State Of Washington, Respondent / Cross-app. V. Ezekiel James Watkins, Appellant / Cross-res. (Majority)

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11: IN THE COURT OF APPEALS OF TH STATE OF WASHINGTON STATE OF WASHINGTON, No. 73352-4-1 Respondent, DIVISION ONE V. UNPUBLISHED OPINION EZEKIEL JAMES WATKINS, Appellant. FILED: December 11, 2017 ) APPELWICK, J. — Watkins was convicted of first degree murder. He argues that police elicited a confession in violation of Miranda,1 that evidence was obtained in violation of the privacy act,2 that a s arch warrant was overbroad, and that the trial.court improperly dismissed a juror. We affirm. FACTS High school student,Kathy Chou disap eared. Police contacted her exboyfriend, Ezekiel Watkins., He spoke with po ice at the police station. Watkins also took a polygraph test. He was not arreste at that time. Over one year later, Watkins'friend Gio anni Candelario told police that he had seen Watkins covered in blood and dirt on the night Chou disappeared. Candelario also told police that he told Watkins that he suspected he was involved in Chou's disappearance, :and Watkins did ot deny it. Another friend, Jon Carpenter, told police that he had given Wat!tins a shovel the night that Chou 1 Miranda v. Arizona, 384 U.S. 436,86 S Ct. 1602, 16 L. Ed. 2d 694(1966). 2 Ch. 9.73 RCW. No. 73352-4-1/2 disappeared. In light of these revelations, Detective Greg Barfield called and asked Watkins to come to the station for an int rview. They agreed to meet at the station six days later, on July 6, 2011, at 11:00 Watkins drove himself to the station. Th4 interview room was located within a secure area of the building. The area could b opened from the inside without a key. Watkins sat closest to the door. The police did not take his phone or keys. He was not handcuffed. When he began the interview at 11:24 a m., one of Detective Barfield's first statements to Watkins was as follows: So before we get started I want to mak sure you understand that we're just talking to everybody in the c se. It's new to me cause 1 wasn't involved in it back when she, w en Kathy went missing. 1 want you to know that you are free to go at any time. It's a voluntary statement. Matter of fact if you do deci e to do that, if you want to leave this door right here, you go out th t door and hang a right and that's the door you came in at. At 11:55 a.m., Detective Barfield notes that, co trary to Watkins' prior statements, phone records show that they texted and call d one another 46 times that day. Barfield tells Watkins that"We need to know ev rything," and "I'm asking you to be straight with me." At 12:04 p.m., Watkins eventually conc des that he saw Chou that night, they took a walk in the park, and finished betw en 9 and 10. At 12:16 p.m., police placed a shovel wrapped in evidence tape in the interview room in the view of Watkins. At 12:17 p.m., Detective Barfield tells Watkins, "I've given you many opportunities to tell me before I had to confr nt you if there's something that's different." No. 73352-4-1/3 Shortly thereafter, Watkins tells Detecti e Barfield that Chou cut her own throat. Watkins admits that his friend Carpent r brought a shovel and helped him bury her body. Detective Barfield pressed furt er, But Ezekiel, I have a hard time believin that she somehow gets a hold of your knife and then stabs herse f multiple times in the neck and your reaction is to not go to cal the police or call for an ambulance but to call your friend, have im meet you and you guys go and bury the body. It doesn't sit right with me. Right? And I just want you to be truthful with me about it Cause yeah I can tell, it's pretty easy honestly to tell you when yo 're being truthful and when you're not being truthful. That's how 1 k ow to ask what questions I ask because you kind of, for most peopl honestly it is very hard for them to hide a lie on their face and with t eir body. You just do things you know subconsciously. You don't re lize you're doing it. But for me it's like, it's like a red flag going up when I see it. So I'm just asking you to be straight. I'm going to gi e you an opportunity to tell me how. At 12:37 p.m., Watkins admits to stabbing Ch u, although he claims it occurred during a physical struggle between the two. Immediately thereafter, Detective Barfiel reads Watkins his Miranda rights. Watkins waived those rights, the interview con inued, and Watkins took police to the burial site later that day. Watkins was cha ged with first degree murder. His statements that day were admitted into eviden e after a CrR 3.5 hearing. A jury found him guilty. He appeals. DISCUSSIO Watkins makes four arguments. First, e argues that the State obtained incriminating statements in violation of Mira da, and the trial court erred in admitting those statements. Second, he ar ues that the trial court erred in admitting evidence that was obtained in violat on of the Washington privacy act. No. 73352-4-1/4 Third, he argues that the trial court admitted ev dence that was obtained pursuant to an overbroad search warrant. Finally, he rgues that the trial court erred in dismissing a juror due to a family emergency.3 I. Miranda Watkins first argues that the police vi lated his Fifth Amendment rights under Miranda. When Watkins confessed to st bbing Chou, he had not been given Miranda warnings. Watkins argues that th circumstances of the interview amounted to a custodial interrogation and Mir nda warnings were required. He notes that the interview occurred in a small ro m at the police station. He notes that the officer told Watkins that he needed to e truthful. Further, he claims that police strategically brought into the intervie room a piece of evidence—a shovel—that suggested that police knew Watki s was not being truthful. A. Custodial Interrogation When a state agent Subjects a suspect o custodial interrogation, the Fifth Amendment to the United States Constitution r quires that Miranda warnings must be given. 384 U.S. at 467-68. If police condu t a custodial interrogation without Miranda warnings, statements made by the su pect during the interrogation must be suppressed. Id. at 479. Whether a person is in "custody" is an objective inquiry: considering all the circumstances, would a rea onable person feel that his or her freedom was curtailed to a degree associat d with formal arrest? State v. On cross appeal, the State assigns error to the trial court's decision to exclude evidence regarding an alleged "trophy" that Watkins collected from the victim on grounds that it was overly prejudicial. But, because we affirm, we do not address this argument. 3 4 No. 73352-4-1/5 Heritage, 152 Wn.2d 210 218, 95 P.3d 345 ('004). The defendant must show some objective facts indicating his or her freed.m of movement was restricted or curtailed. State v. Lorenz, 152 Wn.2d 22, 36-3 , 93 P.3d 133(2004). We review a trial court's custodial determination de novo. Id. at 36. Watkins argues that he was subject to a custodial interrogation from the outset of the interview.4 He cites to United Stat s v. Jacobs, 431 F.3d 99, 105(3d Cir. 2005), where the court reasoned that all s ation house interrogations should be scrutinized with extreme care. Further, h argues that Detective Barfield's conduct over the course of the interview creat d a custodial setting by conveying his belief that Watkins was guilty, pressin for the truth, and placing the incriminating shovel into Watkins' view. The station house interview here is co parable to the facts in Oregon v. Mathiason, 429 U.S. 492,97 S. Ct. 711,50 L. Es. 2d 714(1977). A burglary victim told police that Mathiason was the only possib e culprit she could think of. Id. at 493. About 25 days after the burglary, the offi er told Mathiason he would like to discuss something. Id. Mathiason voluntarily ent to the police station. Id. He 4 Watkins first stresses that the trial c urt erred in applying a subjective standard to whether Watkins was subject to cu todial interrogation. He notes that, in support of its decision, the trial court cited W tkins' belief that he would be able to go to work later that afternoon after he had ju t admitted to stabbing and burying Chou. Watkins is correct that the proper standa d is an objective one. See Lorenz, 152 Wn.2d at 36-37. But, the trial court's ultim te conclusion was that "Julnder the totalit of the circumstances a reasonable rson in the defendant's sosition would not have felt that his freedom was cu ailed." (Emphasis added.) This reflects an objective analysis. And, similar t this situation, many prior cases contain passing references to a suspect's own belief. See, e.g., State v. D.R., 84 ( Wn. App. 832, 834, 836, 930 P.2d 350(1997) xplaining that the proper standard is a reasonable person standard, but also noti g that the suspect testified that he did not believe he was free to leave). No. 73352-4-1/6 was taken into a room with a closed door, and told that he was not under arrest. Id. The officer told Mathiasan that he wanted tu discuss the burglary, and that his truthfulness would possibly be considered by t e district attorney or the judge. Id. The officer falsely claimed that he had discove ed Mathiason's fingerprints at the scene. Id. Mathiason confessed after about fi e minutes. Id. The United States Supreme Court found that there was no Miranda violation. Id. at 495. It concluded that this "non ustodial situation is not converted to one in which Miranda [sic] applies simply be ause a reviewing court concludes that, even in the absence of any formal arr st or restraint on movement, the questioning took place in a 'coercive environm nt." Id. Like Mathiason, Watkins went voluntarily to the station, was told he could leave, and the police had suspicion that Watkins was involved. But, Watkins argues that this case is mire similar to Jacobs. In that case, Jacobs was a police informant. Id. at 102. Police subsequently learned that Jacobs was engaging in illegal activity that viol ted police instructions. Id. at 103. Jacobs arrived at the station upon police requ st. Id. at 103. In an open office area, police placed suitcases that they thought would elicit information from Jacobs. Id. With the suitcases in view, the pollee told her that they had information that she was assisting in the trafficking. Id. S ortly thereafter, she confessed to illegal activity. Id. at 103-04 No. 73352-4-1/7 The Jacobs court found that this was a custodial interrogation. Id. at 108. It reasoned, To recap, in Jacobs case, in addition t• (1) the questioning taking place at the FBI offices, and (2) Sullivan believing Jacobs was guilty, the following additional factors were present: (3) Jacobs was summoned to FBI: offices without xplanation; (4) Sullivan's questions were confrontational and intimidating; (5) he used interrogation tactics,,including placing t e incriminating suitcases in Jacobs' view; (6) he communicated to acobs that he thought she was guilty; (7) Jacobs felt obligated t 111 come to and stay at the questioning because she was reasonab y under the impression that she was still an FBI informant; (8) she , as not specifically told she was not under arrest before questionind began; and (9) she did not agree to meet with Sullivan with krowledge of the fact that questioning about a criminal offense woiild take place. Id. Although the suitcase placement in Jaco S is somewhat comparable to the strategic shovel placement here, Jacobs is c itically different. There, the court noted that Jacobs would have felt compelled to speak with police given her status as an informant. Id. Watkins was under no such obligation. He had denied police requests before.5 And, unlike Jacobs, police nequivocally told Watkins that he was "free to leave at any time." Id. at 107. Watkins also relies on United States v. rai head, 539 F.3d 1073 (9th Cir. There, armed officers wearing flak jackets, some with unholstered 2008). weapons, executed a search warrant on Craighead's residence. Id. at 1078. During the search, an agent told Craighead they wanted to speak with him. Id. 1 And, Craighead was told he was free to leave Id. at 1078. The agent directed him to a storage shed in the back of his hous and interviewed him for 20 to 30 For example, he once denied a police lequest for him to take a polygraph test. A few days later, Watkins changed his niind and took the test after initially refusing. 5 7 No. 73352-4-1/8 minutes. Id. at 1078. A detective was guardi g the door. Id. at 1088. Agents from three different law enforcement agencies were present for the search. Id. The court found that the interview was a custo ial interrogation. Id. at 1089. The distinctions between Craighead and Mathiason are significant. Craighead did not voluntarily go to a police sta ion. The police came to his home. See id. at 1078. Although ,he was informed h could leave, this instruction was less valuable given that he was already on his wn property, and could not retreat to the safety of his own home, which was bein searched by officers. Id. at 1088. And, the court found that the presence of multi le agencies suggested that others besides the interviewing agent might forbid hirr to leave. Id. Lorenz, is also instructive. As Lorenz's residence was being searched as part of a child molestation investigation, polio pulled her aside and questioned her. Lorenz, 152 Wn.2d at 27. The police tol Lorenz she was not under arrest and was free to leave at any time, and she sign d a statement to that effect. Id. at 37-38. But, she was not allowed to enter her railer during the search. Id. at 37. The officers then told her to " 'sit here'. " Id. t 27. She confessed in a written statement. Id. at 27-28. Lorenz argued that s e was effectively in custody for the purposes of Miranda. Id. at 36. The court rea oned that "Mt is irrelevant whether Lorenz was in a coercive environment at the time of the interview." Id. at 37. Relying on the explicit instructions that Lorenz was free to leave, the court found that Lorenz was not in custody.6 Id. at 37-38. ade by Watkins. During the critical interview, Watkins initially confessed to Detec lye Barfield that he buried Chou's remains after she had stabbed herself. Only ater did Watkins finally confess to 6 Lorenz contradicts another argument No. 73352-4-1/9 Here, the police requested an intervie . And, similar to Mathiason and unlike Craighead, Watkins voluntarily showed u at the police station at a mutually agreed time. The police told him that he was 'free to leave." They told him how to exit the station. Like Mathiason, the fact that he interview occurred in the police station setting did not render the interview cus odial. The presence of the shovel wrapped with evidence tape was less deceptiv than the false statement that the police had found Mathiason's fins er rints at th scene. This tactic did not make the interrogation custodial] In light of thes cases and Miranda's objective standard, the trial court did not err in concludin that Watkins was not subjected to custodial interrogation prior to confessing. B. Admissibilit of ost-Miranda statement Watkins' first confession occurred prior to him receiving Miranda warnings. After the police read him his Miranda warnin s, he confessed again. Watkins argues that this is an interrogation strategy hat the Supreme Court declared unconstitutional in Missouri v. Siebert, 542 U. . 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643(2004). In Siebert, the police arrested and ulti ately obtained a confession from Siebert. Id. at 604-05. In their interrogation, th police deliberately refrained from stabbing Chou. Watkins argues that because his amounted to a confession of a separate crime—unlawful disposal of human r mains under RCW 68.50.130— it supports the inference that he was in custody. But, in Lorenz the court rejected a similar argument: "it is, as the State contends, irrelevant whether the police had probable cause to arrest Lorenz (before or du ing the interview)." 152 Wn.2d at 37. Therefore, the fact that police had prob ble cause during the interview to believe that Watkins had committed a different crime than that being investigated does not establish that he was in custody. No. 73352-4-1/10 providing Miranda warnings as part of a "ques ion first" strategy. See çj. at 60506. Writing for the four justices in the plurality, Justice Souter reasoned that the key inquiry underlying Miranda is whether the warnings reasonably convey to a suspect his or her rights under Miranda: Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect ould hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the s me ground again. A more likely reaction on the suspect's part would be perplexity about the reason for discussing rights at that poi t . . . . Thus, when Miranda warnings are inserted in the midst of oordinated and continuing interrogation, they are likely to mislead nd "depriv[e] a defendant of knowledge essential to his ability to uriderstand the nature of his rights and the consequences of abandoning them." Id. at 613-14 (alteration in original) (footnote o itted) (quoting Moran v. Burbine, 475 U.S. 412, 424, 106 S. Ct. 1135,89 L. Ed. d 410 (1986)). Justice Kennedy concurred in the jud ment, and provided the fifth and decisive vote to exclude Siebert's confession. I at 618(Kennedy, J., concurring). He reasoned that "[t]he plurality is correct to onclude that statements obtained through the use of this technique are inadmis ible." Id. He agreed that "only in the infrequent case," such as Siebert, when p lice use a question-first strategy in a calculated way, post-Miranda statements mu t be excluded. Id. at 622. Adopting Justice Kennedy's analysis, this court has easoned that a trial court must suppress postwarning confessions during a deliberate two-step interrogation where a midstream Miranda warning did not e ectively apprise the suspect of his or her rights. State v. Hickman, 157 Wn. App. 767, 774-75, 238 P.3d 1240(2010). 10 No. 73352-4-1/11 Siebert was arrested prior to the first pha e of questioning. 524 U.S. at 604. But, Watkins was not under arrest and not subj ct to custodial interrogation when he first confessed. Admission of his confes ion was therefore not barred by Seibert, as framed in Justice Kennedy's con urrence, and was surely not the "infrequent case" that it contemplates. C. Waiver of Miranda Rights Watkins has fetal alcohol spectrum disorder that causes cognitive impairment. Watkins argues that his cognitive disabilities, in conjunction with the circumstances, rendered his waiver of his Miran a rights involuntary. After hearing his rights, when asked whether he is willing t continue speaking with Detective Barfield, Watkins stated, "I 'guess so." Detect ve Barfield said, "You guess so?" and "Is that a yes?" Watkins responds, "Yeah.' Under Miranda, a confession is volunta , and therefore admissible, if made after the defendant has been advised of his or her rights, and the defendant then knowingly, voluntarily, and intelligently waives those rights. State v. Aten, 130 Wn.2d 640, 663, 927 P.2d 210 (1996). Th voluntariness of a confession is determined from a totality of the circumstance under which it was made. Id. at 663-64. Factors considered include a defenda t's physical condition, age, mental abilities, physical experience, and police condu t. Id. at 664. A defendant's mental disability is relevant, but does not necessarily r nder a confession involuntary. Id. When a trial court determines a confession is v luntary, an appellate court will not disturb that finding if it is supported by substa tial evidence from which the trial 11 No. 73352-4-1/12 court could have found that the confession wa voluntary by a preponderance of evidence. Id. The State and Watkins each presen ed expert testimony on whether Watkins' waiver of his Miranda rights was kn wing and voluntary in light of his cognitive impairment. The State offered testim ny from Dr. Kenneth Muscatel. Dr. Muscatel opined that, while Watkins has cogni ive impairment, he was capable of understanding his Miranda rights and abl to knowingly, intelligently, and voluntarily waive them. The trial court concluded that Dr. Muscatel's testimony was "more persuasive" than Watkins' expert. In arguing that the trial court erred, Wat ins cites numerous facts from the record showing Watkins' impairment, such as h s low cognitive difficulties. But, Dr. Muscatel noted that he was tracking the conver ation throughout the interrogation, which suggested that his waiver was volunt ry. Based on his evaluation, Dr. Muscatel testified that he "had no questio about him being competent to understand, appreciate, and waive Miranda, if e so chose." Substantial evidence supports the trial court's conclusion that Watki s' waiver of his Miranda rights was knowing, intelligent, and voluntary. II. Privacy Act During the interviews of Watkins, polic used a handheld audio recorder that Watkins was aware of,, but also recorded Watkins via video for a period after the handheld audio recorder was turned off.7 iVatkins argues that the trial court The State agreed not to offer these r cordings that were made without Watkins' knowledge. 7 12 No. 73352-4-1/13 should have excluded observations and sum aries of the conversations, and evidence obtained in the investigation that temmed from the conversations, because the conversations were recorded in vi lation of the privacy act.8 If a party violates RCW 9.73.030, which rohibits unconsented recording of "private conversations," the proper remedy is xclusion, as well as all evidence obtained during the conversation. See State v. F'ermestad, 114 Wn.2d 828, 836, 791 P.2d 897 (1990). By contrast, if a party vi lates RCW 9.73.090(1)(b), which requires officers to inform 'persons being rec rded that they are in fact being recorded, the remedy is exclusion of the re ording only. Lewis v. Dep't of Licensing, 157 Wn.2d 446, 472, 139 P.3d 107 (2006). Whether a conversation was private under the privacy act is a question of law reviewed de novo. State v. Kipp, 179 Wn.2d 718, 728-29, 317 P.3d 1029( 014). In Lewis, our Supreme Court noted that"this court and the Court of Appeals have repeatedly held that conversations with p lice officers are not private." 157 Wn.2d at 460. There "is no reasonable exp ctation of privacy for persons in custody undergoing custodial interrogations." Id at 467. Watkins' challenge was solely to the application of the trial court order t portions of the conversation after he confessed, was arrested and was read his ri hts. Therefore, he was subject to custodial interrogation during the entirety of the ecorded conversations, Watkins' The State argues that this argument is waived. But, in his motion to exclude, Watkins argued that "violation of the a t requires not only suppression of the recordings themselves but of all evidence erived directly and indirectly as a result of that violation." Thie is sufficient to pre erve this issue. 9 Watkins confessed to stabbing Chou t roughly 12:37 p.m. Police read him his Miranda rights immediately thereafter. 8 13 No. 73352-4-1/14 conversations with police here were not "privat ." Recording those conversations did not violate the privacy; act. The trial cou did not err in denying Watkins' request to exclude the evidence. III. Search Warrant Police obtained a search warrant for Wa kins' parents' home where he had ri previously resided. The warrant specified itens to be seized, such as specific clothing items, a knife with a camouflage harlidle, a pick axe, and "[a]ny other item. . . that Detectives reasonably believe m y be associated with this crime." The warrant was granted in response to an affi avit that stated that Watkins killed Chou because Chou had been harassing Watk ns' new girlfriend. Watkins argues that the "any other item" language is over road, and therefore violated the requirement that items to be seized be describ d with particularity. The Fourth Amendment requires that se rch warrants particularly describe the place to be searched and the persons or hings to be seized. U.S. CONST. amend. IV. Warrants must enable the sear her to reasonably ascertain and identify the things that are authorized to be seized. State v. Besola, 184 Wn.2d 605, 610, 359 P.3d 799 (2015). This court rev ews de novo the issue of whether a warrant meets the particularity requirement of the Fourth Amendment. State v. Clark, 143 Wn.2d 731, 753, 24 P.3d 1006 ( 001). And, it evaluates search warrants in a common sense, practical manner, rather than using a hypertechnical standard. State v. Stenson; 132 Wn.2d 668,6 2, 940 P.2d 1239 (1997). 14 No. 73352-4-1/15 Quoting Marron v. United States, 275 U. • 192, 196,48 S. Ct. 74,72 L. Ed. 231 (1927), Watkins contends that the purpos of the particularity requirement is that "'nothing is left to the discretion of the offi er executing the warrant.'"10 But, decisions of this court have reasoned that "grudging and overly technical requirement of elaborate specificity has no plac in determining whether a warrant satisfies the Fourth Amendment requirem nt of particularity." State v. Christiansen, 40 Wn. App. 249, 254, 698 P.2d 059 (1985). In Christiansen, a clause in the warrant directed seizure of " 'all evidence and fruits of the crime(s) Of manufacturing, d livering, or possessing controlled substances.' " Id. at 251. , The court found that this was sufficiently particular, because the description of the items to be seiz d was confined to the evidence of the suspected crime. Id. at 254. This court ca e to a similar conclusion in State v. Reid, 38 Wn. App. 203, 212, 687 P.2d 861( 984): The warrant here sufficiently limite the searching officers' discretion. The phrase "any other vidence of the homicide" specifically limited the warrant to the cn e under investigation. The specific items listed, such as a shotgu and shotgun shells, also provided guidelines for the officers conducting the search. Therefore, these limitations were ade uate to prevent a general exploratory search. Similarly here, the warrant limited the scope to items Idietectives reasonably believe may be associated With this crime." (E phasis added.) 10 Our Supreme Court has reasoned hat this specific statement, from Marron v. United States, 275 U.S. 192, 196, 48 S. Ct. 74, 72 L. Ed. 231 (1927), "is not read literally, because to do so would mea that an officer could never seize anything which is not specifically named in th warrant." State v. Perrone, 119 Wn.2d 538, 546, 834 P.2d 611 (1992). 15 No. 73352-4-1/16 Contrast these holdings with a case cited by Watkins, State v. Garcia, 140 Wn. App. 609, 622, 166 P.3d 848 (2007). Th re, the court invalidated a warrant that authorized a search of," 'any and all pers ns present' "at a motel room that was to be searched in relation to a drug investi ation. Id. at 616, 623. It reasoned that this language was not , limiting and that a eneralized belief that all persons present are involved in criminal activity is an in ufficient nexus. Id. at 623. Garcia does not support a conclusion that the warrant as overly broad. Watkins argues that police were im roperly rummaging through his belongings, as evidenced by the personal writi gs that they seized. But, here the warrant explicitly directed officers to limit their s arch to items related to the crime. As illustrated in the affidavit, the detectives kne the crime being investigated, the murder of Chou, was directly related to Watkins romantic relationship with his new girlfriend. A journal and notes that contain the new girlfriend's name is precisely where a detective might reasonably expect to ind personal notes relevant to the crime and motive. As in Reid, the warrant as sufficient to protect against a general exploratory search. It was sufficiently articular. IV. Dismissal of Juror Watkins next argues that the trial court e red in dismissing a sitting juror due to a conflict, instead of delaying trial to accommodate the juror. The trial court replaced juror 13 with an alternate juror after jurpr 13 was informed that his mother had a medical emergency. A defendant in a criminal case has a ri ht to be tried by an impartial, 12person jury. State v. Gentry, 125 Wn.2d 57 , 615, 888 P.2d 1105 (1995). A 16 No. 73352-4-1/17 defendant has no right to be tried by a particul r juror or by a particular jury.11 Id. In cases, like the one here, that are expected to take a considerable time, the trial judge may direct the selection of one or more al ernate jurors. Id. CrR 6.5 governs the use of alternate jurors. State v. Stanley, 1 40 Wn. App. 312, 315, 85 P.3d 395 (2004). This court reviews a trial court's d cision to replace a juror with an alternate for abuse of discretion. State v. As craft, 71 Wn. App. 444, 461, 859 P.2d 60(1993). Juror 13 requested to be excused for family medical emergency. The defense and the trial court questioned the juror bout the specifics of the situation. Juror 13 had power of attorney with respect to is mother who was experiencing a medical emergency. After this questioning, the trial court concluded that replacement of the juror was warranted. In shcraft, the court upheld the trial court's replacement of a juror who had a plan ed flight to Belgium, and the jury deliberations had been prolonged due to adve e weather. Id. at 461-62. Surely the need to attend to this emergency was more pressing than the planned flight in Ashcraft. The trial court did not abuse its discre ion in determining that the medical emergency of the juror's mother provided a pro er basis for being excused. Watkins proposed a brief delay in the roceedings to accommodate the juror, rather than dismissing him. Whether th absence of the juror would have been very brief could not be known with certainty. The trial court properly weighed 11 Relatedly, Watkins suggests that the replacement of the juror with the alternate juror implicates his constitutional rights. But, Watkins cannot establish that seating alternate jurors amounted to a cortistitutional error, because he "has no right to be tried by a jury that includes a particular juror." State v. Jorden, 103 Wn. App. 221, 229, 11 P.3d 866 (2000). 17 No. 73352-4-1/18 the impact of a further delay on the trial. It was ot an abuse of discretion to dismiss Juror 13 rather than grant a continuance. We affirm. WE CONCUR: 73ec- 18

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