State v. Frawley, 334 P.3d 1022

Background

Consolidated appeals from State v. Frawley and State v. Applegate challenging in‑chambers (private) voir dire that excluded the public without a full on‑the‑record Bone‑Club analysis.
Frawley: trial judge questioned individual jurors in chambers after defendant waived presence for individual voir dire; court never articulated Bone‑Club factors before closure; conviction for first‑degree felony murder was reversed by Court of Appeals.
Applegate: at a retrial on aggravating factors, one juror was briefly questioned in chambers after the judge told the courtroom the proceeding would be kept public and defense counsel, after conferring with Applegate, stated Applegate had no objection; Court of Appeals affirmed the aggravating findings.
Central legal dispute: whether a defendant can validly waive the state constitutional public‑trial right (Art. I, § 22) and whether the trial courts’ failures to perform the Bone‑Club five‑factor test on the record require reversal.
The Supreme Court majority holds both in‑chambers questionings were closures without the required Bone‑Club analysis, finds no valid defendant waivers of the public‑trial right in either case, rejects a de minimis exception, and affirms reversal in Frawley and reversal in Applegate (remanding for further proceedings).

Issues

Issue	State's / Plaintiff's Argument	Defendant's Argument	Held
Whether in‑chambers voir dire without on‑record Bone‑Club analysis violates the state public‑trial rights	Closure was permissible or harmless / defendant waived	Closure violated Art. I, §§ 22 and 10 absent Bone‑Club inquiry	Court: Such in‑chambers questioning is a closure; Bone‑Club analysis required on the record and was not performed — violation.
Whether a defendant can affirmatively waive the public‑trial right and what suffices	Applegate: defendant personally waived; State: waiver defeats appellate challenge	Defendants: no knowing, voluntary, intelligent waiver occurred; waiver of presence ≠ waiver of public trial	Court: Waiver requires at least an equivalent on‑record, knowing, voluntary, intelligent waiver (analogous to jury‑trial waiver); neither defendant made such a waiver.
Whether defendant’s silence or lack of contemporaneous objection bars appellate review (RAP 2.5)	Errors not preserved should be reviewed only if manifest; here preservation arguments apply	Defendants: public‑trial errors may be raised for first time on appeal; preservation not required	Court: Declines to impose a contemporaneous‑objection rule; public‑trial violations may be raised for first time on appeal.
Whether limited in‑chambers questioning can be treated as de minimis or subject to harmless‑error review	State: some public‑trial errors are de minimis/harmless	Defendants: public‑trial violations are structural and not subject to harmless error	Court: Rejects de minimis approach under Washington law; closures without Bone‑Club are structural for which new trial is required.

Key Cases Cited

State v. Bone‑Club, 128 Wn.2d 254 (1995) (establishes five‑factor test for courtroom closures)
State v. Wise, 176 Wn.2d 1 (2012) (voir dire closure without Bone‑Club analysis is structural error)
State v. Paumier, 176 Wn.2d 29 (2012) (reinforces Bone‑Club/Bone‑Club‑style analysis for voir dire closures)
Presley v. Georgia, 558 U.S. 209 (2010) (public trial protections and necessity of meaningful opportunity to object)
State v. Strode, 167 Wn.2d 222 (2009) (waiver discussion; public‑trial right must be knowingly waived)
In re Personal Restraint of Morris, 176 Wn.2d 157 (2012) (plurality: waiver of presence not equivalent to waiver of public‑trial right)
State v. Easterling, 157 Wn.2d 167 (2006) (rejects de minimis approach to public‑trial violations)
Waller v. Georgia, 467 U.S. 39 (1984) (closure of a suppression hearing can implicate the public‑trial right)
Johnson v. Zerbst, 304 U.S. 458 (1938) (definition of waiver as intentional relinquishment)
State v. Momah, 167 Wn.2d 140 (2009) (public‑trial jurisprudence and balancing considerations)