State Of Washington, V. John Moses Murrietta, Jr.

• Court: Court of Appeals of Washington
• Decided: November 3, 2025
• Docket: 86448-3
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 86448-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JOHN MURRIETTA, JR.,

Respondent.

FELDMAN, J. — Following a five-day trial, a jury convicted John Murrietta Jr.

of three counts of child molestation in the first degree based on allegations of his

seven-year-old niece. Murrietta seeks a new trial, arguing that he was deprived of

the right to be present for a portion of the jury selection process. Although the trial

court erred when it addressed substantive issues related to jury selection in

Murrietta’s absence, and that error implicated his constitutional rights, Murrietta

fails to establish that the error was manifest. Murrietta also fails to demonstrate

ripeness and/or manifest constitutional error with respect to conditions of

community custody he failed to challenge below. As a result, we decline to address

the merits of Murrietta’s claims on appeal.

I

Before Murrietta’s trial, the parties selected a jury from two separate panels

that were summoned to appear in court for voir dire on different days. Prior to No. 86448-3-I

appearing in court, potential jurors completed a detailed written questionnaire and

some potential jurors from each panel were excused solely based on their

responses. During voir dire of the first panel in open court, the court dismissed

additional potential jurors for hardship and for cause. Voir dire of the second panel

took place over two days, and the court again dismissed some jurors for hardship

and for cause. On the second day, the court released the second panel of

prospective jurors after a morning session of voir dire. The court instructed the

venire that those selected to serve on the jury would receive an e-mail from the

court by 4:00 p.m. that afternoon and that those who did not receive any

communication from the court should presume their jury service was complete.

The court recessed, with the intention of addressing peremptory challenges when

the court reconvened.

During the lunch recess, two potential jurors who remained on the venire—

jurors 25 and 108—e-mailed the court expressing concerns about their ability to

serve on the jury. Juror 25 asked to be excused from the jury, stating, “I don’t think

I can a jury on this case. I don’t feel fit in these types of case because of the

sensitivity.” Juror 108 likewise asked to be excused from the jury and explained

she “did not have the courage to” express her thoughts in court. Juror 108 stated,

“I am now sure that I will not be able to make a fair judgment for either side. My

emotions will most likely get in the way . . . I do not believe I will be a good fit to

serve.” The court sent an e-mail to defense counsel and the prosecutor quoting

the entirety of both messages and asked whether there was any objection to

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“excusing both jurors at this point in time.” One minute later, defense counsel

responded, “No objection to either.”

When the court reconvened after lunch, about 30 minutes following this

exchange, the court memorialized the substance of the messages received from

the potential jurors and the court’s communication with counsel. Both counsel

confirmed there had been no objection to excusing jurors 25 and 108. The court

stated, “So we went ahead. We are excusing those two individuals. Again, that’s

25 and 108.” Then, each party exercised peremptory challenges. The State raised

four objections to Murrietta’s peremptory strikes under GR 37, and the court

granted one of those objections. The court empaneled a jury of twelve individuals

and three alternates.

The jury convicted Murrietta as charged. Murrietta appeals.

II

Murrietta contends he was deprived of his constitutional right to be present

from the part of jury selection that took place over e-mail. He further maintains

that, notwithstanding the failure to preserve the claim of error below, appellate

review is appropriate because he had “no opportunity to object to the lunchtime

dismissals.” We disagree.

While Murrietta suggests there was no point in objecting because by the

time he learned about the dismissals they had “already happened,” the record does

not demonstrate that an objection when the court reconvened would have been

ineffective. After describing the messages received during the recess and the

court’s discussion with counsel, the court stated that it was now “excusing those

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two individuals.” The court did not indicate that it had already responded to jurors

25 and 108. Nor did the court suggest that it had deviated from the previously

announced plan to communicate with the prospective jurors only after the parties

selected a jury and only with those selected to serve. Although he could have

done so, Murrietta did not object to the excusals, ask to confer with counsel, or

otherwise enable the trial court to remedy any error.

The failure to timely object usually waives appellate review of a claimed

violation of the right to be present. See State v. Slert, 186 Wn.2d 869, 872-73, 383

P.3d 466 (2016) (defendant waived right to appellate review of alleged violation of

right to be present when he lodged no objection in court upon learning that several

jurors “were dismissed” at a prior in-chambers conference in his absence). But a

defendant may raise a claim of error for the first time on appeal if it is a manifest

error affecting a constitutional right. RAP 2.5(a)(3); State v. Gordon, 172 Wn.2d

671, 676, 260 P.3d 884 (2011). “In order to benefit from this exception, ‘the

appellant must identify a constitutional error and show how the alleged error

actually affected the [appellant]’s rights at trial.’” Gordon, 172 Wn.2d at 676,

(quoting State v. O’Hara, 167 Wn.2d 91, 98, 217 P.3d 756 (2009)). To determine

if this exception is applicable, “It is proper to ‘preview’ the merits of the

constitutional argument to determine whether it is likely to succeed.” State v.

Kirwin, 165 Wn.2d 818, 823, 203 P.3d 1044 (2009) (quoting State v. Walsh, 143

Wn.2d 1, 8, 17 P.3d 591 (2001)).

A criminal defendant has a constitutional right to be present at all critical

stages of trial under article I, section 22 of the Washington State Constitution and

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the Due Process Clause and the Sixth Amendment to the United States

Constitution. State v. Irby, 170 Wn.2d 874, 880-81, 246 P.3d 796 (2011). The

“crux” of this constitutional right is the “right to be present when evidence is being

presented or whenever the defendant’s presence has ‘a relation, reasonably

substantial,’ to the opportunity to defend against the charge.” State v. Bremer, 98

Wn. App. 832, 834, 991 P.2d 118 (2000) (internal citations omitted). The right is

not “absolute,” and due process requires the defendant’s presence only “‘to the

extent that a fair and just hearing would be thwarted by his absence.’” Irby, 170

Wn.2d at 881 (quoting Snyder v. Massachusetts, 291 U.S. 97, 107-08, 54 S. Ct.

330, 78 L. Ed. 674 (1934)).

Jury selection is “unquestionably a ‘stage of the trial’ at which a defendant’s

‘substantial rights may be affected.’” Id. at 885 (quoting State v. Shutzler, 82 Wash.

365, 367, 144 P. 284 (1914)). A proceeding that involves evaluating “the ability of

particular jurors to try [the] specific case” is an integral part of jury selection and

exclusion from such a proceeding violates a defendant’s right to be present. Id. at

882, 884; see also State v. Schierman, 192 Wn.2d 577, 606, 438 P.3d 1063 (2018)

(defendant’s exclusion from in-chambers discussion and rulings on for-cause

challenges violated his right to be present).

Irby controls our analysis. Before Irby’s trial on murder and burglary

charges, the venire was sworn and the court administered a questionnaire. Irby,

170 Wn.2d at 877. Before voir dire, the trial court reviewed the responses and

sent an e-mail message to counsel asking whether they would agree to excuse ten

jurors, some for potential hardships and others for cause. Id. at 877–78. Defense

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counsel and the prosecuting attorney responded to the e-mail and jointly agreed

to release seven of the ten identified potential jurors, including one juror whose

parent had been murdered. Id. Irby was in custody at the time and there was

nothing in the record to suggest that counsel consulted with him before the jurors

were dismissed. Id. at 884. Our Supreme Court held that this “e-mail exchange

was a portion of the jury selection process” and Irby’s exclusion violated his due

process right to be present. Id. at 882, 884.

Likewise here, the court suggested excusing prospective jurors 25 and 108,

at the jurors’ requests, for reasons specific to the facts of Murrietta’s case.

Although Murrietta was present during voir dire when both individuals were

questioned as part of the venire, he was not present when they made the

statements that resulted in their dismissal and when the court and counsel

assessed the effect of those statements. As in Irby, the record does not show that

Murrietta’s attorneys conferred with him; and given that counsel replied one minute

after the court sent the e-mail soliciting counsel’s input, it is unlikely that they did

so. Id. at 884. Additionally, consultation cannot be presumed without an

affirmative showing in the record, and here there is none. Irby, 170 Wn.2d at 884;

State v. Love, 183 Wn.2d 598, 608, 354 P.3d 841 (2015). Murrietta’s exclusion

from the court’s exchange with counsel deprived him of the opportunity “to give

advice or suggestion or even to supersede” his counsel. Id. at 883. And the record

does not show that Murrietta agreed to waive his presence during this portion of

jury selection. Under Irby, conducting a portion of the jury selection process that

evaluated the “ability of particular jurors to try this specific case” by e-mail and

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outside of Murrietta’s presence was an error affecting his constitutional rights. Id.

at 882.

Having identified an error of constitutional dimension, we turn to whether

Murrietta has established that the error was manifest. RAP 2.5(a)(3). A manifest

error is one that had an actual effect on the appellant’s rights at trial. See Gordon,

172 Wn.2d at 676. The appellant bears the burden to demonstrate actual prejudice

by making a plausible showing that the error had “practical and identifiable

consequences.” O’Hara, 167 Wn.2d at 99; State v. Kalebaugh, 183 Wn.2d 578,

584, 355 P.3d 253 (2015).

Murrietta argues the error here was manifest because (1) the trial court

could have easily waited until after the lunch recess to address the jurors’

messages in his presence, (2) he was deprived of the opportunity to advocate for

further questioning to rehabilitate the potential jurors, and (3) either juror 25 or 108

was preferable to juror 123, who he unsuccessfully sought to remove though a

peremptory challenge, and who would not have been empaneled if both jurors 25

and 108 had not been excused. But none of these assertions establish “practical

and identifiable” prejudicial consequences. The lack of a timely objection when

the court recounted the e-mail exchanges and excused the prospective jurors in

open court “itself is strong evidence” that Murrietta perceived no prejudice until

after he was convicted of the charges. See Slert, 186 Wn.2d at 879.

Moreover, even if defense counsel had not immediately agreed to dismiss

the jurors, the trial court has an independent duty to protect the defendant’s right

to a fair and impartial jury, and must “excuse potential jurors who have biased

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opinions or feelings about the case.” Id. at 877. Even though Murrietta had not

previously raised challenges as to either of the jurors, there is no reasonable

possibility that jurors 25 and 108 would have sat on the jury after they learned more

detailed information about the nature of the case in voir dire and unequivocally

asserted that they were not “fit” to serve and would be unable to render a “fair

judgment.” See State v. Smith, 3 Wn.3d 718, 726, 555 P.3d 850 (2024)

(“unequivocal statements indicating bias” may establish actual bias and require

excusal).

As to the claim that either of the dismissed jurors was preferable to juror

123, the record does not establish that juror 123 was partial or otherwise

unqualified. In addressing the State’s GR 37 objection, Murrietta emphasized that

juror 123 spoke “authoritatively” about trauma, had a prior relationship with

someone who had been sexually assaulted, and said she would consider

“consistency” as one factor in assessing credibility, delay in disclosure would not

significantly influence her assessment, and younger children may lack sufficient

knowledge to lodge false allegations of sexual abuse. None of these issues raise

an inference of bias or partiality.

It is well settled that Murrietta had no right to be tried by a particular juror or

jury, and only a right to be tried by a qualified and impartial one. See State v.

Gentry, 125 Wn.2d 570, 615, 888 P.2d 1105 (1995); State v. Philips, 65 Wash 324,

326-27, 118 P. 43 (1911). He fails to allege, much less establish, that he was not

tried by an impartial jury or any other basis to conclude that he was actually

prejudiced by the excusals. Because Murrietta has not met his burden to

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demonstrate a manifest constitutional error, his claim of error related to the

dismissal of prospective jurors 25 and 108 is not reviewable for the first time on

appeal.

III

Murrietta also challenges conditions of community custody imposed in his

judgment and sentence that require him to (1) remain within “geographic

boundaries, as set forth in writing” by his Community Corrections Officer (CCO) or

in a Stay Out of Drug Area order, (2) inform his supervising CCO and treatment

provider of any “dating relationship” and disclose his “sex offender status” to

potential intimate partners, (3) consent to “home visits” by the Department of

Corrections “to monitor compliance with supervision,” and (4) refrain from

accessing or possessing “sexually explicit” and “erotic materials” or depictions of

“sexually explicit conduct,” as defined by referenced statutes, absent prior approval

by a treatment provider.

Here again, because Murrietta challenges these conditions for the first time

on appeal, he “is not entitled to review unless he can show that (1) his challenge

‘is ripe for review on its merits’ and (2) the . . . conditions are a ‘manifest error

affecting a constitutional right.’” State v. Nelson, __ Wn.3d __, 565 P.3d 906, 912-

13 (2025) (quoting State v. Cates, 183 Wn.2d 531, 534, 354 P.3d 832 (2015));

RAP 2.5(a)(3). Previewing the merits of his arguments, see Kirwin, 165 Wn.2d at

823, this court and our Supreme Court have rejected similar challenges to the

community custody conditions at issue. See State v. Lundstrom, __ Wn. App. 2d

___, 572 P.3d 1243, 1245-46 (2025) (geographic boundary restriction not

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unconstitutionally vague); State v. Lee, 12 Wn. App. 2d 378, 401-02, 460 P.3d 701

(2020) (upholding disclosure condition on constitutional grounds); State v. Gantt,

29 Wn. App. 2d 427, 456-57, 540 P.3d 845, review denied, 3 Wn.3d 1002 (2024)

(upholding disclosure condition on constitutional and crime-related grounds);

Cates, 183 Wn.2d at 534-35 (challenge to nearly identical condition requiring

consent to home visits not ripe for review); State v. J.H.-M., 4 Wn.3d 648, 662, 566

P.3d 847 (2025) (rejecting constitutional challenges to identical condition

prohibiting possession of depictions of sexually explicit conduct).

In short, Murrietta fails to meet his burden to establish ripeness (as to the

condition requiring consent to home visits) or manifest constitutional error (with

respect to the remaining conditions). We therefore decline to review these claims

of error.

Affirmed.

WE CONCUR:

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