                                                                          FILED 

                                                                       APRIL 22, 2014 

                                                                 In the Office of the Clerk of Court 

                                                               WA State Court of Appeals, Division III 





      COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON 


STATE OF WASHINGTON,                        )         No.      30815-4-111
                                            )
                    Respondent,             )
                                            )
             v.                             )         ORDER GRANTING MOTION
                                            )         TO PUBLISH OPINION IN PART
NATHEN LEE BENNETT,                         )
                                            )
                    Appellant.              )

      THE COURT has considered the respondent's motion to publish the court's

opinion of February 18, 2014, and the record and file herein, and is ofthe opinion the

motion should be granted in part. Therefore,

      IT IS ORDERED, the motion to publish is granted in part. The opinion filed by

the court on February 18,2014, shall be modified as follows:

      (1)    On page 1 to designate it is an opinion published in part.

      (2)    After the first sentence on page 9 add the following language:

                    Affirmed.
                    The remainder of this opinion has no precedential
             value. Therefore, it will be filed for public record in
             accordance with the rules governing unpublished opinions
             RCW 2.06.040.
No.3081S-4-UI
State v. Bennett


       (3)   On page 11 by deletion of the following language:

                    A majority of the panel has determined that this
             opinion will not be printed in the Washington Appellate
             Reports but it will be filed for public record pursuant to RCW
             2.06.040.


       DATED: April 22, 2014

       PANEL: Judges Siddoway, Brown, Korsmo

       FOR THE COURT:
.,
 "




                                                                                FILED 

                                                                              FEB 18,2014 

                                                                      In the Office of the Clerk of Court 

                                                                    W A State Court of Appeals, Division III 





                IN THE COURT OF APPEALS OF TIIE STATE OF WASHINGTON 

                                   DMSION THREE 


     STATE OF WASHINGTON,                          )
                                                   )         No.3081S-4-III
                           Respondent,             )
                                                   )
           v.                                      )
                                                   )
     NATHEN LEE BENNETT,                           )         UNPUBLISHED OPINION
                                                   )
                           Appellant.              )

            KORSMO,     C.J. - Nathen Bennett's appeal challenges the trial court's denial of

     two of his peremptory challenges on Batson! grounds and the refusal to allow a self-

     defense instruction. We affirm his conviction for second degree felony murder.

                                               FACTS

            The relevant procedural and historical facts ofthis case are not in dispute. Mr.

     Bennett, then 19, stabbed 48 year old Leonard Cantu 26 times in the neck., chest, back.,

     fingers, and arms, killing him. Mr. Bennett told investigators that the older man was

     performing oral sex on him against his will. The two men had had a sexual encounter the

     evening before the fatal encounter.



            1 Batson   v.Kentucky, 476 U.S. 79, 106 S. Ct. 1712,90 L. Ed. 2d 69 (1986).
No. 30815·4·111
State v. Bennett


        The matter proceeded to jury trial in the Yakima County Superior Court. During

jury selection, defense counsel exercised all six peremptory challenges; four ofthose

challenges were used against Hispanic2 jurors. The prosecutor objected on Batson

grounds, arguing that the four strikes were racially motivated since they removed the only

Hispanic members of the venire who were high enough in the draw to serve on the panel.

The prosecutor noted that Mr. Cantu was Hispanic while Mr. Bennett was Caucasian.

        Defense counsel denied that the four challenged strikes were racially motivated or

that a prima facie case of discrimination had been established. The trial court directed

defense counsel to explain his reasons for striking the four jurors. Counsel explained that

juror 4, a mother of several young children, did not appear interested in the proceedings.

Juror 10 was a United States probation officer. Juror 21 was stricken because he was a

teacher who gave religious testimonials and volunteered at the Union Gospel Mission.

Juror 31 was challenged because his work schedule at a warehouse might interfere with

the trial.

        The challenges came at the end of the first day of trial and the court directed all

jurors to return the next day. The next morning the court found that defense counsel had

presented valid reasons for striking jurors 10 and 31, but determined that juror 4 and juror

21 were stricken because of their race. Because the delay in jury selection suggested that


        2 Theparties use the term "Hispanic" instead of "Latino," and we will follow their
approach in this opinion.

                                               2

No. 308 I S-4-III
State v. Bennett


the trial would not end as early as the jurors had originally been told, the court reopened

voir dire for the purpose of determining if the lengthier trial period would create any

hardships. Juror 31 was excused for cause when he indicated that the trial would create

hardship for him at work.

         The parties then exercised their peremptory challenges anew. The defense was

given the opportunity to explain additional reasons for striking jurors 4 and 21, but had

no additional reasons to articulate for the court. The defense again used all six

peremptory challenges-three against juror 10 and the other two jurors it had attempted

to strike the day before, and three against additional members of the venire. The

prosecutor, who had stricken six the previous day, struck only three members of the

vemre.

         Trial commenced. Mr. Bennett took the stand in his own behalf and described his

encounters with Mr. Cantu. He told jurors that he acted in self-defense because he feared

that he would be raped if he did not act. After hearing argument, the court declined to

instruct the jury on self-defense, reasoning that deadly force was not appropriate because

there was no evidence Mr. Bennett feared imminent bodily harm and that stabbing the

victim 26 times was not necessary.

         The jury, with juror 21 serving as foreperson, convicted Mr. Bennett as charged.

The trial court imposed a standard range sentence. Mr. Bennett then timely appealed to

this court.

                                              3
No.3081S-4-III
State v. Bennett


                                         ANALYSIS

       This appeal challenges the court's denial of two defense peremptory challenges

and the refusal to instruct on self-defense. We address first the Batson claim and then the

instructional argument.

       Batson

       Mr. Bennett strenuously argues that the trial court erred in not accepting his race-

neutral explanations for challenging jurors 4 and 21. However, it is not the province of

an appellate court to overturn what is primarily a factual detennination-a party's motive

for removing a member of the venire.

       In Batson v. Kentucky, 476 U.S. 79, 83, 106 S. Ct. 1712,90 L. Ed. 2d 69 (1986),

the United States Supreme Court faced a situation where the prosecutor had used

peremptory challenges to remove all four black jurors from the venire. The court

concluded that the practice of removing all minority jurors violated both the defendant's

and the jurors' right to equal protection of the law. Id. at 86-87. The court then set forth

a three part test for evaluating allegations of discrimination in jury selection: (l) the

defendant must make a prima facie showing of discriminatory action; (2) upon finding a

prima facie case, the court must require the prosecutor to provide any race-neutral

explanation for the challenges; and (3) the court must then detennine in light of the

proffered explanation if the defendant has made a showing of purposeful discrimination.

Id. at 96-98.

                                              4

No. 30815-4-111
State v. Bennett


       This new limitation on the use of peremptory challenges resulted in an explosion

of litigation and eventual refinement of the Batson rule. Over time the original Batson

standard was modified in recognition that it was the juror's rights, rather than those of a

party, that were being violated by discriminatory peremptory challenges. Powers v. Ohio,

499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991). That ruling then led to the

recognition that either party to litigation had the standing to challenge the alleged violation

ofthe juror's rights and that Batson's rule also applied in civil cases. Id. at 415; Georgia v.

McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (State could challenge

criminal defendant's discriminatory peremptory challenges); Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991 ) (discriminatory

peremptory challenges in civil litigation). Subsequently, the freedom from discriminatory

exercise of peremptory challenges was expanded to include gender in addition to race.

J.E.B. v. Alabama ex reI. T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994).

What began in Batson as recognition that a minority criminal defendant should not have

members of his race excluded from jury service evolved into recognition that all jurors have

the right to be free from race or gender discrimination in jury selection.

       Washington's experience on these issues has mirrored the federal experience, with

early cases addressing similar issues. E.g., State v. Vreen, 143 Wn.2d 923,26 P.3d 236

(2001) (prosecutor challenging defendant's peremptory challenge); State v. Evans, 100 Wn.

App. 757, 998 P.2d 373 (2000) (judge may raise Batson issue sua sponte, but must follow

                                               5

No.308l5-4-III
State v. Bennett


three prong test); State v. Burch, 65 Wn. App. 828,830 P.2d 357 (1992) (gender

discrimination). Recent cases have addressed whether ornot a prima facie case of

discrimination was established or whether the race-neutral explanation accepted by the trial

court was borne out in the record of the case. E.g., State v. Saintcalle, 178 Wn.2d 34,309

P.3d 326 (2013) (prima facie case), cert. denied, 134 S. Ct. 831 (2013); State v. Hicks, 163

Wn.2d 477, 181 P.3d 831 (2008) (sufficiency of explanation).

       As with other recent cases, this case turns on the trial court's assessment of the three

part Batson test. However, this case raises the rarer issue of an appellant challenging the

trial judge's refusal to accept his stated reasons for exercising the peremptory challenge.

Our case law does clearly address the situation.

       Batson itself noted that the existence of discrimination is a factual fmding and, thus,

''will turn on evaluation of credibility," requiring the reviewing court to "give those fmdings

great deference." 476 U.S. at 98 n.21;Accord, Hicks, 163 Wn.2d at 493; Evans, 100 Wn.

App. at 764. This standard also applies to the trial court's decision on whether the race-

neutral explanations are credible. Miller-El v. Cockrell, 537 U.S. 322,339, 123 S. ct. 1029,

154 L. Ed. 2d 931 (2003). When a trial court accepts the proffered explanation for

exercising a peremptory challenge, "we fail to see how the appellate court nevertheless

could find discrimination." Hernandez v. New York, 500 U.S. 352, 367, 111 S. Ct. 1859,

I ~4 L. Ed. 2d 395 (1991). This is because the credibility determination concemiflg the

explanation "goes tothe heart of the equal protection analysis, and once that has been

                                               6

No.30815-4-III
State v. Bennett


settled, there seems nothing left to review." Id. This standard is consistent with

Washington appellate review standards. Our appellate courts do not weigh evidence and do

not fmd facts. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570,575,343 P.2d 183

(1959); Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 PJd 266

(2009). We similarly do not substitute our judgment for that of the trier of fact.

Hesperian, 54 Wn.2d at 575. Whether the facts are as the parties allege is for the trial

judge to determine, not this court. Id.

       Mr. Bennett argues strenuously that he did provide race-neutral reasons for his

remaining challenges and the trial court erred in concluding otherwise. His arguments,

however, run up against a solid wall of federal and ~tate appellate deference to this type of

fact fmding. Although we agree that his proffered explanations appear race-neutral ap.d

would have supported a conclusion that they were race-neutral, we cannot overturn the trial

court's contrary evaluation. Hernandez, 500 U.S. at 367. As we once described our role in

a different setting, an appellate court simply is not in a position to fmd persuasive that

evidence which the trier o~fact found to be unpersuasive. Quinn, 153 Wn. App. at 717. We

must defer here to the trial judge's contrary factual determinations. The trial judge, not this

court, had the opportunity to observe counsel, hear his explanation, and consider it in the

context of this case and other cases counsel has presented over the years.

       Trial counsel took personal offense, understandably, at the trial judge's ruling. There

should be few things more odious in these times than to be judicially labeled as racist or

                                               7

No.30815-4-II1
State v. Bennett


discriminatory. For a lawyer, it also constitutes professional misconduct. RPC 8.4(g), (h).3

An attorney is unlikely to casually make an allegation of discriminatory conduct against

another member of the bar, and we are convinced that trial judges likewise proceed

cautiously with such accusations. Racial discrimination remains a problem in our society

and, although we like to hope lawyers will not act on such a basis in the performance of

their duties, we likewise cannot turn our heads from or disavow a trial judge's ruling that

counsel did act in a discriminatory manner. Batson is a blunt tool for dealing with a

continuing problem that is more subtly expressed than in days of old. We share the

concerns expressed in several of the opinions filed in Saintcalle concerning the efficacy of

Batson.

       Here the record supports the trial judge. The defense excused the only Hispanic

jurors in the portion of the jury pool who had a mathematical chance of serving. 4 Given that

this crime involved a defendant and victim ofdifferent races, we agree that the exclusion of

all thejurors ofthe same race as the victim provided strong support for the trial judge's

conclusion that the challenges were discriminatory.



        3 RPC 8.4 provides in part, that, "It is professional misconduct for a lawyer to ...
(g) commit a discriminatory act prohibited by state law on the basis of sex, race, ... ; (h)
in representing a client, engage in conduct that is prejudicial to the administration of
justice toward ... jurors ... that a reasonable person would interpret as manifesting
prejudice or bias on the basis of ... race."
       4This evidence, of course, is ambiguous because a trial attorney is unlikely to
waste a challenge on someone who cannot rise to the top of the jury list.

                                              8
No. 30S15-4-III
State v. Bennett


        The trial court did not err in sustaining the Batson challenge to the two jurors.

        Self-Defense

        Mr. Bennett also argues that the court erred in denying his request for a self-defense

instruction. We agree with the trial court that the instruction was not available under the

facts ofthis case.

        Under our statutes, self-defense is available when, inter alia, it is needed "by a party

about to be injured, or ... in preventing or attempting to prevent an offense against his or

her person." RCW 9A.16.020(3). In addition, homicide is justified only "when

committed in the actual resistance of an attempt to commit a felony upon the slayer."

.	RCW 9A.16.050(2) (partial). The statutory scheme also dictates that an action is

"necessary" when "no reasonably effective alternative to the use of force appeared to

exist and that the amount of force used was reasonable to effect the lawful purpose

intended." RCW 9A.l6.010(1).

        The decision to decline to instruct on self-defense is reviewed for abuse of

discretion when it is based on factual reasons, but is reviewed de novo ifbased on a legal

reason. State v. Brightman, 155 Wn.2d 506, 519, 122 P.3d 150 (2005). Discretion is

abused when it is exercised on untenable grounds or for untenable reasons. State ex rei.

Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). Both standards are implicated

here.



                                                9

No.30815-4-III
State v. Bennett


       As the trial court correctly concluded, the analysis in Brightman governs this case.

There the defendant testified that he accidentally killed the victim by striking him with a

gun while resisting a robbery. 155 Wn.2d at 510. In reviewing RCW 9A.l6.050(2), the

court concluded that deadly force was only justified when it was necessary. Brightman,

155 Wn.2d at 521. Older case authority construing the statute likewise had concluded

that even when a serious felony such as robbery was in progress, use of deadly force to

repel the offense was not justified unless the defendant was threatened with death or great

bodily injury. Id. at 522. The trial court could conclude as a matter of law that deadly

force was not necessary under the facts of Brightman. Id. at 523-24.

       The trial court concluded here that Mr. Bennett was in the same position as the

defendant in Brightman. We agree. While rape is a crime that can be resisted with

deadly force, that degree of force was unnecessary under these facts because the

defendant did not show that he was in danger of great bodily injury. Mr. Cantu was not

armed with any weapon nor had he threatened to inflict great bodily injury on Mr.

Bennett. While Mr. Bennett was entitled to use force to repel the unwanted sexual

contact, he was not entitled to kill Mr. Cantu. He also did not present an evidentiary

basis for justifying why he needed to stab Mr. Cantu 26 times. There was no indication

that Mr. Cantu persisted in attempting sexual contact after he was first stabbed or that he

threatened additional harm to Mr. Bennett from that point. Even if one or two stab




                                             10 

No.30815-4-III
State v. Bennett


wounds could be justified (or at least present a jury question), 26 such wounds could not

be justified.

       F or both reasons-there was no showing of a need for using deadly force and

there was no showing that 26 stabs were necessary to repel the assault-the trial court did

not err in denying the self-defense instructions.

       Affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                    I   Korsmo, C.J.
WE CONCUR:



       Brown, J.                                        Siddoway, .




                                             11 

