IN CLERKS OFFICE This opinion was filed for record at

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# ~t--~.~ IIIAAEME COUR'i, STATE OFWASHINOTllN D!.TE 

### OCT 2 7

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INTHE SUPREME COURT OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, ) ) Petitioner, ) ) 

### v. ) ) KENNETH SLERT, ) ) Respondent. ) ---) No. 92310-8
EnBanc

Filed 

### OCT 27 2016
GONZALEZ, 

### J. -Kenneth Slert has been convicted three times of killing John Benson. His first two convictions were reversed on appeal. Potentialjurors in his third trial were given an initial written questionnaire in
an attempt to determine whether any knew ofSlert's prior convictions. Based onthe written answers and after a discussion in chambers and out of Slert's presence, fourjurors were dismissed. For the first time on appeal, Slert challenged his conviction on the grounds that the discussion in chambers violated his rightto be present at a critical stage ofhis own trial. We conclude Slert waived his right to raise his exclusion from the inchambers discussion by not raising it at trial. We also conclude that any
error was harmless beyond a reasonable doubt as it is plain the dismissedState v. Slert, No. 92310-8 

### jurors had disqualifying lmowledge ofSlert's prior convictions or disqualifying opinions about his guilt. Accordingly, we reverse the Court of Appeals and affirm his conviction. FACTS 

### A more complete recitation ofthe facts that led to this case can be found in State v. Slert, 181 Wn.2d 598, 600-02, 334 P.3d 1088 (2014) (Slert IV) (Gonzalez, J., lead opinion). Briefly, Slert and Benson met one night at
a hunting camp near Mount Rainier. After they drank together for a time, Slert shot and killed Benson. Slert has admitted from the beginning thathe killed Bensonbut has maintained it was in self-defense. Bythe time ofthe third trial, there was a real riskthat a potentialjuror would have heard about Slert's prior convictions and be biased against him. The prosecutor and defense counsel agreed they did not wantto risk such a potentialjurortainting the panel during voir dire (which could have necessitated dismissing the panel and calling a new one) by "blurt[ing] out, 'Oh, yeah, I read about that case and that guy should be hanging."' Verbatim Report ofProceedings (VRP) (Jan. 6, 2010) at 3-4. To limitthe risk, the court and counsel agreed to give thejurors a written questionnaire concerning their lmowledge of"priorproceedings" and any opinions they might have formed about the case. Clerk's Papers (CP) at 360-61. Based on

2State v. Slert, No. 92310-8 

### the potentialjurors' written answers, and after consultation with counsel inchambers, thejudge dismissed fourjurors in open court. 1 

### The completed questionnaires, the details ofthe in-chambers discussion, and the decision to have it in chambers are not part oftherecord before us. The clerk's minutes simply reflect that a "[p]retrial conference was held in chambers," CP at 194, and the record reports that "based on the answers" to the questionnaire, jurors 15, 19, 36, and 49 were dismissed, 1VRP (Jan. 25, 2010) at 5. Slert
was present when the fourjurors were dismissed but did not object, depriving the trial court ofthe ability to promptly remedy any error. Thejury found Slert guilty ofsecond degree murder. In 2012, the Court ofAppeals found thatthe in-chambers discussion about thejurors'
answers to the questimmaires violated both Slert's right to be present and the open public trial right guarantees ofour state constitution. State v. Slert, 

### 169 Wn. App. 766,769,282 P.3d 101 (2012), rev'd, 

### 181 Wn.2d 598. The Court ofAppeals spent the bulk ofits 2012 opinion analyzing the open public trial issue. Id. 

### at 771-79. The Court ofAppeals did not reach whether, standing
on its own,any violation ofSlert's right to be present was reversible error. In 2013, we accepted review ofthe open public trial issue, reversed, and

1While the record does notmake clear whether Sleti was present during the chambers' discussion, Slert asserts, and the State does not dispute, that he was not. 3State v. Slert, No. 92310-8 remanded backto the Court ofAppeals to determine what it had not reached before: whether the violation ofSlert's rightto bepresent was harmless. 

### Slert IV, 181 Wn.2d at 603-04, 609. In 2015, Court ofAppeals, via a split decision, found that the right to bepresent error was not harmless because two ofthe dismissedjurors were withinthe range ofthose who sat on the jury. 

### State v. Slert, 189 Wn. App. 821, 827, 831,358 P.3d 1234 (2015) (citing 

### State v. Irby, 170 Wn.2d 874, 886, 246 P.3d 796 (2011)). We accepted review again. Afterwe accepted review, butbefore oral argument, wereleased our opinion in

### State v. Jones, which found a defendanthad failed to preserve a right to be present claim bynot timely objecting to his exclusion from the selection ofalternatejurors. 185 Wn.2d 412, 427, 372 P.3d 755 (2016). After oral argument, we asked the parties to briefthe effect of

### Jones and the law ofthe case doctrine. We thank the parties for their supplemental briefing. ANALYSIS The criminal defendant's rightto bepresent is rooted in the Sixth Amendment to theUnited States Constitution; the due process clauses ofthe state and federal constitutions (U.S. CONST. amend. V; WASH. CONST. art. I, § 3); and article I, § 22 ofour own constitution. 

### UnitedStates v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d486 (1985) (citing

### Illinois

4State v. Slert, No. 92310-8



### v. Allen, 397 U.S. 337, 90S. Ct. 1057, 25 L. Ed. 2d 353 (1970); 

### Snyder v. Massachusetts, 291 U.S. 97, 54 S. Ct. 330, 78 L. Ed. 674 (1934), 

### overruled
on othergrounds byMalloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964)); 

### Irby, 170 Wn.2d at 884-85. Whether the defendant's right to be presenthas been violated is a question oflawwe review de novo. 

### Irby, 170 Wn.2d at 880 (citing 

### State v. Strode, 167 Wn.2d 222, 225, 217 P.3d 310 (2009)). Ifthe right is violated, we will reverse unless we are persuaded beyond a reasonable doubt that the error was harmless. 

### !d. at 886 (citing 

### State v. Caliguri, 99 Wn.2d 501, 508, 609, 664 P.3d 466 (1983)). "The core ofthe constitutional right to bepresent is the right to be present when evidence is beingpresented." 

### In re Pers. Restraintof Lord, 123 Wn.2d 296, 306, 868 P.2d 835 (1994) (citing 

### Gagnon, 470 U.S. at 526). "Beyondthat, the defendant has a 'right to bepresent at aproceeding whenever his presence has a relation, reasonably substantial, to the fulness ofhis opportunity to defend against the charge."' 

### !d. (internal quotation marks omitted) (quoting 

### Gagnon, 470 U.S. at 526). In

### Irby, weheld that the right to be present extended to an e-mail conversation about individualjurors' fitness to serve on the particular case. 

### Irby, 170 Wn.2d at 882. Under

### Irby (which was announced after Slert was tried for the third time), Slert had a right to be present during the discussion ofthe potential bias ofthesejurors.

5State v. Slert, No. 92310-8 But while Slert had a right to be present during the in-chambers discussion, he is not entitled to reliefifhe waived appellate review by not properly preserving the error he claims on appeal.2 See, e.g., Jones, 185 Wn.2d at 415; State v. Mason, 160 Wn.2d 910, 933, 162 P.3d 396 (2007). It has long been the rule in Washington that "'insofar as possible, there shall be one trial onthe merits with all issues fully and fairly presented to the trial court at that time so the court may accurately rule on all issues involved and con-ect errors in time to avoid unnecessary retrials.'" State v. Boast, 87 Wn.2d 447, 451, 553 P.2d 1322 (1976) (quoting Haslundv. City of Seattle, 86 Wn.2d 607, 614, 547 P.2d 1221 (1976)). We recognize there are cases, such as 

### Irby, where prompt objection can be excused based on the particular facts ofthe case. But this case is significantly ditTerent from 

### Irby. In

### Irby, the dismissal ofthejurors happened in an e-mail between thejudge and counsel. 170 Wn.2d at 884. There is no reason to thinkthat Irby knew about the e-mail or had a reasonable opportunity to object. Id. Here, by contrast, the dismissal happened in open court, in Slert's presence, directly after the

2 Slert suggests this issue is not properlybefore us because it was not raised by either party and was out ofthe scope ofour earlier remand to DivisionTwo. We respectfully disagree. "[T]his court has inherent authority to consider issues notraised by the parties ifnecessary to reach a proper decision."Alverado v. Wash. Pub. Power Supply Sys., Ill Wn.2d 424, 429, 759 P.2d 427 (1988) (citing Seigler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972)). We see no reasonAlveradowouid not extend to issues distinct from those within the scope ofan initial remand. 6State v. Slert, No. 92310-8 

### in-chambers conference he now complains of. Further, Irby 

### wasdecided on the medts, without consideration ofwhether any error was preserved. We recognize that Slert's attorney was complicit in any error made here, but we are not presented with an ineffective assistance ofcounsel claim (and indeed, it is difficultto imagine how agreeing to dismissjurors who knew one's client had previously been convicted ofthe same killing could be ineffective assistance). Instead, we are considering whether Slert is entitledto relieffor an alleged violation ofhis right to be presentthat he has raised for the first time on appeal. Wefmd he is not. This case is similar to State 

### v. Elmore, 

### where the defendant challenged the state's voir dire for the first time on appeal. 139 Wn.2d 250,277-78,985 P.2d 289 (1999). We found the challenged error
was unpreserved and declined to consider it. Id. 

### Similarly, in Jones, 

### we recently found untimely a defendant's claim that his right to be present was violated when he was notpresent for the selection ofalternatejurors. Jones, 

### 185 Wn.2d at 426. There, the defendant raised tl1e claim for the first time in
a motion for a new trial. We found that by waiting, the defendant waived the claim. Id. 

### The failure to timely objectprevented the trial court from mending any error and creating a clear record for the appellate court to

7State v. Slert, No. 92310-8 review. As inElmore andJones, wefind Slert waived consideration ofany
error. 3Weturn now to whether any violation ofSlert's right to bepresent
was harmless beyond a reasonable doubt given the record before us. We find that it was. Itis properly the role ofthe trialjudges to excuse potential jurors who havebiased opinions or feelings about the case they are asked to decidebeforebeing called to the jury. 13 RoYCE A. FERGUSON, JR., WASHINGTONPRACTICE: CRIMINALPRACTICE ANDPROCEDURE§ 4109, at 205 (3d ed. 2004). Thejudge need not wait for theparties to challenge such jurors. "Ifthejudge after examination ofanyjuroris ofthe opinionthat grounds for challenge are present, he or she shall excuse thatjuror from the trial ofthe case." CrR 6.4(c)(1); see State v. Roberts, 142 Wn.2d471, 519,

3 The dissent asserts that "ourcases establish that constitutional rights require a knowing, voluntary, and intelligent waiver." Dissent at 3. None ofthe cases cited bythe dissent support this broad assertion, and we :find none. Certainly, some constitutional rights can onlybe relinquishedby a knowing, vohmtary, and intelligent waiver, but our courts have considered the individual constitutional right at issue, not constitutionalrights as some sort ofundifferentiated mass. Themostthathas been said is that "[i]n general, constitutional rights may onlybe waivedby !mowing, intelligent, and voluntary acts," but no actuarial accounting ofrights were made in the opinion. State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994) (citing City of Bellevue v. Acrey, 103 Wn.2d 203, 208- 09, 691 P.2d 957 (1984)). We are skeptical that the proposition offeredbythe dissent is entirely accurate. We do not demand a full colloquy with the benchto assure the waiver is knowing, voluntary, and intelligentbefore a defendant waives the right to testify; or waives the right to remain silent; ordeclines to confront one ofthe state's witnesses; or extends the speedytrial deadline. But regardless, the question we decide is not whether Slert waived anyright to bepresent while thejurors' answers to the questionnaires were discussed. The question is whetherhe waived review ofthat claim oferror. 8State v. Slert, No. 92310-8 14 P.3d 713 (2000) (noting trialjudge did not err by dismissingjuror for
cause without waiting for defendaht's voir dire). "Criminal defendants have
a federal and state constitutional right to a fair and impartialjury." 

### State v. Irby, 187 Wn. App. 183, 192-93,347 P.3d 1103 (2015) (citing 

### Taylor v. Louisiana, 419 U.S. 522, 526, 95 S. Ct. 692, 42 L. Ed. 690 (1975)), 

### review denied, 184 Wn.2d 1036 (2016). "Atrialjudge has an independent obligation to protect that right." 

### !d. at 193 (citing 

### State v. Davis, 175 Wn.2d 287, 316, 290 P.3d 43 (2012)). Thus,jurors who have actual or implied bias should be excused by thetrial court. CrR6.4(c)(2); RCW 4.44.170; 

### Irby, 187 Wn. App. at 197. Parties are not required to challenge suchjurors for cause, thoughthey certainly should. 

### See CrR 6.4(c). Once the trialjudge concludes ajurorhas formed an opinion that could prevent impartial judgment ofthe facts, the trialjudge should excuse thatjuror. 

### !d. Our Court ofAppeals recently found it was reversible manifest constitutional error for the trialjudge to fail to excuse ajurorwho demonstrated actual bias during voir dire despite the lack ofa contemporaneous objection. 

### Irby, 187 Wn. App. at 193. The questionnaire at issue here began by informing thejurors ofa few salient facts: Kenneth L. Slert is charged with one count ofMurder in the Second Degree stemming from an incident that occurred up near Mt. Rainier
9State v. Slert, No. 92310-8 National Park on 10/24/00 in Gifford Pinchot National Forest. There have been a number ofprior proceedings in this case whichwere reported by both the newspapers and the radio, since October 2000 and most recently in late 2009. Itis alleged thatMr. Slert shot and killed Jolm Benson while both were hunting. CP at 360. In relevant part, thejurors were then asked: 

### 2. Have you heard or read aboutthis case from any source whatsoever?


### 7. What do you believe you know aboutthis case?
... 

### 8. Have you formed an opinion or feeling about this case whatsoever?



### 9. Ifyou have formed any such opinions or feelings, please indicate those opinions and/or beliefs: CP at 360-61. Space was provided to answer the questions. Id. After the in-chambers conference, thejudge went back into open court and stated on the record that "based onthe answers" to the questionnaire and "after consultation with counsel,"jurors 15, 19, 36, and 49 were excused. 1VRP (.Tan. 25, 2010) at 5. While questionnaires completed by those fourjurors are not part of the record before us, we know the conclusion thejudge, the prosecutor, and the defense counsel reached upon reviewing their answers. Counsel and the trialjudge concluded thatthose fourjurors should be excused. We may thus

10State v. Slert, No. 9231

## o ..g reasonably infer that the fourjurors had disqualifying opinions or feelings about the case. While the evidence we have is circumstantial, as we tell everyjury in everyjury trial, "[t]he law does not distinguish between direct and circumstantial evidence in terms oftheir weight or value in finding the facts in this case. One is notnecessarily more or less valuable than the other." 11 WASHINGTON PRACTICE: WASHINGTON PATTERNJURY INSTRUCTIONS: CRIMINAL 5.01, at 181 (4th ed. 2016); 6 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 1.03, at 29 (6th ed. 2012). Itis logic, not conjecture, that allows us to draw reasonable inferences from the record. Further, the lack ofa timely objection itselfis strong evidence that Slert and his counsel "did not perceive any prejudicial
error until after receiving an unfavorable verdict." 

### Jones, 185 Wn.2d at 426- 27 (citing 

### State v. Williams, 96 Wn.2d 215,226,634 P.2d 868 (1981)). Since thejurors must have had disqualifying opinions or feelings about Slert's case, we conclude that excluding them was harmless beyond a reasonable doubt.4

4The dissent seems to suggestthatIrby created an exclusive,**m~merical** impossibility test to determine ifa violation ofthe defendant's right to be present was harmless beyond a reasonable doubt. Dissent at 4-5. We find no such exclusive test inIrby. Certainly, in Irby, the court considered whether it was possible thejurors excluded out oflrby's presence could have been seated onthejurybased on theirjurornumbers. 170 Wn.2d at 886. Butthat consideration was based on the facts ofthat case; it did not establish the exclusive method to test whetherthe error was harmless. 11State v. Slert, No. 92310-8 Finally, we turn to whether the law ofthe case doctrine prevents our consideration ofwhether any error was preserved. We find that it does not. Relevantly, "the doctrine provides where there has been a determination of applicable law in a prior appeal, the law ofthe case doctrine ordinarily precludes an appeal ofthe same legal issue." 

### Roberson v. Perez, 119 Wn. App. 928, 931, 83 P.3d 1026 (2004). Whether Slertpreserved review ofthe
error has not been finally determined by any court until now. Further, this courthas. authority to reach any issue necessary to ajust disposition. 

### Alverado, 111 Wn.2d at 429 (citing 

### Seigler, 81 Wn.2d 448). The law ofthe
case doctrine does not prevent our review. CONCLUSION We hold that Slert has notpreserved his right to be present challenge and that the law ofthe case doctrine does not bar our review. We also hold that any error was harmless beyond a reasonable doubt. Accordingly, we
reverse the Court ofAppeals and reinstate Slert's conviction.

12State v. Sf.ert, No. 92310-8

WE CONCUR:

# ~Jvvws+,Q.

13State v. Slert (Kenneth Lane)

No. 92310-8 JOHNSON, J. (dissenting)-The majority confuses and conflates two independent and separate principles: constitutional waiver and failure to preserve
error. Compoundingthis, the majority applies the wrong standard ofreview and concludes this "waived" and "unpreserved" error is harmless. Majority at 1, 7. The Court ofAppeals correctly concluded Kenneth Slert's constitutional right to presence was violated andnot harmless, and should be affirmed. As the majority correctly recognizes, the Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to be present at all "critical stages" ofa criminal proceeding. Rushen v. Spain, 464 U.S. 114, 117, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) ("Our cases recognize thatthe rightto personal presence at all critical stages ofthe trial
... [is a] fundamental right[] ofeach criminal defendant."). Likewise, article I, section 22 ofthe Washington Constitution confers the accused withthe right to "appear and defend in person" during criminal prosecutions. Collectively, these provisions protect aState v. Slert (Kenneth Lane), No. 92310-8 (Johnson, J., dissenting) defendant's right to be present during critical stages oftrial. The majority correctly recognizes the constitutional nature ofthe errorhere, yet fails to follow our cases analyzing this exact error. More troubling is the majority's apparent recognition of
ourprior case holdings, without explanation or analysis ofwhat new rule, ifany, is being crafted. In

### State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011), we analyzed boththe FourteenthAmendment due process right underthe United States Constitution and the article I, section 22 rightto presence under the Washington Constitution. 

### Irby highlighted at least one difference betweenthe federal and state constitutions: "Unlike the United States Constitution, article I, section 22 ofthe Washington Constitution provides an explicit guaranty ofthe right to be present."

### Irby, 170 Wn.2d at 884. The

### Irby courtrecognizedthat "[a]s early as 1914," the state constitution granted the accusedthe right to appear and defend themselves at every stage ofthe trial where the defendant's substantial rights may be implicated. 

### Irby, 170 Wn.2d at 885. We held: Jury selection is unquestionably a "stage ofthetrial" at which a defendant's "substantialrights may be affected," and for thatreason we do not hesitate inholdingthat Irby's absence from a portion of jury selectionviolated his right to "appear and def(md inperson" under article I, section 22 as well as the due process clause ofthe Fourteenth Amendment. 

### Irby, 170 Wn.2d at 885.

2State v. S/ert (Kenneth Lane), No. 92310-8 (Johnson, J., dissenting) Inthis case, a portion of jury selection was conducted in chambers, without the defendant's presence, violating his constitutional rights, and as the Court of Appeals concluded, a newtrial is required. The majority confuses the applicable standard ofreview. Our cases establish that constitutional rights require a knowing, voluntary, and intelligent waiver. 1See State v. Thomas, 128 Wn.2d 553, 558, 910 P.2d 475 (1996) (analyzing a defendant's waiver ofhis right to testify); State v. Stegall, 124 Wn.2d 719, 724-25, 881 P.2d 979 (1994) (analyzing a defendant's waiver ofhis right to ajury); State v. Wheeler, 108 Wn.2d 230,237-38,737 P.2d 1005 (1987) (analyzing a defendant's waiver ofhisright to remain silent); City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957 (1984) ("A waiver ofcounsel must be knowing, voluntary, and intelligent, as with any waiver ofconstitutional rights." (citingArgersingerv. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972))). Nowhere inthis record is evidence supporting a constitutional waiver. The majoritythen focuses on cases requiring any error to be "preserved" by objections at trial.

1In note 3, the majority asserts thatwe do not demand a full colloquy withthe benchto assure that waivers are knowing, voluntary, and intelligent. The majority misses the point: the requirement is that constitutional rights require a knowing, voluntary, and intelligent waiver, not that it be conducted onthe record with a full colloquy. 3State v. S/ert (Kenneth Lane), No. 92310-8 (Johnson, J., dissenting) The majority cites Elmore in support ofits analysis. Majority at 7 (citing State v. Elmore, 139 Wn.2d 250, 277-78, 985 P.2d 298 (1999)). Elmore involved a challenge to thepropriety ofthe prosecutor's in-court questioning during voir dire, where no objections were raised. Elmore correctly characterized the issue as procedural in nature, not constitutional, correctly concluding the lack ofobjection precluded review. Elmore provides no support here. Next, State v. Jones, 2 cited and relied onby the majority, does not hold otherwise. In that case, we held the defendant's right to a public trial, factually,
was not violated where during a recess, arandom drawing of jurors was conducted. Although the rightto presence was discussed, that discussion was in the context of the court having already concluded no constitutional closure occurred. SinceJones did not involve a constitutional claim, the analysis ofpreservation oferror correctly appliedthe nonconstitutional analysis. Jones cannotberead as establishing a newrule applicable outside its context. Such a newrule would require overruling cases and establishing and applying the applicable constitutional analysis-somethingthat cannot be found anywhere in the Jones opinion.3

2 185 Wn.2d 412, 372 P.3d 755 (2016).
3 The majority seems to embrace a preservation oferror standard our cases have rejected. See State v. Paumier, 176 Wn.2d 29,288 P.3d 1126 (2012) (article I, section 22 public trial analysis). 4State v. Slert (Kenneth Lane), No. 92310-8 (Johnson, J., dissenting) 

### Then, the majority apparently embraces a new constitutional harmless error rule, without acknowledgment. In

### Irby, we held it was the State's burden to prove the violation to the defendant's constitutional rights was harmless beyond a reasonable doubt. The 

### Irby court found that the State could not meet this burden "becausethe Statehas not and cannot showthatthree ofthejurorswho were excused in Irby's absence, namely,jurors 7, 17, and 23, hadno chance to sit on Irby'sjury." 

### Irby, 170 Wn.2d at 886. Based on

### Irby, the Court ofAppeals here held that the State could notprove beyond a reasonable doubt thatthe violation to Slert's right to be present was harmless. The courtkeyed in on the fact that not only was there no record to review, but also that some ofthe excusedjurors could have been impaneled on Slert'sjury. Stated inversely, the State could not prove there was no chance that
some ofthe excusedjurors wouldhave sat on thejury. Based on this, the Court of Appeals correctly held that the error could not be harmless beyond a reasonable doubt.The majority here claims that "circumstantial" evidence tells us the completedjuror questionnaires plainly meantthejurors musthave "had disqualifYing opinions or feelings about Slert's case." Majority at 11. This is impossibleto know, obviously, because no record exists to supportthe majority's conjecture.
5State v. Slert (Kenneth Lane), No. 92310-8 (Johnson, J., dissenting) 

### The majority's conclusion is based on speculation, not the record's evidence. The Court ofAppeals should be affirmed.

6