Superior Court County: King. Superior Court Cause No: 94-1-04349-4.SEA. Date filed in Superior Court: October 3, 1994. Superior Court Judge Signing: Judge John Darrah.
Written by: Judge Agid, Concurred by: Judge Grosse and Judge Kennedy
AGID, J. -- Earl Rhodes appeals his conviction for second degree burglary, arguing that the trial court erred when it rejected his objection to the State's exercise of a peremptory challenge as improperly based on race.*fn1 We conclude that the trial court properly ruled that there was no evidence that the State's challenge was racially motivated and affirm.
Shortly before 11 p.m. on July 2, 1994, Seattle police officers responded to a 911 call reporting shattered glass at a business known as Karen's Nail Works on Aurora Avenue. When officers arrived, they saw Rhodes leaving the premises through the shattered door. After his arrest, Rhodes explained to the officers that he had just come by bus from Everett and was waiting for another bus when he heard breaking glass and saw two long-haired white males inside Karen's Nail Works. When he walked over to "check it out," they ran off and he went in to look around. Rhodes told the officers he was inside for no more than a minute before he came out. After Rhodes' arrest, Ronald Easterday approached the investigating officers. He told them that he had seen a large African-American man in a tan jacket sitting on the sidewalk in front of Karen's Nail Works when he drove to a restaurant about 75 feet away through the adjacent parking lot earlier that evening. The officers asked Easterday to take a look at Rhodes, who was seated in the back of a patrol car. Although Rhodes was not wearing a tan jacket, Easterday told the officers Rhodes was the man he had seen earlier sitting in front of Karen's Nail Works. Rhodes was charged with one count of second degree burglary.
During voir dire, the prosecutor asked whether any member of the jury panel had had a particularly pleasant or unpleasant experience with a police officer that stood out in the juror's mind. Juror No. 10 responded that he had once been stopped by police officers in Denver as he was walking to his car with a friend after leaving a club. The officers told them they had been stopped because they matched the descriptions of two individuals who had just committed a robbery, one of whom was African-American and one of whom was "Mexican." The stop lasted only about 2 minutes, and Juror No. 10 stated that he did not think the experience would affect his ability to be impartial. When the prosecutor exercised one of his peremptory challenges against Juror No. 10, defense counsel objected to the challenge as impermissibly based on race because Juror No. 10 was the only African-American juror on the panel. Based on its conclusion that a single challenge cannot constitute a pattern of discrimination, the trial court ruled that the prosecutor's challenge was permissible.
Following trial, a jury found Rhodes guilty as charged. Based on his prior convictions, including several in California, Rhodes had an offender score of 10. The trial court imposed a sentence within the standard range. This appeal followed.
Exercise of Peremptory Challenge
The equal protection clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from a jury solely on the basis of race. State v. Sanchez, 72 Wash. App. 821, 825, 867 P.2d 638 (1994) (citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986)). Race-based peremptory challenges violate both a defendant's equal protection right not to have members of his or her own race excluded from the jury on account of race and the equal protection rights of the excluded jurors who are denied a significant opportunity to participate in civic life.
State v. Burch, 65 Wash. App. 828, 834, 830 P.2d 357 (1992) (citing Batson, 476 U.S. at 86; Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 1370, 113 L. Ed. 2d 411, 423-24 (1991)).
The defendant has the initial burden of establishing a prima facie case of purposeful discrimination in the selection of the jury. Purkett v. Elem, U.S. , 115 S. Ct. 1769, 1770, 131 L. Ed. 2d 834 (1995). First, the defendant must show the peremptory challenge was exercised against a member of a constitutionally cognizable racial group. Burch, 65 Wash. App. at 840 (citing Batson, 476 U.S. at 96). Second, the defendant must show that this fact, taken together with "other relevant circumstances," raises an inference that the prosecutor's challenge was based on the status of the venire-person as a member of that group. Burch, 65 Wash. App. at 840. Relevant circumstances may include a pattern of strikes against members of a particular racial group or the particular questions asked by the prosecutor during voir dire. Burch, 65 Wash. App. at 840.
If the defendant establishes a prima facie case of purposeful discrimination, the burden shifts to the State to "'articulate a neutral explanation related to the particular case to be tried.'" Burch, 65 Wash. App. at 840 (quoting Batson, 476 U.S. at 98). See also Purkett, 115 S. Ct. at 1770. This must be more than a general denial of discriminatory intent. Burch, 65 Wash. App. at 840. Thus, in determining whether a prosecutor's explanation is based on discriminatory intent, courts consider whether the prosecutor has stated a reasonably specific basis for the challenge, such as specific responses or the demeanor of the juror during voir dire, or a particular identifiable incident in that juror's life. See Burch, 65 Wash. App. at 840.
The trial court must then determine whether purposeful discrimination did in fact occur. Purkett, 115 S. Ct. at 1770-71; Burch, 65 Wash. App. at 840. Because the question whether the prosecutor's race-neutral explanation should be believed depends on an evaluation of demeanor and credibility that lies "'peculiarly within a
trial judge's province,'" his or her determination "represents a finding of fact of the sort accorded great deference on appeal." Sanchez, 72 Wash. App. at 826 (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991)). We will not disturb the trial court's determinations of whether a prima facie case has been established and whether there was a discriminatory purpose behind the State's use of its peremptory challenges unless it is clearly erroneous. State v. Wright, 78 Wash. App. 93, 99, 896 P.2d 713, review denied, 127 Wash. 2d 1024, 904 P.2d 1157 (1995); Burch, 65 Wash. App. at 840-41 (citing Hernandez, 111 S. Ct. at 1871).
The prosecutor's initial question and Juror No. 10's response was as follows:
[PROSECUTOR]: . . . How many people here would have what they consider an unpleasant or pleasant experience with a police officer that really stands out in your mind? I don't mean, you know, one like getting a ticket -- that sort too, but some sort of experience with a police officer that you deem particularly pleasant or particularly unpleasant.
Is there anyone here who can think of such an incident? Not ...