     IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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                                                 UNPUBLISHED OPINION
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                                                 FILED: March 31, 2014                    z-c
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       Grosse, J. — King County local court rules require that a jury be summoned

from an assignment area in which the crime took place, here, Seattle. In the present

case, 3,000 potential jurors were summoned from the entire county rather than from the

designated assignment area.       In order to comport with the local rules, the trial court

removed the incorrectly summoned jurors, leaving a venire of approximately 2,000

potential jurors from the correct assignment area.      The trial court did not abuse its

discretion in proceeding with the jury selection over defense counsel's objection,

particularly here, where there were more than sufficient jurors from which to obtain a jury

panel. In addition, we find no merit to the defendant's contention that he was denied his

constitutional right to be present at a critical stage of the trial. We affirm the judgment

and conviction.

                                          FACTS

       At midnight on Saturday, July 18, 2009, Teresa Butz and her partner, Jennifer

 Hopper, went to bed in Butz's three bedroom home in Seattle. Shortly after midnight,

 Butz and Hopper awoke to find Isaiah Kalebu standing over Butz with a knife in his

 hand. Kalebu put the knife to Hopper's throat, telling her to be quiet, that he only
No. 67560-5-1 / 2


wanted sex. He then proceeded to rape both Hopper and Butz multiple times while

holding the knife. At one point both women were resisting and Kalebu was cutting and

stabbing both of them. Butz managed to force Kalebu off the bed and they struggled.

While Butz struggled, Hopper was screaming as loudly as she could. Butz picked up a

metal bedside table and pushed Kalebu back with it and then crashed through a closed

window, landing outside, and running as far as the curb before she collapsed. Hopper

and Kalebu both ran in different directions. Hopper ran to the neighbors who had heard

the window break and the screams and called 911.

       Butz suffered several injuries, including eight cuts across her throat, a stab

wound that severed her left bicep muscle, and another that penetrated her heart. She

died in the street. Hopper had two cuts to the inside of her left arm, four lacerations on

her neck, one of which severed her external jugular vein.         Hopper was taken by

ambulance to the emergency room where a plastic surgeon repaired her cuts. Swabs

were used to collect evidence samples from both Hopper's and Butz's bodies.

       The evidence from the swabs was entered into the deoxyribonucleic acid (DNA)

databank and the profile matched that of an unknown male from a 2008 police case.

There was a security video from that case which was shown to the media five days after

the crimes. The man was identified as Isaiah Kalebu by a prosecutor who was handling

an ongoing criminal case against Kalebu and had seen him at two hearings that week.
Kalebu's mother also identified him.

       Police found blood on the window ledge and saw dirty fingerprints on the edge of

the tub. A latent print on the outside of the bathtub was identified as the print from
Kalebu's left ring finger.   Kalebu's left palm print was identified in two separate
No. 67560-5-1 / 3



examinations. Additionally, a print of the outer edge of Kalebu's left palm was found on

the front edge of the dresser in the northwest bedroom. All of the prints were identified

separately by two examiners.

       Bare footprints found at the scene were identified as Kalebu's. Spermatozoa

found on khaki shorts matched Kalebu's profile. A DNA profile matching Kalebu was

obtained from boxer shorts found in the house. The swabs taken from Butz contained

two DNA profiles, Butz's and Kalebu's. Additionally, swabs taken from Hopper also

revealed Kalebu's DNA profile.

      When Kalebu was arrested, he was wearing jeans that tested positive for DNA

for which Kalebu, Butz, and Hopper were also possible contributors. Hopper identified

Kalebu as the assailant.

       Kalebu was arrested.      Throughout the pretrial court proceedings, Kalebu's

behavior was outrageous. After a three day contested competency hearing, the trial

judge found Kalebu competent to stand trial. Kalebu continued to act outrageously,

engaging in a tirade asserting his incompetency and threatening suicide. The trial judge

found that Kalebu's erratic behavior was a result of his conscious choices to act in ways

that he thought would benefit him. Recognizing that such behavior would impact a jury,

the judge barred Kalebu from the courtroom. The court provided Kalebu with a remote

location from which he could watch the trial proceedings. Kalebu had access to his

attorneys and was able to communicate with them.             Even separated from the

courtroom, there was no end to his fractious behavior.

       A jury convicted Kalebu of aggravated first degree murder, attempted first degree

murder, first degree rape, and first degree burglary, all with deadly weapon
No. 67560-5-1/4


enhancements. The court imposed the mandatory term of life without the possibility of

early release on the aggravated murder conviction. Additionally, the court imposed

exceptional sentences on the aggravating factor of deliberate cruelty that the jury found

as to counts 3 and 4. Kalebu was sentenced to life plus 1,176 months.

         Kalebu appeals contending the trial court erred in denying his motion to strike the

entire venire because the court initially summoned jurors from outside the assignment

area rather than the one required by the local rule. Kalebu also argues that he was

denied his constitutional right to be present for all critical stages of the trial when he was

absent from an in-chambers discussion regarding the procedure that would be followed

for Kalebu's testimony.

                                         ANALYSIS


Venire

         Kalebu argues that the trial court, by summoning jurors county-wide, violated

both RCW 2.36.055 and King County Local General Rule (LGR) 18(e). We disagree.

We review the decision excusing jury venire members for an abuse of discretion.

Where there is substantial compliance with the statute, the defendant must show

prejudice. Prejudice is presumed only where that has been a material departure from
the statutes.2 "[T]he purpose of the jury selection statutes is to 'provide a fair and
impartial jury, and if that end has been attained and the litigant has had the benefit of




1 State v. Tinqdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).
2 Tinqdale. 117 Wn.2d at 600.
No. 67560-5-1 / 5


such a jury, it ought not to be held that the whole proceeding must be annulled because

of some slight irregularity.'"3
       RCW 2.36.055 provides:

       The superior court at least annually shall cause a jury source list to be
       compiled from a list of all registered voters and a list of licensed drivers
       and identicard holders residing in the county.

             In a county with more than one superior court facility and a
       separate case assignment area for each court facility, the jury source list
       may be divided into jury assignment areas that consist of registered voters
       and licensed drivers and identicard holders residing in each jury
       assignment area. Jury assignment area boundaries may be designated
       and adjusted by the administrative office of the courts based on the most
       current United States census data at the request of the majority of the
       judges of the superior court when required for the efficient and fair
       administration ofjustice.'41
The intent of the legislature was to lessen the burden of travel on potential jurors in

counties with more than one superior court.5 King County implemented this statute by
promulgating LGR 18(e):

       Location for Jury Assignment Areas for Civil and Criminal Cases Filed in
       King County.
               (1) Designation of Jury Assignment Areas. The iurv source list shall
       be divided into a Seattle iurv assignment area and a Kent jury assignment
       area that consist of registered voters and licensed drivers and identicard
       holders residing in each jury assignment area. The area within each jury



3 State v. Rice, 120 Wn.2d 549, 562, 844, P.2d 416 (1993) (quoting State v. Finlavson,
69 Wn.2d 155, 157, 417 P.2d 624 (1966)).
4(Emphasis added.)
5"The legislature finds that superior courts with more than one superior court facility are
asking some jurors to travel excessively long distances to attend court proceedings. In
these cases, the legislature further finds that consideration of a juror's proximity to a
particular courthouse can be accommodated while continuing to provide proportionate
jury source list representation from distinctive groups within the community. The
legislature intends to lessen the burdens borne by jurors fulfilling their civic duties by
providing a mechanism that narrows the geographic area from which the jurors are
drawn while maintaining a random and proportionate jury pool." Laws of 2005, ch. 199
§1-
No. 67560-5-1 / 6


       assignment area shall be identified by zip code and documented on a list
       maintained by the chief administrative officer for the court.
              (2) Where Jurors Report. Individuals receiving a jury summons
       shall report for service to the Court facility in the jury assignment area
       identified on the face of the summons.
             (3) Adjustment of Jury Assignment Area Boundaries. The jury
       assignment areas contained in this rule may be adjusted by the
       administrative office of the courts based on the most current United States
       census data at the request of the majority of the judges of the superior
       court when required for the efficient and fair administration of justice.

       Kalebu's case was assigned a Seattle case designation at filing. Because the

court understood that every aggravator case tried since the new rule went into effect

had drawn jurors from the entire county, the court anticipated the defense requesting

the same and ordered jurors be summoned from the entire county. However, defense

counsel objected to the venire being from the entire county. Defense counsel sought to

strike the entire venire.

       The entire venire consisted of a group of 3,000 potential jurors, 1,000 of whom

were identified as being from the south end. Rather than dismiss the entire venire, the

court directed the clerk to notify the jurors from the south assignment area not to

appear. That left a venire of approximately 2,000 jurors from the north end from which

to choose a jury.

       In support of his argument that the venire should have been dismissed, Kalebu
cites State v. Tingdale.6 There, over defense objection, the trial court authorized the

court clerk to excuse three people from the panel based on the clerk's subjective
knowledge that they were acquainted with the defendant.            Our Supreme Court
concluded the trial court's ruling was not in substantial compliance with chapter 2.36
RCW because the practice permitted the trial court or the clerk "to assemble a jury

6 117 Wn.2d 595, 817 P.2d 850 (1991).
                                            6
No. 67560-5-1 / 7


panel of their own choosing," violating the statutorily required element of chance and

calling into doubt the impartiality of the jury.7 The court also noted that there was no
factual basis to dismiss two of the three potential jurors for cause.8 Here, unlike
Tingdale, the trial court did not systematically exclude specific individuals who were

favorable to the defendant.

      Tingdale is completely inapposite.        Kalebu has shown neither a material

departure from the jury selection statute nor any resulting prejudice. The trial court did

not abuse its discretion in resolving this procedural irregularity. This is in accord with

Supreme Court cases that have held that when a jury list of county residents is not

drawn exactly as required by law, it is not a material departure from the law where the

defendant has been provided a fair and impartial jury.9 No single method of jury
selection is required "so long as fair and random selection of the master jury list and jury

panels is achieved." RCW 2.36.065. Here, the jurors were chosen from the area

specified by both the statute and the court rule. The trial court did not abuse its

discretion in fashioning this remedy.

Chambers Conference

       Kalebu next argues that he was excluded from a critical stage of the

proceedings. At the conclusion ofthe State's case in chief, defense counsel notified the
court that Kalebu would be testifying but that counsel would not be asking him any



7 Tingdale, 117 Wn.2d at 601.
8 Tingdale, 117 Wn.2d at 601-602.
9 See, e^, City of Tukwila v. Garrett, 165 Wn.2d 152, 196 P.3d 681 (2008) Gurors
selected from outside city limits but city was located entirely in one county and all jurors
were drawn from the county in which the crime was committed); W.E. Roche Fruit Co. v.
Northern Pac. Rv. Co., 18 Wn.2d 484, 139 P.2d 714 (1943) (women jurors solicited by
coupon ad in the newspaper).
No. 67560-5-1 / 8


questions. The court was concerned about the procedure by which Kalebu would testify

and inquired of counsel why no questions would be asked of him.              Kalebu's counsel

explained:

          The court rules provide that a party or representative of the party cannot
          put forth or present evidence that is not material or relevant to the matter
          that is at trial.
                 As I indicated yesterday, based on my discussions with Mr. Kalebu,
          I do not believe that -- in one part what he wants to testify about is material
          or relevant to this matter.
                The second part, I can't tell the court. Ifthe court wants to hear that
          in chambers, I'd be happy to tell the court what that is.

In chambers, without the defendant or the prosecutor, defense counsel informed the

court that Kalebu told counsel he wanted to take the stand and confess, planning to

testify that God made him do it. Such testimony would raise the specter of an obligation

on the part of defense counsel to seek a mental health defense, a strategy not pursued

after the court found Kalebu's competent. But the court noted that it was Kalebu's right

to testify even if counsel advised against such testimony. However, the court did not

want Kalebu to testify in a narrative form and requested that defense obtain from Kalebu

questions that Kalebu wanted asked and that his attorneys would pose those questions

to him.

          Kalebu was aware of the issue that was being addressed both before and after

the conference. A court reporter was present at the discussion in chambers for the

specific purpose of providing a transcript to Kalebu.10 Defense counsel said he had
explained to Kalebu that he had a choice whether to testify or not. Defense counsel

also advised Kalebu that if he wanted to confess, pleading guilty might be the better

course. Kalebu refused.



10 There is nothing in the record to indicate whether Kalebu received this transcript.
                                                 8
No. 67560-5-1 / 9


      As the court noted, ultimately the decision over whether to testify is the

defendant's decision. The question the court was concerned with here was how his

testimony would be presented, the procedure by which Kalebu would testify, not his

testimony itself. This was not a critical stage of the proceedings.

      A defendant's fundamental right to be present at all critical stages of a trial

derives from the confrontation clause of the Sixth Amendment and the due process

clauses of the Fifth and Fourteenth Amendments.11          Critical situations are those in

which the defendant's presence is necessary in order to provide him an opportunity to

defend against the charge.12 But a defendant does not have a constitutional right to be
present during in-chambers or bench conferences between the court and counsel on

legal matters, at least where those matters "do not require a resolution of disputed

facts."13 Here, there were no disputed facts. The court was simply setting forth the

procedure by which Kalebu would present his testimony.

       We note that even if we were to find that Kalebu had the right to be present, any

violation of that right is subject to harmless error analysis.14 The State bears the burden
of proving beyond a reasonable doubt that the error is harmless.15 Adefendant has the
right to be present for proceedings involving ministerial matters.116



11 State v. Irbv, 170 Wn.2d 874, 880, 246 P.3d 796 (2011) (citing Rushen v. Spain, 464
U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983)).
12 Irby, 170 Wn.2d at 880-81 (quoting Snyder v. Commonwealth of Mass., 291 U.S. 97,
105-06, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled in part on other grounds sub nom
by Mallov v. Hogan. 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).
13 Matter of Pers. Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994).
14 Irbv, 170Wn.2dat885.
15 Irby, 170 Wn.2d at 886 (quoting State v. Caliguri, 99 Wn.2d 501, 509, 664 P.2d 466
(1983)).
^6 Matter of Pirtle, 136 Wn.3d 467, 484, 965 P.2d 593 (1998).
No. 67560-5-1/10


       Here, Kalebu argues that his absence from the chambers consultation deprived

him of an opportunity to revisit his decision about testifying. However, that does not

explain how his absence affected the outcome.          The evidence in this case was

overwhelming. Kalebu's claim that he might have reconsidered testifying had he heard

the discussion in chambers is without merit.      Kalebu's identity as the attacker was

proven multiple times, by overwhelming forensic evidence, including his footprints at the

foot of the bed in the bedroom where the attacks occurred; his palm print on the dresser

in that room; his fingerprint and palm print on the bathtub where the intruder entered; his

footprint on a document in the hallway; DNA matching Kalebu's on the khaki shorts he

used to wipe himself, on swabs from two areas on each of the women attacked, and on
two locations on the boxer shorts left by Kalebu when he left. Kalebu was identified by

the surviving victim.

       Affirmed.



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WE CONCUR:




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