IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent,

v.

JEFFREY ALLEN MCGEE,

Appellant.

No. 86619-2-I

DIVISION ONE

UNPUBLISHED OPINION

BIRK, J. — The criminal rules confer discretion on trial courts to replace 

impaneled jurors with alternate jurors when it is necessary to do so. After a juror 

has been temporarily excused, to properly exercise its discretion as to whether to 

discharge a seated juror and recall the alternate juror who was temporarily 

excused, the trial court must provide notice to the parties and an opportunity to be 

heard. In these unusual circumstances where the trial judge was not apprised that 

court staff had replaced a seated juror with a temporarily excused alternate, the 

court erred by failing to provide the requisite notice or determine whether any 

inquiry was necessary to insure the temporarily excused alternate juror’s continued 

impartiality. We have held such an error to be among “matters which relate directly 

to a defendant’s constitutional right to a fair trial before an impartial jury and to a 

unanimous verdict.” State v. Ashcraft, 71 Wn. App. 444, 463, 859 P.2d 60 (1993). 

This places the burden on the State to show the error was harmless beyond a 

reasonable doubt. Because it does not, we reverse and remand. 
No. 86619-2-I/2

2

I

Following a February 2023 incident at a Port Angeles shipyard, the State 

charged Jeffrey McGee with five offenses: two counts of assault in the third degree, 

resisting arrest, making a false or misleading statement to a public servant, and 

theft in the third degree. The case proceeded to a jury trial. 

When the parties concluded their closing remarks, it was nearly 4:30 p.m.—

the official courthouse closure time—and the court announced that the jury would

reconvene and begin its deliberations the next morning. Before excusing the jury, 

the court informed the jury that, by a random selection process, juror 1 was the 

alternate. The court explained that juror 1 was excused, but not discharged, and 

instructed the alternate “not to talk about the case,” in the event that it became 

necessary to recall the alternate juror to deliberate. The court also instructed juror 

1 that, in the same manner as the 12 impaneled jurors, she would be “free from 

the court’s instructions and restrictions” once the jury reached its verdict. The court 

instructed the remaining jurors to report the next morning for deliberations to begin 

at 9:00 a.m. 

The next day, after the court addressed questions posed by the jury, the 

jury indicated that it had reached verdicts on four counts, but was unable to reach 

a verdict on one count. The court summoned the jury back to courtroom. Upon 

observing that the alternate juror was among the jurors who returned to the 

courtroom, the court excused the jury again. In the ensuing discussion between 

the court, the bailiff, and counsel, the court learned that after a seated juror, juror 
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13, called in sick at 8:05 that morning, the bailiff called the alternate, juror 1, and 

asked her to report back to court. Neither the trial court nor counsel were aware 

of the substitution at the time it occurred. Like the trial judge, the prosecutor was 

not aware until the jury entered the courtroom after deliberating. The prosecutor 

expressed concern about whether the jury had started deliberations before the 

substitution. According to the bailiff, the jury waited in the lobby until 9:30 a.m., 

when the alternate arrived and then retired to the jury room together. Defense 

counsel indicated that he learned that the alternate had been recalled from “other 

bailiffs” after he noticed the jurors in the lobby “not deliberating” after 9:00 a.m., 

but counsel was unaware that the trial court judge had not been involved in the

process of replacing the seated juror. After making a record of what had occurred, 

the trial court observed that, had it been informed of the circumstances at the time, 

it would have discharged juror 13 and recalled juror 1 and proposed continuing:

[H]ad the court known, my instructions would’ve been to simply have 

the jury wait until the alternate arrived. We would’ve used the 

alternate and then I would’ve had them begin deliberations. So, I 

think what actually happened was appropriate. It happened without 

our involvement which is something to work on, but I believe the 

process was the appropriate process that was followed and so I don’t 

see any reason not to continue and bring in the jury. 

In response, defense counsel stated, “Agreed.” 

The jury convicted McGee on three counts: one count of assault, resisting 

arrest, and making a false and misleading statement to a public servant. The jury 

acquitted McGee on the theft count and was unable to reach a verdict on the 

second count of assault. The trial court declared a mistrial as to the second count 
No. 86619-2-I/4

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of assault and the State agreed to dismiss that count with prejudice. The trial court 

sentenced McGee to a total term of confinement of 14 months. 

McGee appeals. 

II

The Sixth Amendment to the United States Constitution and Washington 

Constitution article I, section 22 guarantee the right to a fair trial “by an impartial 

jury.” U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Van Elsoo, 

191 Wn. 2d. 798, 807, 425 P.3d 807 (2018). We review claims of constitutional 

error de novo. State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004).

Criminal Rule 6.5 governs the use of alternate jurors in criminal matters. 

The rule provides that if a juror is “unable to perform the duties of the court” before 

“submission of the case to a jury,” the court “shall” discharge the juror and draw 

the name of an alternate. CrR 6.5. The rule further provides that, “after the jury 

retires to consider its verdict,” the court may either discharge or temporarily excuse 

alternate jurors. Id. When temporarily excusing a juror, the court “shall take 

appropriate steps to protect alternate jurors from influence, interference or 

publicity, which might affect that juror’s ability to remain impartial.” Id. The court 

may recall a temporarily excused alternate juror “at any time” and, when doing so, 

the trial court “may conduct brief voir dire before seating an alternate juror for any 

trial or deliberations.” Id. “If the jury has commenced deliberations prior to 

replacement of an initial juror with an alternate juror, the jury shall be instructed to 

disregard all previous deliberations and begin deliberations anew.” Id. Under the 
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plain language of the rule, the court’s discretion whether to voir dire a recalled juror 

about their continuing impartiality is triggered when they are recalled.

III

McGee argues that replacement of a seated juror with an alternate after the 

alternate had been temporarily excused, and without notice to the parties, was 

manifest constitutional error reviewable under RAP 2.5(a) notwithstanding 

McGee’s failure to object to proceeding in the trial court. 

The State acknowledges procedural error, noting that the “proper 

procedure” according to well-settled legal authority interpreting CrR 6.5, “is for the 

trial court to provide notice to the parties prior to seating an alternate juror.” See

State v. Chirinos, 161 Wn. App. 844, 849, 255 P.3d 809 (2011) (“The discretion 

conferred upon the trial court by CrR 6.5, however may be improperly exercised 

where the trial court does not provide notice to the parties prior to seating an 

alternate juror.”); Stanley, 120 Wn. App. at 318 (“trial court compounded the error 

by not seeking out the parties through counsel to obtain input before seating the 

alternate juror”); Ashcraft, 71 Wn. App. at 463 (“Although the decision to replace 

an initial juror with an alternate juror after deliberations have commenced rests in 

the sound discretion of the trial court, it does not follow that the parties have no 

right to notice and an opportunity for input before such discretion is exercised.”). 

However, the State contends that seating an alternate juror before the jury begins 

its deliberations is an “ ‘administrative matter,’ ” and further contends that the 

failure to adhere to the procedural notice requirement is not an error of 
No. 86619-2-I/6

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constitutional magnitude. (Quoting State v. Booth, 24 Wn. App. 2d 586, 610, 521 

P.3d 196 (2022), review denied, 1 Wn.3d 1006, 526 P.3d 849 (2023).)

Consistent with the State’s argument, we have previously permitted the 

substitution of jurors as an administrative matter during trial. See State v. Turpin, 

190 Wn. App. 815, 824-25, 360 P.3d 965 (2015) (replacement of seated juror with 

alternate juror, off the record, during trial did not violate the defendant’s right to a 

public trial); Booth, 24 Wn. App. 2d at 611 (replacement of seated juror with 

alternate during trial, without prior notice to the parties, was not a critical stage of 

the proceeding implicating the defendant’s right to counsel or right to be present). 

In Turpin and Booth, the court replaced seated jurors with alternate jurors during 

trial. Before a case is submitted to the jury, the trial court is required to discharge 

a juror who becomes unable to serve. CrR 6.5. 

Turpin and Booth are distinguishable. Here, evidence and argument had 

been completed and the case had been submitted to the jury, though deliberations 

had not yet begun. Thus, the situation in this case was not governed by the 

provision of CrR 6.5 covering discharge of a juror before submission of the case 

to the jury when the juror is unable to perform their duties. Further, unlike the jurors 

in Turpin and Booth, juror 1 had been temporarily excused. This triggered the 

requirement of CrR 6.5 that the trial judge “take appropriate steps to protect 

alternate jurors from influence, interference or publicity” because the juror was

temporarily outside the court’s direct oversight. This requirement protects the 

defendant’s constitutional “right to a fair trial before an impartial jury and to a 
No. 86619-2-I/7

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unanimous verdict.” Ashcraft, 71 Wn. App. at 463. Before a juror who has been 

temporarily excused is seated for any trial or deliberations, it is within the trial 

court’s discretion under CrR 6.5 whether to conduct a brief voir dire of the juror to 

ensure they have remained impartial and protected from outside influence. 

Chiranos, 161 Wn. App. at 849. This discretion “should be exercised only after 

giving notice to the parties, coupled with an opportunity to be heard.” Id. at 849-

50. As when a jury has already begun deliberations, notice and the opportunity to 

provide input when an alternate juror is recalled after a case is submitted to the 

jury “ensures that the defendant’s constitutional right to a trial by an impartial jury 

is adequately protected.” Id.

As we observed in Booth, replacing a seated juror with an alternate during 

the trial has no potential impact on the defendant’s right to an impartial jury, 

because at that point, the alternate juror has not yet been excused, or even 

impaneled on the final jury, and the jury selection process adequately protects the 

defendant’s right. Booth, 24 Wn. App. 2d at 610. But CrR 6.5 draws a clear line 

in providing an opportunity to inquire into an alternate juror’s continued impartiality 

when the court recalls an alternate juror who has been temporarily excused. There 

is no dispute that the alternate juror was recalled in the unusual circumstances of 

this case after the evidence and closing arguments had concluded and after the 

trial court had temporarily excused the alternate juror.
No. 86619-2-I/8

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The failure to provide notice and consult the parties before discharging a 

seated juror and recalling a temporarily excused alternate was an error of 

constitutional magnitude because it implicated McGee’s right to an impartial jury. 

And the constitutional implications in this case were compounded by the fact that 

the trial judge, who was unaware of the discharge of one juror and recall of an 

alternate until after the jury deliberated and reached its verdicts, did not exercise 

the discretion conferred by CrR 6.5 to determine whether to discharge the seated 

juror or whether any inquiry of the alternate was necessary. It is uncontroverted 

that these decisions were made by the court’s bailiff. 

Because the court failed to adhere to the requirement of notice and consider 

whether any inquiry of the recalled juror was necessary, the State bears the burden 

to establish harmless error beyond a reasonable doubt. See Ashcraft, 71 Wn. App. 

at 466. The State argues it has met this burden because the trial court later 

indicated that it would have discharged the original juror who called in sick, it 

appears that no deliberations took place in the absence of juror 1, and defense 

counsel agreed to continue the proceedings. But the State’s arguments do not 

address the purpose of the notice requirement to protect the impartiality of the jury. 

And it is not, as the State suggests, McGee’s burden to demonstrate that “the jurors 

that actually deliberated were somehow [partial].” The State provides nothing to 

demonstrate the recalled juror in fact remained free from outside influence, and, 

likely as a result of the unusual procedural events, the record does not permit us 

to discern that the recalled juror remained free from outside influence or that the 
No. 86619-2-I/9

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issue was considered. Thus, the record does not allow us to conclude that the 

error was harmless beyond a reasonable doubt. 

We reverse McGee’s convictions and remand.1

WE CONCUR:

 

1 Because the failure to provide notice requires reversal in these 

circumstances, we do not address the additional bases upon which McGee 

challenges the underlying proceeding or alleged errors related to McGee’s 

sentence.