          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 THE STATE OF WASHINGTON,                         No. 78751-9-I

                                  Respondent,     DIVISION ONE
                 V.
                                                  PUBLISHED OPINION
 ABDIMJIDO OMAR,

                                 Appellant.       FILED: March 23, 2020


          CHUN, J.   —   The State charged Abdimjido Omar with first degree robbery.

During jury selection, Omar exercised a peremptory challenge against a potential

juror (Juror 16) who claimed to have once been present at a bank robbery while

working there. Since Juror 16 appeared to be of Asian descent, the trial court

applied GR 37 and apparently asked Omar to provide a race-neutral reason for

the challenge. Through counsel, Omar asserted only that he “didn’t like some of

the responses” that the juror gave to questioning, and that he “felt uncomfortable

about the way she was responding.” The trial court denied Omar’s challenge and

seated Juror 16. The jury convicted Omar as charged. Omar appeals. Because

an objective observer could view race as a factor in the use of the challenge, we

affirm.

                                     I. BACKGROUND

          On October 3, 2017, the State charged Omar with first degree robbery.

During voir dire, in response to a question from the trial court regarding her
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experience with incidents similar to robbery, Juror 16 shared that she had

previously worked at a bank, and that a person robbed the bank while she was

working there. When asked if this experience would affect her ability to be a fair

juror, she responded, “I don’t know.    .   .   I’ve never been in this situation, so I’m

not sure.” Omar did not follow up with any questioning of Juror 16 on this topic.

Omar did ask Juror 16 what she first noticed when she walked into the

courtroom, but again, did not ask her follow up questions. Juror 16 appeared to

be of Asian descent.

       Omar exercised a peremptory challenge against Juror 16. Because she

appeared to be of Asian descent, the court applied GR 37 and apparently

requested Omarto provide a race-neutral purpose for removing Juror 16 from the

pool.1 In response, Omar—through counsel—asserted that he “just didn’t like

some of the responses that [Juror 161 was giving to some of the questions. He

felt uncomfortable about the way that she was responding and he felt he would

feel uncomfortable having her on his jury in this case. It has nothing to do with

race.” Omar further noted that prospective juror I also appeared to be of Asian

descent but he did not use a peremptory challenge against her.

       In response, the State noted that Juror 16 had said she would focus on

the facts of the case, not on race; that she never made any statements that “gave

       1 The record does not show the trial court requesting a race-neutral purpose for
removing Juror 16. However, the parties and trial court engaged in a number of off-the
record discussions around the time Omar challenged Juror 16, and statements made by
Omar’s counsel immediately following such clearly endeavor to establish a race-neutral
purpose for the challenge.




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 No. 78751-9-113


 any concern about her ability to be fair,” and that she did not mention any law

enforcement connections. The State additionally characterized Omar’s reasons

for using the challenge as excessively vague.

           The trial court concluded that an objective observer could view Juror 16’s

race as a factor in the use of the peremptory challenge because Omar had given

a “complete lack of reasons” for her removal. The trial court further noted that

none of Juror 16’s responses were controversial or reflected bias one way or

another, that she had indicated she was excited about jury duty, and that she had

said a person’s color would not affect her thinking. The court also stated that

Juror 16 had indicated that her experience being present at a robbery “would not

affect her.”2 The court denied Omar’s challenge.

        The jury convicted Omar of robbery in the first degree. Omar appeals.

                                       II. ANALYSIS

        Omar argues the trial court should have granted his peremptory challenge

against Juror 16. The State argues that the trial court properly denied the

challenge because an objective observer could conclude that race influenced the

challenge. We agree with the State.

   A. Standard of Review

        Omar argues that we must review de novo the trial court’s denial of his

peremptory challenge. The State argues that, while we review de novo the trial

       2 Contrary to the trial court’s characterization, Juror 16 actually indicated that she
did not know how her experience would affect her ability to be a fair juror, since she had
never been in “this situation.”




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 No. 78751-9-1/4


 court’s application of CR 37, we nevertheless must defer to the trial court’s

findings of fact on the subject. We conclude that the de novo standard applies

 here.

         CR 37 provides no guidance as to an appellate court’s standard of review.

However, in State v. Jefferson, our Supreme Court held that an appellate court

that reviews whether an objective observer could view race as a factor in the use

of a peremptory challenge “stand[sJ in the same position as does the trial court,

and   [1 review[s] [de nov01 the record and the trial court’s conclusions.” 192
Wn.2d 225, 249—50, 429 P.3d 467 (2018).~ The State argues that Jefferson

does not apply because the trial court there made no findings on the “totality of

the circumstances,” and “those issues do not appear to have been raised on

appeal.” But Jefferson specifically states that, in this analysis, the appellate court

reviews de novo the record, distinguishing it from the previous Batson analysis

that applied a “deferential, ‘clearly erroneous’ standard of review of the purely

factual conclusion about ‘purposeful discrimination.” 192 Wn.2d at 250.~ Thus,

we review de novo the trial court’s application of CR 37~5

        ~ In Jefferson, our Supreme Court altered Washington’s analysis of whether a
party used a peremptory challenge in a racially discriminatory manner under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). 192 Wn.2d at 249.
Specifically, it modified the third prong of the analysis (i.e., whether a party has
established purposeful discrimination) to match that of the test in CR37 (i.e., whether an
objective observer could view race or ethnicity as a factor in the use of the peremptory
challenge). Jefferson, 192 Wn.2d at 249.
        ~ In any event, the State identifies no trial court findings to which this court should
defer.
        ~ The State correctly notes that the application of de novo review to CR 37
decisions departs from other, similar standards of review. See, ~ Uttecht v. Brown,




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 No. 78751-9-1/5


    B. Challenge to Juror 16

        Omar argues the trial court improperly denied his peremptory challenge

against Juror 16. The State disagrees. Because an objective observer could

conclude that race was a factor in the use of the challenge, we determine the trial

court properly denied it.

        Under GR 37, a party or the court “may object to the use of a peremptory

challenge to raise the issue of improper bias.” GR 37(c). Upon such an

objection, the party exercising the challenge must “articulate the reasons the

peremptory challenge has been exercised.” CR 37(d). The court evaluates

those reasons in light of the totality of the circumstances, and if “an objective

observer could view race or ethnicity as a factor in the use of the peremptory

challenge, then the peremptory challenge shall be denied.” CR 37(e) (emphasis

added). “[A]n objective observer is aware that implicit, institutional, and

unconscious biases, in addition to purposeful discrimination, have resulted in the

unfair exclusion of potential jurors in Washington.” CR 37(f).

       When a court evaluates the reasons articulated by the party exercising a

peremptory challenge and decides whether an objective observer could view




551 U.s. 1, 9—10, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007) (concluding that
appellate courts owe deference to a trial court’s determination of a juror’s demeanor);
Statev. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991) (reviewing denial of a
challenge for cause for manifest abuse of discretion, since the trial court is in the best
position to observe the juror’s demeanor and responses). However, the language of
Jefferson binds us here.




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 No. 78751-9-116


 race or ethnicity as a factor in the challenge, it must consider the reasons in light

 of the totality of the circumstances. GR 37(e). The rule provides:
        In making its determination, the circumstances the court should
        consider include, but are not limited to, the following:
           (i) the number and types of questions posed to the prospective
       juror, which may include consideration of whether the party
       exercising the peremptory challenge failed to question the
       prospective juror about the alleged concern or the types of questions
       asked about it;
           (ii) whether the party exercising the peremptory challenge asked
       significantly more questions or different questions of the potential
       juror against whom the peremptory challenge was used in contrast
       to other jurors;
          (iii) whether other prospective jurors provided similar answers but
       were not the subject of a peremptory challenge by that party;
           (iv) whether a reason might be disproportionately associated with
       a race or ethnicity; and
           (v) whether the party has used peremptory challenges
       disproportionately against a given race or ethnicity, in the present
       case or in past cases.
GR 37(g). “[Ajllegations that the prospective juror was sleeping, inattentive, or

staring or failing to make eye contact; exhibited a problematic attitude, body

language, or demeanor; or provided unintelligent or confused answers” have

historically been associated with improper discrimination in juror selection, and

the trial court should not accept them as reasons for a challenge unless opposing

counsel or the court itself can corroborate the allegations. GR 37(i).

       Here, in response to the trial court’s apparent request for a race-neutral

reason for the challenge, Omar asserted merely that he “just didn’t like some of

the responses that [Juror 16] was giving to some of the questions,” and “felt




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No. 78751-9-117


uncomfortable about the way that she was responding and he felt he would feel

uncomfortable having her on his Jury in this case.”

       Omar’s articulated reasons ring nearly tantamount to a characterization of

Juror 16’s demeanor; and, as noted above, GR 37(i) cautions that such a

characterization has historically been associated with improper discrimination in

juror selection. On appeal, Omar argues that we should interpret his articulated

reasons in light of the fact that Juror 16 indicated she had previously been

present at a bank robbery; but during jury selection, Omar did not articulate such

as a basis for his challenge. Further, Jefferson warns of nebulous justifications

for peremptory strikes, since such justifications may serve to mask a party’s

conscious or unconscious racism. 192 Wn.2d at 251 (citing Batson, 476 U.S. at

106 (Marshall, J., concurring). To be sure, Omar’s statements that he “just didn’t

like some of [Juror 16’s] responses” and that “he felt uncomfortable about the

way that she was responding” sound, at best, nebulous.

       Since Omar effectively provided no reasons for the peremptory challenge,

and factors (iii) and (iv) require analysis of reasons a party provides in support of

their challenge, we examine only factors (i), (ii), and (v).

       As to factor (i), Omar asked Juror 16 only what she noticed upon arriving

in the courtroom; Juror 16 responded that she had attempted to figure out who all

the individuals in the courtroom were upon her entry. Since the proffered reason

for the challenge was only that Omar did not like her responses, it is difficult to




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 No. 78751-9-I/S


say whether Omar asked Juror 16 about his alleged concerns. However, on

appeal, Omar argues that his concern with Juror 16 was that she had been

present at a bank robbery, and that she “was not sure she could be fair.” Omar

did not ask Juror 16 any follow-up questions about these matters. But because

we weigh only the reasons Omar gave to the trial court in support of his

challenge, this factor does not weigh against him.

        Turning to factor (ii), Omar also asked a number of other prospective

jurors what they noticed when they first came into the courtroom. Juror 16’s

responses were similar to theirs. Omar also did not ask any of the other jurors

who indicated they had experiences with similar crimes to explain further.6 Since

Omar did not ask Juror 16 more or different questions than he asked of other

jurors, factor (ii) does not weigh against him.

        Nothing in the record suggests that Omar or his attorneys have a history

of misusing peremptory challenges. Here, Omar notes that he did not exercise a

peremptory challenge against a different potential juror who appeared to be of

Asian descent. Factor (v) does not weigh against Omar.

       While the foregoing factors do not weigh against Omar’s use of the

challenge, the reasons he provided for challenging Juror 16 remain nebulous and

they fail to identify specific problems with her responses. Both Jefferson and

       6 Prospective juror 22 indicated that their parents’ home had been burglarized
and that the perpetrator stole some of their personal information. This juror stated that
the experience would ‘possibly[,J [p]ossibly not” influence his ability to be a fair juror.
Omar also did not ask prospective juror 22 any additional questions about this
experience; and he did not exercise a peremptory challenge against this juror.




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No. 78751-9-1/9


GR 37(f) discourage acceptance of such vague and unsubstantiated reasons on

the basis that they might mask conscious or unconscious bias. 192 Wn.2d at

251. The trial court did mischaracterize Juror 16’s statement that she did not

know how her robbery experience would affect her ability to act as a fair juror, but

this court reviews de novo Omar’s reasons for the challenge. Because these

offered reasons were nebulous, an objective observer could view race as a factor

in the challenge. The trial court properly denied Omar’s challenge against

Juror 16.

      Affirmed.




                                                         -    I.

WE CONCUR:




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