State v. Zamora

• Decision Date: 30 June 2022
• Docket Number: 99959-7
• Citation: 512 P.3d 512
• Parties: STATE of Washington, Respondent, v. Joseph Mario ZAMORA, Petitioner.
• Court: Washington Supreme Court

512 P.3d 512

STATE of Washington, Respondent,

v.Joseph Mario ZAMORA, Petitioner.

No. 99959-7

Supreme Court of Washington.

Argued February 22, 2022

Filed June 30, 2022

Marie Jean Trombley, Attorney at Law, P. O. Box 829, Graham, WA, 98338-0829, for Petitioner

Garth Louis Dano, Attorney at Law, 100 E. Broadway Ave., Moses Lake, WA, 98837-1740, Kevin James McCrae, Grant County Prosecutor's Office, 35 C St. Nw, P. O. Box 37, Ephrata, WA, 98823-0037, for Respondent.

Jessica Levin, Robert S. Chang, Melissa R. Lee, Seattle University School of Law, 901 12th Ave., Korematsu Center For Law & Equality, Seattle, WA, 98122-4411, for Amicus Curiae on behalf of Fred T. Korematsu Center for Law and Equality.

Nancy Lynn Talner, American Civil Liberties Union of Wash., P. O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae on behalf of Aclu of Washington Foundation.

La Rond Baker, American Civil Liberties Union of Wash., P. O Box 2728, Seattle, WA, 98111-2728, Brian Richard Flaherty, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae on behalf of King County Department of Public Defense.

Matthew Hyrum Adams, NW Immigrants Rights Project, 615 2nd Ave. Ste. 400, Seattle, WA, 98104-2244, for Amicus Curiae on behalf of Northwest Immigrant Rights Project.

Bonnie Stern Wasser, Law Office of Bonnie Stern Wasser, P. O. Box 9758, Seattle, WA, 98109-0758, for Amicus Curiae on behalf of OneAmerica.

Prachi Vipinchandra Dave, Public Defender Association, 110 Prefontaine Pl. S. Ste. 502, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Public Defender Association.

Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.

Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae on behalf of Washington Defender Association.

JOHNSON, J.

¶1 This case involves the issue of whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants. We conclude that the prosecutor's questions and remarks apparently intentionally appealed to the jurors’ potential racial or ethnic bias, prejudice, or stereotypes and therefore constitute race-based prosecutorial misconduct. Joseph Zamora¹ was charged and convicted of two counts of third degree assault of a police officer, which the Court of Appeals affirmed. We reverse the Court of Appeals and vacate the convictions.

FACTS

¶2 This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, at approximately 9:30 p.m., Joseph Zamora was walking to his niece's house when a neighbor called the police to report a possible vehicle prowler.² When Zamora reached the driveway of his niece's home, he was contacted by responding officer Kevin Hake who indicated he needed to speak with Zamora. Hake quickly became nervous because of Zamora's demeanor, explaining that Zamora was "looking through" him with eyes the "size of silver dollars."³ 2 Verbatim Report of Proceedings (VRP) at 321. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him. A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him; he had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

¶3 A jury found Zamora guilty of two counts of third degree assault of a law enforcement officer: one count as to Officer Hake and one count as to Officer Timothy Welsh. Hake's injuries included a "couple small scratches around [his] hand and wrist" and some bruising. 3 VRP at 543. Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. The actions of the police officers involved in the confrontation are alarming, but this case reached our court, in part, because of the concerning actions of the Grant County prosecutor during jury selection.

¶4 Grant County Prosecutor Garth Dano began voir dire by introducing the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics, referring at one point to "100, 000 people" "illegally" crossing the border each month. 1 VRP at 77. He began asking jurors whether they felt they were closer to choosing a side of "we have [or] we don't have enough border security." 1 VRP at 71. He also asked jurors if they had "heard about the recent drug bust down at Nogales, Arizona where they picked up enough [of] what's called Fentanyl that would have killed 65 million Americans." 1 VRP at 139. Defense counsel Tyson Lang did not object to the prosecutor's questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

¶5 Zamora appealed his two convictions, claiming that his constitutional rights were violated in two distinct ways. First, he argues his right to an impartial jury was violated when the Grant County prosecutor appealed to jurors’ potential racial bias during voir dire. Second, he contends the trial court violated his right to cross-examine adverse witnesses when it excluded testimonial evidence regarding the circumstances surrounding a Moses Lake Police Department's internal investigation into the incident.⁴ Division Three of the Court of Appeals affirmed Zamora's convictions, concluding that his constitutional rights were not violated. We reverse the Court of Appeals on the issue of prosecutorial misconduct and vacate Zamora's convictions.⁵

ANALYSIS

¶6 Zamora argues that the prosecutor committed race-based⁶ misconduct during voir dire by appealing to ethnic or racial bias and stereotypes. The Court of Appeals agreed that the prosecutor's conduct was improper but disagreed that the improper conduct implicated ethnic or racial bias. For reasons detailed below, we conclude that during voir dire the prosecutor apparently intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora's presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor's race-based misconduct.

¶7 An allegation of race-based prosecutorial misconduct requires a close and thorough examination of the record. Here, the prosecutor began voir dire by saying:

So first of all, let's just take a general topic that seems to be in the media every day, and I'll ask you a general question, and that is some people say today in our society we have—we don't have enough border security. Some people say we have too much or we don't need that. So the question is which one do you feel like you're closer to? So I'm probably going to call on some people and just hear what you have to say about that.

1 VRP at 71-72. The first responding prospective juror expressed her view that we need stronger border security, and when asked to say more, she said, "I just feel like there's been a lot of stuff in the news about people that have come over that shouldn't have that are committing crimes and I feel like it didn't have to happen here." 1 VRP at 72. She was then asked whether she had a "personal concern [her]self about maybe somebody that's here illegally doing something to [her] or [her] family." 1 VRP at 72. When she replied in the negative, she was asked, "That's never been a concern to you?" 1 VRP at 72. She again said no. Another juror responded to the question of whether "we have too much border security" by saying that "[w]e don't have enough security of any kind." 1 VRP at 73. This juror added that he lived "out on the border during the wintertime" and had seen "what's going on" and that as "far as people coming in illegally, there's a right way and a wrong way. [And w]hat they're doing down there is the wrong way." 1 VRP at 73. This prospective juror agreed with the sentiments expressed by the previous individual.

¶8 The prosecutor then asked if anyone saw things "differently." 1 VRP at 73. Another juror expressed that a lot of "great people" come here "look[ing] for a better opportunity" and that she thought a big, "physical rock wall is ridiculous." 1 VRP at 73, 74-75. The juror was asked what she would propose instead of a border wall. She responded that we should "continue to build communities along the southern border." 1 VRP at 75. Seemingly in response to what another person commented, she went on to state, "I haven't been a victim of a violent crime ... [b]ut I don't believe it's just immigrants who may be leading to that." 1 VRP at 75. The prosecutor pushed back on the juror's comment that immigrants are not the sole contributors to violent crime in the United States. He said,

Sorry for this, and I don't mean to get off on a jag, could you make room for the possibility that someone who—a loved one or family member of somebody who was either killed or had problems with somebody that's been previously deported or criminally is wrongly in the country, that that happens to them, and that they feel like we need more border security, can you make room for that?

1 VRP at 75. The prosecutor thanked the juror after she agreed, and then he moved on. The next juror said she "strongly" agreed with the opinion that "we need to do more to ... help them ... gain access legally" and that a "physical barrier is not going to help at all." 1 VRP at 76. The juror then expressed her concern that "people are focusing more on...