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 ofMay 6, 2014, and having reviewed the records and files herein, is ofthe 

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 ofthe closures claimed by Mr. 

Harvey occurred. The remaining pro se arguments address trial matters 

rather than the jury selection issues that are the subject ofthis second 

appeal. Some ofthose arguments were made previously and all ofthem 
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:MERLE WILLIAM HARVEY, ) UNPUBLISHED OPINION 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 ofMerle 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 Wn. 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This court previously affinned the convictions in an unpublished case State v. 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 ofthe 
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 ofthe prospective jurors were 

questioned individually in the courtroom outside the presence ofthe 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 

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 

I selection issues that are the subject of this second appeal. Some of those arguments were 

I 

made previously and all ofthem could have been raised earlier. We do not review them 

in this action. 

f 2 

I 
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 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 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 ofProceedings 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 Wn. 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 

4 

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 Wn. 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 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 alternate jurors. 

These matters, too, involve questions for the trial judge and did not need public oversight. 

5 

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 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 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. 

6 

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 Wn.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 I 

proceedings while sitting in the courtroom while the 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 that occurred I 

I on the record while he was in the courtroom and the 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. 

7 

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 ofjuror 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~ A G S . 

Fearing, K J. 

8