State v. Hernandez

544 P.3d 542

STATE of Washington, Respondent,

v.Jose Carlos HERNANDEZ, Appellant.

No. 38980-4-III

Court of Appeals of Washington, Division 3.

Filed March 5, 2024

Appeal from Yakima Superior Court, Docket No: 20-1-00262-9, Honorable Jeffery Swan, Judge.

Eric J. Nielsen, Christopher Gibson, Nielsen, Koch & Grannis PLLC 2200, 6th Ave. Ste. 1250 Seattle, WA, 98121-1820, for Appellant.

Jill Shumaker Reuter, Yakima County Prosecuting Attorney’s Office, P.O. Box 30271, Spokane, WA, 99223-3004

PUBLISHED OPINION

Cooney, J.

¶1 Jose Carlos Hernandez was tided by a jury on the charges of attempting to elude a police vehicle and driving under the influence of intoxicating liquor and/or drugs (DUI). At the conclusion of voir dire, Mr. Hernandez raised a GR 37 objection to the State’s use of a peremptory challenge against venire juror 11, who is Latino. The trial court overruled the objection and Mr. Hernandez was eventually found guilty of attempting to elude a pursuing police vehicle and not guilty of DUI. Mr. Hernandez appeals.

¶2 We affirm.

BACKGROUND

¶3 On February 20, 2020, Mr. Hernandez was charged with attempting to elude a pursuing police vehicle and DUI. The facts leading to his prosecution are not relevant to this appeal. Mr. Hernandez elected to proceed to a jury trial on both counts. During voir dire, the trial court asked the prospective jurors if they had a personal experience with attempting to elude a police vehicle or DUI. Juror 11 responded by asking whether the question included family members. The court responded, "Yes. It can be if you have a close family member who’s had personal experience with something. And now you’ve let us know. Thank you [juror] 11." Rep. of Proc. (RP) at 82.

¶4 The court then asked the prospective jurors, "[I]s there anybody who has such strong feelings about their personal experience with a similar type of case that they do not believe they could be fair and impartial in a case like this?" RP at 83. Juror 11, along with four other venire jurors, jurors 40, 48, 58, and 64, responded in the affirmative. The court followed up with juror 11 by asking, "So, sir, we’re trying to not pry too far into it. Your indication today is you’re concerned with your last answer whether you could be fair and impartial in a case like this; is that correct?" RP at 83. Again, juror 11 responded in the affirmative. The court then asked juror 11:

And understanding that a juror is required to listen and pay attention to just the testimony or evidence presented in this case and just the law as I give it to you as the judge and taking the evidence and makeup of the law and making the decision based solely upon that and nothing else, are you able to take what other experiences you might have and leave that outside the courtroom and leave that outside the courtroom and just make a decision based solely upon the matters before you as a juror in this case?

RP at 83-84. Juror 11 responded, "I believe not sir." RP at 84. The court asked similar questions of venire jurors 40, 48, 58, and 64.¹

¶5 After the five venire jurors declared their inability to remain fair and impartial, the State moved to excuse them for cause. The court reserved ruling on the State’s motion until Mr. Hernandez’s attorney had an opportunity to question the jurors.

¶6 Following the trial court’s questioning, the State inquired of the prospective jurors. The State asked, "How many of you here have been pulled over by police officers for speeding, you know, missing a taillight?" RP at 119. After receiving a few responses, the State clarified, "The reason why I’m asking you this is because there’s two police officere that will testify in this case. I just want to make sure that that doesn’t carry over the bad experience with law enforcement previously." RP at 120. Juror 11 responded to the State’s question. The State then asked,

Anybody else? Number 11. I asked number three because we had two police officers testifying in this case, was your bad experience such that you will not be able to be open minded to what the officers will be testifying to in this case? Or will you say I had a bad experience, you know, I don’t believe a single word what any police officer tells me?

RP at 121. Juror 11 responded, "It would be extremely difficult to balance that out. So I would say no just because I had a bad experience with law enforcement in the past, so I would say no." RP at 121. Juror 11 continued,

I mean, like, I have much respect for law enforcement and stuff like that. It just depends on, like, the case, like, of course, I hear, like, for example, I got pulled over for too dark of a tint, but my windows were rolled down. I’m like what is going on here?

RP at 122. The State then inquired,

So would you be able to be open minded with those officers who testify in this trial despite your bad experience with the officer who pulled you over at that time?

RP at 122. Juror 11 responded, "It would be difficult. But I would say no, to be honest." RP at 122 (emphasis added).

¶7 Defense counsel then questioned the prospective jurors but did not inquire of juror 11. After defense counsel concluded, the State was allowed a second opportunity to follow up with the venire. The State did not ask any further questions of juror 11. When the State finished, defense counsel was given a second opportunity to question the venire. Defense counsel asked, "Does anyone know someone that’s been charged with a crime?" RP at 151. After juror 11 responded, the following exchange occurred:

[JUROR 11]: Yeah. You know, they went to Court and they were guilty for it. That’s all I know about that.

[DEFENSE COUNSEL]: Have you ever been accused of doing something that maybe you didn’t do? It could be anything. It doesn’t have to be a crime.

[JUROR 11]: Yes.

[DEFENSE COUNSEL]: What happened in that situation, one of those situations?

[JUROR 11]: I just told them what it was, how it was and wasn’t guilty of it. They just played its course and everything went well.

[DEFENSE COUNSEL]: It was like a disagreement with a friend or a relationship?

[JUROR 11]: Yes.

[DEFENSE COUNSEL]: So you were able to talk about what exactly happened and give your side of the story?

[JUROR 11]: Yes.

[DEFENSE COUNSEL]: And then you resolved it?

[JUROR 11]: Correct.

[DEFENSE COUNSEL]: Did they apologize to you for accusing you of something you didn’t do?

[JUROR 11]: For sure, yeah.

[DEFENSE COUNSEL]: Okay. You also talked about that you don’t think you could be fair because of your interactions with law enforcement.

[JUROR 11]: Correct.

[DEFENSE COUNSEL]: I want to talk a little bit about that. Was it either of the police officers that [the] Judge … named for this case?

[JUROR 11]: It was neither of them.

[DEFENSE COUNSEL]: Do you think that all cops or all police officers are the same?

[JUROR 11]: No. There’s some good officers out there. But some officers are a little bit biased.

[DEFENSE COUNSEL]: That’s like everything in life you agree with?

[JUROR 11]: Yes.

[DEFENSE COUNSEL]: In any job and any field sometimes there’s bad apples.

[JUROR 11]: For sure, yeah.

[DEFENSE COUNSEL]: And sometimes people just make mistakes, right?

[JUROR 11]: Yeah.

RP at 151-53.

¶8 At the conclusion of defense counsel’s questioning, the State renewed its earlier motion to stinke jurors 11, 40, 48, 58, and 64 for cause. Defense counsel agreed that jurors 40, 48, 58, and 64 should be struck for cause, but objected to striking juror 11. After hearing argument from counsel, the court excused venire jurors 40, 48, 58, and 64 for cause and denied the State’s motion to excuse juror 11, reasoning:

THE COURT: His ultimate answers were particularly definitive or I’ll say equivocal. However, I’m not convinced that based on his answers that he demonstrated an absolute bias for or against law enforcement. He did indicate at some point during the questions that he would be willing to be open minded and listen to the evidence and testimony that was presented. So based on that record I’m going to—number 11, the motion to excuse is denied. Number 11 will remain on.

RP at 163-64.

¶9 When it came time for peremptory challenges, the State moved to exclude juror 11. Defense counsel raised a GR 37 objection claiming:

The state has elected to strike juror number 11 …. I just want to make a record. My client is an [sic] Hispanic male. [Juror 11] by all accounts appears to reflect my client’s ethnicity and gender in the community. He appears to me to be the only Hispanic male that is seated within the first 12, at least so far as I can tell. And I think just based on that, I just want to make a record that I’m—that’s the basis for the challenge. It doesn’t appear that he has a representative from the community on the jury at this point based on that strike. That’s the record I’d like to make.

RP at 167-68. After hearing from the State, the trial court overruled the objection. The court held:

Well, at least as far as a challenge for cause, I agree that he was rehabilitated. That’s why I denied the state’s motion to excuse for cause.

I go through general Rule 37. And, again, I’m looking at those factors. There’s also other circumstances to be considered. This is under G. Let me read that to myself again. Hold on.

So under G, circumstances to be considered, sub one, 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 perspective [sic] juror about the alleged concern.

I can’t make that finding because I think that the state did ask questions about that. Or certainly it was elicited enough that we could understand that particular jurors or panelists answers or opinions.

Two, whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror. So I guess one is you didn’t do enough questions. And the other one, you did too many questions. I’m not sure which I’m supposed to

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