                                                                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                 v.                             )        UNPUBLISHED OPINION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-Club l 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, "if you 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 Bone-

Club 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




                                               3

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.



                                                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 consider this kind

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

selection strategy; or, if the 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 of the courtroom during voir dire is presumed to be

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




       2 But 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.

                                               5

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 if the 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


                                              6

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.


                                           Lawrence-Berrey, J.
WE CONCUR: 



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