State v. George
| Docket Number | 83309-0-I |
| Decision Date | 26 December 2023 |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY WILLIAM GEORGE, SR., Appellant. |
| Court | Washington Court of Appeals |
1
STATE OF WASHINGTON, Respondent,
v.
ANTHONY WILLIAM GEORGE, SR., Appellant.
No. 83309-0-I
Court of Appeals of Washington, Division 1
December 26, 2023
UNPUBLISHED OPINION
Smith, C.J.
This case comes to us by way of remand from our Supreme Court, which directed us to reconsider the case "in light of Supreme Court No. 100166-5-State of Washington v. Amanuel Tesfasilasye-Goitom." State v. George, No. 100931-3 (Wash. Jan. 4, 2023). The only issue before us on remand is whether the trial court erred in overruling George's GR 37 objection. We previously concluded that the court did not err and affirmed the convictions. We do so again now.
FACTS
The underlying facts are set out in detail in this court's unpublished opinion and briefly repeated here. State v. George, No. 83309-0-I (Wash.Ct.App. Apr. 18, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/ 833090.pdf.
The State charged Anthony William George with three counts of possession with intent to deliver while armed with a firearm, one count of simple possession, and three counts of unlawful possession of a firearm in the first
degree. During jury selection, the State spoke with several jurors about the possibility that not all evidence would be presented to the jury. The State explained that the rules of evidence sometimes prevented evidence from being admitted and asked if any jurors felt uncomfortable with that notion. The State questioned six jurors on this issue: juror 53, juror 56, juror 64, juror 83, juror 169, and juror 174.
In response to the State's question, juror 83 responded:
I think a little bit. But I am going to want to know obviously as much as I can to make the right decision Everybody probably wants that. So if that-if there is something missing, I mean, is that a question that should be asked by the jurors? Like, what about this, if it wasn't brought up here
The State told juror 83 that the jurors wouldn't be able to ask questions of the court and that, typically, the court would tell the jurors that they "have heard the evidence and [that they] have the instructions."
The State then asked juror 64 whether not hearing some evidence would "bother [them] as a juror when [they] deliberate." Juror 64 responded:
I have been on one trial before, it was a case where we could tell, because the time line [sic], it didn't line up, but we just had to go with what we had.
The State then asked the venire:
Is there anybody who, as a potential juror, is actually going to have a problem with the idea that certain evidence is not admissible, and you won't get to hear it. You will go back to deliberate, and say, I feel like someone is hiding the ball, the State, the judge, defense, somebody is hiding the ball, and that's going to affect your deliberations so you are not fair and impartial to the defendant. Anybody have an issue with that?
Juror 53 responded, "yes," and then had the following exchange with the State:
[THE STATE]: Okay.
[JUROR 53]: There are a lots [sic] people locked up right now because everything wasn't presented.
[THE STATE]: Okay. And, does-let me ask you the question. Do you think that our criminal justice system works, broadly speaking?
[JUROR 53]: Yes and no.
[THE STATE]: Okay. There is always room for improvement?
[JUROR 53]: Right.
[THE STATE]: Gotcha. All right.
The State asked juror 56 if they would feel uneasy about some evidence not being admitted. Juror 56 responded, "No."
The State then pivoted back to juror 53:
[THE STATE]: Okay. 53, if you are on this jury and that situation does come up and you feel like something wasn't brought out, or-
[JUROR 53]: I would like to know why.
[THE STATE]: Sure. Let's say you don't get to find out why. Is that something that through deliberations you might be able to talk to your fellow jurors and come to-or is that always going to be a problem?
[JUROR 53]: Always going to be a problem.
[THE STATE]: Gotcha.
The State questioned two more jurors on missing evidence. Juror 169 stated that it would feel "like the State is withholding something" and like the State was "lying, essentially" by "not bringing all the evidence to the table" and not explaining why. The State asked if the fact that evidence was not admitted would feel like "[a] lie by omission" and juror 169 responded, "Yes." The State then asked juror 174 to weigh in, and juror 174 gave a lengthy response:
[JUROR 174]: I was in a trial as a juror before, and there was [a] tremendous amount of witnesses, there were cell phones, took video, and all of that, and it was a resisting arrest charge, okay? And the judge absolutely forbid any of that be shown. So we never got to see that evidence. And in that case, when I talked a little bit
about coercion, I truly think that it would have dismissed the case had we seen that, but they wouldn't allow that, and so the charge stood, and I personally feel that it never would have-it never would have, if-of course, I never got to see the video. The rumor was, what was on the video, would have made it. You know, that's after the trial, and I got able to talk to people and stuff like, wow, if you would have seen what was on the video, you probably would have had a different opinion. So when you ask does it work? Kind of. Sometimes. I also think that there is times where the public and political pressure, is really milking it up, okay? Good example, DUI laws, okay, there is the one where you are guilty until proven innocent. Period.
[THE STATE]: Because of the blow level?
[JUROR 174]: Yeah. The blow level, the immediate have to start treatment, blah, blah, blah, whether you are guilty, that may be a year down the road.
. . . .
[THE STATE]: Sure. So just based on what you hear of the allegations and what you might be able to infer from the nature of our questions is there anything about this case that kind of raises some feelings like that?
[JUROR 174]: No.
Defense counsel also asked the venire about why and how wrongful convictions occur, to which juror 28 replied, "Because the lady is blind." Defense counsel then elicited the following responses from juror 28:
[DEFENSE]: You are shown evidence. Whatever the State wants you to see, right?
[JUROR 28]: Sometimes that's-yeah that's it.
[DEFENSE]: That's just what?
[JUROR 28]: Sometimes everything is not shown.
[DEFENSE]: Sometimes you aren't shown everything, right? How in the world can that be?
[JUROR 28]: They are only going to show evidence that helps them.
At some point, George used a peremptory challenge to remove juror 28. The State later exercised a peremptory challenge against potential juror 53.
George raised a GR 37 challenge in response. The trial court then asked the State to explain its reason for the strike. The State denied it was striking juror 53 because he was a Black man. Instead, the State contended it wanted to strike juror 53 because the charges relied on confidential informant information and it was highly unlikely that the jurors would get to see that evidence. For example, the jurors would not learn about a search of George's cell phone or how the investigation culminated in a search warrant. The State explained that juror 53's responses to its questions about missing evidence-that he would feel uneasy, that it would affect his decision making process, and that it would affect his ability to consider the evidence-were concerning. The State noted that it didn't think the juror's responses "would necessarily interfere with his ability to be fair and impartial," but that "his responses were unique" and no other potential juror answered similarly.
Defense counsel pushed back: "The distrust described by the State [i.e., the hiding the ball] is no different than distrust of law enforcement. It's just the next step in that same distrust, right?" Counsel continued:
[I]t's an inherent bias in the system, not just law enforcement. I know that's a factor and enumerated under GR 37. The response by that juror, Juror 53, was no different than several other responses from the several other jurors that were not stricken. So I don't think that can be a basis. I recall several jurors having distrust about not getting all the evidence, and that's really what the question that the State is relying on. And so, I know Juror Number 28 that I struck, had indicated the same thing, that you are not going to get everything, that there is going to be things that we don't.
The trial court noted that it did not remember juror 53 mentioning "anything about having distrust for anybody, law enforcement or the Court, or the prosecutor." It stated that juror 53 "just said it makes [him] uncomfortable and it might affect [his] decision-making if [he] realize[s] or come[s] to realize that there is missing evidence." The court agreed with the State that juror 53's responses were uniquely "strongly worded." And given that the State's case would involve suppressed information, the court reasoned that the juror's unease would "prejudice[] the State's rights and interests."
The court concluded by stating that it did not "get the sense or impression at all that [the challenge] had anything to do with race, had anything to do with anything [sic] impermissible grounds listed in GR 37." The court overruled the GR 37 objection and granted the State's peremptory challenge. It also made a finding that an objective observer watching voir dire could not conclude that race was a factor in the State's decision to challenge the juror.
Of the six jurors questioned by the State about missing or suppressed evidence, only juror 56, who unequivocally stated that suppressed evidence would not be an issue, was seated on the jury.[1]
The jury convicted George as charged. He...
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