State v. Orozco

• Citation: 496 P.3d 1215
• Decision Date: 07 October 2021
• Docket Number: No. 37386-0-III,37386-0-III
• Parties: STATE of Washington, Respondent, v. Benjamin OROZCO, Appellant.
• Court: Court of Appeals of Washington

496 P.3d 1215

STATE of Washington, Respondent,

v.Benjamin OROZCO, Appellant.

No. 37386-0-III

Court of Appeals of Washington, Division 3.

FILED October 7, 2021

Jill Shumaker Reuter, Eastern Washington Appellate Law, PLLC, P.O. Box 8302, Spokane, WA, 99203-0302, for Appellant.

C. Dale Slack, Cindy Loraine Horowitz, Columbia County Prosecuting Attorney, 215 E Clay St., Dayton, WA, 99328-1344, for Respondent.

PUBLISHED OPINION

Lawrence-Berrey, J.

¶ 1 Benjamin Orozco appeals his convictions for second degree murder, first degree assault, and second degree unlawful possession of a firearm. He raises several issues, some with substantial merit. One issue is dispositive and we generally limit our discussion to that issue. We reverse and remand for a new trial because one venire juror was excluded from service in violation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and GR 37.

FACTS

¶ 2 On July 7, 1996, Benjamin Orozco shot Lance Terry and David Eaton. Terry died. Eaton identified Orozco as the shooter and David Delarosa as a possible accomplice.

¶ 3 Two days later, the State charged Orozco with one count of second degree murder and issued an arrest warrant.

¶ 4 Orozco and Delarosa met up in Walla Walla, then went to Idaho before traveling to Mexico. They remained in Mexico together. In 1998, Delarosa was arrested and returned to the United States as a material witness. The State offered him immunity in exchange for testifying against Orozco, who had not yet been found.

Pretrial procedure

¶ 5 On April 22, 2015, the State filed a formal petition for Orozco's extradition from Mexico to the United States.¹ One year later, he was arrested in Mexico. Mexico approved the requested extradition for the following charges:

Count one: Second degree murder of Lance Terry, against RCW 9A.32.050(1)(a), Washington State, United States of America.

Count two: First degree assault on David Eaton, against RCW 9A.36.011, Washington State, United States of America.

Clerk's Papers at 902-03. Orozco unsuccessfully contested extradition in the Mexican courts and was returned to the United States to face trial.

¶ 6 The State charged Orozco with second degree murder of Terry and first degree assault of Eaton. The State amended the information to add a firearm enhancement to each count. The State later amended to add a third count, second degree unlawful possession of a firearm (UPFA).

Trial

Motion to dismiss

¶ 7 On the first day of trial, the court heard Orozco's motion to dismiss the firearm enhancements and the UPFA charge. Orozco's motion was based on a lengthy document in Spanish that had yet to be translated. Orozco claimed the document was the "Extradition Agreement." Report of Proceedings (RP) at 348. A Washington State certified interpreter appeared in court and testified that he had read the document but was uncomfortable translating it because it contained federal-level legal terminology. The trial court denied Orozco's motion.

Voir dire

¶ 8 We limit our discussion of voir dire to that involving the dispositive issue. The trial court asked whether any prospective juror knew the prosecutor trying the case. Eleven venire jurors answered yes, including venire juror 25. The court asked the venire jury if there was anyone who could not be fair and impartial to both the State and the defendant. Several people raised their hands. Venire juror 25 did not raise her hand. Throughout voir dire, neither side individually questioned venire juror 25.

¶ 9 The parties exercised their peremptory challenges. The State challenged six jurors, including venire juror 25. Orozco challenged five venire jurors. As the court called the jurors to take their seats in the jury box, there was a pause and the court called counsel to a sidebar. A discussion ensued but was not placed on the record. The court then continued calling jurors to take their seats. Once counsel confirmed that the seated jurors were consistent with their notes, the court excused the venire. The court gave the jurors their oath, gave a standard introductory instruction, and took a 10 minute recess.

Batson and GR 37 objections

¶ 10 The court reconvened after the recess and asked the parties to address Orozco's Batson and GR 37 challenges. Orozco's counsel began:

Your Honor, for the record, Juror Number 25—and just because it's not going to be apparent on the record—Juror Number 25 appeared to be an African American female; the only African American female in the entire pool and the State—the State struck the—and she made it up into the first 12, into the jury box and the State struck the only African American female that was on the—in the pool.

There were no questions asked of her and she didn't respond to any of the questions that were asked by either one of us. So it—on it's [sic] face, it can't be said that she—that she made any remarks that would give the Court or give State's Counsel any reason to believe that she wasn't a fit juror for this case.

So we are raising a challenge under Batson and that was codified in GR 37, which I think now is a little stricter on its rules. ...

RP at 346. When the defense asked why the State exercised the peremptory, the following exchange took place:

[THE STATE]: Your Honor, I've prosecuted [venire juror 25] in the past for minor crimes—they weren't anything major; she's not a felon, but I have prosecuted her in the past and also her name has appeared in a number of police reports as associating with people that I believe have been engaged in criminal activity.

THE COURT: Okay.

[THE DEFENSE]: And, Your Honor, we'd still object to her removal. Under the Rules—the State didn't ask her any questions such as whether ... having been prosecuted by the State would in any way bias her against our Client. There was no dialogue or reason to believe that such interactions would cause a bias to either the State or the Defense.

... [W]e are stating that is not an acceptable reason to have the peremptory challenge under Rule GR 37. And even having a close relationship with people who've been stopped, arrested, or convicted of a crime is not a reason to exercise a peremptory under [ ] GR 37.... For the record, we do believe it's an improper peremptory under GR 37.

THE COURT: Actually, based on the State's response, I accept what they've said and that will be denied.

RP at 347.

Verdict and sentencing

¶ 11 The parties presented their evidence, and the case was argued and submitted to the jury. The jury found Orozco guilty as charged. It also found that Orozco was armed with a firearm during the commission of counts 1 and 2. The trial court sentenced Orozco to 435 months of imprisonment followed by 24 months of community supervision.

ANALYSIS

¶ 12 Orozco contends the trial court erred in overruling his Batson and GR 37 objections to the State's peremptory strike against venire juror 25. We agree.

¶ 13 Criminal defendants are guaranteed the right to a fair and impartial jury. U.S. CONST. amend. VI ; WASH. CONST. art. I, § 22. Furthermore, prospective jurors themselves have the constitutional right not to be excluded from serving on a jury due to discrimination. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). During jury selection, parties exercise peremptory challenges—where they strike jurors for no stated reason—to select jurors they believe will be best for their case. State v. Lahman, 17 Wash. App. 2d 925, 930–32, 488 P.3d 881 (2021). These challenges, while important, are potentially rife with implicit and explicit bias. Id. at 884.

¶ 14 Washington has adopted the Batson three-part framework for determining whether a peremptory challenge was impermissibly racially motivated. State v. Jefferson, 192 Wash.2d 225, 231, 429 P.3d 467 (2018) (plurality opinion). The Batson framework provides:

First, the defendant must establish a prima facie case that gives rise to an inference of discriminatory purpose. Second, if a prima facie case is made, the burden shifts to the prosecutor to provide an adequate, race-neutral justification for the strike. Finally, if a race-neutral explanation is provided, the court must weigh all relevant circumstances and decide if the strike was motivated by racial animus.

City of Seattle v. Erickson, 188 Wash.2d 721, 726-27, 398 P.3d 1124 (2017) (citations and internal quotation marks omitted). "Though the United States Supreme Court provided this framework, it left the states to establish rules for the ‘particular procedures to be followed upon a defendant's timely objection to a prosecutor's challenges.’ " Id. at 727, 398 P.3d 1124 (quoting Batson, 476 U.S. at 99, 106 S.Ct. 1712 ).

¶ 15 In recent years, the Washington Supreme Court has established rules to better meet the goals of ending racial discrimination in jury selection. In Erickson, the court adopted a bright-line rule for the first step in Batson : "the trial court must recognize a prima facie case of discriminatory purpose when the sole member of a racially cognizable group has been struck from the jury." Id. at 734, 398 P.3d 1124. In Jefferson, the court modified the third step in Batson to incorporate GR 37, effective April 24, 2018. 192 Wash.2d at 244-45, 429 P.3d 467 ; see also State v. Berhe, 193 Wash.2d 647, 664-65, 444 P.3d 1172 (2019) (discussing Supreme Court's adoption of GR 37 ). We review the third step of Batson and the application of GR 37 de novo. Jefferson, 192 Wash.2d at 250, 429 P.3d 467 ; State v. Omar, 12 Wash. App. 2d 747, 750-51, 460 P.3d 225, review denied, 196 Wash.2d 1016, 475 P.3d 164 (2020) ; State v. Listoe, 15 Wash. App. 2d 308, 321, 475 P.3d 534 (2020).

¶ 16 Under GR 37, a party or the court may object to the use of a peremptory challenge based on improper bias. GR 37(c). Upon objection, a discussion must be held outside the presence of the jury where the party exercising the challenge articulates its reasons for doing so. GR 37(d).² The court then evaluates the proffered justification in light of the totality of the...