State v. Evans
| Decision Date | 08 May 2000 |
| Docket Number | No. 43516-7-I., No. 42959-1-I |
| Citation | 100 Wash.App. 757,998 P.2d 373 |
| Parties | STATE of Washington, Respondent, v. Timothy Dalton EVANS, Appellant. State of Washington, Respondent, v. Dale Steven King, Appellant. |
| Court | Washington Court of Appeals |
Thomas Michael Kummerow, Seattle, for Appellant Evans.
James Robert Dixon, Robert Arthur Weppner, Seattle, for Appellant King.
Erin Elizabeth Ehlert, Andrew J. Ries, King County Pros. Atty. Office, King County Pros. Atty., Seattle, for Respondent.
Batson v. Kentucky1 and its progeny2 teach that the equal protection clause of the fourteenth amendment protects against invidious discrimination by the improper exercise of peremptory challenges in criminal and civil proceedings. In these two cases that we consolidate for purposes of our opinion,3 we decide two issues of first impression in this state. First, may a trial judge raise sua sponte a Batson issue dealing with the selection of a jury? Second, did the procedure in these cases violate the requirement of Batson that a prima facie case of invidious discrimination first be shown before further inquiry is permitted?
We hold that a court may raise sua sponte a Batson issue. We further hold that the trial court's procedure in these cases is impermissibly inconsistent with the rule of Batson. Accordingly, we reverse.
The State charged Timothy Evans with delivery of cocaine4 within 1,000 feet of a school bus route stop.5 Out of the presence of the jury and prior to voir dire, the court stated to counsel:
With regard to any members of the jury panel who are jurors of apparent color, the best I can do, you don't ask members of the jury panel to identify themselves by race or ethnicity, so we will identify jurors who appear to be jurors of color once we have the panel down here. If either of you anticipate the possibility of a peremptory challenge as to any of those jurors, you will need to make a preliminary showing to me, at side bar or outside the presence of the panel, of a race-neutral reason for such possible peremptory. And you will need to have that approved by the court in advance of exercising such a peremptory.
Counsel for Evans then asked whether the court was waiving the requirements of Batson, to which the court replied that it was not waiving anything. The court indicated that it was requiring the procedure outlined above because so few persons of apparent color appeared either in jury panels or venires. The court further indicated that it utilized the procedure in both civil and criminal cases and regardless of the race or ethnicity of the parties or witnesses.
The record shows that the use of this procedure resulted in three members of the venire being identified as "jurors of apparent color." When the time for challenges came, the judge excused one of them for cause. Another went unchallenged by either party. The judge's ruling on Evans' peremptory challenge of the third (Juror No. 2) is at issue in this appeal.
During voir dire, Juror No. 2 provided his name, the area of the city in which he lived, and his position with a well-known Seattle-based company. He also stated that his wife attends the University of Washington and that he enjoys outdoor activities. The record does not reflect any other manner in which he participated in voir dire, except that he answered affirmatively when the court asked whether anyone had been the victim of a crime.
At the time for challenges, Evans indicated that he wished to exercise a peremptory to excuse Juror No. 2. The court responded by stating that it would require a statement, on the record, of a race-neutral reason for the challenge. Counsel stated a reason, but the court rejected it, denying the peremptory challenge.
Evans appeals the judgment on the jury verdict finding him guilty as charged.
The State charged Dale King with unlawful possession of cocaine.6 The court utilized essentially the same procedure for peremptory challenges as that described in Evans' case.
The composition of the 38 members of the venire in this case included five persons who were identified as "jurors of apparent color." Of that total, one venire member (Juror No. 2) was the subject of King's fifth peremptory challenge. The court's ruling on that challenge is at issue here.
During voir dire, Juror No. 2 provided his name and the city in which he lived. He also stated that he is a truck driver, that his wife is a self-employed florist, that he enjoys traveling and sports, that he previously served on a jury in a criminal matter, and that the jury reached a verdict in that case. In addition, he raised his card when the court asked the members of the venire to "hold your cards up if you...are a nondrinker or would consider yourself to be a tea totaler and/or you personally feel that zero tolerance for drug use is appropriate." Juror No. 2 later engaged in the following exchange with counsel for King:
[Counsel]: I guess what I'm getting at is because of [the] magnitude of the [drug] problem, I feel that a lot of people have an attitude that we're better safe than sorry. I think it would be better locking up Mr. King just to make sure that we're dealing with the problem. I happen to think that the Constitution says you have another way of looking at things, but what do you think about that? Do you think that's a problem these days, that we're so tired of the drugs and violence, rather be safe than sorry?
Juror No. 2: I believe there's a tendency to do that.
[Counsel]: Could you overcome that tendency?
Juror No. 2: To me, my personal opinion is that the problem doesn't lie in possession. It probably lies in the dealing of the drugs and whether he was in possession to deal. We don't know, and if the charge is possession, that's a different—it would be a different charge than him selling, but I think there's a tendency to do that, to want to get rid of drugs because I believe drugs are a bad thing to society.
When King sought to exercise a peremptory challenge against Juror No. 2, the court required a statement of "race neutral or non discriminatory reasons" for the challenge. Counsel objected, stating that there was no showing of a prima facie case of purposeful discrimination under Batson. Nevertheless, the court required an explanation. Counsel for King then offered an explanation, which the court rejected.
King moved for a new trial after the jury verdict finding him guilty as charged. In that motion, he again argued that the court's ruling denying the peremptory challenge was erroneous. In denying the motion, the trial court stated in part:
Evans contends that a trial court may not raise sua sponte a Batson issue. We hold that, subject to the requirements of the equal protection clause, a trial court has such discretion.
By statute and court rule, a party to an action generally has the right to exercise peremptory challenges against potential jurors without giving a reason.7 Such challenges are not a constitutional right.8 Improperly denying or impairing the right to exercise a peremptory challenge is reversible error without a showing of prejudice.9
The exercise of peremptory challenges is subject to procedural and substantive limitations.10 As to substantive limitations, a peremptory challenge may not be exercised to invidiously discriminate against a person because of gender, race, or ethnicity.11
Generally, a party to the proceeding makes the Batson challenge. In doing so, that party must first establish a prima facie case of purposeful discrimination.12 A prima facie case exists if two criteria are met. First, the challenge must be exercised against a member of a "constitutionally cognizable" group.13 Second, that fact and "other relevant circumstances" must raise the inference that the challenge was based upon membership in the group.14 "Relevant circumstances" may include a pattern of strikes against members of the group or the particular questions asked during voir dire.15
Once a prima facie case is shown to exist, the burden shifts to the party exercising the peremptory challenge to give a neutral explanation related to the particular case to be tried.16 A general denial of discriminatory intent is insufficient for these purposes.17
The third and final step requires the trial court to consider the proffered explanation to determine whether there is a discriminatory purpose behind the exercise of the peremptory challenge.18 Because this step in the analysis rests on demeanor and credibility, we give great deference to the trial court's determination.19
The threshold issue here is whether a trial court, as opposed to a party, may raise sua sponte a Batson issue. No published...
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