383 P.3d 466
Wash.2016Background
- Kenneth Slert was tried three times for the killing of John Benson; he admitted killing Benson and claimed self‑defense. His first two convictions were reversed on appeal.
- For the third trial, potential jurors received a written questionnaire asking about prior knowledge and opinions concerning the case (including mention of prior proceedings reported in the media).
- After reviewing the questionnaires in chambers (outside Slert’s presence) and conferring with counsel, the trial judge excused four prospective jurors in open court; the questionnaires and in‑chambers discussion are not in the record.
- Slert did not object at trial to his exclusion from the in‑chambers discussion; he raised the right‑to‑be‑present claim for the first time on appeal.
- The Court of Appeals found the absence violated Slert’s right to be present and was not harmless; the Washington Supreme Court reviewed preservation and harmless‑error issues and reinstated the conviction.
Issues
| Issue | Plaintiff's Argument (Slert) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Was Slert’s exclusion from an in‑chambers discussion about juror questionnaires a violation of his right to be present? | Irby establishes jury‑selection discussions are a critical stage; absence violated article I, §22 and federal due process. | Concedes Irby applies; acknowledges right existed. | Yes, Irby gives the right to be present for such juror‑fitness discussions. |
| Was the right‑to‑be‑present claim preserved for appellate review? | Slert raised the claim on appeal; trial record lacks contemporaneous objection so claim preserved under constitutional protection. | Failure to object at trial waived the claim; Jones and Elmore show untimely objections for similar issues preclude review. | Waived/unpreserved: Slert failed to preserve the claim by not objecting at trial. |
| If a right‑to‑be‑present violation occurred, was it harmless beyond a reasonable doubt? | The State cannot show the excluded jurors had no chance to sit; under Irby, the State must prove harmlessness and failed to do so. | The questionnaires and the judge/counsel decision indicate the excused jurors had disqualifying knowledge/opinions; exclusion was therefore harmless. | Harmless beyond a reasonable doubt: court infers excused jurors had disqualifying views from record and lack of timely objection; reinstates conviction. |
| Does the law‑of‑the‑case doctrine bar reconsideration of preservation/harmlessness here? | Earlier remand focused on public‑trial issue; law‑of‑the‑case precludes relitigation. | This court may address preservation and harmlessness necessary for final disposition. | Law of the case does not bar review; Supreme Court reached preservation/harmlessness issues. |
Key Cases Cited
- United States v. Gagnon, 470 U.S. 522 (recognizing defendant’s federal right to be present at critical stages)
- State v. Irby, 170 Wn.2d 874 (2011) (right to be present applies to jury‑selection communications; State must prove harmlessness)
- State v. Jones, 185 Wn.2d 412 (2016) (failure to timely object can forfeit a right‑to‑be‑present claim)
- State v. Elmore, 139 Wn.2d 250 (1999) (issues not objected to at trial are generally unpreserved on appeal)
- State v. Caliguri, 99 Wn.2d 501 (harmless‑error standard for constitutional violations)
- State v. Slert, 181 Wn.2d 598 (2014) (prior Supreme Court opinion addressing related public‑trial issue that prompted remand)