                                                                                 FILED
                                                                         COURT OF APPEALS
                                                                             DIVISION II

                                                                        2015 AUG 26     PM 12: 52

                                                                        STATE OF WASHINGTON

                                                                         BY
                                                                                        Y --




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                               DIVISION II

 STATE OF WASHINGTON,                                                   No. 40333 -1 - II


                                    Respondent,


          V.




 KENNETH LANE SLERT,                                               PUBLISHED OPINION




         JOHANSON, C. J. —     On remand, our Supreme Court asks us to consider whether the trial


court' s violation of Kenneth Lane Slert' s constitutional right to be present when several jurors


were excused outside his presence was harmless error. Slert argues that the error was not harmless


because the State cannot demonstrate that these excused jurors had no chance to sit on the jury.

We hold that the State fails to show that the trial court' s violation of Slert' s constitutional right to


be present during jury selection was harmless beyond a reasonable doubt. Accordingly, we reverse

his   conviction and remand   for   a new   trial.
No. 40333 -1 - II


                                                             FACTS


          The State charged Slert with first degree murders and second degree murder.2 On January

6, 2010, during a pretrial hearing, the parties agreed to design a questionnaire to determine what,

if any, knowledge the prospective jurors had regarding the prior proceedings in Slert' s case. Slert' s

counsel was concerned that knowledge of prior proceedings could taint the panel. Slert was present


at this hearing.

          On January 21, the parties discussed the proposed questionnaire at another pretrial hearing

The State suggested changing the questionnaire so that it referred to the, prospective jurors'

knowledge        of " prior      proceeding[ s]"      in Slert'    s        case    rather    than "   prior   trial[ s]."      Report of


Proceedings ( RP) ( Jan.          21, 2010) at 3. The court agreed. Slert was present at this hearing as well.

          On January 25, the first day of trial, the court gave the jurors the questionnaire. After the

prospective jurors filled out the questionnaires but before the court went on the record, a pretrial


conference was        held in      chambers.       During this conference, counsel for both parties agreed to

excuse    four   prospective       jurors. Slert     was not present               for this   pretrial conference.           In court, with


Slert   present,   the    court announced, "       I have already, based on the answers [ to the questionnaires],

after consultation with counsel, excused jurors number 19, 36, and 49 from panel two which is our


primary    panel and       I'   ve excused   juror   number      15 from           panel one,    the   alternate panel."         1 RP at 5.


Slert' s counsel also suggested that the four jurors were excused because they " have indicated

knowledge        of ...   prior court   trials."     1 RP   at   11.        The record contains no other information about




s RCW 9A.32. 030( 1).

2 RCW 9A.32. 050( 1)( a).

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No. 40333 -1 - II



what the four excused jurors' answers to the questionnaires were or the extent of those jurors'

knowledge      of   the      prior   proceedings     in Slert' s     case.     The trial court destroyed the answered


questionnaires and saved only a draft of the questionnaire for the record. State v. Slert, 169 Wn.

App.   766, 769      n. 6,   282 P. 3d 101 ( 2012) ( Siert I), rev' d, 181 Wn.2d 598, 334 P. 3d 1088( 2014)


 Slert II).


           In open court and with Slert present, the trial court and counsel then conducted individual

voir dire of additional jurors based on their questionnaires. The court and counsel asked each juror


about their knowledge of Slert' s case, where they had heard about the case, and whether any prior

knowledge      of   the   case " would affect [ their]          ability.to be fair   and   impartial."   1 RP at 18. Each of


these jurors had varying levels of knowledge of Slert' s case and prior proceedings againsi him.

Slert' s   counsel asked        to   excuse   four   of   those jurors       for   cause—   three jurors had knowledge of


Slert' s prior trials and one juror had a friendly and professional relationship with one of the

investigators    whom         the State did   not plan     to   call as a witness.     The court excused the three jurors


who had knowledge of a prior trial even though each said that he or she could remain impartial.


The trial court denied Slert' s challenge to the witness who knew and worked with one of the


investigators.


           Voir dire then continued in open court until they finalized a panel of 14 jurors. Slert' s jury

consisted entirely of jurors from panel two,, ranging from juror number 3 to juror number 43.

           In February 2010, the jury convicted Slert of second degree murder and Slert appealed his

conviction. On appeal, we held that the trial court violated both his right to a public trial and his

right to be present when it excused the four prospective jurors based on their questionnaires in

chambers.      Slert I, 169 Wn.         App.   at   769. Because we held that Slert' s public trial violation was



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No. 40333- 1- 11



structural error requiring reversal, we did not address whether the violation of Slert' s right to be

present was      harmless    error.    Slert I, 169 Wn.       App.     at   778- 79.      Our Supreme Court found no


violation of Slert' s public trial rights and remanded the case to us to determine whether the


violation of Slert' s right to be present was harmless error. Slert II, 181 Wn.2d at 609.


                                                            ANALYSIS


          Slert argues that the State fails to establish that the violation of his right to be present was


harmless. We agree that the error was not harmless beyond a reasonable doubt.


                                  I. STANDARD OF REVIEW AND RULES OF LAW


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


the Washington Constitution                guarantee   criminal   defendants the          right   to be     present at " critical



stages"   in their trial.    State    v.   Irby,   170 Wn.2d 874, 880- 81, 884- 85, 246 P. 3d 796 ( 2011).                      A


violation of a defendant' s right to be present during all critical stages of his trial is subject to

constitutional harmless error analysis. Irby, 170 Wn.2d at 885- 86.

          Under this standard, it is the State' s burden to demonstrate that a violation of a defendant' s


right   to be   present was    harmless beyond          a reasonable        doubt.   Irby, 170 Wn.2d at 886; State v.

Burdette, 178 Wn.          App.   183, 201, 313 P. 3d 1235 ( 2013).                  The State must prove beyond. a


reasonable doubt that the violation of a defendant' s right to be present had no effect on the verdict.


Irby,   170 Wn.2d     at   886- 87.    In order to satisfy its burden in the context of juror dismissals, the

State   must    demonstrate that the        excused    jurors " had   no chance      to   sit. on [   Slert' s]   jury." Irby, 170

Wn.2d at 886.




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No. 40333 -1 - II


                       II. SLERT' S BURDEN TO RAISE THE POSSIBILITY OF PREJUDICE


         As a threshold matter, the State argues that it is Slert' s burden to first allege prejudice from


the violation of his right to be present before the burden shifts to the State to demonstrate that any

violation was harmless beyond a reasonable doubt. Its argument is based on State v. Caliguri, 99

Wn.2d 501, 509, 664 P. 2d 466 ( 1983) (`.`Nonetheless, the defendant must first raise at least the


possibility   of prejudice.").              Even assuming Slert is required to allege prejudice,. he satisfies this

burden. Slert    raises     the issue        when   he argues, " Furthermore,           as in Irby, the prejudice is clear from

the record."     Suppl. Br. of Appellant at 6.


         Here,   as   in   Irby,      the   prejudice alleged     is       clear   from the   record:   jurors were excused for


cause for case -specific reasons that were never tested in the defendant' s presence. See 170 Wn.2d

at   886. The Irby    court      described the       prejudice   that      Irby endured as "[ r] easonable and dispassionate

 jurors] may look          at   the   same evidence and reach a               different   result.   Therefore, the State cannot


show beyond a reasonable doubt that the removal of several potential jurors in Irby' s absence had

no effect   on the verdict."           170 Wn.2d       at   886- 87.       Thus, the alleged prejudice was the removal of


some potential      jurors in Slert' s          absence.     We hold that Slert adequately raised the possibility of

prejudice.




                                 III. ERROR NOT HARMLESS BEYOND A REASONABLE DOUBT


          Slert argues that the State cannot establish that the violation of his right to be present was

harmless because three            of the     four   excused   jurors " had         some chance of   sitting   on   the   jury."   Suppl.


Br. of Appellant at 7. We agree the error is not harmless.


          Our Supreme Court held in Irby, that Irby' s right to be present during a critical stage of his

trial jury     selection—        was violated and the error was not harmless because several jurors who had



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No. 4033 3 - 1 - II



been excused " fell within the range ofjurors who ultimately comprised the jury" and " their alleged

inability   to   serve was never     tested      by    questioning in   Irby' s   presence."    170 Wn.2d at 886.


          In Irby, after prospective jurors were sworn and had filled out case -specific questionnaires,

the   court,   in   consultation   by    e- mail with counsel, excused            10 jurors before     voir   dire. 170 Wn.2d


at 877- 78. The record did not establish that Irby spoke with his counsel before counsel responded

to the court' s e- mail or that he was aware that the jurors would be excused. Irby, 170 Wn.2d at

884.


          The trial court excused several jurors in Irby due to hardships and not due to any case -

related objection.        170 Wn.2d        at   886.    Our Supreme Court concluded that had they been present

for voir dire " and been subjected to questioning in Irby' s presence as planned, the questioning

might have revealed that one or more of these potential jurors were not prevented by reasons of

hardship from participating." Irby, 170 Wn.2d at 886. The State also did not show that the excused

jurors had no chance to sit on Irby' s jury. Irby, 170 Wn.2d at 886- 87.

          Here, the facts are analogous to Irby because ( 1) excused jurors 19 and 36 from panel two

fit   within   the   range of   jurors   who were        ultimately    seated and (   2) "   their alleged inability to serve

was never        tested   by   questioning in [ Slert' s]        presence."       170 Wn.2d      at   886.    Slert' s final jury

consisted of jurors from panel two ranging from juror number 3 to juror number 43. 3 Excused

jurors 19      and   36 fit sequentially        within   that   range of jurors.    This is important because had these


jurors not fit within the range of jurors who ultimately comprised Slert' s jury, they would have

had no chance to sit and any error would be harmless. Irby, 170 Wn.2d at 886.




3 None of the jurors from the alternate panel, panel one, were seated on Slert' s jury.
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No. 40333 -1 - II



           Yet these jurors were excused based solely on their written answers to a jury questionnaire

during     an   in -chambers           conference outside       Slert' s     presence.   The excused jurors' answers to the


questionnaire were not " tested by, questioning in [ Slert' s] presence" nor are their answers in the

record because the questionnaires were.destroyed. Irby, 170 Wn.2d at 886; Slert I, 169 Wn. App.

at   769   n. 6.    Slert did not have the opportunity to discuss the basis for the excusal of these two

jurors .with his counsel either before or after the in -chambers conference. Slert I; 169 Wn. App. at

775;   Irby,    170 Wn.2d         at   884 ("`   where ...    personal presence is necessary in point of law, the record

must show          the fact"' (    alteration     in   original) (   quoting Lewis v. United States, 146 U.S. 370, 372,

13 S. Ct. 136, 36 L. Ed. 1011 ( 1892))).                     Notably, the trial court did conduct individual voir dire in

open court and in Slert' s presence of 14 jurors whom Slert' s counsel suspected might also have

had prejudicial prior knowledge of the case based on their answers to the questionnaires. But the


record provides no explanation for why those jurors were questioned in Slert' s presence and the

jurors that the court excused in chambers were not questioned in Slert' s presence.


           The dissent points out that the jurors in Irby were excused for hardship, where here the

jurors     were
                   likely   excused       for bias. Dissent       at   17.    We disagree because ( 1) as stated above, the


record is not clear about why the jurors were excused and ( 2) we view this distinction as one

without a       difference. The          record   demonstrates that the jurors           were excused "   for   cause,"   that Slert' s


counsel agreed to their excusal, and that the jurors were likely excused because of knowledge of

previous proceedings in Slert' s case. 2 Clerk' s Papers at 194.


            Furthermore, even in Irby where the reasons for the jurors' hardship excusals were apparent

from the record, the court nonetheless held that questioning the jurors in Irby' s presence could

have demonstrated their ability to                     serve.   170 Wn.2d        at   886.   Likewise, had Slert' s jurors been



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No. 40333 -1 - II



present for voir dire and questioned in Slert' s presence, Slert could have established that some of

the excused        jurors   were   not prevented         from serving due to bias.           We reach this conclusion


particularly because the jurors' answers to the questionnaires have been destroyed and we do not

know the basis for their excusal. Moreover, during the individual voir dire, some jurors with prior

knowledge of the case were dismissed while others were not. This creates more uncertainty about

why the trial court dismissed the jurors in chambers, making it more difficult for the State to

demonstrate beyond a reasonable doubt that the excused jurors had no chance to sit on Slert' s jury.

Having the answers to the jurors' questionnaires might show, beyond a reasonable doubt, that some

or all of    the   potential   jurors   were   biased    such   that   they had   no chance      to   serve on   the   jury.   But


those facts are not before us.


            As the   Irby   court explained, "    Reasonable and dispassionate minds may look at the same

evidence and reach a different result. Therefore, the State cannot show beyond a reasonable doubt

that the removal of         several potential     jurors in     Irby' s   absence   had   no effect on    the    verdict."     170


Wn.2d at 886- 87. Because ( 1) excused jurors 19 and 36 were never questioned in Slert' s presence,


 2) they fit within the range of jurors who were ultimately seated in this case, and ( 3) the State

cannot demonstrate that they had no chance to serve on the jury, the constitutional violation of .

Slert' s right to be present during jury selection was not harmless beyond a reasonable doubt.

                                          IV. THE STATE' S ARGUMENTS FAIL


            The State argues that ( 1) Irby does not control here because, unlike in this case, in Irby

there   was " no       evidence     in the     record"    to   explain    why jurors      were    excused, (     2) the record


establishes that the jurors who were excused in chambers here were prejudiced against Slert, and

 3)   our   decision in State      v.   Miller, 184 Wn.        App.    637, 338 P. 3d 873 ( 2014),       review    denied, 182
No. 40333 -1 - II



Wn.2d 1024 ( 2015), is            on point and should control               in this   case.    Suppl. Br.     of   Resp' t   at -10.    We


disagree because ( 1) the record in Irby actually contained more evidence about why the jurors were

excused than the record before us, and, like this case, the jurors were not questioned in the

defendant'   s presence; (       2) the State cannot establish that the jurors who were excused in chambers


were    prejudiced     against           Slert    beyond       a    reasonable        doubt;    and (   3)     Miller is factually

distinguishable.


         First, the .State' s argument that there was no evidence in Irby as to why the jurors were

excused is incorrect because the reasons that the trial court excused prospective jurors in Irby were

apparent   from the    record.          As explained above, two jurors were excused because their terms of


jury duty were almost expired and the third was excused because he or she home schooled his or - .

her children. Irby, 170 Wn.2d at 878. Here, there are just two statements about the jurors excused

in chambers. Before voir dire, the court stated that " I have already, based on the answers [ to the

questionnaires] excused jurors number 19, 36, and 49 from panel two [ and] juror number 15 from


panel one."     1 RP   at   5.    Slert' s   counsel also stated, "         I' ve got a list of 15 jurors that responded that


they knew something              about   the case based        on   the publicity.      My     concern   is   none of    them --       well,




none of the ones other than the ones The Court has already pulled have indicated knowledge of

any   prior court   trials."       1 RP    at    10- 11.    Thus, the record in Irby provided more information than

here about why the jurors were excused.

         Nonetheless, the Irby court held that had the excused jurors been questioned in the

defendant'    s presence,        they    might not         have been      excluded.     170 Wn.2d       at    886- 87.   The issue in


Irby, therefore, was not only whether the reasons that the court excused the jurors were apparent

from the record, but also whether the defendant should have had the opportunity to be present to


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No. 40333 -1 - II



test the jurors'     potential    biases.      Like Irby, Slert did not have the opportunity to test the jurors

about their potential bias in his presence.


           Second, the State cannot demonstrate beyond a reasonable doubt that excused jurors 19


and   36   were prejudiced against             Slert.   These jurors' questionnaires and answers are .not in the


record because they were destroyed and no other part of the record demonstrates if they were

prejudiced against Slert or what knowledge of the prior proceedings against him they might have

had. Slert I, 169 Wn. App. at 769 n.6.

           Because we cannot review the jurors' answers to the questionnaires and the record does


not explain what, if any, specific answers led the trial court to excuse jurors 19 and 36, the State

cannot prove beyond a reasonable doubt that the jurors were prejudiced against Slert. Moreover,

we reject the dissent' s view that the excused jurors' bias can be inferred from the record beyond a

reasonable doubt under the circumstances presented here where the jurors' questionnaires and


answers are unavailable for review. Dissent at 15.


           Finally, Miller is factually distinguishable. In Miller, before the jury was sworn and voir

dire conducted, the parties addressed preliminary courtroom security issues including whether and

when Miller needed to be shackled and how close his guards would need to stand during trial. 184

Wn.   App.    at   640.   During a recess, the court and the parties realized that one of the prospective

jurors was in the courtroom during their discussion of courtroom security and excused that

prospective    juror in Miller' s         absence.      Miller, 184 Wn.   App.   at   640.   This court held that any

violation of       Miller'   s right   to be   present was   harmless because the "     potential prejudice —to   both




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No. 40333 -1 - II



Miller   and   the State — inherent      in allowing [ the juror] to remain on the jury after being present

during   pretrial motions. was     far too   great."     Miller, 184 Wn. App. at 647. Because of the potential

for prejudice, we concluded that the juror had no chance to *be on Miller' s jury. Miller, 184 Wn.

App. at 647.

          Unlike in Miller, the excused jurors here had been sworn and had completed a case -specific


jury questionnaire. Irby, 170 Wn.2d at 884; Miller, 184 Wn. App. at 640- 41; Slert I, 169 Wn. App.

at   770. The jury     questionnaires    here   were     designed to " test[ ] their fitness to serve as jurors in this


particular     case"   and   not   to   assess "   the    general   qualifications   of . . .   potential   jurors,"   as




distinguished from Miller where witnessing pretrial motions and a debate about whether Miller

should be shackled would disqualify any prospective juror in any case. Irby, 170 Wn.2d at 882.

The Miller court applied the correct test and concluded that the challenged juror had no chance to

sit on   Miller' s   jury. 184 Wn. App. at 647. Thus, Miller is factually distinguishable and does not

control the outcome here.


          In   conclusion,   because ( 1)       two of the excused jurors were within the range of jurors


ultimately seated on Slert' s jury, (2) their fitness to sit on the jury was never tested by questioning

in Slert' s presence, and ( 3) the State cannot demonstrate beyond a reasonable doubt that they had




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No. 40333 -1 - II



no chance to sit on this jury, the violation of Slert' s constitutional right to be present during jury

selection was not   harmless beyond   a reasonable   doubt.   Accordingly, we reverse his conviction

and remand for a new trial.




                                                        CHANSON, C. J.
 I concur:




 W( RSWICK, J.




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No. 40333 -1 - II



          MELNICK, J. — (         dissent) I respectfully dissent from the majority' s opinion. The bases for

my disagreement        are    twofold.        First, I believe the harmless error test unequivocally requires

Kenneth Slert to      raise   the possibility        of prejudice and      he failed to do       so.    Second, I believe the


State has proven beyond a reasonable doubt that the violation of Slert' s right to be. present was


harmless because the          excused       jurors had    no    chance    to   sit on   the   jury.    I would affirm Slert' s


conviction.




          The harmless error test requires a defendant to demonstrate a possibility of prejudice.

Because the claimed error in this case, i.e. the right to be present, is of constitutional magnitude,


the constitutional     harmless       error   test   applies.   This test      states, "   if trial error is of constitutional


magnitude, prejudice is presumed and the State bears the burden of proving it was harmless beyond

a reasonable      doubt."     State    v.   Coristine, 177 Wn.2d 370, 380, 300 P. 3d 400 ( 2013);                    see   also




Chapman      v.   California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 ( 1967). " Nonetheless,


the defendant      must   first   raise at    least the possibility      of prejudice."        State v. Caliguri, 99 Wn.2d


501, 509, 664 P. 2d 466 ( 1983).


          An error is harmless only if we cannot reasonably deduct that the jury would have arrived

at the same verdict in its absence. State v. Franklin, 180 Wn.2d 371, 383, 325 P. 3d 159 ( 2014).


The State must show " beyond a reasonable doubt that the error complained of did not contribute


to the   verdict obtained."        Chapman, 386 U.S. at 24; State v. Stephens, 93 Wn.2d 186, 190- 91, 607


P. 2d 304 ( 1980). State v. Lui, 179 Wn.2d 457, 528, 315 P. 3d 493, cert. denied, 134 S. Ct. 2842,


189 L. Ed. 2d 810 ( 2014). " A constitutional error is harmless if the appellate court is convinced


beyond a reasonable doubt that any reasonable jury would have reached the same result in the

absence of error."        Franklin, 180 Wn.2d           at   382.     Stated   another     way, " the error had no effect on



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No. 40333 -1 - II



 Slert'   s]    conviction       for these   crimes."      See State v. Garcia, 179 Wn.2d 828, 845, 318 P. 3d 266


 2014).


            Despite the Supreme Court' s direction in Caliguri, 99 Wn.2d at 509, that the defendant is


required to raise at least the possibly of prejudice during application of the constitutional harmless

error test, the majority does not seem to require such a showing. See Majority at 5. The majority

states    that "[ e] ven assuming Slert         is required to      allege prejudice,    he   satisfies   this burden."   Majority

at   5.   I respectfully disagree with the majority.

            The majority         points   to State   v.   Irby,   170 Wn.2d 874, 246 P. 3d 796 ( 2011),          for its authority

that when jurors are excluded outside the defendant' s presence; the defendant may not be required

to even raise the possibly of prejudice. The Irby court did not address whether or not a defendant

was required to raise at least the possibility of prejudice. However, I do not believe that the Irby.

court established a new harmless error test or eliminated the long-standing requirement that a

defendant first raise the possibility of prejudice. See Caliguri, 99 Wn.2d at 509. In fact, the court

in Irby recognized that a violation of a defendant' s right to appear and defend in person may not

be prejudicial to the defendant. 170 Wn.2d 881. The Irby court noted that it had rejected its earlier

applications of the harmless error test that said prejudice is conclusively presumed when a

defendant'        s right   to   appear and    defend in     person    is   violated.   170 Wn.2d at 886.


                      We chose to follow instead " the harmless error standard adopted by most
            jurisdictions."


                      The State has          not met      its burden here.
                                                                 We say that because the State has
               not and cannot show that three of the jurors who were excused in Irby' s absence . .
                 had no chance to sit on Irby' s jury.... [ Therefore,] [ i]t is no answer to say that
               the 12 jurors who ultimately comprised Irby' s jury were objectionable. Reasonable
               and dispassionate minds may look at the same evidence and reach a different result.
               Therefore, the State cannot show beyond a reasonable doubt that the removal of
               several potential jurors in Irby' s absence had no effect on the verdict.

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No. 40333 -1 - II




Irby,    170 Wn.2d       at   886-.87 (   emphasis added) (          internal     citations omitted) (     quoting Caliguri, 99

Wn.2d at 509).


          Furthermore, subsequent to Irby, we have required a defendant to raise the possibility of

prejudice in the context of jury selection outside the defendant' s presence. In State v. Jones, 175

Wn.     App. 87,     303 P. 3d 1084 ( 2013) ( Wiggins, J.P. T.), the defendant claimed a violation of his


right to appear and defend when the trial court randomly selected alternate jurors from the pool of

accepted      jurors   outside   his    presence.         We rejected his claim, but further held that if it was error,


the error was harmless beyond a reasonable doubt. Jones, 175 Wn. App. at 108. In citing to Irby' s

harmless error test, we stated that " Jones does not demonstrate a possibility of prejudice" during

the   random selection of alternate                 jurors. Jones, 175 Wn.            App.    at   108. Although Jones involved


the selection of alternate jurors and Irby involved the selection of the actual jurors, this distinction

is not mentioned and is without a difference in regard to the defendant' s need to demonstrate the


possibility of prejudice.


          The majority contends that even if Slert were required to allege prejudice, he raises the

issue    by   his   statement    that "   as    in   Irby,   the   prejudice     is   clear   from the   record."   Majority at 5

 quoting      Supp.    Appellant'   s   Br.    at   6).   Again, I respectfully disagree with Slert and the majority.

          The possibility        of prejudice or             harm to Slert is         not   clear   from the   record.   Slertmust


articulate the prejudice so we can meaningfully review it. He has failed to do so. Failure to point

to the   record precludes appellate review.                   RAP 10. 3(   a)(   6); Mills v. Park, 67 Wn.2d 717, 721, 409


P. 2d 646 ( 1966) (" We are not required to search the record for applicable portions thereof in


support of     the   plaintiffs'   arguments.");           Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 80 1, .

809, 828 P. 2d 549 ( 1992).


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No. 40333 -1 - II



           Slert' s assertion that " as in Irby, the prejudice is clear from the record" is without merit.

Br.   of   Appellant   at   6.   In Irby, the Supreme Court clearly said the excused jurors were never

questioned at all, let alone about the hardships which excused them. The prejudice in Irby is' that

with questioning, two of the excused jurors may have been able to sit for longer than one week and

one juror, who home -schooled her child(ren), may have been able to sit for three weeks. The court

concluded that the jurors were excused for reasons that may have been invalid. Irby, 170 Wn.2d

at   886- 87. As will be discussed below, the jurors excused from Slert' s trial were questioned and


they   could never     have      sat on   the   jury   because they     were   biased.    Therefore, unlike in Irby, the

prejudice to Slert is not clear from the record.


           Also, we do not conclusively presume prejudice when a defendant' s right to be present has

been    violated.   Irby,    170 Wn.2d          at   886.   The majority   states, "[    T] he .alleged prejudice was the


removal of some potential           jurors in Slert' s      absence."    Majority   at   5.   This statement conclusively

presumes prejudice          from Slert'    s    absence.     In the present case, because Slert does not raise a


possibility of prejudice and does not show prejudice, I would affirm his conviction.

           Setting aside Slert' s initial burden to raise the possibility of prejudice, I also disagree with

the majority' s conclusion that the State failed to prove that the violation of Slert' s right to be

present was harmless beyond a reasonable doubt. I would conclude that the State met its burden


under the harmless error test because the jurors excused outside of Slert' s presence had no chance


to sit on the trial.




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          In Irby, the trial court utilized a juror questionnaire. It encompassed questions relating to

both bias   and    hardship. Irby,     170 Wn.2d       at   878. The trial court and the attorneys for both sides


reviewed    the   completed questionnaires.           The trial court then sent an e- mail to the attorneys and


suggested that ten specific jurors should be excused. Irby, 170 Wn.2d at 877- 78. After further e-

mail exchanges, seven prospective jurors were excused by agreement of counsel. Irby, 170 Wn.2d

at 878. This activity occurred outside the presence of Irby. Irby, 170 Wn.2d at 878. Our Supreme

Court held that the trial court violated Irby' s right to be present during jury selection and the error

was not harmless because three of the seven jurors who had been excused " fell within the range of


jurors   who   ultimately   comprised     the    jury." Irby, 170 Wn.2d at 886.

          In Irby, the court stated that the State " has not and cannot show that three of the excused

jurors " had   no chance    to   sit on [ the]   jury." Irby 170 Wn.2d at 886. The court stated the State did

not meet    its burden of proof because the         excused    jurors' "     alleged inability to serve was never tested

by   questioning in    Irby' s   presence.       Indeed,    they   were not questioned at all."    Irby, 170 Wn.2d at

886.     The court went on to state that " the questioning might have revealed that one or more of

these potential jurors were not prevented by reasons of hardship from" serving. Irby, 170 Wn.2d

at 886.


          In our case, I believe the State has shown beyond a reasonable doubt that all of the excused


jurors,   after   questioning, had     no chance      to   sit on   the   jury. In Irby, like here, the trial court used

juror questionnaires. In Irby, the questionnaires addressed issues ofhardship and bias. In our case,

the questionnaires addressed only bias. In Irby, the court said the excused jurors were not




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questioned. Here, the jurors were questioned and we know the reasons for the trial court excusing

them. They were biased.

             The undisputed evidence is that Slert' s attorney drafted a juror questionnaire which the

State generally        accepted.'     The two page questionnaire contained only questions that related to the

potential jurors prior knowledge of, involvement with, or opinions about the accusations against


Slert or the prior proceedings. 6 Slert wanted to insure that potential jurors with prior knowledge

of either the facts of the case or of prior proceedings, were asked about it.

             The trial court and the attorneys reviewed the completed questionnaires and all agreed to


dismiss the jurors " based simply                on    their   answers."          Slert, 181 Wn.2d        at   602.   As the dissent in


Slert, 181 Wn.2d 598, points out, the purpose of the questionnaires " was designed to identify jurors

who   may have had          a    bias due to     prior   knowledge          of    the   case....      It asked the prospective jurors


questions       only   about potential          bias."     Slert, 181 Wn.2d               at   616.    The questionnaire was case -


specific.       It contained no questions about hardship or other subjects that would lead to the




4 Here, the questionnaires were probing enough that the Supreme Court seemed to consider the
jurors to have been "              which was not the case in Irby. In State v. Slert, 181 Wn.2d 598;
                             questioned,"

334 P. 3d 1088 ( 2014), four justices concurred in the lead opinion, one justice wrote a concurring
opinion, and four justices joined in the dissenting opinion. All of them agreed that the jurors in

Slert were questioned. The lead opinion concluded that the jurors were dismissed " based simply
on their answers." Slert, 181 Wn.2d at 602. The concurring opinion notes that "the questions were

not used merely as a framework for questioning; they were used to evaluate jurors' fitness to serve
and   to     excuse   jurors for    cause."      Slert, 181 Wn.2d            at   610. The dissent agrees that this portion of
the proceeding         involved questioning              of   jurors   and   formed the basis for its           objection.   Slert, 181
Wn.2d at 616.


  The State      asked     the   court   to   substitute   the term " prior proceeding[ s]" for the term " prior
trial[ s]"    that Slert   proposed.          Report   of Proceedings   ( Jan. 21, 2010) at 3. The court agreed with
the State.


  All of these areas of inquiry are the ones that I refer to as " bias" in this dissent.
                                                                       18
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disqualification of a juror other than bias. In contrast, the questionnaire in Irby involved issues of

both bias   and   hardship. Some of the potential jurors were clearly excused for reasons other than

bias. Irby, 170 Wn.2d at 877- 78

          Unlike Irby, where the court said the State " has not and cannot show" the excused jurors

 had   no chance      to   sit on [ the]   jury,"   170 Wn.2d at 886, here the State could and did prove beyond


a reasonable doubt that the excused jurors had no chance to sit on the jury.

          The majority says that the State has not shown harmless error because jurors 19 and 36 had

some chance of sitting on the jury because they " fit within the range ofjurors who were ultimately

seated"    on   the   jury    and   their   fitness   was "   never tested by questioning in [ Slert' s] presence."

Majority opinion at 5.

          The majority specifically holds that jurors 19                and   36 "   had a chance to sit" on the jury

because their numbers sequentially fell within those jurors who were selected to hear the case.

Majority at 5. I believe this analysis is a misapplication of Irby. Whether they had a chance to sit

on the jury is based on substantive reasons. Because these jurors, and the other two, were excused

solely based on their answers to questions in the questionnaire, and because the questionnaire

related only to issues of bias and prejudice, I would hold that, beyond a reasonable doubt, the

excused jurors had no chance to sit on the jury. Furthermore, I would hold that the State has met

its burden under the harmless error test.




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        For the     foregoing   reasons,   I respectfully dissent.   I would affirm Slert' s conviction for


murder in the second degree.




                                                                     MELNICK, I




                                                        FIE
