State v. Slert

This opinion was filed for record
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IIIAAEME COUR'i, STATE OF WASHINOTllN
D!.TE OCT 2 7 2016
·~~-.qJI. CHIEF JUS

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, )
) No. 92310-8
Petitioner, )
)
v. ) EnBanc
)
KENNETH SLERT, )
)
Respondent. ) Filed OCT 2 7 2016
---)

GONZALEZ, J. -Kenneth Slert has been convicted three times of

killing John Benson. His first two convictions were reversed on appeal.

Potential jurors in his third trial were given an initial written questionnaire in

an attempt to determine whether any knew of Slert's prior convictions.

Based on the written answers and after a discussion in chambers and out of

Slert's presence, four jurors were dismissed. For the first time on appeal,

Slert challenged his conviction on the grounds that the discussion in

chambers violated his right to be present at a critical stage of his own trial.

We conclude Slert waived his right to raise his exclusion from the in-

chambers discussion by not raising it at trial. We also conclude that any

error was harmless beyond a reasonable doubt as it is plain the dismissed
State v. Slert, No. 92310-8

jurors had disqualifying lmowledge of Slert' s prior convictions or

disqualifying opinions about his guilt. Accordingly, we reverse the Court of

Appeals and affirm his conviction.

FACTS

A more complete recitation of the facts that led to this case can be

found in State v. Slert, 181 Wn.2d 598, 600-02, 334 P.3d 1088 (2014) (Slert

IV) (Gonzalez, J., lead opinion). Briefly, Slert and Benson met one night at

a hunting camp near Mount Rainier. After they drank together for a time,

Slert shot and killed Benson. Slert has admitted from the beginning that he

killed Benson but has maintained it was in self-defense.

By the time of the third trial, there was a real risk that a potential juror

would have heard about Slert's prior convictions and be biased against him.

The prosecutor and defense counsel agreed they did not want to risk such a

potential juror tainting the panel during voir dire (which could have

necessitated dismissing the panel and calling a new one) by "blurt[ing] out,

'Oh, yeah, I read about that case and that guy should be hanging."'

Verbatim Report of Proceedings (VRP) (Jan. 6, 201 0) at 3-4. To limit the

risk, the court and counsel agreed to give the jurors a written questionnaire

concerning their lmowledge of "prior proceedings" and any opinions they

might have formed about the case. Clerk's Papers (CP) at 360-61. Based on

2
State v. Slert, No. 92310-8

the potential jurors' written answers, and after consultation with counsel in-

chambers, the judge dismissed four jurors in open court. 1 The completed

questionnaires, the details of the in-chambers discussion, and the decision to

have it in chambers are not part ofthe record before us. The clerk's minutes

simply reflect that a "[p]retrial conference was held in chambers," CP at

194, and the record reports that "based on the answers" to the questionnaire,

jurors 15, 19, 36, and 49 were dismissed, 1 VRP (Jan. 25, 2010) at 5. Slert

was present when the four jurors were dismissed but did not object,

depriving the trial court of the ability to promptly remedy any error.

The jury found Slert guilty of second degree murder. In 2012, the

Court of Appeals found that the in-chambers discussion about the jurors'

answers to the questimmaires violated both Slert's right to be present and the

open public trial right guarantees of our state constitution. State v. Slert, 169

Wn. App. 766,769,282 P.3d 101 (2012), rev'd, 181 Wn.2d 598. The Court

of Appeals spent the bulk of its 2012 opinion analyzing the open public trial

issue. Id. at 771-79. The Court of Appeals did not reach whether, standing

on its own, any violation of Slert's right to be present was reversible error.

In 2013, we accepted review of the open public trial issue, reversed, and

1
While the record does not make clear whether Sleti was present during the chambers'
discussion, Slert asserts, and the State does not dispute, that he was not.

3
State v. Slert, No. 92310-8

remanded back to the Court of Appeals to determine what it had not reached

before: whether the violation of Slert' s right to be present was harmless.

Slert IV, 181 Wn.2d at 603-04, 609. In 2015, Court of Appeals, via a split

decision, found that the right to be present error was not harmless because

two ofthe dismissed jurors were within the range of those who sat on the

jury. State v. Slert, 189 Wn. App. 821, 827, 831,358 P.3d 1234 (2015)

(citing State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011)).

We accepted review again. After we accepted review, but before oral

argument, we released our opinion in State v. Jones, which found a

defendant had failed to preserve a right to be present claim by not timely

objecting to his exclusion from the selection of alternate jurors. 185 Wn.2d

412, 427, 372 P.3d 755 (2016). After oral argument, we asked the parties to

brief the effect of Jones and the law of the case doctrine. We thank the

parties for their supplemental briefing.

ANALYSIS

The criminal defendant's right to be present is rooted in the Sixth

Amendment to the United States Constitution; the due process clauses of the

state and federal constitutions (U.S. CONST. amend. V; WASH. CONST. art. I,

§ 3); and article I, § 22 of our own constitution. United States v. Gagnon,

470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985) (citing Illinois

4
State v. Slert, No. 92310-8

v. Allen, 397 U.S. 337, 90S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Snyder v.

Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled

on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.

2d 653 (1964)); Irby, 170 Wn.2d at 884-85. Whether the defendant's right

to be present has been violated is a question oflaw we review de novo. Irby,

170 Wn.2d at 880 (citing State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310

(2009)). If the right is violated, we will reverse unless we are persuaded

beyond a reasonable doubt that the error was harmless. !d. at 886 (citing

State v. Caliguri, 99 Wn.2d 501, 508, 609, 664 P.3d 466 (1983)). "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 Gagnon, 470 U.S. at 526). "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."' !d. (internal quotation marks

omitted) (quoting Gagnon, 470 U.S. at 526). In Irby, we held that the right

to be present extended to an e-mail conversation about individual jurors'

fitness to serve on the particular case. Irby, 170 Wn.2d at 882. Under Irby

(which was announced after Slert was tried for the third time), Slert had a

right to be present during the discussion of the potential bias of these jurors.

5
State v. Slert, No. 92310-8

But while Slert had a right to be present during the in-chambers

discussion, he is not entitled to relief if he waived appellate review by not

properly preserving the error he claims on appeal. 2 See, e.g., Jones, 185

Wn.2d at 415; State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007). It

has long been the rule in Washington that "'insofar as possible, there shall

be one trial on the merits with all issues fully and fairly presented to the trial

court at that time so the court may accurately rule on all issues involved and

con-ect errors in time to avoid unnecessary retrials.'" State v. Boast, 87

Wn.2d 447, 451, 553 P.2d 1322 (1976) (quoting Has lund v. City of Seattle,

86 Wn.2d 607, 614, 547 P.2d 1221 (1976)). We recognize there are cases,

such as Irby, where prompt objection can be excused based on the particular

facts of the case. But this case is significantly ditTerent from Irby. In Irby,

the dismissal of the jurors happened in an e-mail between the judge and

counsel. 170 Wn.2d at 884. There is no reason to think that Irby knew about

the e-mail or had a reasonable opportunity to object. Id. Here, by contrast,

the dismissal happened in open court, in Slert's presence, directly after the

2 Slert suggests this issue is not properly before us because it was not raised by either
party and was out of the scope of our earlier remand to Division Two. We respectfully
disagree. "[T]his court has inherent authority to consider issues not raised by the parties
if necessary to reach a proper decision." Alverado v. Wash. Pub. Power Supply Sys., Ill
Wn.2d 424, 429, 759 P.2d 427 (1988) (citing Seigler v. Kuhlman, 81 Wn.2d 448, 502
P.2d 1181 (1972)). We see no reasonAlveradowouid not extend to issues distinct from
those within the scope of an initial remand.

6
State v. Slert, No. 92310-8

in-chambers conference he now complains of. Further, Irby was decided on

the medts, without consideration of whether any error was preserved.

We recognize that Slert's attorney was complicit in any error made

here, but we are not presented with an ineffective assistance of counsel claim

(and indeed, it is difficult to imagine how agreeing to dismiss jurors who

knew one's client had previously been convicted of the same killing could

be ineffective assistance). Instead, we are considering whether Slert is

entitled to relief for an alleged violation of his right to be present that he has

raised for the first time on appeal.

We fmd he is not. This case is similar to State v. Elmore, where the

defendant challenged the state's voir dire for the first time on appeal. 139

Wn.2d 250,277-78,985 P.2d 289 (1999). We found the challenged error

was unpreserved and declined to consider it. Id. Similarly, in Jones, we

recently found untimely a defendant's claim that his right to be present was

violated when he was not present for the selection of alternate jurors. Jones,

185 Wn.2d at 426. There, the defendant raised tl1e claim for the first time in

a motion for a new trial. We found that by waiting, the defendant waived

the claim. I d. The failure to timely object prevented the trial court from

mending any error and creating a clear record for the appellate court to

7
State v. Slert, No. 92310-8

review. As in Elmore and Jones, we find Slert waived consideration of any

error. 3

We turn now to whether any violation of Slert's right to be present

was harmless beyond a reasonable doubt given the record before us. We

find that it was. It is properly the role of the trial judges to excuse potential

jurors who have biased opinions or feelings about the case they are asked to

decide before being called to the jury. 13 RoYCE A. FERGUSON, JR.,

WASHINGTON PRACTICE: CRIMINAL PRACTICE AND PROCEDURE§ 4109, at

205 (3d ed. 2004). The judge need not wait for the parties to challenge such

jurors. "If the judge after examination of any juror is of the opinion that

grounds for challenge are present, he or she shall excuse that juror from the

trial of the case." CrR 6.4(c)(1); see State v. Roberts, 142 Wn.2d 471, 519,

3 The dissent asserts that "our cases establish that constitutional rights require a
knowing, voluntary, and intelligent waiver." Dissent at 3. None of the cases cited by the
dissent support this broad assertion, and we :find none. Certainly, some constitutional
rights can only be relinquished by a knowing, vohmtary, and intelligent waiver, but our
courts have considered the individual constitutional right at issue, not constitutional rights
as some sort of undifferentiated mass. The most that has been said is that "[i]n general,
constitutional rights may only be waived by !mowing, intelligent, and voluntary acts," but
no actuarial accounting of rights were made in the opinion. State v. Stegall, 124 Wn.2d
719, 724-25, 881 P.2d 979 (1994) (citing City ofBellevue v. Acrey, 103 Wn.2d 203, 208-
09, 691 P.2d 957 (1984)). We are skeptical that the proposition offered by the dissent is
entirely accurate. We do not demand a full colloquy with the bench to assure the waiver
is knowing, voluntary, and intelligent before a defendant waives the right to testify; or
waives the right to remain silent; or declines to confront one of the state's witnesses; or
extends the speedy trial deadline. But regardless, the question we decide is not whether
Slert waived any right to be present while the jurors' answers to the questionnaires were
discussed. The question is whether he waived review of that claim of error.

8
State v. Slert, No. 92310-8

14 P.3d 713 (2000) (noting trial judge did not err by dismissing juror for

cause without waiting for defendaht's voir dire). "Criminal defendants have

a federal and state constitutional right to a fair and impartial jury." State v.

Irby, 187 Wn. App. 183, 192-93,347 P.3d 1103 (2015) (citing Taylor v.

Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L. Ed. 690 (1975)), review

denied, 184 Wn.2d 1036 (2016). "A trial judge has an independent

obligation to protect that right." !d. at 193 (citing State v. Davis, 175 Wn.2d

287, 316, 290 P.3d 43 (2012)). Thus, jurors who have actual or implied bias

should be excused by the trial court. CrR 6.4(c)(2); RCW 4.44.170; Irby,

187 Wn. App. at 197. Parties are not required to challenge such jurors for

cause, though they certainly should. See CrR 6.4( c). Once the trial judge

concludes a juror has formed an opinion that could prevent impartial

judgment of the facts, the trial judge should excuse that juror. !d. Our Court

of Appeals recently found it was reversible manifest constitutional error for

the trial judge to fail to excuse a juror who demonstrated actual bias during

voir dire despite the lack of a contemporaneous objection. Irby, 187 Wn.

App. at 193.

The questionnaire at issue here began by informing the jurors of a few

salient facts:

Kenneth L. Slert is charged with one count of Murder in the Second
Degree stemming from an incident that occurred up near Mt. Rainier

9
State v. Slert, No. 92310-8

National Park on 10/24/00 in Gifford Pinchot National Forest. There
have been a number of prior proceedings in this case which were
reported by both the newspapers and the radio, since October 2000
and most recently in late 2009. It is alleged that Mr. Slert shot and
killed Jolm Benson while both were hunting.

CP at 360. In relevant part, the jurors were then asked:

2. Have you heard or read about this case from any source
whatsoever?

7. What do you believe you know about this case? ...

8. Have you formed an opinion or feeling about this case whatsoever?

9. If you have formed any such opinions or feelings, please indicate
those opinions and/or beliefs:

CP at 360-61. Space was provided to answer the questions. I d. After the

in-chambers conference, the judge went back into open court and stated on

the record that "based on the answers" to the questionnaire and "after

consultation with counsel," jurors 15, 19, 36, and 49 were excused. 1 VRP

(.Tan. 25, 2010) at 5.

While questionnaires completed by those four jurors are not part of

the record before us, we know the conclusion the judge, the prosecutor, and

the defense counsel reached upon reviewing their answers. Counsel and the

trial judge concluded that those four jurors should be excused. We may thus

10
State v. Slert, No. 9231 o. g

reasonably infer that the four jurors had disqualifying opinions or feelings

about the case. While the evidence we have is circumstantial, as we tell

every jury in every jury trial, "[t]he law does not distinguish between direct

and circumstantial evidence in terms of their weight or value in finding the

facts in this case. One is not necessarily more or less valuable than the

other." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY

INSTRUCTIONS: CRIMINAL 5.01, at 181 (4th ed. 2016); 6 WASHINGTON

PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 1.03, at 29

(6th ed. 2012). It is logic, not conjecture, that allows us to draw reasonable

inferences from the record. Further, the lack of a timely objection itself is

strong evidence that Slert and his counsel "did not perceive any prejudicial

error until after receiving an unfavorable verdict." Jones, 185 Wn.2d at 426-

27 (citing State v. Williams, 96 Wn.2d 215,226,634 P.2d 868 (1981)).

Since the jurors must have had disqualifying opinions or feelings about

Slert's case, we conclude that excluding them was harmless beyond a

reasonable doubt. 4

4 The dissent seems to suggest that Irby created an exclusive, m~merical impossibility test
to determine if a violation of the defendant's right to be present was harmless beyond a
reasonable doubt. Dissent at 4-5. We find no such exclusive test in Irby. Certainly, in
Irby, the court considered whether it was possible the jurors excluded out oflrby's
presence could have been seated on the jury based on their juror numbers. 170 Wn.2d at
886. But that consideration was based on the facts of that case; it did not establish the
exclusive method to test whether the error was harmless.

11
State v. Slert, No. 92310-8

Finally, we turn to whether the law of the case doctrine prevents our

consideration of whether any error was preserved. We find that it does not.

Relevantly, "the doctrine provides where there has been a determination of

applicable law in a prior appeal, the law of the case doctrine ordinarily

precludes an appeal of the same legal issue." Roberson v. Perez, 119 Wn.

App. 928, 931, 83 P.3d 1026 (2004). Whether Slert preserved review of the

error has not been finally determined by any court until now. Further, this

court has. authority to reach any issue necessary to a just disposition.

Alverado, 111 Wn.2d at 429 (citing Seigler, 81 Wn.2d 448). The law of the

case doctrine does not prevent our review.

CONCLUSION

We hold that Slert has not preserved his right to be present challenge

and that the law of the case doctrine does not bar our review. We also hold

that any error was harmless beyond a reasonable doubt. Accordingly, we

reverse the Court of Appeals and reinstate Slert's conviction.

12
State v. Sf.ert, No. 92310-8

WE CONCUR:

~Jvvws+,Q.

13
State v. Slert (Kenneth Lane)

No. 92310-8

JOHNSON, J. (dissenting)-The majority confuses and conflates two

independent and separate principles: constitutional waiver and failure to preserve

error. Compounding this, the majority applies the wrong standard of review and

concludes this "waived" and "unpreserved" error is harmless. Majority at 1, 7. The

Court of Appeals correctly concluded Kenneth Slert's constitutional right to

presence was violated and not harmless, and should be affirmed.

As the majority correctly recognizes, the Sixth and Fourteenth Amendments

to the United States Constitution guarantee a criminal defendant the right to be

present at all "critical stages" of a criminal proceeding. Rushen v. Spain, 464 U.S.

114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) ("Our cases recognize that the

right to personal presence at all critical stages of the trial ... [is a] fundamental

right[] of each criminal defendant."). Likewise, article I, section 22 of the

Washington Constitution confers the accused with the right to "appear and defend

in person" during criminal prosecutions. Collectively, these provisions protect a
State v. Slert (Kenneth Lane), No. 92310-8
(Johnson, J., dissenting)

defendant's right to be present during critical stages of trial. The majority correctly

recognizes the constitutional nature of the error here, yet fails to follow our cases

analyzing this exact error. More troubling is the majority's apparent recognition of

our prior case holdings, without explanation or analysis of what new rule, if any, is

being crafted.

In State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), we analyzed both the

Fourteenth Amendment due process right under the United States Constitution and

the article I, section 22 right to presence under the Washington Constitution. Irby

highlighted at least one difference between the federal and state constitutions:

"Unlike the United States Constitution, article I, section 22 of the Washington

Constitution provides an explicit guaranty of the right to be present." Irby, 170

Wn.2d at 884. The Irby court recognized that "[a]s early as 1914," the state

constitution granted the accused the right to appear and defend themselves at every

stage of the trial where the defendant's substantial rights may be implicated. Irby,

170 Wn.2d at 885. We held:

Jury selection is unquestionably a "stage ofthe trial" at which a
defendant's "substantial rights may be affected," and for that reason
we do not hesitate in holding that Irby's absence from a portion of
jury selection violated his right to "appear and def(md in person"
under article I, section 22 as well as the due process clause of the
Fourteenth Amendment.

Irby, 170 Wn.2d at 885.

2
State v. S/ert (Kenneth Lane), No. 92310-8
(Johnson, J ., dissenting)

In this case, a portion of jury selection was conducted in chambers, without

the defendant's presence, violating his constitutional rights, and as the Court of

Appeals concluded, a new trial is required. The majority confuses the applicable

standard of review.

Our cases establish that constitutional rights require a knowing, voluntary,

and intelligent waiver. 1 See State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475

(1996) (analyzing a defendant's waiver of his right to testify); State v. Stegall, 124

Wn.2d 719, 724-25, 881 P.2d 979 (1994) (analyzing a defendant's waiver ofhis

right to a jury); State v. Wheeler, 108 Wn.2d 230,237-38,737 P.2d 1005 (1987)

(analyzing a defendant's waiver ofhis right to remain silent); City ofBellevue v.

Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984) ("A waiver of counsel must

be knowing, voluntary, and intelligent, as with any waiver of constitutional rights."

(citing Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530

(1972))). Nowhere in this record is evidence supporting a constitutional waiver.

The majority then focuses on cases requiring any error to be "preserved" by

objections at trial.

1
In note 3, the majority asserts that we do not demand a full colloquy with the bench to
assure that waivers are knowing, voluntary, and intelligent. The majority misses the point: the
requirement is that constitutional rights require a knowing, voluntary, and intelligent waiver, not
that it be conducted on the record with a full colloquy.

3
State v. S/ert (Kenneth Lane), No. 92310-8
(Johnson, J., dissenting)

The majority cites Elmore in support of its analysis. Majority at 7 (citing

State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 298 (1999)). Elmore involved a

challenge to the propriety of the prosecutor's in-court questioning during voir dire,

where no objections were raised. Elmore correctly characterized the issue as

procedural in nature, not constitutional, correctly concluding the lack of objection

precluded review. Elmore provides no support here.

Next, State v. Jones, 2 cited and relied on by the majority, does not hold

otherwise. In that case, we held the defendant's right to a public trial, factually,

was not violated where during a recess, a random drawing of jurors was conducted.

Although the right to presence was discussed, that discussion was in the context of

the court having already concluded no constitutional closure occurred. Since Jones

did not involve a constitutional claim, the analysis of preservation of error

correctly applied the nonconstitutional analysis. Jones cannot be read as

establishing a new rule applicable outside its context. Such a new rule would

require overruling cases and establishing and applying the applicable constitutional

analysis-something that cannot be found anywhere in the Jones opinion. 3

2
185 Wn.2d 412, 372 P.3d 755 (2016).

3
The majority seems to embrace a preservation of error standard our cases have rejected.
See State v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012) (article I, section 22 public trial
analysis).

4
State v. Slert (Kenneth Lane), No. 92310-8
(Johnson, J., dissenting)

Then, the majority apparently embraces a new constitutional harmless error

rule, without acknowledgment. In Irby, we held it was the State's burden to prove

the violation to the defendant's constitutional rights was harmless beyond a

reasonable doubt. The Irby court found that the State could not meet this burden

"because the State has not and cannot show that three of the jurors who were excused

in Irby's absence, namely, jurors 7, 17, and 23, had no chance to sit on Irby's jury."

Irby, 170 Wn.2d at 886.

Based on Irby, the Court of Appeals here held that the State could not prove

beyond a reasonable doubt that the violation to Slert's right to be present was

harmless. The court keyed in on the fact that not only was there no record to

review, but also that some of the excused jurors could have been impaneled on

Slert's jury. Stated inversely, the State could not prove there was no chance that

some of the excused jurors would have sat on the jury. Based on this, the Court of

Appeals correctly held that the error could not be harmless beyond a reasonable

doubt.

The majority here claims that "circumstantial" evidence tells us the

completed juror questionnaires plainly meant the jurors must have "had

disqualifYing opinions or feelings about Slert's case." Majority at 11. This is

impossible to know, obviously, because no record exists to support the majority's

conjecture.

5
State v. Slert (Kenneth Lane), No. 92310-8
(Johnson, J., dissenting)

The majority's conclusion is based on speculation, not the record's evidence.

The Court of Appeals should be affirmed.

6