### IN THE COURT OF APPEALS OF TH

STATE OF WASHINGTON, Respondent, V. EZEKIEL JAMES WATKINS, Appellant. ) 

### APPELWICK,J.— Watkins was convicted that police elicited a confession in violation obtained in violation ofthe privacy act,2 that a s that the trial.court improperly dismissed a juror. FACTS High school student,Kathy Chou disap boyfriend, Ezekiel Watkins., He spoke with po also took a polygraph test. He was not arreste Over one year later,Watkins'friend Gio had seen Watkins covered in blood and dirt Candelario also told police that he told Watkins in Chou's disappearance, :and Watkins did Carpenter, told police that he had given Wat 

### STATE OF WASHINGTON

No.73352-4-1 DIVISION ONE UNPUBLISHED OPINION

FILED: December 11, 2017
offirst degree murder. He argues of Miranda,1 that evidence was arch warrant was overbroad,and We affirm.

eared. Police contacted her exice at the police station. Watkins at that time. anni Candelario told police that he
on the night Chou disappeared. that he suspected he was involved ot deny it. Another friend, Jon !tins a shovel the night that Chou 1 Miranda v.Arizona, 384 U.S.436,86S 2 Ch. 9.73 RCW. Ct. 1602,16 L.Ed.2d 694(1966). 11:No.73352-4-1/2

disappeared. In light of these revelations, Detective Greg Barfield called and asked Watkins to come to the station for an int rview. They agreed to meetatthe station six days later, on July 6,2011,at 11:00 Watkinsdrove himselfto the station. Th4interview room was located within
a secure area ofthe building. The area could b opened from the inside without a key. Watkins sat closest to the door. The police did not take his phone or keys. He was not handcuffed. When he began the interview at 11:24 a m.,one of Detective Barfield's first statements to Watkins was asfollows: So before we get started I want to mak we're just talking to everybody in the c wasn't involved in it back when she, w want you to know that you are free to go statement. Matter offact if you do deci leave this door right here, you go outth that's the door you came in at. At 11:55 a.m., Detective Barfield notes that, co phone records show that they texted and call Barfield tells Watkinsthat"We need to know ev straight with me." At 12:04 p.m., Watkins eventually conc des that he saw Chou that night, they took a walk in the park,and finished betw en 9and 10. At 12:16 p.m.,police placed a shovel wrapped in evidence tape in the interview room in the view of Watkins. At 12:17 p.m., Detective Barfield tells Watkins, "I've given you many opportunities to tell me before I had to confr nt you if there's something that's different." sure you understand that se. It's new to me cause 1 en Kathy went missing. 1 at any time. It's a voluntary e to do that, if you want to t door and hang a right and trary to Watkins'prior statements, d one another 46 times that day. rything,"and "I'm asking you to beNo.73352-4-1/3
Shortly thereafter, Watkins tells Detecti throat. Watkins admits that his friend Carpent bury her body. Detective Barfield pressed furt But Ezekiel, I have a hard time believin hold of your knife and then stabs herse and your reaction is to not go to cal ambulance but to call your friend, have go and bury the body. It doesn't sit right want you to be truthful with me about it pretty easy honestly to tell you when yo you're not being truthful. That's how 1 k ask because you kind of,for most peopl them to hide a lie on theirface and with t you know subconsciously. You don't re me it's like, it's like a red flag going up asking you to be straight. I'm going to gi me how. At 12:37 p.m., Watkins admits to stabbing Ch during a physical struggle between the two. Immediatelythereafter,Detective Barfiel readsWatkins his Miranda rights. Watkins waived those rights, the interview con inued, and Watkins took police to the burial site later that day. Watkins was cha ged with first degree murder. His statements that day were admitted into eviden e after a CrR 3.5 hearing. A jury found him guilty. He appeals. e Barfield that Chou cut her own
r brought a shovel and helped him er, that she somehow gets a f multiple times in the neck the police or call for an im meet you and you guys with me. Right? And I just Cause yeah I can tell, it's 're being truthful and when ow to ask what questions I honestly it is very hard for eirbody. You justdothings lize you're doing it. Butfor when I see it. So I'm just e you an opportunity to tell

u, although he claims it occurred

DISCUSSIO Watkins makes fourarguments. First, incriminating statements in violation of Mira da, and the trial court erred in admitting those statements. Second, he ar ues that the trial court erred in admitting evidence that was obtained in violat on of the Washington privacy act. e argues that the State obtainedNo.73352-4-1/4

Third, he argues that the trial court admitted ev dence that was obtained pursuant to an overbroad search warrant. Finally, he rgues that the trial court erred in dismissing a juror due to a family emergency.3 I. Miranda Watkins first argues that the police vi under Miranda. When Watkinsconfessed to st Miranda warnings. Watkins argues that th amounted to a custodial interrogation and Mir notes that the interview occurred in a small ro that the officer told Watkins that he needed to police strategically brought into the intervie shovel—that suggested that police knew Watki A. Custodial Interrogation When a state agent Subjects a suspect Amendmentto the United States Constitution r be given. 384 U.S. at 467-68. If police condu Miranda warnings,statements made by the su be suppressed. Id.at479. Whethera person is considering all the circumstances,would a rea freedom was curtailed to a degree associat lated his Fifth Amendment rights bbing Chou,he had notbeen given circumstances of the interview nda warnings were required. He
m at the police station. He notes
e truthful. Further, he claims that
room a piece of evidence—a
s was not being truthful.

o custodial interrogation, the Fifth quires that Miranda warnings must t a custodial interrogation without pect during the interrogation must in "custody"is an objective inquiry: onable person feel that his or her d with formal arrest? State v.

3 On cross appeal, the State assigns error to the trial court's decision to exclude evidence regarding an alleged "trophy" that Watkins collected from the victim on grounds that it was overly prejudicial. But,because we affirm,we do not address this argument. 4No. 73352-4-1/5

Heritage, 152 Wn.2d 210 218, 95 P.3d 345 ('004). The defendant must show
some objective facts indicating his or her freed .m of movement was restricted or curtailed. State v. Lorenz, 152 Wn.2d 22, 36-3 , 93 P.3d 133(2004). We review
a trial court's custodial determination de novo. Id. at 36. Watkins argues that he was subject to a custodial interrogation from the outset ofthe interview.4 He cites to United Stat sv.Jacobs,431 F.3d 99, 105(3d Cir. 2005), where the court reasoned that all s ation house interrogations should be scrutinized with extreme care. Further, h argues that Detective Barfield's conduct over the course of the interview creat d a custodial setting by conveying his belief that Watkins was guilty, pressin for the truth, and placing the incriminating shovel into Watkins'view. The station house interview here is co parable to the facts in Oregon v. Mathiason, 429 U.S.492,97S.Ct.711,50 L. Es.2d 714(1977). A burglary victim told police that Mathiason was the only possib e culprit she could think of. Id. at 493. About 25 days after the burglary,the offi er told Mathiason he would like to discuss something. Id. Mathiason voluntarily ent to the police station. Id. He

4 Watkins first stresses that the trial c standard to whetherWatkins was subjectto cu in support of its decision,the trial court cited W to go to work laterthatafternoon after he had ju Chou. Watkins is correctthatthe properstanda 152Wn.2d at 36-37. But,the trial court's ultim totalit of the circumstances a reasonable would not have felt that his freedom was cu reflects an objective analysis. And, similar t contain passing references to a suspect's own Wn.App.832,834,836,930 P.2d 350(1997)( is a reasonable person standard, but also noti did not believe he wasfree to leave). urt erred in applying a subjective todial interrogation. He notesthat, tkins' beliefthat he would be able tadmitted to stabbing and burying d is an objective one. See Lorenz, te conclusion wasthat "Julnderthe rson in the defendant's sosition ailed." (Emphasis added.) This this situation, many prior cases belief. See,e.g., State v. D.R., 84 xplaining that the proper standard g that the suspecttestified that heNo.73352-4-1/6

was taken into a room with a closed door, and told that he was not under arrest. Id. The officer told Mathiasan that he wanted tu discuss the burglary,and that his truthfulness would possibly be considered by t e district attorney or the judge. Id. The officer falsely claimed that he had discove ed Mathiason's fingerprints at the
scene. Id. Mathiason confessed after aboutfi e minutes. Id. The United States Supreme Court found that there was no Miranda violation. Id.at495. It concluded thatthis "non ustodial situation is not converted to one in which Miranda [sic]applies simply be ause a reviewing court concludes that, even in the absence of any formal arr st or restraint on movement, the questioning took place in a 'coercive environm nt." Id. Like Mathiason, Watkins went voluntarily to the station, was told he could leave, and the police had suspicion thatWatkins was involved. But,Watkins argues that this case is mire similar to Jacobs. In that case, Jacobs was a police informant. Id. at 102. Police subsequently learned that Jacobs was engaging in illegal activity that viol ted police instructions. Id. at 103. Jacobs arrived at the station upon police requ st. Id. at 103. In an open office area, police placed suitcases that they thought would elicit information from Jacobs. Id. With the suitcases in view,the pollee told herthatthey had information that she was assisting in the trafficking. Id. S ortly thereafter, she confessed to illegal activity. Id. at 103-04No.73352-4-1/7

The Jacobs court found that this was a custodial interrogation. Id. at 108. It reasoned, To recap, in Jacobs case, in addition t place atthe FBI offices,and (2)Sullivan the following additional factors were summoned to FBI: offices without questions were confrontational and interrogation tactics,,including placing t Jacobs' view; (6) he communicated to was guilty; (7) Jacobs felt obligated t questioning because she was reasonab she was still an FBI informant; (8)she , as not specifically told she was not under arrest before questionind began; and (9)she did not agree to meet with Sullivan with krowledge of the fact that questioning about a criminal offense woiild take place. Id. Although the suitcase placement in Jaco strategic shovel placement here, Jacobs is c noted that Jacobs would have felt compelled to 111 • (1)the questioning taking believing Jacobs was guilty, present: (3) Jacobs was xplanation; (4) Sullivan's intimidating; (5) he used e incriminating suitcases in acobs that he thought she come to and stay at the y under the impression that

S is somewhat comparable to the itically different. There, the court speak with police given her status
as an informant. Id. Watkins was under no such obligation. He had denied police requests before.5 And, unlike Jacobs, police
was "free to leave at any time." Id. at 107. Watkins also relies on United States v. 2008). There, armed officers wearing flak nequivocally told Watkins that he

rai head,539 F.3d 1073 (9th Cir. jackets, some with unholstered weapons, executed a search warrant on Craighead's residence. Id. at 1078. During the search, an agent told Craighead they wanted to speak with him. Id. 1 And, Craighead was told he was free to leave Id. at 1078. The agent directed him to a storage shed in the back of his hous and interviewed him for 20 to 30

5 For example,he once denied a police lequestfor him to take a polygraph test. A few days later, Watkins changed his niind and took the test after initially refusing. 7No.73352-4-1/8

minutes. Id. at 1078. A detective was guardi from three different law enforcement agencies The courtfound that the interview was a custo The distinctions between Craighead Craighead did notvoluntarily go to a police sta See id. at 1078. Although ,he was informed h less valuable given that he was already on his to the safety of his own home,which was bein And,the courtfound that the presence of multi besides the interviewing agent mightforbid hirr Lorenz, is also instructive. As Lorenz's part of a child molestation investigation, polio her. Lorenz, 152 Wn.2d at 27. The police tol and wasfree to leave at any time,and she sign 37-38. But, she was not allowed to enter her The officers then told her to " 'sit here'. " Id. statement. Id. at 27-28. Lorenz argued that s purposes of Miranda. Id. at 36. The court rea Lorenz was in a coercive environment at the Relying on the explicit instructions that Lorenz that Lorenzwas not in custody.6 Id. at 37-38.

6 Lorenz contradicts another argument interview, Watkins initially confessed to Detec remains after she had stabbed herself. Only g the door. Id. at 1088. Agents
were present for the search. Id. ial interrogation. Id. at 1089. and Mathiason are significant. ion. The police came to his home. could leave, this instruction was
wn property,and could not retreat searched by officers. Id. at 1088. le agencies suggested that others to leave. Id. residence was being searched as pulled her aside and questioned Lorenz she was not under arrest d a statementto that effect. Id. at railer during the search. Id. at 37. t 27. She confessed in a written
e was effectively in custody for the oned that "Mt is irrelevant whether time of the interview." Id. at 37.
was free to leave, the court found

ade byWatkins. During the critical lye Barfield that he buried Chou's ater did Watkins finally confess toNo.73352-4-1/9

Here, the police requested an intervie unlike Craighead, Watkins voluntarily showed u agreed time. The police told him that he was to exitthe station. Like Mathiason, thefactthat . And, similar to Mathiason and atthe police station ata mutually 'free to leave." They told him how he interview occurred in the police station setting did not render the interview cus odial. The presence of the shovel wrapped with evidence tape was less deceptiv than the false statement that the police had found Mathiason's finser rints at th scene. This tactic did not make the interrogation custodial] In light of thes cases and Miranda's objective standard,the trial courtdid noterr in concludin thatWatkins was notsubjected to custodial interrogation prior to confessing. B. Admissibilit of ost-Miranda statement Watkins'first confession occurred prior to him receiving Miranda warnings. After the police read him his Miranda warnin s, he confessed again. Watkins argues that this is an interrogation strategy hat the Supreme Court declared unconstitutional in Missouri v. Siebert, 542 U. . 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643(2004). In Siebert, the police arrested and ulti Siebert. Id. at604-05. In their interrogation,th stabbing Chou. Watkins argues that because separate crime—unlawful disposal of human r supports the inference that he was in custody. similar argument: "it is, as the State contends, probable cause to arrest Lorenz (before or du 37. Therefore, the fact that police had prob believe thatWatkins had committed a different does not establish that he was in custody. ately obtained a confession from police deliberately refrained from

his amounted to a confession ofa mains under RCW 68.50.130— it But, in Lorenz the court rejected a irrelevant whether the police had ing the interview)." 152 Wn.2d at ble cause during the interview to crime than that being investigatedNo.73352-4-1/10

providing Miranda warnings as part of a "ques ion first" strategy. See çj.at 605- 06. Writing for the four justices in the plurality, Justice Souter reasoned that the key inquiry underlying Miranda is whether the warnings reasonably convey to a suspect his or her rights 

### under Miranda: Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect ould hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the s me ground again. A more likely reaction on the suspect's part would be perplexity about the reason for discussing rights at that poi t . . . .Thus, when Miranda warnings are inserted in the midst of oordinated and continuing interrogation,they are likely to mislead nd "depriv[e]a defendantof knowledge essential to his ability to uriderstand the nature of his rights and the consequences of abandoning them." Id. at 613-14 (alteration in original)(footnote o 475 U.S.412,424, 106 S. Ct. 1135,89 L. Ed. Justice Kennedy concurred in the jud decisive vote to exclude Siebert's confession. I He reasoned that "[t]he plurality is correct to through the use of this technique are inadmis the infrequent case,"such as Siebert, when p
a calculated way,post

-Miranda statementsmu Justice Kennedy's analysis, this court has suppress postwarning confessions during a where a midstream Miranda warning did not e
or her rights. State v. Hickman, 157Wn.App.7 itted) (quoting Moran v. Burbine, d 410 (1986)). ment, and provided the fifth and at618(Kennedy,J.,concurring). onclude that statements obtained ible." Id. He agreed that "only in lice use a question-first strategy in tbe excluded. Id.at622. Adopting easoned that a trial court must deliberate two-step interrogation ectively apprise the suspect of his 67,774-75,238 P.3d 1240(2010).

10No.73352-4-1/11
Siebertwasarrested priorto thefirst pha e ofquestioning. 524 U.S.at604. But,Watkins was not under arrest and not subj ct to custodial interrogation when he first confessed. Admission of his confes ion was therefore not barred by Seibert, as framed in Justice Kennedy's con urrence, and was surely not the "infrequent case"that it contemplates. C. Waiver of Miranda Rights Watkins has fetal alcohol spectrum disorder that causes cognitive impairment. Watkins argues that his cognitive disabilities, in conjunction with the circumstances,rendered hiswaiverofhis Miran a rights involuntary. After hearing his rights, when asked whether he is willing t continue speaking with Detective Barfield, Watkins stated, "I 'guess so." Detectve Barfield said, "You guess so?" and "Is that a yes?" Watkins responds,"Yeah.' Under Miranda, a confession isvolunta after the defendant has been advised of his or knowingly, voluntarily, and intelligently waives Wn.2d 640, 663, 927 P.2d 210 (1996). Th determined from a totality of the circumstance 663-64. Factors considered include a defenda abilities,physical experience,and police condu disability is relevant, butdoes not necessarily r When a trial courtdetermines a confession is v disturb that finding if it is supported by substa ,and therefore admissible,ifmade her rights, and the defendant then those rights. State v. Aten, 130 voluntariness of a confession is under which it was made. Id. at t's physical condition,age,mental t. Id.at664. A defendant'smental nder a confession involuntary. Id. luntary,an appellate court will not tial evidence from which the trial

11No.73352-4-1/12

court could have found that the confession wa voluntary by a preponderance of evidence. Id. The State and Watkins each presen ed expert testimony on whether Watkins' waiver of his Miranda rights was kn wing and voluntary in light of his cognitive impairment. The State offered testim nyfrom Dr.Kenneth Muscatel. Dr. Muscatel opined that, whileWatkins has cogni ive impairment, he was capable of understanding his Miranda rights and abl to knowingly, intelligently, and voluntarily waive them. The trial court concluded that Dr. Muscatel's testimony

was "more persuasive"than Watkins'expert. In arguing that the trial court erred,Wat ins cites numerous facts from the record showing Watkins'impairment,such as h s low cognitive difficulties. But,Dr. Muscatel noted thathewastracking the conver ation throughoutthe interrogation, which suggested that his waiver was volunt ry. Based on his evaluation, Dr. Muscatel testified that he "had no questio about him being competent to understand,appreciate,

### and waive Miranda, if e so chose." Substantial evidence supports the trial court's conclusion thatWatki s'waiver of his Miranda rights was knowing,intelligent, and voluntary. II. Privacy Act During the interviews of Watkins, polic used a handheld audio recorder that Watkins was aware of,, but also recorded Watkins via video for a period after the handheld audio recorder was turned off.7 iVatkins argues that the trial court

7 The State agreed not to offer these r cordings that were made without Watkins'knowledge. 12No.73352-4-1/13

should have excluded observations and sum evidence obtained in the investigation that because the conversations were recorded in vi If a party violates RCW 9.73.030,which "private conversations," the proper remedy is obtained during the conversation. See State v. 791 P.2d 897 (1990). By contrast, if a party vi requires officers to inform 'persons being rec recorded, the remedy is exclusion of the re Licensing, 157 Wn.2d 446,472, 139 P.3d 107
was private under the privacy act is a question Kipp, 179Wn.2d 718,728-29,317 P.3d 1029( In Lewis, our Supreme Court noted that" have repeatedly held that conversations with p Wn.2d at 460. There "is 

### no reasonable exp custody undergoing custodial interrogations." I solely to the application ofthe trial court order t he confessed,was arrested and was read his ri custodial interrogation during the entirety ofthe

8 The State argues that this argument exclude,Watkins argued that "violation ofthe a the recordings themselves but of all evidence result ofthatviolation." Thie is sufficient to pre

9 Watkins confessed to stabbing Chou him his Miranda rights immediately thereafter. aries of the conversations, and temmed from the conversations, lation ofthe privacy act.8 rohibits unconsented recording of xclusion, as well as all evidence F'ermestad, 114 Wn.2d 828,836, lates RCW 9.73.090(1)(b), which rded that they are in fact being ording only. Lewis v. Dep't of (2006). Whether a conversation of law reviewed de novo. State v. 014). this courtand the CourtofAppeals lice officers are not private." 157 ctation of privacy for persons in d at 467. Watkins' challenge was portions ofthe conversation after hts. Therefore,he was subjectto ecorded conversations, Watkins'

is waived. But, in his motion to t requires not only suppression of erived directly and indirectly as a erve this issue. t roughly 12:37 p.m. Police read

13No.73352-4-1/14

conversations with police here were not "privat ." Recording those conversations did not violate the privacy;act. The trial cou did not err in denying Watkins' requestto exclude the evidence. III. Search Warrant 

# ri Police obtained a search warrantfor Wa kins' parents'home where he had

l i previously resided. The warrant specified itens to be seized, such as specific clothing items, a knife with a camouflage har dle, a pick axe, and "[a]ny other item. . .that Detectives reasonably believe m The warrant was granted in response to an affi Chou because Chou had been harassing Watk that the "any other item" language is over requirementthat items to be seized be describ The Fourth Amendment requires that se the place to be searched and the persons or amend. IV. Warrants must enable the sear y be associated with this crime." avit that stated that Watkins killed ns'new girlfriend. Watkins argues road, and therefore violated the d with particularity. rch warrants particularly describe hings to be seized. U.S. CONST. her to reasonably ascertain and identify the things that are authorized to be seized. State v. Besola, 184 Wn.2d 605,610, 359 P.3d 799 (2015). This court rev ews de novo the issue of whether
a warrant meets the particularity requirement ofthe Fourth Amendment. State v. Clark, 143 Wn.2d 731, 753, 24 P.3d 1006 ( warrants in a common sense,practical manner, standard. State v. Stenson; 132Wn.2d 668,6 001). And, it evaluates search rather than using a hypertechnical 2,940 P.2d 1239 (1997).

14No.73352-4-1/15 Quoting Marron v. United States, 275 U. 231 (1927),Watkins contends that the purpos that "'nothing is left to the discretion ofthe offi decisions of this court have reasoned that requirementofelaborate specificity has no plac satisfies the Fourth Amendment requirem Christiansen, 40Wn.App.249,254,698 P.2d In Christiansen, a clause in the warrant and fruits of the crime(s) Of manufacturing, d • 192, 196,48 S.Ct.74,72L. Ed. of the particularity requirement is
er executing the warrant.'"10 But, "grudging and overly technical in determining whethera warrant nt of particularity." State v. 059 (1985). directed seizure of " 'all evidence livering, or possessing controlled substances.' " Id. at 251. , The court found that this was sufficiently particular, because the description ofthe items to be seiz the suspected crime. Id. at 254. This court ca
v. Reid, 38Wn.App. 203,212,687 P.2d 861 ( The warrant here sufficiently limite discretion. The phrase "any other specifically limited the warrantto the cn specific items listed, such as a shotgu provided guidelines for the officers Therefore, these limitations were ade exploratory search. d was confined to the evidence of
e to a similar conclusion in State 984): the searching officers' vidence of the homicide" e under investigation. The and shotgun shells, also conducting the search. uate to prevent a general Similarly here, the warrant limited the scope to items Idietectives reasonably believe may be associated With this crime." (E phasis added.)

10 Our Supreme Court has reasoned hat this specific statement, from Marron v. United States, 275 U.S. 192, 196,48 S. Ct. 74,72L. Ed. 231 (1927),"is not read literally, because to do so would mea that an officer could never seize anything which is not specifically named in th warrant." State v. Perrone, 119 Wn.2d 538,546,834 P.2d 611 (1992). 15No.73352-4-1/16

Contrast these holdings with a case cited by Watkins, State v. Garcia, 140 Wn.App. 609,622, 166 P.3d 848 (2007). Th re, the court invalidated a warrant that authorized a search of," 'any and all pers wasto be searched in relation to a drug investi that this language was not,limiting and that a presentare involved in criminal activity is an in does not supporta conclusion that the warrant Watkins argues that police were im belongings,as evidenced by the personal writi warrantexplicitly directed officers to limittheir s As illustrated in the affidavit, the detectives kne murder ofChou,wasdirectly related to Watkins girlfriend. A journal and notes that contain the where a detective might reasonably expect to crime and motive. As in Reid, the warrant general exploratory search. It was sufficiently IV. Dismissal of Juror Watkins nextarguesthatthe trial courte ns present' "at a motel room that ation. Id. at616,623. It reasoned eneralized belief that all persons ufficient nexus. Id. at623. Garcia
as overly broad. roperly rummaging through his gs that they seized. But, here the arch to items related to the crime. the crime being investigated,the romantic relationship with his new
new girlfriend's name is precisely ind personal notes relevant to the
as sufficient to protect against a articular.

red in dismissing a sitting jurordue to a conflict, instead of delaying trial to accommodate the juror. The trial court replaced juror 13with an 

## alternatejurorafterjurpr 13was informed that his mother had a medical emergency. A defendant in a criminal case has a ri ht to be tried by an impartial, 12

- person jury. State v. Gentry, 125 Wn.2d 57 , 615, 888 P.2d 1105 (1995). A
16No.73352-4-1/17

defendant has no right to be tried by a particul r juror or by a particular jury.11 Id. In cases,like the one here,that are expected to take a considerable time,the trial judge maydirectthe selection ofone or more al ernatejurors. Id. CrR 6.5governs the use of alternate jurors. State v. Stanley, 1 40 Wn.App. 312, 315, 85 P.3d 395 (2004). This court reviews a trial court's d cision to replace a juror with an alternate for abuse of discretion. State v. As craft, 71 Wn.App. 444, 461, 859 P.2d 60(1993). Juror 13 requested to be excused for defense and the trial courtquestioned the juror Juror 13 had power ofattorney with respectto medical emergency. After this questioning, replacement of the juror was warranted. In court's replacement of a juror who had a plan deliberations had been prolonged due to adve the need to attend to this emergency was more Ashcraft. Thetrial courtdid notabuse its discre emergency ofthe juror's mother provided a pro Watkins proposed a brief delay in the juror, rather than dismissing him. Whether th family medical emergency. The boutthe specifics ofthe situation. is mother who was experiencing a the trial court concluded that shcraft, the court upheld the trial ed flight to Belgium, and the jury
e weather. Id. at 461-62. Surely pressing than the planned flight in ion in determining thatthe medical
er basisfor being excused. roceedings to accommodate the absence of the juror would have been very briefcould not be known with certainty. The trial courtproperly weighed 11 Relatedly, Watkins suggests that the replacement of the juror with the alternate juror implicates his constitutional rights. But, Watkins cannot establish that seating alternate jurors amounted to a cortistitutional error, because he "has no right to be tried by a jury that includes a particular juror." State v. Jorden, 103 Wn.App. 221,229, 11 P.3d 866 (2000). 17No.73352-4-1/18

the impactofafurtherdelayon thetrial. Itwas otan abuseofdiscretion todismiss Juror 13 rather than grant a continuance. We affirm.

WE CONCUR:

18 

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