)(3) because a § 10 violation is not

structural error. Reyes, slip op. at 28-29. We also concluded that Mr. Reyes lacked

standing to assert the public's § 10 right under the traditional test for standing. Id. at 31­

32. We did not rule categorically that a litigant would never have standing to assert the

public's right.

       Reyes noted that the rights created by the two provisions, although overlapping,

are different. The rights conveyed by § 22 are personal to the criminal defendant. 5

However, § 10 functions as a command to the judiciary and is effectively a right held by

all citizens of Washington. Id. at II. A litigant has no special right under § 10 apart

from the collective right held 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 court the same day as Mr. Herron's case.
       5 Federated Pub/'n v. Kurtz, 94 Wn.2d 51,59-61,615 P.2d 440 (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.

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No. 26354-1-111
State v. Herron


       Although instructive on certain aspects of this case, Reyes is not dispositive. For

one thing, Reyes was not a § 22 case. 7 The Washington Supreme Court has yet to decide

if a criminal defendant can assert the 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 different provisions 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 or that he has standing to argue

it. We simply note that the command of § lOis that justice "in all cases shall be

administered openly." It, unlike § 22, is not limited to one particular type of case. § 10

has been used by third parties, typically the press, to intervene in criminal cases. E.g.,

Seattle Times v. Ishikawa, 97 Wn.2d 30,37-39,640 P.2d 716 (1982) (newspaper

challenge to closure of pretrial hearing in criminal case); Federated Publ'n, Inc. v. Kurtz,


       7 Asa civil case, § 22 by its express terms ("In criminal prosecution") did not
apply to Reyes.

                                             10 

No. 26354-1-111
State v. Herron


94 Wn.2d 51, 615 P.2d 440 (1980) (same). But, as used by Mr. Herron here, he

essentially is simply asserting § 10 as a second basis for having the public 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 of sealed 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 of one

right was the waiver ofthe other.

       Secondly, we conclude Mr. Herron does not have standing to 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 of third party standing used by the United

States Supreme Court:

       The litigant must have suffered an "injury in fact," thus giving him or her a
       "sufficiently concrete interest" in the outcome of the issue in dispute, ...
       the litigant must have 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. Boy Scouts ofAm., 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 challenge the
closing of a hearing.

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No. 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 that he 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, any particular people who may have been present, which would

permit him to assert their 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

and the general public have shown the 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 of his standing to



        9 If Mr. Herron had actually desired to argue that he was 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 of both invited error and judicial 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 present the interests of another
when those interests are inimical to his own. Here, for instance, Mr. Herron and his
counsel thought that public voir dire was harmful to him. How he then could legitimately
argue against that position on someone else's behalf is unknown and probably
unknowable.

                                              12
No. 26354-1-III
State v. Herron


assert it. The trial court here 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 of addressing any sensitive information. The only Bone-

Club 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 took place. Still,

the existence of an error in the Bone-Club analysis does not mean that Mr. Herron is

automatically entitled to third party standing to assert it. The existence of error is not

itself a basis for third party standing. Mr. Herron must have more than that-and he does

not.

       Finally, we address Mr. Herron's claim that the error here was structural and

therefore he is entitled to relief despite lack of standing. 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 been represented at different times during the six years his case
has been in this court by two experienced counsel who have filed excellent briefs in his
behalf; his current counsel also presented a fine oral argument to the panel. His
arguments have evolved over the past six years as the case law has evolved. We have
chosen to address certain of his arguments while recognizing that others have fallen with
the development of the law since his appeal was taken. Counsel's arguments were not
disjointed, even if our approach to addressing them may make it appear so.

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No. 26354-1-III
State v. Herron


       Momah involved a highly publicized prosecution for rape. Questionnaires were

used to determine which members of the venire were aware of the case; those jurors were

to be subject to individual questioning in chambers. Momah, 167 Wn.2d at 145-46.

Defense counsel agreed to the process and also urged that all members of the venire

undergo private questioning. Id. at 146. All counsel actively took part in the chambers

questioning of the prospective jurors. Id. at 146-47. The trial court never undertook a

public Bone-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 Bone-

Club 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 selection balanced two § 22 rights-a public trial and an impartial jury. 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 of the structural error context. Id. at 153-54. It stated:

       From the outset of trial, 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, Momah was
       able to exercise numerous challenges for cause, removing biased and partial
       jurors from the venire. We find all of these actions by Momah's counsel
       and the trial judge occurred in order to promote and safeguard the right to
       an impartial jury .

Id. at 155.




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No. 26354-l-II1
State v. Herron


       Noting that Momah has been characterized as a unique fact pattem 13 unlikely to be

repeated, Mr. Herron argues that the Bone-Club error in his case does constitute structural

error. We disagree. If anything, his case is more Momah-like than Momah itself. We

say that primarily because here there was an express waiver by Mr. Herron of his own

§ 22 public trial rights for the limited purpose ofjury 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 of error.

       Here, Mr. Herron expressly waived his right to have the private questioning of

jurors done in public. He did so for the express purpose of furthering his right to an

impartial jury. Thus, there was no § 22 error even though the Bone-Club analysis was not

fully followed. As Mr. Herron was the only person who could raise a § 22 error, this case

does not present a § 22 claim.14 The only avenue of arguing public trial left to Mr.

Herron was 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 of trial here, our court had not 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. Momah had the ability to raise the issue on appeal. Here, Mr. Herron
cannot claim a violation of his § 22 rights due to his waiver and can only attempt to assert
the public's § 10 rights.

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No. 26354-I-III
State v. Herron


dire constituted a closure of the 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 balance to be struck between public trial and an impartial jury. With the

benefit of hindsight, we now know that Bone-Club was required. A trial court facing a

new future unknown is well advised to conduct a Bone-Club analysis even if it is

uncertain whether there is a necessity to do so.

       Here, Mr. Herron expressly chose a course of action to seek an impartial jury at

the expense of a small limitation on his right to public jury selection. Having knowingly

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 of standing. Even though

he correctly identifies an error in failing to follow the Bone-Club closure analysis, he

lacks standing to assert that error on behalf of others under § 10 and cannot, unlike the

defendant in Momah, assert his own rights under § 22 due to his waiver. For all of these

reasons, we conclude that his public trial arguments fail.

       The conviction is affirmed.




WE CONCUR: 




      Brown, J.


                                             16 

