IN THE SUPREME COURT OF THE STATE OF WASHINGTON
) STATE OF WASHINGTON, ) ) Petitioner, ) No. 89321-7 ) v. ) ) ENBANC MARTIN ARTHUR JONES, ) ) Respondent. ) Filed: APR ;?. 1 2il16 _________________________) YU, J.- 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.
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 State v. Jones, No. 89321-7
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
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).
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
2 State v. Jones, No. 89321-7
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." !d.
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.
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.
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: "[j]ust 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
3 State v. Jones, No. 89321-7
VRP at 3807-08 (Feb. 15, 2011). The court reviewed the process that it would use
to designate alternates:
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 all16 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.
!d. at 3808.
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).
4 State v. Jones, No. 89321-7
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.
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
1unch 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.
At 2:55p.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.
5 State v. Jones, No. 89321-7
At 3:05p.m., the jury was reseated and Jones resumed his closing argument,
followed by the State's rebuttal. Id. at 1429-30. After the State concluded, the
court announced on the record in open court which jurors were designated as
alternates:
All right ladies and gentlemen. We talked about it yesterday, we talked about it in January. At the outset of this trial we seated four alternates. I think the attorneys and I are as surprised as everyone else that there are still16 of you in the box. But at this time at the break at 3:00, four jurors['] number[s] were pulled randomly, and at this time I am temporarily excusing these four jurors: The order in which I am excusing you is important because if during the deliberations of the other 12 jurors one of the jurors has to be excused, the first juror that is temporarily excused is what we are calling juror No. 16, Mr. Power. I am excusing you as an alternate at this point, but you would be the first one called back in the event one of the other 12 has to be excused for some emergency or for some reason.
The second alternate selected out Juror No. 9, Mr. White[,] is temporarily excused. Mr. Gama, Juror No. 5[,] is temporarily excused, and Ms. Engel, Juror No. 11 [,]is temporarily excused.
In temporarily excusing you, what that means is that you are not fully released from this case.
25 VRP at 4061-62 (Feb. 17, 2011). There is no indication that anyone expressed
any surprise, confusion, or objections when the court announced that the alternates
had been designated by a random drawing conducted during the midafternoon
break.
The court then asked the alternate jurors "to step on into the jury deliberation
room with [the judicial assistant] for just a few moments while I talk with the other
6 State v. Jones, No. 89321-7
jurors." I d. at 4063. The court gave the remaining jurors instructions for their
deliberations and then told them to "go ahead and step on into the jury deliberation
room." Id. at 4067. Once "outside the presence of the jury," the court announced,
"I am going to let the four jurors leave now." Id. There is no indication that
anyone objected to releasing the four alternates for the day.
The jury deliberated over the course of three business days, from Friday,
February 18 through the following Wednesday, February 23 with an intervening
holiday. The jurors submitted several questions while they were deliberating, and
attorneys for both sides participated in answering those questions. Throughout the
course of deliberations, Jones raised no concerns about the composition of the
deliberating jury. Jones was convicted of attempted murder in the first degree, and
the jury found by special verdicts that Jones was armed with a firearm and that the
victim was a law enforcement officer who was performing his official duties.
Approximately one week after the jury returned its verdicts, Jones filed a
motion for a new trial, contending, among other things, that designating alternate
jurors by conducting a random drawing at a recess during the closing arguments
violated his public trial right and right to presence. The court denied Jones' motion
for a new trial and imposed an exceptional sentence above the standard range of
600 months of total confinement, to be followed by 36 months of community
custody. Jones appealed.
7 State v. Jones, No. 89321-7
The Court of Appeals filed a partially published opinion holding that Jones'
public trial right was violated "when, during a court recess off the record, the trial
court clerk drew four juror names to determine which jurors would serve as
alternates," and that this was structural error requiring reversal. Jones, 175 Wn.
App. at 91. However, the Court of Appeals held that Jones' right to be present was
not violated and even if it was, any error was harmless. !d. at 104. The Court of
Appeals rejected Jones' arguments regarding the admissibility of certain evidence,
and various grounds that Jones raised in his pro se statement of additional grounds
for review. State v. Jones, No. 41902-5-II, slip op. (unpublished portion) at 18-34
(Wash. Ct. App. June 4, 2013).
The State filed a petition for review regarding Jones' public trial right.
Jones filed a cross petition for review regarding his right-to-presence claim and
certain evidentiary issues. This court stayed consideration of the petitions pending
State v. Njonge, 181 Wn.2d 546, 334 P.3d 1068 (2014), State v. Slert, 181 Wn.2d
598,334 P.3d 1088 (2014) (plurality opinion), and State v. Love, 183 Wn.2d 598,
354 P.3d 841 (2015). After the stays were lifted, we granted the State's petition
for review and granted Jones' cross petition only on the right-to-presence issue.
184 Wn.2d 1018 (2015).
8 State v. Jones, No. 89321-7
ISSUES
A. Was Jones' public trial right implicated by the judicial assistant's act of randomly drawing the alternate jurors?
B. Should Jones' conviction be reversed due to the alleged violation of his right to be present at the random drawing to designate alternate jurors?
ANALYSIS
A. Based on the record before us, there was no public trial violation
The right to an open public trial is guaranteed by article I, sections 10 and 22
of the Washington State Constitution. Whether a defendant's public trial right has
been violated is a legal issue, subject to de novo review. Love, 183 Wn.2d at 604.
We apply the experience and logic test to determine whether the public trial right is
implicated by a particular proceeding. State v. Sublett, 176 Wn.2d 58, 73, 292 P.3d
715 (2012) (C. Johnson, J., lead opinion). In doing so, we must take care to define
the proceeding at issue with precision because our focus is on the proceeding that
actually occurred, not on the general label that might be attached to a variety of
related proceedings. I d. at 72-73. The actual proceeding at issue here was of an
extraordinarily limited nature.
The overwhelming majority of proceedings relating to the designation of
alternate jurors (including the court's offering of options for designating alternates
and giving the choice to Jones, the attorneys' questions to the court about those
options, the court's repeated explanations of how the random drawing would
9 State v. Jones, No. 89321-7
proceed, and the court's announcement of which jurors had been drawn) occurred
on the record in open court. The only event that did not occur in open court was
the judicial assistant's physical act of randomly drawing the alternate jurors
according to the agreed-on procedure. We thus limit our analysis to that particular
event, and, based on the specific facts in the record presented, hold that it did not
implicate Jones' right to a public trial. 1
1. Experience
It is Jones' burden to show, as a matter of experience, that a random drawing
to designate which of the seated jurors will serve as alternates has "'historically
been open to the press and general public."' Id. at 73 (quoting Press-Enter. Co. v.
Superior Court, 478 U.S. 1, 8, 106 S. Ct. 2735,92 L. Ed. 2d 1 (1986) (Press II)).
Jones contends that "selection of alternate jurors is typically part of voir dire which
has traditionally been conducted in open court." Answer & Cross-Pet. for Review
at 4; see also Suppl. Br. of Martin Jones at 10. Assuming that proposition is true, it
does not answer the narrow question presented here. 2
1 As a general matter, a recess is not an open court proceeding, and conducting certain tasks related to the designation of alternate jurors (or other aspects of jury selection) during a court recess could implicate a host of issues. In this case, however, as a matter of experience and logic, we hold that the random drawing to designate alternate jurors simply did not implicate the public trial right. 2 We do note, however, that designating alternate jurors by conducting a random drawing after parties have rested, rather than during pretrial voir dire, is not a practice unique to the court that conducted Jones' trial. See, e.g., United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007) (noting "the logic of this practice and its vintage in the district court," though discouraging its use as inconsistent with Fed. R. Crim. P. 24); People v. Van Camp, 356 Mich. 593, 97
10 State v. Jones, No. 89321-7
There are certainly tasks related to the jury selection and voir dire process
that we have held may be done outside of open court without running afoul of the
public trial right. See State v. Russell, 183 Wn.2d 720, 729,357 P.3d 38 (2015)
(work sessions to review juror questionnaires for hardship excusals); Slert, 181
Wn.2d at 605-06 (Gonzalez, J., lead opinion) (reviewing jury questionnaires prior
to voir dire), 614 (Stephens, J., dissenting) (administrative excusal of individuals
from the jury pool due to illness); In re Pers. Restraint of Yates, 177 Wn.2d 1, 28-
29, 296 P.3d 872 (2013) (lining up and seating the venire in numerical order before
unlocking the courtroom); State v. Beskurt, 176 Wn.2d 441, 447, 293 P.3d 1159
(2013) (C. Johnson, J., lead opinion) Guror questionnaires used by the attorneys as
a "'screening tool'" for voir dire conducted in open court could be sealed without
implicating defendant's public trial right).
There are also statutes and court rules providing that court clerks and judges
may perform ministerial tasks related to jury selection generally and voir dire
specifically. 3 See, e.g., RCW 2.36.063 ("The judge or judges of the superior court
N.W.2d 726, 732 (1959) (applying a Michigan statute that required alternate jurors to be selected by random drawing at the close of a case); JEFFERSON COUNTY SUPER. CT. LOCAL CIV. R. 38.3 ("The alternate juror shall be designated by random drawing to be announced after closing argument."); OKANOGAN COUNTY SUPER. CT. LOCALR. 47(b) ("[T]he parties may stipulate that the alternate juror be designated by random drawing to be announced after closing argument."). 3 While we do not suggest that a statute or court rule can ever abridge a constitutional right, they can shed light on whether particular proceedings have historically been open to the press and general public. See Sublett, 176 Wn.2d at 75-77 (C. Johnson, J., lead opinion) (considering court rules in analyzing the experience prong as pertaining to jury instructions and questions from the jury during deliberations).
11 State v. Jones, No. 89321-7
of any county may employ a properly programmed electronic data processing
system or device to compile the jury source list, and to compile the master jury list
and to randomly select jurors from the master jury list."); CrR 6.3 ("When the
action is called for trial, the jurors shall be selected at random from the jurors
summoned who have appeared and have not been excused."), 6.5 ("If at any time
before submission of the case to the jury a juror is found unable to perform the
duties the court shall order the juror discharged, and the clerk shall draw the name
of an alternate who shall take the juror's place on the jury."). Jones does not argue,
and we can find no indication, that these tasks have traditionally been performed in
open court.
Thus, whether a specific task could generally be considered part of voir dire
is not dispositive. Jones has not provided any historical or legal resources showing
that the press and general public have traditionally been able to observe the
specific, nondiscretionary, ministerial task of physically drawing the alternate
jurors according to a procedure chosen by the defendant that was described both
before and after the fact on the record in open court. The experience prong is not
met.
2. Logic
To satisfy the logic prong, Jones must show that "'public access plays a
significant positive role in the functioning of the particular process in question."'
12 State v. Jones, No. 89321-7
Sublett, 176 Wn.2d at 73 (C. Johnson, J., lead opinion) (quoting Press II, 478 U.S.
at 8). In analyzing this prong, we look to whether openness will advance the
purposes of the public trial right: "to ensure a fair trial, to remind the prosecutor
and judge of their responsibility to the accused and the importance of their
functions, to encourage witnesses to come forward, and to discourage perjury." Id.
at 72. Concerns relating to witnesses and perjury are not implicated here, so we
consider only the purposes of ensuring a fair trial and reminding the court of its
responsibility to Jones and the importance of its functions. Jones argues that the
random drawing here frustrated those purposes because real-time public oversight
would have been "[t]he only assurance that [the random drawing] process was
done fairly." Suppl. Br. of Martin Jones at 12.
Jones' argument overlooks several key facts in the record. The deliberating
and alternate jurors were all chosen by the same voir dire process in open court.
The method for drawing the alternates, the box from which the alternates would be
drawn, and the judicial assistant who would be doing the drawing were all
identified on the record in open court. Jones himself chose the random drawing
method for designating alternates, and (as discussed further below) Jones had the
opportunity to object to the drawing if he was concerned about how it was
conducted. In light of all these proceedings on the record in open court, public
oversight at the moment the judicial assistant actually drew the pieces of paper
13 State v. Jones, No. 89321-7
designating the alternate jurors would not play a significant positive role in the
functioning of the drawing itself, and it would not advance the purposes underlying
the public trial right.
These facts also easily distinguish this case from State v. Rouner, 333 Mo.
1236, 64 S.W.2d 916 (1933), which Jones cites to demonstrate "[t]he importance
of transparency in the act of selecting jurors by wheel as used here." Suppl. Br. of
Martin Jones at 12 n.2. The jury selection at issue in Rouner was actually the
compilation of the entire jury panel for a session of a Missouri county court, not
the designation of alternates. Rouner, 64 S.W.2d at 918. The Missouri Supreme
Court noted the "evils" of a prior "uncontrolled system" wherein the jury panel
was selected by the sheriff, who apparently had unlimited discretion in how to
complete that task. Id. To bring some control and oversight to the process,
Missouri statutes were amended to provide that the jury panel must be compiled by
the county clerk in open court. I d. The defendant in Rouner did not know until
after he was convicted that the jury panel from which his trial jury was selected
had been compiled by two judges in a closed room. Id. at 916. In Jones' case, by
contrast, all 16 of the seated jurors were chosen by voir dire in open court, the
judicial assistant had no discretion in how to carry out the drawing, there is no
indication the drawing was conducted by an unauthorized person, and Jones knew
about it well before he was convicted.
14 State v. Jones, No. 89321-7
Finally, it is difficult to imagine where the logical limit of Jones' line of
reasoning would be. For instance, if Jones had chosen to designate the alternate
jurors based on their juror numbers, would he now be arguing that a public trial
violation occurred because the initial assignment of juror numbers was not done in
open court? And what if the court were to use a computer program to randomly
designate alternates? Jones indicated at oral argument that courts should simply
avoid using such technology. Wash. Supreme Court oral argument, State v. Jones,
No. 89321-7 (Feb. 23, 2016), at 19 min., 52 sec. to 20 min., 14 sec., audio
recording by TVW, Washington State's Public Affairs Network,
http://www.tvw.org. We do not agree with the idea that the public trial right
prohibits courts from making reasonable use of technological advancements that
increase efficiency, decrease costs, and promote the timely and evenhanded
administration of justice. And there is no meaningful distinction between the
physical act of randomly drawing alternates and the physical act of pressing a
button to run a computer program that randomly designates alternates.
Neither experience nor logic indicates that the public trial right was
implicated by the judicial assistant's randomly drawing the alternate jurors in this
case. We thus conclude that there was no violation of Jones' right to a public trial.
15 State v. Jones, No. 89321-7
B. Jones waived his right-to-presence claim
As a matter of due process, "[a] criminal defendant has a fundamental right
to be present at all critical stages of a trial." State v. Irby, 170 Wn.2d 874, 880,
246 P.3d 796 (2011). Jones claims that this right was violated when the judicial
assistant conducted the random drawing to designate the alternate jurors outside his
presence. Assuming (without deciding) that the drawing was a critical stage of
Jones' trial, and further assuming (without deciding) that Jones was not present for
the drawing, we hold he waived this error by failing to raise a timely objection.
Jones first raised his right-to-presence argument in a motion for a new trial
pursuant to CrR 7.5(a)(5), which he filed days after the jury convicted him. CP at
1286, 1299. A motion for a new trial is not a substitute for raising a timely
objection that could have completely cured the error. See, e.g., State v. Elmore,
139 Wn.2d 250, 277-78, 985 P.2d 289 (1999); State v. Williams, 96 Wn.2d 215,
225-26, 634 P.2d 868 (1981). Indeed, the failure to raise a timely objection
strongly indicates that the party did not perceive any prejudicial error until after
receiving an unfavorable verdict. Williams, 96 Wn.2d at 226.
Jones unquestionably had ample opportunity to object to the designation of
alternates in time to completely cure the error. The jury's deliberations extended
over multiple days, and Jones and his attorneys actually participated in responding
to jury questions during deliberations. See Suppl. CP at 1430. If Jones had
16 State v. Jones, No. 89321-7
objected at any time during deliberations, the random drawing could have been
redone in his presence and, if the results were different, the previously dismissed
alternates could have been recalled and deliberations begun anew. See 25 VRP at
4061-62 (Feb. 17, 2011); cf Williams, 96 Wn.2d at 226 ("Even after all the
testimony was concluded and the jury was in the process of deliberating, petitioner
declined to move for a mistrial when a sick juror was excused."). Jones does not
point to anything that prevented him from making a timely objection, and he does
not explain how such an objection, if granted, would have been an incomplete
remedy.
Based on the record presented, we must conclude that "[t]he defense made a
tactical decision to proceed, 'gambled on the verdict', lost, and thereafter asserted
the previously available ground as reason for a new trial. This is impermissible."
Williams, 96 Wn.2d at 226 (citing Nelson v. Martinson, 52 Wn.2d 684, 689-90,
328 P.2d 703 (1958)). We therefore hold that Jones waived his right-to-presence
challenge and decline to address its merits.
CONCLUSION
Based on the specific facts presented by the record before us in this
particular case, we hold that the public trial right was not implicated by the random
drawing for alternate jurors by the judicial assistant. We also hold Jones waived
his right-to-presence claim by failing to raise a timely objection. While it might be
17 State v. Jones, No. 89321-7
the best practice to conduct such a drawing in the presence of the defendant and the
public, it is not constitutionally required. We therefore affirm in part and reverse
in part the Court of Appeals and reinstate Jones' conviction.
18 State v. Jones, No. 89321-7
WE CONCUR:
19 State v. Jones (Martin Arthur), No. 89321-7 (Gordon McCloud, J., concurring)
No. 89321-7
GORDON McCLOUD, J. (concurring)-! agree with the majority that
defendant Martin Jones has no right to presence or open courtroom proceedings
during the random drawing of alternates in the context of this case. Thus, there was
no constitutional problem with the judicial assistant conducting that work during a
recess from the court proceedings.
But that is the only thing that we need to say to decide this case. I therefore
disagree with the majority's decision to go on to state that Jones waived any possible
right-to-presence claim by failing to raise it sooner. Majority at 15-17. I also
disagree with the majority's analysis of that waiver issue. We have held that for a
defendant's waiver of the right to presence to be constitutional, it must be "both
knowing and voluntary." State v. Rice, 110 Wn.2d 577, 619, 757 P.2d 889 (1988)
(citing United States v. Tortora, 464 F.2d 1202, 1208 (2d Cir. 1972)). We have
acknowledged that a knowing and voluntary waiver of this constitutional right to
presence can be "express or implied," and that it can be "implied" when a defendant
1 State v. Jones (Martin Arthur), No. 89321-7 (Gordon McCloud, J., concurring)
"voluntarily absent[ s] himself from the proceedings." !d. (citing Taylor v. United
States, 414 U.S. 17, 19-20,94 S. Ct. 194, 38 L. Ed. 2d 174 (1973) (per curiam)). We
have even developed a framework for determining, under a totality of circumstances,
whether a defendant's absence from a proceeding is voluntary or not. See State v.
Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994). But I can't find any prior
case from this court holding that a defendant knowingly and voluntarily waived his
or her right to presence when he or she didn't even know a proceeding was occurring
because it happened during a recess, meaning during a time when court is not in
sesswn.
Instead, I would hold only that the random drawing of alternates by a
previously approved process was not an event to which the right to presence
attached. Just as there is no constitutional right to an open courtroom or presence
for a bailiffs or judicial assistant's computer work, there is no constitutional right
to an open courtroom or presence during this preapproved, random drawing, work,
either. I therefore respectfully concur.
2 State v. Jones (Martin Arthur), No. 89321-7 (Gordon McCloud, J., concurring in result)