State v. Price

• Decision Date: 25 July 2011
• Docket Number: No. 63056-3-I,63056-3-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. JOHN FRANKLIN PRICE, Appellant.

STATE OF WASHINGTON, Respondent,

v.JOHN FRANKLIN PRICE, Appellant.

No. 63056-3-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: July 25, 2011

UNPUBLISHED

Cox, J. — Jury selection is a critical stage of a criminal trial, and a defendant's right to be present during this stage is constitutionally protected.¹ Here, John Price did not voluntarily, knowingly, and intelligently waive his right to be present during the portion of jury selection that is at issue in this case. Likewise, he did not invite the error about which he now complains. The State fails to meet its burden to show that Price's absence during this critical stage was harmless beyond a reasonable doubt. We reverse.

The State charged Price with one count of first degree murder for the death of Donald Jessup. During his incarceration while awaiting trial, Price repeatedly contacted the two key witnesses against him, Judith Mahler² and Channel Ridley. Consequently, the State amended the information to add twocounts of witness tampering.

On October 1, 2008, while Price was present in court, the trial judge discussed with respective counsel the process that she intended to use for selecting Price's jury. Counsel first agreed on the wording of the jury questionnaire that was to be distributed to the members of the venire the next day. The discussion then moved to the procedure for selection of the jury.

The judge indicated that she expected a panel of 200 potential jurors and intended to bring them into the courtroom in groups of 50 due to space limitations. She stated that she would read to each group the agreed introductory language and the amended information. She then intended to call for hardships. The judge correctly noted that "this is a critical stage of the proceedings and the defendant needs to be present, even though we're just calling for hardship." She stated that at the end of the day, the remaining panel members would be asked to complete the jury questionnaire, which would then be used during the remaining portion of voir dire.

Following this description by the judge, defense counsel stated that she did not think that it was necessary for Price to be present for the determination of hardships of potential jurors. She then stated that she would speak with Price and get back to the court. The judge and counsel then proceeded to discuss other matters not relevant to this appeal.

At the end of this hearing, defense counsel stated that Price would not be present for the first day of jury selection. "I've conferred with Mr. Price, and since it's just a hardship part, I certainly don't think it's a critical stage in the proceedings." After the State indicated that it would not have a detective present if Price was not present during this phase, the judge stated "[W]e'll just do hardship."

Jury selection commenced the next day, October 2, 2008. The judge swore in the first group of members of the venire and read to them agreed introductory remarks and the charges. The judge then explained how voir dire would proceed, and called for hardships. The judge repeated this process with each of the remaining groups of panel members.

The judge ultimately dismissed 80 members of the venire. It is undisputed that the majority were dismissed for hardship. But two members of the venire were dismissed for reasons other than hardship. Potential juror number 121 was released because he had some knowledge of the case. Another potential juror, number nine, was released because he indicated that he simply did not "want to be here."³ It is undisputed that Price was not present during any of this questioning of the venire or the dismissals.

He was present during the remaining examination of the members of the venire, beginning October 7, 2008. A jury convicted him as charged. Price appeals.

RIGHT TO BE PRESENT DURING JURY SELECTION

Price argues that he was denied his constitutional rights under the federal and state constitutions to be present for a critical stage of trial, jury selection. He also argues that he neither waived these rights nor invited the error he now claims. Finally, he claims that the State fails to show that the claimed error is harmless beyond a reasonable doubt. We agree in all respects.

"A criminal defendant has a fundamental right to be present at all critical stages of a trial."⁴ This includes the right to be present during voir dire and empanelling of the jury.⁵ The right to be present derives from the Confrontation Clause of the Sixth Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendments.⁶ The United States Supreme Court has recognized that this right is protected by the Due Process Clause in situations where the defendant is not actually confronting witnesses or evidence against him.⁷ In those situations, the Supreme Court has said that the "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.'"⁸ But "because the relationship between the defendant's presence and his 'opportunityto 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.'"⁹

This court reviews de novo whether a defendant's constitutional right to be present has been violated.¹⁰

State v. Irby¹¹ is dispositive. There, the charges included first degree felony murder with aggravating circumstances, first degree felony murder, and first degree burglary.¹² During a pretrial hearing, the State and Irby both agreed to the trial judge's suggestion that neither party needed to attend the first day of jury selection.¹³ Both sides agreed that they would appear and begin questioning jurors on the following day.¹⁴

As agreed, on the first day of jury selection, the judge swore in the members of the venire and then gave them a jury questionnaire to fill out.¹⁵ Afterall of the potential jurors submitted their completed questionnaires, the judge sent an e-mail to the prosecuting attorney and defense counsel suggesting that 10 venire members be removed from the panel for various reasons. Four had been excused after one week by the court administrator.¹⁶ One home schooled, and the court stated "3 weeks is a long time."¹⁷ One had "a business hardship."¹⁸ And four "had a parent murdered."¹⁹ The judge asked for the thoughts of counsel, indicating that if any were going to be let go, he would like to do it that day.²⁰

Irby's counsel agreed to the release of all ten potential jurors.²¹ The prosecutor objected to the release of three of the four potential jurors who indicated they had a parent murdered, and then the court released the remaining seven identified in the e-mail.²² Irby was in custody at the time of this exchange between the court and counsel and the record provided no indication that he was consulted about the dismissal of any of the potential jurors.²³

Jury selection continued on the following day in Irby's presence.²⁴ At theconclusion of trial, the jury convicted him of the crimes charged.²⁵

Irby appealed to this court, arguing that the trial court's dismissal of the seven potential jurors via e-mail exchange violated his right to be present at all critical stages of trial.²⁶ This court agreed.²⁷

The supreme court granted the State's petition for review.²⁸ It held that conducting a portion of jury selection in Irby's absence violated his Fourteenth Amendment and article I, section 22 rights and that this violation was not harmless beyond a reasonable doubt.²⁹

"[J]ury selection is 'a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present.'"³⁰ "[I]t is 'the primary means by which a court may enforce a defendant's right to be tried by a jury free from ethnic, racial, or political prejudice, or predisposition about the defendant's culpability.'"³¹ "[A] defendant's presence at jury selection 'bears, ormay fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend' because 'it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether.'"³² This right attaches from the time the work of empanelling the jury begins.³³

The court distinguished Irby from other cases where courts have concluded that a defendant's absence from a portion of jury selection does not implicate the right to be present.³⁴ The court explained that

the e-mail exchange was a portion of the jury selection process. We say that because this novel proceeding did not simply address the general qualifications of 10 potential jurors, but instead tested their fitness to serve as jurors in this particular case.

The fact that jurors were being evaluated individually and dismissed for cause distinguishes this proceeding from other, ostensibly similar proceedings that courts have held a defendant does not have the right to attend.³⁵

The court concluded that the fact that the decision making took place after the venire was sworn in indicated that it was part of the jury selection process.³⁶ "[C]onducting jury selection in Irby's absence was a violation of his right underthe due process clause of the Fourteenth Amendment to the United States Constitution to be present at this critical stage of trial."³⁷

Here, like in Irby, the court and counsel discussed, in advance, the procedures that were to be followed for jury selection. Unlike in Irby, the trial judge here correctly recognized that jury selection is a critical stage of trial and that Price's presence would be required even when determining hardship of potential jurors. Nevertheless, Price was absent from court when the judge dismissed potential jurors for hardship and other reasons.

In all material respects, this case and Irby are indistinguishable. Price was absent from court during a critical stage of his criminal trial. During his absence, the...