State v. Booth
| Decision Date | 31 May 2022 |
| Docket Number | 82039-7-I |
| Citation | 510 P.3d 1025 |
| Parties | STATE of Washington, Respondent, v. Kristen Nicole BOOTH, Appellant. |
| Court | Washington Court of Appeals |
Kaitlyn Alene Aitken, King County Opd-The Defender Association, 710 2nd Ave. Ste. 700, Seattle, WA, 98104-1724, for Appellant.
Prosecuting Atty. King County, King Co. Pros./App. Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104, Jennifer Paige Joseph, King County Prosecutor's Office, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.
PUBLISHED OPINION
¶ 1 The defendant in this matter sought to exercise a peremptory challenge to a prospective juror who is a member of a cognizable racial minority, and the State made a GR 37 objection, arguing race "could" have been a factor underlying the peremptory challenge. The trial court agreed and concluded GR 37 prohibited the peremptory challenge.
¶ 2 We conclude the trial court erred. Thus, this appeal presents the question of the appropriate remedy when a trial court mistakenly denies the defendant's exercise of a peremptory challenge in the context of applying GR 37. Peremptory challenges are not required by the federal or state constitutions. Because the error here does not fit within the narrow class of per se reversible errors and there is no showing of any prejudice from the erroneous seating of an otherwise competent, unbiased juror, retrial is not required.
¶ 3 Therefore, we affirm.
¶ 4 Kristin Booth moved from Alaska to Washington in the summer of 2017. On August 9, 2017, she went to a Metallica concert in Seattle with her cousin. After the concert ended around 11:00 p.m., Booth and her cousin went to his hotel room to talk and catch up. While they were talking, Booth's cousin—a "very big guy"—began to say things that made Booth uncomfortable.1 He tried to kiss her. That caused Booth to panic and flee to her car, feeling like she "just had to get out of there."2 She began driving without knowing where she was going. According to Booth, she drank a single glass of wine at the concert and had another serving of wine at her cousin's hotel.
¶ 5 Around 3:30 a.m., Washington State Patrol Trooper Cliff Roberts took the I-5 ramp for Boeing Access Road and saw a car remain stopped at a traffic light the entire time the light was green. When the car drove, it was drifting over lane lines and failed to stop even after he turned on his patrol car's emergency lights. After the car stopped and the driver rolled down her window, Trooper Roberts smelled a "very, very strong odor of alcoholic beverages coming from within the car."3 Booth was driving. Her eyes were bloodshot and watery, and she had a "glazed over," "totally expressionless," "thousand-yard stare" on her face.4 She struggled to answer Trooper Roberts' questions, seeming "very, very forgetful, like she wasn't sure what she was doing that evening."5
¶ 6 Trooper Roberts arrested Booth on suspicion of driving under the influence (DUI). Booth did not consent to sobriety tests, and her blood-alcohol content was never measured. As Trooper Roberts testified at trial, he decided against getting a warrant for a blood draw 6
¶ 7 Pretrial, Booth's defense theory was that her appearance and behavior resulted from memories of past sexual trauma being triggered by her cousin's unwanted physical advance.7 Booth sought to testify about the details of the assaults that traumatized her. The court limited Booth's testimony about her past to stating she had a "history of victimization," and it allowed testimony about her mental state after her cousin's unwanted advance.8
¶ 8 The jury venire was 24 people. Jurors 1 through 6 would be the presumptive jury, and juror 7 was the presumptive alternate. If a juror was dismissed, then the higher-numbered jurors would slide down to fill the position. The jury pool was predominantly white. Four prospective jurors were each identified as a possible "member of a ‘cognizable racial group’ ":9 jurors 6, 10, 16, and 20. The court dismissed juror 16 for cause, and juror 20 was excused due to hardship.
¶ 9 During voir dire, jurors 7, 14, 23, and 24 self-identified as believing it was "never okay" to drive after having anything to drink.10 Juror 6, who was of East Asian descent, appeared to be "mulling over" the question, and defense counsel asked for his thoughts.11 He gave a nuanced answer making clear he was uncomfortable with anyone having a drink and then driving, but he did not believe it was "never okay."12 Defense counsel did not ask jurors 7, 14, 23, or 24 any follow-up questions. Instead, he asked whether any jurors had ever had a drink and driven. Juror 10, who also appeared to be of East Asian descent, explained he had done so and was comfortable doing so because he was unaffected after having only a few sips of alcohol two hours before driving.
¶ 10 Later, defense counsel asked whether any juror would change the law to completely prohibit drinking and driving. Juror 6 immediately volunteered an answer, explaining he "would probably be comfortable signing that into law" if there was "a very quick test that one could take [before driving], like a breathalyzer ... [b]ut something more objective."13 Rather than ask juror 6 a follow-up question, defense counsel asked the venire what they would want to know to figure out whether someone drank and drove.
¶ 11 After being asked whether any juror believed Booth "must have done something wrong" to be on trial, juror 13 volunteered the belief that she "likely" did something wrong because she was on trial.14 Defense counsel moved to strike juror 13 for cause, and the court denied the motion. Later in voir dire, responding to one of the prosecutor's questions, juror 13 explained, "I personally, I would do anything to prove my innocence" if pulled over for drunk driving, including consenting to sobriety tests.15 Juror 6 largely agreed with juror 13's comment, opining, "[I]f a law enforcement officer asks you to do something, [you should] probably follow their instructions."16
¶ 12 Each side had three peremptory challenges. The State used its peremptory challenges on jurors 3, 9, and 11. Defense counsel asserted its peremptory challenges to jurors 6, 7, and 13. The State made a GR 37 motion regarding juror 6. The court sustained the State's motion and denied the defense peremptory challenge of juror 6. The jury was comprised of jurors 1, 2, 4, 5, 6, 8, and juror 10 was the alternate. Had the peremptory challenge of juror 6 been allowed, juror 10 would have deliberated, and juror 14 would have been the alternate.
¶ 13 During trial, Trooper Robertson gave detailed testimony about his stop, investigation, and arrest of Booth. He repeatedly testified Booth was "intoxicated."17 He explained Booth never consented to sobriety tests. During his testimony, the State asked twice whether he had "doubt" about Booth being intoxicated or unsafe to drive.18 Booth objected to both questions, and, both times, the court instructed the jury to disregard. Booth testified about drinking only two servings of wine, about her cousin's attempt to kiss her, about having been victimized in the past, about feeling panicked and confused the night she was arrested, and about her feelings of panic preventing her from deciding whether to consent to sobriety tests.
¶ 14 Juror 6 deliberated, and the jury found Booth guilty both of DUI and of refusing to submit to a breath test. Booth filed a RALJ appeal, and the superior court affirmed her convictions.
¶ 15 Commissioner Koh granted Booth's motion for discretionary review of the GR 37 issue.19
¶ 16 We review a trial court's decision on a GR 37 motion de novo.20 In State v. Jefferson,21 our Supreme Court incorporated GR 37 into state common law by replacing the third step of a Batson 22 challenge with the standards from the rule.23 The same standards apply whether the State or a defendant makes a GR 37 motion to prevent a peremptory challenge.24
¶ 17 The party bringing the GR 37 motion must first establish a prima facie case by demonstrating "that the struck juror is a member of a ‘cognizable racial group.’ "25 We presume a " ‘discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury.’ "26 Second, the burden shifts to the party exercising the peremptory challenge to provide a race-neutral justification.27 Third, the trial court applies the standard from GR 37(e) to determine "whether an objective observer could view race or ethnicity as a factor in the use of the peremptory strike."28
¶ 18 Under the GR 37(e) "objective observer" standard, we take a rational view of "the totality of circumstances."29 We "evaluate the reasons given to justify the peremptory challenge in light of the totality of circumstances"30 to understand whether the striking party's reasons for exercising the strike could have masked a decision based, consciously or unconsciously, on racial bias.31 We pay particular attention to circumstances identified in GR 37(g) when reviewing the record. If race "could" have been "a factor," then the strike must be denied.32 But because we consider the total circumstances objectively, we give equal weight to all of the evidence when determining whether race "could" have been a factor.
¶ 19 For example, in State v. Omar,33 a defendant was charged with first-degree robbery. During voir dire, defense counsel asked whether anyone had experience with robbery.34 Juror 16, who appeared to be of Asian descent, said she had been working at a bank when it was robbed and was unsure whether the experience would affect her ability to be fair.35 Defense counsel did not ask any follow-up questions.36 Defense counsel exercised a peremptory challenge to juror 16, and the...
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