Appeal from Mason County Superior Court. Docket No: 12-1-00497-8. Judge signing: Honorable Amber L Finlay. Judgment or order under review. Date filed: 04/08/2013.
Thomas E. Doyle, for appellant.
Michael K. Dorcy, Prosecuting Attorney, and Timothy J. Higgs, Deputy, for respondent.
Authored by Bradley A. Maxa. Concurring: Rich Melnick, Thomas R Bjorgen.
[184 Wn.App. 639] ¶ 1 Anthony Miller appeals his convictions of conspiracy to commit murder and murder in the first degree. During a recess before beginning voir dire, the trial court dismissed a prospective juror who inadvertently had been in the courtroom while the parties and the trial court discussed pretrial issues. Miller argues that this dismissal violated his public trial right and his right to be present at critical trial stages. We hold that (1) the trial court's pre-voir dire dismissal of the prospective juror during a recess did not implicate Miller's public trial right and (2) even if dismissal of the prospective juror during a recess violated Miller's right to be present at critical trial stages, the violation was harmless error. Accordingly, we affirm.
¶ 2 The State charged Miller with conspiracy to commit murder in the first degree and
murder in the first degree [184 Wn.App. 640] with regard to the death of his ex-girlfriend. His trial started on February 6, 2013.
¶ 3 Before the jury was impaneled for voir dire, the trial court and counsel addressed several preliminary issues in open court, including whether either party had concerns about courtroom security when Miller was not shackled or near a guard during trial. Once the court and parties resolved all preliminary issues, the court recessed. Unknown to counsel or the court, a potential juror - juror 28 - was present in the courtroom for some or all of these proceedings.
¶ 4 Fifteen minutes later, court reconvened and the trial court announced that juror 28 had been dismissed during the recess. The following discussion occurred:
[The Court]: ... [T]here was an individual who was present apparently in the courtroom here when we began these proceedings who was a prospective juror. And we have - -
[Jury Manager]: That's number 28.
[The Court]: - - because she was present during those proceedings, when she should not have been there, but down with the rest of the jurors, we've gone ...