State of Washington v. Warren Eugene McCrea

OCR transcription for search; preserved printed pages are authoritative

FILED

APRIL 20, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE
STATE OF WASHINGTON, ) No. 37416-5-III
) (consolidated with
Respondent, ) No. 37417-3 Il)
)
V. )
) UNPUBLISHED OPINION
WARREN EUGENE MCCREA, )
)
Appellant. )

LAWRENCE- BERREY , J. — Warren McCrea appeals his convictions for two
counts of failure to register as a sex offender. He raises two arguments, both related to
GR 37(e)’s requirement that peremptory challenges be denied if ‘““an objective observer
could view race or ethnicity as a factor in the use of the peremptory challenge.” The
record supports McCrea’s argument that at least two of the State’s peremptory challenges
violated GR 37. We, therefore, reverse McCrea’s convictions and remand for a new trial.

FACTS

McCrea, who is Native American, is required to comply with Washington’s sexual
offender registration requirements. In 2019, the State charged McCrea with two counts of
failure to register as a sex offender. The only facts necessary for disposition of this

appeal relate to jury selection.

No. 37416-5-III; 37417-3-III
State v. McCrea
2
Jury Selection1
After general questioning, each party exercised seven peremptory challenges. The
State’s seven challenges, in order, were: venire juror 44, Ms. Bigwolf; venire juror 13,
Ms. Vargas; venire juror 35, Mr. Rojas; venire juror 38, Mr. Overbeck; venire juror 49,
Mr. Pascuzzi; venire juror 46, Mr. Castro; and venire juror 37, Mr. Sproule.
The court then called the attorneys into another courtroom and said:
I’m concerned ‘cause of the exercise of peremptory challenges by the State
in this matter.
The first peremptory was Juror No. 44, [Ms.] Bigwolf, who’s a
Native American.
Second peremptory, Juror No. 13, [Ms.] Vargas, Native American.
The—third peremptory was [Mr.] Rojas, which I believed to be at
least Hispanic or Spanish surname; that’s peremptory No. 3.
Peremptory No. 6 is [Mr.] Castro, also Hispanic surname, as such.
The exercise, when we look at those, taking those jurors, particularly
in 35, 44, 46, is of concern to the court because those people are not even in
play.
. . . .
I’d like the—[prosecutor] to explain why [you] exercised these
peremptories at that level, and the basis for the exclusion of [Ms.]
Bigwolf—if you would, please.
Report of Proceedings (RP) at 124-25.
1 To protect the privacy of the venire jurors, we refer to them by last name only
and redact their first names from the attached addendum.

No. 37416-5-III; 37417-3-III
State v. McCrea
3
The prosecutor asked whether the court was making a Batson2 challenge, to which
the court answered, “the objection was not made by counsel on behalf of the defendant,
and [GR 37] authorizes the court on its own to ask for an explanation or reasons justifying
the peremptory challenge, given the totality of the circumstances.” RP at 125. The court
asked defense counsel why he had not raised any GR 37 challenges. Defense counsel
replied, “We—we considered it, and strategically we chose not to, your Honor.” RP at
125.
The court again asked the prosecutor to explain “why [he] did not exercise
peremptories in some reasonable manner” and why he “particularly targeted, from the
court’s perspective, minorities.” RP at 125. The following discussion ensued:
[PROSECUTOR]: Starting with No. 35, [Mr.] Rojas, the state
doesn’t look at people[’s] gender, race, or anything like. In fact [I don’t]
like the term “minority;” [I’m] a person of color. . . . [I] would never strike
anyone based on their race.
[Mr.] Rojas, in his jury summons . . . state[d], “Have you been
convicted of a crime other than minor traffic violation.” He checks the box
“Yes.” That is why [I] wanted to strike Mr. Rojas.
THE COURT: So did you inquire as to what crime?
[PROSECUTOR]: No. I don’t think on the peremptory I’d need
to. . . . No. 13, [Ms.] Vargas. I would not presume anyone is any race.
Certainly wouldn’t presume she’s Native, with a Spanish last name. If I
were to make any presumption I would have assumed she was of Spanish
descent, possibly Caribbean, Dominican, Puerto Rican, Cuban,—
THE COURT: Did you look at her?
2 Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

No. 37416-5-III; 37417-3-III
State v. McCrea
4
[PROSECUTOR]: No, I don’t—
THE COURT: I—
[PROSECUTOR]: —I don’t look at—
THE COURT: I do—
[PROSECUTOR]: —color.
THE COURT: I have to. I’m obligated as the court.
[PROSECUTOR]: I understand.
THE COURT: And that’s why I’m raising this.
RP at 126-27.
The prosecutor then discussed his reason for exercising his first peremptory
challenge on Ms. Bigwolf. He said he had not tried a jury trial in front of the judge and
did not know whether using a peremptory challenge would be construed as accepting
everyone in front of the challenged juror. He said he wanted jurors 1 through 12, “Which
is why [I] started striking from the back, noticing that defense was striking from the
front.” RP at 128.
The court responded:
THE COURT: Appears from the court’s perspective that—
challenges were basically wasted when the state exercised those peremptory
challenges in the back. It would appear to the court—even if the state had
exercise[d]—those peremptory challenges sooner, —still would not have hit
that back row, and/or even [venire jurors] 31 through 40.
––The defense counsel concede that?
[DEFENSE COUNSEL]: Correct, your Honor. . . .
. . . .
THE COURT: My concern, though, as an objective—I was
concerned with the exercise of these peremptories at a different locality.

No. 37416-5-III; 37417-3-III
State v. McCrea
5
At this point does the defense still have any—GR 37 challenges.
Because you waived them.
[DEFENSE COUNSEL]: Your Honor, as I indicated, we—we
considered a GR 37 challenge when the state used its second peremptory
with respect to Juror No. 13.
THE COURT: And, why did you consider that.
[DEFENSE COUNSEL]: Because it appeared after the first
peremptory by the state of Juror 44, that the state was essentially
targeting—jurors of Native descent . . . .
. . . .
THE COURT: Have you discussed that with your client.
[DEFENSE COUNSEL]: I discussed with him earlier with respect
to jury selection and—and he essentially left that to us.
THE COURT: —that correct, Mr. McCrea?
[McCREA]: Yes.
RP at 129-30.
The court again raised its concern that the State’s peremptory challenges targeted
Native Americans and Latinxs and again asked about venire juror 13, Ms. Vargas.
The prosecutor responded:
[THE PROSECUTOR]: Once again, your Honor, [I] wasn’t looking
at race, gender, or anything. She was in the second row—And if you see
there I told you—wanted the first twelve. She’s 13. She was the second
strike.
THE COURT: So it’s just a numbers game with you—is that
correct? —not based on your questioning?
[THE PROSECUTOR]: The goal is to pick a fair and impartial jury.
There’s no tricks . . . . There’s many different factors used in assessing. I
felt, based on all the questioning, both by defense and the state, the first
twelve would have been great for the state, as far as juror members.
So the state attempted to try to get those twelve.

No. 37416-5-III; 37417-3-III
State v. McCrea
6
RP at 131-32.
The court and defense counsel agreed that Ms. Vargas was within the first 12
jurors, given that two had earlier been excused for cause or hardship.3 The court told the
prosecutor, “Doesn’t make sense what you’re saying.” RP at 132.
The court then remarked that Ms. Vargas had mentioned a memorial and said that
it had considered striking her for cause but decided not to. The prosecutor then claimed
that Ms. Vargas’s desire to attend the memorial was why he used a peremptory challenge
on her. The court said, “Given the fact that she—has a memorial, as such, or generally is
pretty sensitive to cultural aspects, memorials, annual memorials are meaningful in the
Native culture, as such, the court will grant the peremptory at this point. Defense counsel
has waived its objections on the record . . . .” RP at 134. The court granted all of the
parties’ peremptory challenges and empaneled the jury.
After the jury heard the evidence and arguments, it found McCrea guilty of both
counts of failure to register as a sex offender.
3 A list of all the venire jurors is attached as an addendum to this opinion.
Those numbered 1 through 12 were jurors, and the one numbered 13 was an alternate
juror. Those crossed out without any additional designation were removed by the court
for cause or hardship prior to the parties exercising their peremptory challenges. Those
crossed out with a “P” and number designation indicate the order that the State exercised
its peremptory challenges. Those crossed out with a “Δ” and number indicate the order
that McCrea exercised his peremptory challenges.

No. 37416-5-III; 37417-3-III
State v. McCrea
7
McCrea appeals his convictions.
ANALYSIS
McCrea raises two arguments on appeal. He argues he is entitled to a new trial
because the State caused jurors to be excluded in violation of GR 37. He alternatively
argues he received ineffective assistance of counsel because trial counsel failed to object
to the State’s violations. We do not address his second argument because his first is
dispositive.
GR 37 was adopted in 2018 “to eliminate the unfair exclusion of potential jurors
based on race or ethnicity.” GR 37(a). GR 37 employs a three-step approach. The first
step requires a party or the court to object to a peremptory challenge and raise the issue of
improper bias by citing GR 37. GR 37(c). This must be done before the challenged juror
is excused. Id. A discussion then occurs outside the presence of the prospective jurors.
Id. The second step requires the party exercising the peremptory challenge to articulate
the reason or reasons justifying the exercise of the peremptory challenge. GR 37(d). The
third step requires the court to evaluate the reason or reasons given to justify the
peremptory challenge in light of the totality of the circumstances. “If the court
determines that an objective observer could view race or ethnicity as a factor in the use of
the peremptory challenge, then the peremptory challenge shall be denied.” GR 37(e).

No. 37416-5-III; 37417-3-III
State v. McCrea
8
Although the court need not find purposeful discrimination, its inquiry is based on a
reasonable person “who is aware of the history of explicit race discrimination in America
and aware of how that impacts our current decision-making in nonexplicit, or implicit,
unstated, ways.” State v. Jefferson, 192 Wn.2d 225, 250, 429 P.3d 467 (2018).
Here, the trial court followed the three-step approach and found that the State’s
reasons for exercising its peremptory challenges did not make any sense. But it allowed
the State to exercise those challenges because it found that McCrea waived the rule.
The State does not ask us to affirm on the basis that McCrea waived the rule.
Rather, it insists it did not violate GR 37. So we will not address waiver.4
At the State’s invitation, we reach the merits of McCrea’s argument that an
objective observer could view race or ethnicity as a factor in the State’s use of its
4 There are two additional reasons we do not dispose of this appeal on the basis of
waiver. First, the trial court properly raised the issue, developed the record, and had an
opportunity to correctly rule on it. These are the important considerations when deciding
whether to address an issue on appeal. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492
(1988) (general rule limiting review to issues raised below allows trial court to correct
errors and encourages efficient use of court resources).
Second, court officers have a responsibility to ensure that important rights are
protected during court proceedings. Although GR 37 is a procedural rule, it affects
substantial constitutional rights. Jefferson, 192 Wn.2d at 248. If we do not protect these
important rights, we risk adversely affecting public perceptions of the fairness and
integrity of court proceedings. See State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d
1251 (1995) (“[C]onstitutional errors are treated specially . . . because they . . . may
adversely affect public perceptions of the fairness and integrity of judicial proceedings.”).

No. 37416-5-III; 37417-3-III
State v. McCrea
9
peremptory challenges. We review this question de novo. Jefferson, 192 Wn.2d at 250;
State v. Listoe, 15 Wn. App. 2d 308, 321, 475 P.3d 534 (2020); State v. Omar, 12 Wn.
App. 2d 747, 750-51, 460 P.3d 225, review denied, 196 Wn.2d 1016, 475 P.3d 164
(2020).
For excluding venire juror 44 (Ms. Bigwolf), the prosecutor said he chose someone
in the back row because he feared that using a peremptory might result in accepting
persons in front of the challenged juror. But challenging someone in the back row is the
opposite of what someone with such a fear would do. We agree with the trial court: this
explanation makes no sense.
For excluding venire juror 13 (Ms. Vargas), the prosecutor said he wanted jurors 1
through 12. Even if the prosecutor meant he wanted the original first 12 venire jurors, his
explanation does not justify why he excluded Ms. Vargas rather than any other venire
juror with a higher number.
On appeal, the State argues the true reason the prosecutor exercised a peremptory
challenge on Ms. Vargas was because she wished to attend a memorial. The prosecutor
latched onto this reason only after the trial court remarked that Ms. Vargas was the venire
member who wanted to attend a memorial. We are unconvinced by the State’s argument.
It sounded contrived during voir dire and it sounds contrived on appeal.

No. 37416-5-111; 37417-3-111
State v. McCrea
We determine that an objective observer "could view race or ethnicity as a factor"
in the State's use of its first two peremptory challenges. The State excluded two Native
Americans on the venire panel with its first two challenges and the reasons for doing so
make no sense.
The State violated GR 3 7 twice. We need not reach the question of whether it
continued to violate the rule by excluding Latinxs from the jury. The remedy for a GR 37
violation is a new trial. Listoe, 15 Wn. App. 2d at 329. We reverse McCrea's two
convictions and remand for a new trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, J.
WE CONCUR:
Pennell, CJ. 	Staab, J.
10

No. 37416-5-III; 37417-3-III State v. McCrea
No. 37416-5-III; 37417-3-III State v. McCrea
ADDENDUM
-
umber/Name: 19-1-00178-24 - STATE VS. MCREA
Date: 1/14/2020 Okanogan County Seating Chart - RS2
42
43
45
1696
47
49 85
150
Engh
isenbey
Freel
Brows
Bigwohl
Castro
Mchugh
Henda
Pascuzzi
1
31
32
33
34
35
36
3797
38 11
39
40
Loe
Timm
I Porter
Harrison
Juergens
Sproyfe
Overbeck
Davis-stacy
?3
2
22
23
25
27
28
29
30
Casho
Brown
İKIder
Joyner
Poulsen /2
Mccallum
Fenlon
11
12
11
13
14
16
17
18
20
Colbert
Sodell
Taber
Largas
Mcofilen
Crowell-Standley
Niemeyer
5
6
7
8
1
3
6
7
8
Foole
Mccoy
Kreeman
Clausmizer
Moore
Gate
Edmond's
-
2.
3
03
Plaintiff Attorney
47546
Defendant Attorney 95
GR37 challenge(s): Plaintiff's of Defendant's Peremptory No(s). If none, mark "Waived" at end of peremptory process.
GR37 challenge(s): Defendant of Plaintiff's Peremptory No(s). If none, mark "Waived" at end of peremptory process.
Panel accepted by plaintiff .-
Panel accepted by defendant:
Page 310
Wolff
9
Brousseau
cayd
Boyd
Crossland
P2
Eh
Lafountaine
Williams
10
Tojas
Fuller
19-1-00178-24 JYP 118 Jury Panel