Opinion
No. 59741-8-I.
October 20, 2008.
Appeal from a judgment of the Superior Court for Skagit County, No. 05-1-00276-9, John M. Meyer, J., entered March 6, 2007.
Reversed and remanded by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Cox, J.
Terrance Irby appeals his convictions of aggravated first degree murder, felony murder in the first degree, and burglary in the first degree. He contends that he was denied his right to be present at all critical stages of trial and that he and the public were denied their respective rights to a public trial because of the manner in which the trial court conducted a part of voir dire. Irby also challenges the use of two prior convictions under the Persistent Offender Accountability Act (POAA). The State cross appeals, claiming that the trial court erred by failing to sentence Irby to life in prison for aggravated murder under RCW 10.95.030(1). We agree that Irby was denied his right to be present at a critical stage of trial, reverse his convictions on this basis, and remand for a new trial. Therefore, we do not reach any of the remaining issues raised by the parties.
RCW 9.94A.030; former RCW 9.94A.505 (2002); RCW 9.94A.555, .561, .565.
Background
On April 15, 2005, Terrance Irby was charged with aggravated murder, first degree felony murder, and first degree burglary. During pretrial proceedings on December 27, 2006, counsel for both parties agreed that there was no need for them or the defendant to be present on the first day of jury selection; at that time, the court would simply provide prospective jurors with a written questionnaire and give them the necessary oath. The parties would then question the jurors the following morning. On January 2, 2007, all prospective jurors were sworn regarding qualifications and voir dire, after which the court gave jurors the questionnaire. An attorney for each party was present, but the defendant was not. That afternoon, the court sent an e-mail message to counsel, suggesting the removal of certain potential jurors from the panel:
I note that 3, 23, 42 and 59 were excused after one week by the Court Administrator.
17 home schools, and 3 weeks is a long time.
77 has a business hardship.
36,48, 49, and 53 had a parent murdered.
Any thoughts? If we're going to let any go, I'd like to do it today.
Defense counsel responded, in an e-mail, that he had no objection to releasing some or all of these jurors. A later e-mail from the court indicated that the State objected to releasing jurors 36, 48, and 49. The record does not reflect how the court received this information. The clerk's minutes for January 2, 2007, note, "In chambers not on the record. Counsel stipulate to excusing the following jurors for cause: # 7, 17, 23, 42, 53, 59 77." The trial court never conducted any proceedings on the record in excusing these seven jurors.
The judge's initial e-mail proposed releasing juror 3, but he indicated in a later e-mail that he had intended to propose dismissal of juror 7.
The court began general questioning of the remaining jury pool the following day, in the presence of counsel and Mr. Irby. After a 12-day trial, the jury found Irby guilty of first degree murder, first degree felony murder, and first degree burglary.
Over Irby's objections, the court found that he was a persistent offender because he had two predicate three-strike offenses, a 1976 conviction for statutory rape and a 1984 conviction for second degree assault, before being convicted of two most serious offenses in this case. The court sentenced Irby to life in prison without the possibility of parole.
Discussion
Irby argues that the court's dismissal of seven jurors from the panel via email violated his right to be present during all critical stages of trial. A criminal defendant has a constitutional right under the confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment to be present during all critical stages of trial, including jury voir dire. We review constitutional questions de novo.
State v. Wilson, 141 Wn. App. 597, 603-04, 171 P.3d 501 (2007).
State v. Castro, 141 Wn. App. 485, 490, 170 P.3d 78 (2007).
A defendant's presence at voir dire is "required because it is substantially related to the defense and allows the defendant `to give advice or suggestion or even to supersede his lawyers.'" Rule of Criminal Procedure 3.4 requires the defendant to be present "at the arraignment, at every stage of the trial including the empaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by these rules, or as excused or excluded by the court for good cause shown." "[F]or purposes of CrR 3.4 the beginning of trial occurs, at the latest, when the jury panel is sworn for voir dire and before any questioning begins."
Wilson, 141 Wn. App. at 604 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S. Ct. 330, 78 L. Ed. 674 (1934), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)).
CrR 3.4(a) (emphasis added).
State v. Thomson, 70 Wn. App. 200, 211, 852 P.2d 1104 (1993) (emphasis added), aff'd, 123 Wn.2d 877, 872 P.2d 1097 (1994).
Here, trial began on January 2, 2007, when the defendant was not present. At a December 27, 2006 pretrial hearing, in Irby's presence, the court suggested to counsel that neither they nor Irby needed to be present when the jury panel was sworn and given the questionnaire. Although Irby did not object to this procedure, the record contains no discussion that any potential jurors would be excused from the venire, but only that they would be sworn and given a questionnaire. Thus, while we do not decide whether Irby validly waived his right to be present when trial began, the record is clear that Irby was not asked to waive and did not waive his right to be present at the critical stage when the court removed potential jurors from the venire. Yet, the trial court dismissed seven jurors outside of Irby's presence, in violation of his right to be present at all critical stages of trial. The record also does not reflect that Irby was ever advised at any point during his trial that these seven jurors had been dismissed.
The court e-mailed counsel, sua sponte, to suggest the excusal of several jurors. Four jurors were apparently dismissed because they "were excused after one week by the Court Administrator." With no further explanation on the record, it is difficult to discern the exact reason for the dismissal of these four jurors. The record contains no explanation of why the jurors were in the pool for this three-week trial if they were not in fact eligible to be chosen for the jury. It also does not show that the jurors were unwilling to serve if selected for a jury. In addition, two jurors were dismissed due to apparent hardship, and one juror who had "had a parent murdered" was excused, ostensibly for cause. While all of these excusals may have been appropriate had they occurred in open court in Irby's presence, these excusals violated Irby's right to be present and contribute to jury selection.
Our Supreme Court has held that violation of a defendant's right to be present at a critical stage of a criminal proceeding is subject to harmless error analysis. Irby contends that this error creates a presumption of prejudice, which the State can overcome by proving that the error was harmless beyond a reasonable doubt. The State fails to address harmless error, relying solely on its argument that Irby's presence was not required. Therefore, we do not consider this issue.
In re Pers. Restraint of Benn, 134 Wn.2d 868, 920-21, 952 P.2d 116 (1998).
State v. Rice, 110 Wn.2d 577, 613-14, 757 P.2d 889 (1988); see also Campbell v. Rice, 408 F.3d 1166, 1171-72 (9th Cir. 2005).
RAP 12.1(a); see also State v. Olson, 126 Wn.2d 315, 319-21, 893 P.2d 629 (1995).
Conclusion
Irby's right to be present at a critical stage of trial was violated when the court dismissed seven potential jurors from the panel via e-mail correspondence with counsel. The State has offered no argument that this error was harmless. Because our resolution of this issue is dispositive, we do not reach any other issue raised by the parties, including those raised by Mr. Irby in his statement of additional authorities.
Reversed and remanded for a new trial.