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SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
In the Matter of the Detention of )
) No. 92332-9
MARK BLACK. )
) EnBanc
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) Filed
______________________ )
GONZALEZ, J.- Mark Black challenges his commitment as a sexually
violent predator under chapter 71.09 RCW. He contends that his
commitment must be vacated because he was not present when some
potential jurors were questioned individually in open court about their prior
experiences with sexual abuse. Based on the record before us, we conclude
Black waived his right to be present while jurors were individually
questioned about these sensitive subjects. Accordingly, we reverse the
Court of Appeals and remand to that court for further proceedings consistent
with this opinion.
FACTS
In 2004, Black was convicted of molesting one 13-year-old and of
attempting to molest a 12-year-old. Both children were friends with Black's
fiancee's daughter. It was not Black's first conviction for sexual crimes
against children; in 1996 he was convicted of raping his 13-year-old
In re the Det. ofBlack, No. 92332-9
stepdaughter and, in a separate case, he pled guilty to raping a 14-year-old
he had met over the Internet. State v. Black, 86 Wn. App. 791, 792, 938
P.2d 362 (1997).
While Black was serving his 2004 sentence, he was evaluated to
determine whether he met the criteria for commitment as a sexually violent
predator. During that evaluation, Black reported that as an adult, he had
repeated sexual contact with young teenagers for which he was never
charged and "readily admitted he knew he was grooming the young girls"
for sexual exploitation. Clerk's Papers (CP) at 32.
The evaluator interviewed several of Black's adult sexual partners
who reported Black had repeatedly violently raped and assaulted them. One
woman, B.D., was hurt enough that she went to the hospital with head and
rib injuries. B.D. told the evaluator Black did not want her to go and "made
her concoct a story to tell" about her injuries and that he became more
violent after that incident. CP at 36. Black acknowledged striking and
choking many of his sexual partners but contended it was consensual. The
evaluator diagnosed Black with sexual sadism, paraphilia with persistent
sexual interest in pubescent-aged females, and a personality disorder with
antisocial and narcissistic characteristics. The evaluator also concluded that
Black "was unable to resist the opportunity to reoffend." CP at 51. In 2011,
as Black's criminal sentence neared its end, the State filed a petition to
commit him as a sexually violent predator.
At the start of Black's trial, the jurors were given a questionnaire
designed to determine whether they were qualified to sit on Black's three
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In re the Det. of Black, No. 92332-9
week special commitment trial. The questionnaires are not in the record, but
the record suggests they were designed to determine whether potential jurors
would have difficulty sitting on a case that would require consideration of
sexual violence and child molestation, and to offer the jurors an opportunity
to speak privately about those difficulties. During preliminary motions,
while discussing the logistics of selecting the jury from a large panel in a
small room, defense counsel said:
[W]e are planning for Mr. Black to arrive on the second day of trial.
So the first day, which the jurors may want to speak to us privately, he
wouldn't have to be here for that. I think that can also help them be
more open and honest about their history without having the person
here accused of something like that. So our hope was to address those
that first day, so that can be taken care of.
Verbatim Tr. of Proceedings (VTP) (Sept. 26, 2013) at 43. The court
responded, "That certainly makes sense." !d. Later, at the eve oftrial,
defense counsel again recommended "address[ing] individual jurors while
Mr. Black isn't here ... so we can do that without Mr. Black hearing the
personal information." VTP (Oct. 17, 2013) at 96-97. We can infer that
Black's attorney was reasonably concerned about the prejudicial effect of
having Black present in the courtroom while jurors were asked difficult
questions about sexual violence. The State did not object and suggested
handling hardship excusals at the same time. While the record is not a
model of clarity, it demonstrates, and Black does not dispute, that he waived
his appearance at least on the first day of voir dire, Monday, October 21,
2013.
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In re the Det. of Black, No. 92332-9
So many jurors asked to speak privately about the matters raised in the
questionnaire that individual voir dire was not finished by the end of the first
day. The court and counsel had expected Black to be in court the next day,
October 22, 2013. Unfortunately, the jail did not transport him and, when
called by the judge, reported it could not do so that day. The record is
somewhat unclear on what happened at this point. The clerk's minutes report
that off the record and before individual voir dire began, "Counsel states that
Defendant has not been brought up from the jail, even though he did not
waive his presence from this point forward." CP at 1430. This notation
contains the glimmerings of an objection. But the formal record as reflected
in the VTP reveals no objection before individual voir dire resumed. Instead,
the transcript reports that after expressing understandable frustration that
Black had not been transported, the court returned to the individual voir dire
of the last five jurors who had asked to speak privately. During this
individual voir dire, several potential jurors were excused.
After individual voir dire was finished, the court and counsel had a
brief discussion about whether some other jurors should be dismissed.
Afterward, defense counsel suggested excusing the voir dire panel for the
day. The clerk's minutes record this as a motion. The judge suggested
instead that Black waive his presence for jury selection that day "so we
could move the case along." VTP (Oct. 22, 20 13) at 51 Uury voir dire).
Defense counsel responded:
Your Honor, I don't think that would be feasible for him. We
discussed that with the peremptories. But I think the for cause, he did
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In re the Det. of Black, No. 92332-9
not feel comfortable waiving the other-we [can] go talk to him if the
Court wants, but I think it would ... be better for the jury to see him
at some point before it's actually picked. You know, somebody may
recognize him.
!d. The trial court again expressed frustration that the trial could not go
forward and jurors' time was wasted because Black had not been
transported, but concurred with counsel that Black had a right to be present
for the general voir dire and effectively granted the defense's motion. The
judge brought the panel back in the court room, explained that jury selection
could not be finished that day, excused a few jurors for hardships, and
excused the rest of the panel for the day. A few potential jurors asked to
speak to the court about their individual concerns about serving on the jury.
Black's counsel did not object, and several of these jurors were dismissed.
Jury selection resumed the next court day with Black present. After a two
week trial, the jury concluded the State had proved its case.
Black appealed on several grounds. The Court of Appeals concluded
that Black had a due process right to be present during jury selection and
that the right had been violated, and reversed and remanded for a new trial.
In re Det. of Black, 189 Wn. App. 641,654,357 P.3d 91 (2015). It did not
decide Black's remaining issues. !d. at 658-59. Both the State and Black
petitioned for review. We granted the State's petition and denied Black's.
185 Wn.2d 1002, 366 P.3d 1243 (2016).
ANALYSIS
Black contends that the criminal defendant's right to be present during
jury selection extends to those facing civil commitment as sexually violent
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In re the Det. of Black, No. 92332-9
predators, that this right was violated, and that his civil commitment must be
vacated. The State contends that Black failed to preserve any error on the
record, that the criminal defendant's right to be present at every critical stage
of trial does not extend to civil commitment proceedings, and that Black
failed to show that his right to due process was offended by his absence from
the conclusion of individual questioning of jurors.
The extent to which the contours of a criminal defendant's right to be
present at every critical stage of jury selection extends to someone facing
civil commitment as a sexually violent predator merits serious consideration.
This, however, is not the case for us to answer that question. The absence of
a clear contemporaneous objection deprives us of a good record on which to
make that decision. More importantly, we are satisfied that the second day
of individual voir dire was within the substantive scope of Black's waiver.
In general, constitutional rights can be waived by a knowing,
voluntary, and intelligent act. State v. Stegall, 124 Wn.2d 719, 724-25, 881
P.2d 979 (1994) (citing City a,[ Bellevue v. Acrey, 103 Wn.2d 203,208-09,
691 P.2d 957 (1984)). Specifically, the right to be present may be
knowingly and voluntarily waived. State v. Thomson, 123 Wn.2d 877, 880,
872 P.2d 1097 (1994) (citing Johnson v. Zerbst, 304 U.S. 458,464,58 S. Ct.
1019, 82 L. Ed. 1461 (1938)). There is no dispute that Black's decision to
waive his presence on the first day of voir dire qualifies as a knowing,
voluntary, and intelligent act. At least two times, defense counsel urged the
court to conduct individual voir dire out of Black's presence in order to
foster an environment of candor during individual questioning of jurors
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In re the Det. ofBlack, No. 92332-9
about often agonizingly difficult subjects. VTP (Sept. 26, 2013) at 43; VTP
(Oct. 17, 20 13) at 96-97. This case is complicated by the fact that Black did
not voluntarily absent himself on the second day of jury selection, which
might normally be fatal to the State's case. See, e.g., State v.Irby, 170
Wn.2d 874, 883, 246 P.3d 796 (2011). But we have found no case, and none
has been called to our attention, where someone in Black's position urged
for a portion of jury selection to be conducted out of his presence,
incorrectly anticipating both that the portion of jury selection would be
finished in one day and that he would be present the next. In such a
circumstance, we must look to the nature of the waiver and the nature ofthe
right. "The core of the constitutional right to be present is the right to be
present when evidence is being presented." In re Pers. Restraint ofLord,
123 Wn.2d 296, 306, 868 P.2d 835 (1994) (citing United States v. Gagnon,
470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985)). "Beyond that,
the defendant has a 'right to be present at a proceeding whenever his
presence has a relation, reasonably substantial, to the fulness of his
opportunity to defend against the charge."' Id. (internal quotation marks
omitted) (quoting Gagnon, 470 U.S. at 526). While Black may well have
had the right to be present during jury selection, his presence during the
second day of individual voir dire on potential jurors' history with sexual
abuse is no more related to his opportunity to defend than his presence on
the first. See Stegall, 124 Wn.2d at 725 (requiring a case-by-case analysis).
We stress that defense counsel did not object on the record to
finishing individual voir dire out of Black's presence. See VTP (Oct. 22,
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In re the Det. of Black, No. 92332-9
2013) at 64-89 Gury voir dire). While we do not mean to suggest that
counsel could waive Black's right to be present by silence, the lack of a clear
and prompt objection is strong evidence that counsel perceived no error and
that Black's waiver was substantively related to individual voir dire, not
temporally limited to the first day of voir dire. Cf State v. Jones, 185 Wn.2d
412, 427, 372 PJd 755 (2016) (citing State v. Williams, 96 Wn.2d 215, 226,
634 P.2d 868 (1981)).
We note that the individual voir dire was designed to determine if
jurors could be fair and impartial despite their prior experiences and that the
first and second days of jury selection were substantially similar to one
another. On the first day, juror 24 was excused after disclosing sexual abuse
within her family that plainly caused her severe anguish. Juror 34 disclosed
that her daughter was sexually molested when very young by a family
member. Juror 44 was excused after telling the judge about being assaulted
as a 10-year-old child. That juror had never disclosed the assault to anyone
until that voir dire. Juror 50 was excused after testifying that his niece had
been impregnated by rape and borne a child who suffered from severe and
disruptive problems with anger. Juror 54 was excused after testifying that he
had a family member who had been committed to the state mental hospital
due to a severe mental illness that caused him to abuse people sexually. The
next day, juror 7 testified that her sister had been sexually assaulted at
college. Juror 48 had been sexually abused as a child by a babysitter. Juror
70's son had been accused of grooming his sister for sexual abuse. Juror 74
was excused after testifying that she saw the devastating consequences of
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rape after her babysitter was raped and later when her husband's disabled
uncle was sexually assaulted by a live-in caregiver.
We find no substantial difference between the type of agonizing,
intimate questioning of individual jurors that took place on the first day of
jury selection and the second. Coupled with the lack of a formal, on-the-
record objection, we can logically conclude that Black waived his presence
for that portion of jury selection. A contrary decision would require us to
conclude that Black waived his presence during a random sampling of
individual jurors. We decline to reach such a strained conclusion.
CONCLUSION
We conclude that Black waived his presence during the individual
questioning of jurors. Accordingly, we reverse and remand to the Court of
Appeals for further proceedings consistent with this opinion.
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WE CONCUR:
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