Opinion
Nos. 58423-5-I; 58890-7-I.
September 24, 2007.
Appeals from a judgment of the Superior Court for King County, No. 06-1-01623-4, Gregory P. Canova, J., entered June 23, 2006.
Affirmed by unpublished per curiam opinion.
Parties may not use their peremptory challenges in a racially discriminatory manner. To make out a prima facie case of racial discrimination under Batson v. Kentucky, a defendant must go beyond merely showing that the State struck other members of the defendant's racial group from the venire. The defendant must identify "other relevant circumstances" that give rise to an inference of discrimination. Because appellant Raymond McCoy failed to make that showing to the trial court when he raised a Batson challenge, we affirm his conviction.
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
McCoy also appealed his judgment and sentence. The parties agreed that the cases should be addressed in a consolidated manner and we have done so in this opinion. McCoy's judgment and sentence is also affirmed.
Police came into contact with Raymond McCoy, an African-American, during an undercover drug operation in downtown Seattle. McCoy sold an undercover officer what appeared to be a piece of rock cocaine for $20, but was actually not a controlled substance. The State alleged that McCoy had negotiated for the sale of cocaine and then delivered an uncontrolled substance in lieu of cocaine in violation of the "burn" statute, RCW 69.50.4012. The case proceeded to a jury trial in May 2006. McCoy represented himself at trial. Found guilty, he appeals, claiming the court erred in denying his Batson challenge.
At voir dire, the initial pool of 38 potential jurors included two African Americans — Jurors 6 and 16. The following exchange occurred between the prosecutor and Juror 6 during voir dire:
[PROSECUTOR]: So we talked a little bit about just the act of drug dealing and the fact that that's illegal, and how you feel about it. What about the idea that it's illegal to sell something under the guise of it being a drug if not actually one? Why do you think we have laws against that? In other words, the crime we're discussing. Juror number 6? Do you have any thoughts on that?
ROR 6: Yeah.
[PROSECUTOR]: Please.
JUROR 6: If there's a penalty for selling drugs and the drugs weren't sold, a drug wasn't sold, then how can you prosecute him if a drug wasn't sold? If a drug wasn't sold, if the law wasn't violated, the law wasn't broken.[]
Report of Proceedings, May 23, 2006 at 24-25.
The court explained that it was a crime to offer to sell an illegal drug and then give the buyer something else in its place. The State asked Juror 6 if he could apply the law as instructed by the court.
THE COURT: [W]ould you be able to follow those instructions as to the law and apply them even though the evidence may show that this isn't an illegal drug but that it was put off as one?
JUROR 6: Yes, I can do it in that case. I think so. I think so.[]
Report of Proceedings, May 23, 2006 at 30.
The State asked that Juror 6 be excused for cause. The court denied this challenge.
During McCoy's segment of voir dire, he asked the panel what their opinion was of a defendant who chooses to represent himself. One juror responded that it seemed a lot to tackle. Then Juror 16 weighed in: "The first thing that came to my mind was that a man who defends himself [is a fool]."
Report of Proceedings, May 23, 2006 at 47-48. The bracketed portion above replaces "inaudible" in the Report of Proceedings. The parties agree that Juror 16 stated something to the effect of a fool represents himself.
The State used its first peremptory challenge to strike Juror 6 and its fifth peremptory challenge to remove Juror 16 from the panel. After jury selection, McCoy claimed the State violated his right to equal protection by using peremptory challenges to exclude Jurors 6 and 16 since they were the only two African-American jurors on the venire. The State then volunteered other reasons for dismissing the two jurors. McCoy responded:
[F]or juror number 6 . . . I think the court did a good job of explaining to him and bringing him around to where I think he would have been a fair and impartial juror.
Juror number 16, the State saying that she made the statement that a person . . . who as their own lawyer is a fool, and that's a known slogan . . . and I don't think she meant any harm towards me whatsoever by making that comment as she noticed the rest of the panel got a good laugh out of the question . . . and her comment was laughable, and I just can't see out of the 38 she would strike the only two African-American jurors.[]
Report of Proceedings, May 23, 2006, at 75-76.
After a recess, the trial court gave an extensive oral ruling denying McCoy's challenge on the basis that McCoy had failed to make out a prima facie case of racial discrimination.
A 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. State v. Wright, 78 Wn. App. 93, 99, 896 P.2d 713 (1995). "This same standard applies when reviewing the trial court's determination of whether a prima facie case has been made." Wright, 78 Wn. App. at 99.
A prosecutor's use of a peremptory challenge on the basis of race violates a defendant's right to equal protection. Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986); State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995). In making a Batson challenge, a party must first establish a prima facie case of purposeful discrimination:
A prima facie case exists if two criteria are met. First, the challenge must be exercised against a member of a "constitutionally cognizable" group. Second, that fact and "other relevant circumstances" must raise the inference that the challenge was based upon membership in the group.
State v. Evans, 100 Wn. App. 757, 764, 998 P.2d 373 (2000). The "other relevant circumstances" may include such things as striking a group of jurors that are otherwise heterogeneous with race as their only common characteristic; disproportionate use of strikes against a group; past conduct of the State's attorney in using peremptory challenges to excuse minorities from the venire; type and manner of the State's questions during voir dire; and similarities between those individuals who remain on the jury and those who have been struck. Wright, 78 Wn. App. at 100.
"We are reluctant, as other courts have been, to view the exercise of a peremptory challenge against a person of color, without more, as sufficient to establish a prima facie case." Evans, 100 Wn. App. at 770.
Once a prima facie case is shown, the burden shifts to the party exercising the peremptory challenge to give a race-neutral explanation for its use. Evans, 100 Wn. App. at 764. The third and final step requires the trial court to consider the proffered explanation to determine whether there is a discriminatory purpose behind the exercise of the peremptory challenge. Evans, 100 Wn. App. at 764. But if a party fails to make out a prima facie case, the trial court's inquiry may end without proceeding to either the second or third step.
It is undisputed that McCoy established the first prong of a prima facie case; the jurors were members of a constitutionally cognizable group. But he did not identify for the trial court "other relevant circumstances" that would support an inference of discrimination.
On appeal, McCoy points out that the State did not strike other jurors who expressed sentiments similar to Jurors 6 and 16. McCoy did not mention this below. Instead, McCoy argued that the trial court had adequately cleared up Juror 6's misunderstanding about the "burn" law and that Juror 16's comment appeared to be in jest. He argued that both jurors had the ability to be fair, so the prosecutor must have dismissed them because they were African-American. But a challenge — even more than one — to a person of color does not, without more, constitute a prima facie case of purposeful discrimination. Evans, 100 Wn. App. at 770-71. McCoy had an obligation to identify for the trial court other relevant circumstances raising an inference of discrimination. His own conclusion that they appeared to be fair was not sufficient to raise such an inference. The trial judge, having taken into consideration what he observed during voir dire as well as McCoy's argument, did not find sufficient indication of purposeful discrimination to justify the Batson challenge. McCoy has the burden on appeal to show that the trial court's ruling was clearly erroneous and he has failed to persuade us that the court erred in denying his Batson challenge.
Affirmed.