[No. 25458-5-III. Division Three. November 6, 2007.]
[1] Criminal Law Trial Presence of Defendant Right To Be Present Constitutional Right. The confrontation clause of the Sixth Amendment and the due process clause of the Fourteenth Amendment guarantee to criminal defendants the right to be present during all critical stages of their criminal proceedings. [2] Criminal Law Trial Presence of Defendant Right To Be Present Scope Critical Stage What Constitutes. For purposes of a criminal defendant's constitutional right to be present at all critical stages of the criminal proceeding, a critical stage is when evidence or adverse testimony is being presented or when the defendant's presence has a reasonably substantial relation to a full opportunity to defend against the charges. The defendant's presence is a condition of due process of law if a fair and just hearing would be thwarted if the defendant were absent. [3] Criminal Law Trial Presence of Defendant Right To Be Present Scope Jury Voir Dire Purpose. A criminal defendant's constitutional right to be present during all critical stages of the criminal proceeding extends to jury voir dire, but only because voir dire is substantially related to the defense and because the defendant's presence allows the defendant to give advice or suggestions, or even to supersede defense counsel. [4] Criminal Law Trial Presence of Defendant Right To Be Present Review Record as a Whole. Whether a criminal defendant's constitutional right to be present at all critical stages of the criminal proceeding was violated is determined in light of the trial record as a whole. [5] Criminal Law Trial Presence of Defendant Right To Be Present Scope Useless Gesture. Due process of law does not require a defendant's presence at a trial-related proceeding if the defendant's presence would be useless or the benefit but a shadow. [6] Criminal Law Trial Presence of Defendant Right To Be Present Absence Chamber Meeting With Juror Inquiry Into Impartiality Prejudice Demonstration Necessity. A criminal defendant claiming prejudice by being excluded from an in-chambers conference between the trial judge and an impaneled juror concerning the juror's impartiality must demonstrate how being present at the conference was necessary to secure his or her due process rights. Prejudice will not be presumed. [7] Criminal Law Trial Presence of Defendant Right To Be Present Scope Chamber Meeting With Juror Inquiry Into Impartiality. A criminal defendant's due process right to be present at all critical stages of the criminal proceeding is not violated by being excluded from an in-chambers conference between the trial judge and an impaneled juror where the conference involves the judge inquiring into whether the juror can be impartial in light of the juror's realization that he or she recognizes a witness in the case and defense counsel is provided with an opportunity to question the juror. [8] Jury Selection Challenge for Cause Discretion of Court. Deciding a challenge to a juror for cause is a matter addressed to the trial court's discretion. [9] Jury Selection Challenge for Cause Bias Actual Bias What Constitutes In General. Actual bias by a juror arises when the juror's state of mind relative to the case is such that the juror cannot try the issue impartially and without prejudice to the substantial rights of the parties. [10] Jury Selection Challenge for Cause Bias Actual Bias Nature of Issue. Whether a juror is actually biased is a preliminary question of fact that requires the trial court to assess the juror's state of mind. [11] Jury Selection Challenge for Cause Bias Actual Bias Burden of Proof Discretion of Court. A party challenging a juror for cause on the grounds of actual bias has the burden of proving by a preponderance of the evidence that the juror's state of mind relative to the case is such that the juror cannot try the case impartially and without prejudice to the substantial rights of the parties. [12] Jury Selection Challenge for Cause Bias Actual Bias Prior Employment Relationship With Victim Review. An appellate court will defer to a trial court's determinations regarding the impartiality of a juror who reveals a prior employment relationship with a victim in the case if none of the juror's statements or responses to questioning indicates any sort of actual bias. [13] Criminal Law Trial Taking Case From Jury Sufficiency of Evidence Review In General. There is sufficient evidence to uphold a conviction if any rational trier of fact, viewing the evidence in the light most favorable to the State, could have found the essential elements of the crime beyond a reasonable doubt. For purposes of sufficiency review, all reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. Circumstantial evidence and direct evidence are equally reliable. Credibility determinations are the sole province of the trier of fact and are not subject to review. Assessing discrepancies in the trial testimony and weighing the evidence also are tasks within the sole province of the trier of fact. [14] Criminal Law Evidence Circumstantial Evidence Sufficiency Relationship to Direct Evidence. The elements of a crime may be established by either direct or circumstantial evidence; neither type of evidence is more valuable than the other. [15] Evidence Weight Credibility of Witnesses Review. Determining the credibility of witnesses, assessing discrepancies in the trial testimony, and weighing the evidence are tasks for the trier of fact and are not subject to appellate review. [16] Theft Elements Value Thefts From Multiple Stores Items Seized Collectively Exceeding $250 in Value. Evidence that a criminal defendant was seen visiting several retail stores during a short time period and handing items to a passenger in the defendant's vehicle after each visit, that several items of retail merchandise were discovered in and seized from the defendant's vehicle at the time of arrest soon thereafter, and that the retail stores were able to identify the items seized as missing merchandise collectively exceeding $250 in value is sufficient to support a conviction of second degree theft under RCW 9A.56.040(1)(a). [17] Criminal Law Right to Counsel Effective Assistance of Counsel Test. A criminal defendant claiming ineffective assistance of counsel must overcome the strong presumption that counsel's performance was reasonable by showing that counsel's performance was deficient and that the deficiency was prejudicial to the defense. Deficient performance is performance that is not reasonably effective under prevailing professional norms. Deficient performance is prejudicial if there is a reasonable probability that, but for counsel's deficient representation, the result of the proceedings likely would have been different. [18] Criminal Law Right to Counsel Effective Assistance of Counsel Failure To Include Defendant in In-Chambers Conference With Juror No Right of Attendance. Defense counsel's failure to include the defendant in an in-chambers conference to question a juror about the juror's ability to remain impartial will not support a claim of ineffective assistance of counsel if the defendant had no right to be present during the conference. Nature of Action: Prosecution for second degree theft. Superior Court: The Superior Court for Spokane County, No. 06-1-00014-6, Harold D. Clarke III, J., on August 18, 2006, entered a judgment on a verdict of guilty. Court of Appeals: Holding that the defendant's constitutional rights of confrontation and due process of law were not violated by his exclusion from an in-chambers conference between the trial judge and an impaneled juror, that the trial court did not abuse its discretion by failing to excuse the juror for cause, that sufficient evidence supported the conviction, and that the defendant did not receive ineffective assistance of counsel, the court affirms the judgment. Janet G. Gemberling- and Julia A. Dooris- (of Gemberling & Dooris, PS), for appellant. Steven J. Tucker-, Prosecuting Attorney, and Kevin M. Korsmo- and Andrew J. Metts III-, Deputies, for respondent. Ά1 STEPHENS, J. James Wilson FACTS Ά2 On May 2, 2005, Wal-Mart loss prevention employee Ron VanTassel was looking for shoplifters when he saw Mr. Wilson pushing a shopping cart containing about 15 digital video disks (DVDs). Mr. VanTassel followed Mr. Wilson into the pet department and watched him take the DVDs out of the shopping cart. Mr. Wilson placed the DVDs on the back of a shelf and left the store. He then got into a car with two females. Ά3 Mr. VanTassel and Wal-Mart security guard, Chad Craig, got into Mr. VanTassel's car and followed Mr. Wilson to a Fred Meyer store. They watched Mr. Wilson go into the store. After 10 minutes, Mr. Wilson came out of the store and went to his car. He grabbed a coat from the car and put it on. He then went back into the store. Within five minutes, Mr. Wilson ran out of the store followed by a store employee. Mr. Wilson got into the car and sped out of the parking lot to a Staples store. Ά4 At Staples, Mr. VanTassel watched Mr. Wilson enter the store and come back out within a few minutes. Mr. Wilson then got into his car and left. Mr. VanTassel watched Mr. Wilson pull items from his front seat area and hand them to a female passenger in the back seat. He then proceeded to a Michaels store, where Mr. VanTassel observed similar events. Ά5 Mr. Wilson next stopped at a Rite-Aid store. He went into the Rite-Aid store for several minutes and came back out to his car. Mr. Wilson again leaned forward and handed items to the female passenger in the back seat. Ά6 At one point, Mr. VanTassel observed Mr. Wilson get out of his car and pull long strips of tin foil from his pants legs. He put the tin foil on the floorboard area of his car and sat back down. Mr. VanTassel then called the police, who stopped Mr. Wilson's car and placed Mr. Wilson under arrest. Ά7 Inside the vehicle, police found numerous DVDs, an MP3 Ά8 At the conclusion of the first day of trial, Juror No. 2 informed the trial judge's judicial assistant that she had recognized one of the State's witnesses, Rite-Aid employee Joseph Spencer. The judicial assistant informed the trial judge and the next morning, the judge held an in-chambers conference with the prosecutor and defense counsel to question the juror. Mr. Wilson was not present at the conference, and the record does not indicate whether he was aware the conference was taking place. Ά9 The juror told the trial judge that she was a former Rite-Aid employee. She said she had worked at Rite-Aid for 14 years but had to quit because of scheduling and family issues. She said that she did not know Mr. Spencer personally and had never talked to him, but knew that he worked in loss prevention. The juror told the trial judge that her employment with Rite-Aid did not impact her ability to decide the case fairly. She also said that it did not matter to her at all that a Rite-Aid store was one of alleged victims in the case. Ά10 Defense counsel then questioned the juror. The following exchange occurred: [Defense Counsel]: Is there any information that you have that would be shared in the jury room that isn't on the stand that would be unique to you because you worked there? [Juror No. 2]: No, because I would only go over the evidence that is [Defense Counsel]: And did you work at the Rite-Aid at 5520 North Division? [Juror No. 2]: I floated in there as a pharmacy technician in January a couple times and I think once in December, but his office is upstairs along with the district office people and I didn't see him at all. Report of Proceedings (RP) (June 15, 2006) at 8. Defense counsel requested that the juror be replaced with an alternate juror. Defense counsel argued that as a former employee of a victim in the case, the juror had an "inherent bias." RP (June 15, 2006) at 9. Defense counsel also argued that the juror had some unique knowledge of the Rite-Aid store that could be discussed during jury deliberations. The court then stated: I think, based on the record, I am certainly left with what she told us. Obviously, if she was still employed at Rite-Aid and if we hadn't realized that, certainly you could perhaps extrapolate from that bias and I certainly would be uncomfortable sitting there. But given the fact she hasn't worked there in four months and that she has no contact or connection with the given answers, I don't think I can remove her for cause. I don't think I have a basis on the record. It's a circumstance, but we get a lot of kind of strange circumstances on the jury. Doesn't mean that I can remove them for cause. So I am going to leave her on at this point. RP (June 15, 2006) at 10. Ά11 Mr. Wilson was convicted as charged. He was sentenced to 19 1/2 months' incarceration. This appeal follows. ANALYSIS A. In-Chamber Conference with Juror No. 2 Ά12 Mr. Wilson contends his due process rights were violated because he was not present for the in-chambers conference concerning Juror No. 2, which he maintains amounted to an extension of voir dire. Ά16 Mr. Wilson has offered no facts to substantiate a due process violation. The conference involving Juror No. 2 was simply to inquire whether she could be impartial in light of her realization that she recognized a witness in the case. As in Gagnon, this was a "short interlude" in the trial. Gagnon, 470 U.S. at 527. Mr. Wilson's counsel was able to question the juror, even though this was not required under the due process clause. Olano, 62 F.3d at 1190 (finding no due process violation where court met with juror "one on one" in chambers); cf. United States v. Stratton, 649 F.2d 1066, 1080-81 (5th Cir. 1981) (recognizing that defendant's attorney's presence is relevant to whether defendant was prejudiced by absence from proceeding). Mr. Wilson asserts that if he had been involved in the in-chambers conference, he may have been able to offer information to counsel that would have been relevant to the questioning of the juror. However, this hypothetical possibility does not rise to the level of a showing that his presence bore a reasonably substantial relation to the fullness of his opportunity to defend himself, or that a fair and just hearing was thwarted by his absence. Snyder, 291 U.S. at 105-08; Gagnon, 470 U.S. at 526; Lord, 123 Wn.2d at 306; see also United States v. Kenrick, 221 F.3d 19, 33 (1st Cir.) (stating that " 'mere speculation and bare allegations' " are insufficient to make out a due process violation (quoting United States v. McCoy, 977 F.2d 706, 711 (1st Cir. 1992)), cert. denied, 531 U.S. 961 (2000). We conclude that Mr. Wilson's presence at the in-chambers questioning of Juror No. 2 was not required under the due process clause. B. Trial Court's Failure To Excuse Juror No. 2 for Cause Ά19 Relying on State v. Fire, 100 Wn. App. 722, 998 P.2d 362 (2000), rev'd on other grounds, 145 Wn.2d 152, 34 P.3d 1218 (2001), Mr. Wilson argues Juror No. 2 had significant experience with a victim in the case and that the court should not have relied on the juror's assertions that she would be able to fairly decide the case because jurors are not likely to recognize their own personal biases. Ά20 In Fire, the defendant was charged with child molestation. The judge asked potential jurors if they had any reason for not wanting to sit on the jury. A juror raised his hand and responded: The subject matter in this case. You know, if it was, you know, somebody stealing a car or even someone getting murdered, that's, you know, fine with me. But a case in this nature, you know, I consider him a baby raper, and it should just be severely punished. I'm very opinionated when it comes to this kind of crime. I hold innocentor children from conception [are] very dear, and they should be protected. Id. at 724. The prosecutor attempted to rehabilitate the potential juror by asking him whether he would follow the court's instructions despite his strong feelings, and the juror responded affirmatively with one-word responses. Id. at 728. The trial court refused to excuse the challenged juror for cause, focusing on the juror's affirmative responses without recognizing that his initial responses demonstrated actual bias. Id. Ά21 On appeal, the court held that the prosecutor's attempts to rehabilitate the juror were insufficient, because few potential jurors "will fail to respond affirmatively to a leading question asking whether they can be fair and follow instructions." Id. The court emphasized that "appellate deference to trial court determinations of the ability of potential jurors to be fair and impartial is not a rubber stamp" where a potential juror's initial responses indicate actual bias. Id. at 729. Because the juror's initial responses clearly indicated actual bias, the trial court should have removed the juror for cause. Id. C. Sufficiency of the Evidence Ά25 Mr. Wilson claims that the State failed to prove that he committed the theft of property exceeding $250. He argues that neither of the State's witnesses, Fred Meyer employee Brian Dryden and Staples employee Jerry Wallette, could positively identify the merchandise stolen from their stores, and that the Rite-Aid merchandise only totaled $167.92, less than that required for second degree theft. Ά26 This argument does not accurately describe all the trial evidence. Mr. VanTassel testified that he watched Mr. Wilson enter both Fred Meyer and Staples. He said that after Mr. Wilson left various stores, he saw Mr. Wilson pull items from his front seat area and hand them to a female passenger in the back seat of the car. Ά27 Mr. Dryden testified that on May 2, 2005, he was contacted by police and asked to identify movies and electronic items from a bag. Mr. Dryden said that he was able to identify several DVD movies as coming from his store based on the location of the security tags. Mr. Dryden said he scanned the movies and gave a photocopy of the receipt to police. Mr. Dryden said that the value of the movies totaled $204.92. Ά28 Mr. Wallette then testified. He said that on May 2, 2005, he was contacted by police and told that they had telephones they believed had come from Staples. Mr. Wallette said he went to check the store shelf and discovered that two telephones were missing. He said that a stockperson had put the telephones on the shelf earlier in the day and that they had not sold any telephones that day. Mr. Wallette said that he generated a receipt for the police that valued the telephones at $65.08. Based on all the evidence, the jury could reasonably do the math and find that Mr. Wilson committed theft of property exceeding $250 in value. Ά29 Mr. Wilson also argues that none of the store video surveillance cameras recorded him taking items from the stores. This is not required. Mr. VanTassel observed Mr. Wilson at the Fred Meyer, Staples, Michaels, and Rite-Aid stores. Mr. VanTassel testified that after Mr. Wilson left the stores, he watched him hand items to a female passenger in his car. When Mr. Wilson was stopped by police, they found DVD movies, an MP3 player, a CD player, and two telephones in his car. Circumstantial evidence is as reliable as direct evidence when assessing the sufficiency of the evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). The evidence here was sufficient to show that Mr. Wilson committed second degree theft. D. Ineffective Assistance of Counsel Ά30 In his statement of additional grounds for review, Mr. Wilson contends he was denied effective assistance of counsel at trial when defense counsel failed to inform him about the in-chambers conference with Juror No. 2. CONCLUSION Ά33 We hold that Mr. Wilson's absence from the in-chambers conference involving Juror No. 2 did not violate his right to due process. Based on Juror No. 2's statements and responses during the in-chambers inquiry, the court did not err in refusing to dismiss the juror for cause. Further, the evidence was sufficient to support Mr. Wilson's conviction for second degree theft, and Mr. Wilson was not denied effective assistance of counsel. Ά34 We affirm. SCHULTHEIS, A.C.J., and KULIK, J., concur.