IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASH INGTON, ; O ..-1
No. 70993-3-1 c_ r~ Respondent, ] DIVISION ONE v.
DANTE PIGGEE, UNPUBLISHED OPINION KC-
tn Appellant. ]1 FILED: January 12, 2015
Spearman, C.J. — Dante Piggee appeals his conviction of felony violation
of a court order, claiming the trial court violated his right to equal protection when
it allowed the prosecutor to use peremptory challenges to remove two of three
African American women from the jury panel. Because Piggee fails to establish
clear error in the trial court's ruling, we affirm.
FACTS
Dante and Destany Piggee married in 2008 and have three children.
Destany obtained a temporary protection order against Piggee in March 2013.
Late in the evening of April 8, 2013, Piggee approached Destany in the parking
lot behind her apartment, asking to speak to her. Destany told him to leave her
alone and he left. A few minutes later, Piggee came to Destany's back door.
While Destany prepared food in her kitchen and began cooking on the barbeque
grill on her back porch, Piggee questioned her about her Facebook page and
argued with her. At one point, one of their children came outside to Piggee and
didn't "want to let her dad go," until he carried her back to the door and let her No. 70993-3-1/2
down. Verbatim Report Proceeding (6/26/13) at 94. Destany repeatedly told
Piggee to leave. Piggee continued to argue and became more aggressive, finally
threatening to shoot her in the face. Irate, Destany told him she was "going to
invoke my restraining order," and called the police. VRP (6/26/13) at 95. While
she spoke on the phone, Piggee left through the back door. Destany heard a
"boom," and went out to her back porch to find her grill lying flat on its back with
the lid open, the food spilled out, and the burners popped out. VRP (6/26/13) at
97.
The State charged Piggee with felony violation of a court order and third
degree malicious mischief.
During jury selection, Piggee, who is African American, used his first
peremptory challenge to strike juror 14, an African American man who worked as
a police detective. The prosecutor used her third peremptory challenge to strike an African American woman, juror 16. The prosecutor accepted the panel after
exercising five peremptory challenges. After Piggee exercised another
peremptory challenge, juror 35, an African American woman, entered the jury
box. When the prosecutor used a peremptory challenge to strike juror 35,
Piggee raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objecting to the prosecutor's dismissal of jurors 16
and 35.
Following a discussion on the record regarding whether Piggee had
established a prima facie showing of purposeful discrimination, the trial court was "a bit troubled by the fact that the State did exercise peremptory challenges No. 70993-3-1/3
against two of the three African American women in the jury box," and asked the
State to provide race-neutral explanations, "for safety's sake and to protect the
record." VRP (6/25/13) 96-97.
The prosecutor recounted the story told by juror 35 that she had been the
protected party to a court order and had chosen not to report a violation when the
restricted party visited their child at daycare "because no one got hurt, no one
was harmed." VRP (6/25/13) at 98. The prosecutor "had reservations" about the
potential for juror 35 "not following the law" because her experience was similar
to the facts of Piggee's case, which involved the presence of children and no
physical harm. VRP (6/25/13) at 98. The prosecutor stated that juror 16 "did not
tend to actually answer the questions" during voir dire and "was not able to
articulate her true role as a juror." VRP (6/25/13) at 99. According to the
prosecutor, juror 16 also suggested that "some spouses take advantage of the
situation" by "using no contact orders as swords rather than a shield." VRP
(6/25/13) at 99. The prosecutor "felt very uncomfortable" with juror 16 "passing
judgment upon Destany Piggee even though the obligation solely lies with Mr.
Piggee to obey the order." VRP (6/25/13) at 100.
Defense counsel argued that other jurors said that people may take
advantage of others with no contact orders and other jurors failed to directly
answer questions and could not articulate the true role of the jury. But defense
counsel was not able to identify particular jurors remaining in the jury box who
would have been subject to the same reasons for a challenge because she
"didn't take notes on every single one of them." VRP (6/25/13) at 101. No. 70993-3-1/4
The trial court acknowledged noting that juror 35 expressed "her feeling
that it wasn't necessary to report a violation of a no contact order when no one
got hurt." VRP (6/25/13) at 103. The court then ruled,
[Bjased on what's been proffered to me and based on my notes and my recollection of what other members of the [venire] who are in the jury box at the present time said or failed to say, I cannot make a finding that the State's explanations for excusing on peremptory challenges Jurors 16 and 35 are pretexual[.]
VRP (6/25/13) at 103.
The jury found Piggee guilty of felony violation of a court order and
acquitted him of malicious mischief. The jury returned a special verdict finding
that the violation of the court order was part of an ongoing pattern of domestic
violence. The trial court imposed a prison-based drug offender sentencing
alternative.
ANALYSIS
Piggee argues that the trial court violated his Fourteenth Amendment right
to equal protection when it sustained the State's peremptory challenges to jurors
16 and 35.
The equal protection clause of the Fourteenth Amendment prevents a
party from challenging a potential juror solely based on race. Batson, 476 U.S. at
85-86. Batson established a three-part test to determine "whether a venire
member was peremptorily challenged pursuant to discriminatory criteria." State v.
Rhone, 168 Wn.2d 645, 651, 229 P.3d 752 (2010). First, the party alleging such
discrimination must establish a prima facie case of purposeful discrimination.
Rhone, 168 Wn.2d at 651. Second, the burden shifts to the other party who jnust No. 70993-3-1/5
provide a race-neutral explanation for challenging the potential juror. Rhone, 168
Wn.2d at 651. Finally, the trial court determines whether the challenging party
has established purposeful discrimination. Rhone, 168 Wn.2d at 651. The
defendant carries the burden of proving the existence of purposeful
discrimination. Batson, 476 U.S. at 93.
"'In reviewing a trial court's ruling on a Batson challenge, [t]he
determination of the trial judge is accorded great deference on appeal, and will
be upheld unless clearly erroneous.'" Rhone, 168 Wn.2d at 651 (alteration in
original) (quoting State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008)). If
there are two permissible views of the evidence, the trial court's choice between
them cannot be clearly erroneous. State v. Luvene, 127 Wn.2d 690, 700, 903
P.2d 960 (1995).
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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASH INGTON, ; O ..-1
No. 70993-3-1 c_ r~ Respondent, ] DIVISION ONE v.
DANTE PIGGEE, UNPUBLISHED OPINION KC-
tn Appellant. ]1 FILED: January 12, 2015
Spearman, C.J. — Dante Piggee appeals his conviction of felony violation
of a court order, claiming the trial court violated his right to equal protection when
it allowed the prosecutor to use peremptory challenges to remove two of three
African American women from the jury panel. Because Piggee fails to establish
clear error in the trial court's ruling, we affirm.
FACTS
Dante and Destany Piggee married in 2008 and have three children.
Destany obtained a temporary protection order against Piggee in March 2013.
Late in the evening of April 8, 2013, Piggee approached Destany in the parking
lot behind her apartment, asking to speak to her. Destany told him to leave her
alone and he left. A few minutes later, Piggee came to Destany's back door.
While Destany prepared food in her kitchen and began cooking on the barbeque
grill on her back porch, Piggee questioned her about her Facebook page and
argued with her. At one point, one of their children came outside to Piggee and
didn't "want to let her dad go," until he carried her back to the door and let her No. 70993-3-1/2
down. Verbatim Report Proceeding (6/26/13) at 94. Destany repeatedly told
Piggee to leave. Piggee continued to argue and became more aggressive, finally
threatening to shoot her in the face. Irate, Destany told him she was "going to
invoke my restraining order," and called the police. VRP (6/26/13) at 95. While
she spoke on the phone, Piggee left through the back door. Destany heard a
"boom," and went out to her back porch to find her grill lying flat on its back with
the lid open, the food spilled out, and the burners popped out. VRP (6/26/13) at
97.
The State charged Piggee with felony violation of a court order and third
degree malicious mischief.
During jury selection, Piggee, who is African American, used his first
peremptory challenge to strike juror 14, an African American man who worked as
a police detective. The prosecutor used her third peremptory challenge to strike an African American woman, juror 16. The prosecutor accepted the panel after
exercising five peremptory challenges. After Piggee exercised another
peremptory challenge, juror 35, an African American woman, entered the jury
box. When the prosecutor used a peremptory challenge to strike juror 35,
Piggee raised a challenge under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), objecting to the prosecutor's dismissal of jurors 16
and 35.
Following a discussion on the record regarding whether Piggee had
established a prima facie showing of purposeful discrimination, the trial court was "a bit troubled by the fact that the State did exercise peremptory challenges No. 70993-3-1/3
against two of the three African American women in the jury box," and asked the
State to provide race-neutral explanations, "for safety's sake and to protect the
record." VRP (6/25/13) 96-97.
The prosecutor recounted the story told by juror 35 that she had been the
protected party to a court order and had chosen not to report a violation when the
restricted party visited their child at daycare "because no one got hurt, no one
was harmed." VRP (6/25/13) at 98. The prosecutor "had reservations" about the
potential for juror 35 "not following the law" because her experience was similar
to the facts of Piggee's case, which involved the presence of children and no
physical harm. VRP (6/25/13) at 98. The prosecutor stated that juror 16 "did not
tend to actually answer the questions" during voir dire and "was not able to
articulate her true role as a juror." VRP (6/25/13) at 99. According to the
prosecutor, juror 16 also suggested that "some spouses take advantage of the
situation" by "using no contact orders as swords rather than a shield." VRP
(6/25/13) at 99. The prosecutor "felt very uncomfortable" with juror 16 "passing
judgment upon Destany Piggee even though the obligation solely lies with Mr.
Piggee to obey the order." VRP (6/25/13) at 100.
Defense counsel argued that other jurors said that people may take
advantage of others with no contact orders and other jurors failed to directly
answer questions and could not articulate the true role of the jury. But defense
counsel was not able to identify particular jurors remaining in the jury box who
would have been subject to the same reasons for a challenge because she
"didn't take notes on every single one of them." VRP (6/25/13) at 101. No. 70993-3-1/4
The trial court acknowledged noting that juror 35 expressed "her feeling
that it wasn't necessary to report a violation of a no contact order when no one
got hurt." VRP (6/25/13) at 103. The court then ruled,
[Bjased on what's been proffered to me and based on my notes and my recollection of what other members of the [venire] who are in the jury box at the present time said or failed to say, I cannot make a finding that the State's explanations for excusing on peremptory challenges Jurors 16 and 35 are pretexual[.]
VRP (6/25/13) at 103.
The jury found Piggee guilty of felony violation of a court order and
acquitted him of malicious mischief. The jury returned a special verdict finding
that the violation of the court order was part of an ongoing pattern of domestic
violence. The trial court imposed a prison-based drug offender sentencing
alternative.
ANALYSIS
Piggee argues that the trial court violated his Fourteenth Amendment right
to equal protection when it sustained the State's peremptory challenges to jurors
16 and 35.
The equal protection clause of the Fourteenth Amendment prevents a
party from challenging a potential juror solely based on race. Batson, 476 U.S. at
85-86. Batson established a three-part test to determine "whether a venire
member was peremptorily challenged pursuant to discriminatory criteria." State v.
Rhone, 168 Wn.2d 645, 651, 229 P.3d 752 (2010). First, the party alleging such
discrimination must establish a prima facie case of purposeful discrimination.
Rhone, 168 Wn.2d at 651. Second, the burden shifts to the other party who jnust No. 70993-3-1/5
provide a race-neutral explanation for challenging the potential juror. Rhone, 168
Wn.2d at 651. Finally, the trial court determines whether the challenging party
has established purposeful discrimination. Rhone, 168 Wn.2d at 651. The
defendant carries the burden of proving the existence of purposeful
discrimination. Batson, 476 U.S. at 93.
"'In reviewing a trial court's ruling on a Batson challenge, [t]he
determination of the trial judge is accorded great deference on appeal, and will
be upheld unless clearly erroneous.'" Rhone, 168 Wn.2d at 651 (alteration in
original) (quoting State v. Hicks, 163 Wn.2d 477, 486, 181 P.3d 831 (2008)). If
there are two permissible views of the evidence, the trial court's choice between
them cannot be clearly erroneous. State v. Luvene, 127 Wn.2d 690, 700, 903
P.2d 960 (1995). If the prosecutor provided a race-neutral explanation and the
trial court ruled on the question of racial motivation, "the preliminary prima facie
case is unnecessary." Luvene, 127 Wn.2d at 699.
Piggee points out that the prosecutor failed to question juror 35 as to
whether she would be willing to follow the law despite her experience. He also
claims the prosecutor failed to sufficiently question juror 35 about the details of
her experience to determine whether her experiences were similar to the present
case. Lack of questioning before dismissing a juror can be evidence of racially
motivated dismissal. Hicks, 163 Wn.2d at 491 (prosecutor's failure to orally
question only remaining African American juror about all his stated reasons for
dismissing her was sufficient evidence to support prima facie inference of
discrimination). No. 70993-3-1/6
But juror 35 talked about her "ex" violating a protection order to see their
son when defense counsel was questioning the venire and counsel asked juror
35 twice whether she could be fair and impartial in this case, given her
experiences. VRP (6/24/13) at 135-37. The prosecutor later returned to juror 35,
asking why she chose not to report the violation of the order, whether she would
have chosen differently if the circumstances had been different, and whether
having a protection order gave her a sense of comfort or assurance. VRP
(6/25/13) at 10-12. When the prosecutor offered her explanation for excusing
juror 35, she stated:
[T]he core of the reason why I did not believe she was a good fit for this case was she said that, in the past, he had violated the no contact order by visiting the children, but she did not call the police because no one got hurt, no one was harmed. And I think here in this case, though we do have a threat to kill, it was not charged in this case because she - Destany Piggee did not articulate any fear of the actual threat. So we don't have any physical harm, we just have the allegation that he came over to her house and he would leave when requested.
VRP (6/25/13) at 98.
Because the prosecutor directly questioned juror 35 about her admitted
failure to report a violation that did not result in any physical harm, which she
identified as the specific source of her concern, we cannot say that her failure to
ask for additional details or repeatedly question the juror's willingness to follow
the law necessarily demonstrates discriminatory intent based on race.
Piggee also points to the fact that the prosecutor did not excuse jurors 15
and 34, who were not African American, although they expressed opinions
similar to juror 35 about the need for cooperation of the people involved as well No. 70993-3-1/7
as the police in order to make a protection order effective. But the defense
exercised a peremptory challenge to excuse juror 15 before the prosecutor
excused juror 35. And juror 34, who the prosecutor accepted on the panel but
the defense excused, did not report having any personal experience with a
protection order, either as a protected or a restrained party. Under these
circumstances, we cannot say that the trial court's acceptance of the prosecutor's
explanation for excusing juror 35 was clearly erroneous.
As to juror 16, Piggee claims that other jurors expressed a similar view
that some people take advantage of protection orders to influence decisions in
dissolution proceedings or proceedings involving children. In particular, Piggee
claims that the prosecutor's acceptance of jurors 37 and 30 raises a strong
inference that her explanation for excusing juror 16 was a pretext for racial
discrimination.1
During voir dire, Juror 37 said his former wife obtained a protection order
against him when they were going through a divorce and then called him on the
phone. He said he could be fair and impartial unless he "found out that
[Piggee's] wife or ex-wife or whatever she is called him first." VRP (6/24/13) at
144-45.
Juror 30 revealed that his sister had been the respondent to a protection
order obtained by her husband's ex-wife, but he believed that she had been
treated fairly in the process and that he could be impartial despite his knowledge
of her experiences. Juror 30 also admitted his difficulty in presuming the
1We note that jurors 30 and 37 did not enter the jury box until after the State excused juror 16. Although the prosecutor accepted the panel with juror 30, Piggee used his last peremptory challenge to excuse juror 30. Juror 37 ultimately served on the jury.
7 No. 70993-3-1/8
innocence of a person who had two prior convictions for the same crime without
some evidence of a change in his life.2
Juror 16 shared that her aunt and the mother of a close friend had both
been physically abused by their ex-husbands. When defense counsel asked
whether her knowledge of those situations would make it difficult for her to be fair
and impartial, juror 16 stated she had "heard of like other situations in which the
wife or the other spouse will take advantage of the system." VRP (6/24/13) at
147. Until defense counsel asked a question about her job, Juror 16 continued to
elaborate on a "very unfair" example of a friend's brother's divorce, which
involved "the wife" was "cheating," the husband giving "all the money to her
because of the court," and the husband taking primary responsibility for the
children. VRP (6/24/13) at 147-48. The prosecutor asked juror 16 generally
about whether and why she believes domestic violence occurs and whether help
is available. Juror 16 spoke about status in society, differing qualities of schools,
limitations on access to resources, and people judging one another "by race" or
"by your sexuality." VRP (6/24/13) at 110-11.
In response to Piggee's Batson challenge, the prosecutor admitted that
her explanation for her peremptory challenge to juror 16 had "a little bit more of a
nuance." VRP (6/25/13) at 99. The prosecutor observed that juror 16 "had a lot
of statements" but "did not tend to actually answer the questions," such that the
prosecutor was concerned as to whether "she could actually be a good juror,"
2After a lengthy discussion, the trial court denied defense counsel's challenge to juror30 for cause.
8 No. 70993-3-1/9
"based on her life experience or the fact that she was not able to articulate her
true role as a juror." VRP (6/25/13) at 99.
Piggee does not argue that the prosecutor's description of juror 16's
statements was inaccurate or that either juror 37 or juror 30 made lengthy
tangential statements or failed to directly answer questions. Although juror 30
notably struggled with his ability to presume the innocence of a person twice
convicted of the same crime, the record does not indicate that he failed to
describe his views clearly. Given the support in the record as a whole for the
prosecutor's explanation of the peremptory challenge to juror 16, we cannot say
that the trial court's decision regarding purposeful discrimination was clearly
erroneous. See, e.g., Luvene, 127 Wn.2d at 700-01 (where four other jurors in
venire had relatives with criminal histories or were ambivalent about the death
penalty, but only challenged juror had both traits, trial court's decision that
prosecutor's motivation was race neutral was not clearly erroneous).
In his statement of additional grounds for review Piggee claims he was
denied his right to a fair trial when juror 9 was allowed to remain on the jury to
consider the special verdict on the aggravating factor. A review of the record
reveals that after the general verdict, but before the aggravating factor was
submitted to the jury, the court informed the parties, outside the presence of the
jury, that juror 9 had expressed concerns to the bailiff regarding Piggee's reaction
to the verdict. The court stated that Juror 9 reported to the bailiff that Piggee
"looked at her, and it made her feel uncomfortable, it made her feel like there was
some kind of accusatory intent[.]" VRP (7/2/13) at 19. After the parties agreed to No. 70993-3-1/10
have juror 9 come into the courtroom for voir dire and the court consulted the
bailiff, the court stated on the record, "She doesn't want to come out if Mr. Piggee
is in the courtroom, and obviously he's going to be in the courtroom. Now what?"
VRP (7/2/13) at 24. After a lengthy discussion on the record and over Piggee's
objection, the trial court brought the jury into the courtroom and questioned each
juror as to whether he or she had "[a]ny concerns about your ability to be fair and
impartial and ... presume the nonexistence of the aggravating factor?" VRP
(7/2/13) at 35-36. Each juror answered, "No." VRP (7/2/13) at 35-36.
Piggee contends that the trial court improperly denied him an opportunity
to question juror 9 about her reported fear and her subsequent contradictory
statement on the record. He also cites the following circumstances to support his
claim that juror 9 was biased against him: (1) her "fond memory" of the brother of
a witness; (2) her "attempt to get excused for "medical" reasons;" and (3) her
"obvious ability & willingness to [malign] & persecute" him. Statement of
Additional Ground at 3.
Decisions of whether a juror is impartial or whether a mistrial is required
are matters of discretion for the trial court that will not be overturned on appeal
absent abuse of that discretion. State v. Colbert, 17 Wn. App. 658, 664-65, 564
P.2d 1182 (1977). Although Piggee clearly disagrees with the trial court's
assessment of juror 9's ability to be fair and impartial, nothing in the record
demonstrates any abuse of discretion. We therefore cannot further consider this
claim on direct appeal. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251
(1995).
10 No. 70993-3-1/11
Affirmed.
S|p-frf/v^f,vY WE CONCUR: