State Of Washington, Respondent V. Terez Lejuan Bardwell, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
TEREZ LEJUAN BARDWELL,
Appellant.
No. 72356-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	February 8, 2016
Leach, J. — A prosecutor's use of a peremptory challenge based on race
violates a defendant's right to equal protection. 	But where, as here, the trial court
finds the State's stated reason for challenging the juror race neutral, no violation
occurs. 	Because the record 	supports the trial court's finding, the trial court
properly denied Bardwell's request for a new trial.
Bardwell also contends, and the State concedes, that insufficient evidence
supports his conviction for second degree possession of stolen property. 	We
accept the State's concession. 	As agreed 	by Bardwell, 	we remand for his
conviction of the lesser offense of third degree possession of stolen property.1
1 Bardwell also contended that his right to a public trial was violated but
properly concedes in his reply brief that under State v. Love. 183 Wn.2d 598, 354
P.3d 841 (2015), petition for cert, filed, No. 16-_ (U.S. Jan. _, 2016), his right
to a public trial was not violated when the court accepted written rather than oral
peremptory challenges in open court and filed those challenges in the record.

NO. 72356-1-1/2
FACTS
Fleeing from the police, Terez Bardwell ran a red light and crashed his car
into two other cars. 	Bardwell ignored police commands to stop and ran from the
scene, carrying a red bag. 	The police found Bardwell hiding 	nearby. 	They
recovered a red bag near Bardwell's hiding place. 	The bag contained cash, a
purple wallet, and a broken wooden drawer containing some jewelry and mail
addressed to a residence located near the collision. 	Someone had burglarized
that residence earlier that same day. 	Police found additional items on Bardwell's
person and in the car. The recovered items belonged to the family who lived at
the residence. 	The police also found a .380 Smith & Wesson handgun on the
floor of Bardwell's car.
The State charged Bardwell with first degree unlawful possession of a
firearm, residential burglary, attempting to elude a pursuing police vehicle, and
second degree possession of stolen property.
During voir dire, the court asked the panel whether any juror had a friend
or close relative accused of a crime. 	Juror 25 responded affirmatively. 	She said
that she had an uncle in jail, convicted for assault six years ago. 	Juror 25 also
replied that this situation would not influence her ability to be a fair and impartial
juror.
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NO. 72356-1-1/3
Bardwell raised a Batson2 challenge to the State's dismissal of juror 25
with its third peremptory challenge. 	Outside the presence of the jury, the court
directed 	Bardwell 	to state his 	reasons for 	the Batson 	challenge. 	Bardwell
answered that the State must justify its decision to exclude juror 25 because both
he and juror 25 were African American. 	Bardwell also noted that the State failed
to ask juror 25 any follow-up questions about her relative in prison and how that
would affect her view of the case.
In response, the State contended that it was not required to give a reason
because it used a peremptory challenge and the reasons given by defense did
not 	make 	a 	prima 	facie 	showing 	that 	race 	motivated 	the 	challenge.
Nevertheless, the State set forth its reasons for peremptorily dismissing juror 25.
First, 	the 	State 	expressed 	concern 	about 	juror 	25's 	demeanor 	when 	she
responded to the court's question about her relative in prison. 	Second, the State
noticed that on two separate occasions, juror 25 appeared to be sleeping. 	The
trial court ruled that the State had identified race-neutral reasons for exercising
the peremptory challenge.
Ajury convicted Bardwell of all counts as charged. 	Bardwell appeals.
2 Batson v. 	Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L Ed. 2d 69
(1986).

NO. 72356-1-1/4
ANALYSIS
Batson Challenge
The equal protection clause guarantees a defendant the right to be tried
by a jury selected free from 	racial discrimination.3 	"A prosecutor's use of a
peremptory 	challenge 	based on race violates 	a defendant's 	right 	to equal
protection."4 	We follow 	the three-part test described 	by the 	United 	States
Supreme Court in Batson v Kentucky5 to determine if discrimination played a role
in a state's exercise of its peremptory challenge of a juror. 	First, the defendant
must establish a prima facie 	case of purposeful discrimination;6 second, the
burden shifts to the State to articulate a race-neutral explanation for challenging
the juror;7 	and 	third, 	the 	trial 	court 	must determine 	if 	the defendant 	has
demonstrated purposeful discrimination.8
In State v. Saintcalle,9 our Supreme Court recognized a need to change
the existing 	Batson procedures in Washington 	but declined to do so on the
briefing 	before 	it. 	The 	court found 	that "Batson ... is failing 	us"10 	because
modern-day racism is not overt but, rather, is embodied in "stereotypes that are
3 U.S. Const, amend. XIV; Batson, 476 U.S. at 85.
4 State v. Cook, 175 Wn. App. 36, 39, 312 P.3d 653 (2013).
5 Batson, 476 U.S. at 93-96.
6 Batson, 476 U.S. at 93-96.
7 Batson, 476 U.S. at 97-98.
8 Batson, 476 U.S. at 98.
9 178 Wn.2d 34, 52, 55, 309 P.3d 326 (2013).
10 Saintcalle, 178 Wn.2d at 46.
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NO. 72356-1-1/5
ingrained and 	often unconscious."11 	"Unconscious stereotyping 	upends 	the
Batson 	framework," 	which 	is 	"equipped 	to 	root 	out 	only 	'purposeful'
discrimination, which many trial courts probably understand to mean conscious
discrimination"12
Nonetheless, the lead opinion applied Batson, leaving it as the controlling
authority we must follow. 	The lead opinion confirmed the deference a reviewing
court 	must 	give 	to 	the 	trial 	court 	under 	the 	existing 	Batson 	"purposeful
discrimination" standard:
A trial court's decision that a challenge is race-neutral is a factual
determination based in part on the answers provided by the juror,
as well as an assessment of the demeanor and credibility of the
juror and the attorney. 	Batson, 476 U.S. at 98 n.21. The defendant
carries the burden of proving purposeful discrimination. 	Id. at 93.
The trial judge's findings are "accorded great deference on appeal"
and will be upheld unless proved clearly erroneous. 	Hernandez Tv.
New York!, 500 U.S. [352,] 364[, 111 S. Ct. 1859, 114 L Ed. 2d
395 (1991)]. 	Deference to trial court findings is critically important
in Batson cases because the trial court is much better positioned
than an appellate court to examine the circumstances surrounding
the challenge. 	Further, deference is important because trial judges
must have some assurance that the rest of the trial will not be an
exercise in futility if it turns out an appellate court would have ruled
on a Batson challenge differently.1131
This standard does not require that the trial court analyze the first step of whether
the defendant has established a prima facie case of purposeful discrimination if,
11 Saintcalle, 178 Wn.2d at 44.
12 Saintcalle, 178 Wn.2d at 48.
13 Saintcalle. 178 Wn.2d at 55-56.
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NO. 72356-1-1/6
as here, the State articulates a race-neutral explanation for its challenge.14 	"'At
this [second] step of the inquiry, the issue is the facial validity of the prosecutor's
explanation. 	Unless 	a 	discriminatory 	intent 	is 	inherent 	in the 	prosecutor's
explanation, the reason offered will be deemed race neutral.'"15 "Batson requires
the judge to determine whether a race-neutral reason offered for a challenge is
honest, and [trial court] judges are much better situated than appellate judges to
evaluate the honesty of the lawyers who practice in [trial] court."16 	The State's
explanation of its reasons "must be viewed in the totality of the prosecutor's
comments."17
Bardwell 	argues that the trial court erred in accepting the prosecutor's
explanations because "African Americas are over-represented 	in the criminal
justice system," the prosecutor did not ask juror 25 any follow-up questions about
her relative's situation and the impact it had on her, and, further, the State did not
remove a white juror whose family member had been accused of a crime.
Standing alone, Bardwell's contention that he and juror 25 belong to the
same protected class does not establish prejudice.
14 See, e.g., State v. Luvene, 127 Wn.2d 690, 699, 903 P.2d 960 (1995)
(citing Hernandez, 500 U.S. at 359).
15 Purkett v. Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 131 L Ed. 2d 834
(1995) (alteration in original) (quoting Hernandez, 500 U.S. at 360).
16 United States v. Roberts, 163 F.3d 998, 1000 (7th Cir. 1998).
17 Cook, 175 Wn. App. at 43.
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NO. 72356-1-1/7
United 	States 	v. 	Bishop18 and 	Turnbull 	v. State19 do 	not support his
allegations of prejudice. 	Both cases dealt with questions focusing 	on jurors'
perceptions of police as indicative of an improper proxy for race in jury selection.
In 	Bishop, 	the 	prosecutor 	excused 	a 	juror 	because 	she 	resided 	in 	a
predominantly African American neighborhood, arguing that she would likely be
anesthetized to violence and believe that police are unfair.20 	The court rejected
that rationale as being "little more than the assumption that one who lives in an
area 	heavily 	populated 	by 	poor 	black 	people 	could 	not 	fairly try 	a 	black
defendant."21 	Likewise, in Turnbull, the State asked jurors if they thought police
racially 	profiled 	people. 	Five 	African 	American 	individuals 	answered
affirmatively. 	The State struck all five jurors, 	four peremptorily and one for
cause.22 	The Turnbull court concluded that the State's question was little more
than "subterfuge," noting that racial profiling was not an issue in the case and
that the State did not ask the question to learn the jurors' perceptions about law
enforcement.23
18 959 F.2d 820 (9th Cir. 1992).
19 959 So. 2d 275 (Fla. Dist. Ct. App. 2006).
20 Bishop, 959 F.2d at 825.
21 Bishop, 959 F.2d at 825.
22 Turnbull, 959 So. 2d at 276.
23 Turnbull. 959 So. 2d at 276-77.
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NO. 72356-1-1/8
Bishop, Turnbull, and similar pretext decisions do not support Bardwell
because of the difference in the total circumstances here from those in cases
where prosecutors used pretextual criteria to purposefully discriminate.
Bardwell 	argues 	that 	the 	State's 	retention of the 	white juror with 	an
accused family member clearly demonstrates racial bias. 	While courts have
found 	purposeful discrimination where the 	reason 	offered by the 	prosecutor
applies equally to an otherwise similar nonblack juror, Bardwell has not shown
that is the case here.24 	Here, the State offered two additional reasons for its
peremptory challenge: 	(1) the demeanor of juror 25 when responding to the
question and (2) the State's observation that juror 25 appeared to be asleep on
two separate occasions.
Bardwell contends that the prosecutor's failure to ask follow-up questions
about juror 25's relative shows that the prosecutor used this as a pretext. 	But
Bardwell cites no authority requiring an attorney to follow up with subsequent
questions. 	Bardwell's reliance on Miller-El v. Dretke,25 is misplaced. 	In Miller-El,
the prosecution struck 91 	percent of the black panelists.26 	The Miller-El Court
noted that a comparison of similarly situated white and black venire members
provided "more powerful" evidence of racial discrimination.27 	There, the State
24 See Cook v. LaMargue. 593 F.3d 810, 815 (9th Cir. 2010).
25 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).
26 Miller-El, 545 U.S. at 240-41.
27 Miller-El, 545 U.S. at 241.
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NO. 72356-1-1/9
struck a black male whom the Court viewed as an ideal juror for the State but did
not strike white panelists with similar viewpoints.28 	The Court found additional
indications of the prosecution's bias in its request to shuffle the array of panelists
after black venire members reappeared at the front of the line.29 	Further, the
prosecutors gave a bland description of the death penalty to almost all of the
white 	panelists 	before 	inquiring 	about their 	individual feelings 	on 	the 	death
penalty but used a graphic description of the death penalty when speaking to
over half of the black panelists.30 The circumstances present in Miller-El clearly
demonstrated racial discrimination. 	The circumstances present here raise no
comparable level of suspicion.
Also, 	the 	State 	struck 	juror 	25 	based 	on 	her 	demeanor 	when 	she
answered the question about a relative in prison, not because she had a relative
in prison. 	In addition, the State observed two instances where the juror appeared
to be sleeping. 	The record supports the trial court's finding that these reasons
were not pretextual.
Moreover, 	in reaching 	its conclusion that the Batson challenge lacked
merit, the trial court had the opportunity to observe the prosecutor's demeanor.
Here, the trial court analyzed the responses of the juror and the explanation
28 Miller-El, 545 U.S. at 247.
29 Miller-El, 545 U.S. at 254-55.
30 Miller-El, 545 U.S. at 255-56.
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NO. 72356-1-1/10
offered by the prosecutor. 	The trial court found that the prosecutor had a good
faith concern that juror 25 would be predisposed to the defense because of her
demeanor and 	body language when 	responding 	about 	her relative's 	lengthy
incarceration. 	Further, the trial court found the prosecutor's observation that the
juror was sleeping on two separate occasions credible. 	As noted previously, the
trial court is in the best position to evaluate credibility of a witness.
Bardwell's reliance on Snyder v. Louisiana31 is misplaced. 	Snyder did not
hold that a judge accepting a demeanor-based explanation for a 	peremptory
challenge 	must 	have 	personally 	seen 	the 	demeanor. 	Although 	noting 	the
importance of a judge's observations of the demeanor, nothing in the opinion
requires that the judge observe the demeanor.32
This analysis comports with the later United States Supreme Court opinion
in Thaler v. Havnes,33 where the Court noted that a judge, even though 	he
himself did not observe the juror's demeanor, need not reject a demeanor-based
explanation for a challenge to a jury by a 	prosecutor. 	Instead, a court may
accept the demeanor-based objection because "the best evidence of the intent of
the attorney exercising a strike is often that attorney's demeanor."34
31 552 U.S. 472, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008).
32 Snyder, 552 U.S. at 477.
33 559 U.S. 43, 49, 130 S. Ct. 1171, 175 L. Ed. 2d 1003 (2010).
34 Thaler, 559 U.S. at 49.
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NO. 72356-1-1/11
Here, the trial court found the attorney's demeanor determinative and his
observations about the sleeping juror credible. 	Bardwell fails to demonstrate that
the trial court ruling was clearly erroneous.
Sufficiency of the Evidence
Bardwell 	challenges 	the 	sufficiency 	of 	the 	evidence 	to 	support 	his
conviction of second degree possession of stolen property because the record
contains insufficient evidence to establish that the value of the stolen items
exceeded $750, an essential element of second degree possession of stolen
property.35
Sufficient evidence supports a 	conviction 	if, 	viewed 	in the 	light 	most
favorable to the State, 	it permits a 	rational trier of fact to find the essential
elements of the crime beyond a reasonable doubt.36 	In order to prove that
second degree possession of stolen property as charged, the State had to prove
that the defendant possessed stolen property exceeding a value of $750. 	The
State concedes insufficient evidence supported the charge. 	A review of the
record supports the State's concession.
Bardwell agrees that the appropriate remedy is a remand to the trial court
to convict him of the lesser degree charge of third degree possession of stolen
property.
35RCW9A.56.160(1)(a).
36 State v.Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068(1992).
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NO. 72356-1-1/12
Accordingly, 	we 	deny 	Bardwell's 	Batson 	challenge 	and 	remand 	for
resentencing on the lesser degree charge of third degree possession of stolen
property.
•Le*a^L^c\
-/WE CONCUR:
4ft, 	Z
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