IN THE COURT OFAPPEALS 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 ofAppeals Division I State ofWashington


### Therespondent, StateofWashington, hasfiled amotionforreconsideration. 

## Theappellant, PierreDanielSpencer-Wade, hasfiled aresponse. Thecourthastaken thematterunderconsideration and has determinedthatthemotionforreconsideration should be denied. Now,therefore, it is hereby 

### ORDEREDthatthemotionforreconsideration isdenied; and, itisfurther 

## ORDEREDthattheopinionintheabove-referencedcasefiled January28, 2013, iswithdrawn and a substituteopinion befiled in its place. 

## Donethisi^ffdayof//Mb . •2013.

FOR THE COURT: ^"W^ 

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# r^^g,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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•" CD and PIERRE DANIEL SPENCER-WADE, and each ofthem, Appellant. FILED: May 28, 2013 CO

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Grosse, J. — A prosecutor's proffered reasons for the peremptory challenge ofone of two African-Americanjurors on the venire are not sufficientto defeat a Batson challenge where, as here, the proffered reasons for the strike
are unsupported by the record, appear "pretextual" because similarjurors 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 strikeNo. 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 SupremeCourt setforth a three-part analysis to determine whether a member of the venire was 

### peremptorily challenged pursuant to discriminatory criteria.3 First, a defendant mustestablish a prima facie case ofpurposeful discrimination.4 Second, ifthe defendant establishes a prima facie case, then the burden shifts to the State to 

### articulate a race-neutral explanation for challenging thejuror.5 Third, the trial court considers the explanation of the State and determines whether the 

### defendanthasestablished purposefuldiscrimination.6 Here, defense counsel objected to the prosecution's exercising its 

### peremptory challenge of Juror No. 34. Spencer-Wade failed to setforth 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 ofintentional

1 Batson v. Kentucky. 476 U.S. 79, 85-86, 106 S. Ct. 1712, 90 L Ed. 2d 69 (1986). 

### *Batson, 476U.S. at86. 3476 U.S. 79, 106 S. Ct. 1712, 90 L Ed. 2d 69 (1986). 4Batson, 476 U.S. at 93-96. 5Batson, 476 U.S. at 97-98. 6Batson, 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 Iasked aboutJohnny and Jane, and he 

### said one piece of information whether itwas 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 familymemberwere 

### sitting in Mr. Spencer-Wade's position he would want to be on that particularjury. 

### So, based on those reasons Idid not feel comfortable having him on my jury. 

### Here, the record does not support many of the reasons offered by the 

### State. Forexample, 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. Itwas 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

7127Wn.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. Theterm 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 ifother jurors made similar assertions. In a Batson case, a court must perform a comparativejuror analysis to ascertain whether the 

### State's reasons for striking an African-American juror were pretextual.10 As


### 9Spencer-Wade alsocontendsthat the Stateconfused thetwo blackjurorswhen itargued 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. Itargued 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,'" itwas 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."); Kesserv. Cambra. 465 F.3d 351, 360 (9th Cir. 2006) ("[l]fa 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); UnitedStates 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 [ofthe 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. "ifthe State asserts that itstruck a blackjurorwith
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 thejurors 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 jurordecide whether itwas Johnny who broke the lamp. Juror No. 34 raised his hand to indicate that he did not think the 

### past conductwould have a bearing on Johnny's guilt. It is difficultto understand 

### why this reason could be a valid one to strike ajuror. JurorNo. 34's response is in accord withthe rules ofevidence. ER 404(b) prohibits the introduction of prior 

### acts to show action in conformity therewith. Additionally, fifteen other jurors 

### answered similarly; five ofwhom were selected to serve on thejury. Not striking 

### thosejurors who made similar statements as JurorNo. 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 againstthe police. 

### In addressing theviability of the State's Batsonchallenge, the court made the following observations: 

### Okay. Mr. Kim [the prosecutor]doesn't have to givereasons 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. at246).No. 67332-7-1 / 6 But he did anyway. And Iguess Iwould agree with him in that Ifelt thejurorwasjust a little bittoo 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 Ithink Mr. Kim has a motion to disqualify this juror. Or to - - I've already ruled, but those are the reasons Iwould 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 ofracial discrimination.12 As noted in Batson. "'aconsistent pattern of official racial discrimination' is not 'a necessary predicate to a violation ofthe Equal Protection Clause. A single invidiously discriminatory governmental 

### act' is not 'immunized by the absence of such discrimination in the making of 

### othercomparabledecisions.'"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 courtproceeded to rule that tworeasons 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 ofthose 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 ofthat explanation must be viewed inthe totality ofthe prosecutor's
comments. It is the circumstances ofthe entire voir dire that must be examined 

### by the trial court to determine if removal of 50 percent ofthe 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 evidencesufficiently demonstrates that the removal of Juror No. 34 because of his enthusiasm was a proxy reason for 

### striking him on account ofhis race. The State's race-neutral reason for the 

### juror's exclusion must notbe amere "proxy" for race. The reference to"brother" and confusing of one of the African-Americanjurorswith 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 Turnerv. Marshall. 63 F.3d 807, 813 (9th Cir. 1995) (finding that removal 

### offive out ofninejurors ofthe same cognizable racial group, representing 55 percent, was sufficientto raise an inference ofdiscrimination).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. 

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WE CONCUR:



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