State v. Benson

• Decision Date: 12 November 2013
• Docket Number: 68075-7-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DWIGHT BENSON, Appellant.

STATE OF WASHINGTON, Respondent, v. DWIGHT BENSON, Appellant.

No. 68075-7-I

Court of Appeals of Washington, Division 1

November 12, 2013

UNPUBLISHED OPINION

ORDER GRANTING MOTION FOR RECONSIDERATION, WITHDRAWING AND REPLACING OPINION

Respondent filed a motion for reconsideration of the court's September 16, 2013 opinion. Appellant filed an answer to the motion for reconsideration. The court has considered the documents and determined that the motion for reconsideration should be granted, the opinion withdrawn, and a substitute unpublished opinion be filed.

Now therefore, it is hereby

ORDERED that the opinion of this court filed September 16, 2013 is withdrawn and a substitute unpublished opinion is filed.

Verellen, J.

Dwight Benson appeals his convictions for felony driving under the influence (DUI), reckless driving, and driving while license revoked. Benson, who is African American, argues that the trial court erred by allowing the State to exercise a peremptory challenge to exclude the only remaining African American juror from the panel of prospective jurors. Under the existing Batson^[1] standards, the core question is whether the prosecutor relied upon prospective jurors' negative experiences with police as a proxy for race, resulting in purposeful discrimination. Although a peremptory challenge based on past negative experiences with police has the potential to be misused as a proxy for race, the totality of the circumstances here supports the trial court's finding that the prosecutor had a good-faith basis for exercising the peremptory challenge. The prosecutor did not inquire about any negative experiences with police, or make any race-based inquiries. Comparative juror analysis does not reveal a questionable motive, and there are no other "red flags" suggesting purposeful discrimination. The trial court correctly applied the existing legal standards, and Benson fails to demonstrate the trial court's finding that there was no purposeful discrimination was clearly erroneous. We affirm the conviction, but remand for correction of a sentencing error.

FACTS

On April 2, 2011, Benson took pills, drank alcohol, and then drove his car into the back of Abdul Hared's stopped car. When Hared approached Benson, he smelled alcohol. Officer Christopher Caron observed that Benson was unsteady on his feet and smelled of alcohol. Benson's speech was slow and slurred, and he admitted that he had been drinking.^[2] He tried to recite the alphabet, but failed. When Officer Nathan Shopay tried to talk to Benson Benson had trouble focusing on any subject. Officer Shopay and Officer Elliott Easton both testified that Benson appeared impaired.^[3]Benson refused to provide a breath sample. The police did not seek a warrant to obtain a blood test.

Benson had three prior DUI convictions and one prior conviction for being in physical control of a vehicle while under the influence. At the time of the April 2011 accident, his driver's license was revoked based on his convictions for three serious traffic offenses within a five-year period.

Based on his four prior qualifying convictions within the previous 10 years, Benson was charged with felony DUI.^[4] He was also charged with reckless driving, ^[5] and driving while license revoked in the first degree.^[6] Following a jury trial, Benson was convicted as charged.

Benson's appeal concerns the State's peremptory challenge of juror 9, an African American woman. The court began jury selection by asking several questions of the entire panel of prospective jurors. Then the court allowed the prosecutor and defense counsel two alternating 20-minute rounds of questioning.

One of the trial court's general questions was whether any panel member had an "extremely unpleasant experience with a police officer."^[7] Seven individuals indicated they had.^[8] Of those seven, only three, jurors 9, 16 and 23, were ever seated in the jury box, where they were subject to peremptory challenge. The prosecutor did not ask any of the prospective jurors about their negative experiences with police. No one asked juror 16 or 23 to explain their answer to the negative experiences question.^[9]

Benson's counsel had the final round of questioning, and asked juror 9 to explain her negative experiences with police. Juror 9 explained that she had been stopped for expired license tabs but the officer appeared to be suspicious of her:

JUROR: My tabs were—I had bought them, but I didn't put them on at the time. And I had four children with me. And when he stopped me, I had asked what I had did wrong. And he said, "[W]ell, ... I noticed your tabs are expired." And I had said, "[0]h." And at that time I thought I had bought the tabs. So, I thought okay. But, then, he started to kind of looking in my car like there were other things going on. And I thought that am I going to get a ticket or, you know, I was willing to give my information. But, I felt like when I got stopped, okay, I didn't have my tabs on, but I also felt like when he stopped me, like he was looking for something else. And I had my children with me. I felt like, okay, what else did I do wrong?

COUNSEL: Okay. Did the officer treat you fairly?

JUROR: I felt I was treated fair in what was asked of me. He stopped me. "Did you know that your tabs expired?" Yes, I did, but I did not put them on. But, then I felt like ... he was looking for something else besides that. So, I felt a little, I didn't feel easy about that. So, I guess there was kind of a mixed feeling, but I felt like he stopped me, okay. I needed to make sure that I had tabs. And then also, you know, he was looking kind of past me into my car like maybe something else was going on^[10]

Based on the trial court's predetermined procedure for jury selection, the State did not have another round to pose additional questions to any of the prospective jurors.

The State exercised three of its peremptory challenges to jurors 4, 13 and 19, who were reluctant to convict without a numerical blood-alcohol test result. Jurors 4 and 19 were both Caucasian men. Benson did not object to the State's peremptory challenge to juror 13, an African American woman.^[11]

When the State exercised a peremptory challenge to juror 9, Benson objected, pointed out that juror 9 was the last remaining African American juror on the panel, and argued that the State did not have "a nonracial reason" for its challenge.^[12]

The trial court asked the prosecutor to explain the basis for its peremptory challenge. The prosecutor argued that in jury selection and pretrial motions, Benson's counsel had signaled the defense theory that the police investigation was inadequate or conclusory. The prosecutor was concerned that juror 9 would be more responsive to that argument based on her own prior negative experience with police:

Juror number 9, 1 completely liked her in my questioning of her, my first and second round. Then defense counsel in his second round talked to her about experience with a police officer. And she talked about being pulled over for something, and how the police officer was looking for something else. And I got the impression from what she was saying that she believed she was being harassed or interrogated further because she is a minority. And that is not an issue in this case. In fact, the victim in this case is a minority as well.

It's my concern that she will have some bad view of officers because they focused their investigation on the defendant, who is an African American male. The other gentleman [the victim] is an African male^[13]

Benson's counsel argued that the prosecutor's explanation was "disingenuous, " and claimed that other jurors the State accepted were "in a similar circumstance":

People said they had an interaction with other officers. Juror number 6 was cited by an officer. That sort of thing. But I don't believe that what juror number 9 indicated was to the extent that it really prejudiced her. She could have been pulled over, so there is no indication that this person had interaction with any of the officers involved in this particular case. So it is the defense position that there is not sufficient grounds to strike her.^[14]

In response, the prosecutor explained that she had been saving a peremptory challenge to exclude juror 28, a Caucasian man, on the same basis. Juror 28 indicated in response to the trial court's initial general question that he had a prior negative experience with police. In response to questioning by defense counsel, juror 28 explained further that while working as a truck driver, he felt that a police officer unfairly blamed him for a collision with another truck. He believed that the officer might have known the other driver or harbored a bias against him because his truck had an out-of-state license plate. The prosecutor explained:

I wanted to say something for the record. Juror number 28 was another person, a Caucasian male, who identified that he had a bad interaction with the police officer when he got into an accident with another truck. And I was saving a strike for him had we gotten to him on that basis.

I felt similarly to juror number 9. They both seemed to have a situation where they felt like they were the ones who were singled out and being picked on.

I was certainly going to strike him, if we had gotten there.^[15]

The trial court stated that it understood the State's concern with having jurors with prior negative experiences with police, but was sensitive that using that factor to exclude jurors could be discriminatory in some cases:

I obviously don't know what the defense theory is, but we are not talking about a situation where somebody is going to allege that someone was stopped unfairly by police.

There may be, however, an allegation that the

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