* State Of Washington, Respondent V. Curtis L. Mcknight, Jr., Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 56250-2-II
Respondent,
v. PART PUBLISHED OPINION
CURTIS LEE McKNIGHT, JR.,
Appellant.
MAXA, J. – Curtis McKnight, an African American man, appeals his multiple convictions
on the ground that the trial court’s decision not to reorder the jury venire for his case during jury
selection violated his right to a jury drawn from a fair cross section of the community under the
Sixth Amendment to the United States Constitution.
Before jury selection started, the prospective jurors were randomly assigned numbers,
and the trial court stated that the 12 lowest numbered jurors (after for cause and preemptory
challenges) would be seated as jurors and the next three lowest numbered jurors would be
alternates. After several prospective jurors were excused for hardship and for cause, the venire
was reduced to 36 people. Because of COVID-19, the remaining prospective jurors were
questioned in three groups. And because each party had a total of five peremptory challenges, it
was unlikely that anyone in the third group would be seated on the jury.
Filed
Washington State
Court of Appeals
Division Two
January 10, 2023
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McKnight noted that the group with the highest assigned numbers included four Black
prospective jurors while the other two groups had no Black prospective jurors. McKnight asked
the trial court to reorder the prospective jurors so that it would be more likely that a Black person
would be seated on the jury, but the court declined. McKnight argues that the trial court’s
decision violated the Sixth Amendment.
We hold that the trial court did not violate McKnight’s Sixth Amendment right to a jury
drawn from a fair cross section of the community and that the court did not abuse its discretion in
declining to reorder the prospective jurors. In the unpublished portion of this opinion, we reject
McKnight’s additional arguments. Accordingly, we affirm McKnight’s convictions.
FACTS
McKnight was charged with first degree assault while armed with a deadly weapon,
second degree assault while armed with a deadly weapon, two counts of felony harassment, two
counts of witness tampering, and first degree unlawful possession of a firearm.
At the beginning of the trial, the trial court requested a venire of 70 prospective jurors.
The prospective jurors were randomly assigned numbers from 1 to 70. The court determined that
there would be three alternates in addition to the 12 jurors. Each party was allowed three
peremptory challenges for the first 12 and two additional challenges for the alternates. The court
stated that the 12 remaining prospective jurors with the lowest assigned numbers would
constitute the jury, and the next three prospective jurors with the lowest assigned numbers would
be the alternates.
The prospective jurors were given a questionnaire to complete. The parties and the trial
court went through the questionnaires and determined who would be excused for hardship or for
cause and who would be questioned individually. The parties then individually questioned many
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of the remaining jurors, and some were excused for cause. The court also dismissed prospective
jurors 59 through 70 without objection because there were a sufficient number of remaining
prospective jurors with lower assigned numbers to seat a jury.
The trial court divided the remaining 36 jurors into three groups for general questioning.
The court determined that the first group questioned should be the highest assigned numbers,
followed by the group with the next highest assigned numbers, and then the group with the
lowest assigned numbers who were most likely to be selected to serve on the jury. Group one
consisted of 10 jurors with assigned numbers ranging from 43 to 57, group two consisted of 10
jurors with assigned numbers ranging from 22 to 41, and group three consisted of 16 jurors with
assigned numbers ranging from 1 to 21. The understanding was that the 12 prospective jurors
with the lowest assigned numbers would be the presumptive jury.
McKnight pointed out the fact that the Black prospective jurors had higher assigned
numbers and therefore were unlikely to be seated on the jury. As a result, McKnight asked that
the court “start from the high numbers and move to the low numbers.” Report of Proceedings
(RP) at 705.
The trial court confirmed that the 12 lowest numbered jurors would be the presumptive
jury. The court stated, “The issue is to have a random selection of jurors. And the random
selection of jurors is one through 15 that remain now.” RP at 706. The court continued,
I appreciate your motion. I understand the reasoning. But this has nothing to do at
all with excluding somebody based on race. Has nothing to do with it. I want to
make that very clear. That is the process, it’s a random selection of jurors, and
that’s what we’ve done today.
RP at 706-07.
After general questioning of group one, McKnight’s counsel stated that “40 percent of
this panel was African American. Zero percent of the rest of the two panels will be African
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American. . . . Mr. McKnight is entitled to be tried by a jury of his peers.” RP at 796. Counsel
stated that the trial court could remedy this situation by starting with group one when seating the
jury. Counsel further stated that it was “concerning . . . that we have an opportunity to give
[McKnight] at least a potentially closer jury to his peers than what we’re going to get out of these
other two panels.” RP at 797.
The trial court responded,
What the court does not do is go back and randomly select somebody because of
their ethnicity, their race or any other reason that is not in the initial jury panel, the
first 12, and the first in this case additional three that happen to be the alternates.
We don’t go up and find someone who happens to be Number 69 and say okay,
because you are a particular race we’re going to put you on this panel. We will not
do that.
RP at 797.
The trial court and the parties then continued to select the jury in the court’s prescribed
manner until the jury was empaneled. None of the prospective jurors on group one, including the
Black prospective jurors, were seated as a juror or as an alternate. As a result, there were no
Black jurors on McKnight’s jury.
At trial, the jury found McKnight guilty of first degree assault with a deadly weapon
enhancement, second degree assault with a deadly weapon enhancement, one count of felony
harassment, and first degree unlawful possession of a firearm. The jury acquitted on the witness
tampering charges and one of the harassment charges. McKnight appeals his convictions.
ANALYSIS
McKnight argues that the trial court violated his Sixth Amendment right to a jury drawn
from a fair cross section of the community when it declined to reorder the prospective jurors
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during jury selection so that a Black juror would have a chance to be seated on the jury. We
disagree.
A. LEGAL PRINCIPLES
1. Constitutional Right
Both the Sixth Amendment and article I, sections 21 and 22 of the Washington
Constitution guarantee a defendant’s right to a jury trial.1 This guarantee includes “the right to
have a jury drawn from a fair cross section of the community.” State v. Meza, 22 Wn. App. 2d
514, 533, 512 P.3d 608 (citing Taylor v. Louisiana, 419 U.S. 522, 530–31, 95 S. Ct. 692, 42 L.
Ed. 2d 690 (1975)), review denied, 520 P.3d 978 (2022).
However, “a defendant is not entitled to exact cross-representation in the jury pool, nor
need the jury selected for his trial be of any particular composition.” State v. Hilliard, 89 Wn.2d
430, 442, 573 P.2d 22 (1977). “We have never invoked the fair-cross-section principle . . . to
require petit juries, as opposed to jury panels or venires, to reflect the composition of the
community at large.” Lockhart v. McCree, 476 U.S. 162, 173, 106 S. Ct. 1758, 90 L. Ed. 2d 137
(1986). “The Sixth Amendment requirement of a fair cross section on the venire is a means of
assuring, not a representative jury (which the Constitution does not demand), but an impartial
one (which it does).” Holland v. Illinois, 493 U.S. 474, 480, 110 S. Ct. 803, 107 L. Ed. 2d 905
(1990).
These principles are consistent with the well-recognized concept that a party has no right
to be tried by a particular juror or by a particular jury. State v. Sassen Van Elsloo, 191 Wn.2d
798, 816-17, 425 P.3d 807 (2018) (plurality); State v. Gentry, 125 Wn.2d 570, 615, 888 P.2d
1 McKnight does not argue that the Washington Constitution provides greater protection than the
United States Constitution.
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1105 (1995). More specifically, there is “no constitutional right to a jury comprised in whole, or
in part, of persons of his or her own race.” State v. Barajas, 143 Wn. App. 24, 34, 177 P.3d 106
(2007).
The Court in Taylor emphasized this concept in holding that juries must be drawn from a
pool that is fairly representative of the community, stating that “we impose no requirement that
petit juries actually chosen must mirror the community and reflect the various distinctive groups
in the population. Defendants are not entitled to a jury of any particular composition.” 419 U.S.
at 538.
To show a prima facie violation of the requirement that the jury must be drawn from a
fair cross section, the defendant must prove
“(1) that the group alleged to be excluded is a ‘distinctive’ group in the community;
(2) that the representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the community;
and (3) that this underrepresentation is due to systematic exclusion of the group in
the jury-selection process.”
Meza, 22 Wn. App. 2d at 533 (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58
L. Ed. 2d 579 (1979)).
Significantly, the fair cross section analysis applies only “to the selection of the venire,
not to the dismissal of individual jurors at the jury panel stage.” Meza, 22 Wn. App. 2d at 533;
see also Holland, 493 U.S. at 480, 487 (holding that the Sixth Amendment fair cross section
right does not apply to the exercise of peremptory challenges). At the jury panel stage, jurors
must be selected “ ‘in a fair way that does not exclude qualified jurors on inappropriate
grounds.’ “ Meza at 534 (citing State v. Pierce, 195 Wn.2d 230, 231-32, 455 P.3d 647 (2020)
(plurality). An inappropriate ground includes race. Pierce, 195 Wn.2d at 232.
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No. 56250-2-II
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2. Statutory Provisions
RCW 2.36.055 requires superior courts to compile a “jury source list” from a list of all
registered voters, licensed drivers, and identicard holders in the county. See also GR 18. The
superior court then compiles a “master jury list.” RCW 2.36.055. The term “master jury list”
means “the list of prospective jurors from which jurors summoned to serve will be randomly
selected.” RCW 2.36.010(12). The people selected for jury service must be “selected at random
from a fair cross section of the population of the area served by the court.” RCW 2.36.080(1).
Under RCW 2.36.065, the judges of the superior court have the duty to “ensure the
continued random selection of the master jury list and jury panels.” RCW 2.36.065 further
states, “Nothing in this chapter shall be construed as requiring uniform equipment or method
throughout the state, so long as fair and random selection of the master jury list and jury panels is
achieved.” The term “jury panel” means “those persons randomly selected for jury service for a
particular jury term.” RCW 2.36.010(9).
When a case is ready for trial, “a panel of potential jurors shall be selected at random
from the citizens summoned for jury service who have appeared and have not been excused.”
RCW 4.44.120. No statute addresses what happens next, but the general practice – and the one
used here – is that the prospective jurors are randomly assigned numbers before voir dire begins.
The trial court and the parties then engage in a voir dire examination of the prospective
jurors for that case. RCW 4.44.120. During voir dire, either party may make peremptory or for
cause challenges of prospective jurors. RCW 4.44.130. In addition, the trial court has authority
to dismiss a prospective juror without a challenge. RCW 2.36.110; CrR 6.4 (c)(1).
We review a trial court’s decisions regarding voir dire for an abuse of discretion. State v.
Davis, 141 Wn.2d 798, 826, 10 P.3d 977 (2000). “It is well settled that trial courts have
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No. 56250-2-II
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discretion in determining how best to conduct voir dire. Voir dire ‘is conducted under the
supervision of the court, and a great deal must, of necessity, be left to its sound discretion.’ ” Id.
at 825 (quoting Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S. Ct. 1017, 47 L. Ed. 2d 258 (1976)).
As a result, a trial court’s ruling regarding voir dire rarely will be disturbed on appeal. Davis,
141 Wn.2d at 826.
B. ANALYSIS OF TRIAL COURT DECISION
1. No Constitutional Violation
McKnight frames his challenge to the trial court’s refusal to reorder the prospective
jurors in terms of the constitutional right to have the jury drawn from a fair cross section of the
community. But he concedes that he is not challenging Pierce County’s process for selecting the
jury venire for his case. And he agrees that the jury venire was representative of the Pierce
County community.
However, as stated above, the fair cross section right applies only to the selection of the
broader jury panel or the jury venire, not to the selection of individual jurors during voir dire.
See Meza, 22 Wn. App. 2d at 533. In addition, as stated above, the United States Supreme Court
has emphasized that the fair cross section right does not entitle a defendant to a jury of any
particular composition. Holland, 493 U.S. at 480; Lockhart, 476 U.S. at 173; Taylor, 419 U.S. at
538. These cases establish that the fair cross section right does not apply to the jury selection
process for a particular case. McKnight cites no authority for the proposition that the Sixth
Amendment fair cross section right applies to the selection of a jury once the jury venire has
been properly selected. And as McKnight admits, the Duren test is inapplicable to his claim.
McKnight suggests that we should expand the scope of the Sixth Amendment in order to
promote jury diversity. Attempting to ensure jury diversity certainly is a laudable goal. But in
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No. 56250-2-II
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the absence of any authority supporting McKnight’s suggestion, we decline to apply the fair
cross section right beyond its settled parameters.
We conclude that the trial court’s jury selection procedure did not violate the Sixth
Amendment right to have the jury drawn from a fair cross section of the community because that
right does not apply to the selection of a particular jury from a properly selected venire.
2. No Abuse of Discretion
Because there was no constitutional violation, the next question is whether the trial court
erred in deciding how to conduct the jury selection process and specifically in declining to
reorder the prospective jurors to give Black prospective jurors the chance to be seated on the
jury. As noted above, we must review for abuse of discretion the trial court’s handling of the
jury selection process. Davis, 141 Wn.2d at 826.
There is no basis for concluding that the trial court’s decision to seat the lower numbered
prospective jurors on the jury first was an abuse of discretion. We can take judicial notice that
trial courts throughout the state use the method used here of randomly numbering the venire and
seating the lowest numbered prospective jurors on the jury. See State v. Clark, 143 Wn.2d 731,
762-63 n.3, 24 P.3d 1006 (2001) (describing struck method of voir dire). And there is no
indication that the prospective jurors’ race had anything to do with how the trial court
determined the jury selection procedure. The fact that four Black prospective jurors had high
assigned numbers and no Black prospective jurors had low assigned numbers simply resulted
from the random selection and numbering of jurors from the broader jury pool.
Further, randomness is an essential feature of the jury selection process. Statutes
expressly require that the people selected for jury service from the jury master list must be
selected at random and that superior court judges have a duty to ensure that randomness. RCW
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2.36.080(1); RCW 2.36.065. And the potential jurors for a particular case must be selected at
random from the people summoned for jury service. RCW 4.44.120. “A randomly selected jury
is a right provided by statute and is based on the Legislature’s policy of providing an impartial
jury.” State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).
McKnight’s proposal to reorder the prospective jurors would have disrupted the
randomness inherent in the entire jury selection process. Allowing the trial court to pick and
choose which of the prospective jurors should be given priority for a seat on the jury based on
the personal characteristics of those jurors would improperly inject trial court decisions into the
random jury selection process. And such a procedure would require the trial court to
subjectively determine which prospective jurors should be seated on the jury and call into
question the impartiality of that jury.
We hold that the trial court did not abuse its discretion in implementing its jury selection
procedure and in not reordering the prospective jurors.
CONCLUSION
We affirm McKnight’s convictions.
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2.06.040, it is so ordered.
In the unpublished portion of this opinion McKnight also challenges the sufficiency of
the evidence for his unlawful possession of a firearm conviction and asserts additional claims in
a statement of additional grounds (SAG). We hold that (1) sufficient evidence supported
McKnight’s unlawful possession of a firearm conviction, and (2) McKnight’s assertions in his
SAG cannot be considered.
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ADDITIONAL FACTS
In the summer of 2019, McKnight assaulted two people and threatened a third person.
Tacoma Police Officers Joshua Avalos and Grant McCrea later encountered McKnight in the
passenger seat of a parked car and arrested him.
Avalos testified that as he first approached the car in which McKnight was sitting, he saw
McKnight quickly hunch over. Avalos said that McKnight “appeared to be shoving some sort of
item underneath the seat.” RP at 1467. McCrea testified that when he first approached the car,
McKnight saw him and “kind of ducked away, kind of turning forward, turned himself away.”
RP at 1613. McCrea thought this was suspicious because McKnight “moved in a manner where
he was trying not to show himself.” RP at 1616.
Avalos testified that as he started to remove McKnight from the car, McKnight “began to
lower himself forward again and placed his hand palm down towards underneath the seat.” RP
at 1468. Avalos stated that he associated this kind of movement with someone trying to grab
something. He believed McKnight’s fingers were going for something under the seat, not just
reaching to the floorboard. McCrea also saw McKnight reach under the seat. Avalos quickly
took McKnight to the ground in order to prevent him from grabbing anything. The officers then
saw the handle of a gun underneath the passenger seat.
A. SUFFICIENCY OF THE EVIDENCE – UNLAWFUL POSSESSION
McKnight argues that there was insufficient evidence to establish unlawful possession of
a firearm because he did not constructively possess the firearm. We disagree.
1. Legal Principles
The test for determining sufficiency of the evidence is whether, after viewing the
evidence in the light most favorable to the State, any rational trier of fact could have found guilt
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beyond a reasonable doubt. State v. Bergstrom, 199 Wn.2d 23, 40-41, 502 P.3d 837 (2022). In
a sufficiency of the evidence claim, the defendant admits the truth of the State’s evidence and all
reasonable inferences drawn from that evidence. Id. at 41. Circumstantial and direct evidence
are equally reliable. State v. Cardenas-Flores, 189 Wn.2d 243, 266, 401 P.3d 19 (2017). We
defer to the trier of fact regarding evaluation of the evidence and credibility determinations.
Bergstrom, 199 Wn.2d at 41.
Under RCW 9.41.040(l)(a)2, a person is guilty of first degree unlawful possession of a
firearm “if the person owns, has in his or her possession, or has in his or her control any firearm”
after previously having been convicted of any serious offense. The State must prove that the
defendant knowingly owned, possessed, or controlled the firearm. State v. Williams, 158 Wn.2d
904, 909-10, 148 P.3d 993 (2006).
A person can have actual possession or constructive possession of an item. State v.
Ibarra-Erives, 23 Wn. App. 2d 596, 602, 516 P.3d 1246 (2022). Actual possession requires
physical custody of the item. Id. Constructive possession occurs when a person has dominion
and control over an item. Id. Although the defendant’s ability to immediately take actual
possession of an item can show dominion and control, mere proximity to the item by itself is
insufficient. State v. Davis, 182 Wn.2d 222, 234, 340 P.3d 820 (2014). A person can have
possession without exclusive control; more than one person can be in possession of the same
item. State v. George, 146 Wn. App. 906, 920, 193 P.3d 693 (2008).
Whether sufficient evidence establishes that a defendant had dominion and control over
an item depends on the totality of the circumstances. Ibarra-Erives, 23 Wn. App. 2d at 602.
2 RCW 9.41.040 has been amended since the events of this case transpired. Because these
amendments do not impact the statutory language relied on by this court, we refer to the current
statute.
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Aspects of dominion and control include whether the defendant could immediately convert the
item to his or her actual possession, State v. Jones, 146 Wn.2d 328, 333, 45 P.3d 1062 (2002);
the defendant’s physical proximity to the item, State v. Chouinard, 169 Wn. App. 895, 899, 282
P.3d 117 (2012); and whether the defendant had dominion and control over the premises where
the item was located. Ibarra-Erives, 23 Wn. App. 2d at 602.
The trial court instructed the jury accordingly:
Possession means having a firearm in one’s custody or control. It may be either
actual or constructive. Actual possession occurs when the item is in the actual
physical custody of the person charged with possession. Constructive possession
occurs when there is no actual physical possession but there is dominion and control
over the item.
Proximity alone without proof of dominion and control is insufficient to establish
constructive possession. Dominion and control need not be exclusive to support a
finding of constructive possession.
In deciding whether the defendant had dominion and control over an item, you are
to consider all the relevant circumstances in the case. Factors that you may
consider, among others, include whether the defendant had the immediate ability to
take actual possession of the item, whether the defendant had the capacity to
exclude others from possession of the item, and whether the defendant had
dominion and control over the premises where the item was located. No single one
of these factors necessarily controls your decision.
CP at 168.
2. Analysis
McKnight stipulated that he previously was convicted of a serious crime. The only issue
is whether McKnight possessed the firearm.
Here, there was sufficient evidence that McKnight had actual possession of the gun.
Avalos testified that as he approached the car he saw McKnight quickly hunch over and
McKnight “appeared to be shoving some sort of item underneath the seat.” RP at 1467. Viewed
in the light most favorable to the State, this evidence supports a reasonable inference that
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No. 56250-2-II
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McKnight had the gun in his hand and placed the gun under the seat as officers approached. If
McKnight had the gun in his hand, he had actual possession.
There also is sufficient evidence that McKnight had constructive possession of the gun.
One factor the jury could consider is whether McKnight had the immediate ability to convert the
item into his actual possession. Jones, 146 Wn.2d at 333. Here, the gun was directly underneath
where McKnight was sitting. McKnight twice reached down in the proximity of the firearm.
Avalos testified that he associated this kind of movement with someone trying to grab
something. And when the officers removed McKnight from the vehicle, the end of a firearm was
visible. A jury could find that McKnight had the ability to take actual possession of the gun and
could infer that he was grabbing for the gun, and therefore the jury could find that he had
dominion and control over the gun.
We hold that there was sufficient evidence to support McKnight’s first degree unlawful
possession of a firearm.
B. SAG CLAIMS
McKnight asserts two claims in his SAG challenging his convictions. We decline to
consider his assertions.
1. Right to a Speedy Trial
McKnight asserts that his right to a speedy trial was violated because he was declined all
trial continuances from September 2019 to July 2020 and he was given no legal reason why he
could not go to trial. However, the transcripts of all pretrial proceedings are not in our record.
We can consider only facts contained in the appellate record, making us unable to evaluate the
trial court’s decisions. Because McKnight’s speedy trial claim relies on matters outside the
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record, we cannot consider the claim on direct appeal. State v. Alvarado, 164 Wn.2d 556, 569,
192 P.3d 345 (2008).
2. Ineffective Assistance of Counsel
McKnight asserts that he received ineffective assistance of counsel because his defense
counsel never filed any speedy trial motions or asked to preclude a witness from testifying
because the witness went to jail two to three times. He also asserts that defense counsel was
never informed about the witness being in jail so she could have interviewed them.
For the same reasons stated above, we are unable to consider McKnight’s ineffective
assistance of counsel claim regarding the right to a speedy trial. Regarding the witness,
McKnight does identify the witness and therefore we are unable to determine the nature of the
alleged error. RAP 10.10(c). And whether defense counsel was or was not informed about the
witness being in jail is outside the appellate record and cannot be considered. Alvarado, 164
Wn.2d at 569.
CONCLUSION
We affirm McKnight’s convictions.
MAXA, J.
We concur:
GLASGOW, C.J.
VELJACIC, J.
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