State v. Slert

González, J.

¶1 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 jurors had disqualifying knowledge of Slert’s prior convictions or disqualifying opinions about his guilt. Accordingly, we reverse the Court of Appeals and affirm his conviction.

Facts

¶2 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) (González, 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.

¶3 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, 2010) at 3-4. To limit the risk, the court and counsel agreed to give the jurors a written questionnaire concerning their knowledge of “prior proceedings” and any opinions they might have formed about the case. Clerk’s Papers (CP) at 360-61. Based on 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 of the 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.

¶4 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 questionnaires violated both Slert’s right to be present and the open public trial right guaranties 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 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, the Court of Appeals, via a split decision, found that the right to be present error was not harmless because two of the 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)).

¶5 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

¶6 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, section 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 v. Allen, 397 U.S. 337, 90 S. 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 of law we review de novo. Irby, 170 Wn.2d at 880 (citing State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009) (plurality opinion)). If the right is violated, we will reverse unless we are persuaded beyond a reasonable doubt that the error was harmless. Id. at 886 (citing State v. Caliguri, 99 Wn.2d 501, 508, 609, 664 P.2d 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 of Lord, 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.’ ” Id. (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. 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.

¶7 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 correct errors in time to avoid unnecessary retrials.’ ” State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976) (quoting Haslund 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 different 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 in-chambers conference he now complains of. Further, Irby was decided on the merits, without consideration of whether any error was preserved.

¶8 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.

¶9 We find 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 un-preserved 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 the claim for the first time in a motion for a new trial. We found that by waiting, the defendant waived the claim. Id. The failure to timely object prevented the trial court from mending any error and creating a clear record for the appellate court to review. As in Elmore and Jones, we find Slert waived consideration of any error.³

¶10 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, 14 P.3d 713 (2000) (noting trial judge did not err by dismissing juror for cause without waiting for defendant’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. 2d 690 (1975)), review denied, 184 Wn.2d 1036 (2016). “A trial judge has an independent obligation to protect that right.” Id. 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. Id. 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.

¶11 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 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 John 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. Id. 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. 1VRP (Jan. 25, 2010) at 5.

¶12 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 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, “The 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

¶13 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, “[t]he 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 v. Wash. Pub. Power Supply Sys., 111 Wn.2d 424, 429, 759 P.2d 427 (1988) (citing Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972)). The law of the case doctrine does not prevent our review.

Conclusion

¶14 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.

Madsen, C.J., and Fairhurst, Wiggins, and Yu, JJ., concur.

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

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., 111 Wn.2d 424, 429, 759 P.2d 427 (1988) (citing Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972)). We see no reason Alverado would not extend to issues distinct from those within the scope of an initial remand.

3 The dissent asserts that “[o]ur cases establish that constitutional rights require a knowing, voluntary, and intelligent waiver.” Dissent at 881. None of the cases cited by the dissent support this broad assertion, and we find none. Certainly, some constitutional rights can be relinquished only by a knowing, voluntary, 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 knowing, 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 of Bellevue 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.

4 The dissent seems to suggest that Irby created an exclusive, numerical impossibility test to determine if a violation of the defendant’s right to be present was harmless beyond a reasonable doubt. Dissent at 882-83. We find no such exclusive test in Irby. Certainly, in Irby, the court considered whether it was possible the jurors excluded out of Irby’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.