State v. Hale
Docket Number | 57057-2-II |
Decision Date | 31 October 2023 |
Parties | STATE OF WASHINGTON, Respondent, v. BRETT MICHAEL HALE, Appellant. |
Court | Washington Court of Appeals |
Brett Hale appeals his multiple convictions and his sentence arising from a domestic violence incident involving his girlfriend at the time. Hale argues that the trial court erred in denying his peremptory challenge against juror 1 based on the State's GR 37 objection.
We hold that (1) the trial court erred in denying Hale's peremptory challenge because an objective observer could not have concluded that race was a factor in the peremptory challenge, but (2) the juror's presence on the jury did not prejudice Hale under the nonconstitutional harmless error standard. In the unpublished portion of this opinion, we address Hale's additional arguments.
We affirm Hale's convictions, but we remand to the trial court to strike the imposition of community custody for Hale's felony harassment conviction and the community custody supervision fees imposed in the judgment and sentence. The trial court also should determine whether Hale is indigent under RCW 10.01.160(3) and reconsider the imposition of the crime victim penalty assessment (VPA) based on that determination.
In September 2021, law enforcement arrested Hale after his girlfriend at the time called 911 during a domestic violence incident at their residence. Law enforcement discovered controlled substances on the premises and in a vehicle at the residence. The State charged Hale with felony harassment-domestic violence, third degree malicious mischief-domestic violence, unlawful possession of a controlled substance with intent to deliver while armed with a firearm, three counts of second degree unlawful possession of a firearm, and possession of a stolen firearm.
During jury selection, the prosecutor asked if anyone had "any specialized training, education or experience in the subject of physical altercations committed by household [] members or dating partners." Rep. of Proc. (RP) at 108. Juror 1 responded that he was a consultant for Child Protective Services (CPS) and had participated in domestic violence training and substance harm reduction. When the prosecutor asked if he could assess the evidence fairly and impartially juror 1 replied, "I do believe so." RP at 109.
Juror 9 also worked with CPS and Child Welfare Services. But when asked if she could be fair and impartial, juror 9 responded RP at 111. And juror 35 used to work in victim advocacy and had training on interpersonal conflict between dating partners and household members, but stated that the experience would not affect her ability to be fair and impartial.
Addressing the venire as a whole, Hale asked whether anyone presumed that the prosecution would not take a weak case to trial. Juror 1 replied that based on his experience working with CPS, he saw "situations where some cases may not go to trial because of a lack of evidence or not being as strong of a case." RP at 127.
Hale also asked generally whether anyone felt that they could not be fair and impartial. Juror 10 replied that he did not think he would be incapable of being fair, but that he had "very strong feelings against people that sell drugs" so he was not sure if he always could be impartial to people "that do things like that." RP at 128. Hale asked juror 10 if he could be fair and impartial, and he replied he thought he could be but that he probably would be biased. When asked one more time if he felt he could be fair and impartial, juror 10 replied "I'll try." RP at 129.
Responding to the same question, Juror 9 stated, "[J]ust in the line of work that I do and people coming into the office every day high, getting high, dying in our restrooms, selling drugs in our parking lot." RP at 131. Hale then had the following discussion with juror 9:
RP at 136. The State replied, RP at 137.
The trial court asked both parties whether there were other people on the jury who may be viewed as a particular ethnicity or race. The parties identified at least four other jurors who were not white. The State identified jurors 12 and 21 "as potential jurors who GR 37 would apply to." RP at 141. Hale identified juror 11 as having "a medium skin tone with dark black hair" and juror 37 as having "pretty dark skin" and possibly being "of western European, Portuguese or Spanish descent." RP at 141-42. Hale did not exercise peremptory challenges on any of these jurors. The first three of those jurors sat on the jury and juror 37 was the first alternate.
Initially, the trial court stated that based on its experience with Hale's defense counsel for over 20 years, RP at 144. The court emphasized, "I want the record to reflect that this court is more than confident, one hundred percent convinced, that [defense counsel] is not exercising a peremptory challenge on behalf of his client because of the color of a person's skin." Clerk's Papers (CP) at 145. But the court noted that under GR 37(e), the key circumstance is whether an objective observer could view race or ethnicity as a factor.
The trial court then stated that it was "not readily apparent to this court that this panel includes many, if any people of color or of a particular ethnic background." RP at 146. The court was not certain of juror 1's ethnic background, but "for purposes of this issue and this challenge," the court ruled that juror 1 appeared to be ...
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