State v. Williamson

• Decision Date: 11 April 2000
• Docket Number: No. 17521-9-III.,17521-9-III.
• Citation: 100 Wash.App. 248,996 P.2d 1097
• Parties: STATE of Washington, Respondent, v. Michael Lee WILLIAMSON, Appellant.
• Court: Washington Court of Appeals

996 P.2d 1097

100 Wash.App. 248

STATE of Washington, Respondent, v. Michael Lee WILLIAMSON, Appellant.

No. 17521-9-III.

Court of Appeals of Washington, Division 3, Panel Eight.

April 11, 2000.

Paul J. Wasson, Spokane, for Appellant.

Lauri M. Boyd, Deputy Prosecuting Attorney, Yakima, for Respondent.

SWEENEY, J.

In this prosecution for kidnapping and attempted first degree murder, Michael Williamson claims that he was denied a fair trial because the court allowed the State to exercise an unused peremptory challenge after the jury had been sworn and after the State's first witness had started to testify. We conclude that the ruling is subject to the abuse of discretion standard of review and that the trial court did not abuse its discretion by allowing the late peremptory challenge. Mr. Williamson also assigns error to the court's admission of the victim's hearsay statements under the excited utterance exception and the admission of expert testimony on battered woman syndrome. Again, we find no abuse of discretion and affirm.

FACTS

Michael Williamson accosted his ex-wife, Kathryn Wagner, at work. He put his arm behind Ms. Wagner's back and ordered her to get into her car. She then drove them to a campsite at the Ellensburg Canyon. Mr. Williamson repeatedly pointed a handgun at Ms. Wagner. He clicked the gun and said that this was the day she was going to meet her maker. She asked to use the bathroom. Mr. Williamson responded that he would shoot her in the back of the head and drag her body into the weeds. He told Ms. Wagner that he would shoot people and a bird near their car. She purposely dropped two earrings and some personal items at the campsite. They then drove to Mr. Williamson's house.

The following morning Ms. Wagner told Mr. Williamson she had to go to work. She left but went directly to her sister and brother-in-law's house (Sandra and Chuck St. Mary). She tried to attract police by driving 70 to 80 mph. At about 8:30 A.M., she told the St. Marys that she had "just escaped" and explained what happened. She was frightened, upset, tearful, visibly shaken, and in a very agitated state. She spoke in a loud, high-pitched voice. Mr. St. Mary told Ms. Wagner that she had to get help or leave the house.

Mr. St. Mary took Ms. Wagner to the Selah Police Department at approximately 9:20 A.M. She told Sergeant Arnie Belton and Sergeant Ricardo Gutierrez that she followed Mr. Williamson's instructions to avoid getting hurt. She was extremely nervous, frightened, and appeared to have been crying. She kept looking over her shoulder when she entered the police station. She wanted Mr. Williamson put in jail.

Police found the earrings and personal items dropped at the campsite. They also found a .45 caliber automatic handgun in Mr. Williamson's car.

The State charged Mr. Williamson alternatively with first degree kidnapping. The State also charged him with first degree rape and attempted first degree murder. The court dismissed the rape charge without prejudice because Yakima County was not the proper venue.

Following a pretrial hearing, the court agreed to admit Ms. Wagner's statements to her sister and Sergeant Belton as excited utterances under ER 803(a)(2).¹

Mr. Williamson wanted to enter an Alford² plea. After a discussion with the court, he changed his mind. The State intended to call Ms. Wagner as its first witness. But she "left the courthouse in a very distraught state" after Mr. Williamson expressed his desire to enter a plea. And she could not be found. The State then started with the testimony of the police.

The jury was sworn. After the State's first witness began to testify, a juror told the court that she knew Ms. Wagner. The court refused to remove the juror for cause, but allowed the State to exercise an unused peremptory challenge. Mr. Williamson objected.

The State called Peggy Baken-Weed as an expert on battered woman syndrome. She directs the YWCA Family Crisis Program and runs the Battered Women's Shelter. She explained battered woman syndrome, including the propensity of battered women to recant.

Ms. Wagner recanted her accusations against Mr. Williamson. The defense called no witnesses.

The jury convicted Mr. Williamson of first degree kidnapping and attempted first degree murder. It also found that he was armed with a deadly weapon during both crimes.

The court denied Mr. Williamson's motions for new trial on the kidnapping charge, granted it on the attempted murder charge, and sentenced Mr. Williamson to 119 months for the kidnapping charge and firearm enhancement.

DISCUSSION

Late Peremptory Challenge. The procedure for exercising peremptory challenges in Washington is set out by both court rule, CrR 6.4(e),³ and statute, RCW 4.44.210.⁴

Mr. Williamson contends that the State's challenge denied him the right to the jury that he chose and therefore a fair trial. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

Our standard of review is abuse of discretion. O.C. Sattinger, Annotation, Peremptory Challenge After Acceptance of Juror, 3 A.L.R.2d 499, 513 (1949 & Supp.1999). We consider whether the jury selected was fair and impartial. People v. Reese, 670 P.2d 11, 13 (Colo.Ct.App.1983). A defendant must show prejudice to justify reversal if the jury selection process substantially complies with the applicable statutes or rules. We will presume prejudice only if there has been a material departure from those statutes or rules. See State v. Tingdale, 117 Wash.2d 595, 600, 817 P.2d 850 (1991); State v. Rempel, 53 Wash.App. 799, 801-02, 770 P.2d 1058 (1989), rev'd on other grounds, 114 Wash.2d 77, 785 P.2d 1134 (1990).

Both the Sixth Amendment of the United States Constitution and article 1, section 22 of our state constitution guarantee a defendant the right to a fair trial by an impartial jury. State v. Latham, 100 Wash.2d 59, 62-63, 667 P.2d 56 (1983). But the "defendant has no right to be tried by a particular juror or by a particular jury." State v. Gentry, 125 Wash.2d 570, 615, 888 P.2d 1105 (1995).

No Washington case addresses the specific challenge here—a peremptory challenge after the jury has been impaneled, sworn, and the plaintiff presents its first witness. But neither the court rule nor the statute prohibits a peremptory challenge to an impaneled and sworn juror based on unforeseen circumstances. CrR 6.4(e); RCW 4.44.210. And the majority of courts grant the trial judge wide discretion in these circumstances. State v. Lupino, 268 Minn. 344, 356, 129 N.W.2d 294 (1964); People v. Harris, 57 N.Y.2d 335, 349-50, 442 N.E.2d 1205, 456 N.Y.S.2d 694 (1982); State v. Womble, 343 N.C. 667, 678, 473 S.E.2d 291 (1996); State v. Freeman, 314 N.C. 432, 437-38, 333 S.E.2d 743 (1985); but see Stevens v. State, 265 Ind. 396, 410, 357 N.E.2d 245 (1976) (holding, without reliance on court rule or statute, that a criminal defendant is not entitled to peremptorily challenge a juror after the jury is sworn).

In Lupino, a juror after being sworn disclosed information that raised concerns about the juror's ability to be impartial. The trial court granted the prosecutor's peremptory challenge. The Minnesota statute governing peremptory challenges provided that challenges shall be made before the juror is sworn, "but the court, for good cause, may permit it to be taken after he is sworn, and before the jury is completed.'" Lupino, 268 Minn. at 356, 129 N.W.2d 294 (quoting Minn. Stat. § 631.26). Relying on Minnesota case law and Minn.Stat. § 631.26, the Minnesota Supreme Court held that the trial court acted within its discretion and, in any event, the defendant failed to show prejudice. Id.

The Colorado court rule is similar to Washington's. After a party accepts a panel of jurors, it "`may thereafter exercise peremptory challenges only as to jurors subsequently called[.]" Reese, 670 P.2d at 13 (quoting former Colo. R.Crim. P. 24(d)(2) (1983)). In Reese, the State accepted a juror. The same juror complained that he would not get paid while on jury duty and therefore could not meet financial obligations. The court refused a challenge for cause. But it allowed the State to reopen voir dire and, over the defendant's objection, granted a peremptory challenge. On review, the court held that the trial court had not abused its discretion and the "method used did not deprive the defendant of a fair and impartial jury[.]" Id.

In Harris, the New York Court of Appeals affirmed a trial court's refusal to allow a peremptory challenge to a sworn juror based on unforeseen circumstances. But in doing so, the court recognized the discretionary nature of the ruling. Harris, 57 N.Y.2d at 349-50, 456 N.Y.S.2d 694, 442 N.E.2d 1205.

The trial court has broad discretion over the jury selection process. Reese, 670 P.2d at 13. The court here substantially complied with both the statute and the rule. Mr. Williamson argues that he was denied "the jury he had selected during the voir dire process," and thereby a fair trial. He does not, however, have the right to be tried by a particular juror or jury. Gentry, 125 Wash.2d at 615, 888 P.2d 1105. Moreover, he has shown no prejudice by the loss of the challenged juror or the substitution of another. Tingdale, 117 Wash.2d at 600, 817 P.2d 850; Rempel, 53 Wash.App. at 801-02, 770 P.2d 1058; see Watson v. State, 291 Ark. 358, 371, 724 S.W.2d 478 (1987); Reese, 670 P.2d at 13; State v. Verrett, 467 So.2d 1290, 1291 (La.Ct.App.1985); Lupino, 268 Minn. at 356, 129 N.W.2d 294.

Excited Utterances. Mr. Williamson contends that Ms. Wagner's hearsay statements were not excited utterances. He argues that Ms. Wagner made the oral statements in response to specific questions by or under family or police direction. He also complains that he was denied the right to confront Ms. Wagner because her hearsay statements preceded her testimony.

Mr. Williamson's concerns must be put in context. The State intended to call Ms. Wagner first. Mr. Williamson...