State v. Irby

Decision Date27 January 2011
Docket NumberNo. 82665–0.,82665–0.
PartiesSTATE of Washington, Petitioner,v.Terrance Jon IRBY, Respondent.
CourtWashington Supreme Court

OPINION TEXT STARTS HERE

Erik Pedersen, Skagit County Prosecutor's Office, Mount Vernon, WA, for Petitioner.David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, for Respondent.ALEXANDER, J.

[170 Wash.2d 877] ¶ 1 We granted the State's petition for review of a decision of the Court of Appeals to reverse Terrance Irby's convictions of first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. The Court of Appeals held that the trial court violated Irby's right to be present at trial by conducting a portion of the jury selection process by e-mail in Irby's absence. The State contends that Irby did not have a right to be present at this proceeding and that, even if he did have the right, any violation of the right was harmless. We hold that the trial court violated Irby's rights under the constitutions of the United States and the State of Washington to be present during the entire jury selection process and that the violation was not harmless. Accordingly, we affirm the Court of Appeals.

I. Facts and Procedural History

¶ 2 The Skagit County Prosecuting Attorney's Office charged Irby in Skagit County Superior Court with first degree burglary and first degree murder with aggravating circumstances or, alternatively, first degree felony murder. The charges arose out of the bludgeoning death of James Rock. Shortly before trial, the State and Irby agreed to the trial court's suggestion that neither party needed to attend the first day of jury selection, Tuesday, January 2, 2007. At that time, according to the trial judge, prospective jurors (hereinafter “jurors”) would simply be given a juror questionnaire to complete and would take the necessary oath. Both parties were, however, expected to appear and begin the questioning of jurors on the following day. At the time the parties agreed to the schedule proposed by the trial court, there was no suggestion that any jurors might be removed from the panel before questioning took place in open court beginning on January 3.

¶ 3 On January 2, according to the agreed schedule, jurors were sworn and given a questionnaire. After all the jurors submitted filled-out questionnaires, the trial judge sent an e-mail to the prosecuting attorney and Irby's counsel that suggested that certain jurors be removed from the panel. The e-mail, which was sent at 1:02 p.m., read as follows:

I note that 3, 23, 42 and 59 were excused after one week by the Court Administrator.

17 home schools, and 3 weeks is a long time.

77 has a business hardship.

36, 48, 49 and 53 had a parent murdered.

Any thoughts? If we're going to let any go, I'd like to do it today.

Clerk's Papers (CP) at 1279–80.1 At 1:53 p.m., Irby's trial counsel agreed to the release of all 10 jurors referenced in the trial judge's message. The prosecutor's precise response is not part of the record, but at some point prior to 1:59 p.m., the prosecutor informed the trial court that the State agreed to the release of seven of the jurors identified in the e-mail. The prosecutor did, however, object to the release of three of the four jurors (36, 48, and 49) who indicated on their questionnaires that they had a parent who had been murdered. The trial judge responded with another e-mail to the prosecuting attorney and Irby's counsel indicating that the seven jurors whom the attorneys had jointly agreed to release would be notified that they did not need to appear the following day. The clerk's minutes read: “In chambers not on the record. Counsel stipulate to excusing the following jurors for cause: # 7, 17, 23, 42, 53, 59 & 77.” Id. at 1239. The minutes also indicate that Irby was in custody at the time, and there is no indication there or elsewhere in the record before us that Irby was consulted about the dismissal of any of the jurors who had taken the juror's oath.

¶ 4 On the following day, jury selection continued, this time in open court and in Irby's presence. The State and Irby agreed at that time to release juror 36 for cause.2 Jury selection, which proceeded numerically, ultimately reached juror 37. Thus, of the jurors identified in the judge's initial e-mail, only jurors 7, 17, 23, and 36 had a chance to sit on Irby's jury.

¶ 5 At the conclusion of the trial, the jury found Irby guilty of first degree murder with aggravating circumstances, first degree felony murder, and first degree burglary. Given the first degree murder and first degree burglary convictions, the trial court determined that Irby was a persistent offender and, consequently, sentenced him to life in prison without the possibility of parole. Irby appealed the convictions and sentence to Division One of the Court of Appeals. The State cross-appealed, arguing that the trial court erred by failing to impose a life sentence based on Irby's aggravated first degree murder conviction.3

¶ 6 At the Court of Appeals, one of Irby's primary contentions was that the trial court's dismissal of seven potential jurors via the aforementioned e-mail exchange violated his right to be present at all critical stages of trial. See Br. of Appellant at 13–17. He also asserted that this procedure violated his right to a public trial under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution and that the trial court had improperly sentenced him as a persistent offender. Relying on State v. Wilson, 141 Wash.App. 597, 171 P.3d 501 (2007), the Court of Appeals reversed Irby's convictions, holding that the trial court “violated Irby's right to be present and contribute to jury selection.” State v. Irby, noted at 147 Wash.App. 1004, slip op. at 5, 2008 WL 4616712 (2008). The Court of Appeals did not address the question of whether the error was harmless, and it did not reach the other issues raised by Irby and the State, including Irby's claim that his right to a public trial was violated. The State then filed a petition for review, which we granted. State v. Irby, 166 Wash.2d 1014, 210 P.3d 1019 (2009).

II. Standard of Review

¶ 7 Whether a defendant's constitutional right to be present has been violated is a question of law, subject to de novo review. Cf. State v. Strode, 167 Wash.2d 222, 225, 217 P.3d 310 (2009) (“Whether a defendant's constitutional right to a public trial has been violated is a question of law, subject to a de novo review on direct appeal.”).

III. Analysis

¶ 8 Irby claims that the trial court violated his rights under the due process clause of the Fourteenth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution by conducting a portion of jury selection outside his presence. This court has routinely analyzed alleged violations of the right of a defendant to be present by applying federal due process jurisprudence. See In re Pers. Restraint of Benn, 134 Wash.2d 868, 920, 952 P.2d 116 (1998); In re Pers. Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994); State v. Rice, 110 Wash.2d 577, 616, 757 P.2d 889 (1988) (adding see also Const. art. 1, §§ 3, 22). Accordingly, we begin our analysis with a discussion of the due process clause of the Fourteenth Amendment.

A. Due Process Clause of the Fourteenth Amendment

¶ 9 A criminal defendant has a fundamental right to be present at all critical stages of a trial. Rushen v. Spain, 464 U.S. 114, 117, 104 S.Ct. 453, 78 L.Ed.2d 267 (1983). Although the right to be present is rooted to a large extent in the confrontation clause of the Sixth Amendment to the United States Constitution,4 the United States Supreme Court has recognized that this right is also “protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him.” United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985). In that vein, the Court has said that a defendant has a right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.” Snyder v. Massachusetts, 291 U.S. 97, 105–06, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds sub nom. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The Court went on to indicate, however, that because the relationship between the defendant's presence and his “opportunity to defend” must be “reasonably substantial,” a defendant does not have a right to be present when his or her “presence would be useless, or the benefit but a shadow.” Id. at 106–07, 54 S.Ct. 330. Thus, it is fair to say that the due process right to be present is not absolute; rather “the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence.” Id. at 107–08, 54 S.Ct. 330.

¶ 10 The State asserts here that the “e-mail exchange between the [trial] court and counsel [for the State and Irby] regarding excusing potential jurors” was not a “critical stage[ ] of the trial because it was not substantially related to Irby's “opportunity to defend against the charge.” Suppl. Br. of Pet'r at 1, 7, 14. In prior cases, this court has discussed the right of a defendant to be present at various stages of a trial. For instance, in Rice, we held that [u]nder the Snyder standard,” a defendant has a “due process right to be present at the return of his verdict.” Rice, 110 Wash.2d at 617, 757 P.2d 889. In another case, Lord, our court determined that a defendant did not have a right to be present at “in-chambers or bench conferences between the court and counsel on legal matters.” Lord, 123 Wash.2d at 306, 868 P.2d 835; see also In re Pers. Restraint of Pirtle, 136 Wash.2d 467, 484, 965 P.2d 593 (1998) (no right to be present at ...

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