¶35 (concurring) I agree with the majority that defendant Martin Jones has no right to presence or open courtroom proceedings during the random drawing of alternates in the context of this case. Thus, there was no constitutional problem with the judicial assistant conducting that work during a recess from the court proceedings.
¶36 But that is the only thing that we need to say to decide this case. I therefore disagree with the majority’s decision to go on to state that Jones waived any possible right-to-presence claim by failing to raise it sooner. Majority at 426. I also disagree with the majority’s analysis of that waiver issue. We have held that for a defendant’s waiver of the right to presence to be constitutional, it must be “both knowing and voluntary.” State v. Rice, 110 Wn.2d 577, 619, 757 P.2d 889 (1988) (citing United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972)). We have acknowledged that a knowing and voluntary waiver of this constitutional right to presence can be “express or implied,” and that it can be “implied” when a defendant “voluntarily absent [s] himself from the proceedings.” Id. (citing Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 38 L. Ed. 2d 174 (1973) (per curiam)). We have even developed a framework for determining, under a totality of circumstances, whether a defendant’s absence from a proceeding is voluntary or not. See State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994). But I can’t find any prior case from this court holding that a defendant knowingly and voluntarily waived his or her right to presence when he or she didn’t *429even know a proceeding was occurring because it happened during a recess, meaning during a time when court is not in session.
¶37 Instead, I would hold only that the random drawing of alternates by a previously approved process was not an event to which the right to presence attached. Just as there is no constitutional right to an open courtroom or presence for a bailiff’s or judicial assistant’s computer work, there is no constitutional right to an open courtroom or presence during this preapproved, random drawing, work, either. I therefore respectfully concur.