State v. Slert

¶1 Johanson, C.J. On remand, our Supreme Court asks us to consider whether the trial court’s violation of Kenneth Lane Slert’s constitutional right to be present when several jurors were excused outside his presence was harmless error. Slert argues that the error was not harmless because the State cannot demonstrate that these excused jurors had no chance to sit on the jury. We hold that the State fails to show that the trial court’s violation of Slert’s constitutional right to be present during jury selection was harmless beyond a reasonable doubt. Accordingly, we reverse his conviction and remand for a new trial. FACTS f2 The State charged Slert with first degree murder1 and second degree murder.2 On January 6, 2010, during a pretrial hearing, the parties agreed to design a questionnaire to determine what, if any, knowledge the prospective jurors had regarding the prior proceedings in Slert’s case. Slert’s counsel was concerned that knowledge of prior proceedings could taint the panel. Slert was present at this hearing. ¶ 3 On January 21, the parties discussed the proposed questionnaire at another pretrial hearing. The State sug 823 gested changing the questionnaire so that it referred to the prospective jurors’ knowledge of “prior proceeding [s]” in Slert’s case rather than “prior trial [s].” Report of Proceedings (RP) (Jan. 21, 2010) at 3. The court agreed. Slert was present at this hearing as well. ¶ 4 On January 25, the first day of trial, the court gave the jurors the questionnaire. After the prospective jurors filled out the questionnaires but before the court went on the record, a pretrial conference was held in chambers. During this conference, counsel for both parties agreed to excuse four prospective jurors. Slert was not present for this pretrial conference. In court, with Slert present, the court announced, “I have already, based on the answers [to the questionnaires], after consultation with counsel, excused jurors number 19, 36, and 49 from panel two which is our primary panel and I’ve excused juror number 15 from panel one, the alternate panel.” 1 RP at 5. Slert’s counsel also suggested that the four jurors were excused because they “have indicated knowledge of... prior court trials.” 1 RP at 11. The record contains no other information about what the four excused jurors’ answers to the questionnaires were or the extent of those jurors’ knowledge of the prior proceedings in Slert’s case. The trial court destroyed the answered questionnaires and saved only a draft of the questionnaire for the record. State v. Slert, 169 Wn. App. 766, 769 n.6, 282 P.3d 101 (2012) (Slert I), rev’d, 181 Wn.2d 598, 334 P.3d 1088 (2014) (plurality opinion) (Slert II). ¶ 5 In open court and with Slert present, the trial court and counsel then conducted individual voir dire of additional jurors based on their questionnaires. The court and counsel asked each juror about their knowledge of Slert’s case, where they had heard about the case, and whether any prior knowledge of the case “would affect [their] ability to be fair and impartial.” 1 RP at 18. Each of these jurors had varying levels of knowledge of Slert’s case and prior proceedings against him. Slert’s counsel asked to excuse four of those jurors for cause — three jurors had knowledge of 824 Slert’s prior trials and one juror had a friendly and professional relationship with one of the investigators whom the State did not plan to call as a witness. The court excused the three jurors who had knowledge of a prior trial even though each said that he or she could remain impartial. The trial court denied Slert’s challenge to the witness who knew and worked with one of the investigators. ¶ 6 Voir dire then continued in open court until they finalized a panel of 14 jurors. Slert’s jury consisted entirely of jurors from panel two, ranging from juror number 3 to juror number 43. ¶ 7 In February 2010, the jury convicted Slert of second degree murder and Slert appealed his conviction. On appeal, we held that the trial court violated both his right to a public trial and his right to be present when it excused the four prospective jurors based on their questionnaires in chambers. Slert I, 169 Wn. App. at 769. Because we held that Slert’s public trial violation was structural error requiring reversal, we did not address whether the violation of Slert’s right to be present was harmless error. Slert I, 169 Wn. App. at 778-79. Our Supreme Court found no violation of Slert’s public trial rights and remanded the case to us to determine whether the violation of Slert’s right to be present was harmless error. Slert II, 181 Wn.2d at 609. ANALYSIS ¶ 8 Slert argues that the State fails to establish that the violation of his right to be present was harmless. We agree that the error was not harmless beyond a reasonable doubt. I. Standard of Review and Rules of Law ¶ 9 The Fourteenth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution guarantee criminal defendants the right to be present at “critical stages” in their trial. State v. Irby, 170 Wn.2d 874, 880-81, 884-85, 246 P.3d 796 (2011). A 825 violation of a defendant’s right to be present during all critical stages of his trial is subject to constitutional harmless error analysis. Irby, 170 Wn.2d at 885-86. ¶ 10 Under this standard, it is the State’s burden to demonstrate that a violation of a defendant’s right to be present was harmless beyond a reasonable doubt. Irby, 170 Wn.2d at 886; State v. Burdette, 178 Wn. App. 183, 201, 313 P.3d 1235 (2013). The State must prove beyond a reasonable doubt that the violation of a defendant’s right to be present had no effect on the verdict. Irby, 170 Wn.2d at 886-87. In order to satisfy its burden in the context of juror dismissals, the State must demonstrate that the excused jurors “had no chance to sit on [Slert’s] jury.” Irby, 170 Wn.2d at 886. II. Slert’s Burden To Raise the Possibility op Prejudice |11 As a threshold matter, the State argues that it is Slert’s burden to first allege prejudice from the violation of his right to be present before the burden shifts to the State to demonstrate that any violation was harmless beyond a reasonable doubt. Its argument is based on State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466 (1983) (“Nonetheless, the defendant must first raise at least the possibility of prejudice.”). Even assuming Slert is required to allege prejudice, he satisfies this burden. Slert raises the issue when he argues, “Furthermore, as in Irby, the prejudice is clear from the record.” Suppl. Br. of Appellant at 6. ¶ 12 Here, as in Irby, the prejudice alleged is clear from the record: jurors were excused for cause for case-specific reasons that were never tested in the defendant’s presence. See 170 Wn.2d at 886. The Irby court described the prejudice that Irby endured: “Reasonable and dispassionate [jurors] may look at the same evidence and reach a different result. Therefore, the State cannot show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.” 170 Wn.2d at 886-87. Thus, the alleged prejudice was the 826 removal of some potential jurors in Slert’s absence. We hold that Slert adequately raised the possibility of prejudice. III. Error Not Harmless Beyond a Reasonable Doubt ¶ 13 Slert argues that the State cannot establish that the violation of his right to be present was harmless because three of the four excused jurors “had some chance of sitting on the jury.” Suppl. Br. of Appellant at 7. We agree the error is not harmless. ¶ 14 Our Supreme Court held in Irby that Irby’s right to be present during a critical stage of his trial — jury selection — was violated and the error was not harmless because several jurors who had been excused “fell within the range of jurors who ultimately comprised the jury” and “their alleged inability to serve was never tested by questioning in Irby’s presence.” 170 Wn.2d at 886. ¶ 15 In Irby, after prospective jurors were sworn and had filled out case-specific questionnaires, the court, in consultation by e-mail with counsel, excused 10 jurors before voir dire. 170 Wn.2d at 877-78. The record did not establish that Irby spoke with his counsel before counsel responded to the court’s e-mail or that he was aware that the jurors would be excused. Irby, 170 Wn.2d at 884. ¶ 16 The trial court excused several jurors in Irby due to hardships and not due to any case-related objection. 170 Wn.2d at 886. Our Supreme Court concluded that had they been present for voir dire “and been subjected to questioning in Irby’s presence as planned, the questioning might have revealed that one or more of these potential jurors were not prevented by reasons of hardship from participating.” Irby, 170 Wn.2d at 886. The State also did not show that the excused jurors had no chance to sit on Irby’s jury. Irby, 170 Wn.2d at 886-87. ¶ 17 Here, the facts are analogous to Irby because (1) excused jurors 19 and 36 from panel two fit within the range of jurors who were ultimately seated and (2) “their 827 alleged inability to serve was never tested by questioning in [Slert’s] presence.” 170 Wn.2d at 886. Slert’s final jury consisted of jurors from panel two ranging from juror number 3 to juror number 43.3 Excused jurors 19 and 36 fit sequentially within that range of jurors. This is important because had these jurors not fit within the range of jurors who ultimately comprised Slert’s jury, they would have had no chance to sit and any error would be harmless. Irby, 170 Wn.2d at 886. ¶ 18 Yet these jurors were excused based solely on their written answers to a jury questionnaire during an in-chambers conference outside Slert’s presence. The excused jurors’ answers to the questionnaire were not “tested by questioning in [Slert’s] presence,” nor are their answers in the record because the questionnaires were destroyed. Irby, 170 Wn.2d at 886; Slert I, 169 Wn. App. at 769 n.6. Slert did not have the opportunity to discuss the basis for the excusal of these two jurors with his counsel either before or after the in-chambers conference. Slert I, 169 Wn. App. at 775; Irby, 170 Wn.2d at 884 (“ ‘where . . . personal presence is necessary in point of law, the record must show the fact’ ” (alteration in original) (quoting Lewis v. United States, 146 U.S. 370, 372, 13 S. Ct. 136, 36 L. Ed. 1011 (1892))). Notably, the trial court did conduct individual voir dire in open court and in Slert’s presence of 14 jurors who Slert’s counsel suspected might also have had prejudicial prior knowledge of the case based on their answers to the questionnaires. But the record provides no explanation for why those jurors were questioned in Slert’s presence and the jurors that the court excused in chambers were not questioned in Slert’s presence. ¶ 19 The dissent points out that the jurors in Irby were excused for hardship, where here the jurors were likely excused for bias. Dissent at 836. We disagree because (1) as stated above, the record is not clear about why the jurors 828 were excused and (2) we view this distinction as one without a difference. The record demonstrates that the jurors were excused “for cause,” that Slert’s counsel agreed to their excusal, and that the jurors were likely excused because of knowledge of previous proceedings in Slert’s case. 2 Clerk’s Papers at 194. ¶ 20 Furthermore, even in Irby where the reasons for the jurors’ hardship excusáis were apparent from the record, the court nonetheless held that questioning the jurors in Irby’s presence could have demonstrated their ability to serve. 170 Wn.2d at 886. Likewise, had Slert’s jurors been present for voir dire and questioned in Slert’s presence, Slert could have established that some of the excused jurors were not prevented from serving due to bias. We reach this conclusion particularly because the jurors’ answers to the questionnaires have been destroyed and we do not know the basis for their excusal. Moreover, during the individual voir dire, some jurors with prior knowledge of the case were dismissed while others were not. This creates more uncertainty about why the trial court dismissed the jurors in chambers, making it more difficult for the State to demonstrate beyond a reasonable doubt that the excused jurors had no chance to sit on Slert’s jury. Having the answers to the jurors’ questionnaires might show, beyond a reasonable doubt, that some or all of the potential jurors were biased such that they had no chance to serve on the jury. But those facts are not before us. ¶ 21 As the Irby court explained, “Reasonable and dispassionate minds may look at the same evidence and reach a different result. Therefore, the State cannot show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.” 170 Wn.2d at 886-87. Because (1) excused jurors 19 and 36 were never questioned in Slert’s presence, (2) they fit within the range of jurors who were ultimately seated in this case, and (3) the State cannot demonstrate that they had no chance to serve on the jury, the constitutional violation of Slert’s right 829 to be present during jury selection was not harmless beyond a reasonable doubt. IV. The State’s Arguments Fail ¶ 22 The State argues that (1) Irby does not control here because, unlike in this case, in Irby there was “no evidence in the record” to explain why jurors were excused, (2) the record establishes that the jurors who were excused in chambers here were prejudiced against Slert, and (3) our decision in State v. Miller, 184 Wn. App. 637, 338 P.3d 873 (2014), review denied, 182 Wn.2d 1024 (2015), is on point and should control in this case. Suppl. Br. of Resp’t at 10. We disagree because (1) the record in Irby actually contained more evidence about why the jurors were excused than the record before us, and, like this case, the jurors were not questioned in the defendant’s presence, (2) the State cannot establish that the jurors who were excused in chambers were prejudiced against Slert beyond a reasonable doubt, and (3) Miller is factually distinguishable. ¶ 23 First, the State’s argument that there was no evidence in Irby as to why the jurors were excused is incorrect because the reasons that the trial court excused prospective jurors in Irby were apparent from the record. As explained above, two jurors were excused because their terms of jury duty were almost expired and the third was excused because he or she homeschooled his or her children. Irby, 170 Wn.2d at 878. Here, there are just two statements about the jurors excused in chambers. Before voir dire, the court stated that “I have already, based on the answers [to the questionnaires] excused jurors number 19, 36, and 49 from panel two [and] juror number 15 from panel one.” 1 RP at 5. Slert’s counsel also stated, “I’ve got a list of 15 jurors that responded that they knew something about the case based on the publicity. My concern is none of them — well, none of the ones other than the ones The Court has already pulled have indicated knowledge of any prior court trials.” 1 RP at 830 10-11. Thus, the record in Irby provided more information than here about why the jurors were excused. ¶ 24 Nonetheless, the Irby court held that had the excused jurors been questioned in the defendant’s presence, they might not have been excluded. 170 Wn.2d at 886-87. The issue in Irby, therefore, was not only whether the reasons that the court excused the jurors were apparent from the record but also whether the defendant should have had the opportunity to be present to test the jurors’ potential biases. Like Irby, Slert did not have the opportunity to test the jurors about their potential bias in his presence. ¶ 25 Second, the State cannot demonstrate beyond a reasonable doubt that excused jurors 19 and 36 were prejudiced against Slert. These jurors’ questionnaires and answers are not in the record because they were destroyed, and no other part of the record demonstrates if they were prejudiced against Slert or what knowledge of the prior proceedings against him they might have had. Slert I, 169 Wn. App. at 769 n.6. ¶ 26 Because we cannot review the jurors’ answers to the questionnaires and the record does not explain what, if any, specific answers led the trial court to excuse jurors 19 and 36, the State cannot prove beyond a reasonable doubt that the jurors were prejudiced against Slert. Moreover, we reject the dissent’s view that the excused jurors’ bias can be inferred from the record beyond a reasonable doubt under the circumstances presented here where the jurors’ questionnaires and answers are unavailable for review. Dissent at 834. ¶ 27 Finally, Miller is factually distinguishable. In Miller, before the jury was sworn and voir dire conducted, the parties addressed preliminary courtroom security issues including whether and when Miller needed to be shackled and how close his guards would need to stand during trial. 184 Wn. App. at 640. During a recess, the court and the parties realized that one of the prospective jurors was in the 831 courtroom during their discussion of courtroom security and excused that prospective juror in Miller’s absence. Miller, 184 Wn. App. at 640. This court held that any violation of Miller’s right to be present was harmless because the “potential prejudice - to both Miller and the State - inherent in allowing [the juror] to remain on the jury after being present during pretrial motions was far too great” Miller, 184 Wn. App. at 647. Because of the potential for prejudice, we concluded that the juror had no chance to be on Miller’s jury. Miller, 184 Wn. App. at 647. ¶ 28 Unlike in Miller, the excused jurors here had been sworn and had completed a case-specific jury questionnaire. Irby, 170 Wn.2d at 884; Miller, 184 Wn. App. at 640-41; Slert I, 169 Wn. App. at 770. The jury questionnaires here were designed to “test[ ] their fitness to serve as jurors in this particular case” and not to assess “the general qualifications of... potential jurors,” as distinguished from Miller where witnessing pretrial motions and a debate about whether Miller should be shackled would disqualify any prospective juror in any case. Irby, 170 Wn.2d at 882. The Miller court applied the correct test and concluded that the challenged juror had no chance to sit on Miller’s jury. 184 Wn. App. at 647. Thus, Miller is factually distinguishable and does not control the outcome here. ¶ 29 In conclusion, because (1) two of the excused jurors were within the range of jurors ultimately seated on Slert’s jury, (2) their fitness to sit on the jury was never tested by questioning in Slert’s presence, and (3) the State cannot demonstrate beyond a reasonable doubt that they had no chance to sit on this jury, the violation of Slert’s constitutional right to be present during jury selection was not harmless beyond a reasonable doubt. Accordingly, we reverse his conviction and remand for a new trial. Worswick, J., concurs. Footnotes [1] ROW 9A.32.030d). [2] ROW 9A.32.050d)(a). [3] None of the jurors from the alternate panel, panel one, were seated on Slert’s jury-