State v. Wright
| Decision Date | 12 June 1995 |
| Docket Number | 32302-4-I,Nos. 32040-8-,s. 32040-8- |
| Citation | 78 Wn.App. 93,896 P.2d 713 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Taffero Deray WRIGHT, AKA Kenneth Pratt, Appellant. The STATE of Washington, Respondent, v. Manuel Jiminez ACOSTA, Appellant. |
Andrew Subin and Patricia Novotny, Seattle, for appellants on appeal.
Gregory Jackson and Michele Hauptman, Seattle, for respondent on appeal.
*
Taffero Deray Wright (Wright) and Manuel Acosta (Acosta) contend that the trial court erred in ruling that they did not establish a prima facie case that the State's use of its peremptory challenges constituted purposeful discrimination. 1 They claim that the challenges violated their right to equal protection under Batson v. Kentucky. 2 We affirm.
A. Wright
On July 22, 1992, Wright was charged with taking a motor vehicle without permission. Trial began on November 18, 1992.
During voir dire, defense counsel asked if anyone had ever had to talk to the police? Venire person Mr. Barbee, an African-American, responded and the following dialogue ensued:
Q. How many times have you talked to the police?
A. In my lifetime, lots.
Q. Why?
A. Well, it goes with the territory, with the body that I have.
Q. Can you tell me about that?
A. I come from a visible minority.
Q. Can you explain a little bit why that puts you in contact with the police?
A. I haven't figured that out to this day. But I can tell, experientially, from talking to other people, that I feel like a target.
Q. And why do have those feelings?
A. Experience has taught me that.
Q. Can you give me an example?
A. ... I've watched civil rights movements that give the impression that there's good cause for my outlook.
Q. So when you have contacts with the police, how do you feel?
A. I feel that I should give the impression of calm but of eloquence, so that they have a sense that I have power but it has the subtlety that's typical of the white infrastructure.
Q. And if you didn't adopt that way of dealing with police, what do you think would happen?
A. They would take up much more of my time and, quite often, my freedom.
Barbee was later questioned by the deputy prosecutor. The dialogue went as follows:
Q. Well, what little you know about the case.... the defendant is obviously a young male who is of either African American or some type of--you used the word--
Q. --"minority." Do you feel, based on your beliefs and on your experiences, that Mr. Wright is here because he is a--simply because he's a target?
A. I don't feel that I could decide that at this time. I would have to see the evidence, and the conduct of the courtroom as it unfolded before me would probably be a factor that would influence me as well.
Q. You haven't made that decision yet?
A. No, I have not. I have not.
During voir dire, Ms. Keslor, a European-American venire member, expressed concern about whether a nervous witness could accurately report an event to the police. The State used its first peremptory challenge to excuse Keslor and its second challenge to excuse Barbee. The State used only two more peremptory challenges.
Wright objected to the dismissal of Barbee on the ground that the State had used a peremptory challenge to excuse the only eligible African-American on the panel. 3 The trial court held that Wright had failed to establish a prima facie case of discrimination and the case proceeded to trial. Wright was convicted as charged.
On July 17, 1992, Acosta was charged with delivery of a controlled substance. The trial began on December 3, 1992.
During voir dire, venire member Mr. Gavino said that his son was recently arrested for domestic violence and was treated harshly by the police. He said he believed that the police fabricated an additional charge of obstruction of justice as leverage for negotiating a guilty plea. Gavino also said that he "knew for a fact that some of the police officers twisted their report in such a way that it would be favorable to their case."
Later, defense counsel asked the jurors if any of them spoke Spanish. Mr. Gustilo commented that he knew a few words, but that he was not fluent. In response to questioning about the use of interpreters, Gustilo commented that if there was a blatant mistake in the interpretation of the testimony, it would have a very negative effect on him. Gavino also answered that he could communicate in Spanish.
When court was reconvened the next day, the deputy prosecutor questioned Gustilo. Gustilo said that his earlier experience on a jury had left him with a negative impression; when asked why, he said
I hate to say this, I thought the court personnel in general were rather ill prepared and so was the defense. I was, I could not accept the truthfulness of the witnesses on the other side. It left a pretty poor taste.
However, collectively, I think that we, following instructions from the judge, we arrived, I thought, at the best conclusion that we could. It so happened not guilty. This was a drug case.
The prosecution exercised its first peremptory challenge against Gavino. Then, after the defense exercised a peremptory challenge, the deputy prosecutor challenged Gustilo. Five more jurors were excused, three by the defense and two by the prosecution.
Acosta challenged the deputy prosecutor's use of peremptory challenges to excuse Gustilo and Gavino. He contended that the removal of the only two jurors who spoke Spanish and the only two who appeared Hispanic displayed systematic discrimination against jurors of Acosta's racial heritage.
The court determined that Acosta had failed to establish a prima facie case of discrimination and the case proceeded to trial. Acosta was convicted as charged.
On appeal, Acosta and Wright contend that the trial courts erred in ruling that they failed to establish a prima facie case of purposeful discrimination. We disagree.
"The equal protection clause prohibits a prosecutor from using the State's peremptory challenges to exclude otherwise qualified and unbiased persons from the jury solely by reason of their race." State v. Sanchez, 72 Wash.App. 821, 825, 867 P.2d 638 (1994), (citing Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)). The defendant bears the burden of establishing a prima facie case that the exclusion of certain jurors represented purposeful discrimination. Sanchez, 72 Wash.App. at 825, 867 P.2d 638. To meet this burden, Batson requires
[f]irst, [the defendant] ... show the peremptory challenge was exercised against a member of a constitutionally cognizable racial group. Second, the defendant must show that the use of the peremptory challenge and "other relevant circumstances" raise an inference of discrimination. Such circumstances may include a " 'pattern' of strikes against members of a constitutionally cognizable group and the 'prosecutor's questions and statements during voir dire examination' ".
(Citations omitted.) Sanchez, 72 Wash.App. at 825, 867 P.2d 638 (citing State v. Burch, 65 Wash.App. 828, 840, 830 P.2d 357 (1992)). If the defendant establishes a prima facie case, then the State must offer a race-neutral explanation for its use of the peremptory challenges. Sanchez, 72 Wash.App. at 826, 867 P.2d 638.
The trial court's determination of whether there was a discriminatory purpose behind the State's use of its peremptory challenges "will not be set aside unless clearly erroneous." Burch, 65 Wash.App. at 841, 830 P.2d 357. This same standard applies when reviewing the trial court's determination of whether a prima facie case has been made. E.g., United States v. Gordon, 974 F.2d 97, 99 (8th Cir.1992).
The State concedes that the first prong of Batson was established in both cases; Barbee in the one case, Gavino and Gustilo in the other, are members of cognizable racial groups. It contends, however, that Acosta and Wright have failed to establish that other "relevant circumstances" exist here which raise an inference of purposeful discrimination.
Since Batson, courts have refined the concept of "other relevant circumstances" which support a prima facie case. Courts have articulated the following examples:
1. Striking a group of jurors that are "otherwise 'as heterogeneous as the community as a whole,' sharing race as their only common characteristic." People v. Hope, 137 Ill.2d 430, 453, 168 Ill.Dec. 252, 266, 560 N.E.2d 849, 865 (1990) (quoting People v McDonald, 125 Ill.2d 182, 125 Ill.Dec. 781, 530 N.E.2d 1351 (1988)), opinion modified on other grounds, 147 Ill.2d 315, 168 Ill.Dec. 103, 589 N.E.2d 503 (1992); see also Keeton v. State, 749 S.W.2d 861, 867 (Tex.Ct.App.1988).
2. Disproportionate use of strikes against a group. Hope, at 463, 148 Ill.Dec. 252, 560 N.E.2d 849.
3. The level of a group's representation in the venire as compared to the jury. Hope, at 463, 148 Ill.Dec. 252, 560 N.E.2d 849.
4. Race of the defendant and the victim. Hope, at 464, 148 Ill.Dec. 252, 560 N.E.2d 849.
5. Past conduct of the state's attorney in using peremptory challenges to excuse all African-Americans from the jury venire. Keeton, at 867.
7. Type and manner of state's questions and statements during venire. Keeton, at 867.
8. Disparate impact, all or most of the challenges used to remove minorities from jury. Keeton, at 867.
9. Similarities between those individuals who remain on the jury and those who have been struck. Hope, at 465, 148 Ill.Dec. 252, 560 N.E.2d 849.
This list suggests that when evaluating whether the defense has established a prima facie case of discrimination, a trial court must take into consideration any plausible non-discriminatory explanations for the strikes against members of a protected group. A pattern of strikes, for example, has been defined in the following manner:
To create a pattern, strikes should do more than occasionally involve venire...
To continue reading
Request your trial
-
State v. Brown
...Other relevant circumstances include whether disproportionate use of strikes is used against a specific group. State v. Wright , 78 Wash. App. 93, 99-100, 896 P.2d 713 (1995). ¶ 27 In this case, the trial court did not make a preliminary finding of a prima facie case of discrimination. Inst......
-
State v. Wise
...the allegations. Batson, 476 U.S. at 93-94, 106 S.Ct. 1712; United States v. Gordon, 974 F.2d 97, 100 (8th Cir., 1992); State v. Wright, 78 Wash.App. 93, 896 P.2d 713, review denied, 127 Wash.2d 1024, 904 P.2d 1157 ¶25 As in the Batson context, when no prejudice appears on the record, it is......
-
State of Wash. v. RUSSELL
...preferred not to serve on the jury. In this situation, the potential relevance for Batson prima facie case purposes is reflected in State v. Wright factor eight (similarities between those individuals who remain on the jury and those who have been struck). State v. Wright, 78 Wn. App. 93, 1......
-
State v. Russell
...preferred not to serve on the jury. In this situation, the potential relevance for Batson prima facie case purposes is reflected in State v. Wright factor eight (similarities those individuals who remain on the jury and those who have been struck). State v. Wright, 78 Wn.App. 93, 100, 896 P......