State v. Hicks

Decision Date24 April 2008
Docket NumberNo. 79143-1.,79143-1.
Citation181 P.3d 831,163 Wash.2d 477
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Phillip Victor HICKS, Petitioner. State of Washington, Respondent, v. Rashad Demetrius Babbs, Petitioner.

David Bruce Koch, Nielsen Broman & Koch PLLC, Rita Joan Griffith, Seattle, WA, for Petitioners.

Pierce County Prosecutor's Office, Kathleen Proctor, Tacoma, WA, for Respondent.

Kathryn C. Loring, Skinner & Saar PS, Friday Harbor, WA, Nicholas Peter Gellert, Julia Parsons Clarke, Perkins Coie LLP, Sarah A. Dunne, Nancy Lynn Talner, ACLU, Seattle, WA, for Amicus Curiae on behalf of American Civil Liberties Union.

J.M. JOHNSON, J.

¶ 1 Phillip Hicks and Rashad Babbs were convicted at two separate trials for the murder of Chica Webber (first trial) and the attempted murder of Jonathan Webber (second trial). We must determine whether their defense counsel was ineffective in informing potential jurors that the case was noncapital and in not objecting to the trial court and prosecution doing the same. We must also decide whether the trial court erred in denying the defendants' Batson1 challenge to the exclusion of the only remaining African-American juror on the venire.

¶ 2 We hold that under our current precedent, informing the jury that the case is noncapital and failing to object to the trial court and prosecution doing the same, is deficient performance of counsel. In this case, the error was nonprejudicial. We additionally hold that the trial court's denial of the Batson challenge was not clearly erroneous. For reasons stated, we affirm the convictions.

FACTS AND PROCEDURAL HISTORY

¶ 3 On the night of March 21, 2001, two men approached Jonathan Webber and his wife Chica as they were walking from a friend's house and asked the couple if they had drugs. The Webbers told the men that they did not and kept walking. The two men followed the Webbers, demanding several times that they empty their pockets. The Webbers continued walking, and the two men started shooting at them. Jonathan2 sustained wounds to his leg, wrist, and the left side of his back, but survived. Chica died. The autopsy of Chica's body revealed that she had been shot three times in the head — twice by a .22 revolver and once by a 9 mm handgun. Jonathan and another witness, Wayne Washington, also testified that the shots came from two firearms. Jonathan identified Hicks in a photomontage as one of his assailants but was unable to identify Babbs as the second assailant.

¶ 4 After the attack, the shooters ran off through an alley. A search of the area recovered a .22 revolver, a brown glove, a black leather jacket, a knit stocking cap, and a sweatshirt. The sweatshirt had DNA (deoxyribonucleic acid) that later testing found to be consistent with Babbs's DNA. The jacket also contained items linked to Babbs's sister and cousin.

¶ 5 On the night of the shooting, a man not wearing a jacket pounded on the window of Dana Duncan. Duncan did not know the man, but he convinced her he knew her brother. She gave the man a ride to another part of town. Shortly after Duncan arrived home, she received a thank you call from a cell phone linked to Babbs. Duncan first had difficulty identifying Babbs but eventually testified that Babbs was the man who had come to her window.

¶ 6 On April 24, 2001, the police arrested Hicks for unrelated drug dealing charges. Hicks made statements implicating himself in the Webber shootings both before and after he was read his Miranda3 warnings.

¶ 7 For Chica's death, the State charged Hicks and Babbs with aggravated first degree murder and in the alternative, first degree intentional murder and first degree felony murder, with first or second degree robbery as the underlying felony. The State also charged Hicks and Babbs with attempted murder of Jonathan and unlawful firearm possession. Babbs pleaded guilty to the firearm charge before trial.

¶ 8 At the first trial during voir dire, juror nine expressed concern that her religious beliefs might interfere with her ability to decide the case. When the trial judge asked her to think of an area where her church's teachings might conflict with her jury service, she mentioned capital punishment. After a sidebar with the attorneys, the trial court informed the jury that "[t]his is not a death penalty case. So that issue is one that I suppose could come in conflict with your religious beliefs, but it is not one that is at issue in this case. So that may remove some of your problem." Verbatim Report of Proceedings (VRP) (Apr. 22, 2003) at 74-75. There was no objection on the record from counsel. Juror nine then stated she could follow the law as given to her.

¶ 9 Later during voir dire, the prosecutor asked juror nine whether she would feel uncomfortable having to make a decision about the guilt or innocence of another human being. The juror responded, "No. I feel I try not to make a mistake, because . . . some people were executed, then they found out they were innocent afterwards." Id. at 155. The prosecutor then confirmed that because capital punishment was not an issue, juror nine was eligible to serve.

¶ 10 Both the defense and the prosecution referenced the nonapplicability of the death penalty on a few more occasions during voir dire. When counsel for Hicks reminded jurors that the case did not involve the death penalty, the prosecutor objected, and the trial court instructed the venire members that they should not consider punishment except to make them careful. Later, juror 33 said, "I recall it was a law professor that said to me in a conversation we had, he says, `I'd rather see 10 guilty people on the street than one innocent person in the electric chair.'" VRP (Apr. 23, 2003) at 63-64. Counsel for Babbs responded, "Okay. All right. Again, we are not heading toward the death penalty in this case, but I understand." Id. The juror responded, "Right. Of course." Id. The State dismissed juror 33, but the remaining jurors had all been present for this exchange on the death penalty. Additionally, during closing argument, the trial deputy also alluded to the case being noncapital. Contrasting Hicks's situation with decedent Chica's, she told jurors, "at least he has a life. At least he can choose whether or not he's going to grow old to a ripe old age. He can choose whether he wants to see his friends or his family." VRP (May 12, 2003) at 31.

¶ 11 The jury convicted Hicks and Babbs of first degree felony murder of Chica. The jury also convicted Hicks of the firearm charge. The jury could not reach a verdict on the attempted murder charges. Consequently, after a two day impasse, the trial court declared a mistrial on those charges.

¶ 12 A second trial was held on the attempted murder charges. During the jury voir dire, counsel for Hicks and Babbs both objected when the State used a peremptory challenge to remove juror nine, the only remaining African-American juror from the venire. (Juror 17, another African-American juror was challenged for cause because he knew many of the witnesses and thought this knowledge would impact his assessment of their credibility, and juror 54, also African-American, fell ill and did not return.) Defense counsel argued that, because the prosecutor had not asked this juror any questions,4 race must have been the reason for removing her. After a discussion with counsel regarding the Batson three-part test, the trial court determined, "[O]ut of an abundance of caution, I find a prima facie case [of discrimination]." 5 VRP (Jan. 30, 2004) at 496. The prosecutor then offered his reasons for exercising the challenge:

[The juror] has a master's in education. Whether it's science or not, people who are educators tend to be non-state type jurors that tend to be more forgiving, nurturing types, that necessarily aren't going to look for reasons to excuse behavior. She also happens to be a social worker, which is another red flag for a prosecutor.

. . . .

Further, [the juror] also indicated that somebody in her family, either a friend or relative, has been arrested and served time.

Id. at 496-97.

¶ 13 In response, the trial court remarked, "[h]e must have read the same version of the jury selection book that's been on my shelf for years." Id. at 497. The defense counsel reminded the court that the final step of Batson required the trial court's determination. After the prosecution's reiteration of his reasons for the strike, the court said "Okay. The Batson challenge is denied." Id. at 497-98. The jury at the second trial convicted Hicks and Babbs of attempted murder of Jonathan.

¶ 14 Hicks and Babbs appealed their convictions for first degree felony murder, attempted murder, and unlawful possession of a firearm. They contended that they received ineffective assistance of counsel in their first trial because their attorneys informed the jury that the case was noncapital and failed to object to the trial court and prosecution doing the same, and that this information was prejudicial.

¶ 15 Additionally, Hicks and Babbs claimed that the trial judge in their second trial erred in denying their Batson challenge. They contended that the judge failed to perform the third step of Batson's three-part analysis. They argued that even though the prosecutor's reasons for excusing the only remaining African-American juror were race-neutral, they were clearly pretextual.

¶ 16 On appeal, the Court of Appeals affirmed all convictions. Although the court found that the defense counsel's performance was deficient insofar as they did not object to the trial court informing the jury that the case was noncapital, the court held that the error was nonprejudicial because Hicks and Babbs failed to show that the trial outcome would likely have differed.

¶ 17 The Court of Appeals also upheld the trial court's denial of the Batson challenge. The court did not address whether the trial court properly performed Batson's third step or...

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