    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

STATE OF WASHINGTON,
                                                 No. 67332-7-1
                    Respondent,
                                                 ORDER DENYING MOTION
                                                 FOR RECONSIDERATION,
                                                 WITHDRAWING OPINION AND
MISTY LOU COOK,                                  SUBSTITUTING OPINION

                    Defendant,
             and                                                             FILED
                                                                            5/28/13
PIERRE DANIEL SPENCER-WADE,                                            Court of Appeals
and each of them,                                                           Division I
                                                                      State of Washington
                    Appellant.


      The respondent, State of Washington, has filed a motion for reconsideration.
The appellant, Pierre Daniel Spencer-Wade, has filed a response. The court has taken
the matter under consideration and has determined that the motion for reconsideration
should be denied.

      Now, therefore, it is hereby

      ORDERED thatthe motion for reconsideration is denied; and, it isfurther
      ORDERED that the opinion in the above-referenced case filed January 28, 2013,
is withdrawn and a substitute opinion be filed in its place.

       Done thisi^ffday of // Mb .                 •2013.

                     FOR THE COURT:

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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                  No. 67332-7-1
                       Respondent,
                                                  DIVISION ONE

                                                  PUBLISHED OPINION
MISTY LOU COOK,
                                                                                              <—

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                       Defendant,                                                       —i

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PIERRE DANIEL SPENCER-WADE,                                                             TV. -*-,. \-.j


and each of them,                                                                CO     •'..-} ~'>

                                                  FILED: May 28, 2013            CO
                                                                                 en
                       Appellant.


      Grosse, J. — A prosecutor's proffered reasons for the peremptory

challenge of one of two African-American jurors on the venire are not sufficient to

defeat a Batson challenge where, as here, the proffered reasons for the strike

are unsupported by the record, appear "pretextual" because similar jurors were

not excused from sitting, or appear to be mere "proxy" reasons for racially

motivated   excusal.       Moreover,   the   record   reflects that the trial   court

misapprehended the standard by which to weigh the proffered reasons. Contrary

to the trial judge's reasoning, no pattern of discrimination need be shown to

establish racial discrimination in jury selection.     Accordingly, we reverse the

judgment and conviction.

       During Pierre Spencer-Wade's trial, the State used a peremptory

challenge to exclude Juror No. 34, one of two African-American members of the

venire. Spencer-Wade claims that by allowing the State to peremptorily strike
No. 67332-7-1 / 2



this juror, the trial court deprived him of his right to equal protection. The equal

protection clause requires defendants to be "tried by a jury whose members are

selected pursuant to nondiscriminatory criteria."1      A prosecutor's use of a
peremptory challenge based on race violates a defendant's right to equal

protection.2 In Batson v. Kentucky, the United States Supreme Court set forth a
three-part analysis to determine whether a member of the venire was

peremptorily challenged pursuant to discriminatory criteria.3 First, a defendant
must establish a prima facie case of purposeful discrimination.4 Second, if the
defendant establishes a prima facie case, then the burden shifts to the State to

articulate a race-neutral explanation for challenging the juror.5 Third, the trial
court considers the explanation of the State and determines whether the

defendant has established purposeful discrimination.6
       Here, defense counsel objected to the prosecution's exercising its

peremptory challenge of Juror No. 34. Spencer-Wade failed to set forth a prima

facie case of purposeful discrimination as required under the first prong of

Batson.   But, as our Supreme Court noted in State v. Luvene, a prima facie

showing is unnecessary once the State has offered a purported race-neutral

explanation and the trial court has ruled on the ultimate question of intentional




1 Batson v. Kentucky. 476 U.S. 79, 85-86, 106 S. Ct. 1712, 90 L Ed. 2d 69
(1986).
* Batson, 476 U.S. at 86.
3 476 U.S. 79, 106 S. Ct. 1712, 90 L Ed. 2d 69 (1986).
4 Batson, 476 U.S. at 93-96.
5 Batson, 476 U.S. at 97-98.
6 Batson, 476 U.S. at 98.
No. 67332-7-1 / 3


discrimination.7 Thus, our analysis focuses on whether the State's reasons given

for the peremptory challenge were race neutral.

      The State gave the following reasons for its peremptory challenge:

             When Mr. Swaby [defense counsel] talked to Juror No. 5
      about the quote, unquote, switch, Juror No. 34, without prompting,
      said, oh, yeah, and started laughing, and there was a definite, shall
      we say, energy between the two. This is later corroborated when
      Mr. Swaby called him brother, and he actually started giggling and
      had a     connection there that I saw.       He missed a simple
      corroboration question that I asked about Johnny and Jane, and he
      said one piece of information whether it was the phone records or
      the fact that someone has something to lose, would not help him
      solve this problem.
              I believe he said he was not able to reach a verdict on a
      case.
              There was one other issue that I wrote down here as him
      saying something about negative. He was a little too enthusiastic
      to be on this jury by him stating that if he or a family member were
      sitting in Mr. Spencer-Wade's position he would want to be on that
       particular jury.
              So, based on those reasons I did not feel comfortable having
       him on my jury.

       Here, the record does not support many of the reasons offered by the

State. For example, nowhere in the record does it appear that defense counsel

referred to Juror No. 34 as "brother."8 The State's claim that it struck Juror No.

34 because he was unable to reach a verdict on a case is incorrect. The State

also claimed that Juror No. 34 missed the telephone records question. This was

incorrect. It was Jurors Nos. 23 and 33 who stated that such records would not

be helpful. Juror No. 34 did not miss the question. Moreover, not all of the


7 127 Wn.2d 690, 699, 903 P.2d 960 (1995) (citing Hernandez v. New York. 500
U.S. 352, 359, 111 S. Ct 1859, 114 L Ed. 2d 395 (1991)).
8 The term "brother" only appears during counsel's arguments to the court
regarding Spencer-Wade's Batson challenge. The term is not used anywhere
during the actual voir dire.
No. 67332-7-1/4


proffered reasons are race neutral.     For example, the term "brother" is often

associated with racial ethnicity. Its use by the State in its purported race-neutral

explanation conjures up racial overtones, particularly where both the defense

counsel and the defendant are black.9

       In addition, a reason for challenging a juror may be deemed pretextual

and thus not race neutral if other jurors made similar assertions.      In a Batson

case, a court must perform a comparative juror analysis to ascertain whether the

State's reasons for striking an African-American juror were pretextual.10 As


9Spencer-Wade also contends that the State confused the two black jurors when
it argued that Juror No. 34 served on a jury that was unable to reach a verdict.
The record shows that Juror No. 5, the only other black juror, stated that he
served on a jury that did not reach a unanimous verdict but later clarified that it
was a civil case and that the jury was able to reach a verdict, albeit not
unanimously. In its briefing, the State conceded that the prosecutor confused
Juror No. 34 with the other African-American juror, No. 5, but at oral argument
the State retracted this concession. It argued instead that, while the prosecutor
was admittedly "mistaken when he stated, 'I believe [Juror No. 34] said he was
not able to reach a verdict on a case,'" it was not as a result of confusing the two
African-American jurors. The State now contends that the prosecutor confused
Juror No. 34 with either Juror Nos. 39 or 46, who "were the only prospective
jurors who served on juries that did not reach a verdict." Regardless, the reason
given for peremptorily challenging Juror No. 34 is not supported by the record
and this alone can "raise[ ] an inference" that the remaining reasons are
pretextual. AN v. Hickman. 584 F.3d 1174, 1192 (9th Cir. 2009): see also Snyder
v. Louisiana. 552 U.S. 472, 485, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)
("[T]he prosecution's proffer of [one] pretextual explanation naturally gives rise to
an inference of discriminatory intent," even where other, potentially valid
explanations are offered."); Kesser v. Cambra. 465 F.3d 351, 360 (9th Cir. 2006)
("[l]f a review of the record undermines the prosecutor's stated reasons, or many
of the proffered reasons, the reasons may be deemed a pretext for racial
discrimination.") (internal quotation marks and citations omitted); United States v.
Chinchilla. 874 F.2d 695, 699 (9th Cir. 1989) ("[T]he fact that two of the four
proffered reasons do not hold up under judicial scrutiny militates against [the]
sufficiency [of the remaining two reasons].").
10 Reed v. Quarterman, 555 F.3d 364, 372-74 (5th Cir. 2009) (citing Miller-El v.
Dretke (Miller-El II). 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L Ed. 2d 196
(2005)).
No. 67332-7-1 / 5


noted in Reed v. Quarterman. "if the State asserts that it struck a black juror with

a particular characteristic, and it also accepted nonblack jurors with that same

characteristic, this is evidence that the asserted justification was a pretext for

discrimination, even if the two jurors are dissimilar in other respects."11 The
State's contention that Juror No. 34 "missed a simple corroboration question" is

not well taken. The State asked the jurors a hypothetical question about Johnny

and Jane, one of whom broke a lamp. The State inquired into whether knowing

Johnny's past misconduct would help a juror decide whether it was Johnny who

broke the lamp. Juror No. 34 raised his hand to indicate that he did not think the

past conduct would have a bearing on Johnny's guilt. It is difficult to understand

why this reason could be a valid one to strike a juror. Juror No. 34's response is

in accord with the rules of evidence. ER 404(b) prohibits the introduction of prior

acts to show action in conformity therewith. Additionally, fifteen other jurors

answered similarly; five of whom were selected to serve on the jury. Not striking

those jurors who made similar statements as Juror No. 34 supports the assertion

that the basis proffered for Juror No. 34's removal was pretextual. Finally, the

State recalled that Juror No. 34 had a negative experience with the police. But

Juror No. 34 stated that he also had positive experiences with the police and

harbored no bias against the police.

       In addressing the viability of the State's Batson challenge, the court made

the following observations:

              Okay. Mr. Kim [the prosecutor] doesn't have to give reasons
       not related to race because there was no pattern that was shown.


11 555 F.3d 364, 376 (5th Cir. 2009) (citing Miller-El II. 545 U.S. at 246).
No. 67332-7-1 / 6


       But he did anyway. And I guess I would agree with him in that I felt
       the juror was just a little bit too enthusiastic. And, he did, yes, he did
       say he had positive and negative wouldn't impact him, but he did
       have a negative experience with law enforcement.
              So believe me, I'd rather see Juror No. 34 seated, but I think
       Mr. Kim has a motion to disqualify this juror. Or to - - I've already
       ruled, but those are the reasons I would do that. And Juror No. 34
       will be excused.

The trial court's statement that the prosecutor did not have to give reasons

because no pattern of discrimination was shown is incorrect. Batson does not

require a pattern of racial discrimination.12 As noted in Batson. "'a consistent
pattern of official racial discrimination' is not 'a necessary predicate to a violation

of the Equal Protection Clause. A single invidiously discriminatory governmental

act' is not 'immunized by the absence of such discrimination in the making of

other comparable decisions.'"13
       The trial court's erroneous conclusion that the State needed to show a

pattern of racial discrimination is not, however, dispositive. This is so because

the court proceeded to rule that two reasons the State offered, namely, Juror No.

34's enthusiasm and negative experience with law enforcement, were sufficient

to refute any discrimination on the part of the State. But neither of those reasons

was sufficient.

       The court's recollection of the voir dire jibed with the State's recollection

that the juror was too enthusiastic and had a negative experience. But at the

same time, the court stated that it would prefer to see the juror seated. It is

difficult to understand how the trial court reconciled these two observations.


12 Batson. 476 U.S. at 96.
13 Batson. 476 U.S. at 95 (quoting Arlington Heights v. Metropolitan Housing
Dep'tCorp.. 429 U.S. 252, 266 n.14, 97 S. Ct. 555, 50 L Ed. 2d 450 (1977)).
No. 67332-7-1 / 7


       Although a neutral explanation is one based on something other than the

race of the juror and need not rise to the level justifying a challenge for cause,

the neutrality of that explanation must be viewed in the totality of the prosecutor's

comments.    It is the circumstances of the entire voir dire that must be examined

by the trial court to determine if removal of 50 percent of the African-American

jurors, in a trial of an African-American defendant, represented by an African-

American lawyer, was purposeful. During the voir dire, it was the State who first

raised the issue of Spencer-Wade's race.          The prosecutor spoke of racial

inequities suffered by African-Americans and inquired into any bias the jurors

might have that would make them more lenient toward Spencer-Wade because

of his race. The issue of race was not an issue at trial. There was no claim of

inappropriate police behavior or other racial overtones in the crime with which
Spencer-Wade was charged.        Here, the evidence sufficiently demonstrates that
the removal of Juror No. 34 because of his enthusiasm was a proxy reason for

striking him on account of his race. The State's race-neutral reason for the
juror's exclusion must not be a mere "proxy" for race. The reference to "brother"
and confusing of one of the African-American jurors with the other raises a red

flag that there is some discriminatory intent.

        Here, the State struck 50 percent of the members of one racial group.

That raises inferences of discrimination.14      The trial court erred in denying

Spencer-Wade's Batson challenge.



14 See Turner v. Marshall. 63 F.3d 807, 813 (9th Cir. 1995) (finding that removal
offive out of nine jurors of the same cognizable racial group, representing 55
percent, was sufficient to raise an inference of discrimination).
No. 67332-7-1 / 8


      We reverse the conviction and remand for a new trial. Accordingly, we do

not address the other issues raised by Spencer-Wade.




                                               ,^5v*yv ^
WE CONCUR:




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