IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, Petitioner,


### v. MARTIN ARTHURJONES, Respondent. ) ) ) ) ) ) ) ) ) )



# _________________________) No. 89321-7
ENBANC Filed: 

### APR ;?. 

### 12il16
YU, 

### J.- This case presents questions regarding a defendant's public trial right and right to be present as applied to the designation ofalternatejurorsby a random drawing performed after both sides have rested at trial. The random drawing in this case was done by the trial court'sjudicial assistant at a briefrecess during closing arguments. Defendant Martin Arthur Jones contends that this violated his constitutional rights to a public trial and to be present at all critical stages oftrial proceedings. Based on the specific facts presentedby the record before us, we hold that the random drawing by thejudicial assistant did not implicate Jones' publictrialState v. Jones, No. 89321-7 

### right. We also hold that Jones waived his right-to-presence claim by failing to raise an objectionuntil after thejuryreached its verdict. We therefore affirm in part and reverse in partthe Court ofAppeals, and reinstate Jones' conviction. FACTUAL AND PROCEDURAL HISTORY The facts underlying the offense are not at issue atthis time. Briefly, Jones' wife was pulled over for speeding and, based on her performance in field sobriety tests, she was arrested for driving underthe influence. While one state trooper took Jones' wife into custody, another stayed at the scene to process the vehicle for towing. A white male approached the trooper at the scene and shothim inthe back ofthe head. Remarkably, the trooper survived and identified Jones as the shooter. Based on the trooper's identification and other evidence, Jones was charged in Pacific County with attempted first degree murder. The trial was ultimately held in Pierce County. 

### State v. Jones, 175 Wn. App. 87, 91-94, 303 P.3d 1084 (2013). The question ofhow the alternatejurors would be designated came up early and often in the Pierce County proceedings. The question was first raised by the court during pretrial motions. The court offered Jones a choice for how to designate the alternates: "Ifwe are not going to tell [thejurors which ofthem are alternates], then it's random and we pull it out ofthe rotating cylinder, and it's whoever is left is who is eligible to be selected out. Otherwise, it's your last four." 1Verbatim Report ofProceedings (VRP) at 35 (Oct. 15, 2010). The court invited

2State v. Jones, No. 89321-7 

### the attorneys to discuss it among themselves and specifically to " [ c]hat with Mr. Jones, see what he prefers." Id. 

### at 36. The court made it clear that "defense really controls onthat. It's eitherrandom, or it's the last four." !d. 

### The court later revisited the issue ofdesignating alternates, reiterating that the "defense drives the bus on this." Id. 

### at 126 (Jan. 3, 2011). In response to questions raised by Jones' attorney, the court noted that "[t]he box is backthere in the corner. It's really not-- it's
... spinning and the numbers are all in there ifwe still have 16." Id. 

### at 127. Ultimately, Jones chose the random drawing as his preferred method for designating alternates. A panel of 100jurors was summoned to appear. Voir dire occurred onthe record in open court over the course oftwo days. Thejurors were informed during voir dire that 4 ofthe seatedjurors would be alternates. At the end ofvoir dire, the attorneys conducted their peremptory challenges on paper at counsel table in open court. Jones does not contend that any part ofthe pretrialjury selection proceedings violated his public trial right or right to presence. Thejurytrial began with opening statements, andthe parties both rested four weeks later. When the court asked ifthejurors had any questions, one asked about the designation ofalternates: "[j]ust out ofcuriosity, you said there would be the 12jurors. Do we know or are we supposed to know how that will happen?" 23

3State v. Jones, No. 89321-7 

### VRP at 3807-08 (Feb. 15, 2011). The court reviewed the process that it would use to designate alternates: As I explained back in early January we seated 16 in case there was a family emergency, or some unforeseen eventthat would occurthat would require ajurorto be excused. There are still 16 ofyou here in the boxtoday near the end ofthe trial. It

### will be random. The box to be spun looks a little like an old fashioned bingo, but it's wooden. [Thejudicial assistant] has all16 of yourjurornumbers, and after all ofthe closing arguments she will tell me which four numbers have been selected at random. We don't know now. We are still hoping thatthere is no unexpected emergency between now and Thursday morning, butthat's still a possibility. The fourjurors that are not selected to deliberate will notbe excused because during deliberations one ofthe 12 might have an emergency that would require them to be excused, so we will still have fourjurors available to resume deliberations with the otherjurors ifthat's required. 

### !d. at 3808. After the parties rested and before closing arguments, there was a one-day break for thejurors during whichthe parties addressed various matters including thejury instructions and the closing argument schedule. Both sides anticipated making lengthy closing arguments, so the court was careful to figure out a schedule that would include sufficientbreaks for thejurors without disrupting the flow ofeach side's closing arguments. The courtplanned to give thejurors a 15- minute break in the middle ofthe morning, a 90-minute lunch break, and another short break in the middle ofthe afternoon. 24 VRP at 3854-55 (Feb. 16, 2011).

4State v. Jones, No. 89321-7 

### Neitherparty expressed any concerns about the court's proposed schedule. The next day, the court reviewed the schedule again with all ofthe attorneys and Jones, again without anyone expressing any confusion, surprise, or objections. The proceedings closely followed the court's schedule. After the State presented its closing argument, Jones' counsel beganhis at 11:34 a.m. Suppl. Clerk's Papers (CP) at 1429. At noon, the court announced it would recess for 1 unch and instructed thejurors to return to the deliberation room by 1 :15 p.m.; Jones resumed his closing argument at 1:38 p.m. Id. 

### At 2:55p.m., the court announcedthat "[w]e are going to have to take o[u]r afternoon break." 25 VRP at 4017 (Feb. 17, 2011); see also 

### Suppl. CP at 1429. The court instructed thejuryto "step on into thejury deliberation room. Leave you[r] notebooks and yourjuryinstructions here, and because we are only [g]oing to take aten-minute break, I would askthat you not go out." 25 VRP at 4018 (Feb. 17, 2011). Then, "outside the presence ofthejury," the court advised Jones' attorneys that itwould "needyou back in five minutes
... [to] discuss with [the State's attorneys] the hour that we have left." Id. 

### While the record shows the court was in recess from 2:55 to 3:03 p.m., Suppl. CP at 1429, it does not indicate that anyone other than thejurors was instructed to leave the courtroom during the
recess and it does not indicate whether or not there was anyone in the courtroom during the recess.
5State v. Jones, No. 89321-7 At 3:05p.m., thejury was reseated and Jones resumed his closing argument, followed by the State's rebuttal. Id. at 1429-30. Afterthe State concluded, the court announced on the record in open court whichjurors were designated as alternates: All right ladies and gentlemen. We talked about ityesterday, we talked about it in January. Atthe outset ofthis trial we seated four alternates. I think the attorneys and I are as surprised as everyone else that there are still16 ofyou in the box. But at this time at the break at 3:00, fourjurors['] number[s] were pulledrandomly, and atthis time I am temporarily excusing these fourjurors: The order in which I am excusing you is importantbecause ifduring the deliberations ofthe other 12jurors one ofthejurors has to be excused, the firstjurorthat is temporarily excused is what we are callingjurorNo. 16, Mr. Power. I am excusing you as an alternate at this point, butyou wouldbe the first one called back in the event one ofthe other 12 has to be excused for some emergency or for some reason. The second alternate selected out Juror No. 9, Mr. White[,] is temporarily excused. Mr. Gama, Juror No. 5[,] is temporarily excused, and Ms. Engel, Juror No. 11 [,]istemporarily excused. In temporarily excusing you, what that means is that you are not fully released from this case. 25 VRP at 4061-62 (Feb. 17, 2011). There is no indication that anyone expressed any surprise, confusion, or objections whenthe court announced that the alternates had been designated by a random drawing conducted during the midafternoon break.The court then askedthe alternatejurors "to step on into thejury deliberation
room with [thejudicial assistant] forjust a few moments while I talk with the other

6State v. Jones, No. 89321-7 jurors." 

### Id. at 4063. The court gave the remainingjurors instructions for their deliberations and then told them to "go ahead and step on into thejury deliberation room." 

### Id. at 4067. Once "outside the presence ofthejury," the court announced, "I am going to let the fourjurors leave now." 

### Id. There is no indication that anyone objected to releasing the four alternates for the day. Thejury deliberated over the course ofthree business days, from Friday, February 18 through the following Wednesday, February 23 with an intervening holiday. Thejurors submitted several questions while they were deliberating, and attorneys for both sides participated in answering those questions. Throughout the
course ofdeliberations, Jones raised no concerns aboutthe composition ofthe deliberatingjury. Jones was convicted ofattempted murder in the first degree, and thejury found by special verdicts thatJones was armed with a firearm and thatthe victim was a law enforcement officer who was performinghis official duties. Approximately one week afterthejuryreturned its verdicts, Jones filed a motion for a newtrial, contending, among otherthings, that designating alternate jurors by conducting a random drawing at arecess during the closing arguments violated his public trial right and rightto presence. The court denied Jones' motion for anewtrial and imposed an exceptional sentence above the standardrange of 600 months oftotal confinement, to be followed by 36 months ofcommunity custody. Jones appealed.

7State v. Jones, No. 89321-7 The Court ofAppeals filed apartially published opinion holding that Jones' public trial right was violated "when, during a courtrecess offthe record, the trial court clerk drew fourjurornames to determine whichjurors would serve as alternates," and that this was structural error requiring reversal. 

### Jones, 175 Wn. App. at 91. However, the Court ofAppeals held that Jones' rightto be present was not violated and even ifit was, any error was harmless. 

### !d. at 104. The Court of Appeals rejected Jones' arguments regarding the admissibility ofcertain evidence, and various grounds thatJones raised inhis pro se statement ofadditional grounds for review. 

### State v. Jones, No. 41902-5-II, slip op. (unpublishedportion) at 18-34 (Wash. Ct. App. June 4, 2013). The State filed a petition for review regarding Jones' public trial right. Jones filed a cross petition for review regarding his right-to-presence claim and certain evidentiary issues. This court stayed consideration ofthe petitions pending 

### State v. Njonge, 181 Wn.2d 546, 334 P.3d 1068 (2014), 

### State v. Slert, 181 Wn.2d 598,334 P.3d 1088 (2014) (plurality opinion), and 

### State v. Love, 183 Wn.2d 598, 354 P.3d 841 (2015). Afterthe stays were lifted, we granted the State's petition for review and granted Jones' cross petition only on the right-to-presence issue. 184 Wn.2d 1018 (2015).

8State v. Jones, No. 89321-7 

### ISSUES A. Was Jones' public trial right implicated by thejudicial assistant's act ofrandomly drawing the alternatejurors? B. Should Jones' convictionbe reversed due to the alleged violation of his right to be present at the random drawing to designate alternatejurors? ANALYSIS A. Based on the record before us, there was no public trial violation The right to an open public trial is guaranteed by article I, sections 10 and 22 ofthe Washington State Constitution. Whether a defendant's public trial right has been violated is a legal issue, subjectto de novo review. Love, 

### 183 Wn.2d at 604. We apply the experience and logic test to determine whether the public trial right is implicated by a particularproceeding. State 

### v. Sublett, 

### 176 Wn.2d 58, 73, 292 P.3d 715 (2012) (C. Johnson, J., lead opinion). In doing so, we must take care to define the proceeding at issue with precision because our focus is on the proceeding that actually occurred, not on the general label that might be attached to a variety of relatedproceedings. I

### d. at 72-73. The actual proceeding at issue here was ofan extraordinarily limited nature. The overwhelming majority ofproceedings relating to the designation of alternatejurors (including the court's offering ofoptions for designating alternates and giving the choice to Jones, the attorneys' questions to the court about those options, the court's repeated explanations ofhowthe random drawing would

9State v. Jones, No. 89321-7 

### proceed, and the court's announcement ofwhichjurors had been drawn) occurred
onthe record in open court. The only event that did not occur in open court was thejudicial assistant's physical act ofrandomly drawing the alternatejurors according to the agreed-on procedure. We thus limit our analysis to that particular event, and, based on the specific facts in the record presented, hold that it did not implicate Jones' right to apublic trial. 1 

### 1. Experience It

### is Jones' burden to show, as a matter ofexperience, that arandom drawing to designate which ofthe seatedjurors will serve as alternates has "'historically been open to the press and general public."' Id. 

### at 73 (quoting Press-Enter. Co. v. Superior Court, 

### 478 U.S. 1, 8, 106 S. Ct. 2735,92L. Ed. 2d 1 (1986) (Press 

### II)). Jones contends that "selection ofalternatejurors is typically part ofvoir dire 

### which has traditionally been conducted in open court." Answer & 

### Cross-Pet. for Review at 4; see also 

### Suppl. Br. ofMartin Jones at 10. Assuming thatproposition is true, it does not answer the narrow question presentedhere.2

1As a general matter, a recess is not an open court proceeding, and conducting certain tasks related to the designation ofalternatejurors (or other aspects of jury selection) during a courtrecess could implicate a host ofissues. In this case, however, as a matter ofexperience and logic, we hold thatthe random drawing to designate alternatejurors simply did not implicate the public trial right. 2 We do note, however, that designating alternatejurors by conducting a random drawing after parties have rested, rather than during pretrial voir dire, is not a practice unique to the court that conducted Jones' trial. See, e.g., UnitedStates v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007) (noting "the logic ofthis practice and its vintage in the district court," though discouraging its use as inconsistent with Fed. R. Crim. P. 24); People v. Van Camp, 356 Mich. 593, 97 10State v. Jones, No. 89321-7 There are certainly tasks related to thejury selection and voir dire process that we have held may be done outside ofopen court withoutrunning afoul ofthe public trial right. See State v. Russell, 183 Wn.2d 720, 729,357 P.3d 38 (2015) (work sessions to reviewjurorquestionnaires for hardship excusals); Slert, 181 Wn.2d at 605-06 (Gonzalez, J., lead opinion) (reviewingjury questionnaires prior to voir dire), 614 (Stephens, J., dissenting) (administrative excusal ofindividuals from thejurypool due to illness); In re Pers. Restraint ofYates, 177 Wn.2d 1, 28- 29, 296 P.3d 872 (2013) (lining up and seating the venire in numerical orderbefore unlocking the courtroom); State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159 (2013) (C. Johnson, J., lead opinion) Guror questionnaires usedby the attorneys as
a "'screeningtool'" for voir dire conducted in open court could be sealed without implicating defendant's public trial right). There are also statutes and court rules providingthat court clerks andjudges mayperform ministerial tasks relatedtojury selection generally and voir dire specifically. 3 See, e.g., RCW 2.36.063 ("Thejudge orjudges ofthe superior court

N.W.2d 726, 732 (1959) (applying a Michigan statute that required alternatejurorsto be selected by random drawing at the close ofa case); JEFFERSON COUNTY SUPER. CT. LOCAL CIV. R. 38.3 ("The alternatejuror shall be designated byrandom drawing to be announced after closing argument."); OKANOGAN COUNTY SUPER. CT. LOCALR. 47(b) ("[T]he parties may stipulate that the alternatejurorbe designated by random drawing to be announced after closing argument."). 3 While we do not suggest that a statute or courtrule can ever abridge a constitutional right, they can shed light on whether particularproceedings have historically been opento the press and general public. See Sublett, 176 Wn.2d at 75-77 (C. Johnson, J., lead opinion) (considering court rules in analyzing the experience prong as pertainingtojuryinstructions and questions from thejury during deliberations).
11State v. Jones, No. 89321-7 ofany county may employ a properly programmed electronic dataprocessing system or device to compile thejury source list, and to compile the masterjury list and to randomly selectjurors from the masterjurylist."); CrR 6.3 ("Whenthe action is called for trial, thejurors shall be selected at random from thejurors summoned who have appeared and have not been excused."), 6.5 ("Ifat any time before submission ofthe case to thejury ajuroris found unable to performthe duties the court shall order thejuror discharged, and the clerk shall draw the name ofan alternate who shall take thejuror'splace onthejury."). Jones does not argue, and we can find no indication, that these tasks have traditionally been performed in open court. Thus, whether a specific task could generally be consideredpart ofvoir dire is not dispositive. Jones has not provided any historical or legal resources showing that the press and general public have traditionally been able to observe the specific, nondiscretionary, ministerial task ofphysically drawing the alternate jurors according to a procedure chosenby the defendantthat was described both before and after the fact onthe record in open court. The experience prong is not met. 2. Logic To satisfy the logic prong, Jones must showthat "'public access plays a significantpositive role in the functioning ofthe particularprocess in question."'

12State v. Jones, No. 89321-7 Sublett, 176 Wn.2d at 73 (C. Johnson, J., lead opinion) (quotingPress II, 478 U.S. at 8). In analyzing this prong, we look to whether openness will advance the purposes ofthe public trial right: "to ensure a fair trial, to remind the prosecutor andjudge oftheir responsibility to the accused and the importance oftheir functions, to encourage witnesses to come forward, and to discourage perjury." Id. at 72. Concerns relating to witnesses and perjury are not implicated here, so we consider only the purposes ofensuring a fair trial and reminding the court ofits responsibility to Jones and the importance ofits functions. Jones argues thatthe random drawing here frustrated those purposes because real-time public oversight would have been "[t]he only assurance that [the random drawing] process was done fairly." Suppl. Br. ofMartin Jones at 12. Jones' argument overlooks several key facts inthe record. The deliberating and alternatejurors were all chosen bythe same voir dire process in open court. The method for drawing the alternates, the box from whichthe alternates would be drawn, and thejudicial assistant who would be doing the drawing were all identified onthe record in open court. Jones himselfchose the random drawing method for designating alternates, and (as discussed further below) Jones had the opportunity to objectto the drawing ifhe was concerned about how it was conducted. In light ofall these proceedings onthe record in open court, public oversight atthe momentthejudicial assistant actually drew the pieces ofpaper

13State v. Jones, No. 89321-7 designating the alternatejurors would not play a significantpositive role in the functioning ofthe drawing itself, and it would not advance the purposes underlying the public trial right. These facts also easily distinguish this case from State v. Rouner, 333 Mo. 1236, 64 S.W.2d 916 (1933), which Jones cites to demonstrate "[t]he importance oftransparency in the act ofselectingjurors by wheel as used here." Suppl. Br. of Martin Jones at 12 n.2. Thejury selection at issue inRouner was actually the compilation ofthe entirejurypanel for a session ofa Missouri county court, not the designation ofalternates. Rouner, 64 S.W.2d at 918. The Missouri Supreme Court noted the "evils" ofa prior "uncontrolled system" wherein thejurypanel
was selected by the sheriff, who apparently hadunlimited discretion in how to complete that task. Id. To bring some control and oversight to the process, Missouri statutes were amended to provide that thejurypanel mustbe compiledby the county clerk in open court. Id. The defendant inRouner did notknow until afterhe was convictedthat thejurypanel from whichhis trialjurywas selected had been compiled by twojudges in a closed room. Id. at 916. In Jones' case, by contrast, all 16 ofthe seatedjurors were chosen by voir dire in open court, the judicial assistant had no discretion in how to carry out the drawing, there is no indication the drawing was conductedby an unauthorized person, and Jones knew about it well before he was convicted.

14State v. Jones, No. 89321-7 Finally, it is difficultto imagine where the logical limit ofJones' line of reasoning wouldbe. For instance, ifJones had chosen to designate the alternate jurors based on theirjuror numbers, would he now be arguing that a public trial violation occurred because the initial assignment of jurornumbers was not done in open court? And what ifthe court were to use a computerprogramto randomly designate alternates? Jones indicated at oral argument that courts should simply avoid using such technology. Wash. Supreme Court oral argument, State v. Jones, No. 89321-7 (Feb. 23, 2016), at 19 min., 52 sec. to 20 min., 14 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org. We do not agree with the ideathat the public trial right prohibits courts from making reasonable use oftechnological advancements that increase efficiency, decrease costs, andpromote the timely and evenhanded administration of justice. And there is no meaningful distinction betweenthe physical act ofrandomly drawing alternates and the physical act ofpressing a button to run a computerprogramthatrandomly designates alternates. Neither experience nor logic indicates thatthe public trial right was implicated by thejudicial assistant's randomly drawing the alternatejurors in this
case. We thus conclude that there was no violation ofJones' rightto a public trial.

15State v. Jones, No. 89321-7 B. Jones waived his right-to-presence claim As a matter ofdue process, "[a] criminal defendant has a fundamental right to bepresent at all critical stages ofa trial." State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011). Jones claims thatthis right was violated when thejudicial assistant conducted the random drawing to designate the alternatejurors outside his presence. Assuming (without deciding) that the drawing was a critical stage of Jones' trial, and further assuming (without deciding) that Jones was notpresent for the drawing, we hold he waived this error by failing to raise a timely objection. Jones first raised his right-to-presence argument in a motion for a newtrial pursuantto CrR7.5(a)(5), which he filed days after thejury convicted him. CP at 1286, 1299. A motion for a newtrial is not a substitute for raising a timely objection that couldhave completely cured the error. See, e.g., State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 289 (1999); State v. Williams, 96 Wn.2d 215, 225-26, 634 P.2d 868 (1981). Indeed, the failure to raise a timely objection strongly indicates that the party did notperceive any prejudicial erroruntil after receiving an unfavorable verdict. Williams, 96 Wn.2d at 226. Jones unquestionably had ample opportunity to objectto the designation of alternates in time to completely cure the error. Thejury's deliberations extended
over multiple days, andJones and his attorneys actually participated inresponding tojury questions during deliberations. See Suppl. CP at 1430. IfJones had

16State v. Jones, No. 89321-7 objected at any time during deliberations, the random drawing could have been redone in his presence and, ifthe results were different, the previously dismissed alternates could have been recalled and deliberations begun anew. 

### See 25 VRP at 4061-62 (Feb. 17, 2011); 

### cf Williams, 96 Wn.2d at 226 ("Even after all the testimony was concluded and thejurywas inthe process ofdeliberating, petitioner declined to move for a mistrial when a sickjurorwas excused."). Jones does not pointto anything thatprevented him from making a timely objection, and he does not explain how such an objection, ifgranted, wouldhave been an incomplete remedy. Based onthe record presented, we must conclude that "[t]he defense made a tactical decision to proceed, 'gambled onthe verdict', lost, and thereafter asserted the previously available ground as reason for a new trial. This is impermissible." 

### Williams, 96 Wn.2d at 226 (citing

### Nelson v. Martinson, 52 Wn.2d 684, 689-90, 328 P.2d 703 (1958)). We therefore hold thatJones waived his right-to-presence challenge and decline to address its merits. CONCLUSION Based onthe specific facts presented by the record before us inthis particular case, we hold thatthe public trial right was not implicatedbythe random drawing for alternatejurors by thejudicial assistant. We also hold Jones waived his right-to-presence claim by failing to raise a timely objection. While it mightbe

17State v. Jones, No. 89321-7 the best practice to conduct such a drawing in the presence ofthe defendant and the public, it is not constitutionally required. We therefore affirm in part and reverse in part the Court ofAppeals and reinstate Jones' conviction.

18State v. Jones, No. 89321-7



### WE CONCUR:

19State v. Jones (Martin Arthur), No. 89321-7 (Gordon McCloud, J., concurring)

No. 89321-7 GORDON McCLOUD, J. (concurring)-! agree with the majority that defendant Martin Jones has no right to presence or open courtroom proceedings during the random drawing ofalternates in the context ofthis case. Thus, there was
no constitutional problem with thejudicial assistant conducting that work during a
recess from the court proceedings. Butthat is the only thing that we need to say to decide this case. I therefore disagree withthe majority's decisionto go on to state thatJones waived anypossible right-to-presence claim by failing to raise it sooner. Majority at 15-17. I also disagree with the majority's analysis ofthat waiver issue. We have held that for a defendant's waiver ofthe right to presence to be constitutional, it must be "both knowing and voluntary." 

### State v. Rice, 110 Wn.2d 577, 619, 757 P.2d 889 (1988) (citing 

### United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972)). We have acknowledged that a knowing and voluntary waiver ofthis constitutional right to presence canbe "express or implied," and that it can be "implied" when a defendant
1State v. Jones (Martin Arthur), No. 89321-7 (Gordon McCloud, J., concurring) "voluntarily absent[s] himselffrom the proceedings." !d. (citing Taylor v. United States, 414 U.S. 17, 19-20,94 S. Ct. 194, 38 L. Ed. 2d 174 (1973) (per curiam)). We have even developed a framework for determining, under atotality ofcircumstances, whether a defendant's absence from a proceeding is voluntary or not. See State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994). But I can't find any prior
case from this court holding that a defendant knowingly and voluntarily waived his
orherrightto presencewhenhe or she didn'tevenknow aproceedingwas occurring because it happened during a recess, meaning during a time when court is not in
sesswn. Instead, I would hold only that the random drawing of alternates by a previously approved process was not an event to which the right to presence attached. Just as there is no constitutional right to an open courtroom or presence for a bailiffs orjudicial assistant's computer work, there is no constitutional right to an open courtroom or presence during this preapproved, random drawing, work, either. I therefore respectfully concur.

2State v. Jones (MartinArthur), No. 89321-7 (Gordon McCloud, J., concurring in result)

3