                                                                                              COURT' ;
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                                                                                            2014 NOV 25
                                                                                            S" A

    IN THE COURT OF APPEALS OF THE STATE OF WASHII`

                                            DIVISION II


 STATE OF WASHINGTON,                                                    No. 44837 -8 -II


                                  Respondent,


         v.

                                                                     PUBLISHED OPINION
 ANTHONY R. MILLER,


                                  Appellant.


        MAXA, J. —    Anthony Miller appeals his convictions of conspiracy to commit murder and

murder in the first degree. During a recess before beginning voir dire, the trial court dismissed a

prospective juror who inadvertently had been in the courtroom while the parties and the trial

court discussed pre -trial issues. Miller argues that this dismissal violated his public trial right

and his right to be present at critical trial stages. We hold that ( 1) the trial court' s pre -voir dire

dismissal of the prospective juror during a recess did not implicate Miller' s public trial right, and

 2) even if dismissal of the prospective juror during a recess violated Miller' s right to be present

at critical trial stages, the violation was harmless error. Accordingly, we affirm.

                                                 FACTS


        The State charged Miller with conspiracy to commit murder in the first degree and

murder in the first degree with regard to the death of his ex- girlfriend. His trial started on


February   6, 2013.
44837 -8 -II



            Before the jury was impaneled for voir dire, the trial court and counsel addressed several

preliminary issues in open court, including whether either party had concerns about courtroom

security when Miller was not shackled or near a guard during trial. Once the court and parties

resolved all preliminary issues, the court recessed. Unknown to counsel or the court, a potential

juror —juror 28 = was present in the courtroom for some or all of these proceedings.


            Fifteen minutes later, court reconvened and the trial court announced that juror 28 had

been dismissed        during   the   recess.   The following discussion occurred:

             The Court]:... [        T] here was an individual who was present apparently in the
            courtroom here when we began these proceedings who was a prospective juror.
            And we have - -


             Jury   Manager]: That' s number 28.


             The Court]: - -    because she was present during those proceedings, when she should
            not have been there, but down with the rest of the jurors, we' ve gone ahead and
            excused her. And that' s number 28?


             Jury Manager]:     Number 28.


             The Court]:    All right, thank you. Do the parties have any objection to the Court
            excusing - -   having to excuse juror 28 for being involved?

             The State]: No. And in fact we were advised that that had happened, and counsel
            and I both agreed and stipulated that that - -


             The Court]: Thank you.


             The State]: She should be excused.


Report of Proceedings at 51 -52. At that time, the court reporter noted " Juror #28 was excused

off   the   record   for coming into the       courtroom   before the   venire entered."   Clerk' s Papers at 83.


            When the trial court dismissed juror 28, the trial court had not yet sworn in the

prospective jurors. In addition, there is no indication in the record that juror 28 or any other juror


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had completed a case -specific juror questionnaire. Juror 28 had completed only a " juror profile"

form that provided responses to general background questions. It appears that juror 28

completed this form before coming to the courthouse.

        Following a jury trial, the jury found Miller guilty as charged. Miller appeals his

convictions.



                                              ANALYSIS


A.      PUBLIC TRIAL RIGHT


        Miller argues that the trial court' s excusal of juror 28 violated his right to a public trial

because ( 1)   our   Supreme Court has held that the   public   trial   right applies   to " jury selection,"   and




 2) the jury selection process had begun when juror 28 was excused because all the jurors had

completed juror questionnaires. Br. of Appellant at 9. We disagree and hold that juror 28' s

excusal did not implicate Miller' s public trial right because our Supreme Court has applied the


public trial right only to the voir dire component ofjury selection and because the pre -voir dire

excusal of a juror who inadvertently sits through pretrial motions is not a proceeding that

historically was open to the public.

         1.    Legal Principles


        The Sixth Amendment to the United States Constitution and article I, section 22 of the

Washington Constitution guarantee a defendant the right to a public trial. State v. Wise, 176

Wn.2d 1, 9, 288 P. 3d 1113 ( 2012). In general, this right requires that certain proceedings be held


in open court unless application of the five -part test set forth in State v. Bone —
                                                                                   Club, 128 Wn.2d

254, 258 - 59, 906 P. 2d 325 ( 1995) supports closure of the courtroom. Whether a courtroom




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closure violated a defendant' s right to a public trial is a question of law we review de novo.

Wise, 176 Wn.2d at 9. 1

           The threshold determination when addressing an alleged violation of the public trial right

is whether the proceeding at issue even implicates the right. State v. Sublett, 176 Wn.2d 58, 71,

292 P. 3d 715 ( 2012). "[            N] ot every interaction between the court, counsel, and defendants will

implicate the         right   to   a public     trial   or constitute a closure        if closed to the     public."   Sublett, 176


Wn.2d at 71.


           To address whether there was a court closure implicating the public trial right, we employ

a    two -step     process.    State     v.   Wilson, 174 Wn. App. 328, 337, 298 P. 3d 148 ( 2013). First, we


consider whether the particular proceeding at issue " falls within a category of proceedings that

our Supreme Court has already acknowledged implicates a defendant' s public trial right"

Wilson, 174 Wn.           App.      at   337;   see also    Wise, 176 Wn.2d           at   11.   Second, if the proceeding at issue

does not fall within a specific protected category, we determine whether the proceeding

implicates the public trial right using the " experience and logic" test our Supreme Court adopted

in Sublett.         Wilson, 174 Wn. App. at 335.

              2.     Public Trial Right and Jury Selection

              Miller argues that his public trial right was violated because the trial court' s excusal of


juror 28 occurred during jury selection. Our Supreme Court repeatedly has held that the public




 1
     Miller did      not object     to the    alleged closure          below. However, " a defendant does not waive his
right    to   a public   trial     by failing     to    object   to   a closure at   trial."     Wise, 176 Wn.2d at 15. In
addition,          the defendant     need not show          that the     violation caused         any   prejudice.   Wise, 176 Wn.2d

at 15 -16. Any violation of a defendant' s public trial right " is structural error warranting a new
trial." State v. Paumier, 176 Wn.2d 29, 35, 288 P. 3d 1126 ( 2012).
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trial right      applies   to " jury     selection."       E.g., Wise, 176 Wn.2d at 11; State v. Brightman, 155


Wn.2d 506, 515 - 17, 122 P. 3d 150 ( 2005). However, in Wilson we stated that Supreme Court


precedent does not establish that the public trial right applies to the entire jury selection process.

174 Wn. App. at 338. Instead, we noted that existing case law applies only to the voir dire
component of           jury    selection —the actual           questioning        of prospective   jurors. Wilson, 174 Wn.


App.   at      338 -40 &      n. 11.   We acknowledged that in the public trial right context, our Supreme

Court has        used    the terms " jury       selection" and " voir           dire" interchangeably. 2 Wilson, 174 Wn.


App. at 338. But we viewed this interchangeable use as " inadvertent and not as evincing the
Court'     s   intent to treat these two terms                as synonymous        for   precedential purposes."         Wilson, 174


Wn.    App.      at   338 -39 ( emphasis in          original).      Therefore, we held that the pre -voir dire excusal of


jurors did not fall within a specific category of proceedings that our Supreme Court has

recognized as           implicating      the   public     trial   right.   Wilson, 174 Wn. App. at 340.

               A plurality     of our    Supreme Court            adopted      this reasoning in State    v.   Slert,      Wn.2d ,


334 P. 3d 1088 ( 2014).                The court disagreed with the defendant' s claim that it is well settled that

the   public      trial right    applies   to the    entire     jury   selection process.      Slert, 334 P. 3d     at   1091.   Instead,


the court quoted the passage in Wilson that emphasized that existing case law addressed only the

voir dire component of jury selection. Slert, 334 P. 3d at 1091 -92. The court concluded that




2
    See,   e. g.,   Paumier, 176 Wn.2d              at   34 -35 ( stating " [ t] his presumption of openness extends to
voir   dire, ' "       and that " individually questioning potential jurors is a courtroom closure requiring a
     Club
Bone —                analysis" ( emphasis added) ( quoting State v. Momah, 167 Wn.2d 140, 147, 217 P. 3d
321( 2009)); Wise, 176 Wn.2d                   at   12   n.   4, 288 P. 3d 1113 ( stating " ` it is well settled that the right
to   a public       trial also extends to jury selection ' " ( emphasis                    added) (   quoting Brightman, 155
Wn.2d at 515)).



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cases involving voir dire did not resolve whether the public trial right applies to pre -voir dire
juror dismissals, and therefore it applied the experience and logic test to decide the issue. Slert,

334 P. 3d at 1092.3

           Here, regardless of when jury selection started, the record clearly establishes that the trial

court excused juror 28 before voir dire. And the dismissal was not based on an oral or written

questioning of the juror. Based on Slert and Wilson, we hold that the trial court' s dismissal of

juror 28 did not occur during voir dire and therefore did not fall within the " category of

proceedings that our Supreme Court has already acknowledged implicates a defendant' s public

trial   right."   Wilson, 174 Wn. App. at 337.

           3.     Experience and Logic Test


           Because the trial court' s dismissal of juror 28 does not fall within a specific category that

our Supreme Court already has recognized for application of the public trial right, we next must

apply the experience and logic test to determine whether the public trial right is implicated. We

hold that the pre -voir dire dismissal of a juror who inadvertently sits through pretrial motions

does not satisfy the experience prong and therefore does not implicate Miller' s public trial right.




3
    Justice Gonzalez'   s   lead   opinion   in Slert   was   only joined   by three   other   justices. 334 P. 3d at

1094. However, both Justice Wiggins' s concurring opinion and Justice Stephens' s dissenting
opinion appear to agree that the public trial right automatically attached only to the voir dire
portion ofjury selection. Slert, 334 P. 3d at 1094 ( Wiggins, J., concurring), 1095 ( Stephens,                     J.,

dissenting). One disagreement between the lead opinion and the dissent was whether
considering juror questionnaires constituted voir dire. Slert, 334 P. 3d at 1095 ( Stephens, J.,
dissenting).


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             The experience and logic test requires us to consider ( 1) whether the process and place of


a proceeding historically have been open to the press and general public (experience prong) and

 2) whether access to the public plays a significant positive role in the functioning of the

proceeding ( logic prong).           Sublett, 176 Wn.2d at 73. If the answer to both prongs is yes, then the

defendant' s public trial right " attaches" and a trial court must apply the Bone -Club factors before

closing the proceeding to the public. Sublett, 176 Wn.2d at 73. 4
         Neither party has cited any cases, statutes, or any other authority suggesting that pre -voir

dire dismissals ofjurors who inadvertently sit through pretrial motions historically have been

open to the public. Instead, the case law suggests that juror dismissals before the jury is

impaneled generally have not been open to the public.

         First, Washington courts have held that a court clerk has authority to dismiss prospective

jurors from service for certain reasons when the jury pool is first being assembled. In re Pers.

Restraint of Yates, 177 Wn.2d 1, 21 - 22, 296 P. 3d 872 ( 2013); State v. Rice, 120 Wn.2d 549, 559-


61, 844 P. 2d 416 ( 1993);          State v. Langford, 67 Wn. App. 572, 583 -84, 837 P.2d 1037 ( 1992). •




4 It is somewhat unclear who bears the burden regarding the experience and logic test. Our
Supreme Court has held that a personal restraint petitioner has the burden of satisfying the
experience and logic test. In re Pers. Restraint of Yates, 177 Wn.2d 1, 29, 296 P. 3d 872 ( 2013).
The court has not expressly decided whether the same rule applies in a direct appeal, but has
suggested      that the defendant       has the burden. Slert, 334 P. 3d       at   1093 ( " Slert has not shown there
was a closure under         the    experience and    logic test. ");   Sublett, 176 Wn.2d at 75 ( stating in
addressing the experience and logic test that " the petitioners have failed to establish that their
right   to   a public   trial   was violated. ").   In Wilson, we also assumed that the defendant has the
burden. 174 Wn. App. at 346 -47 ( holding that the defendant failed to satisfy both prongs of the
test). We need not address this issue because we hold that the experience and logic test is not
satisfied regardless of who has the burden of proof.

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Because a clerk' s work is not necessarily open to the public, these rulings suggest that the public

trial right does not apply to this type of dismissal. See Wilson, 174 Wn. App. at 344.

           Second, in Wilson, we applied the experience prong to a bailiffs pre -voir dire dismissal

of two jurors because they were ill and concluded that this dismissal did not implicate the public

trial   right.   174 Wn.     App.      at   342 -46. We focused       on   RCW 2. 36. 100( 1),    which gives the trial


court broad discretion to dismiss prospective jurors, and CrR 6. 3, which contemplates some

excusal of       jurors before     voir     dire. Wilson, 1. 74 Wn.    App.     at   342 -43.   We held that


 administrative" juror dismissals are not proceedings that historically have been open to the

public.     Wilson, 174 Wn.            App.   at   342 -43. As we recognized in Wilson, however, administrative


dismissals generally involve matters unrelated to a juror' s ability to impartially view the

defendant and facts of the case. 5 174 Wn. App. 344. The record here indicates that juror 28 was

not     dismissed for      an " administrative" reason,        but due to the trial       court' s —   and both parties' —


legitimate concerns about juror 28' s ability to impartially try Miller' s case. The juror had been

 tainted" by inadvertently sitting through pre -trial motions in limine.

           Third, a plurality of our Supreme Court in Slert held that in- chambers discussions and

dismissals for cause based on case -specific jury questionnaires before formal voir dire started did

not satisfy the experience prong and therefore did not implicate the public trial right. 334 P. 3d at
1093.




5 See, e. g., Yates, 177 Wn.2d at 22 ( upholding excusals based on factors unrelated to the
particular case);         State   v.   Marsh, 106 Wn.      App.   801, 807, 24 P. 3d 1127 ( 2001) ( juror excused due
to       English- speaking status);
     non -                                         Langford, 67 Wn. App. at 582 ( jurors excused automatically if
they     were    health   care providers or         teachers); State v. Killen, 39 Wn. App. 416, 419, 693 P. 2d 731

  1985) ( jurors excused due to schedule conflicts with trial).

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             These cases are not directly on point. But they do suggest that juror dismissal before voir

dire begins —even for         case -specific reasons as    in Slert —generally     do not implicate the public

trial right. And Miller has failed to provide any evidence, authority, or argument that pre -voir

dire juror dismissals are proceedings that historically have been open to the public. Accordingly,

we hold that juror 28' s dismissal fails to meet the experience prong of the experience and logic

test. See Sublett, 176 Wn.2d at 75 -77.


             Because the trial court' s dismissal of juror 28 during a recess before voir dire does not

satisfy the experience prong of the experience and logic test, the juror' s dismissal did not

implicate the      public   trial   right.   Sublett, 176 Wn.2d   at   73. Therefore, we hold that the trial court


did not violate Miller' s public trial right.


B.           RIGHT TO BE PRESENT


             Miller argues that dismissing juror 28 in his absence violated his right to be present

because jury selection is a critical trial stage. We hold that even if Miller' s right to be present

was violated, this violation was harmless error.


              A criminal defendant has a fundamental right to be present at all critical stages of trial."

State   v.   Irby, 170   Wn. 2d 874, 880, 246 P. 3d 796 ( 2011).          Our Supreme Court has recognized that


jury selection is a " critical" stage of trial to which the right to be present attaches. Irby, 170

Wn.2d at 883 -84. Further, the court stated that the right attached when the work of empanelling

the jury begins, which in that case was when the prospective jurors were sworn and completed

questionnaires. Irby, 170 Wn.2d at 884.




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         But both the federal due process right to be present and Washington' s right to appear and

defend   are subject   to   constitutional   harmless   error analysis.   Irby,   170 Wn.2d   at   885. The State


has the burden of proving the error was harmless beyond a reasonable doubt. Irby, 170 Wn.2d at

886. When the defendant' s right to be present is violated in the context of a juror dismissal, the

State must prove that the juror had no chance to sit on the defendant' s jury. Irby, 170 Wn.2d at

886.


         Here, we hold that there was no chance that the trial court would have allowed juror 28 to


remain on this jury, even if Miller had had been present and objected to juror 28' s dismissal.

The    potential prejudice —to     both Miller   and    the State — inherent   in allowing juror 28 to remain

on the jury after being present during pre -trial motions was far too great. The fact that the

motions were deliberately held outside the prospective jurors' presence shows that the trial court

and the parties believed it would prejudice the jurors to hear the information. For this reason,

both counsel quickly stipulated that juror 28 should be dismissed. Further, Miller has not made

any attempt to explain how juror 28 would have been allowed to remain on his jury under these

circumstances.




          Accordingly, we hold that the State met its burden of proving harmless error beyond a

reasonable doubt. Therefore, we hold that Miller is not entitled to reversal based on any

violation of the right to be present.




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        We reject Miller' s public trial right and right to be present arguments, and affirm his

convictions.




 We concur:




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