Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )       No. 65519-1-I
               v.                           )
                                            )       UNPUBLISHED OPINION
JOSEPH LEWIS JONES,                         )
                                            )
                      Appellant.            )       FILED:  March 12, 2012
________________________________)

       Dwyer, C.J. -- A trial error affecting a constitutional right may be raised for 

the first time on appeal, but only if the appellant demonstrates that the error had 

practical and identifiable consequences.  Because Joseph Jones has not 

established that communications between the judge and jury during

deliberations in this case had such consequences, and because his other claims 

lack merit, we affirm his conviction for rape of a child in the first degree.

                                            I

       In the summer of 2005, eight-year-old S.M. told her godparents that Jones 

had raped her on several occasions.  A family member contacted police.  

       On July 28, 2005, Dr. Rebecca Weister, a child abuse specialist at the 

Harborview Sexual Assault Center, examined S.M. She found an irregularity in 

her hymenal tissue consistent with either an impaling injury or sexual 

penetration.  On August 3, 2005, child interview specialist Ashley Wilske 

No. 65519-1-I/2

interviewed S.M.  The interview was recorded and transferred to a DVD.              

       In August 2005, the police concluded their investigation and forwarded 

the results to the King County Prosecutor.  No charges were filed at that time.

       In December 2006, S.M.'s cousin L.H. alleged that Jones had raped her in 

the summer of 2005 when she was eight years old.  In January 2007, child 

interview specialist Carolyn Webster interviewed L.H.  That interview was also 

preserved on a DVD.    

       On March 3, 2008, the State charged Jones with two counts of first 

degree rape of a child, one involving S.M. and one involving L.H. 

       At trial, the court admitted the DVDs of the victims' interviews.  Following 

closing arguments, the court and counsel, in Jones's presence, discussed what 

to do if jurors asked to replay the DVDs:

       THE COURT:  Okay.  And what will happen is if they do want to 
       view those, then, I will close the courtroom, have them come in.  I 
       won't say anything other than that they are not to talk while we play 
       the videos.  We'll hand out the transcripts, I will tell them again 
       they can only look at the transcripts while they are observing the 
       video, and that as soon as the video is stopped, take the 
       transcripts from them, send them back into the jury room. 

       [PROSECUTOR]:  Is that going to be done with us present or-

       THE COURT:  If you all want to be present, yes. 
       Normally, no. 

       [PROSECUTOR]:  Okay. 

       [DEFENSE COUNSEL]:  I don't have any desire to be present. 

       [PROSECUTOR]:  I don't, either. 

                                          - 2 - 

No. 65519-1-I/3

Report of Proceedings (April 29, 2010) at 76-77.  Jones said nothing during this 

exchange.  

       During deliberations, the jury viewed the DVD of L.H.'s interview two 

times and the DVD of S.M.'s interview three times.  Only the judge, bailiff, and 

court clerk were present during the replays.

       The jury ultimately acquitted Jones of the charge involving L.H. but

convicted him of raping S.M.  He appeals. 

                                           II

       For the first time on appeal, Jones contends the trial court violated his 

constitutional right to be present when it "repeatedly replayed critical evidence 

for jurors in [his] absence without informing him of his right to be present or 

obtaining a waiver of that right."  Br. of Appellant at 1.  He contends these 

omissions require a new trial.   The State counters that the alleged error is not 

manifest constitutional error and therefore cannot be raised for the first time on 

appeal.  The State's position is the correct one.  

       Appellate courts generally will not review a claim of error raised for the 

first time on appeal.  An exception exists, however, for manifest errors affecting a 

constitutional right.  RAP 2.5(a). An error affecting a constitutional right is 

"manifest" if the defendant can plausibly show that the error had practical and 

identifiable consequences at trial.  State v. Lynn, 67 Wn. App. 339, 345, 835 

P.2d 251 (1992).  While we question whether Jones has demonstrated 

                                          - 3 - 

No. 65519-1-I/4

constitutional error, we need not decide that question, in light of our 

determination that he has not established that any such error was manifest.

       It is a violation of a defendant's constitutional rights "for a trial court, 

without prior notice to the defendant, to replay a tape for a deliberating jury in 

the defendant's absence."  State v. Rice, 110 Wn.2d 577, 613, 757 P.2d 889 

(1988).  Here, Jones does not dispute that he had notice of the court's proposed 

communications with the jury.  To the contrary, he argues that he had a right to 

be present during any replays and that the trial court was required to ensure on 

the record that he understood his right to be present and that he voluntarily and 

knowingly waived that right. 

       However, even assuming that Jones had a right to be present, he cites no 

authority requiring that a waiver of that right be made on the record.  The

requirements for a valid waiver depend on the circumstances of each case, 

including the nature of the constitutional right at issue and the defendant's 

experience and capabilities.  State v. Stegall, 124 Wn.2d 719, 725, 881 P.2d 

979 (1994); State v. Cham, __ Wn.App. __, 267 P.3d 528, 533 (2011).

Numerous constitutional rights do not require an on-the-record waiver for such a 
waiver to be valid.1 Indeed, courts have held that a waiver of the right to be 

present can sometimes be implied from conduct or inferred from silence 

       1 See State v. Thomas, 128 Wn.2d 553, 559, 910 P.2d 475 (1996) (on-the-record waiver 
not required for waiver of right to testify, right to confrontation, right to remain silent, and right to 
self representation); State v. Woods, 143 Wn.2d 561, 608-09, 23 P.3d 1046 (2001) (no on-the-
record colloquy required for waiver of a capital defendant's right to present mitigating evidence).  

                                          - 4 - 

No. 65519-1-I/5

following notice of a communication between the judge and a juror. See State v. 

Elmore, 139 Wn.2d 250, 299-300 n. 22, 985 P.2d 289 (1999) (waiver by 

silence); State v. Thomson, 123 Wn.2d 877, 881, 872 P.2d 1097 (1994) (implied 
waiver).  

       Here, it is undisputed that Jones was present when the court gave notice 

of its proposed communication with the jury during any replays.  He was also 

present when the prosecutor asked if the replays would be done "with us

present" and the court said, "[i]f you all want to be present, yes."  (Emphasis 

added.) Arguably, a waiver can be inferred from Jones's silence in these 

circumstances and need not be expressly made on the record.  

       We decline to decide that question, however, because even assuming

that Jones did not waive his right to be present, he fails to demonstrate that 

conducting the replays in his absence was manifest error, meaning that it had

practical and identifiable consequences at trial.  He concedes that the record is 

silent as to whether anything was said during the replays.  Nevertheless, he

speculates that the court might have made "a comment beneficial to the 

prosecution and detrimental to Jones . . . ."  Br. of Appellant at 14.  Such 

speculation is insufficient to establish manifest error, particularly when the court 

stated on the record exactly what it was going to say and nothing suggests that 

the court deviated from its plan.  See State v. O'Hara, 167 Wn.2d 91, 99, 217 

P.3d 756 (2009) (in determining whether alleged error had identifiable 

                                          - 5 - 

No. 65519-1-I/6

consequences, "the trial record must be sufficient to determine the merits of the 

claim" and if the necessary facts are not in the record, the error is not manifest); 

State v. Yonker, 133 Wn. App. 627, 634-36, 137 P.3d 888 (2006) (where record 

was insufficient to determine whether prejudicial communication between bailiff 

and jury occurred, reviewing court held that it would not "presume that a sworn 

officer of the court . . . had been guilty of misconduct" and that appellant's 
speculation was insufficient to establish prejudicial or manifest error).2

       Equally speculative is Jones's claim that jurors might have concluded that 

he "did not care enough about his trial to attend . . . or declined to attend based 

on his perception conviction was inevitable." Br. of Appellant at 15.  Moreover,

the record does not support this claim.  Because neither defense counsel nor the 

prosecutor attended the replays, the jurors had no reason to notice Jones's

absence or draw negative inferences from it.  And because the jurors had begun 

deliberations, they did not likely view the replays as something Jones should be 

expected to attend.

       Finally, even if Jones could raise this issue for the first time on appeal, he 

could not establish reversible error.  When, as in this case, communications 

between a court and jury occur in the presence of a third party, a conviction will 

be reversed only if the defendant first establishes "the possibility of prejudice."  

State v. Caliguri, 99 Wn.2d 501, 508-09, 664 P.2d 466 (1983).  This requirement 

       2 We note that had Jones raised this issue below, the court could have made a record 
establishing exactly what, if anything, was said during the challenged periods. 

                                          - 6 - 

No. 65519-1-I/7

is not satisfied by mere speculation about how the trial court's action might have 

influenced the jury's verdict.  Yonker, 133 Wn. App. at 634-36; State v. 

Hunsaker, 74 Wn. App. 209, 212, 873 P.2d 546 (1994).  Instead, the defendant 

must demonstrate a reasonably substantial possibility that the action influenced 

the verdict. Hunsaker, 74 Wn. App. at 212.  Jones has not made this showing.

       Jones raises two additional claims in his statement of additional grounds 

for review.  Neither has merit.  He contends for the first time on appeal that his 

constitutional rights to due process and a fair trial were violated by a three-year 

delay between the initial police investigation and the filing of charges.  He fails, 

however, to demonstrate manifest error or allege any specific prejudice.  Nor 

does he demonstrate that the record is sufficient to review such a claim, which 

requires consideration of the State's reasons for any delay.  State v. Oppelt, 172 

Wn.2d 285, 257 P.3d 653 (2011).  His contention that the charges should have 

been severed, which is also raised for the first time on appeal, fails for 

essentially the same reasons. See State v. Jones, 93 Wn. App. 166, 171, 968 

P.2d 888 (1998) (appellant must show that joint trial was "manifestly prejudicial"

and "must show specific prejudice").  

       Affirmed.

We concur:

                                          - 7 - 

No. 65519-1-I/8

                                          - 8 -