### FILED JUNE 10,2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

COURT OF APPEALS, STATE OF WASHINGTON, DIVISION III STATE OF WASHINGTON, ) No. 29513-3-111 ) Respondent, ) ORDERGRANTING MOTION 

### ) FORRECONSIDERATION 

### v. ) AND AMENDING OPINION ) DATEDMay 6, 2014 MERLE WILLIAM HARVEY, ) 

### ) Appellant. ) THE COURThas considered appellant's motion for reconsideration ofthis court's decision ofMay 6, 2014, and havingreviewedthe records and files herein, is ofthe opinionthe motion should be granted inpart. Therefore, IT IS ORDERED, appellant's motion for reconsideration is herebypartially granted. IT IS FURTHERORDEREDthatthe opinion shall be amended by replacing footnote one onpage 2 withthe following: We do not separately address the SAG filings. Inhis supplemental SAG, Mr. Harvey raises public trial issues separate from those raised by counsel. However, the record does not showthat any ofthe closures claimedby Mr. Harvey occurred. Theremainingpro se arguments address trial matters ratherthan thejury selection issuesthat are the subject ofthis second appeal. Some ofthose arguments were madepreviously and all ofthemcould have beenraised earlier. In particular, wenote thatMr. Harvey had copies ofthejury instructions priorto filing his original SAG. Wedo not reviewthe trial issues inthis opinion. DATED: June 10,2014 PANEL: Jj. Korsmo, Fearing, Lawrence-Berrey FORTHE COURT:

### FILED MAY 6,2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, 

### ) ) No. 29513-3-111 Respondent, 

### ) ) v. ) ) :MERLE WILLIAMHARVEY, ) UNPUBLISHED OPINION ) Appellant. 

### ) KORSMO, J.

- Inthis secondreview ofMerle Harvey's convictions for first and second degree murder, along with two counts ofunlawfulpossession ofa firearm, we considerhis claims that his public trial and due process rights were violated duringjury selection. His arguments are resolved by our decision in 

### State v. 

### Love, 176 Wn. App. 911, 309 P.3d 1209 (2013). Accordingly, we once again affinn the convictions. PROCEDURAL HISTORY This courtpreviously affinnedthe convictions in anunpublished case 

### State v. 

### Harvey, noted at 167 Wn. App. 1026,2012 WL 1071234. Mr. Harvey, pro se, then successfully petitionedthe Washington Supreme Courttopenn

### it supplementation ofthe

### No. 29513-3-II1 State 

### v. Harvey



### record with a transcription ofthejury selection proceedings. The matterwas remanded to this court. We appointed new counsel for 

### Mr. Harvey and, afterreceipt ofthe transcript, the parties filed additional briefs addressingjury selection. Mr. Harvey filed additional statements ofadditional grounds (SAG).l Thejury selection transcript showed that 80jurors appeared forjury selection on September 

### 13. The court gave the preliminary instruction on only one occasion, a fact that suggests alljurors were in the courtroom atthe same time. Therecord also reflects that thejurors were given a questionnaire to fill out. Some ofthe prospectivejurors were questioned individually in the courtroom outside the presence ofthe otherjurors. One of thejurors mentioned that 

### it was possible to hearwhat was happening in the courtroom from out in the hallway. General voir dire ofthe entire panel commencedthe following morning with all jurors in the courtroom. Sevenjurors were struck during this period. After a brief sidebar conference,juror 

### 19 was struck due to thejuror'sprescheduled business trip. 

# ! f 1

### We do not separately address the SAG filings. 

### Mr. Harvey raises the same two arguments concerningjury selection that his counsel raised. As counsel has adequately briefed those arguments, we do not address Mr. Harvey's version ofthem. RAP 1O.1O(a). Theremaining pro se arguments address trial matters rather than thejury 

## I 

# I selection issues that are the subject ofthis second appeal. Some ofthose arguments were 

# I made previously and all ofthem could have beenraised earlier. We do notreview them in this action. f 

### 2 

# INo. 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 briefsidebar was held during the afternoon session when defense counsel objected to the prosecutor asking ajuror about

an instruction that had not been given. Another objection was heard at sidebar when the prosecutortook exception to defense counsel getting too case specific in his questions to theprospectivejurors. Another sidebar was held after somejurors expressed that they could not sit injudgment ofthe 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 thatjuror 78 hadbeen dismissed by stipulation during the interveninghours: THE COURT: Good morning. Please be seated. Where had we ended in terms ofthe 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: Andthen we had done the for causes. MR. AMES [defense counsel]: Yes, Your Honor. THE COURT: Sincethattime, we have also released No. 78 by stipulation. Is that correct, gentlemen? MR. MASON: Yes. MR. NAGY: Yes. Report ofProceedings at 297.



### 3No. 29513-3-III 

### State v. 

### Harvey

The venire was brought in to the courtroom and a sidebar was held to clear up confusion overthe exercise ofperemptory challenges. Theperemptory process then was conducted by counsel marking their challenges on ajuror sheet. Thejury selection process was then completed. ANALYSIS This appeal contends thatMr. Harvey's article I, section 22 right to a public trial

was violated by conductingportions of jury selection, including the exclusion of jurors at sidebar, in private. The defense also argues thatthese 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 ofcrimes theright"'to a speedy public trial by an impartialjury.'" 

### Love, 176 Wn. App. at 916. The right to a public trial is violated wheneverproceedings that are required to be "open"to the public are "closed." ld. Whether or not a particular aspect oftrial proceedings is requiredto be open to the public is determined by application ofthe "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 of jurors for cause at sidebar, the excusal of juror78 whenthe court apparently was not in session, the sidebar conferences

4No. 29513-3-III State v. Harvey during the peremptory challenge process, and the written exercise ofperemptory challenges. These challenges largely have beenresolved by

### Love. In

### Love, we declined to decide whether or not a sidebar conference constituted a closure ofthe courtroom. 176 Wn. App. at 917. Instead, applying the experience and logic test to the subject ofthe sidebar conference at issue there, we concluded that the action ofexcusingjurors 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 fourjurors were excused for cause at sidebar did not violate our constitution. Likewise, there was no public trial violation by the use ofa written peremptory challengeprocess. 

### Mr. Harvey's remaining arguments were not at issue in

### Love, and we now tumto them. With respectto 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 ofthe sidebar conference that determined whether the matter needed to be considered in public. 176 Wn. 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 alternatejurors. These matters, too, involve questions for the trialjudge and did not need public oversight.



### 5

### No. 29513-3-III State v. Harvey



### Under the experience and logic test, the subject matter ofthese sidebars did not implicate Mr. 

### Harvey's public trial right. The sole remaining issue was the decision to excusejuror 78 by stipulation ofthe parties offthe record. On this record, we do not know anything about when or where or how this occurred-whether at the end ofproceedings the night before,justprior 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 Wn. 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 of juror78. Mr. 

### Harvey has not established that any ofthe challenged actions violated his right to apublic trial. Right to be Present Mr. 

### Harvey also argues thatthe sidebar conferences and the off-the-record excusal of juror 78 violated his right to be present at all proceedings. The status ofthis record does notpermit us to consider these claims for the first time in this appeal. 6

### No. 29513-3-II1 State 

### v. Harvey



### We faced a similar argument inLove 

### and summarized the governing law in this

manner: A criminal defendant has a due process right to be present at all critical stages ofhis criminal trial. State 

### v. Irby, 

### 170 Wn.2d 874, 246 P.3d 796 (2011). This includes the voir dire and empanelling stages ofthe trial. Id. 

### at 883-84. However, Mr. Love did not contestthe use ofthe 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 iftherecord is sufficientto 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 prejudicedthe 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 

# I proceedings while sitting inthe courtroom whilethe sidebar conferences occurred a few 

# f 

# I feet away from him. Id. 

### n.9. 

# , We reach the same conclusion here. As to the sidebar conferences thatoccurred 

## I 

# I I on the record while he was in the courtroom andthe written peremptory challenges, Mr. Harvey has not shown that he was in some manner prejudiced. Accordingly, the allegation that he was not present is not manifest constitutional error. 

# I

7 

# I f**~** 

# I t

### 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 notedpreviously, this record does notprovide any information about how that occurred. For all thisrecord shows, the action may well have taken place in the presence ofMr. 

### Harvey or, perhaps, with his express blessing. There is absolutely nothing in the record to establish thatthis action occurred outside his presence. Forthis additional reason, too, we conclude this claim is not manifest constitutional error. Ifit is to be considered, it will have to be in the form ofa personal restraintpetition with appropriate documentation. E.g., State 

### v. Norman, 

### 61 Wn. App. 16,27-28,808 P.2d 1159 (1991). Mr. 

### Harvey'sright-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 ofthe panel has determined this opinion will not beprinted in the Washington Appellate Reports, but it 

### will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR:

# J--./2M.tA**~** A G 

# S . Fearing,

# K J.
8