Opinion
No. 53771-1-II
06-02-2021
STATE of Washington, Respondent, v. Wendell Maurice CLARK, Appellant.
Stephanie Alice Taplin, Newbry Law Office, 623 Dwight St., Port Orchard, WA, 98366-4619, for Appellant. Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
Stephanie Alice Taplin, Newbry Law Office, 623 Dwight St., Port Orchard, WA, 98366-4619, for Appellant.
Aaron Bartlett, Attorney at Law, 1013 Franklin St., Vancouver, WA, 98660-3039, for Respondent.
PART PUBLISHED OPINION
Worswick, J.
¶ 1 Wendell Clark appeals his conviction and sentence for rape in the second degree and assault in the fourth degree. He argues that his trial counsel gave ineffective assistance by failing to move for a change in venue to a forum that had a higher Black population. Finding no deficient performance, we affirm.
In the unpublished portion of this opinion, we address Clark's claim of prosecutorial misconduct and other arguments he raised in a Statement of Additional Grounds.
FACTS
¶ 2 Wendell Clark and SV began dating in March 2018. Clark is a Black man, and SV is a Caucasian woman. By April 2018, Clark and SV had engaged in consensual sexual intercourse.
We use the victim's initials to protect her identity.
¶ 3 On April 21, Clark stayed overnight at SV's apartment. That night, the pair were together in SV's bed and engaged in consensual vaginal intercourse. At some point during the night, Clark engaged in intercourse without SV's consent. SV told Clark "no" and repeatedly told him to stop, that it hurt, and that she did not want him to continue. Despite SV's protestations and struggling, Clark did not stop.
¶ 4 The next morning, following a confrontation with Clark where he refused to leave SV's apartment, SV sent her daughter to a neighbor to call 9-1-1. Police officers arrived and arrested Clark. SV told police officers that she had been raped.
¶ 5 The State charged Clark with rape in the second degree, assault in the fourth degree, and tampering with a witness, all with domestic violence designations. The case went to trial in May 2019. ¶ 6 Questions of race are central to this appeal. No Black people were on the jury venire. The record suggests the jury venire was not all Caucasian because during voir dire one juror stated the room was "full of white and brown faces," and one juror's first language was Mandarin. 2 Report of Proceedings (RP) at 239.
SV testified that Clark told her to lie to police officers about the situation and to inform the officers that he was not there.
¶ 7 During voir dire, Clark's counsel noted that Clark was the only Black person in the courtroom and questioned potential jurors about racial bias. Counsel stated, "There's fifty-five people in this room right now and the only African-American in this room is Wendell Clark, okay? And as a matter of fact once this trial proceeds and goes from start to finish he will remain the only African-American person involved in this case. Okay?" 2 RP at 238. Clark's counsel went on to ask the potential jurors if they would "make sure that Mr. Clark gets a fair trial." 2 RP at 239.
¶ 8 None of the jurors endorsed racist views. Several jurors talked openly about race. One discussed unconscious bias, and another bluntly stated, "[a]s a Defendant I wouldn't be thrilled with the demographic of Vancouver, Washington." 2 RP at 239-40. At the end of this discussion, defense counsel summarized by stating, "it sounds like everybody is – agreed that they're going to be very careful about reviewing evidence in this case and making sure that racial bias doesn't enter into it – do I have everybody's word on that? Okay. Thank you." 2 RP at 243. There is nothing in the record on appeal that otherwise describes the racial makeup of the petit jury.
¶ 9 The jury found Clark guilty of rape in the second degree and assault in the fourth degree, all involving domestic violence, but acquitted him of tampering with a witness. The trial court sentenced Clark to a minimum confinement of 114 months, the high end of the sentencing range, as part of an indeterminate sentence under RCW 9.94A.507.
¶ 10 Clark appeals. ANALYSIS
¶ 11 Clark argues that his defense counsel's performance was deficient for failing to move to change venue based on the demographics of Clark County. He proposes we adopt a new rule whereby counsel representing a Black defendant in a county with few Black people must move to change venue to a county with a "realistic chance of having [B]lack people in the jury venire." Br. of Appellant at 17. Clark cites to numerous academic studies and cases on the subject of implicit racial bias; however, he cites no cases construing the court rule governing change of venue. We disagree that counsel performed deficiently here.
A. Legal Principles
¶ 12 All actions shall be commenced in the county where the offense was committed. CrR 5.1(a)(1). A trial court may order a change of venue to any county "[u]pon motion of the defendant, supported by an affidavit that he believes he cannot receive a fair trial in the county where the action is pending." CrR 5.2(b)(2). Under the Sixth and Fourteenth Amendments to the United States Constitution, a criminal defendant has the right to be tried by a jury that is representative of the community. State v. Barajas , 143 Wash. App. 24, 34, 177 P.3d 106 (2007). However, "[a] criminal defendant has no constitutional right to a jury composed in whole, or in part, of persons of his or her own race." Barajas , 143 Wash. App. at 34, 177 P.3d 106.
¶ 13 A claim that a defendant was denied effective assistance of counsel is a mixed question of fact and law that we review de novo. State v. Sutherby , 165 Wash.2d 870, 883, 204 P.3d 916 (2009). To demonstrate ineffective assistance, Clark must show that (1) defense counsel's performance was deficient, and (2) that the deficient performance resulted in prejudice to the defendant. State v. Linville , 191 Wash.2d 513, 524, 423 P.3d 842 (2018) (citing Strickland v. Washington , 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) ). The failure to demonstrate either prong ends our inquiry. State v. Classen , 4 Wash. App. 2d 520, 535, 422 P.3d 489 (2018).
¶ 14 To demonstrate that defense counsel's performance was deficient, Clark must show the performance was not objectively reasonable. State v. Estes , 188 Wash.2d 450, 458, 395 P.3d 1045 (2017). We strongly presume counsel's performance was effective and reasonable. State v. Emery , 174 Wash.2d 741, 755, 278 P.3d 653 (2012) ; State v. Kyllo , 166 Wash.2d 856, 862, 215 P.3d 177 (2009). To rebut this presumption of reasonableness, a defendant must establish "an absence of any legitimate trial tactic that would explain counsel's performance." In re Pers. Restraint of Lui , 188 Wash.2d 525, 539, 397 P.3d 90 (2017). Further, "an attorney's failure to raise novel legal theories or arguments is not ineffective assistance." State v. Brown , 159 Wash. App. 366, 371, 245 P.3d 776 (2011).
B. Counsel's Performance Was Not Deficient
¶ 15 Clark argues that his defense counsel's performance was deficient for failing to move to change venue based on the demographics of Clark County. We disagree.
¶ 16 We acknowledge, and cases have confirmed, that bias is a societal problem imbedded in our justice system. See State v. Berhe , 193 Wash.2d 647, 657-58, 444 P.3d 1172 (2019). However, Clark makes a novel argument and he fails to argue his case in the framework on which his claim of error is presented: ineffective assistance of counsel. Moreover, Clark would have us go beyond the holdings of any case to conclude that counsel rendered ineffective assistance by failing to take action that might increase his chances of having a Black person in the jury venire. Batson v. Kentucky , 476 U.S. 79, 85, 106 S. Ct. 1712, 1721, 90 L. Ed. 2d 69 (1986). We recognize the impact of implicit biases, and although the cases Clark relies on compellingly show this impact, they otherwise do not support a finding of ineffective assistance in this case. His argument fails for three reasons. ¶ 17 First, it is undisputed that Clark's argument is a novel legal theory. And Clark's counsel cannot be ineffective for his "failure to raise novel legal theories or arguments." Brown , 159 Wash. App. at 371, 245 P.3d 776. Indeed, Clark is unable to cite to any case even discussing his theory.
¶ 18 Second, Clark does not propose a workable legal test. There is no way to determine, for example, what portion of a county's population must be of the defendant's constitutionally cognizable racial group for there to be a "realistic possibility" that at least one person of the same group might appear in the jury venire.
¶ 19 Third, counsel thoroughly discussed issues of implicit bias during jury selection. Clark's defense counsel explained that race was a potential issue and asked jurors to make sure Clark received a fair trial, and "got everyone's word" to make sure that racial bias didn't enter into their decision. 2 RP at 238-43. He discussed unconscious bias. One juror stated that they would speak out if anyone expressed an opinion based on bias in deliberations. Another explicitly stated it was their obligation to overcome racial bias. At the end of this discussion, defense counsel summarized by stating, "it sounds like everybody is – agreed that they're going to be very careful about reviewing evidence in this case and making sure that racial bias doesn't enter into it – do I have everybody's word on that? Okay. Thank you." 2 RP at 243. Clark cannot show his counsel performed deficiently because the challenged action goes to a legitimate trial strategy or tactic. State v. Kolesnik , 146 Wash. App. 790, 801, 192 P.3d 937 (2008).
¶ 20 To support his novel theory, Clark cites to State v. Berhe , 193 Wash.2d 647, 657, 444 P.3d 1172 (2019), to argue that not having any Black people on his jury venire implicates his constitutional right to fair trial by an impartial jury. In Berhe , after the trial, a juror came forward and alleged that racial bias during deliberations influenced the verdict. Berhe , 193 Wash.2d at 650, 444 P.3d 1172. Our Supreme Court vacated and remanded the case for a new trial because the trial court did not exercise sufficient oversight of the jury or conduct a sufficient inquiry into the juror's allegations. Berhe , 193 Wash.2d at 650, 444 P.3d 1172. But Berhe did not involve a question of the composition of the jury pool, venue, or ineffective assistance of counsel. Additionally, here, there was no claim that the jury was actually influenced by racial bias.
¶ 21 Clark also relies on Peña-Rodriguez v. Colorado , ––– U.S. ––––, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017), Powers v. Ohio , 499 U.S. 400, 411, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), United States v. Ray , 803 F.3d 244, 259, n.8 (6th Cir. 2015), Dukes v. Waitkevitch , 536 F.2d 469, 471 (1st Cir. 1976), and State v. Gregory , 192 Wash.2d 1, 22, 427 P.3d 621 (2018), not for their precedential, on-point value, but for their statements recognizing the impact of racial discrimination on the integrity of the judicial process. We agree these cases recognize implicit and overt racial biases in the judicial system, but we do not agree that these cases stand for the proposition that defense counsel renders deficient performance for failing to move for change of venue in cases such as Clark's.
The Gregory court struck down Washington's death penalty as unconstitutional because it was "administered in an arbitrary and racially biased manner." 192 Wash.2d at 18-19, 427 P.3d 621.
¶ 22 In Batson v. Kentucky , 476 U.S. at 93-94, 106 S.Ct. 1712, the United States Supreme Court established a three-part test for determining whether the peremptory strike of a juror was racially motivated: (1) The defendant must "make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." (2) If the defendant makes a prima facie case, the burden shifts to the prosecutor to provide an adequate, race-neutral justification for the strike. Batson , 476 U.S. at 94, 106 S.Ct. 1712. (3) If a race-neutral explanation is provided, the court must examine whether the "facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race." Batson , 476 U.S. at 96, 106 S.Ct. 1712.
¶ 23 Clark relies on City of Seattle v. Erickson for our Supreme Court's holding that Batson protections guarantee a jury selection free from racial animus and that "our Batson protections are not robust enough to effectively combat racial discrimination during jury selection." 188 Wash.2d 721, 723, 398 P.3d 1124 (2017) ; Erickson held that a prima facie case of discrimination is present when "the sole member of a racially cognizable group has been struck from the jury." 188 Wash.2d at 734, 398 P.3d 1124. But Erickson was about the peremptory strike of the only Black juror on the jury panel. 188 Wash.2d at 723, 398 P.3d 1124. The court's holding was in the context of the Batson test for whether the striking of a juror was racially motivated and did not involve a change of venue. Erickson , 188 Wash.2d at 723-24, 398 P.3d 1124. Although our Supreme Court discussed issues of racial bias and jury selection, it did not offer a solution to the situation where no Black people appear in the jury venire. Thus, Erickson's holding that a prima facie case of discrimination is present when "the sole member of a racially cognizable group has been struck from the jury" does not apply here. 188 Wash.2d at 734, 398 P.3d 1124.
Our Supreme Court has recently addressed jury bias by promulgating General Rule 37. That rule, adopted in 2018, seeks to "eliminate the unfair exclusion of potential jurors based on race or ethnicity." GR 37.
Additionally, our Supreme Court has established the Minority and Justice Commission to identify and eradicate the effects of racial, ethnic, and cultural bias in our state court system. The Commission has a task force that has made several policy recommendations targeted at increasing the diversity of jury pools and jury diversity generally. See Minority and Justice Commission Jury Diversity Task Force 2019 Interim. Report. https://www.courts.wa.gov/subsite/mjc/docs/Jury%20Diversity%20Task%20Force%20Interim%20Report.pdf.
Clark's reliance on State v. Jefferson , 192 Wash.2d 225, 242, 429 P.3d 467 (2018), a case also discussing a peremptory juror strike, fails for the same reason.
¶ 24 Finally, Clark cites State v. Pierce , 195 Wash.2d 230, 232, 455 P.3d 647 (2020) (plurality ). In Pierce , the defendant's murder convictions were reversed because the trial court refused to inform the jury venire that there was no possibility of the death penalty and then allowed a Black juror to be peremptorily stricken based on a conversation about the death penalty. 195 Wash.2d at 232, 455 P.3d 647. Clark relies on our Supreme Court's statement that "[j]ury selection must be done in a fair way that does not exclude qualified jurors on inappropriate grounds, including race." Pierce , 195 Wash.2d at 231-32, 455 P.3d 647 ; Br. of Appellant at 16.
¶ 25 Clark would have us blend Berhe , Gregory , Erickson , Jefferson and Pierce together, and from that mix of cases, distill a rule ensuring defense counsel must move for a change of venue to a county where there would be a "realistic chance of having [B]lack people in the jury venire." Br. of Appellant at 16-17.
¶ 26 We recognize the importance of having an unbiased judicial system and increasing jury diversity is an important step toward achieving that goal. But Clark does not cite to any case construing CrR 5.2(b)(2) and the meaning of "fair trial" in the context of implicit bias or jury selection. Furthermore, Clark does not explain what "realistic chance" or "realistic possibility" means in the context of racial makeup of a given county. Despite the clear rule that "[a] criminal defendant has no constitutional right to a jury composed in whole, or in part, of persons of his or her own race," Barajas , 143 Wash. App. at 34, 177 P.3d 106, Clark claims that defense counsel is required to ensure that a jury venire is composed in whole, or in part, of persons of his or her own race. This is a novel theory.
The State poses a series of rhetorical questions on how this would work, practically, if we were to adopt such a rule:
Do we just look to the racial composition of a county in making that determination? Do average venire sizes and response rates to jury summons matter? Does the racial composition of Clark County provide for a "realistic possibility," but still require a motion to change venue when a [B]lack person is not on the venire? To be effective, must all attorneys in counties in Division II, other than Pierce County, move to change venue to Pierce County in situations similar to Clark's? If, after a change of venue to Pierce County, the jury venire did not have any [B]lack people, would we presume the defendant received a fair trial? CrR 5.2(b)(2). If a defendant in Clark's position was charged and tried in Pierce County but no [B]lack people were part of the venire, would he proceed to have a "fair trial" or would his attorney have to move to change venue as well? CrR 5.2(b)(2). And if Clark's right to a fair trial or equal protection did not require a [B]lack person to be seated on the jury, how could the right to a fair trial require the "realistic possibility" of a [B]lack person on the jury venire? Batson , 476 U.S. at 85, 106 S.Ct. 1712 ; State v. Rhone , 168 Wash.2d 645, 650-51, 229 P.3d 752 (2010) (citation omitted).
Br. of Resp't at 12-13.
Clark specifically argues that considering the "racially charged accusations in this case," his defense counsel was deficient for not recognizing the demographics of Clark County and moving to change venue to Pierce County. Br. of Appellant at 20.
¶ 27 Because counsel's performance cannot be deficient for failure to raise a novel theory, and because counsel's actions appear on this record to be tactical, Clark has not shown that his counsel performed deficiently and his claim for ineffective assistance fails. Clark's defense counsel was not deficient when he did not move for a change in venue but instead successfully engaged the venire in a dialog about racism and implicit bias and extracted a commitment to ensure bias did not influence the verdict. We need not address prejudice. Classen , 4 Wash. App. 2d at 535, 422 P.3d 489. Thus, we hold that Clark did not receive ineffective assistance of counsel when his defense counsel did not move for a change of venue to a county with a different demographic makeup. We affirm Clark's convictions.
¶ 28 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Lee, C.J.
Glasgow, J.