State v. Brown
| Decision Date | 31 March 2022 |
| Docket Number | 37645-1-III,consolidated with No. 37718-1-III |
| Citation | 506 P.3d 1258 |
| Parties | STATE of Washington, Respondent, v. Amy Sue BROWN, Appellant. |
| Court | Washington Court of Appeals |
Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave., Ste. 330, Seattle, WA, 98121-3573, for Appellant(s).
Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutor's Office, 7122 W. Okanogan Pl. Bldg. A, Kennewick, WA, 99336-2359, for Respondent(s).
PUBLISHED OPINION
¶ 1 After a night of heavy drinking, Amy Brown shot and killed her friend, Amanda Hill. At trial, she claimed self-defense. The jury found her guilty of felony murder. On appeal, Ms. Brown argues that her trial attorney was constitutionally ineffective for two reasons. First, she contends that her attorney failed to argue that our Supreme Court's extension of the Batson2 test in State v. Jefferson , 192 Wash.2d 225, 429 P.3d 467 (2018), should apply to an objection based on gender discrimination. In the alternative, she contends that even under a traditional Batson analysis, the trial court erred in denying her objections. Second, she contends that her attorney proposed jury instructions that effectively lowered the State's burden of proving self-defense. Ms. Brown also challenges the admission of a photograph of the victim at trial and raises issues of prosecutorial misconduct and cumulative error.
¶ 2 We reject these issues. We hold that Ms. Brown's attorney was not constitutionally ineffective for failing to argue that the holding in Jefferson , pertaining to objections based on race and ethnicity, must necessarily apply to objections based on gender. In addition, we conclude that the trial court's application of the Batson test to the State's use of peremptory challenges on six female jurors was not clear error. We also decide that Ms. Brown's trial attorney was not constitutionally deficient for proposing jury instructions on self-defense because the instructions accurately reflect the law. Next, we find that the trial court did not abuse its discretion by admitting an old photograph of the victim with her then-toddler son. Finally, we conclude that under the heightened burden for unpreserved error, Ms. Brown fails to establish prosecutorial misconduct that requires reversal. In reaching these conclusions, we necessarily reject Ms. Brown's claim of cumulative error and affirm the conviction.
¶ 3 Amy S. Brown was charged with murder in the second degree under RCW 9A.32.050(1)(b) for the felony assault in the second degree of Amanda Hill, which caused her death. The case went to trial.
¶ 4 The circumstances surrounding the assault and Ms. Hill's death were revealed at trial. Ms. Brown's boyfriend testified that everyone was drinking heavily on the night of Ms. Brown's birthday party. He went to bed around midnight. Ms. Brown's child was sleeping in the house. Ms. Hill came into the boyfriend's room and woke him up. Ms. Brown entered the room, yelled " ‘I knew it,’ " and left. Report of Proceedings (RP) at 570. The interaction in the room was caught on video and played for the jury. Both women left the room.
¶ 5 Three minutes later, the boyfriend heard a gunshot and ran out of the room. Ms. Brown had shot Ms. Hill with a .38 revolver at point-blank range, killing Ms. Hill. The trajectory of the bullet wound was "front to back, downward and left to right" with entry at the left breast and exit near the spine. RP at 1113. Ms. Hill also had contusions consistent with a struggle. The women were up against a white sport utility vehicle in the driveway near the home's back door when police arrived. Blood spatter, blood smear, and smeared dirt appeared on the vehicle's passenger side front door and running board.
¶ 6 Officers took Ms. Brown into custody and interviewed her. She did not have dirt on the front or back side of her clothes. She did not have apparent injuries attributed to the incident. Three police interview recordings of Ms. Brown totaling two hours were played for the jury.
¶ 7 During the interview, Ms. Brown said that she went outside to smoke after seeing Ms. Hill in her boyfriend's bed and was pushed from behind. The push caused her to fall forward and she rolled over, at which point Ms. Hill got on top of her near where the cement and dirt met and put her hands around Ms. Brown's throat and mouth. Her airway was not obstructed. She told Ms. Hill to get off her. She believed that Ms. Hill was trying to choke her. She did not believe that Ms. Hill was trying to kill her. With Ms. Hill on top of her, Ms. Brown opened the car door, retrieved the gun from the door, removed it from a holster, and shot Ms. Hill. Ms. Brown did not believe that Ms. Hill was trying to hurt her. Ms. Brown said she "fucked up." RP at 1354.
¶ 8 During trial, Ms. Brown's testimony was not consistent with her interview. She stated that Ms. Hill "postured and screamed at me and tackled me flat on the ground." RP at 1468. She stated that she was terrified. She denied being jealous of her boyfriend and Ms. Hill. The State's blood spatter expert testified that Ms. Hill's version of events was inconsistent with the physical blood evidence on the clothes and car. He concluded that it was not possible that Ms. Hill was shot while straddling Ms. Brown's torso leaning forward face to face. Ms. Hill was seven inches taller than Ms. Brown.
¶ 9 The jury found Ms. Brown guilty, and she appeals.
¶ 10 At trial and on appeal, Ms. Brown challenges the State's use of six of its seven peremptories to remove female jurors. The State waived its seventh peremptory. Ms. Brown exercised all seven of her peremptory challenges, removing five men and two women.3 The final jury consisted of eight men and four women with one male and one female alternate. According to the "Panel Random List," of the 88 person venire, 46 were men and 42 were women. Clerk's Papers (CP) at 120-23. Among the first 40 potential jurors, there were 21 men and 19 women.
¶ 11 Before considering whether the trial court erred, we must determine which test to apply. At trial, defense counsel objected to the State's peremptory challenges but acknowledged that since the basis of the objection was gender not race, GR 37 did not apply, and the court should apply the Batson test. After applying the Batson test, the court found that the record supported the State's gender-neutral reasons for striking the jurors and Ms. Brown had not demonstrated purposeful discrimination.
¶ 12 On appeal, Ms. Brown concedes that GR 37 does not apply to an objection based on gender discrimination and acknowledges that she urged the trial court to apply a traditional Batson test to her objections. Nevertheless, she asserts that the trial court should have applied the modified Batson test as declared in Jefferson . Ms. Brown did not ask the trial court to apply a modified Batson test to her objections. The only way she can successfully raise this issue for the first time on appeal is to argue manifest constitutional error ( RAP 2.5(a) ), or ineffective assistance of counsel. Ms. Brown does not argue manifest constitutional error for this issue. Even if she did, invited error would preclude review of a constitutional error to which Ms. Brown contributed. See State v. Momah , 167 Wash.2d 140, 154, 217 P.3d 321 (2009). Recognizing this doctrine, Ms. Brown argues that her trial counsel was ineffective for failing to argue the modified Batson test.
¶ 13 Both the United States and Washington Constitutions guarantee a criminal defendant the right to effective assistance of counsel. State v. Lopez , 190 Wash.2d 104, 115, 410 P.3d 1117 (2018) ; see also U.S. CONST . amend. VI ; WASH . CONST . art. I, § 22. Courts indulge in a strong presumption that counsel is effective. State v. McFarland , 127 Wash.2d 322, 334-35, 899 P.2d 1251 (1995). "To demonstrate ineffective assistance of counsel, a defendant must make two showings: (1) defense counsel's representation was deficient, i.e. , it fell below an objective standard of reasonableness based on consideration of all the circumstances; and (2) defense counsel's deficient representation prejudiced the defendant, i.e. , there is a reasonable probability that, except for counsel's unprofessional errors, the result of the proceeding would have been different." Id . ; see also Strickland v. Washington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The defendant has the burden to show that counsel's performance was deficient based on the trial court record. McFarland , 127 Wash.2d at 335, 899 P.2d 1251. Specifically, "the defendant must show in the record the absence of legitimate strategic or tactical reasons supporting the challenged conduct by counsel." Id . at 336, 899 P.2d 1251.
¶ 14 Ms. Brown argues that her trial attorney was ineffective because he failed to recognize and argue current case law, i.e., Jefferson ’s modification of Batson . While defense counsel's failure to discover relevant case law is generally considered deficient, the failure to raise a novel legal theory is not. See State v. Kyllo , 166 Wash.2d 856, 868, 215 P.3d 177 (2009) (); State v. Clark , 17 Wash. App. 2d 794, 799, 487 P.3d 549 (2021), review denied , 198 Wash.2d 1033, 501 P.3d 132 (2022). To determine whether counsel was constitutionally deficient for failing to argue Jefferson , we must consider whether and to what extent Jefferson is relevant to an objection to peremptory challenges based on gender bias.
¶ 15 Historically, the Batson test was developed to determine whether the peremptory strike of a venire person was impermissibly motivated by race. Jefferson , 192 Wash.2d at 231, 429 P.3d 467. When an objection is raised, the trial court applies the three-step Batson test:
First, the...
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