IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87199-4-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION DAA MU LOREN JAMAL WINDOM,
Appellant.
SMITH, J. — The State charged Windom with assault in the third degree for
spitting on a law enforcement officer. During voir dire, Windom’s counsel moved
to strike a White juror and the State objected under GR 37. The court sustained
the State’s objection. During closing arguments, the State repeatedly referenced
Windom’s anger during the incident. The jury found Windom guilty and the court
sentenced him to no confinement and 12 months community custody. Windom
appealed contending (1) the trial court erred when it sustained the State’s GR 37
objection, (2) the prosecutor engaged in race-based misconduct, and (3) the
court erroneously admitted prejudicial propensity evidence.
While we do conclude the trial court erred when it sustained the State’s
GR 37 objection, the error was harmless and, therefore, reversal is not required.
We find Windom’s other arguments without merit. Accordingly, we affirm. No. 87199-4-I/2
FACTS
Background
On April 15, 2022, the Snohomish County Police Department received a
report of an assault in a parking lot in Everett, Washington. The Department
dispatched Deputy Jose Perez, who arrived on the scene and observed a male
and female arguing. Both the male, later identified as Daa Mu Loren Jamal
Windom, and the female, identified as Kincayde Thornton, had their hands up
and were yelling. Windom and Thornton were about six feet apart. Deputy
Perez heard Windom yell something along the lines of “[b]itch, I[’m] going to fuck
you up.” Deputy Perez yelled at Windom multiple times to stop, but Windom
continued to advance toward Thornton.
Concerned that an assault was about to occur, Deputy Perez intervened
and placed himself between Windom and Thornton. Windom continued to
advance toward Thornton, saying, “fuck that bitch” and, “she’s going to get it.”
After directing Windom to stop four more times, to no avail, Deputy Perez
handcuffed Windom. Windom continued to yell and curse and actively tried to
pull away from Deputy Perez. Additional deputies arrived on scene and put
Windom in the back of a patrol car. Deputy Perez advised Windom that he was
under arrest for assault in the fourth degree. Inside the vehicle, Windom
continued to yell and started banging his head on the window. Deputy Perez
opened the door and advised him to stop, but Windom responded with profanity
and told Deputy Perez to shut the door.
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While in transit to the Snohomish County jail, Windom continued to kick at
the window of Deputy Perez’s vehicle. Concerned that Windom was going to
break the window, Deputy Perez stopped the car. Deputy Jacob Olson and
Deputy Art Wallin arrived to assist. Deputy Perez rolled down the back window
and advised Windom that if he did not stop kicking, he would be put in a hobble.1
Windom continued to yell, telling Deputy Perez he would continue to kick once
the door was closed. Deputy Olson and Deputy Wallin assisted Deputy Perez to
put a hobble on Windom.
The rear window near Windom was still halfway open, and Windom put his
face near the window and spit on Deputy Olson. Deputy Perez heard Windom
make a “hawking sound” and then heard Deputy Olson say, “He spit on me.”
Deputy Perez told Windom to stop, but Windom continued to spit inside the
vehicle (at least eight times) and yell at the deputies. Deputy Perez placed a spit
hood on Windom to prevent him from spitting in the car. Deputy Perez drove
Windom to the jail, and the State charged Windom with assault in the third
degree for spitting on Deputy Olson’s face.
Jury Selection
Before trial, Windom’s counsel moved the court to exclude testimony from
Deputy Perez that he heard Windom spit on Deputy Olson. Windom’s counsel
claimed the evidence was not relevant and was unfairly prejudicial. The court
1 A hobble is a device attached to a person’s ankles and secured to the inside of a car to prevent that person from lifting their legs.
3 No. 87199-4-I/4
denied the motion, stating it was relevant to indicate intent and absence of
mistake.
Voir dire began with 45 potential jurors. The court asked general
questions of the jurors, including, “Are any of you personally connected in any
way with the courts, the prosecutor[’]s office, the public defender[’]s office, a
private law firm, or a law enforcement agency?” Juror 13 indicated they worked
for the Seattle Police Department but stated they did not believe their experience
would affect their ability to be fair and impartial. When juror 18 stated their sister
and mother worked for local law enforcement agencies, the court asked if
“anything about your conversations with your sister or with your mother about the
justice system or their employment . . . would make you hesitant or think you
might not be able to be fair and impartial?” Juror 18 replied, “I’m not sure I can
guarantee that.” Later, juror 18 told the court, “[T]he longer I’ve sat here and the
more I’ve listened, I don’t think I could be impartial, given conversations that I
have had with family members.”
Juror 12 also raised their hand and told the court they were a member of
the Edmonds Fire Department, a reserve officer with the Edmonds Police
Department, and their son worked at the King County Jail. When asked if any of
their experiences might make them unable to be fair and impartial, juror 12
replied, “Not at all.” Neither Windom’s counsel nor the State asked any
additional questions of juror 12.
Windom’s counsel addressed the jurors and stated, “I want to jump right to
the obvious thing about this case – you know, at the start of it, which is my client
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is a Black man, and there’s no Black people in this panel. Right? Is anybody
Black here? No? Okay.” Windom’s counsel asked several questions of the
jurors concerning race and their ability to remain impartial and give Windom a fair
trial. Juror 12 was not one of the jurors questioned individually.
Using peremptory challenges, Windom’s counsel moved to strike
jurors 13, 1, 12, 18, and 11. The State challenged juror 12’s removal, citing
GR 37. The court cleared the courtroom, isolating juror 12 in the jury deliberation
room from the rest of the jury pool, and the parties discussed the validity of the
GR 37 challenge. The State claimed GR 37 is a race neutral law and one of the
reasons GR 37 can be invoked is when a juror is excused because they have
had prior contact with law enforcement. The State noted that Windom’s counsel
excused juror 12—a retired fire commissioner and reserve officer—without
asking any questions and, therefore, there could be no other reason for
Windom’s counsel’s motion to strike juror 12.
Windom’s counsel countered that he had struck the juror because “in this
morning’s earlier session, as well as during questions, it appeared to me that
juror 12 was sleeping.” Windom’s counsel also noted juror 12 was “not
particularly forthcoming in questions posed to the entire panel” and he did not
believe juror 12 would “be a suitable juror.” The State claimed these were
presumptively invalid reasons under GR 37.
The court then conducted a GR 37 analysis and determined an objective
observer could view race as a factor in Windom’s counsel’s use of his
peremptory challenge against juror 12.
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First, the court asked Windom’s counsel for his reason for striking juror 12.
Windom stated, I surmised, based on my observations of Juror No. 12 in this morning’s earlier session, as well as during questions, it appeared to me that Juror No. 12 was sleeping. . . . And I also would note that [they were] not particularly forthcoming in questions posed to the entire panel, so I did not feel [they were] going to be a suitable juror in this instance.
The court noted that juror 12 answered all the questions it posed to them, and
neither party followed up. The court also noted that juror 13—a juror that
Windom’s counsel had successfully used a peremptory challenge on—was also
not particularly forthcoming in their responses.
When the court asked Windom’s counsel to address GR 37(i) (stating that
allegations that a juror was sleeping or inattentive have historically been
associated with improper discrimination), Windom’s counsel pointed out that
juror 12 was White and “among many in the panel of a similar nature, both in
terms of race, gender, as well as age.” Windom’s counsel also noted that
sleeping was not the only reason he gave. The court asked Windom’s counsel if
the other reason was because juror 12 was former law enforcement, to which
Windom’s counsel replied, “No. The other reason I provided was he did not
participate in my questioning of the entire panel.” The court then asked if the
same could be said of juror 13, and Windom’s counsel said “yeah.”
Ultimately, the court concluded that inattentiveness was a presumptively
invalid reason under GR 37, and Windom’s counsel was required to bring it to the
attention of the court. Because Windom’s counsel failed to provide reasonable
6 No. 87199-4-I/7
notice to the court, and neither the court nor opposing counsel could corroborate
the behavior, the court upheld the State’s GR 37 challenge and juror 12 was
impaneled.
Trial
Deputy Perez, Deputy Olson, Deputy Wallin, and Windom all testified at
trial. During Deputy Perez’s testimony, the court asked the jury to step out. The
court expressed to the parties that it had been watching juror 12 carefully and he
“appears to be leaning back and has [their] eyes closed for quite some time.”
The court noted it was worried that juror 12 was having difficulty paying attention
and it wanted to call the juror in for questioning. The bailiff brought juror 12 back
into the courtroom and the court asked if they were having difficulty staying
awake. Juror 12 stated they were not having trouble staying awake and they did
not “need to watch the attorney.” Juror 12 was brought back to the jury room and
trial continued.
Windom testified in his own defense. Windom testified that Thornton
initiated the altercation when she hit him with a crowbar. Windom stated he was
walking away from the area when Deputy Perez arrived. He said he tried to tell
Deputy Perez what was happening, but Thornton kept yelling at him, and he
could not get his story out. Windom testified he started yelling back at Thornton
and that is when Deputy Perez put him in handcuffs. Windom said he complied
and waited in the back of the car while Deputy Perez investigated the scene.
Windom testified that it was when Deputy Perez came back and told him
that he was under arrest that he became “very angry.” Windom noted he was
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“enraged” and was yelling at the Deputy Perez. He stated that he was mad
enough that he was trying to kick out the window in the back of the patrol car.
When asked if he felt good about the way he spoke to the officers, Windom said
“yes” because “they didn’t do their investigation right” and he had good reason to
yell at the officers the way he did. Windom maintained that he did not spit on
Officer Olson.
During closing arguments, the State emphasized that for the jury to
convict Windom of assault, it needed to find that the spitting was intentional. The
State noted the jury could find intentionality from Windom’s actions and words.
The State went on to discuss witness credibility, maintaining the case came
down to “different witnesses saying different things” and it was up to the jurors to
be the judges of credibility of each witness. When the State contended the
deputies “testified truthfully,” Windom’s counsel objected and the court sustained
the objection. The State rephrased and said, “It’s the State’s contention . . . that
based on [the deputies’] testimony, it was truthful.”
The State discussed Windom’s testimony, noting “Windom got up there
and said a lot of things, and he said a lot of things that just are not true.”
Windom’s counsel objected, but the court overruled, stating it was argument.
The State went on to say Windom believed he did not do anything wrong
because his actions were justified “because he was angry.” The State concluded
by telling the jurors, You know the surrounding circumstances; that he was angry; he was enraged; he was getting angrier. The hobble made him upset. The spit mask made him upset. Everything rose the
8 No. 87199-4-I/9
anger level higher and higher. But apparently he was entirely calm in between the time of whatever happened on that video and the deputy arriving and getting arrested. That was the calm period. He was a hurricane and that was the eye of the storm. It’s not believable or reasonable. It is not—it’s—essentially, it’s a lie, is what it is. He’s not telling the truth and he has a motive for that.
The jury found Windom guilty of assault in the third degree.
Following trial, Windom moved for a new trial on multiple grounds,
including claims that the trial court erred as a matter of law by sustaining the
State’s GR 37 challenge, and the State engaged in misconduct during closing
arguments. During the hearing, the court and the parties again engaged in a
discussion concerning the application of GR 37. Windom’s counsel alleged the
GR 37 challenge should fail because the State could not get past the initial step
of identifying a cognizable racial group: “I don’t think there would be much debate
with me saying that the purpose of GR 37 is not to protect the majority racial
group.” The court maintained “a cognizable racial group can also apply to
Caucasians,” and Windom’s counsel had not presented valid reasons for striking
juror 12. The court concluded, “I think that based upon the totality of the
circumstances throughout the jury selection process, and the fact that juror 12
had the background of what would be presumptively invalid reason as a former
law enforcement officer, I am not going to grant the motion for the new trial on
the basis of the GR 37 challenge.”
As to the prosecutorial misconduct claim, the court noted that, in totality,
the State’s argument was referencing Windom’s testimony that he did not spit
and how, in conjunction with all reasonable inferences, it was a lie. The court
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concluded the State did not “comment on the credibility of a witness or give an
opinion that a witness is a liar as to its character.” The court denied Windom’s
motion for a new trial. Windom appealed.
ANALYSIS
GR 37
Windom contends the trial court erred when it concluded a reasonable
observer could have viewed race as a factor in Windom’s counsel’s challenge of
juror 12. The State claims Windom’s counsel framed voir dire through a racial
lens and cited an invalid reason for a strike under GR 37. We conclude the trial
court erred when it sustained the State’s GR 37 challenge, but the error was
harmless.
We review a trial court’s ruling on a GR 37 challenge de novo. State v.
Bell, 5 Wn.3d 54, 64, 571 P.3d 272 (2025). “When a trial court grants a
peremptory challenge in violation of GR 37, the remedy is reversal of the
convictions and remand for a new trial.” State v. Walton, 29 Wn. App. 2d 789,
803, 542 P.3d 1041, review denied, 3 Wn.3d 1025 (2024). But, when a juror has
been erroneously empaneled because of a GR 37 challenge, the harmless error
analysis applies. State v. Booth, 22 Wn. App. 2d 565, 584, 510 P.3d 1025
(2022). This is because “erroneous denial of a peremptory challenge merely
results in ‘the improper seating of a competent and unbiased juror.’ ” Booth, 22
Wn. App. 2d at 584 (quoting Rivera v. Illinois, 556 U.S. 148, 162, 129 S. Ct.
1446, 173 L. Ed. 2d 320 (2009)). Accordingly, a party denied their peremptory
10 No. 87199-4-I/11
challenge is “unlikely to suffer prejudice from an unfair trial.” Booth, 22 Wn. App.
2d at 584.
GR 37 is a “court rule . . . developed to ‘eliminate the unfair exclusion of
potential jurors based on race or ethnicity.’ ” Bell, 5 Wn.3d at 66 (quoting
GR 37(a)). The rule applies to all jury trials. GR 37(b). Under GR 37, any party
or the court “may object to the use of a peremptory challenge to raise the issue of
improper bias.” GR 37(c). After a simple objection citing GR 37, the court will
conduct further discussions outside of the presence of the jury. GR 37(c). Once
outside the presence of the jury, the party exercising the peremptory challenge
must provide the reasons why the peremptory challenge was exercised.
GR 37(d). After the party articulates its reason for using the peremptory
challenge, the court evaluates the reasons “in light of the totality of
circumstances.” GR 37(e). The court must determine whether “an objective
observer could view race or ethnicity as a factor in the use of the peremptory
challenge.” GR 37(e). If the court answers in the affirmative, the challenge shall
be denied.
In making its determination, the court should consider, at a minimum, the
following circumstances: (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 prospective juror about the alleged concern or the types of questions asked about it; (ii) whether the 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 other jurors;
11 No. 87199-4-I/12
(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party; (iv) whether a reason might be disproportionately associated with a race or ethnicity; 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).
In addition to the circumstances under section (g), the rule identifies
several justifications for a peremptory challenge that have historically “been
associated with improper discrimination in jury selection” and are presumptively
invalid. GR 37(h). These reasons include “having prior contact with law
enforcement officers” and “expressing a distrust of law enforcement or a belief
that law enforcement officers engage in racial profiling.” GR 37(h)(i), (ii).
GR 37 also lists conduct of potential jurors that has historically been
associated with improper discrimination, including “allegations that the
prospective juror was sleeping, inattentive, or staring or failing to make eye
contact.” GR 37(i). If a party intends to offer one of these reasons as justification
for its peremptory challenge, “that party must provide reasonable notice to the
court and the other parties so the behavior can be verified and addressed in a
timely manner.” GR 37(i). If either the judge or opposing counsel cannot
corroborate the behavior, the reason shall be considered invalid. GR 37(i).
First, we address the trial court’s statements during Windom’s motion for a
new trial. In response to Windom’s claim that an objective observer could not
have viewed race as a basis for its peremptory strike, the court stated,
12 No. 87199-4-I/13
[H]ow could an objective observer not think that race was a basis when, at the beginning of your comments to the entire jury, you asked outright, is anyone here Black? It was about race. The entire jury selection, in my mind, seemed to be somewhat focused on race. I think it was a legitimate trial strategy to do that, but given that overtone and the then-striking of this juror, and also the commentary during the strike where you indicated that there were plenty of white men on the jury, how could—how wouldn't an objective observer conclude race was part of it?
We disagree with the trial court that addressing implicit bias during voir dire
creates an “overtone” of race, leading to a GR 37 issue. One of the central
purposes of voir dire is that it “provides an opportunity for the court and counsel
to examine members of the venire for impartiality.” Pena-Rodriguez v. Colorado,
580 U.S. 206, 220, 137 S. Ct. 855, 197 L. Ed. 2d 107 (2017). It would be
contrary to this determination if every time a defendant raised the issue of race
during voir dire, their peremptory challenges could be objected to under GR 37.
While we disagree that discussing race during voir dire raises a GR 37
issue, we agree with the trial court that GR 37(i) was implicated when Windom’s
counsel provided a reason for his strike that has historically been associated with
improper discrimination. But we do not find that under the totality of the
circumstances, an objective observer could view race or ethnicity as a factor in
Windom’s counsel’s use of the peremptory challenge against juror 12.
First, it is important to note that, contrary to the Court’s and the State’s
assertion, it is not presumptively invalid under GR 37 to use a peremptory
challenge to strike a law enforcement officer. The rule states “having prior
contact with law enforcement officers” is a presumptively invalid reason for a
13 No. 87199-4-I/14
peremptory challenge; it does not indicate being a law enforcement officer is an
invalid reason. GR 37(h)(i) (emphasis added). In addition, the remaining
presumptively invalid reasons contained in section (h) reflect that the prior
contact with law enforcement referenced is that of a juror having contact with law
enforcement in an official capacity, rather than having been an officer or having
family or friends that are officers. E.g., GR 37(h)(ii) (“[E]xpressing a distrust of
law enforcement or a belief that law enforcement officers engage in racial
profiling.”); GR 37(h)(iii) (“[H]aving a close relationship with people who have
been stopped, arrested, or convicted of a crime.”).
Next, we consider, de novo, the circumstances listed in GR 37(g). The
first circumstance addresses “the number and types of questions posed to the
prospective juror.” GR 37(g)(1). Here, Windom’s counsel failed to address
juror 12’s inattentiveness—either directly to the juror or to the court—nor did
Windom ask juror 12 any additional questions. But, neither did Windom’s
counsel single out juror 12 and ask them significantly more or different types of
questions than other jurors, which is the second consideration.
The third consideration asks “whether other prospective jurors provided
similar answers but were not the subject of a peremptory challenge.”
GR 37(g)(iii). Windom’s counsel did challenge other prospective jurors who were
not particularly forthcoming with responses and/or had connections with law
enforcement, including jurors 13, 18, and 11. The fourth circumstance looks at
whether the reasons provided for the peremptory challenge “might be
disproportionately associated with a race or ethnicity.” GR 37(g)(iv). As noted in
14 No. 87199-4-I/15
GR 37(i), Windom’s counsel’s reasoning—inattentiveness—has historically been
associated with improper discrimination in jury selection. But, as to the fifth
circumstance, no evidence exists that Windom’s counsel used peremptory
challenges to disproportionately strike jurors of a given race. Windom’s counsel
noted that had juror 12 been stricken, another White juror would have replaced
them. Also, the final panel was apparently overwhelmingly White.2
We acknowledge that Windom’s counsel proffered reason for using a
peremptory challenge on juror 12 was subject to the restrictions of GR 37(i), but
we must look at the totality of the circumstances. When considering all the
circumstances set forth in GR 37, an objective observer could not view race as a
factor in Windom’s counsel’s use of the challenge. Accordingly, trial court erred
in granting the State’s GR 37 objection.
1. Harmless Error
Windom contends the denial of his peremptory challenge was prejudicial
and the proper remedy is a new trial. We conclude that, while the court did err,
the error was harmless because Windom cannot show the outcome of the trial
would have been different had the court granted his peremptory challenge.
When a peremptory challenge is erroneously denied, the harmless error
standard applies. Booth, 22 Wn. App. 2d at 584.3 Under the harmless error
2 Neither party discussed the demographic makeup of the jury in their briefs, but in his motion for a new trial, Windom noted the final panel was comprised of ten White jurors, two Asian Americans, and one Native American. 3 “There is no right to a peremptory challenge under either the United States Constitution or the Washington Constitution, so the erroneous loss of
15 No. 87199-4-I/16
standard, “an ‘error is not prejudicial unless, within reasonable probabilities, had
the error not occurred, the outcome of the trial would have been materially
affected.’ ” Booth, 22 Wn. App. 2d at 584 (internal quotation marks omitted)
(quoting State v. Aljaffar, 198 Wn. App. 75, 86, 392 P.3d 1070 (2017)).
Here, Windom cannot show that the outcome of the trial would have been
affected had juror 12 not been empaneled. Because juror 12 was not stricken for
cause, it is assumed that they were a competent and unbiased juror. See Booth,
22 Wn. App. 2d at 584. Windom alleges that, because juror 12 was singled out
in open court by Windom’s counsel’s peremptory challenge and then isolated
from the other jurors, it is “within reasonable probabilities” that juror 12 would
hold that against Windom. Windom contends juror 12’s demeanor during
testimony, such as closing his eyes, suggested as much.
We agree with Windom that a juror should be observing witness
testimony, but juror 12’s behavior was not inconsistent with their demeanor
before Windom moved to strike them. In fact, juror 12’s apparent inattentiveness
was the reason for Windom’s counsel’s peremptory challenge in the first place,
and Windom’s counsel failed to inform the court and opposing counsel of it
before the peremptory challenge, as required by GR 37(i).
Additionally, assuming a juror becomes hostile toward a party and error
occurs every time a peremptory challenge is denied, or the juror is singled out,
would lead to absurd results. A juror is presumed to follow the court’s
peremptory challenge does not undermine the fundamental judicial process” and, therefore, is not per se reversible. Booth, 22 Wn. App. 2d at 581.
16 No. 87199-4-I/17
instructions and render their decision based on the facts of the case and without
bias. Accordingly, it must be inferred that juror 12’s role on the jury would be the
same whether or not the peremptory challenge occurred. Because Windom
cannot show that “within reasonable probabilities” he was prejudiced by the trial
court granting the State’s GR 37 objection, the error was harmless.
Prosecutorial Misconduct
Windom claims the prosecutor impermissibly exploited the racial
stereotype of an “angry Black man” to undermine Windom’s credibility. While the
State did inappropriately comment on Windom’s credibility and repeatedly
referenced Windom’s anger, the State’s comments did not rise to the level of
prosecutorial misconduct.
The prosecutor’s function is twofold: (1) “enforce the law by prosecuting
those who have violated the peace and dignity of the state by breaking the law,”
and (2) represent the people, including the defendant, “in a quasijudicial capacity
in a search for justice.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551
(2011). As a representative of the people, it is impermissible for a prosecutor “to
comment on the credibility of the witnesses or the guilt and veracity of the
accused.” Monday, 171 Wn.2d at 677. But “prosecutors may argue inferences
from the evidence, including inferences as to why the jury would want to believe
one witness over another.” State v. Copeland, 130 Wn.2d 244, 230, 290, 922
P.2d 1304 (1996).
A prosecutor also violates their duties, and the defendant’s right to an
impartial jury, when they “resort[] to racist argument and appeal[] to racial
17 No. 87199-4-I/18
stereotypes or racial bias to achieve convictions.” Monday, 171 Wn.2d at 676.
When “a prosecutor’s conduct flagrantly or apparently intentionally appeal[s] to
jurors’ racial bias,” the error is per se prejudicial and cannot be cured; therefore,
the appropriate remedy is reversal. State v. Bagby, 200 Wn.2d 777, 803, 522
P.3d 982 (2023).
When a defendant makes a claim of race-based prosecutorial misconduct,
we apply the objective observer test. State v. Bellerouche, 33 Wn. App. 2d 877,
895, 565 P.3d 604 (2025). The objective observer tests asks, “whether the
prosecutor flagrantly or apparently intentionally appealed to racial bias in a way
that undermines the defendant’s credibility or the presumption of innocence.”
Bagby, 200 Wn.2d at 800. Under the standard, the court considers four
elements: “(1) the content and subject of the questions and comments, (2) the
frequency of the remarks, (3) the apparent purpose of the statements, and
(4) whether the comments were based on evidence or reasonable inferences in
the record.” Bagby, 200 Wn.2d at 794.
Here, Windom contends the State impermissibly relied on his anger at the
scene to establish he was not credible. Windom references several statements
made by the State during closing argument to support his claim, including the
following: “[Windom’s] getting up there and he’s telling lies. And we know this
because Mr. Windom, he didn’t do anything wrong; even the things that he
admitted to. He was justified in telling those officers to fuck off, because he was
angry.” Later, the prosecutor stated, “[W]hat [Windom’s] really saying is that he
feels justified, that he did feel justified in spitting on that officer, because he had
18 No. 87199-4-I/19
been in his mind, disrespected; made angry.” Windom maintains the State’s
attack on his credibility “risked activating deeply rooted stereotypes regarding the
inherent dishonesty of Black people.” (Internal quotation marks omitted.)
2. Content and Subject
The content and subject of the comments the prosecutor made do not
flagrantly or apparently intentionally reference or allude to race. Referring to a
defendant’s anger to activate the stereotype of “the angry Black man” could
certainly trigger a juror’s implicit bias, but there is not enough here to conclude
the prosecutor’s conduct rose to the level of racist argument. Unlike the cases
cited by Windom, the State did not make any blanket statements about Black
criminal defendants, nor did the State draw attention to Windom’s race or imply
Windom’s anger was related to race. Cf. Monday, 171 Wn.2d at 679 (“[T]he only
reason to use the word ‘po-leese’ was to subtly, and likely deliberately, call to the
jury's attention that the witness was African American and to emphasize the
prosecutor’s contention that ‘black folk don’t testify against black folk.’”); Bagby,
200 Wn.2d at 795-96 (finding prosecutorial misconduct where the State
continuously referenced the defendant’s nationality).
In addition, the State did not use coded language to activate bias. The
State noted Windom had the right to be angry, and its use of the word “angry” in
describing Windom was because “those are all of Mr. Windom’s words.” Windom
himself discussed his anger multiple times during his testimony. Windom
admitted he “was enraged” and “yelling in rage.” He also testified he was happy
19 No. 87199-4-I/20
with the words that he used with the officers because “they didn’t do their
investigation right.”
The prosecutor did comment on Windom’s credibility when it stated,
“[Windom’s] getting up there and he’s telling lies.” Generally, the State is not
allowed to comment on the credibility of the defendant, but as the trial court
noted when it overruled Windom’s objection, the State was arguing inferences
from the evidence. The prosecutor stated that Windom “said a lot of things that
just are not true,” but continued to explain why the jury should find Windom was
lying. It would have been more appropriate for the prosecutor to indicate why the
jury should not find Windom’s testimony credible, rather than allege Windom was
lying, but it was not impermissible, as evidence existed to contradict Windom’s
testimony. See State v. McKenzie, 157 Wn.2d 44, 59, 134 P.3d 221 (2006)
(“Where a prosecutor shows that other evidence contradicts a defendant’s
testimony, the prosecutor may argue that the defendant is lying.”)
3. Frequency
As noted above, the State frequently referenced Windom’s anger, but that
was because it was the State’s argument that Windom’s emotional state was
relevant to his intent and motive. And Windom himself referenced his anger
multiple times during his testimony.
4. Apparent Purpose
The State’s contention was that Windom spit on Officer Olson because he
was angry. The State did not argue that Windom lied because he was angry, the
State argued Windom spit on Officer Olson because he was angry and,
20 No. 87199-4-I/21
therefore, Windom was lying on the stand when he said he did not spit on Officer
Olson. The purpose of discussing Windom’s anger was to show why Windom
had motive to spit on Officer Olson and why his testimony was not credible.
Credibility was important in this case because the evidence was limited to the
testimony of individuals involved in the incident.
5. Based on the Evidence
The State’s comments concerning Windom’s anger were based on the
testimony at trial, including Windom’s, and Windom’s actions during the incident.
Windom does not deny that he was angry; in fact, he testified that he was
enraged and yelled at the officers. The State did not use Windom’s anger to
attack his credibility; the State permissibly discussed Windom’s anger as a
motive for his behavior. The State did not accuse Windom of being
untrustworthy because he was angry; the State alleged Windom was
untrustworthy because he had a motive to lie, and the State used instances of
Windom’s anger to corroborate the officers’ testimony that Windom was lying
about not spitting on Officer Olson. Because the State did not flagrantly appeal
to the jury’s bias and its arguments were based on reasonable inferences from
the evidence, the prosecutor did not engage in race-based misconduct.
Propensity Evidence
Windom contends the trial court erred when it allowed the State to present
evidence that he spit in the back of the patrol car because it was prejudicial. But,
the evidence was relevant to intent and absence of mistake; therefore, it was not
prejudicial and the court did not err.
21 No. 87199-4-I/22
A trial court’s decision to admit or exclude evidence is reviewed for abuse
of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). A
trial court abuses its discretion when its “ ‘decision is manifestly unreasonable or
based upon untenable grounds or reasons.’ ” State v. Gunderson, 181 Wn.2d
916, 922, 337 P.3d 1090 (2014) (quoting State v. Brown, 132 Wn.2d 529, 572,
940 P.2d 546 (1997)).
Under ER 404(b), Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Evidence of other wrongs or acts is only necessary to prove intent “when intent is
at issue or when proof of the doing of the charged act does not itself conclusively
establish intent.” State v. Powell, 126 Wn.2d 244, 262, 893 P.2d 615 (1995).
Before admitting evidence under ER 404(b), the court must,
“(1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.”
State v. Gresham, 173 Wn.2d 405, 421, 269 P.3d 207 (2012) (quoting State v.
Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). The State bears the burden
of establishing the first three elements. Gresham, 173 Wn.2d at 421. “Evidence
is relevant if it makes the existence of a consequential fact more or less
probable.” Brown, 132 Wn.2d at 571. Even if the evidence is relevant, the court
may exclude it if its prejudicial effect substantially outweighs its probative value.
22 No. 87199-4-I/23
State v. Gantt, 29 Wn. App. 2d 427, 447, 540 P.3d 845, review denied, 3 Wn.3d
1002 (2024). When determining the probative/prejudicial balance of evidence,
the trial court has considerable discretion. Gantt, 29 Wn. App. 2d at 449.
In addition to the purposes set forth in ER 404(b), evidence of bad acts
may also be admissible under the res gestae exception. Powell, 126 Wn.2d
at 263. Evidence may be considered under the res gestae doctrine if it
“complete[s] the story of the crime by establishing the immediate time and place
of its occurrence.” Brown, 132 Wn.2d at 571.
During the motions in limine, after hearing arguments from both parties,
the court found the evidence of Windom spitting in the patrol car to be relevant
because it indicated Windom’s intent and absence of mistake. The court noted
the evidence was prejudicial, but concluded, “with regard to this particular case,
as well as the overall timeframe within which this is happening, I don’t believe it’s
more prejudicial than probative as to those elements of the State’s case.”
Windom contends the court erred in admitting the evidence because
evidence of him spitting in the patrol car after the charged assault was not
admissible on the issue of either intent or absence of mistake. Windom first
alleges intent and mistake were not at issue because his defense was that he did
not spit on Officer Olson, not that he accidentally spit on Officer Olson. Windom
cites to several cases to support his claim that intent was not of consequence,
but those cases are distinguishable. First, in State v. Dewey, intent was not at
issue because it was not a specific element of the crime. 93 Wn. App. 50, 58,
966 P.2d 414 (1998). In Powell, intent was not a disputed issue because “[p]roof
23 No. 87199-4-I/24
of the act of manual strangulation as well as the other evidence presented in this
case established an intent to kill.” 126 Wn.2d at 262
Here, intent was at issue. Even Windom’s counsel recognized that the
State needed to prove intent to prove assault. In his closing argument, Windom’s
counsel noted the State has “to prove it’s not just an assault, they have to prove
it was intent; two things.” Windom maintains that because he did not argue the
spitting was an accident, the only question for the jury is whether the assault
happened, not whether it was intentional, but that argument ignores the State’s
burden of proving all elements of the crime, including intent.
Windom also contends the evidence was more prejudicial than probative
and should not have been admitted. Windom states the jury could easily rely on
the evidence of him spitting in the patrol care to make improper inferences that
he was the kind of person who would spit at officers. Windom maintains
whatever probative value the evidence had was cumulative of other evidence of
intent, such as the officers’ testimony. But the trial court properly weighed the
probative/prejudicial value and noted the evidence was more probative as to the
elements of the State’s case, including intent and absence of mistake.
Finally, as the State argued in the motion in limine, evidence of Windom
spitting in the patrol car goes to res gestae. The fact that Windom continued to
spit after the incident with Officer Olson provided context to the jury concerning
Windom’s behavior and state of mind. The evidence “provided the jury with a
more complete picture of events surrounding the crimes” committed against
Officer Olson. Brown, 132 Wn.2d at 573. Because the evidence of Windom
24 No. 87199-4-I/25
spitting in the patrol car went to Windom’s intent, absence of mistake, and res
gestae, the trial court did not err when it determined the evidence was more
probative than prejudicial and allowed it to be admitted.
The trial court erred when it sustained the State’s GR 37 challenge, but
the error was harmless, and Windom’s other claims fail; therefore, we affirm.
WE CONCUR: