                                                                         ~ ~A~ft OF~W4s~ft~ .1
                                                                        2019 FEB 19 AM       a: 55
         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  STATE OF WASHINGTON,                                  No. 75074-7-I

                                Respondent,             DIVISION ONE

                  v.                                    UNPUBLISHED OPINION

  MICHELE ANDERSON,

                                    Appellant.          FILED: February 19, 2019

         CHUN, J.   —   A jury convicted Michele Anderson of six counts of aggravated

murder in the first degree with a firearm sentencing enhancement for each

charge. On appeal, Anderson contends the trial court denied her right to counsel

of choice on multiple occasions. She also raises issues relating to the right to a

public trial, the right to be present at critical stages of trial, the jury’s

consideration of the information, and communication with the jury regarding the

death penalty. For the reasons discussed below, we affirm.

                                        BACKGROUND
        On the morning of December 26, 2007, Judy Anderson did not appear for

work. After attempting to reach Judy1 by telephone, her friend and co-worker,

Linda Thiele, drove to the Anderson house. When she entered the home, Thiele

discovered several dead bodies. Thiele called 911. Law enforcement


          For clarity, this opinion refers to certain family members by their first names. We intend
no disrespect.
No. 75074-7-1/2


discovered the bodies of Judy and her husband, Wayne, behind the house.

Inside the house, they found the bodies of Scott Anderson (Wayne and Judy’s

son), his wife, and their two young children. All six victims had been shot.

       Later that day, Michele Anderson and her boyfriend, Joe McEnroe, arrived

at the house. Anderson told the King County Sheriff detectives she was Wayne

and Judy’s daughter and lived on the property in a trailer. During her initial

conversation with a detective, Anderson did not question law enforcement’s

presence or inquire about her family. The detective became suspicious that

Anderson was withholding information. Eventually, Anderson told the detectives

she had shot and killed all six family members. In recounting the details to

detectives, Anderson changed her story several times, and eventually implicated

McEnroe in the deaths as well.

       On December 28, 2007, the King County Prosecuting Attorney’s Office

charged Anderson and McEnroe with six counts of aggravated murder in the first

degree with a firearm sentencing enhancement for each charge. In October

2008, prosecutors provided notice of a special sentencing proceeding to

determine whether to impose the death penalty, but subsequently withdrew the

notice. In April 2011, the trial court severed Anderson’s and McEnroe’s cases.

After years of proceedings, Anderson’s trial began in January 2016 and

concluded on March 3, 2016 with guilty verdicts on all six counts, including the

aggravating circumstances and firearm enhancements. She now appeals.




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                                    ANALYSIS
   A. Right to Counsel of Choice

       Anderson contends the trial court violated her Sixth Amendment right to

counsel of choice on three separate occasions. The State argues Anderson

abandoned her initial request for substitution of retained counsel, thereby waiving

the issue on appeal, and never effectively renewed that request. We agree with

the State.

       “The Sixth Amendment guarantees the right to select and be represented

by one’s preferred attorney.” State v. Aquirre, 168 Wn.2d 350, 365, 229 P.3d

669 (2010). This right includes a defendant’s right to choice of private counsel.

Aquirre, 168 Wn.2d at 365. However, a defendant’s right to choice of private

counsel has limitations. Aciuirre, 168 Wn.2d at 364. For example, a defendant

does not have the right to representation by an attorney the defendant cannot

afford or one who declines to serve as counsel. Aguirre, 168 Wn.2d at 365.

Additionally, the right to choose counsel does not permit a defendant to unduly

delay proceedings. Aquirre, 168 Wn.2d at 365. The trial court weighs the

defendant’s right to choose counsel against the public’s interest in the prompt

and efficient administration of justice. Aquirre, 168 Wn.2d at 365.

       Erroneous deprivation of the right to counsel of choice constitutes

structural error requiring reversal without a showing of prejudice. United States

v. Gonzalez-Lopez, 548 U.S. 140, 146, 126 5. Ct. 2557, 165 L.Ed.2d 409 (2006).

However, when retention of counsel of choice requires a continuance, the trial

court must balance the defendant’s right with the trial court’s need to manage its


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calendar. Aquirre, 168 Wn.2d at 365. In such cases, resolution of the balancing

of defendant’s rights and efficient administration of justice “falls squarely within

the discretion of the trial court.” Aquirre, 168 Wn.2d at 365. Therefore, an

appellate court reviews such a decision for abuse of discretion. ~ Aquirre, 168

Wn.2d at 365-66.

          1. Motion to Substitute M. Julian Denes as Retained Counsel

       In June 2008, Anderson’s appointed counsel, attorneys Cindy Arends and

Kevin Dolan, moved to withdraw due to fundamental differences with their cHent

on the direction of the defense. Soon after, Anderson moved to discharge

Arends and Dolan, and substitute privately retained attorneys Philip Sayles and

M. Julian Denes. Before the trial court heard the motion, Sayles declined to

represent Anderson, leaving only Denes as private counsel.

      At the time of the request for substitution, more than seven years before

her trial began, Anderson still faced the possibility of a death sentence. The

Washington Association of Criminal Defense Lawyers Death Penalty Committee

filed a brief to express concern about Sayles and Denes as Anderson’s

representatives in a capital case. The brief focused on the importance of

complying with Special Proceeding Rules—Criminal (SPRC) 2 pertaining to

death penalty representation, which specifies requirements for attorneys

appointed to defend capital cases. Sayles and Denes did not meet the

requirements of SPRC 2.

      In early July 2008, the trial court considered briefing and oral argument on

whether SPRC 2 applied to retained counsel and whether Anderson’s Sixth


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No. 75074-7-1/5


Amendment right to retain attorneys of her choice superseded the requirements

of SPRC 2. During oral argument, Denes informed the trial court of Sayles’s

departure and requested appointment of an SPRC 2 lawyer to help litigate the

case. The court concluded that Anderson’s right to counsel of choice was

subject to SPRC 2 and denied the motion to substitute Denes as counsel. The

trial court granted Arends and Dolan’s motion to withdraw, ordered new

appointed counsel, and requested Arends and Dolan remain as representatives

until filing of a notice of appearance by new counsel.

        During a hearing on July 31, 2008, the trial court considered the question

of who represented Anderson in light of Arends and Dolan withdrawing as

counsel and the denial of the motion to substitute Denes. Prior to the hearing,

Denes had filed a motion for reconsideration of the motion to substitute counsel

on Anderson’s behalf. Also, the court had appointed attorney Colleen O’Connor

to provide Anderson with advice on her right to counsel. At the hearing,

O’Connor informed the court she had spoken with Anderson about the SPRCs,

the constitutional right to counsel, the right to counsel of choice, and the courts

role in providing adequate representation.

       After this consultation, Anderson wanted O’Connor to serve as her

counsel. Denes withdrew the motion for reconsideration. He informed the court

that Anderson had not executed the motion because she no longer sought his

representation. In court, Anderson affirmatively stated she no longer desired to

retain Denes as her attorney.




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 No. 75074-7-1/6


       Anderson now claims the trial court incorrectly interpreted SPRC 2 and

denied her right to retained counsel of choice. But Anderson waived this claim.

       A party may abandon or waive a constitutional claim by affirmatively

withdrawing the related motion. State v. Valladares, 99 Wn.2d 663, 672, 664

P.2d 508 (1983). “Once a constitutional challenge has been affirmatively

withdrawn or abandoned, the challenge will not be considered on appeal.” In re

Pers. Restraint of Cross, 180 Wn.2d 664, 690, 327 P.3d 660 (2014) (abrogated

on other grounds by State v. Gregory,   —    Wn.2d   —,   427 P.3d 621 (2018)).

       Here, Anderson raised the issue of her Sixth Amendment right to counsel

of choice in her initial motion for substitution, oral arguments, and in the motion

for reconsideration. However, she abandoned her constitutional challenge to the

court’s decision when she withdrew the motion to reconsider and her request for

Denes to represent her. She affirmatively stated her desire to withdraw the

request for Denes’s representation after consultation with an attorney appointed

to advise her on her right to counsel of choice. At this point, Anderson had

explicitly discontinued her request for Denes as her counsel of choice.

Therefore, she has waived any constitutional claim related to the trial court’s

rejection of her motion to substitute Denes as counsel.

          2. Request for “Furlough”

      Anderson experienced significant turnover in representation and

frequently expressed displeasure with appointed counsel. In February 2015,

appointed counsel Colleen O’Connor and David Sorenson moved to withdraw,

citing a complete breakdown in communication and irreconcilable conflict. At the


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No. 75074-7-1/7


hearing on this motion, Anderson asked the court, “Can I just hire somebody

myself? I don’t like public defenders anymore. lIla was the only private one, and

he was awesome. Why can’t I just, you know, hire some private attorneys?” The

trial court did not address this question, other than to inquire as to lIla’s qualities.

         After further discussion with the trial court and her attorneys, Anderson

again asked, “Can’t I just have a furlough so I can go hire a private attorney?”2

The trial court did not respond to this request. The court subsequently denied

counsel’s motion to withdraw, noting “[tjhe conflict that exists is of

Ms. Anderson’s own making; her refusal to cooperate is neither reasonable nor

justified.”

        Anderson contends the trial court failed to address her requests to hire

private counsel and violated her right to counsel of choice. However, the record

demonstrates no such denial. The trial court did not make any ruling that denied

or prevented Anderson from retaining counsel of choice. Nothing precluded

Anderson from attempting to hire an attorney and moving to substitute counsel.

              3. Request for Mediator

        At the close of the State’s case against Anderson, the parties held an in-

court discussion as to whether Anderson would testify. Anderson wished to

testify but her attorneys believed they could not effectively represent her during

her testimony. As Anderson’s attorneys attempted to explain their position to the


        2   Anderson had made a similar request in November 2009. She told the trial court, “If I
was not in the jail, I could get a private attorney that’s competent.” She also said she wanted to
work toward becoming a minister and helping troubled girls. The trial court responded, “This
notion that you can get out of custody and pursue a minister’s license and do all that while a
death penalty case is looming in your future, it’s just not a realistic view of the world right now.”


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No. 75074-7-1/8


court, she alleged they lied to her, verbally abused her, and committed

malpractice. She claimed, “I need a mediator or a private attorney to add to the

team so somebody can be my witness and tell you because you don’t believe

me.” She also made the following request:

       [C]ould I at least have a PR so I can get a private attorney to come
       into these meetings with them so they can witness what they are
       doing, and then tell you. As a neutral party or even as a mediator
       they have mediators you can hire. Could I at least do that so I have
       the—I have the right to have the ability to prove to you what I’m
       saying. What’s wrong with that?        Like if I had a few hours PR I
       could get—I could go downtown, and I can get a mediator or a private
       attorney to sit in on these things.
Anderson asserted she had a right to release to bring somebody to prove her

allegations. The trial court disagreed.

       When the court asked Anderson if she wished to testify, she responded

that she lacked counsel interested in unbiased representation. She elaborated, “I

just want you to know I have a constitutional right for counsel of choice that I can

hire with my own funds, and I just want you to know that you cannot deny

somebody that.” She continued to claim her right to counsel of choice had been

violated. She requested to confirm on the record that the court denied her the

ability to hire a professional mediator or a private attorney. The trial court

responded, “Ma’am, we are at the end of this trial almost,” made a record as

requested, and attempted to determine whether Anderson wished to testify.

Anderson eventually declined to testify, claiming she lacked effective assistance

of counsel.




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No. 75074-7-1/9


        Anderson alleges this exchange constituted a violation of her right to

counsel of choice. Once again, however, Anderson did not move for substitution

of counsel. Instead, she requested release to hire a mediator or private attorney

to add to her team in order to oversee her trial counsel. Anderson has not

provided legal authority to support her position that the Sixth Amendment right to

counsel includes the right to hire such a private mediator.

        Furthermore, as indicated above, the Sixth Amendment right to counsel of

choice is not absolute. Aquirre, 168 Wn.2d at 365. The trial court must balance

the defendant’s right to counsel of choice with the prompt and efficient

administration of justice. Aguirre, 168 Wn.2d at 365. Anderson’s request to hire

a mediator or private attorney would have necessarily required a continuance. At

this point, the State had rested its case and the defense did not anticipate calling

any witnesses if Anderson chose not to testify. The parties were on the brink of

closing arguments and submission to the jury for deliberation. The case had

taken over eight years to come to trial and almost two months of testimony in

front of the jury.3 In light of these circumstances, any denial of a continuance to

obtain private counsel was well within the trial court’s discretion and does not

amount to a violation of Anderson’s right to counsel of choice.

   B. Jury Selection Issues

       On December 11, 2015, the trial court convened a pool of potential jurors

for jury selection. At that time, the trial court swore in the potential jurors,

introduced the parties, and announced the charges and aggravating

        ~ The State charged Anderson in December 2007 and trial began January 2016.


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No. 75074-7-1/10


circumstances. The court then administered a written questionnaire for

completion by all potential jurors.

       On December 17, 2015, the State, defense counsel, and Anderson

appeared in open court and presented the trial court with a list of 217 jurors both

parties agreed to excuse (agreed list). The list included the State’s grounds for

excusal, either hardship, cause, or both, but gave no indication of the defense’s

reasons. Defense counsel declined the invitation to add its reasons for excusal,

noting, “We obviously agree on one grounds [sic] for excusals [sic] for each of

the jurors. I don’t think that it is necessary that we identify which grounds or both

grounds are attributed to the defense or State.” The State also offered to include

email communication between the parties indicating the grounds for excusal.

Defense counsel did not believe this was necessary as long as the trial court filed

the agreed list.

       After this discussion on the record, the trial court accepted and filed the

agreed list to memorialize the agreement and excuse the jurors. The parties

then reviewed additional lists of jurors put forward by one party for excusal

without agreement by the other party. The trial court and parties examined the

lists in open court and determined whether to excuse or retain the jurors at issue.

The non-excused potential jurors reconvened on January11, 2016 for voir dire.

       Anderson claims the email communications between the prosecution and

defense to arrive at the agreed list violated both her right to a public trial and right

to be present at critical stages of trial. We disagree.




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No. 75074-7-I/li


           1. Public Trial Right

       Under article I, section 22 of the Washington State Constitution and the

Sixth Amendment to the United States Constitution, a criminal defendant has a

right to a “public trial by an impartial jury.” State v. Sublett, 176 Wn.2d 58, 70-71,

292 P.3d 715 (2012). The right to a public trial ensures fairness and reminds the

prosecutor and judge of their responsibility and function, encourages witnesses

to come forward, and discourages perjury. Sublett, 176 Wn.2d at 72.

        ‘[NJot 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. Before determining whether a violation of a public trial

right occurred, the court must first consider whether the proceeding at issue

implicates the right. Sublett, 176 Wn.2d at 71. The defendant has the burden of

proving that the public trial right attaches to the proceeding at issue. State v.

Love, 183 Wn.2d, 598, 605, 354 P.3d 841 (2015).

       Recent public trial cases establish a framework for determining whether

the proceeding implicates the public trial right. See State v. Wilson, 174 Wn.

App. 328, 335, 298 P.3d 148 (2013). First, the court may examine whether the

proceeding ‘fall[sj within a specific category of trial proceedings that our

Supreme Court has already established implicates the public trial right.” Wilson,

174 Wn. App. at 335. If not, then the court applies the experience and logic test.

Wilson, 174 Wn. App. at 335. Under this test:

       [T]he experience prong      .asks “whether the place and process
                                       .   .


       have historically been open to the press and general public.” The
       logic prong asks “whether public access plays a significant positive


                                               Ii
No. 75074-7-1112

       role in the functioning of the particular process in question.” If the
       answer to both is yes, the public trial right attaches.
Sublett, 176 Wn.2d at 73 (internal citations omitted). The test allows the

determining court to consider the actual proceeding, not merely the label given to

the proceeding. Sublett, 176 Wn.2d at 73.

       A claim of a violation of the right to public trial presents a legal issue

subject to de novo review. State v. Jones, 185 Wn.2d 412, 421, 372 P.3d 755

(2016). Deprivation of the right to public trial constitutes structural error and is

not subject to harmless error analysis. State v. Wise, 176 Wn.2d 1, 13-14, 288

P.3d 1113 (2012).

       Anderson correctly notes that the right to public trial encompasses jury

selection. See Love, 183 Wn.2d at 605-06. Anderson contends the dismissal of

some of the 217 potential jurors for cause implicated this right.

       However, Anderson erroneously relies on the label of “jury selection” and

fails to examine the actual “proceeding” at issue. In so doing, she overlooks a

critical distinction—trial court involvement. The defense and prosecution reached

the agreed list of 217 excused jurors without any participation by the trial court in

the case at hand. In contrast, the public trial cases pertaining to jury selection

involved trial court participation. See, e.g., Love, 183 Wn.2d at 605-07 (for cause

challenges at the bench and silent peremptory challenges were not courtroom

closures; “written peremptory challenges are consistent with the public trial right

so long as they are filed in the public record”); Wise, 176 Wn.2d at 3 (public trial

right was violated by in-chambers questioning of potential jurors); State v. Strode,

167 Wn.2d 222, 227, 217 P.3d 310 (2009) (questioning of prospective jurors in


                                          12
No. 75074-7-1/13


chambers was a denial of right to public trial); State v. Slert (Slert I), 181 Wn.2d

598, 605-06, 334 P.3d 1088 (2014) (public trial right not implicated by in-

chambers discussion of juror questionnaires where no evidence voir dire had

been initiated); State v. Russell, 183 Wn.2d 720, 733, 357 P.3d 38 (2015) (work

session conducted by trial court with defendant and attorneys to review

questionnaires for hardship did not implicate the right to public trial); Jones, 185

Wn.2d at 426 (right to public trial not implicated by judicial assistant’s random

drawing of alternate jurors during recess); Wilson, 174 Wn. App. at 329-30 (right

to public trial had not attached when bailiff excused two jurors on administrative

grounds prior to voir dire); State v. Schierman,   —   Wn.2d      ,   415 P.3d 106

(2018) (public trial right did not attach to preliminary hardship juror excusal

determination made during meeting between counsel and jury services

manager).

       As defined, the public trial right attaches to certain “interaction between

the court, counsel, and defendants.” Sublett, 176 Wn.2d at 71. Here, the

interaction solely between the State and defense counsel fundamentally lacked

the critical “court” component. Without court involvement, the email exchange

between the attorneys does not amount to a court proceeding for the purposes of

the right to a public trial. The only related court proceeding, the hearing to submit

the list to the trial court, was public.

       Furthermore, Anderson cannot satisfy the experience and logic test.

Under the experience prong, Anderson must show “the place and process have

historically been open to the press and general public.” Sublett, 176 Wn.2d at


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No. 75074-7-1/14


73. However, Anderson has not demonstrated that negotiations between

attorneys have traditionally been open to the public. Nor has Anderson shown

that such negotiations should be open to the press and general public. Anderson

fails to demonstrate the right to public trial attached to the email exchange

between prosecution and defense counsel. Therefore, we conclude counsel’s

review of the juror questionnaires and determination of agreed jurors for excusal

did not violate Anderson’s right to public trial.

           2. Rightto Be Present

       Anderson contends the agreed list violated her right to be present for jury

selection and requires reversal. The State claims the right to be present did not

apply to the agreed list. We agree with the State.

       A criminal defendant has a constitutional right to be present at all critical

stages of a trial based on article I, section 22 of the Washington State

Constitution and the Due Process Clause and the Sixth Amendment to the

United States Constitution. State v. Irby, 170 Wn.2d 874, 880-81, 246 P.3d 796

(2011). “The crux of a defendant’s constitutional right to be present at all critical

stages of the proceedings is the right to be present when evidence is being

presented or whenever the defendant’s presence has ‘a relation, reasonably

substantial,’ to the opportunity to defend against the charge.” State v. Bremer,

98 Wn. App. 832, 834, 991 P.2d 118 (2000) (internal citations omitted). This

right “is not absolute; rather ‘the presence of a defendant is a condition of due

process to the extent that a fair and just hearing would be thwarted by his

absence.” jj~y, 170 Wn.2d at 881 (quoting Snvderv. Massachusetts, 291 U.S.


                                          14
No. 75074-7-1/15


97, 107-08, 54 S. Ct. 330, 78 LEd. 674 (1934)). For example, a defendant does

not have the right to be present during in-chambers or bench conferences on

legal matters that do not require the resolution of disputed facts. In re Pers.

Restraint of Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994).

       Under art. 1, sec. 22, jury selection is ‘unquestionably a ‘stage of the trial’

at which a defendant’s ‘substantial rights may be affected,” and absence from

such proceedings violates a defendant’s right to be present. j~y, 170 Wn.2d at

885 (quoting State v. Shutzler, 82 Wash. 365, 367, 144 P. 284 (1914)).

Additionally, jury selection outside of the defendant’s presence violates the right

to be present under the due process clause of the Fourteenth Amendment.

j~y~1 70 Wn.2d at 884. This is particularly true where jurors are evaluated and

dismissed for cause. j~y, 170 Wn.2d at 882-84. Discussion and ruling on for-

cause challenges requires resolution of a factual component for which the

defendant has a right to be present. Schierman, 415 P.3d at 121. However,

“there is no constitutional right to presence at the noncourt, nonadversarial office

visits to view juror declarations” for preliminary hardship determinations.

Schierman, 415 P.3d at 120.

       Whether a defendant’s right to be present has been violated is a question

of law reviewed de novo. j~y, 170 Wn.2d at 880. The right to be present is

subject to harmless error analysis. jj~y, 170 Wn.2d at 885-86. The State has

the burden of proving harmlessness beyond a reasonable doubt. j~y, 170

Wn.2d at 886. To prove harmlessness, the State may show that the excused




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No. 75074-7-1/16


jurors had no chance to sit on the jury.4              jj~y, 170 Wn.2d at 886.

Additionally, a lack of timely objection serves as strong evidence against

prejudicial error. State v. Slert (Slert II), 186 Wn.2d 869, 879, 383 P.3d 466

(2016).

          Here, the defense and the State agreed over email to excuse jurors after

empaneling of the jury had begun. ~ j~y, 170 Wn.2d at 885. The agreed list

included jurors dismissed for both hardship and cause. Where evaluation of

individual jurors for fitness to serve on the specific case occurs, the decision-

making is clearly part of the jury selection process. jj~y, 170 Wn.2d at 882. This

was the case in j~y, where an email exchange between the trial court and

parties was a portion of the jury selection process, “because this novel

proceeding did not simply address the general qualifications of 10 potential

jurors, but instead tested their fitness to serve as jurors in this particular case.”

170 Wn.2d at 882. Where this individual evaluation for fitness occurs, the

defendant has a right to be present. .~y, 170 Wn.2d at 882.

        However, as discussed above, this case differs from the facts of existing

case law because of the trial court’s absence. The discussion occurred solely

between defense and prosecution. Therefore, evaluation of the jurors did not

happen as part of a court proceeding hearing, where fairness and justice would

be thwarted by Anderson’s absence. Rather, this part of jury selection occurred




           ~ The Supreme Court has noted that this method, as defined in jj~y, 170 Wn.2d at 886,
does not establish the exclusive method to test whether the error was harmless. State v. Slert
(Slert II), 186 Wn.2d 869, 879 n. 4, 383 P.3d 466 (2016)


                                                16
No. 75074-7-1/17


as a communication between prosecution and defense. ~ The parties agreed to

the dismissals, such that the actual court proceeding was non-adversarial and

the court had no need to resolve any factual issues. As defense counsel noted,

“We obviously agree on one grounds [sic] for excusals [sic] for each of the

jurors.

          Furthermore, the agreed list itself did not dismiss the jurors. The parties

appeared in open court and entered the agreed list on the record. That

proceeding resulted in excusal of the 217 jurors. Anderson was present for that

hearing, and was, therefore, present when the trial court excused the jurors.

Thus, Anderson’s right to be present was not violated.

          Finally, if the agreed list amounted to a violation of the right to be present,

any error was harmless beyond a reasonable doubt. The agreed list included

only 12 potential jurors as excused solely for cause within the number range of

jurors ultimately empaneled.6 Examination of the juror questionnaires for these

12 members of the venire reveals clearly the causes underlying their dismissal.7

           ~ Under the Rules of Professional Conduct, counsel has a duty of communication with the
 defendant. RPC 1.4. An attorney must “inform the client of any circumstance requiring the
 client’s consent, reasonably consult with the client regarding the means by which the client’s
 objectives will be accomplished, keep the client reasonably informed about the status of the
 matter, and promptly comply with any requests for information.” In re Disciplinary Proceedings
Against Van Camp, 171 Wn.2d 781, 803, 257 P.3d 599 (2011). Thus, counsel would have had a
 duty to apprise Anderson of the status of preparations for trial. Anderson has not raised an issue
 of counsel’s failure to communicate or ineffective assistance of counsel based on a lack of
 communication concerning jury selection.
           6 The last juror seated was Juror 140. Within that range, the prosecution designated

jurors 27, 31, 35, 39, 45, 46, 57, 100, 102, 125, 136, and 138 as excusals solely for cause.
Anderson’s counsel explicitly declined the opportunity to include the defense’s reasons for each
juror on the agreed list.
           ~ Anderson argues that harmless error analysis requires a showing that all dismissed
jurors in the range, regardless of the prosecution’s designated reason, must be examined.
 However, the defendant does not have a right to be present during a preliminary hardship
determination. Schierman, 415 P.3d at 120. Therefore, Anderson did not have a right to be
 present for discussion of the jurors dismissed for hardship.


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No. 75074-7-1/18


Eight of the jurors demonstrated significant bias toward guilt, with one remarking,

“I can drive them to Walla Walla.   .   .   for the State.” The four other jurors revealed

limited ability to understand English, with one indicating an inability to

communicate in English and leaving nearly the entire questionnaire blank. Given

the obvious issues raised by these questionnaires, the State has demonstrated

that none of the jurors dismissed only for cause would have served on the jury.

Slert II, 186 Wn.2d at 879. The lack of any objection to the dismissal of these

jurors reinforces the absence of prejudicial error.      .~   Slert II, 186 Wn.2d at 879.

As a result, any denial of Anderson’s right to be present was harmless beyond a

reasonable doubt.

   C. Jury Instruction

       Anderson contends the trial court initially instructed the jurors that they

could consider the filing of charges as evidence of guilt, thereby violating her

right to a fair trial. The State argues Anderson cannot raise this issue for the first

time on appeal, the jury instructions as a whole properly instructed the jurors, and

any error was harmless. We conclude the instruction at issue was erroneous but

harmless.

       The trial court addressed the pool of potential jurors and issued several

preliminary instructions. Among these instructions, the trial court stated, ‘The

charges in this case were initiated by the King County prosecuting attorney by

filing a document called an information informing the defendant of the charges.

You are not to consider the filing of the information or its contents alone as proof

of the matters charged therein.” (Emphasis added.) Anderson did not object to


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No. 75074-7-1/19


this instruction. The trial court repeated its instruction to the juror pool prior to the

start of voir dire on January 11, 2016. Again, the defense did not object.

       After jury selection and prior to opening statements, the trial court

instructed, “The evidence you are to consider consists of the testimony of the

witnesses, and the exhibits admitted into evidence.” At the conclusion of the

evidence, the trial court issued its final written and oral jury instructions. The

court instructed the jurors, “Keep in mind that a charge is only an accusation.

The filing of a charge is not evidence that the charge is true. Your decision as

jurors must be made solely upon the evidence presented during these

proceedings.”

       The State argues Anderson cannot appeal this issue because she failed to

object below. A party generally waives the right to appeal without a timely

objection at trial. Kalebaugh, 183 Wn.2d 578, 583, 355 p.3d 253 (2015). Courts,

however, will review manifest errors affecting a constitutional right. Kalebau.qh,

183 Wn.2d at 583; RAP 2.5(a)(3). In such an instance, the appellant must

identify an error of constitutional magnitude and demonstrate actual prejudice.

Statev. Gordon, 172 Wn.2d 671, 676-77, 260 P.3d 884 (2011). Actual prejudice

requires a plausible showing that the error had practical and identifiable

consequences. Kalebaugh, 183 Wn.2d at 584.

      Here, we assume, without deciding, that the trial court’s preliminary

instruction amounts to manifest constitutional error. As such, harmless error

analysis is required. ~ Kalebaucih, 183 Wn.2d at 585. The constitutional

harmless error standard requires the State to prove harmlessness beyond a


                                          19
No. 75074-7-1120


reasonable doubt. State v. Barry, 183 Wn.2d 297, 303, 352 P.3d 161 (2015).

‘This stringent standard can be met if there is overwhelming evidence of the

defendant’s guilt that is not tainted by the error.” Barry, 183 Wn.2d at 303.

       An appellate court evaluates jury instructions in the context of all

instructions given. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995).

Jury instructions must properly inform the jury of the applicable law, not mislead

the jury, and permit each party to argue its theory of the case. Gordon, 172

Wn.2d at 677. An erroneous instruction amounts to harmless error if it did not

lower the State’s burden of proof or affect the outcome of the trial. Kalebaucih,

183 Wn.2d at 585. Jurors are presumed to follow the court’s instructions.

Kalebaugh, 183 Wn.2d at 586.

       Here, the trial court provided multiple appropriate instructions informing

the jury about what constituted evidence and their role in evaluating the

evidence. The final instructions included the proper admonishment that the

information was not proof of the charge and reminded the jurors to evaluate the

evidence. The instructions as a whole correctly defined the State’s burden of

proof and the juror’s role in examining the evidence put forth by the parties.

Thus, the trial judge’s correct instructions throughout the rest of the trial cured

any potential prejudice. See Kalebaugh, 183 Wn.2d at 586.

       The Washington Supreme Court found harmless error beyond a

reasonable doubt in a trial court’s erroneous preliminary instruction in Kalebaugh,

183 Wn.2d at 586. Despite an incorrect preliminary instruction on reasonable

doubt, the Court concluded, “[W]e do not find it plausible to believe that the jury


                                         20
No. 75074-7-1/21


retained these particular oral remarks made before jury selection three days

earlier, ignored the other oral and written instructions, and applied the incorrect

legal standard.” Kalebaugh, 183 Wn.2d at 586. These remarks may apply even

more so in this case, where the trial court made the preliminary remarks before

jury selection and six weeks prior to the close of evidence.

       Furthermore, the State presented the jury with overwhelming evidence of

Anderson’s guilt. During closing arguments, defense counsel told the jury that

Anderson admitted to shooting her father, brother, and sister-in-law. “[T]he

forensics supports her confession that she fired at Wayne and missed. That Joe

killed her mother. That she skilled [sicj Scott. That they together killed Erica.

And that Joe killed the children.” Therefore, premeditation and accomplice

liability became the main questions for the jury.

       Anderson’s confession demonstrated premeditation and accomplice

liability. Anderson admitted she had prior thoughts of killing her family in the two

weeks before the murders. She told detectives, “I was upset with my parents

and my brother and that if the problems don’t get resolved, I, my intent was

definitely to kill them.” She also stated, “Yes; it was premeditated; and yes, I was

fed up with everything.” And, “I went up there knowing I’d probably shoot these

people.” Additionally, she told McEnroe to shoot the children. “I said, we have to

kill everybody.”

       Given the significant evidence of guilt, the elapsed time between the

preliminary instructions and deliberations, as well as the correct instructions




                                         21
No. 75074-7-1/22


provided during the proceedings, we conclude the erroneous jury instruction was

harmless beyond a reasonable doubt.

    D. Ineffective Assistance of Counsel

       Anderson contends she was denied effective representation because

competent counsel would have known the preliminary instruction violated due

process and would have objected. While the trial court committed an

instructional error, that error was harmless beyond a reasonable doubt and

cannot support an ineffective assistance claim.

       Effective assistance of counsel is guaranteed by the Sixth Amendment of

the United States Constitution and Article I, section 22 of the Washington

Constitution. State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To

prevail on a claim of ineffective assistance of trial counsel, a defendant must

prove both deficient performance and prejudice. State v. Jones, 183 Wn.2d 327,

339, 352 P.3d 776 (2015). Establishing deficient performance requires a

showing that counsel’s representation fell below an objective standard of

reasonableness based on consideration of all the circumstances. State v.

Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Prejudice sufficient to

support a claim of ineffective assistance of counsel occurs when counsel’s errors

“were so serious as to deprive the defendant of a fair trial.” Hendrickson, 129

Wn.2d at 78. The defendant must show a “reasonable probability that, but for

counsel’s errors, the result of the trial would have been different.” Hendrickson,

129 Wn.2d at 78.




                                        22
No. 75074-7-1123


         A claim of ineffective assistance of counsel is a mixed question of law and

fact that an appellate court reviews de novo. State v. Jones, 183 Wn.2d at 338-

39.

         As discussed above, the error in the preliminary jury instruction was

harmless beyond a reasonable doubt. As a result, Anderson cannot demonstrate

counsel’s failure to object deprived her of a fair trial as needed to establish the

prejudice and sustain an ineffective assistance claim.

      E. Death Penalty Statement

        The Washington Supreme Court has established “it is error to inform the

jury during voir dire in a noncapital case that the case is not a death penalty

case.” State v. Townsend, 142 Wn.2d 838, 840, 15 P.3d 145 (2001).8 The

Supreme Court does not distinguish based on whether the court, counsel, or a

juror initiated the discussion of the death penalty. State v. Hicks, 163 Wn.2d 477,

487, 181 P.3d 831 (2008). In response to any mention of capital punishment,

“the trial judge should state generally that the jury is not to consider sentencing.”

Hicks, 163 Wn.2d at 487. This strict prohibition ensures impartial juries and

prevents unfair influences on jury deliberations. Townsend, 142 Wn.2d at 846.

Despite the strict prohibition, discussion of the inapplicability of the death penalty

may be harmless error. See State v. Mason, 160 Wn.2d 910, 931, 162 P.3d 396




         8 While acknowledging that this court may not disregard Townsend, the State contends

that Townsend is incorrect, harmful, and should be overruled. The State properly notes that
Washington Supreme Court precedent binds this court and failure to follow directly controlling
authority is error. See 1000 Virginia Ltd. Partnership v. Vertecs Corp., 158 Wn.2d 566, 578, 146
P.3d 423 (2006).


                                               23
No. 75074-7-1/24


(2007); Hicks, 163 Wn.2d at 488; State v. Clark, 187 Wn.2d 641, 655, 389 P.3d

462 (2017).

           Here, the trial court was aware of potential Townsend issues from the time

the State declined to pursue the death penalty. The trial court determined not to

tell potential jurors anything about the death penalty other than the trial court’s

inability to answer questions on the issues and that it would not be a subject of

inquiry.

         The issue of capital punishment arose early in voir dire, when one

prospective juror said she was against capital punishment and did not know if

she could serve on a case involving capital punishment. The prosecutor noted

there had been no mention of the death penalty in the case, but inquired whether

not knowing whether the case involved the death penalty might affect the ability

to serve on the jury. The court recorded the numbers of the potential jurors who

indicated a possible issue. A few jurors continued discussing the issue of the

death penalty. In response, the trial court stated as follows:

         I will tell you right now this is a very complicated matter for me, and I
         will be very candid with you. The current state of the case law in
         Washington, thanks to Supreme Court decisions, is that I can’t
         advise this jury whether or not the death penalty is involved. Period.
         It’s beyond the scope of what I can talk to you about. What I think I
         can tell you is that we still have a death penalty in the State of
         Washington.
         Later in voir dire, juror 118 asked about the process in death penalty

cases:
         I know you can’t speak to if this capital punishment is On this case,
         but in cases where it is is [sic] that decision made by the jury or by
         the judge? I know the jury decides guilt [sic] or not guilty, but does
         the Judge decide the sentence or the jury?


                                           24
No. 75074-7-1/25


The trial court responded that the jury decides the sentence. In a separate

exchange, the State answered a juror question by explaining, “I believe at the

end of this case you will be instructed something along the lines as this, you will

have nothing to do with punishment in the event of a conviction in this case.”

The court issued an instruction to this effect in the final jury instructions.

       The defense then asked the trial court to discharge the prospective jurors

based on the discussion of the death penalty. The defense argued that the trial

court’s answer, the State’s comment, and the anticipated final jury instruction

allowed prospective jurors to conclude that the case did not involve the death

penalty. The trial court denied the motion.

       Citing Townsend, Anderson contends the trial court violated the prohibition

against informing the jury that the case is noncapital. Anderson also cites Hicks,

163 Wn.2d at 482-83, and Mason, 160 Wn.2d at 929-30 for support. But in these

three cases, the trial court explicitly informed the jury the case did not involve the

death penalty. See Townsend, 142 Wn.2d at 842 (“This is not a case in which

the death penalty is involved and will not be a consideration for the jury.”);

Mason, 160 Wn.2d at 910 (‘[T]his is nota capital case. In other words, this case

does not involve a request for the death penalty.”); Hicks, 163 Wn.2d at 483

(‘[t]his is not a death penalty case”). Recently, in State v. Clark, the Court found

error where the State informed the jury that it did not seek the death penalty in

the case. 187 Wn.2d at 647. While Clark differs in that the State improperly

provided the information to the jury, the statement again unambiguously informed

the venire that the death penalty did not apply.


                                          25
No. 75074-7-1/26


        The Townsend errors identified by the Washington Supreme Court have

thus far pertained to explicit statements that the death penalty did not apply.

Those differ significantly from the case at hand. Here, neither the trial court nor

the State commented directly on the applicability of the death penalty in the

particular case. Instead, the trial court provided a legally accurate, general

description of the sentencing process in capital cases. While a particularly

attentive juror could have surmised through inference that the death penalty did

not apply to Anderson’s case, the jury was not specifically informed about the

inapplicability of capital punishment.9 This does not amount to a violation of

Townsend.

        Finally, even if the trial court violated the Townsend prohibition, any error

was harmless. As discussed above, overwhelming evidence in the record

supports the conviction. A guilty verdict was likely even without a Townsend

violation. See Hicks, 163 Wn.2d at 488.

    F. Cumulative Error

        Anderson claims cumulative error requires reversal. “Cumulative error

may warrant reversal, even if each error standing alone would otherwise be


        ~ During individual voir dire, juror 118 suggested the defense’s concerns might have been
valid. “[C]orrect me if I’m wrong, but the Judge already said we are not deciding the sentencing.
 .you explicitly said—someone asked if we would be involved in punishment, and you said no, the
jury’s not going to be involved in the sentencing. That would occur later.” After this exchange,
the State explored the issue further. “[A]s you sit here now do you know whether this is or is not
a death penalty case?” Juror 118 responded, “I don’t know. I don’t know for a fact, no. I made
some assumptions based on statements that I heard from both parties. It did not seem to me it
was.”
         In subsequent individual voir dire with the seven potential jurors who expressed concern
that not knowing whether the case involved the death penalty would impact their ability to be fair
and impartial, the State explored whether anyone had concluded that the case was non-capital.
All responded they did not know whether the case involved the death penalty.


                                               26
No. 75074-7-1127


considered harmless.” State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646

(2006). Without error, the cumulative error doctrine does not apply. Clark, 187

Wn.2d at 655. Cumulative error also does not apply where the errors are few and

have little or no effect on the outcome of the trial. Weber, 159 Wn.2d at 279.

       Because Anderson has only established the single instructional error,

which was harmless beyond a reasonable doubt, the cumulative error doctrine is

inapplicable.

       Affirmed.




WE CONCUR:




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