State v. Pierce

Decision Date09 January 2020
Docket NumberNo. 96344-4 (consolidated with No. 96345-2),96344-4 (consolidated with No. 96345-2)
Citation455 P.3d 647
CourtWashington Supreme Court
Parties STATE of Washington, Petitioner, v. Karl Emerson PIERCE, Respondent. State of Washington, Petitioner, v. Michael William Bienhoff, Respondent.

James Morrissey, Whisman King County Prosecutor's Office, 516 3rd Avenue, W554 King County Courthouse, Seattle, WA 98104-2385, for petitioner.

Christopher Gibson, Nielsen Koch PLLC, 1908 E. Madison Street, Seattle, WA 98122-2842, Maria Leslie Zink, Luminata, PLLC, 2033 6th Avenue, Suite 901, Seattle, WA 98121-2568, for respondents.

Nancy Lynn Talner, Antoinette M. Davis, ACLU-WA, P.O. Box 2728, Seattle, WA 98111-2728, for Amicus Curiae (American Civil Liberties Union of Washington)

Jessica Levin, Robert S. Chang, Seattle University School of Law, 901 12th Avenue, Korematsu Center For Law & Equality, Seattle, WA 98122-4411, for Amicus Curiae (Fred T. Korematsu Center For Law and Equality)

Rita Joan Griffith, Attorney at Law, 4616 25th Avenue NE, PMB 453, Seattle, WA 98105-4523, for Amicus Curiae (Washington Association of Criminal Defense Lawyers)

Gretchen Eileen Verhoef, Spokane County Prosecutors Office, 1100 W. Mallon Avenue, Spokane, WA 99260-0270, for Amicus Curiae (Washington Association of Prosecuting Attorneys)

Hillary Ann Behrman, The Washington Defender Association, 110 Prefontaine Place South #610, Seattle, WA 98104-2626, for Amicus Curiae (Washington Defender Association)

González, J. ¶ 1 Our constitutions separate power into many hands. Among those hands are the hands of the jury. CONST . art. I, § 22 ; U.S. CONST . amend. VI. Juries are just as vital a check on government power as the separation of powers between the legislative, executive, and judicial branches. See Hale v. Wellpinit Sch. Dist. No. 49, 165 Wash.2d 494, 504, 198 P.3d 1021 (2009). To perform their vital function, juries must be fairly selected. State v. Lanciloti, 165 Wash.2d 661, 667-68, 201 P.3d 323 (2009). Jury selection must be done in a fair way that does not exclude qualified jurors on inappropriate grounds, including race. See City of Seattle v. Erickson, 188 Wash.2d 721, 723, 398 P.3d 1124 (2017) (citing Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) ); GR 37. As part of their constitutional role, courts ultimately have the obligation of ensuring those before them receive due process of law. See, e.g., State v. Oppelt, 172 Wash.2d 285, 288, 257 P.3d 653 (2011) ; City of Redmond v. Moore, 151 Wash.2d 664, 677, 91 P.3d 875 (2004).

¶ 2 Michael Bienhoff and Karl Pierce were tried before a jury and found guilty of first degree felony murder. They contend, among other things, that their jury was not fairly selected because the State improperly elicited a conversation about the death penalty during voir dire and improperly used a peremptory strike to dismiss an African-American juror. The Court of Appeals found that the prosecutor committed misconduct by eliciting a conversation about the death penalty in a noncapital case and that the trial court abused its discretion in not curtailing that conversation. Since that conversation led to the dismissal of at least two jurors, the Court of Appeals reversed both men’s convictions. We affirm the Court of Appeals on different grounds.


¶ 3 One day in Woodland Park, shortly before I-5021 passed, a group of men met ostensibly to buy and sell cannabis. Before the end of that day, one of those men, Precious Reed, had been killed in a gunfight. Bienhoff and Pierce were charged with first degree felony murder predicated on first degree robbery. Based on the facts alleged in the statement of probable cause, they could have been charged with first degree aggravated murder, which potentially carried a death sentence at the time. RCW 10.95.020(11)(a) ; RCW 9A.32.030(1)(a). The State elected not to seek the death penalty.

¶ 4 A large panel of potential jurors was summoned. Under Washington law at the time, it was error to inform these potential jurors about the possible sentencing consequences the defendants faced. State v. Townsend, 142 Wash.2d 838, 846, 15 P.3d 145 (2001) (quoting Shannon v. United States , 512 U.S. 573, 579, 114 S. Ct. 2419, 129 L. Ed. 2d 459 (1994) ). This prohibition specifically extended to the death penalty. Id. The prosecutor asked the trial judge how they should proceed if jurors, as they often do, asked whether the death penalty was being sought. The trial judge said he had, in the past, "evaded the question," but he was willing to address the issue "with the group as a whole, if that’s what counsel thinks I need to do." Verbatim Tr. of Proceedings (VTP) (Sept. 21, 2015) at 406. The prosecutor responded:

The State’s preference is to address it head on, of course, in accordance with the law, which is to instruct them that our state Supreme Court has decided that that is not something that they are privy to, or we cannot tell them if this is a death penalty case or not, and then ask them the follow-up question. Basically, not knowing whether this is a death penalty case or not, does that cause you concern as to whether or not you could be a fair and/or impartial juror in this case.

Id. The trial judge was concerned about that approach:

My preference would be not to ask the follow-up question, but just tell them that and then go on and then see if any of them raises the issue beyond that. But I don’t know what you think about that.
The problem is if I invite them to say, you know, can you be fair and impartial, then anybody who for some reason or other couldn’t like the idea of being here has a good way to head for the door.

Id. at 406-07. The question of how to deal with the death penalty was not resolved that day.

¶ 5 A few days later, during voir dire, prospective juror 56 said, "My conscience is going to bother me all my life" if he voted to convict someone who later proved to be innocent, especially if that person served a long sentence. VTP (Sept. 23, 2015) at 798-99. After some probing by the court, juror 56 said he did not believe he could be a fair juror on this case and was dismissed for cause. That afternoon, the prosecutor "switch[ed] gears" and reminded the remaining panel members that "Juror Number 56 ... realized ... the weight of being a juror was not something that he could deal with." Id. at 824. The prosecutor emphasized that the jury’s sole role was to decide whether the State had met its burden of proof and not to concern itself with punishment. After the prosecutor asked the jurors if they "underst[oo]d that," were "concern[ed] about that," or thought that "doesn’t make sense," among similar questions, the following exchange occurred:

(Juror Number 1)[:] Is there a death sentence thing in the state of Washington? That might bother me.
MR. YIP[2]: I will let the judge answer that question.
THE COURT: The Washington Supreme Court has said that I can’t tell you whether a death sentence is involved or not.
Q. So our wise Washington Supreme Court has said that the judge cannot tell you whether or not this is a death penalty case or whether or not that is a potential outcome.
And I will get to the cards that are being raised right now.
So the ultimate question that I’m going to ask you is, with that in mind that the judge can’t tell you and you won't know, does that cause you any concern about being a juror in this case where the charge is murder in the first degree?
Juror Number 5.
A. So—and I know you can’t tell us, but if that’s a possibility at all, yes, I have concern with that. Because like we have said before, evidence can come out later. And if they are sentenced to death, I have an issue with that, because I don’t—not that I’m making the call of their punishment, but I don’t want to find them guilty if that should be the case and then an irreversible decision has been made.
As awful as it would be if they were later found out innocent and still in jail, that’s not nearly as bad as if they had a death penalty.

Id. at 825-26.

¶ 6 In the wake of this discussion, jurors 1, 5, 6, 15, 20, 39, 76, 98, 116, and 131 all expressed concerns about sitting on a jury in a possible death penalty case. Upon further questioning, most assured the court that they could be fair. Juror 76, however, reported that the weight of sending someone to a long prison sentence or death weighed so heavily on her that she could not finish her lunch.

¶ 7 Juror 6, apparently the only African-American potential juror in the courtroom at that time, said, "I wouldn’t want to be responsible for sending somebody—penalizing them to the death penalty, whether I knew beforehand or not. I wouldn’t feel comfortable also with sending someone to jail for life." Id. at 827. The prosecutor stressed that the jurors do not decide the sentence. Juror 6 acknowledged the point but observed, "[T]he decision that we, as jurors, would make would be instrumental in deciding the fate of another person, which I don’t want that kind of responsibility on my shoulders." Id. at 828. When asked directly if she could be fair, juror 6 said, "I can. I can." Id. Later, however, juror 6 said that without knowing whether the death penalty was a possibility she "would not be able to make a decision in this case." Id. at 833. The State moved to strike juror 6 for cause.

¶ 8 Outside the presence of the jury, defense counsel raised "a very, very strenuous objection to the proceeding that we have, and I’m afraid I have to ask for a mistrial." Id. at 838. Counsel was concerned that the State was identifying jurors with "qualms about something that is completely irrelevant in this case" and that it was attempting to "death-qualify" the jury.3 Id. at 838-39. The prosecutor denied he was trying to death-qualify the jury. The trial court found that the prosecutor had not done anything "improper in any way. It’s the juror that first brought up the death penalty." Id. at 846. The State moved to dismiss jurors 6 and 76 for cause.

¶ 9 Both juror 6 and...

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