State v. Jones

372 P.3d 755, 185 Wash. 2d 412
Washington Supreme Court·Decided April 21, 2016·No. No. 89321-7·Published·Cited by 21 cases

Opinions

Yu, J.

¶1 This case presents questions regarding a defendant’s public trial right and right to be present as applied to the designation of alternate jurors by a random drawing performed after both sides have rested at trial. The random drawing in this case was done by the trial court’s judicial assistant at a brief recess during closing arguments. Defendant Martin Arthur Jones contends that this violated his constitutional rights to a public trial and to be present at all critical stages of trial proceedings.

¶2 Based on the specific facts presented by the record before us, we hold that the random drawing by the judicial assistant did not implicate Jones’ public trial right. We also hold that Jones waived his right-to-presence claim by failing to raise an objection until after the jury reached its verdict. We therefore affirm in part and reverse in part the Court of Appeals, and reinstate Jones’ conviction.

FACTUAL AND PROCEDURAL HISTORY

¶3 The facts underlying the offense are not at issue at this time. Briefly, Jones’ wife was pulled over for speeding and, based on her performance in field sobriety tests, she was arrested for driving under the influence. While one state trooper took Jones’ wife into custody, another stayed at the scene to process the vehicle for towing. A white male approached the trooper at the scene and shot him in the back of the head. Remarkably, the trooper survived and identified Jones as the shooter. Based on the trooper’s identification and other evidence, Jones was charged in Pacific County with attempted first degree murder. The trial was ultimately held in Pierce County. State v. Jones, 175 Wn. App. 87, 91-94, 303 P.3d 1084 (2013).

[416] ¶4 The question of how the alternate jurors would be designated came up early and often in the Pierce County proceedings. The question was first raised by the court during pretrial motions. The court offered Jones a choice for how to designate the alternates: “If we are not going to tell [the jurors which of them are alternates], then it’s random and we pull it out of the rotating cylinder, and it’s whoever is left is who is eligible to be selected out. Otherwise, it’s your last four.” 1 Verbatim Report of Proceedings (VRP) at 35 (Oct. 15,2010). The court invited the attorneys to discuss it among themselves and specifically to “[c]hat with Mr. Jones, see what he prefers.” Id. at 36. The court made it clear that “defense really controls on that. It’s either random, or it’s the last four.” Id.

¶5 The court later revisited the issue of designating alternates, reiterating that the “defense drives the bus on this.” Id. at 126 (Jan. 3, 2011). In response to questions raised by Jones’ attorney, the court noted that “[t]he box is back there in the corner. It’s really not - it’s . . . spinning and the numbers are all in there if we still have 16.” Id. at 127. Ultimately, Jones chose the random drawing as his preferred method for designating alternates.

¶6 A panel of 100 jurors was summoned to appear. Voir dire occurred on the record in open court over the course of two days. The jurors were informed during voir dire that 4 of the seated jurors would be alternates. At the end of voir dire, the attorneys conducted their peremptory challenges on paper at counsel table in open court. Jones does not contend that any part of the pretrial jury selection proceedings violated his public trial right or right to presence.

¶7 The jury trial began with opening statements, and the parties both rested four weeks later. When the court asked if the jurors had any questions, one asked about the designation of alternates: “Just out of curiosity, you said there would be the 12 jurors. Do we know or are we supposed to know how that will happen?” 23 VRP at 3807-08 (Feb. 15,2011). The court reviewed the process that it would use to designate alternates:

[417] As I explained back in early January we seated 16 in case there was a family emergency, or some unforeseen event that would occur that would require a juror to be excused. There are still 16 of you here in the box today near the end of the trial.
It will be random. The box to be spun looks a little like an old fashioned bingo, but it’s wooden. [The judicial assistant] has all 16 of your juror numbers, and after all of the closing arguments she will tell me which four numbers have been selected at random. We don’t know now. We are still hoping that there is no unexpected emergency between now and Thursday morning, but that’s still a possibility.
The four jurors that are not selected to deliberate will not be excused because during deliberations one of the 12 might have an emergency that would require them to be excused, so we will still have four jurors available to resume deliberations with the other jurors if that’s required.

Id. at 3808.

¶8 After the parties rested and before closing arguments, there was a one-day break for the jurors during which the parties addressed various matters including the jury instructions and the closing argument schedule. Both sides anticipated making lengthy closing arguments, so the court was careful to figure out a schedule that would include sufficient breaks for the jurors without disrupting the flow of each side’s closing arguments. The court planned to give the jurors a 15-minute break in the middle of the morning, a 90-minute lunch break, and another short break in the middle of the afternoon. 24 VRP at 3854-55 (Feb. 16, 2011). Neither party expressed any concerns about the court’s proposed schedule. The next day, the court reviewed the schedule again with all of the attorneys and Jones, again without anyone expressing any confusion, surprise, or objections.

¶9 The proceedings closely followed the court’s schedule. After the State presented its closing argument, Jones’ counsel began his at 11:34 a.m. Suppl. Clerk’s Papers (CP) at 1429. At noon, the court announced it would recess for [418] lunch and instructed the jurors to return to the deliberation room by 1:15 p.m.; Jones resumed his closing argument at 1:38 p.m. Id.

¶10 At 2:55 p.m., the court announced that “[w]e are going to have to take o[u]r afternoon break.” 25 VRP at 4017 (Feb. 17, 2011); see also Suppl. CP at 1429. The court instructed the jury to “step on into the jury deliberation room. Leave you[r] notebooks and your jury instructions here, and because we are only [g]oing to take a ten-minute break, I would ask that you not go out.” 25 VRP at 4018 (Feb. 17, 2011). Then, “outside the presence of the jury,” the court advised Jones’ attorneys that it would “need you back in five minutes ... [to] discuss with [the State’s attorneys] the hour that we have left.” Id. While the record shows the court was in recess from 2:55 to 3:03 p.m., Suppl. CP at 1429, it does not indicate that anyone other than the jurors was instructed to leave the courtroom during the recess and it does not indicate whether or not there was anyone in the courtroom during the recess.

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State v. Jones, 372 P.3d 755, 185 Wash. 2d 412 (Wash. 2016).

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