State Of Washington, V. Jake Hughes Walker, Jr.

• Court: Court of Appeals of Washington
• Decided: October 9, 2023
• Docket: 84079-7
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, No. 84079-7-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION JAKE HUGHES WALKER, JR.,

Appellant.

COBURN, J. — Jake Hughes Walker, Jr. was convicted of raping and assaulting

his long-term girlfriend, B.E. Walker challenges the trial court’s denial of his GR 37

objection to the State’s peremptory strike of a Latino juror based on the juror’s answer

to a voir dire question. Because the State did not exercise a peremptory challenge

against a seated “Caucasian” 1 juror who answered similarly, an objective observer

could view ethnicity as a factor in the use of the peremptory challenge. Following State

v. Tesfasilasye, 200 Wn.2d 345, 355-56, 518 P.3d 193 (2022), we reverse and remand

for a new trial.

FACTS

B.E. and Walker were in a romantic relationship for three years and lived

1 Jurors completed a questionnaire in which they were asked, “What category best describes you?” The categories included, “Caucasian” and “Hispanic, Latino, or Spanish origin.”

Citations and pincites are based on the Westlaw online version of the cited material. 84079-7-I/2

together in B.E.’s home in Seattle. On September 13, 2022, the two returned home

after attending a family event. During the evening and early morning, B.E. and Walker

left the home so Walker could purchase beer and methamphetamine. The two returned

home separately. B.E. testified that Walker was agitated and told her they were going

to bed.

Once B.E. was in bed, Walker aggressively inserted his hand into her vagina.

B.E. told Walker to stop and attempted to squirm away from him because it was painful.

B.E. felt Walker place his hand near her vagina and it felt like Walker “pulled down and

ripped.” B.E. immediately felt severe burning and blood rushing down her legs. She

placed a towel between her legs in an attempt to stop the bleeding and laid on the bed

in the fetal position. Walker refused to call 911. Walker continued to torment B.E.

physically and verbally as she laid in the fetal position. B.E. pleaded with Walker to stop

and urged him to lay down in an attempt to calm him.

After Walker laid down, B.E. testified that Walker grabbed her hair and attempted

to force his erect penis into her mouth in an attempt to force B.E. to perform oral sex.

B.E. resisted, Walker stopped and then strangled B.E. with both hands on her neck,

causing B.E. to be unable to breathe for “maybe 30 seconds.” Walker left the room and

returned holding a butter knife pointed at B.E. B.E. said Walker grabbed B.E. in a

headlock and dragged her down the hallway. B.E. eventually managed to get outside

and yell for help. Someone driving by stopped and called the police. Police arrived

several minutes later and separated Walker from B.E. Medics arrived and transported

B.E. to Harborview Medical Center via ambulance.

A gynecologist found severe injury to B.E.’s left labia minora requiring several

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stitches. Although B.E. initially declined a “rape kit” exam by a Sexual Assault Nurse

Examiner, she ultimately returned to the hospital three days later and consented to the

exam. The exam revealed scratches and bruises on B.E.’s arms, legs, back, and

buttocks, a cigarette burn on her right leg, and bruising and petechiae consistent with

strangling on B.E.’s neck.

Walker was arrested and charged with rape in the second degree (domestic

violence) and two counts of assault in the second degree (domestic violence). Walker

proceeded to trial in April 2022.

Voir Dire

Jury selection was held by Zoom 2 because of the ongoing COVID-19 pandemic.

Voir dire occurred via Zoom, with attorneys asking questions of different panels of

potential jurors.

During voir dire, the defense asked jurors whether they thought verbal consent to

sexual acts was required. The defense then asked jurors whether they believed, in the

context of a long-term intimate relationship or marriage, an “enthusiastic” verbal consent

was required before engaging in sexual acts. Juror 37, who identified himself as Latino 3

on his jury questionnaire, first asked the defense attorney to clarify the term

“enthusiastic.” The defense attorney explained that she meant verbal consent,

explaining her question as “do you need to basically ask them, may we engage in this

action, and does that response need to be yes?” Juror 37 answered, “Well, I’m going to

vote against because you can communicate without language.” Juror 40, who identified

2 Zoom is a cloud-based video conferencing software platform. 3 We follow the lead of both parties and use the term Latino to describe Juror 37 because, except for his response to the questionnaire, nothing in the record establishes a preference as to how Juror 37 wishes to otherwise be identified. 3 84079-7-I/4

as Caucasian, followed up by saying,

in some situations, actions might speak louder than words, especially if you’re in a long-term relationship or you’re married, you might not have to say an enthusiastic yes. I would think it would be more important to – for one of the partners to react to an enthusiastic ‘no’ or ‘stop’ as opposed to expecting to hear the word yes.

Juror 37 agreed by stating “Right. Right. Yeah. You can [say] yes or no without using

the words.” When Juror 40 was asked to again express her thoughts, she said,

I think that in some situations actions speak louder than words. And you can say yes or no by reacting to what’s happening to you. I think it’s probably more important if it’s something you don’t want, to say no or stop as opposed to saying an enthusiastic yes. I think sometimes actions mean yes.

Several other jurors responded to the defense attorney’s questions echoing Juror 37’s

statements that long-term partners or spouses could communicate consent nonverbally.

Juror 47, who identified as Caucasian, said,

I pretty much agree with what most of the other jurors have said and the fact that consent doesn’t always have to be verbal. It can be body language. But consent, it does need to be given . . . Lack of consent would be communicated as well whether that’s a verbal or physical denial.

After excusals for hardships, voir dire, and for-cause challenges, the court allowed each

party to make eight peremptory challenges. After both parties exercised four

peremptory challenges, jurors 37 and 40 were both seated to be in the petit jury. 4 The

State exercised its fifth peremptory challenge to excuse Juror 37. The defense objected

citing GR 37, noting that Juror 37 was one of few minorities on a largely white panel and

that Juror 37 identifies as “Hispanic, Latino, or Spanish origin.” The trial court then

asked the State to explain its reasoning for the peremptory challenge against Juror 37.

4 A “petit jury” is a “body of persons twelve or less in number in the superior court . . . sworn to try and determine a question of fact.” RCW 2.36.010(13). 4 84079-7-I/5

The State explained that “[m]ostly it was based upon the – Juror No. 37’s responses to

the issues of consent, his understanding of consent in a marital relationship which I

think differed from many people on the panel.” The defense attorney asserted that “I

think to a disinterested viewer here, I think there’s the possibility that race plays a factor

in it and a disinterested viewer’s analysis of this.”

The court overruled the defense objection, stating,

Well, the analysis the Court engages in, as [the defense attorney] just alluded to is whether a disinterested objective viewer looking at this jury selection process would think that race may be playing in [sic] role in the State’s – or any party’s exercise of its peremptory challenge. I find that the reason articulated by the State does not have any relation to racial characteristics and is not indicative of possible racial animus. So I’m going to overrule the objection and allow the peremptory challenge to Juror 37.

The defense used its fifth peremptory challenge to excuse Juror 32, who was

replaced by Juror 47, who also shared the same views as Juror 37 and Juror 40. The

State used its three remaining peremptory challenges against jurors other than Juror 47.

The final petit jury included jurors 40 and 47. Walker was ultimately convicted on all

counts.

Walker now appeals.

DISCUSSION

Walker argues that the trial court improperly permitted the State’s peremptory

challenge of a Latino juror despite Walker’s objection under GR 37. We agree.

The Washington Supreme Court has applied de novo review of GR 37 objections

where “there were no actual findings of fact and none of the trial court’s determinations

apparently depended on an assessment of credibility.” Tesfasilasye, 200 Wn.2d at 356.

Such is the case here.

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Both the state and federal constitutions require trial by an impartial jury. U.S.

Const. amend. VI; Wash. Const. art I, § 22. Parties and jurors have the right to a trial

process free from discrimination. Powers v. Ohio, 499 U.S. 400, 409, 111 S. Ct. 1364,

113 L. Ed. 2d 411 (1991). Although not required by the constitution, tradition, statutes,

and court rules have created peremptory challenges allowing parties to strike a limited

number of otherwise qualified jurors without providing a reason. Tesfasilasye, 200

Wn.2d at 356; RCW 4.44.130, .140; CrR 6.4(e). The use of peremptory challenges is

justified because trial attorneys “have instincts about which jurors will be best for their

case” and peremptory challenges allow parties “to rely on their instincts and

experiences to select a jury that they think will be best for their case.” State v. Lahman,

17 Wn. App. 2d 925, 932, 488 P.3d 881 (2021).

Because there is a history of using peremptory strikes as a way to eliminate

potential jurors on the basis of racial stereotypes, GR 37 was created to “eliminate the

unfair exclusion of potential jurors based on race or ethnicity.” GR 37(a); Tesfasilasye,

200 Wn.2d at 357. The goal of the rule was to address the shortcomings of Batson v.

Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), which makes it “difficult

for defendants to prove discrimination even where it almost certainly exists” because it

requires a trial court to find a purposeful discriminatory purpose without considering

systemic or unconscious racial bias. Tesfasilasye, 200 Wn.2d at 357.

Under GR 37(c), a party or court may object to the use of a peremptory challenge

to raise the issue of racial or ethnic bias. Upon an objection under this rule, the party

seeking to use its peremptory challenge must articulate the reasons that the peremptory

challenge was exercised. GR 37(d). The trial court must then evaluate the reasons

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given to justify the peremptory challenge in light of the totality of the circumstances. GR

37(e). GR 37(g) outlines a non-exhaustive list of circumstances the trial court should

consider, including whether other prospective jurors provided similar answers but were

not the subject of a peremptory challenge by that party. GR 37(g)(iii). “If the court

determines that an objective observer could view race or ethnicity as a factor in the use

of the peremptory challenge, then the peremptory challenge shall be denied.” GR 37(e)

(emphasis added). The court need not find purposeful discrimination to deny the

peremptory challenge. Id. For the purposes of this rule, “an objective observer is aware

that implicit, institutional, and unconscious biases, in addition to purposeful

discrimination, have resulted in the unfair exclusion of potential jurors in Washington

State.” GR 37(f). The remedy for an improper peremptory excusal under GR 37 is to

reverse the convictions without prejudice and remand for a new trial. Tesfasilasye, 200

Wn.2d at 362.

Here, during voir dire, the defense posed a question about the expression of

consent to sexual acts in a long-term relationship or marriage to the entire voir dire

panel, asking if “enthusiastic” verbal consent was always required. In response, Juror

37, a Latino man, responded that he did not agree because couples could

“communicate without language.” Several other jurors who identified as Caucasian

expressed the same opinion as Juror 37. One of them, Juror 40, was seated to be in

the petit jury at the time the State exercised its fifth peremptory on Juror 37.

Juror 40, a Caucasian woman, had stated earlier during voir dire

I think in some situations, actions might speak louder than words, especially if you’re in a long-term relationship or you’re married, you might not have to say an enthusiastic yes. I would think it would be more

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important to – for one of the partners to react to an enthusiastic ‘no’ or ‘stop’ as opposed to expecting to hear the word yes.

Juror 37 agreed with Juror 40 by saying, “Right. Right. Yeah. You can [say] yes or no

without using the words.” When asked to restate this view, Juror 40 said, “some situations

actions speak louder than words. And you can say yes or no by reacting to what’s

happening to you . . . I think sometimes actions mean yes.”

At the time the State had four peremptory challenges remaining, two jurors were

seated in the potential petit jury who expressed the same opinion that consent can be

expressed through non-verbal communication between partners in a long-term

relationship. One was Latino, Juror 37, and the other was Caucasian, Juror 40. The

State chose to exercise a peremptory against the Latino juror and not the Caucasian

juror.

The circumstance here is analogous to Tesfasilasye, in which the State used a

peremptory challenge against a Latino juror based on his answers in voir dire, despite

the fact that another juror gave a similar answer and was not peremptorily challenged

by the State. 200 Wn.2d at 360-62.

The State urges us to follow State v. Booth, 22 Wn. App. 2d 565, 510 P.3d 1025

(2022), in which this court found that the trial court erred in granting a GR 37 motion,

denying the defense’s peremptory challenge. At issue was a gross misdemeanor

driving under the influence charge and a jury of six. Id. at 568-69; RCW 10.04.050. In

Booth, Juror 6, one of two potential jurors of East Asian descent on an otherwise white

venire panel, joined four other jurors in agreeing that he was uncomfortable with the

idea of drinking and driving and volunteered to defense counsel that he would be in

favor of a law completely prohibiting driving after consuming alcohol. 22 Wn. App. 2d at

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570. The defense attempted to make a peremptory challenge of Juror 6, but the court

denied the challenge after the State raised a GR 37 objection. Id. at 570. Juror 6 was

empaneled and deliberated. Id. at 571. However, in Booth, of the four jurors who

answered similarly to Juror 6, one, Juror 7, was seated and also struck with a

peremptory challenge, and the other three were unlikely to be selected for the final jury

based on their juror numbers. Id. at 579. This court concluded that because of this

strategic use of peremptory challenges, an objective observer could not view race or

ethnicity as a factor in the defense’s use of the peremptory challenge and held that the

trial court erred by denying defense counsel’s strike. Id. at 580.

Unlike in Booth, in the instant case, the State did not exercise a peremptory

against seated Juror 40 who shared the same opinion as Juror 37. And when another

juror who also had expressed the same opinion as Juror 37, Juror 47, was seated, the

State still had three remaining peremptories and still did not exercise any of them

against Juror 47, who was Caucasian. Both jurors 40 and 47 were empaneled and

deliberated. The strategic considerations supporting this court’s conclusion in Booth

were not present in the instant case.

Also, just as the trial court in Tesfasilasye applied the incorrect analysis, the trial

court in the instant case stated that its analysis was “whether a disinterested objective

viewer looking at this jury selection process would think that race may be playing [a] role

in the State’s – or any party’s exercise of its peremptory challenge.” (Emphasis added.)

The trial court denied Walker’s GR 37 objection, finding “that the reason articulated by

the State does not have any relation to racial characteristics and is not indicative of

possible racial animus.” The Washington Supreme Court in Tesfasilasye, which was

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published six months after Walker’s trial, explained that the proper standard is to

determine whether an objective observer could view race or ethnicity as a factor in the

use of the peremptory challenge, not whether they would view it as such or whether

there was a discriminatory purpose behind the challenge. 200 Wn.2d at 357. The court

explained that the motive behind the rule is to erase discriminatory effect as well as

intent and that the “would view” standard would have required judges to “‘endorse ‘an

accusation of deceit or racism’ in order to sustain a challenge to a peremptory strike.’”

Id. (internal quotation marks omitted) (quoting PROPOSED NEW GR 37—JURY SELECTION

WORKGROUP, FINAL REPORT app. 2 (2018)).

We conclude that an objective observer could view ethnicity as a factor when the

State exercised a peremptory challenge against Juror 37, who was Latino, instead of

Juror 40, who was Caucasian, when both expressed the same opinion that was the

basis for the State’s peremptory and both jurors were seated in the potential petit jury.

We reverse and remand for a new trial. 5

WE CONCUR:

5 Because we reverse, we need not address the remaining issues raised by Walker. 10