Argued February 27, 2014.
Appeal from Snohomish County Superior Court. No. 11-1-00392-7. Honorable Ronald L. Castleberry.
Mark K. Roe, Prosecuting Attorney, and Seth A. Fine, Deputy, for petitioner.
Thomas M. Kummerow (of Washington Appellate Project ), for respondent.
AUTHOR: Chief Justice Barbara A. Madsen. WE CONCUR: Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. González, Justice Sheryl Gordon McCloud, C.C. Bridgewater, Justice Pro Tem.
[180 Wn.2d 579] ¶ 1 After an alternate was substituted for an indisposed juror, the trial court told the reconstituted jury that the remaining original jurors should bring the alternate " up to speed" as to what had already occurred and deliberate from there. The defendant claimed error for the first time on appeal because the jury was not instructed to begin deliberations anew. The Court of Appeals concluded the claimed error was a violation of CrR 6.5 that can be raised for the first time on appeal and reversed because the rights to jury impartiality and unanimity were violated. The State argues that the error was only a rule violation that does not constitute manifest constitutional error that may be raised for the first time under RAP 2.5(a)(3).
¶ 2 We affirm the Court of Appeals, although under a different analysis. It is unnecessary to address CrR 6.5 because the trial court's affirmative instruction to the reconstituted jury violated the right to a unanimous jury verdict regardless of any violation of CrR 6.5.
¶ 3 After the State rested in Lamar's trial on one count of rape of a child and one count of child molestation, the trial [180 Wn.2d 580] court gave jury instructions, including the following instruction on the jurors' duty to deliberate together in an effort to reach a unanimous verdict:
As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to re-examine your own views and to change your opinion based upon further review of the evidence and these instructions. You should not, however, surrender your honest belief about the value or significance of evidence solely because of the opinions of your fellow jurors. Nor should you change your mind just for the purpose of reaching a verdict.
Clerk's Papers at 50 (Jury Instruction 2).
¶ 4 The jury deliberated for about 45 minutes to an hour on Friday afternoon. The next Monday morning, one of the jurors notified the court he was ill and could not continue. At a hearing to address this problem, counsel for both parties agreed to replace the juror with the alternate juror. 
¶ 5 The court said it would tell the other jurors that they should review their Friday deliberations with the alternate. There were no objections. When the jury was brought into the courtroom, the court told the jury that an alternate would replace the ill juror. The court then instructed the reconstituted jury:
What I will advise you to do is this: When you go back to the jury room and begin your deliberations, you should spend some time reviewing, recapping with [the alternate] any discussion that you may have already had Friday in terms of the case so that he's first ...