State v. Hale

537 P.3d 707

STATE of Washington, Respondent,

v.Brett Michael HALE, Appellant.

No. 57057-2-II

Court of Appeals of Washington, Division 2.

Filed October 31, 2023

PLLC Koch & Grannis, Attorney at Law, The Denny Building, 2200 Sixth Avenue, Suite 1250, Seattle, WA, 98121, Mary Swift, Nielsen Koch & Grannis, PLLC, 2200 6th Ave. Ste. 1250, Seattle, WA, 98121-1820, for Appellant.

Joseph James Anthony Jackson, Thurston County Prosecutor's Office, 2000 Lakeridge Dr Sw Bldg. 2, Olympia, WA, 98502-6045, for Respondent.

PART PUBLISHED OPINION

Maxa, J.

¶1 Brett Hale appeals his multiple convictions and his sentence arising from a domestic violence incident involving his girlfriend at the time. Hale argues that the trial court erred in denying his peremptory challenge against juror 1 based on the State's GR 37 objection.

¶2 We hold that (1) the trial court erred in denying Hale's peremptory challenge because an objective observer could not have concluded that race was a factor in the peremptory challenge, but (2) the juror's presence on the jury did not prejudice Hale under the nonconstitutional harmless error standard. In the unpublished portion of this opinion, we address Hale's additional arguments.

¶3 We affirm Hale's convictions, but we remand to the trial court to strike the imposition of community custody for Hale's felony harassment conviction and the community custody supervision fees imposed in the judgment and sentence. The trial court also should determine whether Hale is indigent under RCW 10.01.160(3) and reconsider the imposition of the crime victim penalty assessment (VPA) based on that determination.

FACTS

Background

¶4 In September 2021, law enforcement arrested Hale after his girlfriend at the time called 911 during a domestic violence incident at their residence. Law enforcement discovered controlled substances on the premises and in a vehicle at the residence. The State charged Hale with felony harassment-domestic violence, third degree malicious mischief-domestic violence, unlawful possession of a controlled substance with intent to deliver while armed with a firearm, three counts of second degree unlawful possession of a firearm, and possession of a stolen firearm.

Jury Selection

¶5 During jury selection, the prosecutor asked if anyone had "any specialized training, education or experience in the subject of physical altercations committed by household [ ] members or dating partners." Rep. of Proc. (RP) at 108. Juror 1 responded that he was a consultant for Child Protective Services (CPS) and had participated in domestic violence training and substance harm reduction. When the prosecutor asked if he could assess the evidence fairly and impartially, juror 1 replied, "I do believe so." RP at 109.

¶6 Juror 9 also worked with CPS and Child Welfare Services. But when asked if she could be fair and impartial, juror 9 responded, "Possibly. I can't say no, but I can't say yes." RP at 111. And juror 35 used to work in victim advocacy and had training on interpersonal conflict between dating partners and household members, but stated that the experience would not affect her ability to be fair and impartial.

¶7 Addressing the venire as a whole, Hale asked whether anyone presumed that the prosecution would not take a weak case to trial. Juror 1 replied that based on his experience working with CPS, he saw "situations where some cases may not go to trial because of a lack of evidence or not being as strong of a case." RP at 127.

¶8 Hale also asked generally whether anyone felt that they could not be fair and impartial. Juror 10 replied that he did not think he would be incapable of being fair, but that he had "very strong feelings against people that sell drugs" so he was not sure if he always could be impartial to people "that do things like that." RP at 128. Hale asked juror 10 if he could be fair and impartial, and he replied he thought he could be but that he probably would be biased. When asked one more time if he felt he could be fair and impartial, juror 10 replied, "I'll try." RP at 129.

¶9 One of the other jurors stated that it would be hard to be fair and impartial because some of the charges involved drugs. RP at 129. Juror 1 commented,

I think based on my professional experience I have seen how substance use, criminal activity and so forth can impact the families that we serve so there is that (indiscernible), but I would do everything I could to be a fair and impartial juror, but I do have professional experience.

RP at 129-30. Hale then asked juror 1 if he felt his work would emotionally impact him on the case. Juror 1 replied,

I do not think I'll be emotionally impacted, but however, my professional experience, I do have some, you know, experience at a professional level in dealing with families who are dealing with adverse circumstances. So I have, you know, (indiscernible) too much training in some ways and just (indiscernible) professional experience from what I do that would be in the back of my mind.

RP at 130.

¶10 Responding to the same question, Juror 9 stated, "[J]ust in the line of work that I do and people coming into the office every day high, getting high, dying in our restrooms, selling drugs in our parking lot." RP at 131. Hale then had the following discussion with juror 9:

[Defense Counsel]: Can you be fair and impartial?

JUROR 9: I mean, I can try. It makes me angry to see it every day. So I mean, I can try.

[Defense Counsel]: How are you feeling right now? That's a different question. Are you feeling like you could listen to the evidence in this case and be fair and impartial or is that anger going to be there?

JUROR 9: I can't guarantee that it won't be there.

RP at 132.

¶11 The State exercised multiple peremptory challenges, including against jurors 10 and 35. Hale also exercised multiple peremptory challenges, including against juror 9.

Peremptory Challenge Against Juror 1

¶12 Hale also attempted to use a peremptory challenge against juror 1. The State objected based on GR 37 because juror 1 was a person of a color. Hale responded,

[T]he accusation is, for lack of a better term, ridiculous. The problem with juror number one, as he stated, is that he is going to be impacted by his work, working for the government in CPS, DSHS, that sort of thing, and our concern is precisely what he said which is that he's not going to be able to leave behind his -- his history, his work history in dealing with the issues in this case. Has zero to do with his ethnicity or his race.

RP at 136. The State replied, "My recollection of what juror number one said is that he does have that experience, but he would do his best to set aside that and decide this case based on the evidence that was presented. That is what we ask of all jurors." RP at 137.

¶13 The trial court noted that it must determine whether the challenged juror is of a particular ethnicity in order for GR 37 to be effective and applicable. The trial court stated,

Frankly, when I -- when this court looked at juror number one, it did not occur to this court that juror number one might be of a particular ethnicity. So I'll make this ruling only because I'm required to make a ruling, but it's offensive for me personally to do it. Juror number one appears to be a male who might be of Hispanic origin or Latino maybe. There's no clue to the court. But operating under the assumption or the inference that juror number one is a person of color --

RP at 138-39.

¶14 The court then asked Hale to state again his basis for the challenge. Hale stated,

We have exactly the same problem with juror number one that we would have with juror number nine. Juror number one is a social worker according to his answer on his questionnaire, and both of these people have told us of their extensive work in social work dealing with people and their problems and their drug issues, their domestic violence issues, whatever kinds of issues they have going on in their lives. And both of them told us during voir dire that they believe they would be impacted by their work experience should they get on the jury in this case. They -- you know, while they both said that they -- at least number one seems to say he thinks he could still be fair and impartial, number nine cannot say that. She simply says that she would try. But there is no reason for anybody in this -- in this venire in this case to be stricken on the basis of ethnicity or race, and so that is the reason why we've decided to exercise a peremptory on juror number one.

RP at 139.

¶15 The trial court asked both parties whether there were other people on the jury who may be viewed as a particular ethnicity or race. The parties identified at least four other jurors who were not white. The State identified jurors 12 and 21 "as potential jurors who GR 37 would apply to." RP at 141. Hale identified juror 11 as having "a medium skin tone with dark black hair" and juror 37 as having "pretty dark skin" and possibly being "of western European, Portuguese or Spanish descent." RP at 141-42. Hale did not exercise peremptory challenges on any of these jurors. The first three of those jurors sat on the jury and juror 37 was the first alternate.

¶16 Initially, the trial court stated that based on its experience with Hale's defense counsel for over 20 years, "[r]ace, ethnicity are not a factor in how [defense counsel] practices law or conducts his personal business. That I'm very confident of." RP at 144. The court emphasized, "I want the record to reflect that this court is more than confident, one hundred percent convinced, that [defense counsel] is not exercising a peremptory challenge on behalf of his client because of the color of a person's skin." Clerk's Papers (CP) at 145. But the court noted that under GR 37(e), the key circumstance is whether an objective observer could view race or ethnicity as a factor.

¶17 The trial court then stated that it was "not readily apparent to this court that this panel includes many, if any, people of color or of a particular...