State v. Walker, No. 22003-6-III (WA 12/28/2004)
| Decision Date | 28 December 2004 |
| Docket Number | No. 22003-6-III,22003-6-III |
| Court | United States State Supreme Court of Washington |
| Parties | STATE OF WASHINGTON, Respondent and Cross-Appellant, v. LAMARK A. WALKER, Appellant. |
Appeal from Superior Court of Spokane County. Docket No. 02-1-01963-4. Judgment or order under review. Date filed: 03/31/2003. Judge signing: Hon. Linda G Tompkins.
Counsel for Appellant(s), Janet G. Gemberling, Attorney at Law, PO Box 20008, Spokane, WA 99204-0008.
Counsel for Respondent/Cross-Appellant, Kevin Michael Korsmo, Attorney at Law, 1100 W Mallon Ave, Spokane, WA 99260-2043.
Lamark A. Walker was convicted of one count of second degree manslaughter and three counts of second degree assault. Claiming his constitutional rights were violated, the evidence was insufficient to support the convictions, and the court made a number of improper evidentiary rulings, he appeals. Contending the court erred by instructing the jury on self-defense, dismissing the second degree felony murder charge, and admitting hearsay testimony, the State cross appeals. Mr. Walker also raises several other issues in his statement of additional grounds for review. We affirm.
At about 10:00 p.m. on August 2, 2002, Amy Parkhill, her boyfriend Ronald Jones, and his brother Tad Ferguson, visited Mr. Walker and his girlfriend, Samara Vaught, at their home. The group decided to go to a bar. After leaving the bar, they stopped at a convenience store to buy beer and went to Mr. Walker's home. While at the home, Mr. Walker slapped Ms. Vaught in the face and then hit her again. Ms. Parkhill tried to intervene, but Mr. Walker told her it was none of her business and threw a potted plant at her. When Mr. Jones and Mr. Ferguson stood up, Ms. Parkhill saw a very upset Mr. Walker grab a gun.
Meanwhile, Sean Spence and his friends, Justin Rockey and Michael Royce, were sitting in a car outside Mr. Walker's home. While they were in the car, they saw a woman fighting with a man. She was screaming for help. Mr. Rockey and Mr. Royce stayed in the car, but Mr. Spence got out and ran up to the house to see if anyone needed help.
As Mr. Jones was leaving through the home's front door, Mr. Spence appeared at the doorway. Mr. Jones tried to stop him from entering the house, but Mr. Spence went inside with his hands raised and swinging wildly. Mr. Spence hit Ms. Vaught and then hit Mr. Walker. The two men started to fight. Mr. Walker hit Mr. Spence on the head with the gun. Mr. Spence fell near the front door, but got up and came back towards Mr. Walker. Ms. Parkhill, Mr. Jones, and Mr. Rockey then heard a gunshot. After the gunshot, Mr. Rockey, who was still waiting in the car for Mr. Spence, saw people running out of the house and into a black SUV parked outside. They left. When Mr. Rockey and Mr. Royce saw Mr. Spence, they got out of the car and ran to him. Mr. Spence then fell to the ground with a cut on his head and a gunshot wound to his stomach. He died from the gunshot wound.
Mr. Walker was charged with one count of second degree felony murder and one count of unlawful possession of a firearm. On August 29, 2002, the information was amended to charge Mr. Walker with one count of second degree felony murder, four counts of second degree assault, and one count of first degree unlawful possession of a firearm. On December 10, 2002, the information was again amended to charge Mr. Walker with second degree felony murder, while committing first degree unlawful possession of a firearm, or in the alternative, first degree manslaughter. Mr. Walker pleaded guilty to the unlawful possession of a firearm charge and went to trial on the remaining counts. At trial, the court dismissed the second degree felony murder charge and a second degree assault charge. The jury found Mr. Walker guilty on the remaining charges—one count of first degree manslaughter and three counts of second degree assault. Mr. Walker was sentenced to life in prison without the possibility of parole. He appeals.
Mr. Walker first claims a violation of his constitutional rights. Mr. Walker is African-American. During jury selection, Sam Sledge, the only African-American on the jury venire, told the prosecutor he would be an `advocate' for the defendant. Report of Proceedings (RP) (Jan. 14, 2003) at 329-30. The exchange between the prosecutor and Mr. Sledge follows:
{Prosecutor}: Does it trouble you that the prospective panel that is here to eventually evaluate this particular case is not as diverse in terms of all those things that I mentioned earlier? Do you believe that there are problems with that?
{Mr. Sledge}: Spokane is so much more civilized than where I am from. My duty as a citizen is to be the advocate of the defendant until evidence weighs the other way. So I believe we are all the defendant's advocate until proven otherwise.
{Prosecutor}: You indicated that you are the defendant's advocate?
{Mr. Sledge}: Yes.
{Prosecutor}: Why are you Mr. Walker's advocate?
{Mr. Sledge}: He is on trial. He is the one who is innocent until proven otherwise. So we are all his advocate until proven otherwise.
{Prosecutor}: So is it fair to say from your perspective the defendant is up here, is it fair to say that you are more impartial towards Mr. Walker than you are towards the state?
{Mr. Sledge}: No. No, that is not my meaning at all. See, I didn't create the constitution, but I do understand it, and I live by it proudly. If you are proven — if you are innocent until proven guilty, then I come with an open mind. With an open mind, you are innocent. When the state presents evidence to show otherwise, then my duty calls for me to prosecute the defendant. But before then, I am his advocate.
RP (Jan. 14, 2003) at 329-30. The prosecutor subsequently challenged Mr. Sledge for cause, but the trial court denied the challenge because there was no bias that would permit it to excuse the juror. The prosecutor then removed Mr. Sledge with a peremptory challenge.
Mr. Walker claims the State's use of a peremptory challenge to remove the only African-American juror on the venire violated the equal protection clause. A party generally has the right to exercise peremptory challenges against potential jurors without giving a reason. State v. Evans, 100 Wn. App. 757, 763, 998 P.2d 373 (2000). But under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), discriminatory challenges against a member of a protected class are prohibited by the equal protection clause. State v. Beliz, 104 Wn. App. 206, 212-13, 15 P.3d 683 (2001).
In determining whether a peremptory challenge violates the equal protection clause, courts apply the three-part test developed in Batson. Id. at 213; State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992). First, one party must establish a prima facie case of purposeful discrimination. Belize, 104 Wn. App. at 213. This burden is met by showing that a peremptory challenge was exercised against a member of a protected class and that it can be inferred the challenge was based upon membership in that class, given all relevant circumstances. Id. Once this showing is made, the burden shifts to the party exercising the challenge to articulate a race-neutral explanation for the challenge. Id. This explanation must be "clear and reasonably specific." Burch, 65 Wn. App. at 840 (quoting Batson, 476 U.S. at 98 n.20). The court must then determine whether purposeful discrimination occurred. Belize, 104 Wn. App. at 213. In making this determination, the court considers the prospective juror's specific responses and demeanor during voir dire. Burch, 65 Wn. App. at 840. The court's ruling will not be reversed unless it was clearly erroneous. Belize, 104 Wn. App. at 213.
The State asserts Mr. Walker did not establish a prima facie Batson violation and, if the trial court erred at all, it was in requiring the prosecutor to explain his peremptory challenge. But a prosecutor's `dismissal of the only eligible African-American juror may imply a discriminatory act or motive.' State v. Rhodes, 82 Wn. App. 192, 201, 917 P.2d 149 (1996). Therefore, when a juror is the only African-American on the venire, the trial court should ask the prosecutor to articulate a reason for the challenge in order to determine, based on the circumstances and the prosecutor's explanation, whether purposeful discrimination did in fact occur. Id. at 201-02.
The prosecutor here explained the reasons for exercising the peremptory challenge of Mr. Sledge:
Well, Your Honor, in this particular case, I understand that there is also — and it should be on the record that there is one other minority that is back in the pool that the state has not struck. Again, the basis for striking Mr. Sledge is because he indicated that he was going to be an advocate for the defendant. He said that over and over again. What he said with respect to law enforcement is he said he had no problem with law enforcement. Obviously, in a criminal case, a particular juror — all the jurors have to come in here and be fair and impartial. The concern for the state is that he is already leaning more towards the defendant and, therefore, from the state's perspective, is more bias towards the defendant than the state. That is the trouble that the state has with Mr. Sledge's response. If Mr. Sledge were a Caucasian person and he said the same thing, that he is an advocate for the defendant, obviously, I am a prosecutor, I represent the state, I would also have a problem with that individual.
RP (Jan. 14, 2003) at 346-47. In light of the record, juror bias was a valid, nondiscriminatory reason to exercise the peremptory challenge. The court's determination that this explanation was satisfactory was not clearly erroneous, and will not be disturbed.
Mr. Walker next contends the trial court erred in admitting hearsay statements into evidence under the excited utterance exception. The court allowed Detective ...
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