                                                                    FILED 

                                                                 JUNE 10,2014 

                                                         In the Office of the Clerk of Court 

                                                        WA State Court of Appeals, Division III 





           COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III

STATE OF WASHINGTON,                            )      No. 29513-3-111
                                                )
                    Respondent,                 )      ORDER GRANTING MOTION
                                                )      FOR RECONSIDERATION
      v.                                        )      AND AMENDING OPINION
                                                )      DATED May 6, 2014
MERLE WILLIAM HARVEY,                           )
                                                )
                    Appellant.                  )

      THE COURT has considered appellant's motion for reconsideration of this court's

decision of May 6, 2014, and having reviewed the records and files herein, is of the

opinion the motion should be granted in part. Therefore,

      IT IS ORDERED, appellant's motion for reconsideration is hereby partially

granted.

      IT IS FURTHER ORDERED that the opinion shall be amended by replacing

footnote one on page 2 with the following:

      We do not separately address the SAG filings. In his supplemental SAG,
      Mr. Harvey raises public trial issues separate from those raised by counsel.
      However, the record does not show that any of the closures claimed by Mr.
      Harvey occurred. The remaining pro se arguments address trial matters
      rather than the jury selection issues that are the subject of this second
      appeal. Some of those arguments were made previously and all of them
could have been raised earlier. In particular, we note that Mr. Harvey had
copies ofthe jury instructions prior to filing his original SAG. We do not
review the trial issues in this opinion.

DATED: June 10,2014

PANEL: Jj. Korsmo, Fearing, Lawrence-Berrey

FOR THE COURT:
                                                                            FILED 

                                                                          MAY 6,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


STATE OF WASHINGTON,                          )
                                              )         No. 29513-3-111
                     Respondent,              )
                                              )
      v.                                      )
                                              )
:MERLE WILLIAM HARVEY,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

      KORSMO, J. -    In this second review of Merle Harvey's convictions for first and

second degree murder, along with two counts of unlawful possession of a firearm, we

consider his claims that his public trial and due process rights were violated during jury

selection. His arguments are resolved by our decision in State v. Love, 176 Wn. App.

911, 309 P.3d 1209 (2013). Accordingly, we once again affinn the convictions.

                               PROCEDURAL HISTORY

      This court previously affinned the convictions in an unpublished case State v.

Harvey, noted at 167 Wn. App. 1026,2012 WL 1071234. Mr. Harvey, pro se, then

successfully petitioned the Washington Supreme Court to pennit supplementation of the
    No. 29513-3-II1
    State v. Harvey


    record with a transcription of the jury selection proceedings. The matter was remanded

    to this court.

           We appointed new counsel for Mr. Harvey and, after receipt of the transcript, the

    parties filed additional briefs addressing jury selection. Mr. Harvey filed additional

    statements of additional grounds (SAG).l

           The jury selection transcript showed that 80 jurors appeared for jury selection on

    September 13. The court gave the preliminary instruction on only one occasion, a fact

    that suggests all jurors were in the courtroom at the same time. The record also reflects

    that the jurors were given a questionnaire to fill out. Some of the prospective jurors were

    questioned individually in the courtroom outside the presence of the other jurors. One of

    the jurors mentioned that it was possible to hear what was happening in the courtroom

    from out in the hallway.

           General voir dire of the entire panel commenced the following morning with all

    jurors in the courtroom. Seven jurors were struck during this period. After a brief

    sidebar conference, juror 19 was struck due to the juror's prescheduled business trip.



f          1  We do not separately address the SAG filings. Mr. Harvey raises the same two

!
I
    arguments concerning jury selection that his counsel raised. As counsel has adequately
    briefed those arguments, we do not address Mr. Harvey's version of them. RAP
    1O.1O(a). The remaining pro se arguments address trial matters rather than the jury

I   selection issues that are the subject of this second appeal. Some of those arguments were
    made previously and all of them could have been raised earlier. We do not review them

I
f
    in this action.

                                                 2


I
No. 29513·3·III
State v. Harvey


Juror 38 was also stricken for cause during this court session, although that did not

happen at sidebar.

       General voir dire continued that afternoon. A brief sidebar was held during the

afternoon session when defense counsel objected to the prosecutor asking a juror about

an instruction that had not been given. Another objection was heard at sidebar when the

prosecutor took exception to defense counsel getting too case specific in his questions to

the prospective jurors. Another sidebar was held after some jurors expressed that they

could not sit in judgment of the defendant. Jurors 43, 60, and 77 were struck during this

conference. The court adjourned for the day after these excusals.

       Jury selection continued the next day, September 15. The first thing mentioned

this day was that juror 78 had been dismissed by stipulation during the intervening hours:

               THE COURT: Good morning. Please be seated. Where had we
       ended in terms of the voir dire?
               MR. MASON [defense counsel]: Mr. Nagy was allowed to ask some
       questions, and then I think we were done.
               THE COURT: Are we done?
               MR. NAGY [deputy prosecutor]: Yes, Your Honor.
               THE COURT: And then we had done the for causes.
               MR. AMES [defense counsel]: Yes, Your Honor.
               THE COURT: Since that time, we have also released No. 78 by
       stipulation. Is that correct, gentlemen?
              MR. MASON: Yes.
              MR. NAGY: Yes.

Report of Proceedings at 297.




                                             3

No. 29513-3-III
State v. Harvey


       The venire was brought in to the courtroom and a sidebar was held to clear up

confusion over the exercise of peremptory challenges. The peremptory process then was

conducted by counsel marking their challenges on a juror sheet. The jury selection

process was then completed.

                                        ANALYSIS

       This appeal contends that Mr. Harvey's article I, section 22 right to a public trial

was violated by conducting portions ofjury selection, including the exclusion ofjurors at

sidebar, in private. The defense also argues that these same actions violated the

defendant's right to be present. We address each contention in turn.

      Public Trial

      Article I, section 22 guarantees those accused of crimes the right" 'to a speedy

public trial by an impartial jury.'" Love, 176 Wn. App. at 916. The right to a public trial

is violated whenever proceedings that are required to be "open" to the public are

"closed." ld. Whether or not a particular aspect of trial proceedings is required to be

open to the public is determined by application of the "experience and logic test." ld.

(citing State v. Sublett, 176 Wn.2d 58,292 P.3d 715 (2012)). Jury selection typically is

open to the public. State v. Strode, 167 Wn.2d 222,227,217 P.3d 310 (2009).

      Mr. Harvey specifically challenges the excusal ofjurors for cause at sidebar, the

excusal ofjuror 78 when the court apparently was not in session, the sidebar conferences




                                             4

No. 29513-3-III
State v. Harvey


during the peremptory challenge process, and the written exercise of peremptory

challenges. These challenges largely have been resolved by Love.

       In Love, we declined to decide whether or not a sidebar conference constituted a

closure of the courtroom. 176 Wn. App. at 917. Instead, applying the experience and

logic test to the subject of the sidebar conference at issue there, we concluded that the

action of excusing jurors for cause was not required to be conducted in public. Id. at 919­

20. Similarly, we concluded that exercising peremptory challenges in writing did not

violate article I, section 22. Id.

       We adhere to those conclusions in this case. The fact that four jurors were

excused for cause at sidebar did not violate our constitution. Likewise, there was no

public trial violation by the use of a written peremptory challenge process. Mr. Harvey's

remaining arguments were not at issue in Love, and we now tum to them.

       With respect to the claim that it was improper to hold a sidebar conference during

the peremptory challenge process, Love is still suggestive. There we noted that it was the

subject of the sidebar conference that determined whether the matter needed to be

considered in public. 176 Wn. App. at 917-18. The additional sidebar conferences now

under challenge here involved procedural matters for the attorneys-whether questions of

the venire were appropriate and how the peremptory process applied to alternate jurors.

These matters, too, involve questions for the trial judge and did not need public oversight.




                                             5

No. 29513-3-III
State v. Harvey


Under the experience and logic test, the subject matter of these sidebars did not implicate

Mr. Harvey's public trial right.

        The sole remaining issue was the decision to excuse juror 78 by stipulation of the

parties off the record. On this record, we do not know anything about when or where or

how this occurred-whether at the end of proceedings the night before, just prior to going

on the record that morning, whether it took place in the courtroom or in chambers, or on

the street outside the courthouse. In short, the record is woefully inadequate to decide

this issue. However, for the same reasons that the challenges for cause in Love did not

implicate the public trial right, we also are convinced that the right to a public trial was

not implicated here. The experience and logic test indicates that challenges for cause are

legal issues that do not depend upon the right to have the public present in the courtroom.

Love, 176 Wn. App. at 919-20. Accordingly, despite the fact that there is no indication

where this action took place, we do conclude that Mr. Harvey's article I, section 22 rights

were not violated by the agreed excusal ofjuror 78.

        Mr. Harvey has not established that any of the challenged actions violated his right

to a public trial.

       Right to be Present

        Mr. Harvey also argues that the sidebar conferences and the off-the-record excusal

ofjuror 78 violated his right to be present at all proceedings. The status of this record

does not permit us to consider these claims for the first time in this appeal.

                                              6

No. 29513-3-II1
State v. Harvey


       We faced a similar argument in Love and summarized the governing law in this

manner:

               A criminal defendant has a due process right to be present at all
       critical stages of his criminal trial. State v. Irby, 170 Wn.2d 874, 246 P.3d
       796 (2011). This includes the voir dire and empanelling stages of the trial.
       Id. at 883-84.
               However, Mr. Love did not contest the use of the sidebar procedure
       to hear his challenges for cause. The general rule in Washington is that
       appellate courts will not hear challenges that were not presented to the trial
       court. RAP 2.5(a). An exception is made for issues of "manifest error
       affecting a constitutional·right." RAP 2.5(a)(3). Such issues may be raised
       if the record is sufficient to adjudicate them. State v. McFarland, 127
       Wn.2d 322,333,899 P.2d 1251 (1995). The alleged error must both be of
       constitutional nature and be "manifest" in the sense that it actually
       prejudiced the defendant. Id.

Love, 176 Wn. App. at 920-21.

       We then concluded that because Mr. Love did not establish how the sidebar

conferences had prejudiced him, the alleged error was not manifest. Id. at 921. We also

questioned, although we did not decide, whether Mr. Love was "absent" from the

proceedings while sitting in the courtroom while the sidebar conferences occurred a few
                                                                                          I
                                                                                          f
                                                                                          I
feet away from him. Id. n.9.

       We reach the same conclusion here. As to the sidebar conferences that occurred
                                                                                          ,
                                                                                          I
on the record while he was in the courtroom and the written peremptory challenges, Mr.    I
Harvey has not shown that he was in some manner prejudiced. Accordingly, the
                                                                                          I
allegation that he was not present is not manifest constitutional error.
                                                                                          I
                                              7                                           I
                                                                                          ~


                                                                                          f
                                                                                          t
                                                                                          I
No. 29513-3-III
State v. Harvey


       We reach the same conclusion, although for additional reasons, with respect to the

joint exclusion of juror 78. As noted previously, this record does not provide any

information about how that occurred. For all this record shows, the action may well have

taken place in the presence of Mr. Harvey or, perhaps, with his express blessing. There is

absolutely nothing in the record to establish that this action occurred outside his presence.

For this additional reason, too, we conclude this claim is not manifest constitutional error.

If it is to be considered, it will have to be in the form of a personal restraint petition with

appropriate documentation. E.g., State v. Norman, 61 Wn. App. 16,27-28,808 P.2d

1159 (1991).

       Mr. Harvey's right-to-be present arguments do not present manifest questions of

constitutional law. RAP 2.5(a). Accordingly, we decline to address them.

       The convictions are affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:


     J--./2M.tA~ J. A
      Fearing, K
                              G    S .
                                               8
