FILED OCTOBER 7, 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. 37386-0-III ) Respondent, ) ) v. ) PUBLISHED OPINION ) BENJAMIN OROZCO, ) ) Appellant. )
LAWRENCE-BERREY, J. — Benjamin Orozco appeals his convictions for second
degree murder, first degree assault, and second degree unlawful possession of a firearm.
He raises several issues, some with substantial merit. One issue is dispositive and we
generally limit our discussion to that issue. We reverse and remand for a new trial
because one venire juror was excluded from service in violation of Batson v. Kentucky,
476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), and GR 37.
FACTS
On July 7, 1996, Benjamin Orozco shot Lance Terry and David Eaton. Terry died.
Eaton identified Orozco as the shooter and David Delarosa as a possible accomplice.
Two days later, the State charged Orozco with one count of second degree murder
of Terry and one count of first degree assault of Eaton. The court found probable cause
and issued an arrest warrant. No. 37386-0-III State v. Orozco
Orozco and Delarosa met up in Walla Walla, then went to Idaho before traveling
to Mexico. They remained in Mexico together. In 1998, Delarosa was arrested and
returned to the United States as a material witness. The State offered him immunity in
exchange for testifying against Orozco, who had not yet been found.
Pretrial procedure
On April 22, 2015, the State filed a formal petition for Orozco’s extradition from
Mexico to the United States.1 One year later, he was arrested in Mexico. Mexico
approved the requested extradition for the following charges:
Count one: Second degree murder of Lance Terry, against RCW 9A.32.050(1)(a), Washington State, United States of America.
Count two: First degree assault on David Eaton, against RCW 9A.36.011, Washington State, United States of America.
Clerk’s Papers at 902-03. Orozco unsuccessfully contested extradition in the Mexican
courts and was returned to the United States to face trial.
The State charged Orozco with second degree murder of Terry and first degree
assault of Eaton. The State amended the information to add a firearm enhancement to
each count. The State later amended to add a third count, second degree unlawful
1 The procedural facts related to extradition are found in a lengthy document prepared by the Mexican State Department.
2 No. 37386-0-III State v. Orozco
possession of a firearm (UPFA).
Trial
Motion to dismiss
On the first day of trial, the court heard Orozco’s motion to dismiss the firearm
enhancements and the UPFA charge. Orozco’s motion was based on a lengthy document
in Spanish that had yet to be translated. Orozco claimed the document was the
“Extradition Agreement.” Report of Proceedings (RP) at 348. A Washington State
certified interpreter appeared in court and testified that he had read the document but was
uncomfortable translating it because it contained federal-level legal terminology. The
trial court denied Orozco’s motion.
Voir dire
We limit our discussion of voir dire to that involving the dispositive issue. The
trial court asked whether any prospective juror knew the prosecutor trying the case.
Eleven venire jurors answered yes, including venire juror 25. The court asked the venire
jury if there was anyone who could not be fair and impartial to both the State and the
defendant. Several people raised their hands. Venire juror 25 did not raise her hand.
Throughout voir dire, neither side individually questioned venire juror 25.
3 No. 37386-0-III State v. Orozco
The parties exercised their peremptory challenges. The State challenged six jurors,
including venire juror 25. Orozco challenged five venire jurors. As the court called the
jurors to take their seats in the jury box, there was a pause and the court called counsel to
a sidebar. A discussion ensued but was not placed on the record. The court then
continued calling jurors to take their seats. Once counsel confirmed that the seated jurors
were consistent with their notes, the court excused the venire. The court gave the jurors
their oath, gave a standard introductory instruction, and took a 10 minute recess.
Batson and GR 37 objections
The court reconvened after the recess and asked the parties to address Orozco’s
Batson and GR 37 challenges. Orozco’s counsel began:
Your Honor, for the record, Juror Number 25—and just because it’s not going to be apparent on the record—Juror Number 25 appeared to be an African American female; the only African American female in the entire pool and the State—the State struck the—and she made it up into the first 12, into the jury box and the State struck the only African American female that was on the—in the pool. There were no questions asked of her and she didn’t respond to any of the questions that were asked by either one of us. So it—on it’s [sic] face, it can’t be said that she—that she made any remarks that would give the Court or give State’s Counsel any reason to believe that she wasn’t a fit juror for this case. So we are raising a challenge under Batson and that was codified in GR 37, which I think now is a little stricter on its rules. . . .
4 No. 37386-0-III State v. Orozco
RP at 346. When the defense asked why the State exercised the peremptory, the
following exchange took place:
[THE STATE]: Your Honor, I’ve prosecuted [venire juror 25] in the past for minor crimes—they weren’t anything major; she’s not a felon, but I have prosecuted her in the past and also her name has appeared in a number of police reports as associating with people that I believe have been engaged in criminal activity. THE COURT: Okay. [THE DEFENSE]: And, Your Honor, we’d still object to her removal. Under the Rules—the State didn’t ask her any questions such as whether . . . having been prosecuted by the State would in any way bias her against our Client. There was no dialogue or reason to believe that such interactions would cause a bias to either the State or the Defense. . . . [W]e are stating that is not an acceptable reason to have the peremptory challenge under Rule GR 37. And even having a close relationship with people who’ve been stopped, arrested, or convicted of a crime is not a reason to exercise a peremptory under [ ] GR 37. . . . For the record, we do believe it’s an improper peremptory under GR 37. THE COURT: Actually, based on the State’s response, I accept what they’ve said and that will be denied.
RP at 347.
Verdict and sentencing
The parties presented their evidence, and the case was argued and submitted to the
jury. The jury found Orozco guilty as charged. It also found that Orozco was armed with
a firearm during the commission of counts 1 and 2. The trial court sentenced Orozco to
435 months of imprisonment followed by 24 months of community supervision.
5 No. 37386-0-III State v. Orozco
ANALYSIS
Orozco contends the trial court erred in overruling his Batson and GR 37
objections to the State’s peremptory strike against venire juror 25. We agree.
Criminal defendants are guaranteed the right to a fair and impartial jury.
U.S. CONST. amend. VI; WASH. CONST. art. I, § 22. Furthermore, prospective jurors
themselves have the constitutional right not to be excluded from serving on a jury due to
discrimination. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364, 113 L. Ed. 2d 411
(1991). During jury selection, parties exercise peremptory challenges—where they strike
jurors for no stated reason—to select jurors they believe will be best for their case. State
v. Lahman, __ Wn. App. 2d __, 488 P.3d 881, 883 (2021). These challenges, while
important, are potentially rife with implicit and explicit bias. Id. at 884.
Washington has adopted the Batson three-part framework for determining whether
a peremptory challenge was impermissibly racially motivated. State v. Jefferson, 192
Wn.2d 225, 231, 429 P.3d 467 (2018) (plurality opinion). The Batson framework
provides:
First, the defendant must establish a prima facie case that gives rise to an inference of discriminatory purpose. Second, if a prima facie case is made, the burden shifts to the prosecutor to provide an adequate, race-neutral justification for the strike. Finally, if a race-neutral explanation is provided, the court must weigh all relevant circumstances and decide if the strike was motivated by racial animus.
6 No. 37386-0-III State v. Orozco
City of Seattle v. Erickson, 188 Wn.2d 721, 726-27, 398 P.3d 1124 (2017) (citations and
internal quotation marks omitted). “Though the United States Supreme Court provided
this framework, it left the states to establish rules for the ‘particular procedures to be
followed upon a defendant’s timely objection to a prosecutor’s challenges.’” Id. at 727
(quoting Batson, 476 U.S. at 99).
In recent years, the Washington Supreme Court has established rules to better meet
the goals of ending racial discrimination in jury selection. In Erickson, the court adopted
a bright-line rule for the first step in Batson: “the trial court must recognize a prima facie
case of discriminatory purpose when the sole member of a racially cognizable group has
been struck from the jury.” Id. at 734. In Jefferson, the court modified the third step in
Batson to incorporate GR 37, effective April 24, 2018. 192 Wn.2d at 244-45; see also
State v. Berhe, 193 Wn.2d 647, 664-65, 444 P.3d 1172 (2019) (discussing Supreme
Court’s adoption of GR 37). We review the third step of Batson and the application of
GR 37
de novo. Jefferson, 192 Wn.2d at 250; 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); State v. Listoe, 15 Wn.
App. 2d 308, 321, 475 P.3d 534 (2020).
7 No. 37386-0-III State v. Orozco
Under GR 37, a party or the court may object to the use of a peremptory challenge
based on improper bias. GR 37(c). Upon objection, a discussion must be held outside the
presence of the jury where the party exercising the challenge articulates its reasons for
doing so. GR 37(d).2 The court then evaluates the proffered justification in light of the
totality of the circumstances. GR 37(e). “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.” Id. The court need not find purposeful
discrimination to deny a peremptory challenge. Id. In making this determination, the
court may consider the following, nonexclusive factors:
(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 . . . ; (ii) whether the party exercising the peremptory challenge asked significantly more Questions or different Questions of the potential juror . . . ; (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
2 GR 37 generally requires an objection to be made before the potential juror is excused. It is unclear from the record whether the objection was timely. We note there was a sidebar discussion before the venire was released. The record does not show what was discussed. Regardless, the State does not argue that Orozco’s GR 37 objection was untimely.
8 No. 37386-0-III State v. Orozco
(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). The rule provides seven presumptively invalid reasons that have been
historically associated with improper discrimination in jury selection, including “having
prior contact with law enforcement officers” and “having a close relationship with people
who have been stopped, arrested, or convicted of a crime.” GR 37(h)(i), (iii).
Application of Washington’s Batson test
We first address the State’s argument that the record does not show venire juror 25
was a person of color. It argues that because venire juror 25 did not self-identify as Black
and because neither party nor the court asked her, we cannot know or assume her race. Its
position is essentially that defense counsel’s observations alone cannot support a GR 37
violation. But we recently noted that GR 37 is not about self-identification; it is evaluated
from the viewpoint of an objective observer. See Lahman, 488 P.3d at 885 n.6 (“We
emphasize that GR 37 has to do with appearances, not with whether a juror actually
identifies with a racial or ethnic minority group.”).
If the prosecutor thought venire juror 25 did not appear to be a person of color, the
most reasonable response would have been to say so during the GR 37 discussion.
Further, the trial court could have questioned the objection for that reason. On appeal,
9 No. 37386-0-III State v. Orozco
Orozco supplemented the record with declarations from both of his trial attorneys that
state that the State struck the only person of color from the jury pool. While it would
have been helpful for the trial court to make a record about the apparent racial and ethnic
makeup of the jury panel to better facilitate review, the circumstances here give rise to a
reasonable inference that an objective observer could have perceived venire juror 25 to be
a person of color. We now turn to application of Washington’s three-part Batson test.
First, venire juror 25 was the only Black person in the jury pool.3 Striking the only
member of a racially cognizable group establishes a prima facie case of discriminatory
purpose. Erickson, 188 Wn.2d at 734.
Second, the State failed to provide a race-neutral justification for the strike. The
prosecutor explained he had prosecuted venire juror 25 for “minor crimes . . . and also her
name has appeared in a number of police reports as associating with people that I believe
have been engaged in criminal activity.” RP at 347. Personally prosecuting a prospective
juror for minor crimes is a race-neutral justification that supports a prosecutor’s decision
to remove that person from the jury. But the prosecutor combined this race-neutral
justification with a presumptively invalid one. Recognizing venire juror 25 from multiple
3 At trial, defense counsel remarked that venire juror 25 was the only Black female. In later declarations, both defense counsel state that venire juror 25 was the only Black person in the venire pool.
10 No. 37386-0-III State v. Orozco
police reports indicates she has “prior contact with law enforcement officers” and “a close
relationship with people who have been stopped, arrested, or convicted of a crime.”
GR 37(h)(i), (iii). These reasons are historically associated with improper racial
discrimination in jury selection. Combining a race-neutral justification with a
presumptively invalid one is not “race neutral.” We conclude that the State failed to rebut
the presumption that its peremptory strike was not for a discriminatory purpose.
Third, a de novo review of the record persuades us that an objective observer could
view race as a factor in the use of the prosecutor’s peremptory strike. Venire juror 25
indicated she could be fair and impartial to both sides. The prosecutor’s assumption to
the contrary is problematic here, given that venire juror 25 was the sole member of a
racially cognizable group.
We are not suggesting that a prosecutor is precluded from using a peremptory
challenge on a person of color they have previously prosecuted. A prosecutor may
question all venire persons who know them and ask appropriate questions to search for
improper bias. If some bias is shown—although insufficient to remove for cause—a trial
judge would be in a stronger position to deny a challenge to a peremptory strike.
A trial judge must view the use of a peremptory strike on a member of a racially
cognizable group with “skepticism and considerable caution.” Lahman, 488 P.3d at 886.
11 No. 37386-0-111 State v. Orozco
This is especially so if the strike is used to remove the sole member of a racially
cognizable group. We conclude that the State violated Batson and GR 37 by striking the
only Black person during voir dire and providing a presumptively invalid justification for
doing do. The remedy is a new trial. Listoe, 15 Wn. App. 2d at 329; Lahman, 488 P .3d at
884.
Reversed and remanded. 4
Lawrence-Berrey, J. I CONCUR:
4 In the interest of judicial economy, we sometimes address issues beyond the dispositive issue if their resolution will be helpful to the trial court. Philadelphia II v. Gregoire, 128 Wn.2d 707, 716, 911 P.2d 389 (1996). Orozco claims he received ineffective assistance of counsel because his trial counsel failed to translate the lengthy Spanish document into English so the trial court could properly rule on his motion to dismiss the enhancements and the new count. We decline to reach the ineffective assistance of counsel claim because this will not assist the trial court on remand. We nevertheless address a legal issue associated with that claim-the rule of specialty. Correctly understanding this rule will assist the trial court on remand. The rule of specialty prohibits a requesting country from prosecuting an extradited defendant for crimes other than those for which the rendering country explicitly granted extradition. State v. French, 157 Wn.2d 593, 607 n.6, 141 P.3d 54 (2006); State v. Pang, 132 Wn.2d 852, 902, 940 P.2d 1293 (1997). By promising to honor another country's limitations on prosecutions, we better protect our own citizens in prosecutions abroad. United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir. 1994).
12 No. 37386-0-111
PENNELL, C.J. (concurring)-Ajury convicted Benjamin Orozco of horrific
acts of violence. We reverse his convictions for reasons not related to guilt, but to the
integrity of the trial process. Future litigants would be well advised to think carefully
about the scope of GR 3 7 before exercising peremptory strikes at trial.
The prosecutor's stated reason for striking venire juror 25 was about as compelling
as one can get outside of a challenge for cause. It is not hard to understand why an
attorney would not want a prior adversarial party to sit as a juror. Even when a
controversy is minor, there are often hard feelings that are uncomfortable to disclose.
In addition, apart from potential acrimony, an attorney will often have legitimate reasons
to not want an acquaintance to sit on a jury panel. Jurors need to be focused on the
argument and evidence before them. The existence of a past relationship raises the risk of
unnecessary distractions. An attorney need not conduct any individual questioning to
come to the reasonable conclusion that an acquaintance is not someone who would make
a good juror. This is the classic scenario for a peremptory strike.
But as sympathetic as I am to the prosecutor's stated reason for this strike, I cannot
disagree with the majority's ultimate disposition. Our general rule on jury selection asks
whether "an" objective observer "could" view race or ethnicity as "a" factor in the use of
the peremptory strike. GR 37(e). This is an incredibly broad standard. An objective
observer, especially one who has experienced life as a person of color, easily "could"
conclude race was "a" factor in the use of a peremptory strike against venire juror 25. No. 37386-0-111 State v. Orozco (Concurrence)
When explaining his reasons for the strike, the State's prosecutor mentioned not only the
prior criminal cases against venire juror 25, but also the fact that venire juror 25's name
had come up in some police reports. No citation to authority is necessary to support the
claim that people of color are disproportionately targeted by the criminal justice system. 1
Could race have been a factor in causing venire juror 25 to have run-ins with police that
were documented in police reports? Undoubtedly. Given this fact, race certainly could
have played a role leading up to the prosecutor's strike of venire juror 25 and could have
been viewed as such by an objective observer. The requirements for GR 37 were met.
GR 3 7 is a broad rule that requires attorneys and judges to fundamentally change
their perspectives on peremptory challenges. There may be limited circumstances where
a peremptory strike against a person of color will be upheld. But they are likely rare,
especially when the race or ethnicity of a challenged juror is not otherwise represented
in the jury venire. If a for-cause challenge cannot be sustained, counsel would be well
advised to exercise restraint and accept the juror onto the panel.
Pennell, C .J.
1 Yet such citations can easily be given. See WASH. STATE SUPREME COURT GENDER & JUSTICE COMM'N, 2021 GENDER JUSTICE STUDY (2021 ), https://www.courts.wa.gov/?fa=home.sub&org=gjc&page=studyReport&layout=2&pare nt=study; RESEARCH WORKING GRP., TASK FORCE 2.0, RACE AND WASHINGTON'S CRIMINAL JUSTICE SYSTEM: 2021 REPORT TO THE WASHINGTON SUPREME COURT (2021 ), https://digitalcommons.law.seattleu.edu/korematsu_ center/116.