u» ^H' STATE OF WASHINGTON, ] No. 67926-1-1 

### Respondent, ] DIVISION ONE kO copv. KRJSTOPHER PEDERSON, UNPUBLISHED OPINION ADDellant. > FILED: Auaust19. 2013 

### Spearman, J. —Any impairmentof a party's rightto exercise a peremptory 

### challenge constitutes reversible errorwithoutashowing ofprejudice. Here, thetrial court denied Kris Pederson the additional peremptorychallenges he was entitled to under CrR 6.5. Becausethe record does not show Pederson knew of and intentionally 

### andvoluntarilyrelinquished hisrightto theadditional peremptory challenges, we reverse hisconvictionsfor second degree assault andfelony harassment, andremand for further proceedings. FACTS 

### Kris Pederson was living in the home ofMarlene Mirante. AfterMarlenebecame 

### ill and wasliving in a health carefacility, Marlene's adultdaughterTeresa,MiranteNo. 67926-1/2

wanted Kris to move out ofher mother's home. Teresa did not live in the home; she 

### lived withher boyfriend Donald Pederson, who is Kris Pederson's brother. On October24, 2010, Donald and Teresa argued with Krisat Marlene's home and told Kris he needed to move out. The next day, Kris went to Donald's home. 

### According to Donald, Kris pulled out a gun, lowered his sunglasses, and said "[y]ou're a fucking dead man." Verbatim Report ofProceedings (VRP) 9/14/11 at49. As Donald

ran back into the house, he heard Pederson fire a shot. id. at 43-44. When the police arrived Pederson had fled. Two weeks later, on November 7, 2010, Donald received a call from Pederson, 

### who told Donald, '"Don't bothermoving, because I'ma very good shotwith my highpowered rifle. And before Ikill myself, I'm going to take you and Teresa out'." ]d. at76. Pederson was arrested after he was pulled over in eastern Washington. He was 

### intoxicated and had two guns inthe car. Pederson gave a recorded statementto detectives. Inthe statement, Pederson states multiple times that he intended to "scare"
his brother with the shot. 

### The State charged Pederson with four counts: attempted first-degree murder of Donald inthe firstdegree for shooting the gun; first-degree burglary forentering Donald's home afterthe shooting; felony harassment against Donald; and felony harassment against Teresa. At trial, Pederson advanced a diminished capacity defense based on his serious depression and alcohol consumption. He also requested and received a voluntary intoxication instruction.No. 67926-1/3
Thejury found Pederson guilty ofthe lesser offense of second degree assault 

### while armed with a deadly weapon, and of felony harassment against Donald, but found him not guilty ofthe burglary or felony harassment against Teresa. Pederson appeals.
DISCUSSION Speedy Trial. Pederson argues in both his opening brief and his statementof additional grounds that he was deprived of his CrR 3.3 right to a speedy trial because 

### the speedytrial expiration date was originallyApril 24, 2011, but his trial did not begin until September 1, 2011. We disagree. On March 14, 2011, defense counsel and the prosecutorjointly requested a 

### continuance. Although Pederson objected, the speedy trial right withinthe framework of CrR 3.3 is statutory only, and defense counsel may waive it, even "overdefendant's objection, to ensure effective representation and a fairtrial." State v. Finch, 137 Wn.2d 792, 806, 975 P.2d 967 (1999). Here, the continuance was granted because both defense counsel and the prosecutor had previously scheduled vacations, and because defense counsel indicated she was waiting forforensic evidence and needed additional time to prepare the case. As such, the trial courtdid not abuse its discretion in moving the trial date to May 9, 2011. 

### On May 5, 2011, the parties filed anotherjoint motion to continue the trialdate. The reason forthisjoint motion was that Pederson had recently added a voluntary intoxication defense, and was waiting on an expert report. The record shows Pederson
was presentwhen thisjoint motion was presented to thejudge and that he agreed toNo. 67926-1/4


### this continuance. On May 24, 2011, defense counsel moved for anothercontinuance, this time to accommodate preplanned training. Again, the record shows Pederson was present incourtwhen the motion was presented, and that he agreed to the continuance. 

### Given Pederson agreed to these continuances, the trialcourtdid not abuse its discretion in granting them. At this point, the trialwas scheduled to start on June 28,
2011. 

### On June 28, 2011, defense counsel sought another continuance, this time because the defense mental health expert, who examined Pederson, was not available 

### to testifyuntil August 9. The State did not object to the continuance, butasked that the court permit the Stateto seek another continuance, should the newtrial date conflict with the availability of the State's witnesses. Pederson agreed to this continuance, 

### including the State's caveat. Thetrial court thus did notabuse its discretionin moving the trial date to July 25, 2011. 

### On July 25, 2011, the State soughtto continue the trial date to August 10, 2011 

### largely because one of the primarydetectives was not available totestify. Pederson objected. Given Pederson had previously agreed, however, that the State couldseek this continuance should a witness be unavailable, the trial court did not abuse its 

### discretionin granting the continuance. The trial was thus scheduledfor August 10and the speedy trial expiration was September9. 

### On August 9, 2011, the State again soughta continuance to accommodate detective availability. Pederson objected. The trialcourtdenied the requestto the extentNo. 67926-1/5

the State sought to extend speedy trial, but moved the trial date to September 1, still within the September9 speedy trial expiration. Given that the trial court's ruling did not extend the speedy trial expiration, and that trial began on September 1, the trial court's ruling was not an abuse ofdiscretion. In sum, the trial court did not abuse its discretion in any of its rulings relating to continuances, and Pederson's right to a speedy trial was not violated. We reject his arguments on this issue. Admission offirearm evidence. Pederson next argues that the trial court erroneously denied his request to prohibit admission ofevidence that he possessed firearms when he was pulled over by the police. He contends admission ofthis evidence


### was overly prejudicial, leading thejury to believe he had a propensity toward violent acts. We disagree. Pederson cites State v. Freeburg, 105 Wn. App. 492, 20 P.3d 984 (2001) forthe proposition that evidence ofweapons is highly prejudicial. But in Freeburg. the defendant's possession of a loaded handgun bore no relevance to the crime, and was instead admitted supposedly as evidence of"flight." Freeburg, 105 Wn. App. at497. Bycontrast in this case, Pederson was charged with assault by shooting a gun at his brother, and with felony harassment bythreatening to shoot his brotherwith a "high-powered rifle." Adetective testified thatthe spent bullet found at Pederson's brother's house was "[m]ost likely" from a revolver. 9/15/2011 VRP at 128. The fact that Pederson was arrested with a revolver and a rifle was thus highly probative and related directly to the charged crimes.No. 67926-1/6 Additionally, the evidence in Freeburg was that the defendant did not possess the weapons untilthree years afterthe crime. kJ. at 501. Bycontrast, the revolver and rifleat issue here were foundjusttwo weeks afterthe assault and one day afterthe felony harassment. These facts are more similarto State v. Barnes, 158 Wn. App. 602, 

### 243 P.3d 165 (2010), where we held that evidence the defendant possessed a gun two hours afterthe crime was relevant and admissible, given the charged crime was felony harassment, which requires proofof a "'true threat.'" Barnes, 158 Wn. App. at 610. Underthese circumstances, the trial court did not abuse its discretion inadmitting evidence that Pederson possessed guns when he was arrested. To-convict instruction. Pederson next argues that the felony harassment toconvict instruction relieved the State of its burden of proof, inthat the instruction did not include a definition ofa "true threat," which Pederson contends is an essential element ofthe crime. We disagree. After Pederson submitted his opening brief, the supreme court decided this very issue and rejected Pederson's argument, holding that the definition ofa "true threat" is not an essential element that needs to be included in an information orto-convict instruction. State v. Allen, 176 Wn.2d 611, 294 P.3d 679 (2013). We likewise rejectthe argument. Statement ofAdditional Grounds. In his pro se statement of additional grounds,
as well as in numerous letters to the court, Pederson advances an argument involving the recording of his confession to a detective. The gravamen of his argument is that when the State played his recorded confession to thejury, it did not play the whole tape,No. 67926-1/7
but instead played something thatwas edited and cut short. From this premise, Pederson alleges thatthe prosecutorperjured herselfand that the trial court deprived him of a fair trial by failing to enforce court rules about completeness ofevidence. We conclude his arguments are without merit. As a preliminary matter, Pederson does not describe what he believes was missing from the portion ofthe tape not played to thejury, nor does he describe how the alleged missing portion prejudiced him. The State's response to Pederson's statement ofadditional grounds speculates that perhaps the trial prosecutor stopped the tape early so as not to permitthejury to hear Pederson invoke his right to silence or counsel. However, we granted Pederson's requestto supplementthe record with the recording, and nowhere on the tape does Pederson ask 

### forcounsel or invoke his right to silence. Infact, he very clearly waives those rights at 

### the beginning of the interview. Given Pederson has not demonstrated that the State played an edited version of his confession, and given he has not explained his alleged 

### prejudice even ifthe State had played an edited version, we reject his arguments on this
issue. Examination ofrevolver. Pederson next argues in his statementofadditional 

### grounds that he was deprived of his right to a fair trialwhen the trial courtgranted the state's request to have a detective examine the revolverto see ifPederson's story about an accidental firing was plausible. According to Pederson, the trial courtwas 

### required to appoint a "neutral" expertto examine the gun, as opposed to a witness of the State. We disagree. Pederson provides no authority in supportof his argument.No. 67926-1/8 

### Moreover, the only reason the State asked to have the gun examined was because Pederson provided surprise testimony that he had fired the gun accidently by brushing his finger against the trigger. This differed from both Pederson's theories ofdiminished capacity and voluntary intoxication, and Pederson's confession, wherein he stated he fired the gun for the purpose ofscaring his brother. Evidence ofintoxication. Pederson also argues in his statementofadditional grounds that the trial courterred by permitting the arresting officerto testify about Pederson's intoxication when he was pulled over. We reject this argument. Not only did Pederson fail to objectto this testimony below, it is clearthat counsel did not object because itwas beneficial to Pederson's theory ofthe case: i.e., that he could not form the requisite intent because of a diminished capacity resulting from depression and alcohol intake. Denial of Peremptory Challenges. CrR 6.5 provides that "each party shall be entitled to one peremptory challenge for each alternatejurorto be selected." It is undisputed thatthe trial court here failed to provide the parties with the mandatory additional peremptory challenges for alternatejurors. The only issue here is whether, as Pederson argues, underWashington case law, the erroneous denial ofperemptory challenges is not subjectto harmless error analysis and requires reversal. We agree with Pederson, reverse his convictions, and remand forfurther proceedings. In State v. Evans, 100 Wn. App. 757, 998 P.2d 373 (2000), the trial court rejected the defendant's explanations for seeking to use a peremptory challenge to strike a

8No. 67926-1/9

person ofcolorfrom thejury, and thejurorwas empanelled. We held the trial court erred by even asking for a race neutral explanation for the peremptory challenge because no prima facie case ofpurposeful discrimination existed. Evans. 100Wn. App. 

### at 768-69. Regarding the remedy forthe error, we held that "[a]nyimpairmentof a party's right to exercise a peremptory challenge constitutes reversible errorwithout a showing ofprejudice." Evans, 100Wn. App. at 774. 

### OurSupreme Court adopted this analysis inState v. Vreen, 143 Wn.2d 923, 26 P.3d 236 (2001). Inthat case, the defendant soughtto use a peremptory challenge 

### againstthe onlyAfrican American on the panel. When the trial court asked defense counsel to provide a nondiscriminatory reason forthe challenge, counsel replied that 

### because the jurorwas a pastorand retired from the military, he may have had an "authoritarian mindset," and may have given more creditto the State's arguments. Vreen, 143 Wn.2d at 926. The trial court found this reason to be inadequate, and the 

### juror saton thejury that convicted Vreen. 

### On appeal, the Supreme Court framed the issue as "whetherthe erroneous denial of a peremptory challenge can ever be harmless when the objectionablejuror 

### actually sits on the panel that convicts the defendant." Id. at 931. The court explained thatthe nature ofperemptory challenges makes a harmless error analysis nearly impossible because, "short oftapingjury deliberations," there would be no way of 

### knowing howthe error affected the outcome of a trial. Id. For this reason, the Supreme Court agreed with our opinion inEvans, and held that "*[a]ny impairment of a party'sNo. 67926-1/10 right to exercise a peremptory challenge constitutes reversible errorwithout a showing ofprejudice." Vreen, 143 Wn.2d at 931 (quoting Evans, 100Wn. App. at 774). The State concedes that the erroneous denial of a peremptory challenge is not subject to harmless error analysis. See Response Briefat 20. The State argues, however, that Pederson waived the issue by failing to object. The purpose ofthe rule requiring a timely objection in orderto preserve an errorfor appeal is to give the trial court an opportunity to correctthe error. See State v. Fagalde, 85 Wn.2d 730, 731, 539 P.2d 86 (1975) ("in orderto preserve error, counsel must call the alleged errorto the court's attention at a time when the error can be corrected"). Here, although both the State and defense counsel attempted to persuade the trial courtto provide additional 

### peremptory challenges, the court rule was nevermentioned, nor was the case law holding denial ofperemptory challenges is reversible error. In fact, defense counsel specifically indicated she had no position as to whetherthe denial of a peremptory was 

### error: "in myexperience, most courts — not to say if it's right or wrong —add additional peremptories[.]" (VRP) 9/8/11 at 19. Underthese circumstances, we cannot say that defense counsel called the error to the attention ofthe trial court. Nevertheless, we decline to hold that Pederson waived his right to additional 

### peremptory challenges under CrR 6.5. Waiver "ordinarilyapplies to all rights or privileges to which a person is legally entitled" and "isthe intentional and voluntary relinquishment of a known right[.]" Dombroskvv. Farmers Ins. Co., 84 Wn. App. 245, 255, 928P.2d 1127 (1996^: see also Wagnerv. Wagner, 95Wn.2d94, 102,621 P.2d

10No. 67926-1/11 

### 1279 (1980) ("Waiver is the intentional relinquishment of a known right"). Waiver is a matterof intention, cannot be inferred from oversight or negligence, and the burden of 

### demonstrating waiver is on the person asserting a righthas been waived: [Waiver] may resultfrom an express agreement, or be inferred from circumstances indicating an intentto waive. Thus waiver is 

### essentially a matter of intention. Negligence, oversight or thoughtlessness does not create it. The intention to relinquish the right or advantage must be proved, and the burden is on the party claiming waiver. 

### Dombroskv. 84 Wn. App. at 255. (Internal citations omitted). Here, the circumstances do not show Pederson knew of or had any intent to waive his right to additional peremptory challenges. Indeed, the conduct of all parties indicates otherwise. Beforejury selection, the trial court indicated the parties would not receive additional peremptory challenges for alternatejurors. When the prosecutor asked why the parties would not receive an additional peremptory for each alternate, the court explained that since the alternate was not being designated until the end ofthe trial, "we don't know who willbe the alternate, so Idon't add a peremptory for that. So there'll be six peremptories" for each side, even though 14jurors would be empanelled, id. at 7. Both defense counsel and the prosecutor made itclearthey found the procedure troublesome. The prosecutorexplained she expected to receive one additional peremptory for each alternate, and let the court know this was the practice ofother judges, id. at 6, 19. Defense counsel asked ifthe court would at least permit one additional peremptory for the two alternates seated. The court agreed to permit one

11No. 67926-1/12
additional peremptory for the two alternates. When the time came to exercise peremptory challenges, however, there were only 26 potentialjurors remaining in


### veneer afterfor-cause challenges and hardship dismissals. Defense counsel then asked the trial courtto add one additional peremptory by reducing the number ofalternates 

### from two jurors to one. The trial court declined. The prosecution asked the court to bring insome additional prospectivejurors so that each party would retain the right to strike
an alternate. The court again declined. Instead, the court ruled that each side would receive "only six peremptories. Ithink Ihave discretion to do that." id. at 43. Nothing inthis series ofevents indicates Pederson knew ofand then 

### intentionally and voluntarily relinquished his right to additional peremptory challenges. To the contrary, from the repeated attempts to secure additional peremptory challenges, the record makes itclearthat Pederson had no intentto voluntarily relinquish them. As such, we reject the State's argument that Pederson waived his rights under CrR 6.5,
reverse Pederson's convictions, and remand for further proceedings. Pederson's correspondence to this court. During the course ofthis appeal, Pederson has sent numerous letters addressed to this court. We have reviewed his correspondence. Our commissioner addressed several of his requests for relief, including his requestfor new appellate counsel. Some of his correspondence relates to the substantive issues previously discussed above, and we decline to address them further. To the extent Pederson's remaining correspondence again requests new appellate counsel, we deny that request. Pederson has not shown new counsel was

12No. 67926-1/13 

### warranted, and the matter is moot given counsel submitted briefing. To the extent Pederson's correspondence asks this courtto supplementthe record withthe recording of his interview with detectives, that issue is also moot because we have already granted his motion to supplementthe record with the recording. To the extent Pederson's correspondence contains other requests for relief, we deny them in light of

our decision. We reverse Pederson's convictions and remand for further proceedings.

WE CONCUR: 

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