Denis Paul Tracy, Whitman Co Prosecutor, Colfax, WA, for Respondent.
Jeffry K. Finer, Center for Justice, Spokane, WA, for Appellant.
[177 Wn.App. 99] ¶ 1 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.
¶ 2 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.
¶ 3 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.
¶ 4 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 of jury selection was discussed at the initial readiness hearing in early June. The court indicated it would use a jury questionnaire to find sensitive information [177 Wn.App. 100] 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.
¶ 5 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 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?
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.
¶ 6 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 [177 Wn.App. 101] 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.
¶ 7 Jury selection began three days later and proceeded according to the pretrial discussions. Jurors whose questionnaire answers suggested the need for private 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.
¶ 8 He timely appealed to this court, which stayed the matter after initial briefing to await the decision in State v. Strode,167 Wash.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 Wash.2d 1, 288 P.3d 1113 (2012). After each stay was lifted, this court ...