IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, No. 78751-9-I Respondent, DIVISION ONE V. PUBLISHED OPINION ABDIMJIDO OMAR, Appellant. FILED: March 23, 2020 CHUN, J.

—The State charged Abdimjido Omarwith first degree robbery. During jury selection, Omarexercised a peremptory challenge against a potential juror (Juror 16) who claimed to have once been present at a bank robberywhile working there. Since Juror 16 appeared to be ofAsian descent, the trial court applied GR 37 and apparently asked Omarto provide a race-neutral reason for the challenge. Through counsel, Omar asserted onlythat he “didn’t like some of the responses” thatthejuror gave to questioning, and that he “felt uncomfortable aboutthe way she was responding.” The trial court denied Omar’s challenge and seated Juror 16. Thejury convicted Omaras charged. Omar appeals. Because
an objective observer could view race as a factor in the use ofthe challenge, we affirm. I. BACKGROUND On October 3, 2017, the State charged Omarwith first degree robbery. During voirdire, in response to a question from the trial court regarding herNo. 78751-9-1/2

experience with incidents similarto robbery, Juror 16 shared that she had previouslyworked at a bank, and that a person robbed the bankwhile she was working there. When asked ifthis experience would affect her abilityto be a fair juror, she responded, “I don’t know.

. . I’ve never been in this situation, so I’m not sure.” Omardid notfollow up with any questioning ofJuror 16 on this topic. Omardid askJuror 16 what she first noticed when she walked into the courtroom, but again, did not ask herfollow up questions. Juror 16 appeared to be ofAsian descent. Omar exercised a peremptory challenge against Juror 16. Because she appeared to be ofAsian descent, the court applied GR 37 and apparently requested Omarto provide a race-neutral purpose for removing Juror 16 from the pool.1 In response, Omar—through counsel—asserted that he “just didn’t like
some ofthe responses that [Juror 161 was giving to some ofthe questions. He felt uncomfortable about the way that she was responding and he felt he would feel uncomfortable having her on hisjury in this case. It has nothing to do with race.” Omarfurther noted that prospectivejuror I also appeared to be ofAsian descent but he did not use a peremptory challenge against her. In response, the State noted that Juror 16 had said she would focus on the facts ofthe case, not on race; that she never made any statements that “gave

1 The record does not showthe trial court requesting a race-neutral purpose for removing Juror 16. However, the parties and trial court engaged in a number ofoff-the record discussions around the time Omar challenged Juror 16, and statements made by Omar’s counsel immediatelyfollowing such clearly endeavorto establish a race-neutral purpose forthe challenge.

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any concern about her abilityto be fair,” and that she did not mention any law enforcement connections. The State additionally characterized Omar’s reasons for using the challenge as excessivelyvague. The trial court concluded that an objective observercould viewJuror 16’s
race as a factor in the use ofthe peremptory challenge because Omar had given
a “complete lack of reasons” for her removal. The trial courtfurther noted that
none ofJuror 16’s responses were controversial or reflected bias one way or another, that she had indicated she was excited aboutjury duty, and that she had said a person’s colorwould not affect herthinking. The court also stated that Juror 16 had indicated that her experience being present at a robbery “would not affect her.”2 The court denied Omar’s challenge. Thejury convicted Omar of robbery in the first degree. Omar appeals. II. ANALYSIS Omarargues the trial court should have granted his peremptory challenge against Juror 16. The State argues thatthe trial court properly denied the challenge because an objective observer could conclude that race influenced the challenge. We agree with the State. A. Standard of Review Omarargues thatwe must review de novo the trial court’s denial of his peremptory challenge. The State argues that, while we review de novo the trial

2 Contrarytothe trial court’s characterization, Juror 16 actually indicated that she did not know how herexperience would affect herabilityto be afairjuror, since she had never been in “this situation.”

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court’s application of CR 37, we nevertheless must deferto the trial court’s findings offact on the subject. We conclude thatthe de novo standard applies here. CR 37 provides no guidance as to an appellate court’s standard of review. However, in State v. Jefferson, our Supreme Court held that an appellate court that reviews whether an objective observer could view race as a factor in the use ofa peremptory challenge “stand[sJ in the same position as does the trial court, and 

### [1 review[s] [de nov01 the record and the trial court’s conclusions.” 192 Wn.2d 225, 249—50, 429 P.3d 467 (2018).~ The State argues that Jefferson does not apply because the trial courtthere made no findings on the “totality of the circumstances,” and “those issues do not appearto have been raised on appeal.” But Jefferson specifically states that, in this analysis, the appellate court reviews de novo the record, distinguishing itfrom the previous Batson analysis that applied a “deferential, ‘clearly erroneous’ standard of review ofthe purely factual conclusion about ‘purposeful discrimination.” 192 Wn.2d at 250.~ Thus,
we review de novo the trial court’s application of CR 37~5

~ In Jefferson, ourSupreme Court altered Washington’s analysis ofwhethera party used a peremptorychallenge in a racially discriminatory manner under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). 192 Wn.2d at 249. Specifically, it modified the third prong ofthe analysis (i.e., whethera party has established purposeful discrimination) to match that ofthe test in CR37 (i.e., whetheran objective observercould view race orethnicity as a factor in the use ofthe peremptory challenge). Jefferson, 192 Wn.2d at 249.

~ In any event, the State identifies notrial courtfindingsto which this court should defer.

~The State correctly notes thatthe application ofde novo reviewto CR 37 decisions departsfrom other, similarstandards of review. See, ~ Uttechtv. Brown,

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B. Challenge to Juror 16 Omarargues the trial court improperly denied his peremptory challenge against Juror 16. The State disagrees. Because an objective observer could conclude that race was a factor in the use ofthe challenge, we determine the trial court properly denied it. Under GR 37, a party orthe court “may objectto the use ofa peremptory challenge to raise the issue of improper bias.” GR 37(c). Upon such an objection, the party exercising the challenge must “articulate the reasons the peremptory challenge has been exercised.” CR 37(d). The court evaluates those reasons in light ofthe totality ofthe circumstances, and if “an objective observer couldview race or ethnicity as a factor in the use ofthe peremptory challenge, then the peremptory challenge shall be denied.” CR 37(e) (emphasis added). “[A]n objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in the unfair exclusion of potential jurors in Washington.” CR 37(f). When a court evaluates the reasons articulated bythe party exercising a peremptory challenge and decides whether an objective observercould view

551 U.s. 1, 9—10, 127 S. Ct. 2218, 2224, 167 L. Ed. 2d 1014 (2007) (concluding that appellate courts owe deference to a trial court’s determination of ajuror’s demeanor); Statev. Noltie, 116Wn.2d 831, 838, 809 P.2d 190 (1991) (reviewing denial ofa challenge forcausefor manifest abuse ofdiscretion, since the trial court is in the best position to observe thejuror’s demeanorand responses). However, the language of Jefferson binds us here.

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race or ethnicity as a factor in the challenge, it must considerthe reasons in light ofthe totality ofthe circumstances. GR 37(e). The rule provides: In making its determination, the circumstances the court should consider include, but are not limited to, the following: (i) 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 prospectivejuroraboutthe alleged concern orthe types ofquestions asked about it; (ii) whetherthe party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to otherjurors; (iii)whetherotherprospectivejurors provided similaranswers but were not the subject ofa peremptory challenge bythat party; (iv)whethera reason might be disproportionatelyassociated with a race orethnicity; and (v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases. GR 37(g). “[Ajllegations thatthe prospectivejurorwas sleeping, inattentive, or staring orfailing to make eye contact; exhibited a problematic attitude, body language, ordemeanor; or provided unintelligent or confused answers” have historically been associated with improper discrimination injuror selection, and the trial court should not acceptthem as reasons for a challenge unless opposing counsel orthe court itselfcan corroborate the allegations. GR 37(i). Here, in response to the trial court’s apparent requestfor a race-neutral
reason forthe challenge, Omar asserted merely that he “just didn’t like some of the responses that [Juror 16] was giving to some ofthe questions,” and “felt

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uncomfortable aboutthe waythat she was responding and he felt he would feel uncomfortable having her on hisJury in this case.” Omar’s articulated reasons ring nearlytantamountto a characterization of Juror 16’s demeanor; and, as noted above, GR 37(i) cautions that such a characterization has historically been associated with improper discrimination in jurorselection. On appeal, Omar argues thatwe should interpret his articulated
reasons in light ofthe fact that Juror 16 indicated she had previously been present at a bank robbery; but during jury selection, Omardid not articulate such
as a basis for his challenge. Further, Jefferson warns of nebulousjustifications for peremptorystrikes, since suchjustifications may serve to mask a party’s conscious or unconscious racism. 192 Wn.2d at 251 (citing Batson, 476 U.S. at 106 (Marshall, J., concurring). To be sure, Omar’s statements that he “just didn’t like some of [Juror 16’s] responses” and that “he felt uncomfortable aboutthe way that she was responding” sound, at best, nebulous. Since Omar effectively provided no reasons forthe peremptory challenge, and factors (iii) and (iv) require analysis of reasons a party provides in support of their challenge, we examine onlyfactors (i), (ii), and (v). As to factor (i), Omarasked Juror 16 onlywhat she noticed upon arriving in the courtroom; Juror 16 responded that she had attempted to figure outwho all the individuals in the courtroom were upon her entry. Since the proffered reason forthe challenge was onlythat Omardid not like her responses, it is difficultto

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saywhether Omar asked Juror 16 about his alleged concerns. However, on appeal, Omar argues that his concern with Juror 16 was that she had been present at a bank robbery, and that she “was not sure she could be fair.” Omar did not ask Juror 16 anyfollow-up questions aboutthese matters. But because
we weigh onlythe reasons Omar gave to the trial court in support of his challenge, this factordoes notweigh against him. Turning to factor (ii), Omar also asked a number ofother prospective jurors what they noticed when theyfirst came into the courtroom. Juror 16’s responses were similarto theirs. Omaralso did not ask any ofthe otherjurors who indicated they had experiences with similar crimes to explain further.6 Since Omar did not askJuror 16 more or different questions than he asked ofother jurors, factor (ii) does notweigh against him. Nothing in the record suggests that Omar or his attorneys have a history of misusing peremptory challenges. Here, Omar notes that he did not exercise a peremptory challenge against a different potential jurorwho appeared to be of Asian descent. Factor (v) does notweigh against Omar. While the foregoing factors do notweigh against Omar’s use ofthe challenge, the reasons he provided for challenging Juror 16 remain nebulous and theyfail to identify specific problems with her responses. Both Jefferson and

6 Prospectivejuror22 indicated thattheir parents’ home had been burglarized and thatthe perpetratorstole some oftheir personal information. Thisjurorstated that the experience would ‘possibly[,J [p]ossibly not” influence his abilityto be afairjuror. Omaralso did not ask prospectivejuror22 any additional questions aboutthis experience; and he did not exercise a peremptory challenge againstthisjuror.

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GR 37(f) discourage acceptance ofsuch vague and unsubstantiated reasons on the basis thatthey might mask conscious or unconscious bias. 192 Wn.2d at 251. The trial court did mischaracterize Juror 16’s statementthat she did not know how her robbery experience would affect her abilityto act as a fairjuror, but this court reviews de novo Omar’s reasons forthe challenge. Because these offered reasons were nebulous, an objective observer could view race as a factor in the challenge. The trial court properly denied Omar’s challenge against Juror 16. Affirmed.

WE CONCUR: - 

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