State of Washington v. Darnai Leon Vaile
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Opinion
FILED MAY 11, 2023 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STATE OF WASHINGTON, ) ) No. 37943-4-III Respondent, ) ) v. ) ) DARNAI LEON VAILE, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — When sheriff deputies responded to a report of an unwanted kissing
at a Spokane Valley bar, they found a large group of people in the parking lot. As they
interviewed witnesses, Darnai Vaile approached them. After indicating that he had a
knife, Vaile and the deputies struggled, with the deputies using brute force to bring Vaile
to the ground and handcuff him.
At trial, several witnesses testified that Vaile was not being aggressive or
confrontational with the deputies. Vaile presented a 10-second cell phone video taken by
an onlooker that recorded him on the ground struggling with deputies who were trying to
handcuff him. The recording includes audio statements made by the person recording
and by Vaile, who can be heard exclaiming that he is “not doing nothing. I’m putting my
arm right here.” Ex. D-103. The trial court determined that the statements were No. 37943-4-III State v. Vaile
inadmissible hearsay and while allowing Vaile to play the video, excluded the audio
statements from being played to the jury. Despite this ruling, the court allowed Vaile to
testify about the statements he made during his arrest that were captured in the audio
recording.
The jury found Vaile not guilty of two counts of third degree assault, but guilty of
resisting arrest.
On appeal, Vaile raises three assignments of error; two of them related to the trial
court’s evidentiary ruling excluding the audio statements made in the video. First, he
argues that the recorded statements qualified as exceptions to the hearsay rule as either
excited utterance or then-existing condition and the trial court abused its discretion by
excluding the statements. Alternatively, Vaile contends that the exclusion violated his
constitutional right to present a defense. We agree in part with the trial court’s
evidentiary rulings, but in balancing the lack of prejudice to the State against the
compelling nature of Vaile’s recorded statement, we hold that excluding the evidence
violated Vaile’s constitutional right to present a defense. We therefore reverse Vaile’s
conviction for resisting arrest and remand for a new trial.1
1 Vaile’s third assignment of error challenged a scrivener’s error in the judgment and sentence. Since we reverse his conviction and remand, we do not address this third issue.
2 No. 37943-4-III State v. Vaile
BACKGROUND
We begin by acknowledging that this is an emotionally and racially charged case.
As defense counsel noted in her opening statement, it is a case about perceptions. The
police have the perception of a very large (6’10” 300 pound) suspect coming toward them
yelling with fists clenched who is refusing to comply with commands to stop and sit.
When they indicated they were going to pat him for weapons, Vaile indicated that he had
a knife and then reached into his pocket and refused to comply with commands to remove
his hands or drop the knife. After tossing the knife to the ground, Vaile continued to
struggle with police. It took several deputies to get Vaile on the ground. An officer
admittedly struck him with a baton and kneeled on him in order to handcuff him.
Darnai Vaile and several of his witnesses have a different perspective. They
testified that Vaile tried to cooperate by walking toward the police with his arms up and
his hands open, volunteering that he had a knife and he was trying to give it to the
officers. Vaile and his witnesses believe that police overreacted in taking Vaile to the
ground. They testified that the police were “beating” Vaile despite Vaile’s attempts to
comply. Vaile testified that once on the ground, he attempted to cooperate but could not
get his hands out from underneath him because the police were kneeling on him.
Despite the racial overtones of the incident, Vaile raises only two challenges to his
conviction, both of them pertaining to the exclusion of recorded statements. He did not
raise any issues in his assignments of error or briefing claiming his arrest or conviction
3 No. 37943-4-III State v. Vaile
were infected by racism. Nevertheless, the separate opinion sua sponte raises and then
finds as a factual matter that most of those involved in this case are guilty of intentional
racism or even worse, apathy. We disagree with this path for two reasons.
First, our justice system is based on the principle of party presentation, in which
the courts, as neutral arbiters, generally decide only the issues raised by the parties.
United States v. Sineneng-Smith, __ U.S. __, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d 866
(2020). As Justice Ginsburg noted in one of her last majority opinions, “[courts] do not,
or should not, sally forth each day looking for wrongs to right,” but rather should
“normally decide only questions presented by the parties.” Id. at 1579. While this
principle is not ironclad and should yield under extraordinary circumstances, in this case
we are reversing on grounds raised by the appellant and do not need to take the
extraordinary step of deciding the case on grounds not raised or briefed by the parties.
Second, when appellate courts begin deciding facts and issues sua sponte, it raises
concerns of partiality and lack of neutrality. “What makes a system adversarial rather
than inquisitorial is . . . the presence of a judge who does not (as an inquisitor does)
conduct the factual and legal investigation himself, but instead decides on the basis of
facts and arguments pro and con adduced by the parties.” McNeil v. Wisconsin, 501 U.S.
171, 181 n.2, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991).
Systemic racism exists and we continue to work toward its eradication. And while
history, statistics, current events, and human nature must inform our decisions, they
4 No. 37943-4-III State v. Vaile
cannot be used as the basis for a decision when racism has not been raised, briefed, or
found. This is not to say that it did not exist in this case. But the separate opinion’s
conclusion of racism relies on information outside the record, facts that have not been
found, and issues that have not been raised. We do not consider the Supreme Court’s
directive to require courts to raise issues sua sponte or decide cases on issues that the
parties have not briefed. Since we are reversing Vaile’s conviction, there is no need for
additional briefing on matters not raised by the parties.
The case began at the Peking Palace Restaurant where sisters Patricia Murray and
Julia Napier were socializing, playing pool, and singing karaoke. During the evening
they met Darnai Vaile. At one point, Vaile kissed Murray without her consent, and she
called the police.
When Deputies Michael Vicini and Clay Hilton arrived, there was a large group of
people in the parking lot, including Murray and her sister Napier. Deputy Vicini made
contact with Murray who began to explain what happened. After Murray described the
person who kissed her, Vaile walked around a corner and began approaching Deputy
Vicini and Murray. Deputy Vicini testified that Vaile matched the description of the
suspect provided by Murray.2
Free access — add to your briefcase to read the full text and ask questions with AI
FILED MAY 11, 2023 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. 37943-4-III Respondent, ) ) v. ) ) DARNAI LEON VAILE, ) UNPUBLISHED OPINION ) Appellant. )
STAAB, J. — When sheriff deputies responded to a report of an unwanted kissing
at a Spokane Valley bar, they found a large group of people in the parking lot. As they
interviewed witnesses, Darnai Vaile approached them. After indicating that he had a
knife, Vaile and the deputies struggled, with the deputies using brute force to bring Vaile
to the ground and handcuff him.
At trial, several witnesses testified that Vaile was not being aggressive or
confrontational with the deputies. Vaile presented a 10-second cell phone video taken by
an onlooker that recorded him on the ground struggling with deputies who were trying to
handcuff him. The recording includes audio statements made by the person recording
and by Vaile, who can be heard exclaiming that he is “not doing nothing. I’m putting my
arm right here.” Ex. D-103. The trial court determined that the statements were No. 37943-4-III State v. Vaile
inadmissible hearsay and while allowing Vaile to play the video, excluded the audio
statements from being played to the jury. Despite this ruling, the court allowed Vaile to
testify about the statements he made during his arrest that were captured in the audio
recording.
The jury found Vaile not guilty of two counts of third degree assault, but guilty of
resisting arrest.
On appeal, Vaile raises three assignments of error; two of them related to the trial
court’s evidentiary ruling excluding the audio statements made in the video. First, he
argues that the recorded statements qualified as exceptions to the hearsay rule as either
excited utterance or then-existing condition and the trial court abused its discretion by
excluding the statements. Alternatively, Vaile contends that the exclusion violated his
constitutional right to present a defense. We agree in part with the trial court’s
evidentiary rulings, but in balancing the lack of prejudice to the State against the
compelling nature of Vaile’s recorded statement, we hold that excluding the evidence
violated Vaile’s constitutional right to present a defense. We therefore reverse Vaile’s
conviction for resisting arrest and remand for a new trial.1
1 Vaile’s third assignment of error challenged a scrivener’s error in the judgment and sentence. Since we reverse his conviction and remand, we do not address this third issue.
2 No. 37943-4-III State v. Vaile
BACKGROUND
We begin by acknowledging that this is an emotionally and racially charged case.
As defense counsel noted in her opening statement, it is a case about perceptions. The
police have the perception of a very large (6’10” 300 pound) suspect coming toward them
yelling with fists clenched who is refusing to comply with commands to stop and sit.
When they indicated they were going to pat him for weapons, Vaile indicated that he had
a knife and then reached into his pocket and refused to comply with commands to remove
his hands or drop the knife. After tossing the knife to the ground, Vaile continued to
struggle with police. It took several deputies to get Vaile on the ground. An officer
admittedly struck him with a baton and kneeled on him in order to handcuff him.
Darnai Vaile and several of his witnesses have a different perspective. They
testified that Vaile tried to cooperate by walking toward the police with his arms up and
his hands open, volunteering that he had a knife and he was trying to give it to the
officers. Vaile and his witnesses believe that police overreacted in taking Vaile to the
ground. They testified that the police were “beating” Vaile despite Vaile’s attempts to
comply. Vaile testified that once on the ground, he attempted to cooperate but could not
get his hands out from underneath him because the police were kneeling on him.
Despite the racial overtones of the incident, Vaile raises only two challenges to his
conviction, both of them pertaining to the exclusion of recorded statements. He did not
raise any issues in his assignments of error or briefing claiming his arrest or conviction
3 No. 37943-4-III State v. Vaile
were infected by racism. Nevertheless, the separate opinion sua sponte raises and then
finds as a factual matter that most of those involved in this case are guilty of intentional
racism or even worse, apathy. We disagree with this path for two reasons.
First, our justice system is based on the principle of party presentation, in which
the courts, as neutral arbiters, generally decide only the issues raised by the parties.
United States v. Sineneng-Smith, __ U.S. __, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d 866
(2020). As Justice Ginsburg noted in one of her last majority opinions, “[courts] do not,
or should not, sally forth each day looking for wrongs to right,” but rather should
“normally decide only questions presented by the parties.” Id. at 1579. While this
principle is not ironclad and should yield under extraordinary circumstances, in this case
we are reversing on grounds raised by the appellant and do not need to take the
extraordinary step of deciding the case on grounds not raised or briefed by the parties.
Second, when appellate courts begin deciding facts and issues sua sponte, it raises
concerns of partiality and lack of neutrality. “What makes a system adversarial rather
than inquisitorial is . . . the presence of a judge who does not (as an inquisitor does)
conduct the factual and legal investigation himself, but instead decides on the basis of
facts and arguments pro and con adduced by the parties.” McNeil v. Wisconsin, 501 U.S.
171, 181 n.2, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991).
Systemic racism exists and we continue to work toward its eradication. And while
history, statistics, current events, and human nature must inform our decisions, they
4 No. 37943-4-III State v. Vaile
cannot be used as the basis for a decision when racism has not been raised, briefed, or
found. This is not to say that it did not exist in this case. But the separate opinion’s
conclusion of racism relies on information outside the record, facts that have not been
found, and issues that have not been raised. We do not consider the Supreme Court’s
directive to require courts to raise issues sua sponte or decide cases on issues that the
parties have not briefed. Since we are reversing Vaile’s conviction, there is no need for
additional briefing on matters not raised by the parties.
The case began at the Peking Palace Restaurant where sisters Patricia Murray and
Julia Napier were socializing, playing pool, and singing karaoke. During the evening
they met Darnai Vaile. At one point, Vaile kissed Murray without her consent, and she
called the police.
When Deputies Michael Vicini and Clay Hilton arrived, there was a large group of
people in the parking lot, including Murray and her sister Napier. Deputy Vicini made
contact with Murray who began to explain what happened. After Murray described the
person who kissed her, Vaile walked around a corner and began approaching Deputy
Vicini and Murray. Deputy Vicini testified that Vaile matched the description of the
suspect provided by Murray.2
2 Murray’s description to Deputy Vicini was not included in the record, but Vaile was described by Deputy Vicini as a large man, six feet, ten inches tall, weighing over 300 pounds. It was also acknowledged during voir dire that Vaile is African-American.
5 No. 37943-4-III State v. Vaile
Deputies Vicini and Hilton both testified that Vaile approached Deputy Vicini and
Murray in an aggressive manner, yelling with fists clenched. Vaile pushed passed
someone who tried to stop him, and continued toward the deputy, yelling that he wanted
to tell his side of the story. As Vaile approached, Deputy Vicini told Vaile to stop and sit
on the curb. Vaile refused these commands and circled around behind Deputy Vicini.
Based on Vaile’s agitated demeanor and their concern for safety, Deputy Hilton
told Vaile that he was going to pat Vaile down for weapons. Vaile volunteered that he
had a knife and put his hand in his pocket. Deputy Vicini grabbed Vaile’s wrist and told
Vaile to leave the knife in his pocket. Vaile did not comply, which caused Deputy Vicini
concern for his safety.
Deputies Vicini and Hilton continued to struggle with Vaile. At one point, while
Deputy Vicini had two hands on Vaile’s wrist, Deputy Hilton testified that Vaile was able
to lift Deputy Vicini off the ground and pull out the knife. Vaile dropped the knife on the
ground. At this point, Deputy Criswell3 joined the struggle and Vaile was struck with a
baton. Deputy Vicini testified that the strike had no effect on Vaile who continued to
struggle with the three officers. One or more officers conducted a leg sweep on Vaile
and took him to the ground.
3 At the time of Vaile’s arrest Criswell was a deputy, but has since been promoted to Sergeant.
6 No. 37943-4-III State v. Vaile
As they were struggling with Vaile, a crowd of people approached and began
yelling at the officers, refusing to comply with commands to back up. The officers were
able to get Vaile on his stomach, but he refused commands to remove his hands from
underneath his body. With possibly three or four officers on top of him, and Deputy
Hilton’s knee on his head, deputies were able to handcuff Vaile.
Deputy Vicini acknowledged that Vaile was not making threats to the officers, and
was not threatening the officers with the knife. Other than resisting his arrest, Vaile was
not fighting with the officers. Deputy Hilton acknowledged that Vaile was not making
verbal threats toward the officers or attempting to physically assault them.
As Deputy Vicini was handcuffing Vaile, Deputy Hilton turned toward the crowd
who had gathered nearby. Deputy Hilton testified that Murray and Napier were within
arm’s reach of Deputy Hilton and were yelling and screaming at the officers. Deputy
Hilton testified that he told Murray and particularly Napier to get back several times.
When Napier refused to step back, Deputy Hilton told her she was under arrest for
obstructing. As he reached for his handcuffs, Napier spun around and hit Deputy Hilton
in the face, leaving a red mark under his eye. Deputy Hilton put Napier in a “hair hold”
and took her to the ground and placed her in handcuffs.4
4 Napier was tried with Vicini and the jury found her guilty of third degree assault. Her conviction was affirmed on appeal. See State v. Napier, No. 37892-6-III (Wash. Ct. App. July 21, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf /378926_unp.pdf, review denied, 200 Wn.2d 1015, 519 P.3d 592 (2022).
7 No. 37943-4-III State v. Vaile
In addition to their own testimony, defendants Vaile and Napier called three
witnesses who were also at the restaurant that night.5 These witnesses testified that as
Vaile approached the officers in the parking lot, he either had his hands at his side or was
walking with his hands up and palms open. While he walked quickly, he was not acting
aggressively. Several witnesses remembered deputies telling Vaile to stop, but testified
that within seconds of reaching the deputies, Vaile was on the ground. At least three
witnesses testified that as they were taking Vaile to the ground, deputies began to strike
or “beat” Vaile with their batons. The witnesses were clear that Vaile was not fighting,
pushing or attacking the officers.
Vaile testified that he went outside of the restaurant because he knew police were
arriving. When he saw the officers talking to Murray, he began to approach with his
hands open. Vaile said that he was nervous about getting in trouble and put his hands in
his pockets only to realize that he had a knife. Vaile indicated that the officer had his
hand on his weapon and Vaile was scared of getting shot, so he jumped back and said, “I
have a knife.” Rep. of Proc. (RP) at 582. Vaile testified that he tossed the knife on the
ground and walked over to the patrol car at the deputy’s request.
As he was talking to the deputy, another officer came around the car and hit Vaile
in the sternum. At that point, Vaile remembered being hit in the sternum, the side, and
the back of the legs by different officers before falling face first to the ground. Vaile
5 Napier’s sister, Murray, was called as a witness by the State. 8 No. 37943-4-III State v. Vaile
indicated that he was in pain but trying to adjust himself so that the officers could put his
wrists together:
[VAILE]: I was trying to adjust myself, so they can put my wrists together because the way they had me right now, I couldn’t put my wrists together, and he had one arm way up here because— [VAILE]: Can I stand real quick? THE COURT: You may. [VAILE]: He had one arm way up here and the other here, and he was trying to put my hands together like this, the wrists together like this, and I couldn’t do it. [COUNSEL]: Were you trying to say anything? Did you tell them anything? A: Yes. I told them I can’t put my wrists together. Q: And what happened next? Did they do anything to help you? A: No. Q: How did you eventually get to a place where your hands could be put together? A: I started forcing my arm down, and I said put my arm here, and he still had one of my arms up here, and he said stop resisting and then— Q: Let’s stop there. And thank you, you can go ahead and have a seat. So you say you had to push—he pushed your arm down? A: Yes. Q: All right. And were you deliberately trying to resist an arrest? A: No. Q: And so what was the intent that you had? A: Just trying to help them handcuff me. Q: And did you—eventually you were handcuffed, right? A: Yes. Q: And so after that happened and you were handcuffed, what happened next? A: They got me up eventually and then brought me to the police car.
RP at 587-88 (emphasis added).
9 No. 37943-4-III State v. Vaile
While Vaile was being arrested, Murray took a 10 second video of Vaile on the
ground with police on top of him. As she was recording, Murray could be heard saying,
“You stop right now you do not need to restrain him like that! He’s okay! He’s a gentle,
kind person.” Ex. D-103. At the same time, and somewhat overlapping Murray’s
comments, Vaile can be heard saying, “I’m not doing nothing. I’m putting my arm right
here.” Id.
The State moved to exclude the recorded statements as hearsay. Defense counsel
argued that the statements fell within the hearsay exception as excited utterance and then-
existing condition. After considerable discussion, the court agreed with the State and
allowed defense counsel to play video but excluded the audio. In doing so, the court
noted in passing that Vaile would be allowed to testify about his statement. At the close
of the State’s case, the court dismissed the weapon charge for insufficient evidence. The
jury found Vaile not guilty on both counts of third degree assault, but found him guilty of
two counts of resisting arrest. At sentencing, the trial court agreed with the parties and
merged the two counts of resisting arrest.
ANALYSIS
Vaile argues that the trial court abused its discretion by excluding the recorded
statements by himself and Murray. He also contends that the exclusion violated his
constitutional right to present a defense. Under the evidence rules, Vaile contends that
10 No. 37943-4-III State v. Vaile
the recorded statements qualified as excited utterance or then-existing condition. The
State responds that the recorded statements were inadmissible hearsay statements.
When presented with an argument that an evidentiary ruling violated a defendant’s
right to present a defense, we first analyze the trial court’s decision for abuse of
discretion under the rules of evidence. State v. Jennings, 199 Wn.2d 53, 58, 502 P.3d
1255 (2022). If abuse of discretion is found, and the error is not harmless, we reverse on
the evidentiary ruling and avoid the constitutional question. Id. at 59. But if no abuse of
discretion is found, we consider the constitutional question de novo. Id. at 58-59.
1. EVIDENCE RULES
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” ER
801(c). Hearsay evidence is generally inadmissible. ER 802. The prohibition on hearsay
“prevent[s] the jury from hearing statements without giving the opposing party a chance
to challenge the declarants’ assertions.” Brundridge v. Fluor Fed. Servs., Inc., 164
Wn.2d 432, 451-52, 191 P.3d 879 (2008). Hearsay statements include recorded audio
statements. A recorded hearsay statement is admissible only if subject to a valid
exception. See Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 195-96,
668 P.2d 571 (1983); State v. Sanchez, 42 Wn. App. 225, 230-31, 711 P.2d 1029 (1985).
There were two statements included in Murray’s 10-second recording: Murray’s
statement and Vaile’s statement. We apply the evidence rules to each statement.
11 No. 37943-4-III State v. Vaile
On appeal Vaile acknowledges that his recorded statement was hearsay, but argues that
the statement qualifies as either an excited utterance under ER 803(a)(2) or then-existing
condition under ER 803(a)(3). The separate opinion contends that the statement does not
amount to hearsay and decides the issue on that basis. This argument was not raised by
Vaile and we disagree with the evidentiary analysis in the separate opinion. 6
The excited utterance exception permits the admission of a “statement relating to a
startling event or condition made while the declarant was under the stress of excitement
caused by the event or condition.” ER 803(a)(2). Three closely connected requirements
must be satisfied under the exception: (1) a startling event or condition occurred, (2) the
statement was made while the declarant was under the stress or excitement caused by the
startling event or condition, and (3) the statement must relate to the startling event or
condition. State v. Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001).
At the time Vaile made his statement, he was on the ground with three or four
police deputies holding him down, one with his knee on Vaile’s head, trying to handcuff
Vaile. The trial court gave no explanation as to why Vaile’s statement did not qualify as
an excited utterance. On appeal, the State suggests that the startling event, if one existed,
6 The separate opinion contends that Vaile alternatively argues that his statement did not constitute hearsay. Concurrence/Dissent at 4. This is not accurate. Vaile never claims within his brief that his recorded statement does not qualify as hearsay and never cites ER 801(c) in his brief. Instead, Vaile raised two alternative theories for admission of his statement, excited utterance (Br. of Appellant at 15) and then-existing state of mind (Br. of Appellant at 19).
12 No. 37943-4-III State v. Vaile
was limited to being taken to the ground, and Vaile failed to demonstrate how long after
being taken to the ground that he made the statement heard on the recording. We
disagree with the State’s attempt to artificially narrow the startling event.
Vaile’s statement was clearly an excited utterance. At the time Vaile made his
statement, he was under the stress of being hit with batons, taken to the ground by three
or four deputies and handcuffed. His statement was related to the event as he was
expressing his attempts to comply with the officer’s demands to move his hands.7
The separate opinion asserts that Vaile’s comment does not qualify as hearsay
because it was not being introduced to prove the truth of the matter asserted. Instead, the
separate opinion maintains that the recorded statement communicated Vaile’s intent.
Concurrence/Dissent at 6. We agree that Vaile’s statement communicated his intent. It
still qualifies as hearsay however. The only reason Vaile wanted to introduce his
recorded statement was to prove that it was true; that he did not intend to resist arrest and
was moving his arm so deputies could hand-cuff him.
Usually, when the State introduces a criminal defendant’s out-of-court statement,
it is admitted as an admission of a party-opponent under ER 801(d)(2) and is not
considered hearsay. However, this rule does not apply when a party attempts to introduce
7 Because we conclude that the statement qualified as an excited utterance, we do not need to address the alternative exception of a then-existing condition under ER 803(a)(3).
13 No. 37943-4-III State v. Vaile
their own statement through another witness unless a hearsay exception applies. State v.
Finch, 137 Wn.2d 792, 975 P.2d 967 (1999) (defendant not allowed to call witness to
recount exculpatory out-of-court statement by defendant). On rare occasions, a criminal
defendant may be able to introduce his own out-of-court statement even when an
exception does not apply, if the statement was introduced as circumstantial evidence of
something other than the facts described in the statement, such as the defendant’s state of
mind. 5D KARL B. TEGLAND & ELIZABETH A. TURNER, WASHINGTON PRACTICE:
COURTROOM HANDBOOK ON WASHINGTON EVIDENCE ER 803, at 431 (2022). In these
circumstances, the statement is not hearsay because it is not introduced to prove the truth
of the matter asserted.
The separate opinion suggests that when intent is an element of a crime, the
defendant’s out-of-court statement made contemporaneously at the time of the alleged
crime must be admitted. Concurrence/Dissent at 6. The cases cited by the separate
opinion do not support its conclusion. In State v. Garcia, 179 Wn.2d 828, 318 P.3d 266
(2014), the defendant was charged with kidnapping after entering a home and remaining
with the victim for several hours while explaining to her that people with guns were
chasing him and he needed a ride. The court held that the defendant’s statements were
not being introduced to prove the truth of the matters asserted, i.e., that people with guns
were chasing him, but rather to show what the defendant believed and how his belief
affected his intent when entering the home. Id. at 845.
14 No. 37943-4-III State v. Vaile
The two other cases cited by the separate opinion do not mention, much less
analyze and decide issues pertaining to hearsay and ER 801. See State v. Calvin, 176
Wn. App. 1, 316 P.3d 496 (2013); State v. Ware, 111 Wn. App. 738, 46 P.3d 280 (2002).
The separate opinion does not explain how Vaile’s recorded statement is relevant
if it is not true, and Vaile himself makes no attempt to argue on appeal that his statement
was not being introduced to prove something other than the truth of the matter asserted.
While his statement constitutes hearsay, it also falls within at least one of the hearsay
exceptions.
We turn next to Murray’s recorded statements. Vaile contends that Murray’s
statements also qualified as either an excited utterance under ER 803(a)(2) or then-
existing mental, emotional, or physical condition. under ER 803(a)(3), which provides
that:
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
The trial court did not find that Murray’s statements qualified as a hearsay
exception for several reasons. First, the court noted that Murray was making the
recording and knew that her statements were being recorded. The court surmised that her
statements were more reflective as opposed to spontaneous statements made while under
15 No. 37943-4-III State v. Vaile
the stress of the event. In addition, as the State pointed out, Murray’s statements did not
relate to the event or describe the event because she was making character comments
without a basis.
There is no evidence that Murray knew Vaile before this event, and yet she is
describing him in the video as kind and gentle. Like many hearsay exceptions, the
excited utterance rule is premised on the theory that statements falling within its ambit
are inherently trustworthy. The declarant’s spontaneous response to an external shock
prevents him or her from reflecting on and controlling any resulting utterances. State v.
Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992). The startling circumstances
overcome the speaker’s ability to consciously fabricate. State v. Dixon, 37 Wn. App.
867, 872, 684 P.2d 725 (1984). In light of the circumstances, the trial court did not abuse
its discretion in finding that Murray’s statements did not qualify as excited utterance or
then-existing condition. Murray’s statements did not relate to the event or describe her
own state of mind or condition, nor did Vaile lay a foundation that she knew him well
enough to provide an opinion on his character of gentleness.
The trial court indicated that even if it wanted to admit Vaile’s statement, neither
party presented the court with a redacted version of the recording. In other words, the
trial court’s only options were to admit all of the statements or none of the statements.
The trial court decided that the best way to handle this was to play the video without the
16 No. 37943-4-III State v. Vaile
audio and allow Vaile to testify about his statement. Under an abuse of discretion
standard, the trial court’s decision was a reasonable way to handle the issue.
2. CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE
Ordinarily, we would end our analysis upon finding no abuse of discretion. But
Vaile argues on appeal that the exclusion of his recorded statement violated his
constitutional right to present a defense.8 The State responds that Vaile was not denied
the ability to put on a defense because the statement did not constitute Vaile’s entire
defense, and the court allowed Vaile to testify about his statement while he was on the
stand.
When a defendant challenges a trial court’s exclusion of evidence as a violation of
the evidence rules and a violation of the constitutional right to present a defense, there are
three possible scenarios:
If the trial court abused its discretion in making an evidentiary ruling, and the ruling was prejudicial to the defendant, we would avoid the constitutional issue altogether. On the other hand, if the abuse of discretion constituted harmless error, we would address the constitutional standard. Lastly, if the trial court did not abuse its discretion, then we would review the constitutional issue.
8 Although Vaile did not raise this argument below, the State does not suggest that the issue is waived. Regardless, we exercise our discretion to consider the issue. RAP 2.5(a).
17 No. 37943-4-III State v. Vaile
Jennings, 199 Wn.2d at 59 (quoting State v. Jennings, 14 Wn. App. 2d 779, 800-01, 474
P.3d 599 (2020) (Melnick, J., concurring) (footnote omitted in original). In this case, we
are presented with the third scenario.
“A criminal defendant’s right to present a defense is guaranteed by both the
federal and state constitutions.” Id. at 63 (citing U.S. CONST. amend. VI; WASH. CONST.
art. I, § 22). While defendants do not have a right to introduce evidence that is irrelevant,
repetitive, or poses an undue risk of harassment, prejudice, or confusion, when the
defendant’s proposed evidence is relevant, the court must consider the defendant’s right
to present a defense in balancing the relevance against any prejudice to the State. Id. In
other words, “‘the State’s interest in excluding evidence must be balanced against the
defendant’s need for the information sought to be admitted.’” Id. at 65 (quoting State v.
Arndt, 194 Wn.2d 784, 812, 453 P.3d 696 (2019)).
The question presented here is whether the trial court’s exclusion of Vaile’s
recorded statement, while not an abuse of discretion, nonetheless violated his right to
present a defense. The State contends that excluding the recorded statement did not
violate Vaile’s right to present a defense because the statement was hearsay, cumulative,
and did not constitute Vaile’s entire defense.
In analyzing this issue, we consider the Supreme Court’s application of this right
under various circumstances. In State v. Jones, the Supreme Court reversed a conviction,
finding that the trial court’s exclusion of evidence regarding the alleged victim’s conduct
18 No. 37943-4-III State v. Vaile
on the night of the incident effectively barred the defendant from presenting his entire
defense. 168 Wn.2d 713, 719-20, 230 P.3d 576 (2010). In Arndt, the court recognized
that the constitutional right to present a defense requires courts to balance the State’s
interest in excluding evidence against the defendant’s need for the information to be
admitted. 194 Wn.2d at 812. The court also determined that since the defendant was
able to offer evidence in support of her theory without the excluded evidence, the
exclusion of evidence did not violate the defendant’s right to present a defense. Id. at
814.
Using this same balancing test, the Supreme Court held that a defendant’s right to
present a defense was violated when the trial court severely limited defense counsel’s
ability to cross-examine the State’s witness on issues of bias. State v. Orn, 197 Wn.2d
343, 482 P.3d 913 (2021). In balancing the competing interests, the court determined that
the State had failed to demonstrate any prejudice against the defendant’s need to show
bias. Id. at 356.
In Jennings, the defendant raised self-defense but was prohibited from introducing
a toxicology report showing that the victim had methamphetamine in his system when the
defendant shot him. 199 Wn.2d 53. The Supreme court agreed with the State that the
effects of methamphetamine on any particular person were speculative. Id. at 66. Since
the defendant was allowed to present evidence about his subjective fear of the victim and
his belief that the victim was high on methamphetamine, balancing the exclusion of
19 No. 37943-4-III State v. Vaile
prejudicial and speculative evidence did not violate the defendant’s ability to present a
defense. Id.
Here, the State contends that the audio recording was prejudicial to the State and
otherwise cumulative. While it characterizes Murray’s statements as an “inebriated
monologue,” the State does not demonstrate prejudice from Murray’s statements and
makes no attempt to claim that Vaile’s statement was prejudicial. Resp’t Br. at 47. The
State points out that Vaile called several witnesses, all of whom testified that Vaile was
being compliant and Vaile himself was allowed to testify as to the statement he made
while being arrested. Resp’t Br. at 48-49. We disagree with the State’s application of the
balancing test.
Vaile’s entire defense to the resisting charge was that he was trying to comply
with commands. While several witnesses testified that Vaile was not being aggressive,
none of them were allowed to testify about the statement Vaile made while being
arrested. Moreover, excluding Vaile’s recorded statement while acknowledging that he
can later testify as to what he said, puts Vaile in a position of waiving his right to remain
silent if he wants the evidence introduced. And while Vaile did testify that he told police
that he could not put his wrists together, the recorded statement would have corroborated
his testimony and likely would have carried more weight and credibility than his trial
testimony. When this highly probative evidence is balanced against the lack of prejudice
20 No. 37943-4-III State v. Vaile
to the State, we conclude that excluding Vaile’s recorded statement violated his right to
present a defense.9
We reverse Vaile’s conviction for resisting arrest and remand for a new trial.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________ Staab, J.
I CONCUR:
_________________________________ Lawrence-Berrey, J.
9 If the State had any concern about Murray’s inadmissible statements, it could have sought an admonition or limiting jury instruction.
21 FEARING, C.J. (concurring in part/dissenting in part) —
That Justice is a blind goddess Is a thing to which we blacks are wise. Her bandage hides two festering sores That once perhaps were eyes. Langston Hughes, 1923
This appeal presents a primer on racial prejudice inside America’s criminal justice
system. Racial bigotry permeates the case beginning with Patricia Murray’s call to 911
and ending with the State attorney’s summation to the jury.
The racism infecting the arrest and prosecution of Darnai Vaile prompts robust
disagreement between the court majority and me about the role of a judge in exposing
and eradicating racism within the justice system. That disagreement, in turn, prods this
dissent. Like the majority, I would reverse Vaile’s conviction for resisting arrest, but,
unlike the majority, I would direct dismissal of the charge based on race-based
government misconduct. Reversal and remand for a new trial does not suffice to correct
the prejudice debasing African-American Vaile’s prosecution. At the least, I would call
for briefing from the parties on the remedy of dismissal or remand to the superior court
for a hearing on dismissal because of government misconduct. Despite Vaile not seeking
dismissal, this court holds authority to address and grant this relief. No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The evidentiary issues resolved by the court majority pale in significance to the
color bias, but still loom important. I agree with the majority’s decision that the trial
court mistakenly precluded the jury from hearing the audio of Darnai Vaile’s voice
recorded on Patricia Murray’s cellphone camera. I, however, differ with the majority’s
basing of its ruling on the constitutional right to present a defense. I would avoid the
constitutional question and rest the evidentiary ruling on Vaile’s comments not
constituting hearsay. I further disagree with the majority’s exclusion of the comments of
Patricia Murray also captured on the audio file of the camera video. Murray’s remarks
qualify under the excited utterance exception to the hearsay rule and should be heard by
the jury.
This dissent first analyzes the evidentiary issues on appeal. The dissent then
examines the racial prejudice suffered by Darnai Vaile. Finally, this dissent critiques the
majority’s critique of the dissent. My extensive differences with the majority on the
evidentiary errors and this court’s refusal to expose and remedy endemic racist bias
prolong this opinion.
Vaile’s Nonhearsay Recorded Remarks
The majority rests its ruling on the violation of Darnai Vaile’s constitutional right
to present a defense under the Sixth Amendment to the United States Constitution.
Nevertheless, courts typically avoid reaching constitutional issues when possible. State v.
Hall, 95 Wn.2d 536, 539, 627 P.2d 101 (1981). This possibility exists in Vaile’s appeal.
2 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
When presented with an argument that an evidentiary ruling violated a defendant’s
right to present a defense, the court first analyzes the trial court’s decision for abuse of
discretion under the rules of evidence. State v. Jennings, 199 Wn.2d 53, 58-59, 502 P.3d
1255 (2022). If the trial court abused discretion and the error prejudiced the accused, the
court will reverse on the evidentiary ruling and avoid the constitutional question. State v.
Jennings, 199 Wn.2d 53, 59 (2022). I would hold the trial court abused discretion.
The majority rules that Darnai Vaile’s comments qualified under the excited
utterance exception. But then the majority reverses course and rules the exclusion not to
be an abuse of discretion because Vaile’s comments overlapped on the audio with the
purportedly inadmissible comments of Patricia Murray. The majority reverses course
once more and holds that the exclusion of the audio constituted constitutional error.
The majority cites no law that the trial court acts within the bounds of reasonable
discretion when excluding an entire sound track because the recording contains some
admissible remarks and some inadmissible remarks. Although this dissent also lacks any
citation in support of its position, if an audio bears importance to the accused’s defense,
the bounds of discretion under evidence rules should only allow for the playing of the
audio since the court may give a limiting instruction for the jury to ignore the
inadmissible portion of the recording.
The majority highlights that neither party presented the trial court with a redacted
version of the recording. Yet, we do not know if a party could have removed the entirety
of Patricia Murray’s comments without erasing some of the words spoken by Darnai
3 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Vaile. Such a feat could have required the secretarial gymnastics of President Richard
Nixon’s assistant, Rose Mary Woods. Assuming redaction to be possible, we do not
know the cost. The majority does not ponder whether the State should have borne the
burden of redacting the audio if it deemed some of the language inadmissible, and the
majority does not ask whether the State’s failure to redact the recording, when it held
possession of the recording for months, should have led to the playing of the audio.
Alas, this court need not fret about redaction of the video’s audio. With little
effort, this court may reverse the conviction on evidence rules and decisional law that
applies those evidence rules and thereby avoid the constitutional claim. As analyzed
later, the remarks of Patricia Murray on the sound recording were admissible under the
excited utterance exception.
To repeat, the majority rules that Darnai Vaile’s exclamatory remarks captured on
the video qualified for the excited utterance exception to the hearsay rule. Nevertheless,
the court need not address any exception to the hearsay rule since the comments do not
constitute hearsay. No rule compels a court to first answer whether evidence constitutes
hearsay before addressing whether a hearsay exception applies. Nevertheless, legal logic
encourages a court to discern whether evidence is hearsay before perusing exceptions.
One generally does not search for an exception to a rule before resolving whether the rule
applies. In United States v. Zagari, 111 F.3d 307, 317–18 (2d Cir.1997) and State v.
Steward, 2020-Ohio-4553, 159 N.E.3d 356, 366, the courts determined to first
4 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
address whether out-of-court statements qualified as nonhearsay before entertaining a
hearsay exception.
The majority writes that Darnai Vaile fails to argue on appeal that his recorded
statement does not constitute hearsay. Not true. Although he also advances hearsay
exceptions, Vaile writes in his appeal brief that the sound recording bore relevance to the
question of whether he intended to resist arrest, an element of the charged crime. Br. of
Appellant at 20. This latter contention necessarily implicates ER 801(c), the definition of
hearsay.
Also contrary to the claim of the court’s majority, Darnai Vaile, at trial, principally
argued that his excited remarks did not constitute hearsay, as opposed to relying only on
an exception. Vaile’s trial counsel intoned:
MS. CADY: Well, what if this went to state of mind, and this wasn’t being offered for the truth of the matter asserted depending on the context of the testimony?
Report of Proceedings (RP) at 151 (emphasis added). Vaile’s counsel later added:
But I think, Your Honor, if the Court doesn’t find that these statements got to the truth of the matter asserted, it goes to his state of mind in what’s happening, it’s extremely relevant in— THE COURT: Goes to whose state of mind? MS. CADY: Mr. Vaile’s also. There’s—there are also, as Mr. Kidd [the State’s attorney] pointed out, the deputies have testified they were in certain places, and they were doing certain things, and it’s clear from these videos that they are not. So those things could be questioned, and Deputy Vicini just testified that he didn’t hear him saying anything about his handcuffs, although he could have, and it’s right in the video—but it was too loud. It’s right in the video that you can hear him saying that, and Deputy Vicini is kneeling next to him or on him on the opposite side of where he said he was.
5 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
RP at 352 (emphasis added). Julie Napier’s trial counsel also affirmed:
MR. KIDD: Excited utterness [sic], present sense impression. I’m not sure that it necessarily goes to the truth of the matter asserted either. There are a number of different possibilities here, Your Honor.
RP at 299 (emphasis added).
Patricia Murray’s recording captured Darnai Vaile exclaiming: I am “not doing
nothing. I’m putting my arm right here.” Exhibit (Ex.) D-103. Vaile correctly
characterizes these comments as showing his state of mind.
A proponent may introduce state of mind evidence through two pathways. First,
the party may wish the trier of fact to hear the out-of-court statement not for the purpose
of the truth of the matter asserted within the statement, but for some other purpose
relevant to the proceeding. In this first circumstance, the statement does not constitute
hearsay under ER 801(c), and the proponent need not rely on any exception to the
hearsay rule. Second, the party may desire the jury to deem the matter asserted inside the
statement to be the truth. In this second circumstance, the proponent must claim the state
of mind comment falls within the hearsay exception found in ER 803(a)(3). Appellate
decisions sometimes fail to distinguish between these two avenues for introducing state
of mind evidence. No rule precludes the proponent of the evidence from introducing the
out-of-court statement for both the truth of the matter asserted and for another purpose.
The majority writes that the recorded statement did not convey Darnai Vaile’s
intent. The majority adds: “The only reason Vaile wanted to introduce his recorded
statement was to prove that it was true; that he did not intend to resist arrest and was
6 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
moving his arm so deputies could hand-cuff him.” (Majority opinion, page 14). The
majority misses the irony of the passage. In the latter clause, the majority concedes that
Vaile wanted the statement introduced to show he did not intend to resist arrest. Vaile’s
exclamation expressed his intent to do nothing other than to place his arm in the
requested location. He expressed this intention regardless of whether his comment of
holding his arm in place was accurate. Even assuming the statement could also be used
to prove the truth of the matter asserted, this purpose does not negate the remarks’
alternative nonhearsay nature.
“‘Hearsay’ is a statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
ER 801(c). Whether a statement is hearsay depends on the purpose for which the
statement is offered. State v. Garcia, 179 Wn.2d 828, 845, 318 P.3d 266 (2014).
Statements not offered to prove the truth of the matter asserted, but rather as a basis for
inferring something else, are not hearsay. State v. Garcia, 179 Wn.2d 828, 845 (2014);
State v. Crowder, 103 Wn. App. 20, 26, 11 P.3d 828 (2000).
When assessing whether an out-of-court statement comprises hearsay, we first
identify the substantive questions for resolution by the jury. The State charged Vaile
with resisting arrest. RCW 9A.76.040 defines resisting arrest as:
(1) A person is guilty of resisting arrest if he or she intentionally prevents or attempts to prevent a peace officer from lawfully arresting him or her.
7 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
(Emphasis added.) Under the language of the statute, the State must establish beyond a
reasonable doubt that Vaile intended to resist. Intent is a necessary element of the crime.
City of Seattle v. Gordon, 54 Wn.2d 516, 520, 342 P.2d 604 (1959).
Darnai Vaile’s recorded remarks communicated his contemporaneous intent to
acquiesce to the law enforcement officers’ commands. The remarks expressed his intent
to cooperate by placing his arms in the commanded position rather than to resist.
Numerous Washington decisions stand for the requirement that the trial court must
allow the accused to introduce evidence of his comments contemporaneous to the time of
the alleged crime when the charged crime includes an element of intent or knowledge. In
State v. Garcia, 179 Wn.2d 828 (2014), the Supreme Court ruled that statements of both
the bystander and the defendant were not hearsay. Phillip Garcia entered Juliana
Wilkins’ trailer through an unlocked door. An agitated Garcia awoke Wilkins and the
two spoke for two hours. At some point, Garcia went to the kitchen and grabbed a knife.
At trial, Wilkins testified Garcia terrified her. She thought Garcia would kill her. The
State charged Garcia with kidnapping and burglary. The State brought a motion in limine
to preclude, based on hearsay, statements made by Garcia and Wilkins during their
encounter. The Supreme Court ruled that the trial court erroneously excluded the
evidence, although the court held the error to be harmless. The excluded statements
uttered by Garcia demonstrated his state of mind. His state of mind posed relevance to
the charges because kidnapping hinged on his intent.
8 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
This court’s majority agrees that, in State v. Garcia, the Supreme Court held that
Phillip Garcia’s statements were not being introduced to prove the truth of the matters
asserted—that people with guns were chasing him—but rather to show what the
defendant believed and how his belief affected his intent when entering the home. So too
Darnai Vaile may introduce his comments to show that he believed he was cooperating
such that he lacked intent to resist arrest.
In State v. Calvin, 176 Wn. App. 1, 316 P.3d 496 (2013), this court did not resolve
any evidentiary dispute, but considered comments by the accused to be relevant to the
calculation of guilt. The jury heard and the trial court reviewed evidence of Donald
Calvin’s comments and the park ranger’s statements uttered during the course of their
encounter in order to determine if Calvin intended to resist arrest. When the ranger
pointed his flashlight at Calvin’s chest, Calvin said: “‘Get that F-ing light out of my
face.’” State v. Calvin, 176 Wn. App. 1, 8 (2013). When read his rights, Calvin called
the ranger: “‘ranger dick.’” State v. Calvin, 176 Wn. App. 1, 9 (2013). On appeal,
Donald Calvin argued that the State failed to establish intent to resist a law enforcement
officer, an element of the crime of resisting arrest. After reviewing the entirety of the
evidence, including Calvin’s remarks, this court disagreed.
In State v. Ware, 111 Wn. App. 738, 46 P.3d 280 (2002), the juvenile court
considered Mojolene Ware’s statement to the police indicating she would “not be taken”
as helping to establish her intent to resist arrest. State v. Ware, 111 Wn. App. at 745. If
the State may utilize the accused’s comments against him or her to show a guilty state of
9 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
mind, the accused should receive the reciprocal opportunity to show an innocent state of
mind.
The court’s majority posits that the dissent fails to explain how Darnai Vaile’s
recorded statement is relevant if it is not true. The dissent has already met this
contention. To repeat, Vaile’s exclamation expressed his intent to do nothing other than
to place his arm in the requested location. He expressed this intention regardless of
whether his comment of holding his arm in place was accurate. It showed his desire to
cooperate even if law enforcement obstructions to his bodily movements prevented his
cooperation.
Darnai Vaile’s recorded statement holds relevance for a second reason beyond its
germaneness to Darnai Vaile’s intent. During the questioning of Deputy Michael Vicini,
the State’s attorney asked Vicini if he heard Vaile saying anything. Vicini answered in
the negative. Vicini knelt next to Vaile, while the operator of the camera stood farther
away. If the camera captured Vaile’s comments, Vicini should have also. Sheriff
deputies testified that Vaile took no steps to cooperate. Vaile is entitled to rebut
testimony from the officers by playing a recording of his speaking words of cooperation.
During the questioning of Deputy Michael Vicini by the prosecutor, Vicini also
testified that, when he commanded Darnai Vaile to sit on the curb, Vaile exclaimed: “‘I
want to tell my side!’” RP at 309. Later during the questioning, Vicini added that Vaile
stated: “‘I have a knife.’” RP at 317. The State should not be free to pick and choose
only those comments that purportedly show Vaile’s state of mind consistent with defying
10 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
officer commands, while excluding remarks showing submittal to law enforcement
authority.
The majority refuses to follow the teaching of Washington case law and provides
no cases contrary to those cited by this dissent. The majority instead responds: “It still
qualifies as hearsay” as if its ruling makes it so. (Majority opinion, p. 14).
This court reviews the trial court’s evidentiary rulings for abuse of discretion.
State v. Atsbeha, 142 Wn.2d 904, 914, 16 P.3d 626 (2001). An abuse of discretion is
present on a showing that the exercise of discretion was manifestly unreasonable, based
on untenable grounds, or based on untenable reasons. State v. Dye, 178 Wn.2d 541, 548,
309 P.3d 1192 (2013). A decision is based on untenable grounds or made for untenable
reasons if it was reached by applying the wrong legal standard. State v. Horn, 3 Wn.
App. 2d 302, 312, 415 P.3d 1225 (2018). I conclude the trial court abused discretion by
failing to apply the correct legal standard with regard to state of mind comments being
nonhearsay when the State charged Darnai Vaile with an intentional crime. The trial
court also failed to recognize the recording’s significance in impeaching officer
testimony. Finally, I would also rule that Darnai Vaile’s recorded exclamation fell within
the present sense impression exception to the hearsay rule such that it could be entered
for the truth of the matter asserted.
The trial court, although refusing to play the audio, allowed Darnai Vaile to testify
to his comments uttered on his arrest. An oddity arises from this ruling. For purposes of
Vaile testifying from the witness stand as to his exclamation, the trial court either did not
11 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
adjudge those comments to be hearsay or the court determined that a hearsay exception
applied. But the trial court refused the playing of those captured comments on a video.
In short, the trial court permitted testimony inside the courtroom as to what was said
outside the courtroom but refused to permit the jury to hear a sound recording of what
Vaile precisely said outside the courtroom.
If the comments of Darnai Vaile captured in the recording constituted inadmissible
hearsay, the trial court should have also precluded Vaile’s testimony quoting his
comments during the arrest. Conversely, if the out-of-court statements were admissible,
the court should have allowed the playing of the audio. Indeed, the best evidence rule
required the playing of the audio. If a party asserts that the language of a document holds
relevance to a proceeding, the law wishes for the document to be introduced as an exhibit
or a witness to read the document into the record rather than a witness testifying to his or
her possible hazy memory of the language in the document. So too, if comments made
during an event are relevant and admissible, the law wants the jury to hear those exact
comments, if a sound recording exists, rather than a witness guessing as to what was said.
This analysis also applies to the trial court’s prevention of playing the audio recording of
Patricia Murray’s excited statement, but allowing her to testify to her comments.
The best evidence rule extends to sound recordings. ER 1001 reads, in pertinent
part:
For purposes of this article the following definitions are applicable: (a) Writings and Recordings. “Writings” and “recordings” consist of letters, words, sounds, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic 12 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
impulse, mechanical or electronic recording, or other form of data compilation.
(Emphasis added.) (Boldface omitted.) The meat of the best evidence rule, ER 1002,
declares:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by rules adopted by the Supreme Court of this state or by statute.
Numerous Washington decisions recognize the utility of playing sound recordings
to the jury when words spoken are relevant to a charged crime. State v. Scherf, 192
Wn.2d 350, 386, 429 P.3d 776 (2018); State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d
466 (1983); State v. Frazier, 99 Wn.2d 180, 187, 661 P.2d 126 (1983); State v. Clapp, 67
Wn. App. 263, 272, 834 P.2d 1101 (1992); State v. Howland, 66 Wn. App. 586, 596-97,
832 P.2d 1339 (1992). In State v. Frazier, the Supreme Court approved of the trial
court’s admission into evidence of the tape-recorded statement Robert Frazier gave to a
police detective and the trial court’s permission for the jury’s playing of the recording in
the jury room. In State v. Clapp, this court recognized that the best evidence rule
demanded the playing of the wire recording of Marvin Clapp’s solicitation of murder,
although the jury could also review a transcript during the playing of the audio.
Patricia Murray Comments
I move to an analysis of Patricia Murray’s recorded comments demanding that the
sheriff deputies cease their assault on Darnai Vaile because he is kind and gentle. The
trial court reasoned that the excited utterance hearsay exception did not apply because
13 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Murray activated her phone camera and because her capacity to operate the camera to
record the interaction between Vaile and law enforcement officers necessarily meant that
she was not under stress or excitement. I conclude that the trial court abused its
discretion by applying an incorrect legal standard. The court should have allowed the
jury to hear Murray’s entreaty on behalf of Vaile, in addition to Vaile’s pleas.
The excited utterance exception, also known as the spontaneous declaration
exemption, permits the admission of a “statement relating to a startling event or condition
made while the declarant was under the stress of excitement caused by the event or
condition.” ER 803(a)(2). The proponent of the evidence must satisfy three closely
connected elements: (1) a startling event or condition occurred, (2) the declarant uttered
the statement while under the stress or excitement caused by the startling event or
condition, and (3) the statement related to the startling event or condition. State v.
Woods, 143 Wn.2d 561, 597, 23 P.3d 1046 (2001).
Like many hearsay exceptions, the excited utterance rule assumes that statements
falling within its ambit are inherently trustworthy. The declarant’s spontaneous response
to an external shock prevents her from reflecting on and controlling any resulting
utterances. State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992). The startling
circumstances overcome the speaker’s ability to consciously fabricate. State v. Dixon, 37
Wn. App. 867, 872, 684 P.2d 725 (1984). Nevertheless, the proponent of the statement
need not establish with other evidence the veracity of the excited utterance.
14 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The statement in question need not be made simultaneously with the event such
that some fluctuation in the time element is allowable. Johnston v. Ohls, 76 Wn.2d 398,
406, 457 P.2d 194 (1969). Also, the statement need not be made completely
spontaneously, for under proper circumstances responses to questions may be admitted.
Johnston v. Ohls, 76 Wn.2d 398, 406 (1969); Robbins v. Greene, 43 Wn.2d 315, 261 P.2d
83 (1953). Thus, limited reflection by the declarant does not prevent admissibility.
In State v. Rodriquez, 187 Wn. App. 922, 352 P.3d 200 (2015), the State played
for the jury Lori Hendon’s 911 call to report her having been choked by Peter Rodriguez.
After the assault, Hendon fled her home with her daughter and hid in bushes while calling
911. This court held that the trial court did not abuse its discretion when admitting the
recording as an exhibit.
I recognize this court, in State v. Rodriquez, affirmed the trial court’s exercise of
discretion rather than ruling that the trial court would have abused its discretion if it
refused the playing of the 911 recording. Nevertheless, the decision illustrates that the
victim’s possession of the steadiness of mind to hide in bushes and the stability of hands
to dial 911 on a cellphone did not prevent the call from being an excited utterance. So
too, Patricia Murray’s ability to press two buttons on her cellphone to record a distressing
event should not remove contemporaneous comments from the excited utterance
exemption to the hearsay rule.
The State does not argue that an intentional recording precludes a finding of an
excited utterance. The State cites no decision wherein a reviewing court rejected the
15 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
excited utterance exception and upheld the exclusion of an audio recording based on the
person recording the audio having the presence of mind to do so.
Patricia Murray testified to the startling nature of the attack on Darnai Vaile and
the fright she experienced. Her voice on the recording confirms the excited nature of her
utterance.
On appeal, the State contends Patricia Murray’s remarks of Darnai Vaile being
kind and gentle constituted inappropriate character evidence as opposed to a statement of
fact. Likewise, the majority rules that Murray’s comment did not relate to events
transpiring, but to Murray’s opinion of Vaile’s nature.
Patricia Murray testified that she uttered to law enforcement officers: “[S]top, stop
stop; he’s gentle.” RP at 384. The trial court sustained an objection to the “gentle”
comment as character evidence. RP at 384. Nevertheless, when Julia Napier’s counsel
proceeded with a proffer of proof, the State withdrew the objection to the comment about
being gentle. On appeal, the State forgets its concession, and this court’s majority
ignores the State’s waiver.
After the State withdrew its objection, Patricia Murray averred that she based her
“gentle” statement on her observation of Darnai Vaile’s behavior, at the time of his arrest,
as being “nonviolent” and “nonhostile,” not on his character. RP at 385. He was
surrendering when attacked. Murray testified:
I was trying to get them to stop because it was so violent and they were hurting him.
16 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
RP at 385. Murray explained that her comments intended to express that Vaile was not
resisting the arrest. Murray had never met Vaile before and knew nothing about Vaile’s
character. Thus, the testimony related to facts and did not form improper character
evidence.
The State next contends that Patricia Murray’s comments were prejudicial under
ER 403. But the State did not assert this argument before the trial court.
The court majority affirms the trial court’s preclusion of the playing of the
recorded voice of Patricia Murray, but the majority fails to resolve the anomaly of the
trial court allowing Murray to testify to her comments in the face of the best evidence
rule. The majority also omits any discussion about removal of Murray’s comments from
the recording despite its permission granted to Darnai Vaile to play his remarks and his
remarks overlapping the exclamatory comments of Murray.
Evidentiary Prejudice
Because of the reversal of Darnai Vaile’s conviction for resisting arrest, this
court’s majority must have concluded that the muting of the video recording prejudiced
Vaile, but the majority does not expressly so decree. I conclude the silencing of the audio
prejudiced Vaile’s defense. Although Vaile testified to the words he uttered while being
arrested, the audio would have confirmed Vaile to be a credible witness because the
recording confirmed his testimony. The audio also would have also buttressed his
assertion of a desire to cooperate with law enforcement when being detained.
17 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The audio recording would have also impeached the sheriff deputies’ testimony
that Vaile said nothing. I do not subscribe to a view that law enforcement officers
usually fib, and I generally deem law enforcement officers brave heroes. Nevertheless,
[s]ometimes cops lie. . . . And sometimes there’s video proving that they lied. Video, even if it does not ultimately tell the entire story, can provide uniquely compelling evidence in a way testimony or physical evidence from the scene of a crime cannot. The spread of cellphone cameras has provided grim confirmation that police can be as dishonest as any other human being. That in itself raises certain dilemmas, such as how much weight to grant police statements and uncorroborated witness testimony.
Adam Serwer, Deleting the Right to Record the Police, The Atlantic (Oct. 6, 2022, 6:00
AM), https://www.theatlantic.com/ideas/archive/2022/10/arizona-restrict-video-
recording-police-aclu-lawsuit/671650/?utm_source=email&utm_medium
=social&utm_campaign=share.
I further conclude that Darnai Vaile suffered prejudice by the muting of Patricia
Murray’s excited utterance. Since Murray reported the conduct of Vaile to the police, she
likely would have sided with action taken by the sheriff deputies. She is the rare
purported victim who came to the defense of her accused because of the strong tactics of
the officers. Her excited utterance, if heard on a contemporaneous recording, would
confirm that Vaile did not seek to resist.
Racial Bias
This court has stated, unequivocally, that we owe a duty to increase access to justice, reduce and eradicate racism and prejudice, and continue to develop our legal system into one that serves the ends of justice. Recognizing that a verdict affected by racism violates fundamental concepts of fairness and equal justice under law, we recently held in a 18 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
criminal case that race-based prosecutorial misconduct can never be “harmless error.”. . . Racism is endemic, and its harms are not confined to any place, matter, or issue. . . . Whether explicit or implicit, purposeful or unconscious, racial bias has no place in a system of justice. If racial bias is a factor in the decision of a judge or jury, that decision does not achieve substantial justice, and it must be reversed.
Henderson v. Thompson, 200 Wn.2d 417, 421-22, 518 P.3d 1011 (2022)
(internal citations omitted) (footnote omitted).
In the wake of the murder of George Floyd, the Washington Supreme Court, in a
June 4, 2020 open letter to the Washington State judiciary and legal community,
recognized persistent and systemic injustice that degrades and devalues Black lives. The
court lamented racialized policing and overrepresentation of Black Americans in every
stage of our criminal justice system. The court implored the Washington judiciary to
summon the will to end this injustice by carefully reflecting on actions we take.
According to the state Supreme Court, judges must not limit themselves to “tradition and
the way things have ‘always’ been.” Open Letter from Wash. State Sup. Ct. to Members
of Judiciary & Legal Cmty. 1 (June 4, 2020), http://www.courts.wa.gov/content/
publicUpload/ Supreme%20Court%20News/Judiciary%20Legal%20Community
%20SIGNED%20060420.pdf.
As part of his appeal, Darnai Vaile protests the inequity contaminating his arrest
and his manhandling by sheriff deputies. Vaile emphasizes his being African-American,
the complaining witness being Caucasian, and all sheriff deputies at the scene being
white. Vaile highlights his fear of being detained by officers because of the long history
of deadly police encounters with Black men. 19 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
In light of the Washington Supreme Court’s challenge to judges, Darnai Vaile’s
claim of discrimination merits this court’s attention. Racial bias tainted this case well
beyond Vaile’s arrest. It began with Patricia Murray’s 911 call, continued through the
arrival of law enforcement officers at Peking Palace, persisted during the detainment of
Vaile, influenced the charges brought against Vaile, motivated evidentiary arguments
forwarded by the State, poisoned the closing argument of the prosecution, and extends to
the positions taken by the State in this appeal. The treatment of Vaile depicts a far range
of racially motivated conduct and fulfills numerous racist tropes.
The racial cancer infecting Darnai Vaile’s case began with his inopportune kiss of
Patricia Murray. No one testified as to the location on Murray’s body where Vaile kissed
Murray. Murray did not testify to any physical harm. Admittedly Vaile used terrible
judgment when he kissed a white woman in a bar, but this mistake did not justify the
inevitable consequences that thereafter transpired. In addition to African-American
parents giving “the talk” to their children about frequent detainments by law enforcement
officers, the parents give “the talk” to sons not to publicly express attraction to a white
woman stranger. With the kiss, Vaile was doomed. He would suffer violence. He would
inevitably land in jail and be entangled in the criminal justice system for years.
Instead of reporting Darnai Vaile to the restaurant managers and asking that he be
removed from Peking Palace, Patricia Murray phoned law enforcement. Some white
women view police as private security guards and protectors ready to perform their
bidding. We pejoratively label these women with the moniker “Karen.” Videos abound
20 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
of Karens asking for assistance because of the innocuous presence of a Black man.
Megan Armstrong, From Lynching to Central Park Karen: How White Women Weaponize
White Womanhood, 32 HASTINGS WOMEN’S L.J. 27, 32-42 (2021). When calling
911, Murray likened the kiss to a gang rape. History informs of numerous instances of
white women claiming rape when innocently touched by a Black man. Brutal
consequences to the male follow.
The arrival of six to eight Spokane County Sheriff’s Office patrol cars occupied by
an unknown total of deputies for a nonconsenting kiss was overkill, but represented a
typical response to an accusation against a person of color. Also, as part of a predictable
response, law enforcement officers will instinctively view a Black man that is
perambulating as walking aggressively and appearing angry. Frank Rudy Cooper, Race
and Essentialism in Gloria Steinem, 11 Berkeley J. Afr.-Am. L. & Pol’y 36, 46 (2009).
Law enforcement officers will contend the African-American acted combatively in order
to excuse vicious force. Then at trial, the State’s attorney will summon for the jury the
stereotypical view of a Black person as not worthy of credibility because of his or her
being confrontational. Henderson v. Thompson, 200 Wn.2d 417, 424 (2022).
Contrary to the testimony of the Spokane County sheriff deputies about Darnai
Vaile’s conduct, no bystander confirmed the sheriff deputies’ description of Vaile as
walking aggressively or appearing angry. All witnesses averred that Vaile walked as if
surrendering to the deputies.
21 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The Spokane County sheriff deputies treated Darnai Vaile as if he committed a
major crime such as rape, not an unwanted kiss. Police use force against African-
American men for even minor offenses or when no offense transpired. Resisting Arrest
and Racism–The Crime of “Disrespect,” 85 UMKC L. Rev. 625, 626 (2017). Sheriff
deputies deemed Vaile to fit the stereotype of an African-American suspect. He was not
a human being with which to reason, but a grave threat to fear and subdue, if not conquer.
Despite Vaile never engaging in violent behavior, officers reflexively adjudged Vaile as
jeopardizing not only their physical safety, but the security of the crowd in the Peking
Palace parking lot. No officer testified to why they needed to manhandle Vaile other than
his insistence on telling his story rather than sitting down and his continuing to walk
toward the officers.
The arresting law enforcement officers claimed Darnai Vaile formed a clenched
fist and waived this clenched hand from his side to above his head. Yet, no bystander
corroborated the claim of a clinched fist. Bystanders testified that Vaile held his hands
high as if surrendering. Regardless, the clenched fist serves as a symbol of African-
American rebelliousness and assertion of power against white control. Testimony from
officers of the clenched fist posed an opportunity for the State to insert the stereotype of
African-American Vaile mutinying against government authority. Jeremy Helligar, How
the Clenched Fist Became a Black Power Symbol, Reader’s Digest, July 21, 2021.
Darnai Vaile testified that, once on the ground, he attempted to cooperate but
could not get his hands out from underneath him because an officer sat on him. Darnai
22 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Vaile’s pleas to the officers suggest that his attempt to comply with one officer’s orders
interfered with the instructions given by one or more others. When two or more officers
arrest a suspect, the officers, in the excitement of the scrum, often shout contradictory
orders to the arrestee. Since the suspect cannot obey all inconsistent commands, some of
the officers decide that the suspect resists arrest and those officers impose further
violence on him. Memphis police officers shouted simultaneously inconsistent orders to
Tyre Nichols, who officers later killed. Robin Stein, Alexander Cardia, and Natalie
Reneau, 71 Commands in 13 Minutes: Officers Gave Tyre Nichols Impossible Orders,
New York Times, January 29, 2023.
The Spokane County sheriff deputies’ attack on Darnai Vaile is too often standard
police procedure. In fact, one knowledgeable of encounters between African-American
males and law enforcement officers would express surprise that Vaile survived the
encounter without serious injury. Many Black Americans are not so lucky. Katie
Wedell, Cara Kelly, Camille McManus and Christine Fernando, George Floyd is not
alone. “I can’t breathe” uttered by dozens in fatal police holds across U.S., USA Today,
June 25, 2020.
The Washington Supreme Court open letter of June 2020, mass protests, and
momentary corporate support for Black Lives Matter followed the murder of George
Floyd on May 25, 2020. A friend then commented that Floyd’s death would finally bring
needed and overdue change to a racist criminal justice system. I demurred. I wish I was
wrong. The deaths continue, if not increase. US police killings hit record high in 2022,
23 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Afro News, January 9, 2023; Rick Rojas and Jessica Jaglois, Five Officers Charged With
Murder in Memphis Police Killing, New York Times, January 26, 2023; Robert
Garrova,“He Just Needed Help”–Family of Takar Smith Will Sue After Fatal LAPD
Shooting, LAist, January 13, 2023; Lauren Abunassar, Council Eyes Renewed LAPD
Reform After 3 Arrest Deaths in 25 hours, Los Angeles Magazine, January 17, 2023.
Racism also infected the charges filed by the State of Washington against Darnai
Vaile. The State prosecuted Vaile for assaulting two law enforcement officers, despite no
officer testifying that Vaile threatened force or struck an officer. No officer testified to
any injury suffered from the action of Vaile. The State introduced pictures of Darnai
Vaile’s injuries, but no photographs of alleged officer injuries.
The State rested its two charges of assault on the theory that the sheriff deputies
reasonably feared for their safety because of the presence of a knife, the excitability of
Darnai Vaile, and the lack of his cooperation. Nevertheless, Vaile possessed the right to
carry a knife. In order to protect himself, Vaile volunteered the presence of the knife in
his pocket and, despite restraints, threw the knife to the ground. The deputies’ professed
fear of Vaile because of his excited nature and his purported refusal to cooperate caters to
the stereotype of the angry Black man. Not only was Vaile an angry black man, but he
was a large, angry Black man. Under the State’s theory of the case, any man lawfully
carrying a knife and coming near a law enforcement officer could be convicted of assault.
Any man of color who approaches too close to a law enforcement officer would also be
guilty of the crime because of the officer’s fear for his or her safety.
24 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
In addition to the two charges of assault of law enforcement officers, the State of
Washington charged Darnai Vaile with not one, but two, counts of resisting arrest as if he
was the subject of multiple arrests. Overcharging a Black man for rebelliousness is
common. But the prosecution must not overcharge to obtain a guilty plea.
RCW 9.94A.411(2)(a)(ii). Overcharging includes charging additional counts of the same
crime. RCW 9.94A.411(2)(a)(ii).
Police use the charge of resisting arrest as a form of racial oppression rather than
to keep communities safe. Scott Holmes, Resisting Arrest and Racism–The Crime of
“Disrespect,” 85 UMKC L. Rev. 625, 626 (2017).
Then when the black person protests or resists the illegitimate use of authority, the officer punishes the black person with a forcible full custodial arrest.
Resisting Arrest and Racism–The Crime of “Disrespect,” 85 UMKC L. Rev. 625, 627-28
(2017). Despite no crime having been committed, police demand that the Black person
be charged with resisting arrest. Resisting Arrest and Racism–The Crime of
“Disrespect,” 85 UMKC L. Rev. 625, 628 (2017). Resisting charges function as a means
of targeting people of color who “disrespect” authority. Resisting Arrest and Racism–
The Crime of “Disrespect,” 85 UMKC L. Rev. 625, 628 (2017).
A New York Times article on police misconduct in Greensboro, North Carolina,
described the charge of “resisting, delaying, and obstructing a public officer,” a “catch all
charge.” Sharon LaFranier & Andrew W. Lehren, The Disproportionate Risks of Driving
While Black, New York Times, October 24, 2015. According to one attorney interviewed
25 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
for the article, if the Black detainee “does anything but be completely submissive and
cower, then you get the classic countercharge by the officer that there was resistance, or
disorderly conduct or public intoxication.” Sharon LaFranier & Andrew W. Lehren, The
Disproportionate Risks of Driving While Black, New York Times, October 24, 2015.
Just as officers reflexively resort to arrest immediately upon noncompliance with their orders, whether lawful or not, they are quick to overreact to challenges and verbal slights. These incidents—sometimes called ‘contempt of cop’ cases—are propelled by officers’ belief that arrest is an appropriate response to disrespect. These arrests are typically charged as a Failure to Comply, Disorderly Conduct, Interference with Officer, or Resisting Arrest.
Resisting Arrest and Racism–The Crime of “Disrespect,” 85 UMKC L. Rev. 625, 631
(2017).
According to a study done by law professor Scott Holmes, between 2009 and 2015
in Greensboro, North Carolina, police charged 836 blacks with only the charge of
“resisting arrest” and 209 whites with the same charge. Sharon LaFranier & Andrew W.
Lehren, The Disproportionate Risks of Driving While Black, New York Times, October
24, 2015. Over the course of eighteen months, ninety percent of the one hundred ninety-
six resisting charges in Durham County, North Carolina, were issued to people of color.
Only nineteen of the resisting charges were issued to people identified in the court files as
“white.” Resisting Arrest and Racism–The Crime of “Disrespect, 85 UMKC L. Rev.
625, 631 (2017). A man of color resists arrests if he so much as twitches when being
detained by law enforcement.
26 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Darnai Vaile’s encounter with sheriff deputies followed this pattern. Vaile
disrespected authority when insisting that the deputies promptly hear his side of the story.
The State did not charge him with any crime arising from his kissing of Patricia Murray,
but only crimes incident to his interaction with law enforcement officers.
The discriminatory treatment of Darnai Vaile continued during trial with an
imbalanced application of evidence rules and offensive and misleading State arguments.
Jurors typically side with law enforcement officers, especially when the accused is a
member of a racial minority. Anna Roberts, Asymmetry as Fairness: Reversing a
Peremptory Trend, 92 WASH. U. L. REV. 1503, 1529 (2015). Data demonstrates that
participants in the criminal justice system render decisions based on race despite their
protests otherwise. Praatika Prasad, Implicit Racial Biases in Prosecutorial Summations:
Proposing an Integrated Response, 86 FORDHAM L. REV. 3091, 3095-96 (2018).
Jurors reach more lenient judgments of same race defendants and harsher judgments of
other race defendants. Jennifer S. Hunt, Race, Ethnicity, and Culture in Jury Decision
Making, 11 ANN. REV. L. & SOC. SCI. 269, 271 (2015). The State undermines the
accused’s right to a fair trial and the presumption of innocence when it compounds the
accused’s difficulty in defending himself by unfair treatment of evidence and false factual
arguments to the jury.
The majority opinion omits important evidence admitted, State evidentiary
arguments, trial court evidentiary rulings, and summation remarks that harmed Darnai
Vaile. During a motion in limine to exclude bystander statements, the State asserted, in
27 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
part, that the trial court should not allow introduction of the statements because the
declarants disliked law enforcement officers. According to the State, such witnesses
lacked credibility. The prosecuting attorney intoned:
MR. NAGY [the State’s attorney]: Your Honor, these come from defense witnesses; that’s my concern. My concern is to be an exception; the Court has to find these are statements that have credibility; they’re credible statements. They have—of course, I don’t have my books here because I don’t know where they are, but there has to be—the Court has to believe that the statements have validity, and these are self-serving statements that defense counsel witnesses want to put forward. .... Again, these are people that didn’t like the police; the police were concerned about the safety of everyone, everyone was intoxicated. Your Honor, frankly, these statements reek, and they’re—the credibility of these statements, I question them significantly.
RP at 153-54 (emphasis added).
Even assuming some witnesses disliked the police, no rule automatically bars, or
impulsively taints, the testimony of a witness or statements of a bystander that holds
animosity to officers or loathes the conduct of law enforcement. This attempt to bar
exclusion of unfavorable testimony signals an arrogant and biased State notion that only
their witnesses hold credibility.
The record does not show the race of trial witnesses, but their testimony
corroborated the testimony of Darnai Vaile. The State explicitly sought to exclude
testimony favorable to an African-American man and implicitly attacked testimony from
most African-Americans. Polls show a majority of Black Americans distrust law
enforcement, while a substantial majority of whites hold confidence in police officers.
Laura Santhanam, Two-thirds of Black Americans don’t trust the police to treat them 28 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
equally. Most white Americans do, PBS Newshour, June 5, 2020; Jacob Sullum, Most
Americans Don’t Trust Cops Much, a New Gallup Poll Reveals, Reason, August 13,
2020. Dislike for law enforcement likely echoes one’s distrust for law enforcement. The
State’s theory of witness credibility would mute most African-American voices inside the
courtroom.
The State successfully gained permission from the trial court for law enforcement
officers to testify to out-of-court statements of others on the basis that the statements
impacted the respective sheriff deputies’ state of mind. For example, Deputy Griffin
Criswell declared to the jury:
A Deputy Hilton and Vicini had arrived prior to me by a couple of minutes. They asked for additional units that were responding to step it up. MR. KIDD [Darnai Vaile’s counsel]: Objection, hearsay, Your Honor. MR. NAGY [the State’s attorney]: Goes to state of mind, Your Honor. THE COURT: Overruled. Q (By Mr. Nagy) Go ahead, sir. A Okay. They advised via radio that they requested an expedited response. And they said there was a, quote-unquote, troublemaker. This was all broadcast over the air; that was the words that were used.
RP at 399.
Out-of-court declarations may be admitted to demonstrate an officer’s state of
mind only if his or her state of mind is relevant to a material issue in the case; otherwise,
such declarations are hearsay. State v. Hudlow, 182 Wn. App. 266, 278, 331 P.3d 90
(2014); State v. Aaron, 57 Wn. App. 277, 279-81, 787 P.2d 949 (1990). The State never
explained why hearsay testimony allegedly impacting an officer’s state of mind bore
29 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
relevance to the charges of third degree assault and resisting arrest. The State never
explained why law enforcement officers could testify to out-of-court statements in order
to establish their state of mind, but Darnai Vaile could not introduce his comments
surrounding the arrest in order to show his state of mind. As already analyzed, Vaile’s
state of mind formed a critical element of the crime charged.
A prosecuting attorney represents the people and presumptively acts with
impartiality in the interest of justice. State v. Thorgerson, 172 Wn.2d 438, 443, 258 P.3d
43 (2011); State v. Fisher, 165 Wn.2d 727, 746, 202 P.3d 937 (2009). Defendants are
among the people the prosecutor represents. State v. Monday, 171 Wn.2d 667, 676, 257
P.3d 551 (2011). Prosecutors have a duty to the defendant to uphold their right to a fair
trial. State v. Monday, 171 Wn.2d 667, 676 (2011). The prosecution must also
administer evenhanded justice. People v. Robles, 174 A.D.3d 653, 655, 105 N.Y.S.3d
111, (2019). The duty to accord the accused a fair trial extends to closely observing
evidence rules. State v. Hild, 240 Iowa 1119, 1154, 39 N.W.2d 139, 159 (1949).
Insisting on inconsistent application of evidence rules to the favor of the State does not
afford a fair trial or execute evenhanded justice.
The trial court must administer evidence rules in an evenhanded manner. Carson
v. Fine, 123 Wn.2d 206, 225, 867 P.2d 610 (1994) (addressing ER 403). A reviewing
court must be vigilant in ensuring symmetrical application of evidence rules particularly
when the inconsistent application continues injustices imposed on people of color by the
American judicial system. The court majority’s ruling rejecting the nonhearsay nature of
30 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Patricia Murray’s recording of Darnai Vaile’s utterance conceals the unequal application
of evidence rules advocated by the State. The majority’s ruling frees the State to once
again advocate for discriminatory evidence rulings on retrial.
During the trial, the State also introduced, through testimony of law enforcement
officers, out-of-court remarks uttered by bystanders in the Peking Palace parking lot
when those out-of-court statements benefited the State. For example, during the
testimony of Sheriff Deputy Clay Hilton, the trial court allowed Hilton to testify to a
comment made by a bystander because of the excited utterance character of the comment:
Q What was the gentleman’s demeanor as he walked away from you? A He made a statement— MR. KIDD [defense counsel]: Objection. Q (By Mr. Nagy [the State’s attorney]) First is demeanor. What was his demeanor as he walked away from you? A He was kind of panicked. Q Did he say anything when he was kind of panicked? A Yes. Q What did he say? MR. KIDD: Objection, hearsay. MS. CADY [counsel for co-defendant]: Objection. MR. NAGY: Excited utterance, Your Honor. THE COURT: Sustained at this time; no foundation. Q (By Mr. Nagy) Why did you say he was panicked? Could you describe his expression on his face? A He had looked like he was shocked that he saw something that he didn’t like, and based on his demeanor, I turned around, and I saw what ended up being Mr. Vaile walking out of the parking lot from the east. Q Sir, how quickly did that gentleman move in going towards Mr. Vaile? A Immediately. Q Sir, based on that, can you tell us what did he say as he left? MR. KIDD: Objection, hearsay. THE COURT: Overruled. THE WITNESS: He said I have to stop him. 31 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
RP at 242-43.
The State, despite arguing this one unidentified witness’s comments qualified
under the excited utterance hearsay exception, refused and continues to refuse to agree
that Patricia Murray, when upset and startled on seeing law enforcement officers attack a
gentle man, could testify under the exception. The State denied and continues to deny the
admissibility of out-of-court statements by Darnai Vaile as being excited utterances
despite Vaile’s terror at being detained by law enforcement officers.
During closing, the State’s attorney intoned:
You heard from Deputy Criswell. He also responded to the scene. When he got to the scene, he testified he didn’t see any of the preliminary activities, but he saw the deputies, one on each arm, trying to control Mr. Vaile. He saw the knife that was lying on the ground. He testified that it looked to him as if Mr. Vaile was tossing the deputies around like they were rag dolls.
RP at 678. Sheriff Deputy Griffin Criswell never testified to any violence by Darnai
Vaile directed at the officers, let alone that he viewed Vaile tossing deputies like rag
dolls. The closing argument’s picture of Vaile simultaneously throwing two law
enforcement officers as if they were Raggedy Ann dolls catered to a stereotype of
African-American men as violent brutes bred to be large and strong. The prosecuting
attorney’s egregious fabrication removes any doubt that racism infected this prosecution
and ends any reluctance to pen this jeremiad.
The State’s attorney never explicitly mentioned Darnai Vaile’s ethnicity. But not
all appeals to racial prejudice are blatant. State v. Monday, 171 Wn.2d 667, 678 (2011).
32 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
As noted in Monday, a careful word here and there can trigger racial bias. A prosecutor
often activates biases, without expressly asserting the race card, through the use of coded
language or words or phrases that play on race and white Americans’ negative views of
Black Americans. State v. Bagby, 200 Wn.2d 777, 794, 522 P.3d 982 (2023). Appeal to
racial bias may be more effective with subtle references. Encrypted utterances allow the
speaker to appeal to prejudice and then deny that he or she intended any racist
malignment. Henderson v. Thompson, 200 Wn.2d 417, 432 (2022). Courts must be
vigilant of conduct that appears to appeal to racial or ethnic bias even when not expressly
referencing race or ethnicity. State v. Zamora, 199 Wn.2d 698, 714, 512 P.3d 512
(2022).
Prosecutors refer to a Black defendant’s actions, rather than the defendant himself,
as animalistic, brutish, and impulsive in order to evoke, in the minds of jurors, mental
models of Black people. Ryan Patrick Alford, Appellate Review of Racist Summations:
Redeeming the Promise of Searching Analysis, 11 MICH. J. RACE & L. 325, 349 (2006).
Prosecutors invoke the stereotype of a strong, Black man while telling the jury the
prosecution is not about race. Mary Nicol Bowman, Confronting Racist Prosecutorial
Rhetoric at Trial, 71 Case W. L. Rev. 39, 70 (2020). Prosecutors employ tactics to
distinguish a Black American defendant from characteristics of the white jury in order to
convey the thought that the defendant deserves no sympathy. State v. Bagby, 200 Wn.2d
777, 794-95 (2023).
33 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The prosecuting attorney’s labeling of Darnai Vaile as a dangerous Black man
differentiated Vaile from the Spokane white community and likely from members of the
jury. Since Cicero, rhetoric has employed the technique of “othering” others as someone
outside the moral community in order to induce a negative emotional response to a
category of other people. Ryan Patrick Alford, Appellate Review of Racist Summations:
Redeeming the Promise of Searching Analysis, 11 MICH. J. RACE & L. 325, 335 (2006).
Demeaning references to racial groups invite jurors to view a defendant as coming from a
different community than themselves. State v. Watkins, 526 N.W.2d 638, 641 (Minn. Ct.
App.1995).
One can argue that the conduct and remarks of the State’s attorney did not
influence the jury because the jury acquitted Darnai Vaile on the assault charges. But the
jury could have acquitted him on all charges without the misleading and racist comments.
Because the jury presumably believed the testimony of Vaile, Patricia Murray, and other
witnesses that Vaile did not assault the officers, one must wonder why the jury did not
believe testimony that Vaile submitted to detention. The evidence of resisting arrest is
weak when considering the jury acquitted Vaile on the charges of assault. The result
suggests a compromise verdict by the jury because of racial bias against Vaile.
Studies show that simple racial cues affect the way a juror evaluates evidence.
State v. Bagby, 200 Wn.2d 777, 795 (2023). Racial bias affects a juror’s decision without
his or her awareness. Henderson v. Thompson, 200 Wn.2d 417, 433 (2022).
34 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
The State’s attorney would deny any racial motivation for his comments.
Nevertheless, when determining whether the accused received a fair trial, the Washington
Supreme Court does not ask whether the State’s attorney intentionally appealed to
racism. State v. Bagby, 200 Wn.2d 777, 791 (2023). No one admits to racism and will
genuinely resort to race neutral reasons when explaining biased comments. State v.
Bagby, 200 Wn.2d 777, 791 (2023). A court should focus on the racist rhetoric, not racist
prosecutors. A court must focus on the language not the moral culpability of the State’s
attorney. Mary Nicol Bowman, Confronting Racist Prosecutorial Rhetoric at Trial, 71
Case W. L. Rev. 39, 46 (2020). The Washington Supreme Court has instructed courts not
to base decisions on the subjective intent of government actors, but on the viewpoint of
an objective observer who has studied the history of persistent racism in America and
who recognizes how race discrimination impacts the justice system in nonexplicit,
implicit, and unstated ways. Henderson v. Thompson, 200 Wn.2d 417, 422 (2022); State
v. Jefferson, 192 Wn.2d 225, 249, 429 P.3d 467 (2018) (plurality opinion).
The United States Constitution prohibits racially based prosecutorial arguments.
McClesky v. Kemp, 481 U.S. 279, 309 n.30, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987). A
plea to the jury based on color and race, no matter how artfully phrased, constitutes an
appeal to prejudice and passion that violates every basic concept of fair trial. People v.
Hearns, 18 A.D.2d 922, 923, 238 N.Y.S.2d 173 (1963). Exploitation of race in a
criminal trial is as offensive to constitutional principles as the enforced segregation of
races in the courtroom. Johnson v. Virginia, 373 U.S. 61, 83 S. Ct. 1053, 10 L. Ed. 2d
35 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
195 (1963). Race based prosecutorial misconduct can never be harmless error.
Henderson v. Thompson, 200 Wn.2d 417, 421 (2022).
Dismissal as Remedy
This court reverses and remands for a new trial the conviction for resisting arrest
on evidentiary grounds rather than for improper racist comments. Since the undisputed
facts, including the trial transcript, demonstrate racial prejudice blighting the prosecution
of Darnai Vaile, I would also reverse the conviction on the basis of the State inserting
racial stereotypes into the trial. But I would go further. I would ask the parties to submit
briefing on whether the case should be dismissed for government misconduct. I would
direct counsel to include, in a discussion of government misconduct, the conduct of law
enforcement at the Peking Palace, the charging of Vaile with resisting arrest under the
circumstances when he was not charged with any other crime such that law enforcement
lacked cause to arrest, the overcharging of counts of resisting arrest, the uneven advocacy
of evidentiary rules by the State, the racial innuendoes employed by the prosecutor at
trial, and the cumulative effect of the numerous instances of State misconduct.
Washington law affords two avenues for dismissing prosecutions for government
misconduct: (1) court rule, and (2) constitutional fiat. State v. Solomon, 3 Wn. App. 2d
895, 908-10, 419 P.3d 436 (2018). A court rule, CrR 8.3(b), reads:
On Motion of Court. The court, in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial. The court shall set forth its reasons in a written order.
36 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
(Boldface omitted.) Under the due process clause, the court may dismiss a prosecution
for outrageous government conduct. State v. Myers, 102 Wn.2d 548, 551, 689 P.2d 38
(1984).
The court rule appears to allow dismissal on lesser grounds, since it encompasses
mismanagement and mismanagement rarely embraces outrageous conduct. CrR 8.3(b)
assumes government conduct after charging and within the context of the prosecution.
The due process clause generally entails law enforcement conduct leading to the
prosecution.
A defendant must make two showings to justify dismissal under CrR 8.3(b): (1)
arbitrary action or governmental misconduct, and (2) prejudice affecting the defendant’s
right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003); State v.
Barry, 184 Wn. App. 790, 797, 339 P.3d 200 (2014). This rule allows a court to dismiss
a criminal prosecution in the furtherance of justice. State v. Whitney, 96 Wn.2d 578, 637
P.2d 956 (1981). Government misconduct can be something as basic as simple
mismanagement. State v. Michielli, 132 Wn.2d 229, 239, 937 P.2d 587 (1997); State v.
Barry, 184 Wn. App. 790, 797 (2014). The conduct need not be evil or dishonest. State
v. Laureano, 101 Wn.2d 745, 762, 682 P.2d 889 (1984), overruled on other grounds,
State v. Brown, 111 Wn.2d 124, 133, 761 P.2d 588 (1988); State v. Kone, 165 Wn. App.
420, 433, 266 P.3d 916 (2011). The court rule seeks to ensure that one charged with
crime is fairly treated. State v. Whitney, 96 Wn.2d 578, 580 (1981).
37 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Due process principles can bar the government from invoking the judicial process
when law enforcement officers acted outrageously. United States v. Russell, 411 U.S.
423, 431-32, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (1973). A due process claim based on
outrageous conduct requires more than a mere demonstration of flagrant police conduct.
State v. Myers, 102 Wn.2d 548, 551 (1984). The conduct must be so shocking that it
violates fundamental fairness. State v. Lively, 130 Wn.2d 1, 19, 921 P.2d 1035 (1996);
State v. Solomon, 3 Wn. App. 2d 895, 909 (2018). The conduct must also be repugnant
to a sense of justice. State v. Lively, 130 Wn.2d 1, 26 (1996). Dismissal based on
outrageous conduct is reserved for only the most egregious circumstances. State v.
Pleasant, 38 Wn. App. 78, 83, 684 P.2d 761 (1984). The defense of government
misconduct is nearly impossible to establish. State v. Markwart, 182 Wn. App. 335, 348,
329 P.3d 108. Whether the State has engaged in outrageous conduct is a matter of law,
not a question for the jury. State v. Lively, 130 Wn.2d 1, 19 (1996).
The Washington Supreme Court held conduct to be outrageous in one case
wherein an undercover officer developed a close relationship with a troubled woman.
State v. Lively, 130 Wn.2d 1 (1996). This court held conduct to be outrageous, in State v.
Solomon, 3 Wn. App. 2d 895 (2018), when law enforcement persistently solicited Joshua
Solomon to engage in sex with a fictitious minor.
A court may dismiss the charges on its own motion. State v. Lewis, 115 Wn.2d
294, 298, 797 P.2d 1141 (1990). An appellate court should neither weigh the underlying
38 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
facts nor resolve factual disputes when resolving an outrageous governmental misconduct
claim. State v. Valentine, 132 Wn.2d 1, 23-24, 419 P.3d 436 (2018).
Dismissal of charges is an extraordinary remedy. State v. Puapuaga, 164 Wn.2d
515, 526, 192 P.3d 360 (2008); State v. Barry, 184 Wn. App. 790, 797 (2014). The
remedy is available only when the State misconduct materially affected the rights of the
accused to a fair trial and that prejudice cannot be remedied by granting a new trial. State
v. Laureano, 101 Wn.2d 745, 762-63 (1984); State v. Baker, 78 Wn.2d 327, 332-33, 474
P.2d 254 (1970).
Unlike the facts behind other decisions, grounds for dismissal of charges against
Darnai Vaile cover both police action and State action at the time of and after the
charging decision. So, dismissal could invoke both due process principles and rules
under CrR 8.3(b).
I recognize that no Washington case law supports dismissal solely for the conduct
of the Spokane County sheriff deputies toward Darnai Vaile. Also, no Washington ruling
supports dismissal of a prosecution solely as the result of one of the State’s discreet acts
when overcharging crimes, charging the crime of resisting arrest when not charging for
any underlying crime, insisting on inconsistent application of evidentiary rules, or
employing racist innuendoes during trial. Finally, if this court’s majority would have
issued correct rulings, any government misconduct in conducting the trial might be
avoided at retrial. But the singular acts of misbehavior and mismanagement in Vaile’s
detainment and prosecution did not occur alone or in isolation. No other reported
39 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
decision entails such extended and cumulative misconduct based on racial bigotry and
stereotypes.
The cumulative effect of all police and prosecution action may warrant dismissal.
In United States v. Cromitie, 727 F.3d 194, 221 (2d Cir. 2013), the federal appeals court
found that the government did not violate the due process clause by its conduct, but the
court viewed the conduct cumulatively.
More importantly, past attempts by the Washington Supreme Court to end racism
within the criminal justice system have not succeeded. Some prosecuting attorneys
continue to employ dog whistles, and this appellate court refuses to condemn the
prosecution’s appeals to racial bias during trial. Removing racism from Washington’s
criminal justice system may demand dismissal of prosecutions infected by appeals to
racial prejudice. As declared by the Supreme Court, as our understanding and
recognition of implicit bias evolves, our procedures for addressing it must evolve as well.
State v. Behre, 193 Wn.2d 647, 663, 444 P.3d 1172 (2019).
Racism continues to be endemic and its harms not confined to any place.
Henderson v. Thompson, 200 Wn.2d 417, 421 (2022). Racial bias is a common and
pervasive evil that causes systemic harm to the administration of justice. State v. Behre,
193 Wn.2d 647, 657 (2019). We owe a duty to reduce and eradicate racism and
prejudice. Henderson v. Thompson, 200 Wn.2d 417, 421 (2022). Discrimination on the
basis of race, odious in all respects, is especially pernicious in the administration of
40 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
justice. Pena-Rodriguez v. Colorado, 580 U.S. 206, 223, 137 S. Ct. 855, 197 L. Ed. 2d
107 (2017).
I follow the dissent of Judge John Schultheis in State v. Valentine, 75 Wn. App.
611, 879 P.2d 313 (1994) in summoning supplemental briefing as authorized by
RAP 12.1(b) and deciding the case on this basis. Short of this court agreeing to
additional briefing, I would reverse the conviction and dismiss the charges.
Majority Critique of Dissent
I now respond to criticisms penned by this court’s majority toward the dissent.
The court majority writes that the Washington Supreme Court’s open letter of June
2020 did not solicit an individual court’s quixotic quest to ferret for racism in discrete
cases. In State v. Bagby, 200 Wn.2d 777, 797 (2023) and Henderson v. Thompson, 200
Wn.2d 417 (2022), the Supreme Court repudiated this narrow reading of the open letter.
Even if the Washington Supreme Court had never authored a letter instructing courts to
address racism, this court should willingly take all measures to end racism.
The court majority refuses to review the racial bigotry in Darnai Vaile’s
prosecution in part because Vaile did not explicitly include the word racism in any
assignment of error. The court also refuses in part to confront the racism because its
reversal of the conviction on other grounds purportedly moots the need to address
whatever racism exudes from the prosecution. Three responses rejoin the majority’s
rationalizations for declining to confront racism.
41 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
First, the majority fails to comprehend how racism influences an entire
proceeding, including the evidentiary issues that the majority addresses. Seemingly
insignificant racist comments or isolated conduct inside a legal proceeding pollute the
entire prosecution.
Second, as a result of the court’s refusal to recognize and condemn the racism, the
State, on retrial, will repeat advocacy of uneven application of evidence rules and employ
racist tropes. The court majority’s ruling allows the State to convict Darnai Vaile on
retrial while again denying Vaile a fair trial. This court often addresses unnecessary
issues because of the potential for repetition on remand for another trial. State v.
Gregory, 158 Wn.2d 759, 800-01, 147 P.3d 1201 (2006), overruled on other grounds
by State v. W.R., Jr., 181 Wn.2d 757, 336 P.3d 1134 (2014); State v. Williams, 81 Wn.
App. 738, 744, 916 P.2d 445 (1996).
Third, because of the racism, the dissent backs dismissal of the charges, not a
retrial, or at least the exploration of a dismissal after further briefing from the parties.
Thus, recognizing the State’s racist prosecution makes a difference in the outcome of this
appeal.
The majority of the court pans the dissent for wandering from the arguments
asserted by Darnai Vaile. In so doing, the court cites only federal cases for the
proposition that the court should not raise errors unassigned by the parties. United States
v. Sineneng-Smith, ___ U.S. ___, 140 S. Ct. 1575, 1579, 206 L. Ed. 2d 866 (2020);
McNeil v. Wisconsin, 501 U.S. 171, 111 S. Ct. 2204, 115 L. Ed. 2d 158 (1991). But the
42 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Federal Rules of Appellate Procedure lacks a provision similar to Washington’s RAP
12.1(b).
RAP 12.1(b) declares:
(b) Issues Raised by the Court. If the appellate court concludes that an issue which is not set forth in the briefs should be considered to properly decide a case, the court may notify the parties and give them an opportunity to present written argument on the issue raised by the court.
(Boldface omitted.) This court could, but refuses to, ask the parties to address the
prejudicial undertones and overtones in the prosecution of Darnai Vaile.
Pursuant to RAP 12.1(b), this court has repeatedly asked the parties to brief issues
not presented in the parties’ appellate briefs. RAP 12.1(b) means exactly what it says:
this court may raise issues sua sponte and may rest its decision thereon. Obert v.
Environmental Research & Development Corp., 112 Wn.2d 323, 333, 771 P.2d 340
(1989); Alverado v. Washington Public Power Supply System, 111 Wn.2d 424, 429, 759
P.2d 427 (1988); Dalton M, LLC v. North Cascade Trust Services, Inc., 20 Wn. App. 2d
914, 942, 504 P.3d 834, review granted sub nom. Dalton M, LLC v. U.S. Bank National
Association, 200 Wn.2d 1016, 520 P.3d 969 (2022). Contrary to the two citations
forwarded by the majority, even federal courts frequently decide crucial issues that the
parties fail to present. Silber v. United States, 370 U.S. 717, 717-18, 82 S. Ct. 1287, 8 L.
Ed. 2d 798 (1962); Boynton v. Commonwealth of Virginia, 364 U.S. 454, 457, 81 S. Ct.
182, 5 L. Ed. 2d 206 (1960).
In Dalton M, LLC v. North Cascade Trust Services, Inc., 20 Wn. App. 2d 914
(2022), this division of the Court of Appeals recently denied the prevailing party fees on 43 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
one ground but directed the parties to brief whether fees should be granted on a separate
ground not raised by the winner. This court skews its priorities when it reaches out to
ensure that the prevailing party in a civil suit receives an award of fees and costs, but
refuses to address the virus of racial bigotry in a prosecution.
The majority opinion critiques the dissent as viewing the evidence in a light
favorable to Darnai Vaile, the losing party. But in analyzing whether dismissal is
warranted, this dissent considers the testimony of the law enforcement officers as verity
despite none of the bystanders or the victim confirming the testimony. I agree, for
purposes of this dissent, that Vaile walked briskly toward the officers, refused to
immediately sit, and insisted on telling his side of the story. I agree that the officers
thought that a big Black man ambulating toward them was a threat to their safety. I agree
that the officers were momentarily concerned about the knife. I agree that Vaile, like
other Black men, feared detention by law enforcement officers and did not immediately
submit to the authority of white law enforcement officers. But all of these undisputed
facts do not justify the battering of Darnai Vaile or charges of resistance. Rather the facts
demonstrate that law enforcement when detaining Vaile and the State when prosecuting
Vaile viewed the conduct of Vaile through the lens of white people who hold stereotypes
of African-Americans as angry, aggressive, rebellious, and uncooperative. Black citizens
are frightening to white people, particularly after dark.
The undisputed facts also establish that Darnai Vaile never verbally or physically
threatened the officers, never swung at an officer, and told the officers he wanted to
44 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
cooperate. Vaile did not pull his knife on officers, and officers did not know of the knife
until Vaile volunteered its presence. Vaile legally possessed the knife. The trial
transcript undeniably confirms the State’s employment of racist dog whistles.
The court majority writes that the dissent relies on facts outside the record. The
court does not identify those purported facts outside the record. The majority, by this
contention, likely faults the dissent for assuming a racist intent behind the law
enforcement officers’ actions and the State attorney’s presentation of the prosecution’s
case against Darnai Vaile. The majority likely considers the dissent, when extrapolating
racism, to have drawn inferences in a light favorable to Vaile rather than the prevailing
party, the State. The majority likely also disapproves of the dissent’s mining of history,
newspaper articles, law review articles, and literature on the subject of racial
discrimination and hatred in America at large and in Spokane County in particular.
In recent decisions the Washington Supreme Court has molded a new standard of
review whereby a court evaluates remarks uttered by or conduct of a participant in the
judicial process. The reviewing court must not seek to discern the subjective intent of the
actor or speaker. Instead, the court must assume the role of a person who understands the
history of race and ethnic discrimination and who knows that implicit, institutional, and
unconscious bias, in addition to purposeful discrimination, impacts verdicts. State v.
Bagby, 200 Wn.2d 777, 797 (2023); Henderson v. Thompson, 200 Wn.2d 417, 422
(2022); State v. Zamora, 199 Wn.2d 698, 718 (2022); State v. Behre, 193 Wn.2d 647,
664-65 (2019). A judge should not view the challenged remarks from the judge’s own
45 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
perspective. Henderson v. Thompson, 200 Wn.2d 417, 438 (2022). Presumably this
latter principle lacks importance if the judge already understands, based on a study of
history, that implicit and explicit racism continue to pollute the American justice system.
The Washington Supreme Court’s new standard of review assumes that a judge
possesses an education about the history of race relations in the United States. Yet a
judge need not have taken any history courses to attend law school or answer any history
questions on the bar examination. Presumably the Supreme Court desires for a judge
who lacks an understanding of race relations in United States to seek continuing
education on the subject. Ostensibly the state high court encourages judges to peruse and
employ history, newspaper articles, and essays on racism. The Washington Supreme
Court does so in its own decisions.
The Washington Supreme Court’s new standard of review further assumes that an
objective observer of history will conclude that racial minorities in the United States have
faced rampant bigotry and that white supremacy still prevails in America. The high
court’s new standard also assumes that all objective students of the criminal justice
system will have adjudged the system to discriminate against ethnic minorities in
implicit, unconscious, and institutional ways.
In its recent decisions, the Washington Supreme Court adopted what it calls the
“objective viewpoint” of history as its own view. Nevertheless, scores of Washington
judges also consider themselves to understand history from an objective standpoint and
do not share this belief of continuing white supremacy or discrimination against racial
46 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
minorities in the United States, let alone in the American criminal justice system. Many
Americans, including some judges, lament that reverse discrimination now poisons and
ruins the United States.
I return to the court majority’s assessment of this dissent. This court’s majority
also impliedly slates the dissent as exhibiting partiality, rather than neutrality, when
exploring racism arising from the treatment of Darnai Vaile. This criticism bleeds into
the majority’s suggestion that the dissent considers the evidence in a light favorable to
Vaile and reviews facts outside the record. The criticism conflates with the unstated
reproach by the majority of the dissent for relying on history and current events. By so
criticizing the dissent for partiality, the majority raises critical questions about the nature
of judging and the role of judges. The majority tacitly disagrees with an appellate judge
drawing conclusions from prosecutorial conduct based on a viewpoint of history
demonstrating racism and institutional biases impacting the judicial system. The majority
wordlessly rebuffs any role of a judge in proactively ending racism.
In response to the court majority’s criticism, I unreservedly side with the
Washington Supreme Court that an appellate judge should base decisions on the
assumption that racial prejudice continues to unfairly impact racial and ethnic minorities.
I conclude with the Supreme Court that history objectively establishes a long saga of
racism that continues to impact decision making in America’s judicial system. No one
can seriously scrutinize history and current events without seeing rampant racism.
47 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
In response to this court majority’s accusation of partiality, I plead guilty. I
confess to this bias because of America’s elongated history of slavery, servitude, the Ku
Klux Klan, White Citizens’ Councils, night riders, Christian cross burnings, violence,
lynching, hatred, terrorism, domination, bodily intrusion, rape, whipping, intimidation,
exclusion, insults, racist jokes, slurs, belittling, unfairness, arbitrariness, stereotyping,
condescension, misunderstanding, profiling, driving while Black, walking while Black,
law enforcement brutality, false indictments, pretend accusations, impossible bail, all-
white juries, presumptions of guilt, acquittals for white on Black violence, summary
convictions, wrongful convictions, unequal punishment, inhumane jails, Jim Crow laws,
segregation, restrictive covenants, separate but equal, job discrimination, labor union
discrimination, credit discrimination, insurance discrimination, neighborhoods exposed to
environmental hazards, unsafe housing, inferior schools, the Southern Manifesto, massive
resistance, subpar medical care, high infant mortality rates, decreased life expectancy,
inability to create wealth, voting restrictions, false allegations of voter fraud, poll taxes,
literacy tests, whitewashing of history, flying of Confederate battle flags, idolization of
the Confederacy, rejection of affirmative action, refusal to utter the simple phrase “Black
Lives Matter,” and charges of perseveration leveled against African-Americans when
asserting legal rights. I am convinced of persistent racism because of history’s proven
axiom that no group in power willingly relinquishes it.
When following the Washington Supreme Court’s instruction to consider the
lessons of history when rendering decisions, I apply the aphorism that iconic pictures
48 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
supersede the written page in explaining history, and my mind fixes on photographs,
moving pictures, and diagrams sketched into memory. I am moved to partiality against
racism when I conjure the diagram of Brookes’ slave ship, the daguerreotype showing the
back of a whipped slave, images of Black men hanging from trees as white crowds mill
about below, the photograph of Emmet Till’s indiscernible and mutilated face lying in an
open casket, footage of grotesque, angry white visages screaming at Elizabeth Eckford as
she sought to enter Central High School, a view of Medgar Evers’ blood staining his
driveway, a snapshot of gleeful Sheriff Lawrence Rainey jawing on chewing tobacco
during his trial for murdering James Chaney, Andrew Goodman, and Michael Schwerner,
the audio of the unyielding voice of Fannie Lou Hammer pleading for her vote to count
before a Democratic National Convention committee, a photoshot of the bombed ruins of
Birmingham’s 16th Street Baptist Church, movies of girls clinging to trees as Bull
Connor’s fire hoses shoot high pressure water and attack dogs bark, the print of Andrew
Young pointing from the balcony of the Lorraine Motel, blurry videotape exposing the
clubbing and kicking of Rodney King, mugshots of the Central Park Five, pages of Jim
Crow laws, and living documents imposing racial property covenants all provoke tearful
emotion and compel anguished sympathy for the African-American race.
History persists. The historic examples of violent and discriminatory treatment of
African-Americans engrained in my memory repeat themselves today, as if recurring
nightmares, in new forms, patterns, circumstances, and locations. Body camera footage
of a smug Derek Chauvin kneeling on the neck of George Floyd, cellphone video of
49 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Gregory and Travis McMichael chasing a jogging Ahmed Aubery with the
accompanying sound of a shotgun blast, the haunting 911 recording of Kenneth Walker
hysterically sobbing and repeating that his girlfriend, Breonna Taylor, is dead after being
shot by law enforcement officers, edited footage of Darryl Tyree telling Raleigh police
officers he suffers heart problems as the officers repeatedly discharge stun guns, and film
of law enforcement officers brutally and repeatedly punching and kicking Tyre Nichols
inform me that skin-based bigotry endures in America and my empathy must endure.
When considering explicit race discrimination in America and its impacts on
Darnai Vaile’s prosecution in nonexplicit, or implicit, unstated, ways, I also consider the
venue for Darnai Vaile’s arrest and prosecution. African-Americans in Spokane
currently encounter a poisonous milieu of overt acts of racism as described in articles
cited below. The bigoted incidents occur within the backdrop of the Inland Northwest of
northeastern Washington and northern Idaho being a mecca for white supremacy groups
since the 1970s. Shawn Vestal, NIC board scores big with Holocaust denier, not so
much the bond raters, The Spokesman-Review, January 6, 2023; Racist letter delivered
to Congressional candidate prompts police response in Spokane Valley, The Spokesman-
Review, December 9, 2022; Gonzaga class taught by woman of color disrupted by
“violent behaviors,” The Spokesman-Review, September 16, 2021; Washington
Legislator Matt Shea Accused Of “Domestic Terrorism,” Report Finds, npr.org.,
December 20, 2019; Chad Sokol, Racist propaganda targets diversity event at North
Idaho College, The Spokesman-Review, April 15, 2019; Daniel Walters, Sheriff Ozzie on
50 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
GOP chair who hosted white supremacist: Told you so, Inlander, August 2, 2018; Daniel
Walters, Spokane GOP chair hosts white supremacist James Allsup at event, accuses
media of “label lynching,” Inlander, July 31, 2018; Spokane family forced to move after
racist threats left on their door, KHQ News, June 20, 2018; Shawn Vestal, Burmese
Refugee came too far to be greeted by flyer, The Spokesman-Review, March 22, 2017;
Jason Le Miere, Race in America: “White Genocide” Warning Signs Posted at NAACP
Building, Newsweek, March 16, 2017. A 2018 FBI Hate Crimes Report chronicled that
Spokane experienced more hate crimes than Des Moines, Iowa, Madison, Wisconsin,
Portland, Oregon, and Tacoma, Washington combined. Megan Carroll, Hate groups
alive and well in Spokane region, March 20, 2017, Spokane FAVS; “Spokane Office Of
Civil Rights Equity and Inclusion, Spokane Community Against Racism,”
https://www.scarspokane.org/blog/2021/12/2/spokane-office-of-rights-equity-and-
inclusion.
Conduct by and pronouncements from influential, powerful, and connected
Spokane County citizens thicken toxic clouds of bigotry and animosity hovering over
Spokane’s criminal justice system. A former mayor of Spokane County’s City of Airway
Heights referred to President Barack Obama as “monkey man” and Michelle Obama as
“gorilla face.” Eli Francovich, “Airway Heights Council asks mayor to resign following
Facebook post,” The Spokesman-Review, July 14, 2015; “Airway Heights mayor rejects
v calls to resign over online comments,” Spokesman Review, July 15, 2015; “75+ more
questionable posts by Airway Heights Mayor Patrick Rushing,” The Inlander, July 15,
51 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
2015. Matt Shea, a member of the Washington State House of Representatives from
Spokane Valley from 2009 to 2021, wrote a pamphlet entitled the Biblical Basis for War
that advocated replacement of democracy with a theocracy and the killing of all males
who do not adhere to Christianity or agree to follow fundamentalist Biblical law.
Washington Legislator Matt Shea Accused Of “Domestic Terrorism,” Report
Finds, npr.org., December 20, 2019. The pamphlet copied operational philosophy from
the Aryan Nation, once headquartered in northern Idaho. Washington Legislator Matt
Shea Accused Of “Domestic Terrorism,” Report Finds, npr.org., December 20, 2019.
Shea participated in activities of groups that seek to create a white homeland consisting
of Idaho, Montana, Wyoming, Oregon and Washington. Chad Sokol, Washington state
lawmaker Matt Shea defends advocacy for “Holy Army” as Spokane sheriff refers his
writings to FBI, The Spokesman-Review, November 1, 2018. After the Spokane chapter
of the NAACP condemned the action of Representative Shea, City of Spokane Valley
Mayor Rod Higgins defended the conduct of Shea and insisted on Shea being the target
of unfair attacks. Chad Sokol, Spokane Valley mayor comes to Shea’s defense after
report on anti-government plotting, The Spokesman-Review, December 24, 2019.
When viewing Darnai Vaile’s arrest and prosecution from the standpoint of an
objective observer who recognizes the impact of racism on the criminal justice system, I
notice that racial minorities suffer discrimination at the hands of Spokane County law
enforcement.
The Burns Institute and the Vera Institute of Justice have both documented disparities in people of color being detained and confined pre- 52 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
trial in Spokane County. In Spokane County in 2014 for every 1 White adult detained ● 7.1 Black adults were detained ● 1.7 Latino adults were detained ● 6.2 Native American adults were detained In addition, a separate report from the Burns Institute, documented higher bail amounts being given to Native and Black men. While these reports are pre-pandemic, there is no data to show that these disparities have changed. In fact, the case review criteria and subsequent releases are most likely exacerbating the existing disproportionality, resulting in people of color remaining in incarceration at even higher disproportional percentages.
Smart Justice Spokane Coalition Is Extremely Concerned About Racial Inequities In
Recent Jail Releases, Peace and Justice Action League of Spokane, April 22, 2020.
A 2019 report prepared by the JFA Institute, a criminal justice research agency
contracted by Spokane County, listed a disproportionate rate of incarceration rates of
people of color than for whites, detrimental processing delays in filing charges, and an
increasing racial disparity of criminal charges within the county. SCAR, July 22,
2022; Doug Nadvornick, Spokane County Bar Tackles Systemic Racism, Spokane Public
Radio, September 25, 2020. An analysis performed by The Spokesman-Review and
released in June 2020 showed that, over the course of one year, a Black person in
Spokane was over five times more likely to be arrested by Spokane police than a white
person. Black Spokane residents are 5 times more likely to be arrested, new data show,
The Spokesman-Review, June 14, 2020.
In 2021, a three-hundred-page report commissioned by the Spokane Police
Department confirmed the use of force against Black and Native American arrestees
more than other populations. Megan Carroll, Report: Spokane police more likely to use 53 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
force against Black, Native Americans, KREM2 TV News, March 3, 2021. Black
suspects are nearly three times more likely to be identified in crime reports as we would
expect based on their population. Megan Carroll, Report: Spokane police more likely to
use force against Black, Native Americans, KREM2 TV News, March 3, 2021. Native
American suspects are 68% more likely to be identified as a suspect in a reported crime.
Megan Carroll, Report: Spokane police more likely to use force against Black, Native
Americans, KREM2 TV News, March 3, 2021. Black subjects are 22% more likely to
have force used against them, and Native Americans are 49% more likely. Megan
Carroll, Report: Spokane police more likely to use force against Black, Native Americans,
KREM2 TV News, March 3, 2021. The largest racial disparities observed were
discretionary searches by law enforcement officers of suspects. Megan Carroll, Report:
Spokane police more likely to use force against Black, Native Americans, KREM2 TV
News, March 3, 2021. Spokane Community Against Racism laments that the current
Spokane County prosecuting attorney has reduced by half referrals to therapeutic courts,
with a disproportionate impact on minorities. Larry Haskell Speaks for Himself, Spokane
Community Against Racism (scarspokane.org), July 22, 2022.
Then there is the elephant in the room. The elected Spokane County prosecuting
attorney’s wife declares herself a white nationalist, warns of a race war, decries the end
of the white race because of a low birth rate, called an African-American defendant and
his family “pieces of vile garbage who are evil scum, wastes on society who should be
annihilated,” proclaimed the use of racial slurs appropriate for Blacks, Chinese, whites,
54 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Hispanics, Jews, and gay people, and publicly employed the N-word for a Black
journalist. Aila Slisco, Prosecutor’s Wife Publicly Calls Herself “Proud White
Nationalist” To Much Backlash, Newsweek, January 28, 2022; Haskell apologizes for
wife’s racist comments on social media, but advocates say prosecutor needs to do more,
The Spokesman-Review, February 3, 2022; July 22, 2022, Lesley Haskell isn’t just
racist; she organizes racism,” https://www.scarspokane.org/blog/2022/7/21/lesley-
haskell-isnt-just-racist-she-organizes-racism; Daniel Walters, Lesley Haskell, wife of
Spokane County Prosecutor, calls herself ‘White nationalist,’ uses N-word as slur, The
Inlander, January 27, 2022; Bill Morlin, Washington State County Prosecutor Under Fire
For Wife’s Anti-Muslim Comments, Southern Poverty Law Center Hatewatch, March 10,
2015.
The Spokane County prosecuting attorney calls his wife’s comments racist, but
insists that she is not a racist. Daniel Walters, For over 12 years, Prosecutor Haskell’s
wife’s posts have sparked controversies about him and his office, Inlander, February 11,
2022. A public official’s refusal to recognize someone with such vigorous, vast,
vituperative, and venomous views to be racist defies reason and commonsense. This
denial impugns the integrity of the prosecuting attorney’s office. The minority
community fears less the overt racist than a public official who denies the existence of
widespread racism. The Spokane County prosecuting attorney, despite claiming his
wife’s views not to be his own, has failed to loudly and publicly denounce those
cherished views that once led to and prolonged slavery, continue to promote violence,
55 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
and incessantly and insidiously degrade the dignity of other human beings. Instead of
reaching out to the African-American community, the prosecutor expresses outrage that
the media uses his wife’s comments to question his impartiality. Daniel Walters, For
over 12 years, Prosecutor Haskell’s wife’s posts have sparked controversies about him
and his office, Inlander, February 11, 2022.
The Spokane County prosecuting attorney seeks to distance himself from his wife,
but his wife advertises her relationship with him. Lesley Haskell praises her husband’s
work while she preaches white supremacy. She proudly promotes her husband as the last
line of conservative armor against a city gone “to shit.” Daniel Walters, Lesley Haskell,
wife of Spokane County Prosecutor, calls herself ‘White nationalist,’ uses N-word as
slur, The Inlander, January 27, 2022. A supporter of a public official typically possesses
parallel perspectives to those held by the official.
Despite the long history of bigotry and hatred toward racial minorities, despite the
statistics about treatment of African-Americans in Spokane County, despite the overt
racist acts in the community, despite the bigoted views of influential community
members and leaders, and despite the racism exhibited by the prosecuting attorney’s wife,
the wheels of justice within Spokane County’s white power structure blithely turn with
the expectation that African-Americans will deem the criminal justice system unbiased
and will quiescently bow to the authority of law enforcement and courts.
This court has done nothing to restore confidence in the judicial system in the
estimation of the Spokane African-American community. The court majority’s lack of
56 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
comprehension and recognition of racism in the travail of Darnai Vaile follows this
court’s inability to understand the impact of racism in other cases. In State v. Bagby,
No. 36530-1-III (Wash. Ct. App. Apr. 20, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/365301_unp.pdf, rev’d, 200 Wn.2d 777, 522 P.3d
982 (2023), the deputy prosecuting attorney repeatedly employed the word “nationality”
to distinguish an African-American defendant from other witnesses, despite defendant
Tyler Bagby having been born in the United States and being a citizen. This appeals
court found “nothing to support an inference of racial bias in the prosecutor’s misuse of
the term.” (P. 4 of slip opinion). The Washington Supreme Court reversed this court.
In State v. Zamora, No. 37019-4-III (Wash. Ct. App. June 8, 2021) (unpublished),
https://www.courts.wa.gov/opinions/pdf/370194_unp.pdf, rev’d, 199 Wn.2d 698, 512 P.3d
512 (2022), the prosecuting attorney during voir dire repeatedly referred to border
security and drug smuggling despite United States citizen Joseph Zamora being on trial
for allegedly assaulting a police officer after Zamora was beaten nearly to death. This
court affirmed the conviction. We characterized the prosecutor’s remarks as improper,
but harmless. We denied that the conduct implicated ethnic or racial bias, despite
Zamora’s Latinx heritage. The Supreme Court reversed. The Court of Appeals also
refused to find a blatant appeal to racism as harmful in State v. Monday, 171 Wn.2d 667,
when the prosecutor talked about Black people maintaining a code of not testifying
against one another.
What was true fifty years ago remains true today:
57 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
Perhaps unconsciously, those who have major authority in the legal process tend to underplay the seriousness of racism in the judicial system, acknowledging the need for more progress, while extolling the elimination of overt segregation in the courts. These attitudes show little understanding of the continuing impact of racial bias on [B]lack victims of judicial injustice.
Derrick A. Bell, Jr., Racism In American Courts: Cause For Black Disruption Or
Despair?, 61 CAL. L. REV. 165, 165-66 (1973).
Because of the absence of a unanimous court condemnation of the prosecution in
this appeal, law enforcement officers and State attorneys will scoff at this dissent as an
outlying, if not outlandish, view. State prosecutors and local law enforcement will ignore
lessons to be learned by the thrusting of Darnai Vaile through the justice system and will
disregard the suffering imposed by their bigoted behavior on the life of Vaile. The
State’s trial attorney will repeat race baiting during the retrial of Vaile. The constant
silence of this court in this and other decisions dooms the criminal justice system to
additional years of festering racism.
The court’s majority also votes to reject publication of the majority opinion and
this dissent, which vote diminishes the broadcasting of an illustrative paradigm of racism
infecting Washington courts. The majority’s decision to unpublish echoes the conduct of
a local billboard proprietor. Lamar Advertising, which owns 1,300 billboard faces in
Spokane, North Idaho, and Central Washington, rejected three requests, submitted by
Spokane Community Against Racism, to purchase billboard space, in order to highlight
police brutality and racial injustice in Spokane. Lamar Advertising removes anti-mask
58 No. 37943-4-III State v. Vaile (concurring/dissenting in part)
billboards, declines to display 3 of 4 ads from anti-racism group, The Spokesman-
Review, August 5, 2020.
Not only historic and current examples of brutality and hatred and not only
statistics illustrating discrimination, but the travail of Darnai Vaile engenders my
sympathy and partiality against racism. But neither Vaile in particular, nor Spokane’s
African-American community in general, want nor need my tears, anguish, or empathy.
Nor do Vaile and his racial community ask me to deem them forever victims. Spokane’s
Black and other minority populations want and deserve from me and other judges, not
pity, but recognition of their humanity, respect for their dignity, thoughtful reflection on
their history, publication of their plight, and equal and fair treatment under the law.
I prefer to echo the chant of George Floyd protestors: “What do we want? Justice.
When do we want it? Now.” I prefer to parrot my friend Alec Stephens, who declares
proudly and loudly after every recitation of the Pledge of Allegiance: “And justice for
all.”
I concur in part, dissent in part.
________________________________ Fearing, C.J.
Related
Cite This Page — Counsel Stack
State of Washington v. Darnai Leon Vaile, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-washington-v-darnai-leon-vaile-washctapp-2023.