* State Of Washington, Respondent V. Pierre Spencer-wade, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON,
Respondent,
MISTY LOU COOK,
Defendant,
and
PIERRE DANIEL SPENCER-WADE,
and each of them,
Appellant.
No. 67332-7-1
ORDER DENYING MOTION
FOR RECONSIDERATION,
WITHDRAWING OPINION AND
SUBSTITUTING OPINION
FILED
5/28/13
Court of Appeals
Division I
State of Washington
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 is further
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is withdrawn and a substitute opinion be filed in its place.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,
Respondent,
MISTY LOU COOK,
Defendant,
No. 67332-7-1
DIVISION ONE
PUBLISHED OPINION
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and
PIERRE DANIEL SPENCER-WADE,
and each of them,
Appellant.
FILED: May 28, 2013
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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.
3476 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
of five 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:
<C/tV\C^> ACtf 	B*~fce*
8