Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 94-1-00605-4. Date filed in Superior Court: 11/4/94. Superior Court Judge signing: THOMAS MERRYMAN.
Author: Dennis J. Sweeney, Concurring: Philip J. Thompson & John A. Schultheis
SWEENEY, C.J.--The dispositive question presented in this case is whether a juror who admits being "a little bit prejudiced" because he reads in the newspapers and sees on television "a lot of black people who are dealing drugs" should have been stricken for cause. We conclude that he should have been and reverse the conviction.
Spokane Police Officer Terry Preuninger recognized the defendant, Johnnie W. Witherspoon, Jr., on sight because of previous encounters. Mr. Witherspoon is African American. On January 27, 1994, Officer Preuninger saw Mr. Witherspoon standing on the corner of First and Madison Streets in downtown Spokane--an area with a reputation for drug activity. Officer Preuninger ran a warrant check. Mr. Witherspoon had an outstanding warrant. Officer Preuninger approached Mr. Witherspoon to arrest him. He handcuffed Mr. Witherspoon and began to search him. Mr. Witherspoon was cooperative. Officer Preuninger noticed he had something in his mouth. He asked Mr. Witherspoon to open his mouth; Mr. Witherspoon refused and started to chew.
Officer Preuninger saw what he thought were flakes of cocaine coming from Mr. Witherspoon's mouth. He knew that swallowing cocaine could be fatal and he ordered Mr. Witherspoon to spit the substance out. Mr. Witherspoon again refused and continued to chew and swallow. Officer Preuninger placed his hand on Mr. Witherspoon's throat "right up above his Adam's apple and pushed in above his Adam's apple to prevent him from swallowing." Officer Preuninger denied that his actions interfered with Mr. Witherspoon's ability to breathe. According to Officer Preuninger, not only could Mr. Witherspoon breathe, but he was talking and insisting he had nothing in his mouth at the same time. He also continued to swallow. Officer Preuninger took Mr. Witherspoon to a hospital, rather than jail, because he was convinced that Mr. Witherspoon had swallowed a "bunch of rock."
While en route to the hospital, Mr. Witherspoon spit in the patrol car. Officer Preuninger later collected a sample; it field tested positive for cocaine. Mr. Witherspoon was charged with possession of crack cocaine. He moved to suppress evidence of the cocaine. At the suppression hearing, he testified that Officer Preuninger had roughed him up, handcuffed him, and threatened to break his teeth with a flashlight if he did not open his mouth. Mr. Witherspoon also testified that he was coughing and could not breathe when the officer was pushing on his throat. Following the hearing, the trial court concluded that the officers had not used excessive force in effecting the arrest, or in obtaining the evidence, and that Mr. Witherspoon had voluntarily surrendered the evidence by spitting in the car.
Mr. Witherspoon appeals and raises three issues: (1) Whether his arrest was a pretext for the search; (2) whether the force used on Mr. Witherspoon to remove the crack cocaine was excessive; and finally (3) whether the court should have granted his challenge for cause to Juror No. 3.
Because, as we have noted, it is dispositive, we address the last issue first.
Challenge for Cause. The denial of a challenge to a juror for cause is within the trial court's discretion. State v. Noltie, 116 Wash. 2d 831, 838, 809 P.2d 190 (1991). Mr. Witherspoon had a right to a trial by jury, and that right included an unbiased and unprejudiced jury. State v. Parnell, 77 Wash. 2d 503, 508, 463 P.2d 134 (1969).
Actual bias is "the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging . . . ." RCW 4.44.170(2). In the recent case of State v. Jackson, 75 Wash. App. 537, 879 P.2d 307 (1994), review denied, 126 Wash. 2d 1003 (1995), a juror referred to African Americans as "coloreds" and told another juror that the worst part about a recent trip he took was that he had to associate with "coloreds." 75 Wash. App. at 540. He also commented that "you know how those coloreds are." Id. at 540. Division One of this court reversed, concluding that the juror revealed an aversion toward associating with African Americans and had a predisposition to make generalizations about them. Id. at 543.
The facts here are more compelling than those in Jackson. Juror No. 3 not only expressed concern about African Americans, he candidly admitted he was prejudiced:
When what you see in the newspaper, I have to admit I'm a little bit prejudiced. I see a lot of black people who are dealing drugs. When drugs are dealt, that's who is involved unfortunately. I can't help it. I'm sorry. I'm that way. I see it ...