STATE of Washington, Respondent, v. Conner Michael SCHIERMAN, Appellant., 438 P.3d 1063

GORDON McCLOUD, J. ¶1 Conner Schierman was convicted of four counts of aggravated first degree murder and sentenced to death. He appeals his convictions and sentences on multiple grounds. For the reasons given below, we affirm all of his convictions. As further discussed below, a majority of this court also rejects Schierman's challenges to his death sentence. ¶2 However, I would hold that two critical, erroneous evidentiary rulings during Schierman's penalty phase proceedings require reversal of that death sentence. That would ordinarily require a remand for a resentencing hearing.

I therefore go on to conduct our court's statutorily required proportionality review. I conclude that imposition of the death penalty on Schierman violates our state statutory guaranty against disproportionate capital sentencing. For the reasons given in this opinion, I would reverse Schierman's death sentences and remand for imposition of the only statutorily permissible penalty: four consecutive sentences of life in prison without the possibility of parole. FACTS ¶3 On the morning of July 17, 2006, officials responded to a fire at the home of Leonid and Olga Milkin, a married couple.

When firefighters eventually extinguished the flames, they found the bodies of Olga, Olga's sister Lyuba, and Leonid and Olga's two young sons, Andrew and Justin. The women's bodies appeared to have been undressed or partially undressed at the time of the fire. At the time of the fire, Leonid was stationed overseas.

An investigation revealed that someone had used accelerants to set the fire, and autopsies revealed that each victim had been stabbed to death before the fire began. ¶4 On the morning of the fire, witnesses observed someone who looked like the defendant, Conner Schierman, carrying a gas can in front of the Milkin home. Police contacted Schierman and observed that he had scratches and cuts on his face, head, and neck. Schierman told them that he had intervened in a domestic dispute in the early morning hours of July 17 and had been hurt in the process.

Police subsequently discovered a videotape of Schierman filling a gas can at a nearby AMPM on the morning of the fire. Eventually, Schierman agreed to come to the police station, where he made three taped statements. ¶5 In his third statement, Schierman admitted to being in the Milkin home. He said that he woke up on the morning of July 17 covered in blood, lying in an upstairs bedroom in the Milkins' home and unable to remember how he had gotten there.

He stated that he walked around the house, discovered the four bodies, showered and changed his clothes, and decided to bum down the house. ¶6 That statement to police was largely consistent with a later statement that Schierman made to defense expert Dr. Andrew Saxon. Schierman told Dr. Saxon that he started drinking in the early evening of July 16, continued drinking all evening, and went into an alcoholic blackout some time during that night. He said that he woke up bloody on a strange bed some time during the morning of July 17, and discovered a woman's body in a pool of blood. But Schierman also told Dr.

Saxon that he moved the woman's body and continued to drink while he stayed in the house. ¶7 Eventually, forensic investigators discovered Schierman's DNA (deoxyribonucleic acid) in the Milkin home. Investigators also found a pair of gloves in the home, which a witness identified as belonging to Schierman. When Leonid was permitted to return to his house, he found a fire-damaged knife, which he did not recognize, in the remaining debris. Police discovered that Schierman had purchased an identical knife several months earlier. Leonid also discovered a pair of men's shoes, recovered from an undamaged

section of the basement. Schierman had purchased an identical pair the previous November. Finally, police also found three empty vodka bottles in a backpack in Schierman's bedroom. ¶8 The State charged Schierman with four counts of aggravated murder in the first degree and one count of arson in the first degree. Jury selection began on November 13, 2009, and the jury panel was seated two months later, on January 12, 2010. ¶9 The guilt phase of the trial lasted another three months.

The defense conceded that Schierman committed arson, but argued that he panicked and set fire to the house to avoid being accused of murders that he did not commit. Schierman was convicted as charged. The penalty phase lasted almost one month; the jury voted to impose the death penalty. ¶10 The facts relevant to each of Schierman's assignments of error are summarized in the appropriate

section below. GUILT PHASE ISSUES I. Some of the Trial Court's Juror Eligibility Determinations Violated Schierman's Right To Presence (under the Sixth and Fourteenth Amendments and

Article I, Sections 3 and 22); Any Error, However, Was Harmless ¶11 Schierman argues that two separate phases of juror selection violated his right to presence. The first phase to which he assigns error lasted from late September 2009 to mid-November 2009. During that time, counsel met with King County's jury services manager to review, and sometimes agree to, potential jurors' preliminary hardship excusal requests. Schierman was not present during these meetings. ¶12 The second phase of juror selection to which Schierman assigns error took place on January 12, 2010, the last day of voir dire.

During this phase, counsel met with the trial judge in chambers, where counsel argued, and the judge ruled on, several for-cause juror challenges. Schierman was not present. ¶13 Schierman argues that excluding him from both phases violated his right to presence under the Sixth and Fourteenth Amendments to the United States Constitution, and

article I, sections 3 and 22 of the Washington State Constitution. We conclude that he had no right to presence when his attorneys reviewed juror declarations in the nonadversarial setting of the jury administrator's office. We conclude that he did have a right' to presence during the hearing on for-cause challenges, but that the error does not require reversal. Because the facts concerning these proceedings are relevant to both the presence claim (discussed here) and the courtroom closure claim (discussed below), we describe those facts here. A. Facts 1.

Preliminary Excusals for Hardship (Late September to Mid-November 2009) ¶14 The documents in the record on this appeal show that in late September 2009, jury summonses were issued to 3,000 people, directing them to report for service on November 13, 2009. A summons recipient could respond by confirming that he or she would appear or by submitting a declaration that he or she was unqualified or unable to serve. The recipients were told that their responses were made under penalty of perjury.

Judge Gregory Canova directed the jury services manager for King County, Gregory Wheeler, to review declarations of hardship with the prosecutor and defense counsel. ¶15 Per King County Superior Court's general policy, potential jurors could get hardship excusals for disability, age, a severe financial burden, or prior jury service, or because the potential juror was a single parent with young children not attending day care.

Due to the anticipated length of Schierman's trial, it was also contemplated that jurors might be excused for reasons that normally warrant only a deferral, e.g., travel plans, employment, or school. Wheeler conducted a preliminary review of the potential juror responses and created two stacks of excusal requests: one for "those that were clearly meant to be excused per court policy" and one for "requests noting a hardship of a less-than-obvious nature." Clerk's Papers (CP) at 21347-48.

He then met separately with the prosecution and defense regarding both categories of hardship request. ¶16 If everyone agreed that a declaration stated a "hardship" as defined by official court policy, Wheeler excused the potential juror without further review by the court. If the parties disagreed, Wheeler saved the disputed hardship request so that Judge Canova could review it at a hearing.

This process went on between October 19 and November 6, 2009. ¶17 The particular proceedings from which Schierman claims he was excluded were the times when his lawyers, without the State's lawyers, went to an administrative office in the courthouse to look at either hard copies of or a computer screen displaying summoned jurors' e-mailed hardship requests (for reasons not clear on this record, the screen could not be downloaded). Schierman says that he was never present at any of these early hardship excusal reviews or conferences. The State does not dispute that assertion.

Schierman was present, however, at all the hearings over disputed hardship requests. Thus, there is no claim that Schierman was deprived of the right to presence at any court proceeding or at any noncourt adversarial proceeding. Instead, Schierman claims only that he was excluded from office visits where attorneys looked at a screen or papers for information. Appellant's Opening Br. at 17-18 ("The judge made it clear that he would not review the individual hardship requests if the parties were in agreement....

Schierman was never present when the attorneys dealt with these hardship requests." (emphasis added)). ¶18 Following this preliminary procedure, the venire was sworn, on the record, on November 13, 2009. On that day, prospective jurors completed the questionnaire "designed to let [them] tell the court and the lawyers about [themselves] and about [their] views on a variety of issues." Verbatim Report of Proceedings (VRP) (Nov. 13, 2009) at 9. 2.

For-Cause Challenges in Chambers (January 12, 2010) ¶19 The record tells us quite a bit more about the challenges for cause conducted in chambers-with both sets of attorneys, the judge, and the court reporter, but without Schierman-than it tells us about what occurred during the preliminary hardship excusal reviews. The facts of the in-chambers challenges are as follows. ¶20 On January 11, 2010, the last day scheduled for voir dire, 70 potential jurors remained in the pool. At the end of that day, Schierman challenged six jurors for cause: Jurors 25, 44, 58, 76, 104, and 171.

The court heard argument from both parties on those challenges, but deferred ruling so that the parties could further question the six jurors on the following day. ¶21 On the following day, the State questioned Jurors 25 and 58.

When that questioning was over, Judge Canova stated, in open court, that he would rule "back in[ ] chambers" on a number of hardship and for-cause challenges to potential jurors: The next thing is that counsel and I are going to go with the court reporter briefly back into chambers, I'm going to rule on a number of requests for hardship that have been received by the court, I'm also going to rule on a number of challenges for cause that are before the court, that is, requests to excuse jurors for different reasons from counsel.

That will take less than ten minutes, and at the conclusion of that I will advise all of you who have been excused, if anyone, and we will then proceed to have counsel exercise their peremptory challenges, that is the selection of the jury will follow.

VRP (Jan. 12, 2010) at 15-16. ¶22 The minute entry for that same day confirms: Defendant and respective counsel present Voir dire continues Court and counsel meet in chambers re hardship and challenges Court excuses # 424, 356, 265, 218, 172, 168, 130, 104, 79, 25 (and 208 separately) As counsel exercise written peremptory challenges, the Court preliminarily instructs and admonishes the potential jurors.

CP at 10402. ¶23 Following the judge's statement and the docket notation about meeting with "counsel" in chambers regarding challenges for cause, counsel from both sides went into chambers with the judge and the court reporter. In chambers, the judge asked the State's position on jurors 25 and 58. The State opposed a for-cause challenge to both jurors. The judge nevertheless dismissed jurors 25 and 58 for cause because they indicated that they would hold it against Schierman if he did not testify.

The defense also challenged jurors 76, 171, 104, and 44 for cause based on statements that they would not "consider alcohol as contributing to mental state or lesser mental state." VRP (Jan. 12, 2010) at 20. Judge Canova denied all four challenges because he did not think the jurors' statements indicated an inability to be "fair and impartial" jurors. Id. at 20-22. He also granted hardship requests to Jurors 49, 79, 130, 172, 265, 356, and 424. He denied hardship requests to Jurors 104, 168, 218, 267, and 285.

The judge, lawyers, and court reporter then went back out to the open courtroom, and the judge explained what had just occurred in chambers: The following jurors have been excused: Juror number 424, juror number 356, juror number 265, juror number 218, juror number 172, juror number 168, juror number 130, juror number 104, juror number 79, juror number 58, juror number 49, juror number 25. These jurors are not excused because of peremptory challenges. That will come later on this morning.

VRP (Jan. 12, 2010) at 42. ¶24 Ultimately, one of the six jurors to whom the defense raised (and lost) a challenge for cause in chambers, in Schierman's absence, did sit on Schierman's jury: Juror 76. B. Analysis ¶25 A criminal defendant has a right, under the due process clause of the Fourteenth Amendment, to be present "at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987) ; In re Pers.

Restraint of Lord, 123 Wash.2d 296, 306, 868 P.2d 835 (1994) ( Lord II ).

Article I,

section 22 of Washington's Constitution also guarantees the right to "appear and defend in person." ¶26 We first address Schierman's right-to-presence challenge to the preliminary hardship determinations, and then his right-to-presence challenge to the for-cause juror challenges in chambers. 1.

Preliminary Excusals for Hardship (Late September to Mid-November 2009) ¶27 The State argues that if excluding Schierman from the preliminary hardship conferences was error, it was not of constitutional magnitude and therefore may not be raised for the first time on appeal under Rules of Appellate Procedure (RAP) 2.5(a)(3). ¶28 RAP 2.5(a)(3) does not apply in its usual fashion on appeal of a death penalty case. This court has held that we apply this procedural rule more liberally in such cases, including to asserted guilt phase errors raised for the first time on appeal. State v.

Lord, 117 Wash.2d 829, 849, 822 P.2d 177 (1991) ( Lord I ) (citing State v. Jeffries, 105 Wash.2d 398, 418, 717 P.2d 722 (1986) ). ¶29 It is clear, however, that there is no constitutional right to presence at the noncourt, nonadversarial office visits to view juror declarations that are at issue here. Thus, regardless of whether we consider this claim on its merits or under RAP 2.5(a)(3)'s gatekeeping inquiry-which requires that an asserted error "clearly Implicate[ ] a constitutional interest," State v.

Kalebaugh, 183 Wash.2d 578, 584, 355 P.3d 253 (2015) -the claim fails. ¶30 In support of his argument that the constitutional right to presence attaches to preliminary hardship determinations, Schierman relies primarily on this court's decision in State v. Irby, which recognized a defendant's right to presence at for-cause eligibility determinations made after jurors submitted written answers to juror questionnaires. 170 Wash.2d 874, 884, 246 P.3d 796 (2011).

Significantly, Irby explicitly distinguished those postquestionnaire determinations from preliminary hardship determinations, referring to the latter as "proceedings that courts have held a defendant does not have the right to attend." Id. at 882, 246 P.3d 796 (emphasis added). In this respect, Irby is consistent with case law from other jurisdictions, which generally distinguishes between dismissals that are unrelated to the facts and issues in the defendant's case (e.g., for

schedule conflicts, illness, etc.), and dismissals that implicate facts and issues particular to the case (e.g., for bias, taint, etc.). In this case, the process of defense lawyers reviewing juror declarations-in hard copy or electronic form-did not even rise to the level of a hardship excusal hearing. It was a preliminary review of documents, after which the lawyers advised the court about whether they even wanted a hearing.

Thus, with respect to the review of declarations regarding preliminary hardship determinations, Schierman's right-to-presence claim does not implicate any constitutional interest. ¶31 Finally, Schierman argues that even if a defendant's right to presence does not normally attach to preliminary hardship evaluations, it attached to the hardship evaluations here because they were conducted according to a special procedure. Appellant's Opening Br. at 24-25. He seems to refer to the fact that Judge Canova separately reviewed any disputed hardship requests with the parties. Id.

But Schierman was present any time the judge conducted such a review. He was absent only from his own lawyers' meetings with an administrator to review documents. 2. For-Cause Challenges in Chambers (January 12, 2010) ¶32 Schierman next argues that his right to presence was violated when, in his absence, counsel argued and the court ruled on several for-cause juror challenges. a. Preservation of error ¶33 Under Irby, the constitutional right to presence clearly attaches to for-cause challenges during voir dire. 170 Wash.2d at 883-84, 246 P.3d 796.

The State does not dispute this. ¶34 Instead, the State argues that even if an "error affecting a constitutional right" occurred here, this error was not "manifest" within the meaning of that rule. RAP 2.5(a)(3). We disagree. As noted above, RAP 2.5(a)(3) does not apply in is usual fashion in a death penalty case. Lord I, 117 Wash.2d at 849, 822 P.2d 177 (citing Jeffries, 105 Wash.2d at 418, 717 P.2d 722 ). But even if it did, its prerequisites are satisfied in this instance.

In order to show that an error is "manifest" under RAP 2.5(a)(3), Schierman must make "a 'plausible showing ... that the asserted error had practical and identifiable consequences in the trial of the case,' " meaning that " 'given what the trial court knew at the time, the court could have corrected the error.' " Kalebaugh, 183 Wash.2d at 584, 355 P.3d 253 (quoting State v. O'Hara, 167 Wash.2d 91, 99-100, 217 P.3d 756 (2009) ).

The error in this case meets that standard: the trial judge should have known not to hold for-cause challenge arguments in the defendant's absence, and he could easily have heard those arguments from the bench instead. Thus, the record is sufficient to allow us to determine the merits of Schierman's claim. O'Hara, 167 Wash.2d at 99, 217 P.3d 756 (" 'If the facts necessary to adjudicate the claimed error are not in the record on appeal, ... the error is not manifest.' " (quoting State v. Kirkman, 159 Wash.2d 918, 935, 155 P.3d 125 (2007) )). b.

Merits ¶35 We conclude that the trial court committed constitutional error in excluding Schierman from the discussion and rulings on six for-cause challenges. Irby, 170 Wash.2d at 884-85, 246 P.3d 796 (defendant's absence from a "portion of jury selection" violated constitutional right to presence); State v.

Slert, 181 Wash.2d 598, 609, 334 P.3d 1088 (2014) (plurality opinion) (remanding for Court of Appeals to determine whether violation of right to presence under Irby was harmless beyond a reasonable doubt), rev'd, 186 Wash.2d 869, 383 P.3d 466 (2016). ¶36 The State argues that Schierman had no right to presence at the in-chambers proceeding because that proceeding "[did] not require a resolution of disputed facts." Br. of Resp't at 36. It contends that for-cause challenges are strictly " 'legal matters' " to which the right to presence does not attach.

Id. (quoting Lord II, 123 Wash.2d at 306, 868 P.2d 835 ). ¶37 We disagree. For-cause challenges are not strictly legal arguments (to which a defendant arguably cannot contribute), but involve a factual component. They require the court to scrutinize jurors' answers and behavior for indications of bias that may be subtle. Federal precedent in other contexts supports this view. E.g., Uttecht v. Brown, 551 U.S. 1, 9-10, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007) (in determining whether juror can be impartial, the trial court must evaluate juror's demeanor; this judgment is entitled to deference).

We hold that the trial court erred when it heard for-cause challenges outside Schierman's presence. c. Harmless error ¶38 In Irby, this court presumed prejudice stemming from the right-to-presence violation at issue; accordingly, it placed the burden on the State to show that "the jurors who were excused in [the defendant's] absence ... had no chance to sit on [the] jury." 170 Wash.2d at 886, 246 P.3d 796. In adopting this test, Irby departed substantially from both federal constitutional law and our state precedent on the right to presence.

Prior to Irby, this court did not place exactly the same burden on the State. E.g., State v. Caliguri, 99 Wash.2d 501, 509, 664 P.2d 466 (1983). Instead, before we applied constitutional harmless error analysis to a violation of a defendant's right to presence, we required the defendant to "first raise at least the possibility of prejudice ." Id. (emphasis added). ¶39 Schierman contends that we should apply Irby' s presumption of prejudice (even absent "at least the possibility of prejudice") in this case, but the relevant facts in Irby are considerably different from the facts at issue here.

Irby, 170 Wash.2d at 886, 246 P.3d 796. In Irby, counsel considered prospective jurors' answers to written questionnaires and then, without consulting the defendant, agreed to dismiss several jurors without further questioning-some for hardship and some for cause. Id. at 877-78, 246 P.3d 796. Thus, in Irby, the defendant had absolutely no opportunity to " 'give advice or suggestion' " on this portion of the jury selection process. Id. at 883, 246 P.3d 796 (quoting Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 78 L.Ed. 674 (1934), overruled in part on other grounds by Malloy v.

Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ). Nor did he have any way of determining, after the fact, how the excused jurors' "alleged inability to serve [might have been] ... tested by questioning in [his] presence." Id. at 886, 246 P.3d 796. In that circumstance, it makes sense to burden the State with proving that even absent the constitutional violation, no excluded juror could have been seated. To put this another way, it does not make sense to burden the defendant with proving the unknowable. ¶40 This case is different.

Here, Schierman was present for all of the juror questioning -thus, he was present when counsel "tested" these jurors' eligibility to serve. Id. He also knew about the in-chambers argument in advance and raised no objection to its occurrence. In this respect, Schierman's absence from the in-chambers hearing is distinguishable from the facts in Irby and all of the authority on which that decision relied.

Instead, it is more similar to the situation in Slert, where such facts militated in favor of finding any error harmless. 186 Wash.2d at 875-76, 383 P.3d 466 (factual differences from Irby compelled a conclusion different from the conclusion in Irby ). ¶41 Further, Schierman does not specifically allege any prejudice resulting from the error here. Nor is any prejudice evident from the record. As noted above, the two jurors who were excused after the for-cause challenges (jurors 25 and 58) were both excused at the defendant's behest.

And of the four jurors whom the defense challenged unsuccessfully, only Juror 76 ultimately sat on Schierman's jury. Schierman does not explain how defense decisions on peremptory challenges were handled. Thus, although we conclude that the trial court erred in hearing for-cause challenges outside Schierman's presence, on this record we find the error harmless. II. Conducting Certain Juror Eligibility Determinations in a Closed Proceeding Implicates the Right to a Public Trial (under the Sixth Amendment and

Article I,

Section 22 ); the Closure in This Case, However, Was De Minimis and Thus Does Not Warrant Reversal ¶42 Schierman argues that his right to a public trial, under the Sixth Amendment to the United States Constitution and

article I,

section 22 of the Washington State Constitution, was violated when counsel met privately with the jury services manager to make preliminary hardship excusal determinations (from late September 2009 to mid-November 2009). He also argues that his public trial right was violated when counsel challenged several jurors for cause in chambers on the final day of voir dire (January 12, 2010). He asserts that the remedy for each error is reversal of his convictions. A. Preliminary hardship determinations 1. Facts ¶43 The preliminary hardship excusal determinations are described in

Section I.A.1 above. 2. Analysis ¶44 We recently held in State v. Russell that the public trial right does not attach to "work sessions" in which attorneys, parties, and the court "review juror questionnaires for hardship." 183 Wash.2d 720, 730-32, 357 P.3d 38 (2015). We explained that hardship determinations-which decide "whether a juror is able to serve at a particular time or for a particular duration "-differ fundamentally from peremptory or for-cause challenges-which determine a particular juror's ability to serve as a neutral factor in a particular case. Id. at 730, 357 P.3d 38.

And we concluded that hardship determinations do not implicate the concerns underlying the public trial right, at least where no juror was excused for hardship without further (on-the-record) proceedings unless all parties agreed. Id. at 731, 357 P.3d 38. ¶45 The preliminary hardship determinations in Schierman's case were identical in all relevant respects to the work sessions in Russell. Thus, Russell controls and Schierman's public trial right challenge to these determinations fails-regardless of whether we hold that the error was not preserved for review or the closure does not constitute error. B.

For-cause challenges 1. Facts ¶46 The in-chambers juror challenges for cause are described in

Section I.A.2 above. 2. Analysis a. Preservation of error ¶47 A claim of courtroom closure can be raised for the first time on appeal. b. Merits ¶48 The State argues that the public trial right does not attach to the proceeding at issue here-a proceeding that entailed both arguments and rulings on for-cause juror challenges. It contends that the public trial right attaches to juror questioning, but not to counsel's for-cause challenges or the trial court's rulings thereon.

In support of that argument, the State asserts that the proceeding at issue here was "functionally a sidebar." Br. of Resp't at 54-55. ¶49 We reject this argument and reaffirm that the public trial right attaches to juror challenges and the rulings thereon. We recently reiterated that it is " 'well settled that the right to a public trial ... extends to jury selection,' and ... reaffirm[ed] that the right attaches to ... for cause and peremptory challenges." State v. Love, 183 Wash.2d 598, 605, 354 P.3d 841 (2015) (first alteration in original) (citation omitted) (quoting State v.

Brightman, 155 Wash.2d 506, 515, 122 P.3d 150 (2005) ). It necessarily follows that the right to a public trial extended to the hearing on for-cause challenges in this case. ¶50 As we have explained in numerous recent cases, the public trial right attaches to proceedings that have historically occurred in open court and that implicate "the core values" underlying that right. State v. Sublett, 176 Wash.2d 58, 72, 292 P.3d 715 (2012) (plurality opinion).

These values include " 'ensur[ing] a fair trial, ... remind[ing] the prosecutor and judge of their responsibility to the accused and the importance of their functions, ... encourag[ing] witnesses to come forward, ... discourag[ing] perjury,' ... promot[ing] confidence in the judiciary," and providing an outlet for the public's "concern, outrage, and hostility." Juror challenges plainly implicate several of these values. These challenges and rulings can reflect racial, ethnic, and other forms of bias in jury selection. See Davis v. Ayala , --- U.S. ----, 135 S.Ct. 2187, 2194-95, 192 L.Ed.2d 323 (2015) ; Batson v.

Kentucky , 476 U.S. 79, 83, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Conducting them in open court, where the public can monitor the parties' use of challenges, thus contributes to the fairness of the proceedings and promotes confidence in the judiciary. This is perhaps never more important than in a contentious, notorious criminal case like this one, where community "concern, outrage, and hostility" are at their highest.

When a proceeding has historically occurred in public and implicates these values, it is not a "sidebar." ¶51 Consistent with these principles and with our opinion in Love, we hold that the public trial right attached to the proceeding at issue here.

The trial court therefore erred when it heard and ruled on six for-cause juror challenges in a closed proceeding. ¶52 In addition to arguing that the public trial right did not attach to the proceeding in question, the State argues in the alternative that any error in closing the for-cause challenges was de minimis, "so insignificant that it does not rise to the level of a constitutional violation." Br. of Resp't at 57.

This kind of error occurs when a closure implicates the values underlying the public trial right-when it involves proceedings to which that right attaches-but does not undermine those values to an extent that warrants the remedy of automatic reversal. Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996). ¶53 This argument presents us with a question of first impression. To be sure, we have rejected de minimis arguments in past cases. And one such case, State v.

Shearer, contained broad dicta purporting to completely reject "the possibility of de minimis violations" of the public trial right under any circumstances. 181 Wash.2d 564, 573, 334 P.3d 1078 (2014) (plurality opinion). But we have in fact never considered a de minimis error argument as applied to a proceeding like the one at issue here: a proceeding that involved no witness testimony, no questioning of potential jurors, and no presentation of evidence. Instead, all of our cases rejecting that argument involved the determination of facts behind closed doors. State v.

Frawley, 181 Wash.2d 452, 455-58, 334 P.3d 1022 (2014) (plurality opinion) (individual jurors questioned in chambers); Shearer, 181 Wash.2d at 567-68, 334 P.3d 1078 (individual jurors questioned in chambers); In re Pers. Restraint of Morris, 176 Wash.2d 157, 161, 288 P.3d 1140 (2012) (plurality opinion) (individual jurors questioned in chambers); State v. Paumier, 176 Wash.2d 29, 33, 288 P.3d 1126 (2012) (individual jurors questioned in chambers); State v. Wise, 176 Wash.2d 1, 7, 288 P.3d 1113 (2012) (individual jurors questioned in chambers); State v.

Strode, 167 Wash.2d 222, 224, 217 P.3d 310 (2009) (plurality opinion) (individual jurors questioned in chambers); State v. Easterling, 157 Wash.2d 167, 172, 137 P.3d 825 (2006) (pretrial motions to sever and dismiss closed so counsel could discuss "specifics" that he was reluctant to discuss in open court); Brightman, 155 Wash.2d at 510-11, 122 P.3d 150 (" 'first two or three days' " of jury selection, including juror questioning, closed to the public); In re Pers. Restraint of Orange, 152 Wash.2d 795, 801-02, 100 P.3d 291 (2004) (entire voir dire process closed to the public); State v.

Bone-Club, 128 Wash.2d 254, 256-57, 906 P.2d 325 (1995) (pretrial suppression hearing closed). ¶54 This distinction matters to the public trial right analysis. As explained above, the proceeding at issue here implicated several of the concerns underlying the right to a public trial: public jury selection (including for-cause challenges) contributes to oversight of the lawyers and the judge, reminding them of the significance of their duties and serving as a check on their biases; promotes confidence in the judiciary; and serves as an outlet for community concern.

See In re Det. of Morgan, 180 Wash.2d 312, 325, 330 P.3d 774 (2014) ; Press-Enter. Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986) (quoting Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 570, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) ). But because that proceeding involved no juror statements, witness testimony, or presentation of evidence, another purpose underlying the public trial right is not implicated: " 'discourag[ing] perjury.' " Morgan, 180 Wash.2d at 325, 330 P.3d 774 (quoting Sublett, 176 Wash.2d at 72, 292 P.3d 715 ).

Nor is it clear how arguing the for-cause challenges in public could have encouraged any witnesses to come forward. See id. Thus, unlike the closures we have held to be reversible error in the past, the closure at issue here-although error-did not fundamentally taint the process by which the court established the facts necessary to assemble the jury or decide the case. Cf.

Wise, 176 Wash.2d at 18, 288 P.3d 1113 (granting the remedy of a new trial for the erroneous closure of a portion of voir dire because "[h]ere, we cannot know what the jurors might have said differently if questioned in the courtroom"). ¶55 To properly address this kind of error, we must strike a careful balance. ¶56 On one hand, we must craft a rule that avoids the outcome warned against in Justice Stephens's concurrence/dissent: the conflation of specific procedural rights with a vague right to fundamentally " 'fair' " proceedings. Concurrence/dissent at 1151 (quoting United States v.

Gonzalez-Lopez, 548 U.S. 140, 145, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) ). The temptation created by that approach, to excuse procedural violations as harmless after the fact, leads predictably to the result that procedural rights become entirely unenforceable. We agree with the concurrence/dissent that this outcome poses unacceptable risks to our system of justice, and that certain de minimis analyses from other jurisdictions exemplify this problem. E.g. , Gibbons v.

Savage, 555 F.3d 112, 114, 121 (2d Cir. 2009) (holding closed proceeding in which potential jurors were questioned about their impartiality was de minimis violation); United States v. Al-Smadi, 15 F.3d 153, 154-55 (10th Cir. 1994) (holding that 20-minute closure of trial was de minimis solely because it was inadvertent).

We stress that our current precedent, which today's decision does not disturb, forecloses the possibility of de minimis violations involving juror questioning or witness testimony. ¶57 On the other hand, we must also avoid enforcing the public trial right in a manner so rigid and mechanistic that we do more harm than good to the values underlying that right. The rule contemplated by Shearer's dicta, which purports to preclude the possibility of de minimis error under any circumstances, would result in that harm, for two reasons.

First, a rule requiring automatic reversal for every erroneous closure, no matter how inconsequential to the ultimate fairness of the trial, is more likely to diminish than promote public confidence in the judiciary. This is no doubt why the United States Supreme Court has held that where the public trial right is concerned, "the remedy should be appropriate to the violation." Waller v. Georgia, 467 U.S. 39, 50, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984).

Second, a rule that completely forecloses the possibility of de minimis violations will often force appellate courts to choose between two undesirable outcomes: on one hand, a reversal that is a clear windfall for the defendant and waste of resources for everyone else; on the other, a holding that the public trial right does not attach at all to the proceeding in question. The policy implications of such a rule are troubling: it creates an incentive for appellate courts to find more and more proceedings exempt from Sixth Amendment and

article I,

section 10 protections altogether. This is no doubt why there is no jurisdiction we are aware of that has adopted a rule completely rejecting the doctrine of de minimis closures. ¶58 In light of these competing concerns, we hold that the doctrine of de minimis error can apply to the proceeding at issue in this case, which involved no juror questioning, witness testimony, or presentation of evidence.

We also hold, for the reasons given below, that the closure at issue here was a de minimis error and therefore does not warrant the remedy of automatic reversal. ¶59 As noted above and elaborated in Justice Yu's concurrence/dissent, the de minimis error inquiry asks to what extent the particular closure in question undermined the values furthered by the public trial right. Peterson, 85 F.3d at 43.

While this inquiry is necessarily case specific, courts applying it have considered the length of and reason for the closure (e.g., whether it was inadvertent), Brightman, 155 Wash.2d at 517, 122 P.3d 150 (collecting cases); the substance of the closed proceedings, United States v. Ivester, 316 F.3d 955, 960 (9th Cir. 2003) ; and whether that substance was contemporaneously transcribed or timely memorialized in open court, Peterson, 85 F.3d at 43. ¶60 In this case, the closure was brief and, although it was not inadvertent, it was also not objected to.

While a defendant need not object to a courtroom closure in order to preserve the issue for direct appeal, the lack of objection is some indication that the trial remained fundamentally fair. Accord Weaver v. Massachusetts, --- U.S. ----, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017) (erroneous courtroom closure does not necessarily compromise the fundamental fairness of a trial). As discussed at length above, the proceeding at issue here involved no factual determinations and thus did not implicate the purposes of the public trial right relating to the establishment of critical facts.

And finally, the proceeding was simultaneously transcribed and then immediately memorialized again in open court. VRP (Jan. 12, 2010) at 41 ("Now that everyone is back, I'm going to read off the numbers of jurors who have been excused at this point.").

These measures, while not a substitute for real-time public observation, certainly served to remind the court and counsel of their responsibilities and provide a check on possible bias, thereby ensuring the fairness of the proceedings. ¶61 The remaining purposes of the public trial right are to promote public confidence in the judiciary and ensure an outlet for community emotions.

Public confidence in-or, for that matter, basic understanding of-the judiciary would not be well served if counsel routinely examined jurors in public but then retired to chambers to characterize and argue about these jurors' expressions, answers, and demeanor. And real-time observation is certainly a better outlet for community "concern, outrage, and hostility," Press Enter., 478 U.S. at 13, 106 S.Ct. 2735, than review of a cold record is.

But in this case, the 10-minute meeting in chambers, which was contemporaneously memorialized and publicly announced immediately afterward, and occurred without testimony and without objection, cannot be said to have meaningfully undermined public confidence or participation in the judicial system.

Indeed, it is more realistic to say that reversing four convictions for aggravated murder resulting from a months-long trial on the basis of a 10-minute in-chambers discussion-which the parties apparently agreed to and which resulted in no testimony, no evidence, and no secrets-would be more likely to diminish public confidence in the judiciary. ¶62 For these reasons, we adopt a limited de minimis exception to our rule of automatic reversal for all violations of the public trial right.

We reject Shearer 's dicta foreclosing the possibility of de minimis violations altogether, and we hold that the 10-minute closure at issue here-to which there was no objection and which involved no juror questioning, witness testimony, or presentation of evidence, and was simultaneously transcribed and immediately afterward memorialized in open court-was a de minimis violation of the right to a public trial. III. The Trial Court Did Not Violate Schierman's Right to Counsel under the Sixth Amendment or

Article I,

Section 22 When It Excused Approximately 100 Jurors for Hardship and Two Jurors for Age-Related Reasons ¶63 Schierman argues that his right to counsel under the Sixth Amendment to the United States Constitution and

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section 22 of the Washington State Constitution was violated when a defense paralegal agreed to the excusal of approximately 100 prospective jurors for hardship. He also argues that his right to counsel was violated when the jury coordinator excused two jurors for age-related reasons. We reject both of these challenges. A. Facts 1.

Hardship excusal of approximately 100 jurors after consultation with paralegal ¶64 On October 19, 2009-the first day on which Wheeler (the jury services coordinator) reviewed hardship requests with counsel-a defense paralegal from Connick's office came to the courthouse and met with Wheeler. Wheeler believed that the paralegal was an attorney from defense counsel's office, although the paralegal did not actually state that she was an attorney. Wheeler told the paralegal that the State did not object to granting hardship requests for approximately 100 individuals.

The paralegal agreed that those individuals could be excused on behalf of the defense. Wheeler excused the 100. ¶65 Approximately 30 minutes later, Connick found out what his paralegal had done and e-mailed the court that there had been a mistake. The e-mail stated that the defense did not agree to the dismissals. By that time, however, the court had already dismissed the 100 jurors. ¶66 On October 20, 2009, the trial court held an in-chambers conference to address the issue.

At the conference, Connick was, according to the court, "quite candid in acknowledging that it had been his mistake in communicating with his paralegal." VRP (Oct. 28, 2009) at 7. Defense counsel gave "no indication that the defense was planning to pursue any remedy, to the extent there might be one, for the mistake." Id. 2. Jury coordinator's excusal of two jurors for age-related reasons ¶67 On Friday, October 16, 2009, jury coordinator Patricia Rials sent an e-mail to Wheeler informing him that two potential jurors "were excused for Age Related Reasons." CP at 24703.

The e-mail stated that one excused juror was 84 years old and the other was 88, and also explained that the excusal "was done via telephone ... no back-up information." Id. (alteration in original). B. Analysis ¶68 A criminal defendant has the constitutional right to counsel at all "critical stages" of the proceedings. State v. Robinson , 153 Wash.2d 689, 694, 107 P.3d 90 (2005). 1. Hardship excusal of approximately 100 jurors after consultation with defense paralegal ¶69 Schierman argues that preliminary hardship excusal determinations are a critical stage of the criminal proceedings.

He does not cite any authority; he makes only the broad argument that "[j]ury selection is a critical stage." Appellant's Opening Br. at 36. ¶70 The State argues that the right to counsel cannot attach to a determination that may be delegated to court staff. More specifically, it argues that a hardship excusal cannot be a "critical stage" of the criminal proceedings because it involves no "judicial decisionmaking." Br. of Resp't at 65. ¶71 Schierman is correct that the "critical stage" determination does not turn on the presence or absence of judicial decision-making. E.g., United States v.

Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (right to counsel attaches to postindictment lineup). However, if the right to counsel is claimed for a nonjudicial proceeding, that proceeding constitutes a " 'critical stage' " only if "the accused [is] confronted ... by the procedural system, or by his expert adversary, or by both." United States v.

Ash, 413 U.S. 300, 311, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). ¶72 The necessary corollary of this rule is that if the accused is not in front of a judge, not confronted by the procedural system, not confronted by the adversary, and not really confronted at all, then the right to counsel does not attach. In this case, the trial court established a hardship determination procedure that afforded both parties an opportunity to object.

One of the steps in that procedure was that the lawyers could view juror hardship determinations-some of which came in online and some of which came in on paper-in the jury administrators' office. The State and the defense did go to that office, but they went separately. They looked at declarations there, just as they might look at declarations in the privacy of their own offices. Then, based on their record review, they informed the administrator and the judge about whether a hearing was necessary. Every time a party requested a hearing, the request was granted.

Thus, this is not a situation where the State was represented at an adversarial proceeding and the defendant was not. ¶73 Even if it were, the invited error doctrine prohibits a party from appealing on the basis of an error that he or she "set up" at trial. City of Seattle v. Patu, 147 Wash.2d 717, 720, 58 P.3d 273 (2002) (citing State v. Pam, 101 Wash.2d 507, 511, 680 P.2d 762 (1984), overruled on other grounds by State v. Olson, 126 Wash.2d 315, 893 P.2d 629 (1995) ). In this case, defense counsel both caused the error and failed to request any remedy when given the opportunity.

Thus, the error was invited and Schierman cannot raise it now, on appeal. 2. Jury coordinator's excusal of two jurors for age-related reasons ¶74 Schierman's assignment of error to these dismissals is contradicted by the record. The e-mail from Rials to Wheeler identified the two excused jurors by name. CP at 24703. On October 22, 2009, defense counsel sent an e-mail to Wheeler identifying these same two jurors by name and agreeing to their excusal for "adv.age." CP at 25068. IV.

The Trial Court Did Not Err, under This Court's Decisions in Dearbone and Luvene , by Permitting the State To File a New Notice of Special Sentencing Proceeding in November 2009 ¶75 RCW 10.95.040(1) provides, "If a person is charged with aggravated first degree murder as defined by RCW 10.95.020, the prosecuting attorney shall file written notice of a special sentencing proceeding to determine whether or not the death penalty should be imposed when there is reason to believe that there are not sufficient mitigating circumstances to merit leniency." RCW 10.95.040(2) provides that the notice must be filed "within thirty days after the ... arraignment." In Dearbone and Luvene, this court held that RCW 10.95.040(2) requires strict compliance. ¶76 Schierman argues that before the State filed the notice of special sentencing proceeding in his case, it failed to charge him with aggravated first degree murder "as defined by RCW 10.95.020 " because it omitted some of the language describing the aggravating factor alleged.

RCW 10.94.040(1) (emphasis added). He argues that the notice of special sentencing proceeding was therefore invalid under Dearbone and Luvene. We reject this argument. A. Facts ¶77 The State charged Schierman on July 24, 2006, with four counts of aggravated first degree murder and one count of first degree arson. Count I alleges that Schierman premeditatedly caused the death of Olga and "that further aggravating circumstances exist, to-wit: there was more than one victim; Contrary to RCW 9A.32.030(1)(

a) and 10.95.020(10)." CP at 1. Counts II, III, and IV allege similarly that Schierman murdered Lyuba, Justin, and Andrew. They also included the following language: [The State accuses Schierman] of the crime of Aggravated Murder in the First Degree, a crime of the same or similar character and based on a series of acts connected together with another crime charged herein, which crimes were part of a common scheme or plan, and which crimes were so closely connected in respect to time, place and occasion that it would be difficult to separate proof of one charge from proof of the other, committed as follows: ....

Id. (boldface omitted). The remainder of each count alleged the existence of aggravating circumstances: "to-wit: there was more than one victim; Contrary to RCW 9A.32.030(1)(

a) and 10.95.020(10), and against the peace and dignity of the State of Washington." CP at 2. ¶78 On October 20, 2006, at defense counsel's request, the court extended the deadline for filing the notice of intent to seek the death penalty to January 31, 2007. The State filed the notice on January 30, 2007. ¶79 At an omnibus hearing on October 23, 2009, the State notified the court and the defense that the charging information contained a "scrivener's error ... with respect to the aggravating factor." VRP (Oct. 23, 2009) at 126.

The State explained that although the information cited to the correct statute where it alleged the existence of aggravating circumstances, it omitted part of the statutory language.

The information alleged that there was "more than one victim; Contrary to ... [RCW] 10.95.020(10)," CP at 1-2, but the full language of RCW 10.95.020(10) reads: "There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person ." (Emphasis added.) The State moved to amend the information to add the missing language. ¶80 The court heard argument on that motion on November 3, 2009.

The State admitted its error but argued that the amendment would not prejudice the defense, since "there ha[d] never been ... any question in this case as to which aggravating factor was alleged." VRP (Nov. 3, 2009) at 100. The defense objected that it would be prejudiced if the State were permitted to amend the information.

It argued that it would have conducted discovery differently had it known that the State would allege that the murders were part of a common scheme or plan, the result of a single act of the person, or both. ¶81 The court granted the State's motion to amend the information, concluding that the defense would not be prejudiced since if the amendment changed the charging instrument at all, it would only add to the State's burden. The court's order states that the "Amended information corrects [a] scrivener's error." CP at 6764.

The amended information is identical to the original information except that it alleges the full aggravating circumstance listed in RCW 10.95.020(10) : "There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person ." CP at 6766-68 (emphasis added). ¶82 The State filed a new death penalty notice on the same day (November 3, 2009). CP at 6769. The defense filed a motion to strike that notice, arguing that the original notice of special proceedings had been based on a faulty charging information and that it was now too late to file another notice.

The court denied that motion, ruling that the original charging information had properly pleaded the aggravating circumstance listed at RCW 10.95.020(10). B. Analysis ¶83 Schierman argues that the original information did not properly charge him with aggravated first degree murder, that the original notice of special sentencing proceeding was therefore invalid, and that the subsequent notice of special sentencing proceeding was therefore untimely. Accordingly, he argues that the State never filed a valid notice of special sentencing proceeding and that it therefore may not seek the death penalty.

He relies on Dearbone and Luvene. ¶84 We disagree. Schierman does not point to any defect in the content or timing of the original notice of special sentencing proceeding. He identifies instead a defect in the information, i.e., that it failed to specifically allege that the murders were "part of a common scheme or plan or the result of a single act of the person." CP at 6764-68. That is not a defect in the death notice. And, in fact, the information did contain the "common scheme or plan" language-just not in the usual place.

Its failure to include the "single act of the person" language is not a defect in the content, filing, or service of the death notice. RCW 10.95.020(10). We therefore reject Schierman's argument that the notice of special sentencing proceeding was invalid. V.

The Trial Court Misunderstood the Standard Applicable to the Defense's For-Cause Juror Challenges, But It Did Not Violate Schierman's Rights to Due Process and an Impartial Jury (under the Sixth and Fourteenth Amendments) ¶85 The Sixth and Fourteenth Amendments to the United States Constitution guarantee a criminal defendant the right to trial by an impartial jury. Morgan v. Illinois, 504 U.S. 719, 726, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). In a capital case, the trial court must ensure that the jury is composed of members who can apply the State's death penalty law impartially. State v.

Brown, 132 Wash.2d 529, 598, 940 P.2d 546 (1997). ¶86 Schierman argues that the trial court violated his right to an impartial jury by applying unequal standards in its death qualification rulings. He contends that the court applied a harsher standard-more likely to result in a juror's dismissal-when a juror expressed opposition to, as opposed to approval of, the death penalty. A.

Facts ¶87 On December 1, 2009, defense counsel challenged Juror 25 for cause, arguing that the juror's questionnaire responses indicated he would not consider mitigating factors during the penalty phase if Schierman were found guilty of aggravated, premeditated first degree murder.

The trial court and defense counsel then debated the standard applicable to "disqualification of a juror for cause because of their favoring the death penalty." VRP (Dec. 1, 2009) at 56. ¶88 The trial court opined that under Morgan, a juror could not be disqualified on the basis of his or her support for the death penalty unless "the person really has an automatic reaction ... [and] will impose the death penalty if [the defendant] is convicted of a particular crime regardless of any ... mitigating circumstances." Id. The court also opined that a different standard applied to jurors who opposed the death penalty.

It rejected defense counsel's for-cause challenge because it concluded that Juror 25's questionnaire responses indicated that he would consider mitigating circumstances "if we reach a sentencing phase." Id. at 60. ¶89 Defense counsel objected, arguing that Juror 25's responses indicated that he would consider mitigating circumstances only "insofar as [they] relate[ ] to the offense itself." Id. at 61. Defense counsel also objected to the court's

interpretation of Morgan. The following day, defense counsel filed a written motion arguing that the correct standard for disqualifying a juror because of his or her views on the death penalty was " 'whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." ' " CP at 6972 (boldface omitted) (quoting Morgan, 504 U.S. at 728, 112 S.Ct. 2222 (quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985) )).

Counsel argued that this standard, articulated by the United States Supreme Court in Witt, applied to both pro- and anti-death-penalty jurors. In this motion, the defense asked the court to disqualify for cause Jurors 14, 20, and 25. ¶90 In response, the State filed a motion arguing that different standards apply to jurors who oppose and jurors who favor the death penalty.

According to the State, jurors who oppose the death penalty may be excluded on that basis whenever their opposition would "substantially impair them from performing their duties," but jurors who favor the death penalty may be excluded on that basis only when they "would automatically impose the death penalty." CP at 6977. ¶91 On December 8, 2009, the trial court issued a lengthy oral ruling on the parties' motions and the meaning of the Morgan decision.

It concluded that its prior rulings were correct, and that United States Supreme Court precedent applicable in this state under Brown, 132 Wash.2d at 598, 940 P.2d 546, established different standards for disqualifying pro-death-penalty and anti-death-penalty jurors. The court specifically agreed with the view expressed in footnote 5 to Justice Scalia's dissent in Morgan : that the majority's holding resulted in a "double standard" for capital jury qualification.

VRP (Dec. 8, 2009) at 226; see also Morgan, 504 U.S. at 750 n.5, 112 S.Ct. 2222 (Scalia, J., dissenting). ¶92 On December 22, 2009, the trial court excluded Juror 302 on the ground that her anti-death-penalty sentiments rendered her ineligible under the Witt standard. Defense counsel again objected that the application of different disqualification standards to pro- and anti-death-penalty jurors violated "fundamental fairness." VRP (Dec. 22, 2009) at 82-83.

The court declined to address the issue further. ¶93 Schierman argues that the trial court's application of this " 'asymmetrical standard' " resulted in the seating of two jurors who were "substantially impaired" in their ability to be impartial (Jurors 59 and 140), and the erroneous exclusion of Juror 280. Appellant's Opening Br. at 47, 55. 1.

Juror 59 ¶94 On December 8, 2009, the defense challenged Juror 59 for cause, arguing that that juror believed the defense had the burden to prove mitigation and that he would consider only limited mitigating evidence, such as "a psychiatrically diagnosed condition." VRP (Dec. 8, 2009) at 103-04. The trial court rejected the challenge under both the Morgan standard -which it believed applied to jurors who favored the death penalty-and the Witt standard-which it assumed applied "for the sake of discussion." Id. at 106-09.

The court specifically noted that Juror 59 admitted he knew little about the law and said that he would follow the court's instructions. Id. at 108. It also concluded that Juror 59 "was fine with the presumption of life being the presumed sentence in the penalty phase ... and ... would follow that presumption." Id. at 108-09. Ultimately, Juror 59 was dismissed before the jury began its deliberations. 2. Juror 140 ¶95 The challenge to Juror 140 proceeded similarly to the challenge to Juror 59.

The defense moved to disqualify Juror 140 because her questionnaire responses indicated that she thought the defendant should get the death penalty "if he is convicted." VRP (Dec. 9, 2009) at 40. The trial court rejected the challenge because it concluded that Juror 140 had, on further questioning by counsel for both parties, shown herself to be capable of applying the law as instructed by the court. ¶96 Juror 140's responses to counsel's in-person questions were somewhat ambiguous.

In response to questions by defense counsel, Juror 140 stated that she didn't think "where [a defendant] came from in their own life and circumstances" should make any difference at sentencing, provided the defendant was "convicted of intentional, premeditated[ ] murder." Id. at 32. She also agreed that if a defendant were convicted of premeditated murder, "then ... the death penalty is the only appropriate penalty for a guilty murderer like that." Id. at 32-33.

In response to questions by the State, however, Juror 140 stated that even if a defendant were convicted of premeditated murder, "he might not need death, you know, there might be hope ... for this person." Id. at 37. She also agreed that she was "okay with the ... idea ... [t]hat [a defendant convicted of aggravated premeditated murder] could spend the rest of [his] days in prison," instead of facing execution, because she didn't "know the whole story yet" and stated that she "can't go with what my heart tells me, I've got to listen to the facts of the whole thing and be open." Id. at 38-40.

She repeatedly emphasized the possibility that a person who committed premeditated murder might be truly sorry and "better himself." Id. at 38. She stated that she was "open to the idea" that "fairness or mercy" could play a role in sentencing "because we don't know the whole story yet." Id. at 39. She also stated her willingness to apply a presumption in favor of life in prison without parole. ¶97 As with Juror 59, the trial court concluded that Juror 140 should not be disqualified under either the " Morgan " (automatic death penalty) standard or the Witt (substantial impairment) standard. Id. at 44-45, 48. 3.

Juror 280 ¶98 In response to questioning by the court, Juror 280 stated that she would probably have difficulty imposing the death penalty because "the death penalty is definitely finite, and there's no going back. I also think that it's kind of arbitrary, from kind of state to state, and perhaps maybe if you have more money you might get a better judgment." VRP (Dec. 21, 2009) at 22. She clarified that she could impose the death penalty under "really clearcut ... circumstances where ... if the person was let out they would kill again." Id.

In response to questioning by defense counsel, Juror 280 indicated that she might have trouble following the court's instructions during the penalty phase because her personal "bar [to imposing the death penalty] may be different than what the court instructs." Id. at 29.

She then repeated that her "bar" was that the death penalty should be imposed only on a "person ... likely to kill again." Id. at 30. ¶99 The trial court granted the State's for-cause challenge to Juror 280, finding that her approach to the death penalty would add to the State's burden of proof: "She has [her ability to impose the death penalty] narrowed down to one very, very limited set of facts and that set of facts clearly, in the court's view, would substantially impair her ability to follow the court's instructions as to the law to be applied in this case." Id. at 39. B.

Analysis ¶100 In the death-qualification context, the State, as well as the defendant, is entitled to an "impartial jury." State v. Hughes, 106 Wash.2d 176, 185-86, 721 P.2d 902 (1986) (" 'The guarantee of impartiality cannot mean that the state has a right to present its case to the jury most likely to return a verdict of guilt, nor can it mean that the accused has a right to present his case to the jury most likely to acquit. But the converse is also true.

The guarantee cannot mean that the state must present its case to the jury least likely to convict or impose the death penalty, nor that the defense must present its case to the jury least likely to find him innocent or vote for life imprisonment.' " (quoting Smith v. Balkcom, 660 F.2d 573, 579 (5th Cir. 1981) )). The United States Constitution and Washington's constitution provide the same degree of protection for the impartial jury trial right in the death-qualification context.

Brown, 132 Wash.2d at 598, 940 P.2d 546. ¶101 For the reasons that follow, we conclude that the trial court erred when it ruled that different disqualification standards apply to jurors who oppose, and jurors who favor, the death penalty. But we also conclude that this error did not deprive Schierman of his state and federal constitutional right to an impartial jury. 1.

The trial court erred when it ruled that different disqualification standards apply to pro- and anti-death-penalty jurors ¶102 In Witt, the United States Supreme Court held that a prospective juror may be dismissed for cause "because of his or her views on capital punishment" if those views would " 'prevent or substantially impair the performance of his [or her] duties as a juror.' " 469 U.S. at 424, 105 S.Ct. 844. In embracing that standard, the Court rejected statements in an earlier case, Witherspoon v.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), to the effect that a potential juror could not be dismissed for his opposition to the death penalty unless he " 'states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal.' " Witt, 469 U.S. at 418 n.2, 105 S.Ct. 844 (emphasis omitted) (quoting Maxwell v. Bishop, 398 U.S. 262, 265, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970) and citing Boulden v.

Holman, 394 U.S. 478, 482, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969) ). ¶103 Contrary to the trial court's ruling in Schierman's case, Witt's "substantial impairment" standard governs for-cause dismissals based on either opposition to or support for the death penalty. See Morgan, 504 U.S. at 728-29, 112 S.Ct. 2222 ; Ross v. Oklahoma , 487 U.S. 81, 85, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). There is no separate, stricter requirement that protects "death-prone jurors" from dismissal unless they admit that they would "automatically" vote for the death penalty.

Witt, 469 U.S. at 418 n.2, 105 S.Ct. 844. ¶104 Morgan did not change that. Rather, it reaffirmed and elaborated the Court's earlier holding, in Ross, that a juror is per se ineligible under the Witt standard if he or she will automatically vote to impose the death penalty upon a defendant's conviction in a capital case: A juror who will automatically vote for the death penalty in every case will fail in good faith to consider the evidence of aggravating and mitigating circumstances as the instructions require him to do.

Indeed, because such a juror has already formed an opinion on the merits, the presence or absence of either aggravating or mitigating circumstances is entirely irrelevant to such a juror. Therefore, based on the requirement of impartiality embodied in the Due Process Clause of the Fourteenth Amendment, a capital defendant may challenge for cause any prospective juror who maintains such views. If even one such juror is empaneled and the death sentence is imposed, the State is disentitled to execute the sentence.

Morgan, 504 U.S. at 729, 112 S.Ct. 2222 (emphasis added). ¶105 Indeed, the standard for juror exclusion was not even at issue in Morgan -the case concerned only the defendant's entitlement to ask certain questions during voir dire. The Morgan Court rejected the argument that "general fairness and 'follow the law' questions ... are enough to detect those in the venire who automatically would vote for the death penalty," reasoning that a juror might sincerely believe that his or her "dogmatic views" are fair, impartial, and consistent with the law. Id. at 734-35, 112 S.Ct. 2222.

It therefore held that such questions do not suffice, under the Fourteenth Amendment, to protect the defendant's right to an impartial jury. U.S. CONST. amend. XIV. ¶106 Thus, Morgan holds only that a juror who will refuse to consider mitigation at all is "substantially impaired" (and therefore ineligible to serve) as a matter of law, and that "general fairness" questions are insufficient to identify such jurors.

Contrary to the State's assertions, Morgan never held that a potential juror who harbors doubts about the death penalty is easier to exclude than a potential juror who is inclined to impose that sentence. Justice Scalia's footnote to the contrary appears in dissent and is incorrect, and the trial court erred in adopting its

interpretation of the majority's decision. 2. The trial court's error did not deprive Schierman of his state and federal constitutional right to an impartial jury; thus, he is not entitled to relief a.

Juror 59: even if the trial court erred by refusing to dismiss Juror 59, this error does not entitle Schierman to relief because Juror 59 was excluded before deliberations began ¶107 Schierman acknowledges that Juror 59 was excused before closing arguments, but argues that the mere fact of his seating "demonstrates how prejudicial the court's misreading of the law was to [the defense]." Appellant's Opening Br. at 55. ¶108 Where a trial court erroneously denies a defendant's for-cause challenge and the defendant is forced to use a peremptory challenge to cure the trial court's error, his rights are not violated so long as he is subsequently convicted by a jury on which no biased juror sat.

United States v. Martinez-Salazar, 528 U.S. 304, 307, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000) ; State v. Fire, 145 Wash.2d 152, 154, 34 P.3d 1218 (2001). Juror 59 was not excluded through peremptory challenge, but he was excluded before Schierman's jury began deliberations. Under the reasoning of Martinez-Salazar and Fire, a trial court's erroneous denial of a for-cause challenge is not independent grounds for relief. Fire, 145 Wash.2d at 165, 34 P.3d 1218 (citing Martinez-Salazar, 528 U.S. at 324, 120 S.Ct. 774 ).

Rather, the defendant is entitled to relief only when the trial court's error actually resulted in the seating of a biased juror. Id. ¶109 The trial court's refusal to dismiss Juror 59 for cause did not result in Juror 59 actually deliberating in Schierman's case. Nor does Schierman allege that the refusal indirectly resulted in the seating of any biased juror. Rather, he asserts that it illustrates the prejudicial nature of the trial court's views on for-cause dismissals. This argument asks us to assume that prejudice resulted from the court's application of an asymmetric juror-exclusion standard.

Under Fire, we cannot make that presumption. Id. Thus, even if the trial court erred in seating Juror 59, this error does not entitle Schierman to relief. b. Juror 140: the trial court did not abuse its discretion by refusing to dismiss Juror 140 for bias ¶110 Unlike Juror 59, Juror 140 did deliberate in Schierman's case. But the record does not indicate that Juror 140's seating resulted from the trial court's legal error.

Although the trial court erred in ruling that different standards apply to defense and prosecution for-cause challenges in a capital case, it explicitly stated that Juror 140 could be seated under either standard. Thus, it concluded that Juror 140's views on capital punishment would not " 'prevent or substantially impair the performance of [her] duties as a juror.' " Witt, 469 U.S. at 424, 105 S.Ct. 844. ¶111 That conclusion is reviewed for abuse of discretion. State v. Cross, 156 Wash.2d 580, 595, 132 P.3d 80 (2006).

Juror 140 stated that she would not be able to decide whether death was the appropriate penalty until she heard all the facts. She stated that she would be able to consider mitigating circumstances and apply the presumption in favor of life without parole. The trial court did not abuse its discretion in concluding that Juror 140 was not substantially impaired in her ability to follow the court's instructions and apply the law. c.

Juror 280: the trial court did not abuse its discretion when it dismissed Juror 280 for bias ¶112 Juror 280 explicitly stated that her views on the death penalty would probably prevent her from following the court's instructions. In context, this meant that she would not consider imposing the death penalty unless the State proved that Schierman would kill again if released. ¶113 In Cross, this court affirmed the trial court's exclusion of a juror who said that he " 'would have a hard time' " voting to impose the death penalty because the defendant had paraplegia and used a wheelchair.

This court reasoned that the "challenge raise[d] a difficult question because ... Cross was entitled to ask the jury to grant him mercy on the grounds of his physical state." Id. at 596-97, 132 P.3d 80. But it concluded that the trial court did not abuse its discretion by excluding the juror: "The trial judge clearly concluded that Juror 8 was not meaningfully willing or able to consider the death penalty given the specific evidence in the case.

It was not an abuse of discretion to exclude this juror." Id. at 597, 132 P.3d 80. ¶114 In light of this holding in Cross, we conclude that the trial court did not abuse its discretion by excluding Juror 280. In this case, Juror 280 told the trial court that she would probably not consider voting to execute Schierman unless the State proved that he would likely kill again. In Cross, Juror 8 told that court that he would probably not vote to impose the death penalty because the defendant had a disability.

Given the deferential standard of review applicable and the concept of "impartiality" this court adopted in Hughes, 106 Wash.2d at 185-86, 721 P.2d 902, we cannot conclude that the trial court committed reversible error by excluding Juror 280. VI. Cumulative Error in Jury Summoning and Selection Did Not Violate Schierman's Right to a Fair and Impartial Jury ¶115 The errors that occurred during jury selection do not individually warrant reversal. In this case, they do not rise to the level of cumulative error in the overall jury selection process. VII.

The Trial Court Did Not Violate Due Process Protections by Permitting the State To Argue That There Was Circumstantial Evidence of Sexual Motivation ¶116 Schierman argues that the trial court violated due process protections by permitting the State to argue that there was circumstantial evidence of a sexual motivation for the murders. We disagree. A. Facts : ¶117 On December 30, 2009, the State served the defense with a "Supplemental Memorandum And Materials In Support Of Admission Of Crime Scene And Autopsy Photographs That Include Images Of The Victims." CP at 7200 (italics omitted).

The memorandum contained a list of photographs and corresponding expert witness "Declaration[s]" interpreting the images therein. CP at 7231. According to the defense, some of the

interpretations suggested the State's intent to "assert[ ] some type of sexual motivation." CP at 7201-02. Of particular concern was medical examiner Dr. Richard Harruff's description of photograph 2548, which read as follows: "Shows the victims' legs are spread apart, in all likelihood not a result of the fire but probably reflects positioning prior to the fire; this photo also shows a flashlight in the debris." CP at 7232. The defense believed this description contradicted statements Dr.

Harruff made in a 2007 defense interview to the effect that he found nothing unusual about the posing of the victims' bodies and attributed their positioning to the "thermal effect" of the house fire. CP at 7203-04 (boldface omitted).

It also argued that any attempt by the prosecution to present a sexual motivation theory directly conflicted with the State's earlier stipulation that "there is no physical evidence of sexual assault of any of [the] victims." CP at 7202 (underline omitted). ¶118 The defense moved the court to sanction the prosecution, strike the jury pool, and continue the trial, arguing that it needed time to respond to what it deemed a completely new theory by the prosecution. The trial court set arguments on the issue for January 19, 2010, one week after jury selection was scheduled to begin.

When defense counsel argued that the motions should be decided before jury selection began, the trial court ordered that "there will be no evidence presented of sexual motivation or sexual assault, consistent with this Court's prior rulings and the prior representations of counsel for the State that that was not an issue in the case." VRP (Jan. 11, 2010) at 7. The court then stated that it would await the State's briefing and the defense reply before addressing the matter further. ¶119 When the State filed its motion in response, it asserted that it had never agreed not to pursue a sexual motivation theory.

Instead, it said it had agreed only that "there is no physical evidence of sexual assault." CP at 7347 (boldface omitted). It also argued that the defense had known "for literally years" about the circumstantial evidence of a sexual motive, and that there was no legitimate reason for defense counsel to suddenly express concern over the State's intent to pursue this line of argumentation.

The State cited the defendant's sexual comments, on the night of the murder, about one of the women across the street; the defendant's sexual banter in his email communications late into the night of July 16, 2006; the condition of Olga's body, which was found naked, on her back and with her legs spread; the condition of [Lyuba]'s body, which was found virtually naked, with the one

article of remaining clothing, her tank top, pushed above her breasts; and the presence of a probable fire trailer consisting of women's underwear in Alla Botvina's bedroom in the basement. CP at 7348 (footnotes omitted). ¶120 The trial court denied the defense motion for sanctions, for a continuance, and to strike the jury pool. It rejected defense counsel's argument that voir dire would have been conducted differently if the defense had known about the sexual motivation theory.

The trial court instead agreed with the State that the defense had received ample notice that there was "circumstantial evidence of a sexual motive." VRP (Jan. 19, 2010) at 147. This evidence was, according to the trial court, crime scene photos showing that Olga's and Botvina's bodies had been found nude or mostly nude, the presence at the crime scene of a "probable fire trailer consisting of women's underwear," and allegations that the defendant made sexual comments about one of the victims. Id. at 148-49.

The trial court also ruled that the State had not offered, and would not be allowed to present, any expert testimony regarding such a motive. Finally, the trial court ruled that the defense could re-interview Dr. Harruff on the contradiction between his initial statements and subsequent declaration regarding the positioning of the victims' bodies. B.

Analysis ¶121 The State argues that it never misled the defense regarding its intent to argue sexual motivation, and that it stipulated that there was no evidence of sexual assault only to prevent the defense from independently testing vaginal swabs taken from the adult victims. The record supports that contention. CP at 4448-56 ("State's Memorandum in Opposition to Defendant's Motion to Independently Test Extracts from Vaginal Swabs (Y-STR Testing)"). ¶122 Further, with the exception of Dr.

Harruff's statement regarding the positioning of the victims' legs, Schierman does not allege that the State withheld any sexual-motivation-related evidence. The trial court permitted the defense to re-interview Dr. Harruff about his statement prior to trial, and Dr. Harruff ultimately offered no testimony that the victims' legs were positioned apart. ¶123 As for the trial court's statement that the prosecution would not be allowed to argue a sexual motivation theory, we agree with the State that this was a "passing comment ... based on a misunderstanding-later corrected." Br. of Resp't at 125.

As the trial court explained when it ruled on this issue, the State never requested any "special finding" of a "sexual motivation." VRP (Jan. 19, 2010) at 149-50. In that respect, the fact of sexual motivation was not at issue in the case, but this did not mean that the State agreed not to argue any sexual motivation theory. Schierman argues now that he "reasonably understood the prosecutor's stipulation [regarding sexual assault] to mean that sexual motivation would not be an issue at trial." Appellant's Reply Br. at 36 (emphasis added).

But that is not a reasonable response to the State's stipulation regarding sexual assault. VIII. The Evidence Was Sufficient To Support the State's Sexual Motivation Argument ¶124 Schierman argues that by presenting its sexual motivation theory, the State ma

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