State v. Christian, No. 61114-3-I (Wash. App. 7/13/2009)
| Decision Date | 13 July 2009 |
| Docket Number | No. 61114-3-I.,61114-3-I. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TOBY RAFAEL CHRISTIAN AKA TOBY R. CAMPBELL, Appellant. |
Appeal from King County Superior Court, Docket No: 06-1-08828-6. Judgment or order under review. Date filed: 12/17/2007. Judge signing: Honorable Gregory P Canova.
Counsel for Appellant(s), Lisa Daugaard, Attorney at Law, 810 3rd Ave Fl 8, Seattle, WA, 98104-1655.
Toby Rafael Campbell (Appearing Pro Se), Counsel for Respondent(s), Prosecuting Atty King County, King Co Pros/App Unit Supervisor, W554 King County Courthouse, 516 Third Avenue, Seattle, WA, 98104.
Dennis John Mccurdy, King County Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA, 98104-2362.
UNPUBLISHED OPINION
A jury found Christian guilty of third degree assault by battery. Before trial, he asserted an equal protection claim on behalf of felons in King County who were excluded from the jury venire because they were too poor to pay their legal financial obligations, preventing restoration of their civil rights. Christian argues that his Sixth Amendment right was violated, because the jury did not represent a fair cross-section of the community. He argues that the instruction for third degree assault, as articulated in WPIC 35.50 and as given at trial, improperly defined the intent element of assault by battery. He also appeals the trial court's decision to exclude testimony under ER 404(a) and ER 405. Finding no error, we affirm.
On September 15, 2006, Toby Christian, AKA Toby Campbell, took his daughter, A.C., to Memorial Stadium, in Seattle, Washington, for the Garfield-Franklin high school football game. Officers Daina Boggs, David Blackmer, and Brian Lundin were assigned to direct traffic exiting and entering the parking lot. When the game was over, A.C. and her friend A.H. found Christian, who was going to drive them home. The girls returned to the car ahead of Christian, walking down the middle of one of the parking lot lanes. After the girls ignored the officers' requests to move out of the way, Officer Blackmer grabbed them by their backpacks and took them over to the SPD vehicle to ask them for identification. Later, A.H. was able to run away to get Christian.
The parties' accounts of the facts after this point diverge. According to Officer Boggs, Christian ran up to her, she put her hands up, and Christian pushed her without provocation. He then somehow ended up behind her, with Christian pinning her arms. She called for back up. Officer Blackmer arrived and shot Christian with a stun gun. Officer Boggs was able to get out from underneath Christian, although she does not remember how they ended up on the ground.
Christian testified that A.H. came to tell him that police had his daughter. He began to run, led by A.H., toward where police were detaining A.C. When he saw two officers, he slowed down. His intention was to inform the officers that he — the father — was there to deal with any issues that may arise. Officer Boggs asked him what he was doing, to which he replied, "[t]hat's my daughter." She told Christian that he could not go to where A.C. was, and it appeared to Christian that Officer Boggs began to reach for her flashlight. Christian put his hands up, anticipating a hit. He heard Officer Boggs radio that she was under assault, and then shortly thereafter, she struck Christian with the flashlight in the eye. In a quick succession of events, officers tackled Christian, he received what felt like several kicks to the head, and Officer Blackmer shot him with a stun gun.
The State charged Christian with third degree assault for his interaction with Officer Boggs. A jury convicted Christian as charged, and he received a standard range sentence of 32 days, with 30 days converted to community service.
Prior to trial, Christian asserted an equal protection claim on behalf of the would-be jurors, who had been excluded from the venire based on their inability to pay their legal financial obligations (LFOs)1 and restore their rights. The trial court found that Christian had third-party standing to assert the claim.2 The trial court ruled that, on the merits, the would-be jurors' equal protection claim failed, because Madison v. State, 161 Wn.2d 85, 163 P.3d 757 (2007), controlled.
In Madison, three felons unable to pay their LFOs alleged that Washington's disenfranchisement scheme violated the state and federal equal protection clauses, because it denied them their right to vote based on wealth. Id. at 87-88. The court in Madison held that "Washington's disenfranchisement scheme does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution, because it is rationally related to legitimate state interests."3 Id. at 109. Madison prevents consideration of a challenge to the civil rights restoration statute without also considering in a challenge to the disenfranchisement scheme. See id. at 104 — 05, 106 n.12. Christian concedes that Madison rests on identical factual and legal issues to those presented, and that it therefore controls this court's decision. We accept this concession. Christian's challenge fails.
This court reviews issues of constitutional interpretation de novo. Id. at 92.
Cambell alleges his Sixth Amendment right to an impartial jury has been violated. Christian challenges the statutory disqualification of persons with felony convictions under RCW 2.36.070(5).4 He argues that the cumulative effect of the disqualification provision and the racial bias in the production of felony convictions in King County is "to allow a deductive conclusion that, assuming all else in the operation of GR 18 is random and race-neutral . . . the group summonsed to jury duty under that rule must under-represent people of color and black citizens in particular."5
The Sixth Amendment right to an impartial jury includes the requirement that the jury be drawn from a fair cross-section of the community. Taylor v. Louisiana, 419 U.S. 522, 527, 530, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975). "Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." Id. at 538 (citations omitted).
To establish a prima facie violation of the fair cross-section requirement, a defendant must show:
(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this under representation is due to systematic exclusion of the group in the jury-selection process. Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).6 After briefing and argument on this issue, the trial court denied Christian's request to dismiss the venire pool.
To satisfy the first part of the prima facie test, the challenger must show that the excluded group is sufficiently numerous and distinct so that if it is systematically eliminated from jury panels, the Sixth Amendment's fair cross-section requirement cannot be satisfied. Duren, 439 U.S. at 364. Christian alleges that African Americans are unquestionably a distinctive group within the meaning of the Duren test. The State responds that it is not African Americans who are excluded, but felons, and excluding felons does not raise Sixth Amendment concerns.
We agree. Christian has failed to show a Sixth Amendment violation, because felons are the excluded group at issue, not African Americans. Felons cannot constitute a distinctive group in the community, as the exclusion of felons and accused felons from jury service has been upheld as constitutional. See United States v. Barry, 71 F.3d 1269, 1273-74 (7th Cir. 1995); United States v. Arce, 997 F.2d 1123, 1127 (5th Cir. 1993); United States v. Greene, 995 F.2d 793, 796 (8th Cir. 1993); United States v. Foxworth, 599 F.2d 1, 4 (1st Cir. 1979); United States v. Test, 550 F.2d 577, 594 (10th Cir. 1976); United States v. Best, 214 F. Supp. 2d 897, 905 (N.D. Ind. 2002). States may limit those eligible to serve on juries. Taylor, 419 U.S. at 527-28. Therefore, Christian's evidence of the exclusion of felons cannot be, as a matter of law, sufficient evidence of the first Duren element, and we need not consider the second or third elements. His fair cross-section claim fails.
The State's proposed jury instruction defining assault read: "[a]n assault is an intentional touching or striking of another person that is harmful or offensive regardless of whether any physical injury is done to the person." Christian objected, offering alternative arguments at the trial level and now on appeal. He first argues that no assault definition should have been given, following an observation in State v. Daniels that the "everyday understanding of 'assault' encompasses assault by actual battery." 87 Wn. App. 149, 156, 940 P.2d 690 (1997). Alternatively, Christian contends that the jury instruction defining assault (jury instruction 8), taken from 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 35.50, at 547 (2d ed. 1994) (WPIC), contains an error of law, because it fails to inform jurors that third degree assault by battery requires that the defendant intend both to do the act and that the act be harmful or offensive. Christian's proposed jury instructions included a "to convict" instruction that would have included the specific intent element that "the defendant intended for the touching or striking to be harmful or offensive."
The State responds that Christian's...
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