Opinion
65519-1-I
03-12-2012
STATE OF WASHINGTON, Respondent, v. JOSEPH LEWIS JONES, Appellant.
UNPUBLISHED OPINION
Dwyer, C.J.
A trial error affecting a constitutional right may be raised for the first time on appeal, but only if the appellant demonstrates that the error had practical and identifiable consequences. Because Joseph Jones has not established that communications between the judge and jury during deliberations in this case had such consequences, and because his other claims lack merit, we affirm his conviction for rape of a child in the first degree.
I
In the summer of 2005, eight-year-old S.M. told her godparents that Jones had raped her on several occasions. A family member contacted police.
On July 28, 2005, Dr. Rebecca Weister, a child abuse specialist at the Harborview Sexual Assault Center, examined S.M. She found an irregularity in her hymenal tissue consistent with either an impaling injury or sexual penetration. On August 3, 2005, child interview specialist Ashley Wilske interviewed S.M. The interview was recorded and transferred to a DVD.
In August 2005, the police concluded their investigation and forwarded the results to the King County Prosecutor. No charges were filed at that time.
In December 2006, S.M.'s cousin L.H. alleged that Jones had raped her in the summer of 2005 when she was eight years old. In January 2007, child interview specialist Carolyn Webster interviewed L.H. That interview was also preserved on a DVD.
On March 3, 2008, the State charged Jones with two counts of first degree rape of a child, one involving S.M. and one involving L.H.
At trial, the court admitted the DVDs of the victims' interviews. Following closing arguments, the court and counsel, in Jones's presence, discussed what to do if jurors asked to replay the DVDs:
THE COURT: Okay. And what will happen is if they do want to view those, then, I will close the courtroom, have them come in. I won't say anything other than that they are not to talk while we play the videos. We'll hand out the transcripts, I will tell them again they can only look at the transcripts while they are observing the video, and that as soon as the video is stopped, take the transcripts from them, send them back into the jury room.
[PROSECUTOR]: Is that going to be done with us present or-
THE COURT: If you all want to be present, yes. Normally, no.
[PROSECUTOR]: Okay.
[DEFENSE COUNSEL]: I don't have any desire to be present.
[PROSECUTOR]: I don't, either.
Report of Proceedings (April 29, 2010) at 76-77. Jones said nothing during this exchange.
During deliberations, the jury viewed the DVD of L.H.'s interview two times and the DVD of S.M.'s interview three times. Only the judge, bailiff, and court clerk were present during the replays.
The jury ultimately acquitted Jones of the charge involving L.H. but convicted him of raping S.M. He appeals.
II
For the first time on appeal, Jones contends the trial court violated his constitutional right to be present when it "repeatedly replayed critical evidence for jurors in [his] absence without informing him of his right to be present or obtaining a waiver of that right." Br. of Appellant at 1. He contends these omissions require a new trial. The State counters that the alleged error is not manifest constitutional error and therefore cannot be raised for the first time on appeal. The State's position is the correct one.
Appellate courts generally will not review a claim of error raised for the first time on appeal. An exception exists, however, for manifest errors affecting a constitutional right. RAP 2.5(a). An error affecting a constitutional right is "manifest" if the defendant can plausibly show that the error had practical and identifiable consequences at trial. State v. Lynn, 67 Wn.App. 339, 345, 835 P.2d 251 (1992). While we question whether Jones has demonstrated constitutional error, we need not decide that question, in light of our determination that he has not established that any such error was manifest.
It is a violation of a defendant's constitutional rights "for a trial court, without prior notice to the defendant, to replay a tape for a deliberating jury in the defendant's absence." State v. Rice, 110 Wn.2d 577, 613, 757 P.2d 889 (1988). Here, Jones does not dispute that he had notice of the court's proposed communications with the jury. To the contrary, he argues that he had a right to be present during any replays and that the trial court was required to ensure on the record that he understood his right to be present and that he voluntarily and knowingly waived that right.
However, even assuming that Jones had a right to be present, he cites no authority requiring that a waiver of that right be made on the record. The requirements for a valid waiver depend on the circumstances of each case, including the nature of the constitutional right at issue and the defendant's experience and capabilities. State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 979 (1994); State v. Cham, Wn.App., 267 P.3d 528, 533 (2011). Numerous constitutional rights do not require an on-the-record waiver for such a waiver to be valid. Indeed, courts have held that a waiver of the right to be present can sometimes be implied from conduct or inferred from silence following notice of a communication between the judge and a juror. See State v. Elmore, 139 Wn.2d 250, 299-300 n. 22, 985 P.2d 289 (1999) (waiver by silence); State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994) (implied waiver).
See State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475 (1996) (on-the-record waiver not required for waiver of right to testify, right to confrontation, right to remain silent, and right to self representation); State v. Woods, 143 Wn.2d 561, 608-09, 23 P.3d 1046 (2001) (no on-the-record colloquy required for waiver of a capital defendant's right to present mitigating evidence).
Here, it is undisputed that Jones was present when the court gave notice of its proposed communication with the jury during any replays. He was also present when the prosecutor asked if the replays would be done "with us present" and the court said, "[i]f you all want to be present, yes." (Emphasis added.) Arguably, a waiver can be inferred from Jones's silence in these circumstances and need not be expressly made on the record.
We decline to decide that question, however, because even assuming that Jones did not waive his right to be present, he fails to demonstrate that conducting the replays in his absence was manifest error, meaning that it had practical and identifiable consequences at trial. He concedes that the record is silent as to whether anything was said during the replays. Nevertheless, he speculates that the court might have made "a comment beneficial to the prosecution and detrimental to Jones . . . ." Br. of Appellant at 14. Such speculation is insufficient to establish manifest error, particularly when the court stated on the record exactly what it was going to say and nothing suggests that the court deviated from its plan. See State v. O'Hara, 167 Wn.2d 91, 99, 217 P.3d 756 (2009) (in determining whether alleged error had identifiable consequences, "the trial record must be sufficient to determine the merits of the claim" and if the necessary facts are not in the record, the error is not manifest); State v. Yonker, 133 Wn.App. 627, 634-36, 137 P.3d 888 (2006) (where record was insufficient to determine whether prejudicial communication between bailiff and jury occurred, reviewing court held that it would not "presume that a sworn officer of the court . . . had been guilty of misconduct" and that appellant's speculation was insufficient to establish prejudicial or manifest error).
We note that had Jones raised this issue below, the court could have made a record establishing exactly what, if anything, was said during the challenged periods.
Equally speculative is Jones's claim that jurors might have concluded that he "did not care enough about his trial to attend . . . or declined to attend based on his perception conviction was inevitable." Br. of Appellant at 15. Moreover, the record does not support this claim. Because neither defense counsel nor the prosecutor attended the replays, the jurors had no reason to notice Jones's absence or draw negative inferences from it. And because the jurors had begun deliberations, they did not likely view the replays as something Jones should be expected to attend.
Finally, even if Jones could raise this issue for the first time on appeal, he could not establish reversible error. When, as in this case, communications between a court and jury occur in the presence of a third party, a conviction will be reversed only if the defendant first establishes "the possibility of prejudice." State v. Caliguri, 99 Wn.2d 501, 508-09, 664 P.2d 466 (1983). This requirement is not satisfied by mere speculation about how the trial court's action might have influenced the jury's verdict. Yonker, 133 Wn.App. at 634-36; State v. Hunsaker, 74 Wn.App. 209, 212, 873 P.2d 546 (1994). Instead, the defendant must demonstrate a reasonably substantial possibility that the action influenced the verdict. Hunsaker, 74 Wn.App. at 212. Jones has not made this showing.
Jones raises two additional claims in his statement of additional grounds for review. Neither has merit. He contends for the first time on appeal that his constitutional rights to due process and a fair trial were violated by a three-year delay between the initial police investigation and the filing of charges. He fails, however, to demonstrate manifest error or allege any specific prejudice. Nor does he demonstrate that the record is sufficient to review such a claim, which requires consideration of the State's reasons for any delay. State v. Oppelt, 172 Wn.2d 285, 257 P.3d 653 (2011). His contention that the charges should have been severed, which is also raised for the first time on appeal, fails for essentially the same reasons. See State v. Jones, 93 Wn.App. 166, 171, 968 P.2d 888 (1998) (appellant must show that joint trial was "manifestly prejudicial" and "must show specific prejudice").
Affirmed.