State of Washington v. Merle William Harvey ( 2014 )

FILED
JUNE 10,2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III
STATE OF WASHINGTON, ) No. 29513-3-111
)
Respondent, ) ORDER GRANTING MOTION
) FOR RECONSIDERATION
v. ) AND AMENDING OPINION
) DATED May 6, 2014
MERLE WILLIAM HARVEY, )
)
Appellant. )
THE COURT has considered appellant's motion for reconsideration of this court's
decision of May 6, 2014, and having reviewed the records and files herein, is of the
opinion the motion should be granted in part. Therefore,
IT IS ORDERED, appellant's motion for reconsideration is hereby partially
granted.
IT IS FURTHER ORDERED that the opinion shall be amended by replacing
footnote one on page 2 with the following:
We do not separately address the SAG filings. In his supplemental SAG,
Mr. Harvey raises public trial issues separate from those raised by counsel.
However, the record does not show that any of the closures claimed by Mr.
Harvey occurred. The remaining pro se arguments address trial matters
rather than the jury selection issues that are the subject of this second
appeal. Some of those arguments were made previously and all of them
could have been raised earlier. In particular, we note that Mr. Harvey had
copies ofthe jury instructions prior to filing his original SAG. We do not
review the trial issues in this opinion.
DATED: June 10,2014
PANEL: Jj. Korsmo, Fearing, Lawrence-Berrey
FOR THE COURT:
FILED
MAY 6,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 29513-3-111
Respondent, )
)
v. )
)
:MERLE WILLIAM HARVEY, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. - In this second review of Merle Harvey's convictions for first and
second degree murder, along with two counts of unlawful possession of a firearm, we
consider his claims that his public trial and due process rights were violated during jury
selection. His arguments are resolved by our decision in State v. Love, 176 Wash. App.
911, 309 P.3d 1209 (2013). Accordingly, we once again affinn the convictions.
PROCEDURAL HISTORY
This court previously affinned the convictions in an unpublished case State v.
Harvey, noted at 167 Wn. App. 1026,2012 WL 1071234. Mr. Harvey, pro se, then
successfully petitioned the Washington Supreme Court to pennit supplementation of the
No. 29513-3-II1
State v. Harvey
record with a transcription of the jury selection proceedings. The matter was remanded
to this court.
We appointed new counsel for Mr. Harvey and, after receipt of the transcript, the
parties filed additional briefs addressing jury selection. Mr. Harvey filed additional
statements of additional grounds (SAG).l
The jury selection transcript showed that 80 jurors appeared for jury selection on
September 13. The court gave the preliminary instruction on only one occasion, a fact
that suggests all jurors were in the courtroom at the same time. The record also reflects
that the jurors were given a questionnaire to fill out. Some of the prospective jurors were
questioned individually in the courtroom outside the presence of the other jurors. One of
the jurors mentioned that it was possible to hear what was happening in the courtroom
from out in the hallway.
General voir dire of the entire panel commenced the following morning with all
jurors in the courtroom. Seven jurors were struck during this period. After a brief
sidebar conference, juror 19 was struck due to the juror's prescheduled business trip.
f 1 We do not separately address the SAG filings. Mr. Harvey raises the same two
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arguments concerning jury selection that his counsel raised. As counsel has adequately
briefed those arguments, we do not address Mr. Harvey's version of them. RAP
1O.1O(a). The remaining pro se arguments address trial matters rather than the jury
I selection issues that are the subject of this second appeal. Some of those arguments were
made previously and all of them could have been raised earlier. We do not review them
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in this action.
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No. 29513·3·III
State v. Harvey
Juror 38 was also stricken for cause during this court session, although that did not
happen at sidebar.
General voir dire continued that afternoon. A brief sidebar was held during the
afternoon session when defense counsel objected to the prosecutor asking a juror about
an instruction that had not been given. Another objection was heard at sidebar when the
prosecutor took exception to defense counsel getting too case specific in his questions to
the prospective jurors. Another sidebar was held after some jurors expressed that they
could not sit in judgment of the defendant. Jurors 43, 60, and 77 were struck during this
conference. The court adjourned for the day after these excusals.
Jury selection continued the next day, September 15. The first thing mentioned
this day was that juror 78 had been dismissed by stipulation during the intervening hours:
THE COURT: Good morning. Please be seated. Where had we
ended in terms of the voir dire?
MR. MASON [defense counsel]: Mr. Nagy was allowed to ask some
questions, and then I think we were done.
THE COURT: Are we done?
MR. NAGY [deputy prosecutor]: Yes, Your Honor.
THE COURT: And then we had done the for causes.
MR. AMES [defense counsel]: Yes, Your Honor.
THE COURT: Since that time, we have also released No. 78 by
stipulation. Is that correct, gentlemen?
MR. MASON: Yes.
MR. NAGY: Yes.
Report of Proceedings at 297.
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No. 29513-3-III
State v. Harvey
The venire was brought in to the courtroom and a sidebar was held to clear up
confusion over the exercise of peremptory challenges. The peremptory process then was
conducted by counsel marking their challenges on a juror sheet. The jury selection
process was then completed.
ANALYSIS
This appeal contends that Mr. Harvey's article I, section 22 right to a public trial
was violated by conducting portions ofjury selection, including the exclusion ofjurors at
sidebar, in private. The defense also argues that these same actions violated the
defendant's right to be present. We address each contention in turn.
Public Trial
Article I, section 22 guarantees those accused of crimes the right" 'to a speedy
public trial by an impartial jury.'" Love, 176 Wash. App. at 916. The right to a public trial
is violated whenever proceedings that are required to be "open" to the public are
"closed." ld. Whether or not a particular aspect of trial proceedings is required to be
open to the public is determined by application of the "experience and logic test." ld.
(citing State v. Sublett, 176 Wn.2d 58,292 P.3d 715 (2012)). Jury selection typically is
open to the public. State v. Strode, 167 Wn.2d 222,227,217 P.3d 310 (2009).
Mr. Harvey specifically challenges the excusal ofjurors for cause at sidebar, the
excusal ofjuror 78 when the court apparently was not in session, the sidebar conferences
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No. 29513-3-III
State v. Harvey
during the peremptory challenge process, and the written exercise of peremptory
challenges. These challenges largely have been resolved by Love.
In Love, we declined to decide whether or not a sidebar conference constituted a
closure of the courtroom. 176 Wash. App. at 917. Instead, applying the experience and
logic test to the subject of the sidebar conference at issue there, we concluded that the
action of excusing jurors for cause was not required to be conducted in public. Id. at 919­
20. Similarly, we concluded that exercising peremptory challenges in writing did not
violate article I, section 22. Id.
We adhere to those conclusions in this case. The fact that four jurors were
excused for cause at sidebar did not violate our constitution. Likewise, there was no
public trial violation by the use of a written peremptory challenge process. Mr. Harvey's
remaining arguments were not at issue in Love, and we now tum to them.
With respect to the claim that it was improper to hold a sidebar conference during
the peremptory challenge process, Love is still suggestive. There we noted that it was the
subject of the sidebar conference that determined whether the matter needed to be
considered in public. 176 Wash. App. at 917-18. The additional sidebar conferences now
under challenge here involved procedural matters for the attorneys-whether questions of
the venire were appropriate and how the peremptory process applied to alternate jurors.
These matters, too, involve questions for the trial judge and did not need public oversight.
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No. 29513-3-III
State v. Harvey
Under the experience and logic test, the subject matter of these sidebars did not implicate
Mr. Harvey's public trial right.
The sole remaining issue was the decision to excuse juror 78 by stipulation of the
parties off the record. On this record, we do not know anything about when or where or
how this occurred-whether at the end of proceedings the night before, just prior to going
on the record that morning, whether it took place in the courtroom or in chambers, or on
the street outside the courthouse. In short, the record is woefully inadequate to decide
this issue. However, for the same reasons that the challenges for cause in Love did not
implicate the public trial right, we also are convinced that the right to a public trial was
not implicated here. The experience and logic test indicates that challenges for cause are
legal issues that do not depend upon the right to have the public present in the courtroom.
Love, 176 Wash. App. at 919-20. Accordingly, despite the fact that there is no indication
where this action took place, we do conclude that Mr. Harvey's article I, section 22 rights
were not violated by the agreed excusal ofjuror 78.
Mr. Harvey has not established that any of the challenged actions violated his right
to a public trial.
Right to be Present
Mr. Harvey also argues that the sidebar conferences and the off-the-record excusal
ofjuror 78 violated his right to be present at all proceedings. The status of this record
does not permit us to consider these claims for the first time in this appeal.
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No. 29513-3-II1
State v. Harvey
We faced a similar argument in Love and summarized the governing law in this
manner:
A criminal defendant has a due process right to be present at all
critical stages of his criminal trial. State v. Irby, 170 Wash. 2d 874, 246 P.3d
796 (2011). This includes the voir dire and empanelling stages of the trial.
Id. at 883-84.
However, Mr. Love did not contest the use of the sidebar procedure
to hear his challenges for cause. The general rule in Washington is that
appellate courts will not hear challenges that were not presented to the trial
court. RAP 2.5(a). An exception is made for issues of "manifest error
affecting a constitutional·right." RAP 2.5(a)(3). Such issues may be raised
if the record is sufficient to adjudicate them. State v. McFarland, 127
Wn.2d 322,333,899 P.2d 1251 (1995). The alleged error must both be of
constitutional nature and be "manifest" in the sense that it actually
prejudiced the defendant. Id.
Love, 176 Wn. App. at 920-21.
We then concluded that because Mr. Love did not establish how the sidebar
conferences had prejudiced him, the alleged error was not manifest. Id. at 921. We also
questioned, although we did not decide, whether Mr. Love was "absent" from the
proceedings while sitting in the courtroom while the sidebar conferences occurred a few
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feet away from him. Id. n.9.
We reach the same conclusion here. As to the sidebar conferences that occurred
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on the record while he was in the courtroom and the written peremptory challenges, Mr. I
Harvey has not shown that he was in some manner prejudiced. Accordingly, the
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allegation that he was not present is not manifest constitutional error.
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No. 29513-3-III
State v. Harvey
We reach the same conclusion, although for additional reasons, with respect to the
joint exclusion of juror 78. As noted previously, this record does not provide any
information about how that occurred. For all this record shows, the action may well have
taken place in the presence of Mr. Harvey or, perhaps, with his express blessing. There is
absolutely nothing in the record to establish that this action occurred outside his presence.
For this additional reason, too, we conclude this claim is not manifest constitutional error.
If it is to be considered, it will have to be in the form of a personal restraint petition with
appropriate documentation. E.g., State v. Norman, 61 Wn. App. 16,27-28,808 P.2d
1159 (1991).
Mr. Harvey's right-to-be present arguments do not present manifest questions of
constitutional law. RAP 2.5(a). Accordingly, we decline to address them.
The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
J--./2M.tA~ J. A
Fearing, K
G S .
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