State of Washington v. Scott Anthony Glass ( 2015 )

FILED
MAY 5,2015
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. 26686-9-III
Respondent, )
)
v. )
)
SCOTT ANTHONY GLASS, ) UNPUBLISHED OPINION
)
Appellant. )
FEARING, J. - We address again whether an accused's public trial rights were
violated, and, if so, whether he waived the right to assert those rights on appeal. The trial
court asked a potential juror questions in the privacy of court chambers. Based on our
high court's recent decision in State v. Frawley, 181 Wn.2d 452,334 P.3d 1022 (2014),
we reverse and remand charges against Scott Glass for a new trial.
PROCEDURE
On June 19,2007, the State charged Scott Glass with failure to register as a sex
offender. The case went to trial, with voir dire occurring on November 29,2007. At the
start of voir dire, the trial court asked potential jurors questions regarding their ability to
serve:
[THE COURT:] Has anybody been convicted ofa serious crime and
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your civil rights not yet restored? Ifnot, please raise your hand. Or ifso.
The record will reflect no response.
Is everybody able to read and write the English language? If not
please raise your hand.
The record will reflect no response.
Does anybody have a physical or mental defect that would prevent
them from serving? If so, please raise your hand.
Ma'am. Juror number-21.
JUROR: Can I speak with you privately?
THE COURT: Well, I've got to tell you, we just ran into some
problems about that. Yes, I'd really like for you to speak with me
privately. This is an open court proceeding. And as an open court
proceeding the-Court of Appeals Division III has just decided that we
can't speak in chambers without the permission of everybody in the
courtroom-Does anybody in the courtroom have any objection to
speaking in chambers with this particular juror?
If so please raise your hand.
You don't even have to be a prospective juror; you can just be a
visitor. Anybody have any objection?
The record will reflect no response.
[DEFENSE COUNSEL], do you or your client have any objection to
that?
[DEFENSE COUNSEL]: No, your Honor.
THE COURT: Okay. Then, Ma'am, why don't you come on in and
we'll speak in chambers.
Report ofProceedings (RP) at 8-10.
The trial transcript then records a conversation in chambers. The record does not
list all those present during the conversation. On the record, Juror 21 disclosed a bladder
condition, telling the court: "I've had to go eight times this morning and I'm in pain." RP
at 11. The trial court asked the State and Scott Glass' counsel if either had questions of
the potential juror. Neither posed any question. Presumably defense counsel was present
in chambers during the juror's disclosure. The trial court then asked the State and Glass'
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counsel if either had "any objections if I excuse this juror?" RP at 12. Neither objected.
Immediately thereafter, the following colloquy occurred:
THE COURT: Do you want to speak here with your client
privately?
[DEFENSE COUNSEL]: I don't-
RP at 12. Once again, the record does not reflect if Scott Glass attended the chambers
conference. The trial court excused Juror 21.
The jury found Scott Glass guilty of failing to register as a sex offender. The trial
court sentenced Glass to 57 months confinement and 36 to 48 months of community
custody.
LAW AND ANALYSIS
Public Trial Right
Scott Glass contends the trial court violated his right to a public trial when it
interviewed a potential juror in chambers without first conducting a Bone-Club analysis,
referencing State v. Bone-Club, 128 Wash. 2d 254,906 P.2d 325 (1995). Glass need not
object at trial in order to raise this issue for the first time on appeal, and any error is not
de minimis. State v. Shearer, 181 Wn.2d 564,569-70,573,334 P.3d 1078 (2014). This
court reviews alleged public trial violations de novo. State v. Wise, 176 Wash. 2d 1, 9, 288
PJd 1113 (2012).
The United State Constitution's Sixth Amendment, applicable to the states through
the Fourteenth Amendment due process clause, directs, in relevant part, that "[i]n all
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criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." In
Re Oliver, 333 U.S. 257,273,68 S. Ct. 499, 92 L. Ed. 682 (1948). Washington's
Constitution contains two corollary provisions. Article I, section 10 of the Washington
Constitution reads, "Justice in all cases shall be administered openly, and without
unnecessary delay." This provision entitles the public and the press, as representatives of
the public, to openly administered justice. Allied Daily Newspapers of Wash. v.
Eikenberry, 121 Wash. 2d 205, 209-10, 848 P.2d 1258 (1993); Cohen v. Everett City
Council, 85 Wash. 2d 385, 388, 535 P.2d 801 (1975). Article I, section 22 ofthe
Washington Constitution provides, in pertinent part, "In criminal prosecutions the
accused shall have the right to ... a speedy public trial." The constitutional principles
arise from the guarantee of open judicial proceedings being a fundamental part of Anglo-
American jurisprudence since the common law. Richmond Newspapers, Inc. v. Virginia,
448 U.S. 555, 573 n.9, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980); Federated Publ'ns, Inc.
v. Kurtz, 94 Wn.2d 51,66,615 P.2d 440 (1980) (Utter, J., concurring and dissenting).
America had a tradition of open criminal trials that preceded drafting of the Bill of
Rights. Seattle Times Co. v.Ishikawa, 97 Wash. 2d 30, 35-36, 640 P.2d 716 (1982).
The guaranty of open criminal proceedings extends to the process ofjuror
selection, which is itself a matter of importance, not simply to the adversaries but to the
criminal justice system. Press-Enter. Co. v. Superior Court ofCA, 464 U.S. 501,505,
104 S. Ct. 819, 78 L. Ed. 2d 629 (1984); In re Pers. Restraint ofOrange, 152 Wash. 2d 795,
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804, 100 P.3d 291 (2004). In Bone-Club, this court enumerated five criteria that a trial
court must consider on the record in order to close trial proceedings to the public. Wise,
176 Wash. 2d at 10. The Bone-Club factors are:
(I) The proponent of closure or sealing must make some showing
[of a compelling interest], and where that need is based on a right other
than an accused's right to a fair trial, the proponent must show 'a serious
and imminent threat' to that right.
(2) Anyone present when the closure motion is made must be given
an opportunity to object to the closure.
(3) The proposed method for curtailing open access must be the
least restrictive means available for protecting the threatened interests.
(4) The court must weigh the competing interests of the proponent
of closure and the public.
(5) The order must be no broader than necessary in application or
duration.
Bone-Club, 128 Wash. 2d at 258-59 (quoting Eikenberry, 121 Wash. 2d at 210-11).
Scott Glass' appeal presents two issues (l) whether the trial court sufficiently
analyzed the Bone-Club factors on the record prior to closing voir dire, and (2) whether
Glass waived his public trial right such that he cannot assert that right on appeal. Our
Supreme Court's recent opinion in State v. Frawley, consolidated with State v. Applegate
disposes of both issues. State v. Frawley, 181 Wn.2d 452,334 P.3d 1022 (2014).
During Brian Frawley's trial, the court proposed closing the courtroom to the
public during voir dire out of concern that space was not sufficient for both the venire and
the public. The court asked whether Frawley would waive his right to have the public
present and engaged Frawley in an extensive colloquy, after which the trial judge
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concluded that Frawley waived his right to have the public present during general voir
dire. The jury was selected and convicted Frawley of first degree felony murder.
In Ronald Applegate's trial, the trial court asked whether either party or any
member of the public would object to interviewing potential jurors in chambers. After
voir dire commenced, the trial judge identified one juror likely to be questioned privately
based on the questionnaire. The court again asked if any member of the jury pool or
public had any objection to the court speaking with the juror in chambers. The court
explained, "It would be a public proceeding. Any member of the public that is available
to come in [it] will have the outer door open for that purpose." Frawley, 181 Wash. 2d at
457 (footnote omitted). Neither the State nor Applegate's counsel objected. After a brief
sidebar between Applegate and his counsel, defense counsel told the court, "I have talked
it over with Mr. Applegate. He has no objection." Frawley, 181 Wash. 2d at 458.
Frawley is a splintered decision, consisting of four distinct opinions: the lead
opinion; a concurrence; a concurrence in part, dissent in part; and a dissent. Answering
our questions on appeal requires a scorecard to discern votes cast on differing issues in
Frawley. Justice Charles Johnson,joined by Justice Owens, wrote the lead opinion,
which found a public trial violation and no waiver in both Frawley and Applegate.
Frawley, 181 Wash. 2d 455, 466. Both cases were thus remanded for new trials. On the
issue of waiver, the lead opinion focused on the overlap between waiver and the second
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Bone-Club factor, and also the structural nature of public trial errors. Frawley, 181
Wash. 2d at 460-64.
Justice Stephens, joined by Justice Fairhurst, concurred with the Frawley lead
opinion's closure analysis and outcomes. Frawley, 181 Wn.2d at 466-67,469 (Stephens,
J., concurring). But Justice Stephens disagreed with the lead opinion's emphasis on
structural error, writing: "Whether a defendant waives his right to assert a constitutional
error presents a different question from whether such error occurs." Frawley, 181 Wash. 2d
at 467 (Stephens, J., concurring). Justice Stephens reasoned that Ronald Applegate could
not have knowingly waived his public trial right since the trial court mischaracterized its
closure as a "public proceeding." Frawley, 181 Wash. 2d at 469 (Stephens, J., concurring).
Thus, according to Justice Stephens, any waiver by Applegate may have been premised
on a misstatement of law. Frawley, 181 Wash. 2d at 468-69 (Stephens, J., concurring).
Justice McCloud, joined by Justice James Johnson and Justice Gonzalez, also
concurred with the lead opinion's closure analysis, but dissented on the issue of waiver.
Frawley, 181 Wash. 2d at 469-70,476 (McCloud, J., concurring in part, dissenting in part).
Because "Applegate got the right to object to courtroom closure, got to 'talk!] it over'
with his own (presumptively effective) lawyer, and provided his answer, through counsel,
that he did not object." Justice McCloud would conclude that Ronald Applegate
knowingly waived his public trial right. Frawley, 181 Wash. 2d at 473-74,476-77
(McCloud, J., concurring in part, dissenting in part).
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Justice Wiggins, joined by Chief Justice Madsen, dissented on the issue of waiver,
writing: "Waiver is one way to lose on appeal; failure to object or show prejudice is
another." Frawley, 181 Wash. 2d at 477 (Wiggins, J., dissenting). Justice Wiggins wrote:
"The lead opinion simplistically assumes that any time jurors are questioned in chambers
the court has committed a structural error." Frawley, 181 Wash. 2d at 480 (Wiggins, J.,
dissenting) .
Our first task is to analyze Frawley to detennine if the high court would hold that
Scott Glass' public trial rights were violated when the trial court questioned one juror in
chambers. We will later ask whether, under Frawley, the state Supreme Court would rule
that Scott Glass waived his rights.
Justice Stephen's concurrence and Justice McCloud's concurrence/dissent
disagreed with only the lead opinion's waiver analysis. Thus, seven Justices agreed with
the lead opinion's analysis on when and whether a trial court sufficiently analyzes the
Bone-Club factors on the record prior to a closure. We thus rely exclusively on Justice
Charles Johnson's lead opinion in addressing the issue of a violation of the public trial
right.
Justice Charles Johnson penned:
The public trial right applies to jury selection, including the
individual questioning of prospective jurors, Wise, 176 Wash. 2d at 11, but the
right is not absolute, Bone-Club, 128 Wash. 2d at 259. A trial court may
question potential jurors individually outside of the public's presence­
thereby closing the courtroom-but only after considering the five Bone­
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Club factors on the record. Wise, 176 Wash. 2d at 13. Closure of the
courtroom without this analysis is a structural error for which a new trial is
the only remedy. Wise, 176 Wash. 2d at 15.
Frawley, 181 Wash. 2d at 459. (footnote omitted).
The State of Washington argues that the trial court sufficiently analyzed the Bone-
Club factors prior to interviewing Juror 21 in chambers. On this issue, the facts are
strikingly similar to Applegate.
In Applegate, although the trial judge stated on the record that he had
analyzed the Bone-Club factors and twice asked the courtroom if Applegate
or any member of the public objected, he failed to articulate a compelling
interest for the closure, weigh this compelling interest against any
competing interests, or consider alternatives such that the closure was the
least restrictive means of protecting any threatened interest and no broader
than necessary.
Frawley, 181 Wash. 2d at 459.
Like the trial judge in Applegate, Scott Glass' trial judge asked if Glass or any
other person objected to the interviewing of Juror 21 in chambers. The trial judge,
however, neglected to identify a compelling interest for the closure, weigh this interest
against competing interests, or consider alternatives. We might ascertain, as the State
suggests, the compelling interest as Juror 21 's privacy interest in her physical health. But
trial courts must "articulate and assess every Bone-Club factor on the record." Frawley,
181 Wash. 2d at 460. "Weighing this compelling interest against competing interests
ensures that trial courts give due consideration to the interests furthered by maintaining
an open proceeding, such as fostering public confidence in the system and the appearance
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No. 26686-9-111
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of fairness." Frawley, 181 Wash. 2d at 460.
The State argues that Scott Glass needed to provide the trial court a least
restrictive alternative to the chambers conference. No decision supports this argument.
Washington decisions require the trial court to affirmatively weigh the Bone-Club factors
on the record. The obligation to identify a compelling interest, weigh the competing
interests, and analyze less restrictive alternatives is on the trial court. Bone-Club, 128
Wash. 2d at 261. Reviewing courts may not engage in the Bone-Club analysis if the trial
court fails to do so, such that a trial court's failure to enter findings is nearly an automatic
remand for a new trial. State v. Strode, 167 Wash. 2d 222, 228-29, 217 P.3d 310 (2009);
Bone-Club, 128 Wash. 2d at 260-61. Regardless of an overriding interest in closing the
courtroom, the reviewing court will reverse if the trial court did not make appropriate
findings. State v. Leyerle, 158 Wash. App. 474, 481, 242 P.3d 921 (2010).
The State also argues that the short recess to chambers with Juror 21 does not
constitute a closure. Although our courts have discussed de minimis violations,
Washington courts have never approved trivial violations of this constitutional right.
State v. Strode, 167 Wash. 2d at 230; State v. Easterling, 157 Wash. 2d 167, 180, 137 P.3d 825
(2006); State v. Brightman, 155 Wash. 2d 506, 517, 122 P.3d 150 (2005); Leyerle, 158 Wn.
App. at 485. In each of the four decisions, the Supreme Court rejected arguments of the
State that a closure was trivial.
Because the trial court did not analyze each Bone-Club factor on the record before
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No. 26686-9-111
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instituting the closure, we hold it violated Scott Glass' right to a public trial.
Waiver
After a review of all Frawley opinions, we hold that Scott Glass may assert his
public trial rights for the first time on appeal, because he did not knowingly, intelligently,
and voluntarily waive that right under Justice C. Johnson's lead opinion, Justice
Stephens's concurrence, and Justice McCloud's concurrence/dissent. A close perusal of
the opinions show that seven of the nine justices would rule that Glass did not waive his
rights.
The lead opinion for Frawley set forth the general rule for waiver, and then noted
how waiver differs in different constitutional circumstances:
A "waiver" is an "intentional relinquishment or abandonment of a
known right or privilege." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct.
1019,82 L. Ed. 1461 (1938). Courts "indulge every reasonable
presumption against waiver of fundamental rights," City o/Bellevue v.
Acrey, 103 Wash. 2d 203, 207,691 P.2d 957 (1984) (citing Glasser v. United
States, 315 U.S. 60,62 S. Ct. 457, 861. Ed. 680 (1942», and the
prosecution bears the burden of establishing a valid waiver, State v. Wicke,
91 Wash. 2d 638, 645,591 P.2d 452 (1979). In general, the waiver ofa
constitutional right must be made knowingly, voluntarily, and intelligently,
State v. Thomas, 128 Wash. 2d 553, 558,910 P.2d 475 (1996), but waivers of
different constitutional rights meet this standard in different ways.
Compare Thomas, 128 Wash. 2d at 559 ("As with the right to self­
representation, the right not to testify, and the right to confront witnesses,
the judge may assume a knowing waiver of the right from the defendant's
conduct."), with City o/Seattle v. Williams, 101 Wn.2d 445,452,680 P.2d
1051 (1984) (knowing waiver requires defendant be informed of his
constitutional right to a jury trial, and if the right is waived, he must be
afforded a certain number of days in which to change his mind)~ State v.
Stegall, 124 Wn.2d 719,725,881 P.2d 979 (1994) ("[T]he inquiry by the
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court will differ depending on the nature of the constitutional right at
issue.").
Frawley, 181 Wash. 2d at 461. Under the lead opinion, "a knowing, voluntary, and
intelligent waiver of the public trial right would require, at the very least, a written waiver
signed by the defendant expressly acknowledging and waiving the right." Frawley, 181
Wash. 2d at 462. Because Scott Glass did not waive his right to a public trial in writing,
Glass may, under the lead opinion, raise the issue for the first time on appeal. At least
two Justices would not find waiver in Glass' case because of the lack of a writing.
The lead opinion additionally emphasized that "must because a valid affirmative
waiver renders a closure free from challenge on appeal should not mean that the error
does not occur to the detriment of others." Frawley, 181 Wash. 2d at 464.
While it may be true that a closure should not be subject to challenge
on appeal when there is a valid affirmative waiver of a defendant's article I,
section 22 public trial rights, it is necessary to emphasize that the doctrine
of affirmative waiver is inconsistent with the Bone-Club analysis. This is
the case because the Bone-Club analysis already incorporates a waiver
analysis as the second factor, which explicitly compels the trial court to ask
if anyone objects to the closure.
Frawley, 181 Wash. 2d at 463.
Justice Stephens agreed with the lead opinion's outcome, but criticized that "the
lead opinion clouds the clarity of this holding by going on to suggest that the very waiver
analysis it applies is inconsistent with our Bone-Club analysis." Frawley, 181 Wash. 2d at
467 (footnote omitted) (Stephens, J., concurring). Justice Stephens emphasized that
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No. 26686-9-111
State v. Glass
"even in the absence of a full Bone-Club analysis, a defendant is entitled to waive his
right to an open court if the waiver meets the constitutional standard for waiver."
Frawley, 181 Wash. 2d at 467 (Stephens, J., concurring).
Still, Justice Stephens' concurrence directs against finding waiver in this case.
Justice Stephens wrote: "[Applegate] indicated, through counsel, that he had no objection
to in chambers voir dire, but the discussion that preceded the conversation between the
court and counsel concerning Applegate's waiver was confused at best and misstated the
law at worst." Frawley, 181 Wash. 2d at 468 (Stephens, J., concurring). The trial court in
Applegate insisted that its "in-chambers proceeding was not a closure," which "strongly
suggested that no public trial right was even implicated." Frawley, 181 Wash. 2d at 469
(Stephens, 1., concurring). Given this inaccurate characterization of his rights, Applegate
could not have made "a 'knowing' and 'intelligent' decision to 'waive' his right."
Frawley, 181 Wash. 2d at 469 (Stephens, J., concurring).
The presence or absence of a Bone-Club analysis is not
determinative of whether a defendant will be allowed to challenge a
violation of article I, section 22. It is equally important to recognize that a
waiver is valid only when knowingly, intelligently, and voluntarily made,
and this must be clear in the record.
Frawley, 181 Wash. 2d at 469 (Stephens, J., concurring). Defense counsel's lack of
objection is insufficient, given Justice Stephens' treatment of Applegate, to show that
Scott Glass knowingly, intelligently, and voluntarily waived his public trial right on the
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No. 26686-9-111
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record. Thus, two additional Justices would not find waiver in Scott Glass' case because
of the lack of an intelligent waiver.
Last, Justice McCloud's concurrence/dissent also directs against finding waiver in
this case. Finding an analogy to the right to a jury "apt and workable," Justice McCloud
would rule "a statement on the record by defense counsel can support a waiver when the
record, fairly read, indicates that the defendant knew, heard, understood, and agreed with
what the lawyer was saying." Frawley, 181 Wash. 2d at 475-76 (McCloud, J., concurring in
part, dissenting in part). In a parenthetical, Justice McCloud summarized and quoted
State v. Stegall, 124 Wn.2d 719,729,881 P.2d 979 (1994) as standing for:
[W]aiver of right to 12-personjury valid only if record shows "(1) a
personal statement from the defendant expressly agreeing to the waiver, or
(2) an indication that the trial judge or defense counsel has discussed the
issue with the defendant prior to the attorney's own waiver" (emphasis
added)).
Frawley, 181 Wash. 2d at 475-76 (McCloud, 1., concurring in part, dissenting in part). The
emphasis is Justice McCloud's. As noted, because "Applegate got the right to object to
courtroom closure, got to 'talk[] it over' with his own (presumptively effective) lawyer,
and provided his answer, through counsel, that he did not object," Justice McCloud
would conclude that Applegate knowingly waived his public trial right. Frawley, 181
Wash. 2d at 473-74, 476-77 (McCloud, J., concurring in part, dissenting in part).
As in Applegate, Scott Glass' trial judge asked if anyone objected to in chambers
interviewing, and specifically asked defense counsel ifthere was any objection.
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No. 26686-9-111
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Nevertheless, unlike Applegate, the record lacks any evidence that Scott Glass conferred
with defense couns~l prior to counsel's waiver. Without guidance from counsel,
defendant might not understand his right'to a public trial, its extent, or its import. Justice
McCloud's concurrence/dissent, given its emphasis on Ronald Applegate having
conferred with counsel, directs against finding waiver in this appeal.
The State of Washington contends Scott Glass' silence during the closure and
chamber conference requires affirmation of his conviction. The Frawley decision defeats
this contention. Our state high court repeatedly, despite numerous dissents, held that the
public trial right is not waived by silence. Strode, 167 Wash. 2d at 229; Bone-Club, 128
Wash. 2d at 257; State v. Marsh, 126 Wash. 142, 146-47,217 P. 705 (1923). A defendant
does not waive his or her right to a public trial by failure to lodge a complaint or by his or
her attorney participating in closed proceedings. In re Pers. Restraint ofMorris, 176
Wash. 2d 157, 166-67,288 P.3d 1140 (2012); Leyerle, 158 Wash. App. at 482. Courts uphold
a waiver of the right to a public trial only if the defendant, not his attorney, expressly
declares a waiver on the record after being explained his rights. State v. Herron, 177 Wn.
App.96, 104,318 P.3d 281 (2013), review granted, 182 Wn.2d 1001,342 P.3d 326
(2015); State v. Castro, 141 Wash. App. 485, 490-91, 170 P.3d 78 (2007).
CONCLUSION
We reverse Scott Glass' conviction for failing to register as a sex offender. We
remand the case for a new trial.
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A majority ofthe 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.
I CONCUR:
`` Brown, A . . .
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No. 26686-9-111
KORSMO, J. (concurring) - This case illustrates some of the problems of deciding
an appeal seven years after its commencement without obtaining briefing on the
developments in the law during that time. 1 agree with the majority that the trial court
erred in failing to completely apply on the record its Bone-Club l analysis, particularly the
balancing component, and that this error requires reversal under existing precedent. 1 do
not agree that the decision in State v. Frawley, 181 Wn.2d 452,334 PJd 1022 (2014),
governs on the waiver issue. That fractured opinion is non-precedential except in its
result.
It is well settled in Washington that opinions which do not capture a majority of
the court are not precedential. In re Pers. Restraint o/Francis, 170 Wash. 2d 517, 532 n.7,
242 PJd 866 (2010). When faced with applying such a case, the rule in the federal
courts is that the narrowest opinion concurring in the result provides the holding of the
court. Marks V. United States, 430 U.S. 188, 193,97 S. Ct. 990, 51 L. Ed. 2d 260 (1977).
Washington at times has followed this approach. E.g., Davidson V. Hensen, 135 Wash. 2d
112, 128,954 P.2d 1327 (1998). More recently, the Washington rule has been restated so
that a fragmented court's "holding is the narrowest ground upon which a majority
1 State V. Bone-Club, 128 Wash. 2d 254, 906 P.2d 325 (1995).
No. 26686-9-111
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agreed." Francis, 170 Wash. 2d at 532 n. 7 (emphasis added). Thus, in the mathematics of
joining disparate opinions, two plus one plus two does not necessarily equal five.
Accordingly, 1 do not see the need to try and piece together a rule on the waiver
issue from Frawley despite the majority's valiant attempt since it is less than clear how
we can do so. Under either standard, however, the requirement of a written waiver
suggested by the lead Frawley opinion is not workable. Like any other procedural trial
right, waiver of public trial should be analyzed by the actions taken by the defendant and
his counsel rather than a written waiver or colloquy associated with giving up the
fundamental rights to trial or jury. For instance, at trial a defendant has both the right to
testifY and to not testifY. The defendant typically chooses to exercise one of those rights
without waiving the other right. The same applies to the right to call, or not call,
witnesses, or the right to cross-examine (or not) opposing witnesses. We do not require
waiver of every action not taken.
Still, for waiver of the public trial right to apply there must be some evidence on
the record that the defendant knew he had the right to agree or disagree with a closure
request. That is a close call on the facts of this case. With the benefit of hindsight from
seven years development of this issue, the trial court could have made clearer to Mr.
Glass that he had the right to challenge the closure suggestion and inquired specifically
whether he wanted the issue heard publicly or privately. Ifnot for the Bone-Club error­
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for which I do not fault the trial court in the least for making a decent attempt to comply
with developing and unclear standards-I might conclude differently on the waiver issue.
Since we do not know exactly what counsel informed his client about during their private
exchange, however, I agree that waiver has not been established.
3