THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 82428-7-I
Respondent, DIVISION ONE
v. UNPUBLISHED OPINION
JONNIE L. LAY,
Appellant.
ANDRUS, C.J. — In 2018, a jury convicted Jonnie Lay of second degree rape
for an offense he committed in 2007. On appeal, he argues that his conviction
violated the statute of limitations in effect at the time he was charged, that the delay
in his prosecution violated his due process rights, and that a nearly all white jury
venire violated his right to an impartial jury under the state and federal
constitutions. We reject these arguments and affirm Lay’s conviction.
FACTS
On March 14, 2007, T.R. left the Belltown homeless shelter, Angeline’s, and
went for a walk down Second Avenue. Near the intersection with Pike Street, a
car pulled up onto the sidewalk, blocking her path. Johnnie Lay jumped out of the
car, grabbed T.R., and threw her into the back seat. Lay got into the passenger
Citations and pin cites are based on the Westlaw online version of the cited material. No. 82428-7-I/2
seat and the driver, who was never identified, drove away. Over the course of the
next several hours, Lay repeatedly raped T.R. in the car and at an unidentified
wooded area, at times while threatening T.R. with a screwdriver. At one point, Lay
dropped an identification badge and T.R. saw the name “John Lay.”
Eventually, Lay and the driver threw T.R. out of the car in Belltown near the
Sculpture Garden and she returned to Angeline’s where she reported the rape and
called the police. Seattle Police Officer Kurt Alstrin responded to the call and took
T.R.’s statement. Officer Alstrin then took T.R. to Harborview Medical Center
where she spoke with a sexual assault nurse examiner and a hospital social worker
about the incident. She underwent a full sexual assault examination, which
included the collection of several swabs for deoxyribonucleic acid (DNA) testing.
A nurse observed a laceration near T.R.’s vagina as well as bruising on her thigh.
The Seattle Police Department (SPD) assigned the case to Detective Roger
Ishimitsu. Detective Ishimitsu reviewed the police report and the Harborview
medical records and telephoned T.R. at the number she had provided. They
arranged for a formal interview on March 28, but T.R. did not show up. Detective
Ishimitsu followed up with a voicemail and a letter, but T.R. never responded. By
that point, T.R. had left Angeline’s and was living at the YWCA.
Detective Ishimitsu searched SPD's database for “John Lay,” the name T.R.
reported to have seen on the dropped identification badge, and found several
different individuals with similar names. He was unable to make a positive
identification of the suspect. Because Detective Ishimitsu did not have a
responsive victim and was unable to proceed with the case, he followed
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department policy in effect at the time and did not send the sexual assault kit for
testing and inactivated the case.
In 2015, the Washington Legislature passed a law, now codified as RCW
5.70.040, requiring the testing of all sexual assault kits held in law enforcement
custody. SPD sent T.R.’s sexual assault kit to the state crime lab for testing in
June 2016. The police received the results in March 2018. DNA found on the
swabs in the sexual assault kit matched Lay, whose DNA was already in the FBI’s
Combined DNA Index System from prior convictions.
On March 8, 2018, SPD reassigned the case to Detective Shawn Martinell.
Martinell located T.R., now living in a Belltown apartment, and arranged to
interview her. He completed his investigation and submitted it to the prosecutor’s
office for possible charges by March 23, 2018. Lay, living in Illinois at the time,
traveled to Seattle voluntarily for his arraignment. Police then obtained a DNA
sample from him, which confirmed the DNA match. The State charged Lay with
first degree rape on May 21, 2018.
At that time, the statute of limitations for first and second degree rape was
10 years “from the date of commission or one year from the date on which the
identity of the suspect is conclusively established by deoxyribonucleic acid testing
or by photograph . . . , whichever is later.” Former RCW 9A.04.080(3) (2006). 1
Because the State filed the charge more than 10 years after the date of the alleged
offense, Lay moved to dismiss the charge. The trial court denied the motion,
1 The current statute of limitations for first and second degree rape is 20 years. RCW 9A.04.080(1)(b).
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finding that SPD did not identify Lay by DNA or photograph until March 2018, two
months before the State filed charges.
Lay’s first trial ended in a mistrial with a hung jury. The State then amended
the charge to second degree rape. At the second trial, Lay testified in his own
defense. He admitted having sex with T.R., but testified that T.R. had approached
him and offered to have sex with him in exchange for crack cocaine. He testified
that the two wandered around downtown Seattle before finding a secluded location
to have consensual sex and smoke crack together. Lay denied that any violence
occurred and claimed the encounter ended when he left the area on a bus.
A jury convicted Lay of second degree rape. The court imposed a sentence
within the standard range. Lay appeals.
ANALYSIS
Statute of Limitations
Lay first argues the trial court erred in denying his motion to dismiss the
charge for violation of the statute of limitations. We disagree.
When the facts are not in dispute, alleged violations of the statute of
limitations are questions of law we review de novo. State v. Peltier, 181 Wn.2d
290, 294, 332 P.3d 457 (2014). There are no disputed facts regarding the statute
of limitations in this case. The State filed charges against Lay over 11 years after
he committed the crime. At the time, the statute of limitations for second degree
rape was 10 years. But the trigger date for the commencement of this 10-year
period was not the date of the crime. In 2006, the legislature amended the statute
of limitations for any sex offenses under RCW 9.94A.030 to start the clock “from
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the date of commission or one year from the date on which the identity of the
suspect is conclusively established by deoxyribonucleic acid testing or by
photograph as defined in RCW 9.68A.011, whichever is later.” Former RCW
9A.04.080(3) (LAWS OF 2006 ch. 132, § 1). Then, as now, a “sex offense” under
RCW 9.94A.030 included both first and second degree rape. Former RCW
9.94A.030(41); RCW 9A.44.045 (first degree rape); RCW 9A.44.050 (second
degree rape).
The parties dispute the meaning of the phrase “the date on which the
identity of the suspect is conclusively established by deoxyribonucleic acid testing
or by photograph.” Lay argues that the statute of limitations ran when T.R. reported
the rape to police because police “could have ‘conclusively established’ his
identity” with the results of the sexual assault kit and the information T.R. gave
police regarding the name she saw on his identification badge. We reject this
interpretation as contrary to the plain language of former RCW 9A.04.080(3)
(2006).
The interpretation of a statute is a question of law that we review de novo.
State v. Gonzalez, 168 Wn.2d 256, 263, 226 P.3d 131 (2010). Our goal in
interpreting a statute is to carry out the legislature’s intent. Id. at 263. We must
avoid an interpretation that would produce an unlikely, absurd, or strained result.
State v. Fjermestad, 114 Wn.2d 828, 835, 791 P.2d 897 (1990). We first examine
the plain language of the statute. Gonzalez, 168 Wn.2d at 263. If the meaning of
a statute is plain on its face, we give effect to the plain meaning as an expression
of legislative intent. State v. J.M., 144 Wn.2d 472, 480, 28 P.3d 720 (2001).
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This court has previously held that “the identity of a suspect is not
‘conclusively established’ until DNA testing matches the DNA profile of an
unknown suspect to the DNA profile of a known suspect.” State v. McConnell, 178
Wn. App. 592, 315 P.3d 586 (2013), review denied, 180 Wn.2d 1015 (2014). Here,
the DNA testing did not match Lay to the DNA profile from the sexual assault kit
until March 2018. The statute of limitations began to run at that point.
Lay asks us to overrule McConnell, arguing the holding in that case
“contravenes a principal purpose of the statute of limitations, which is to encourage
prompt investigations. It allows the government to avoid the statute of limitations
by delaying the testing of a DNA sample indefinitely.” But even if we agreed with
this reasoning, the public policy implications of the statute of limitations for rape is
a question for the legislature, not this court. The plain language of the statute is
unambiguous; the limitations period runs when DNA evidence is conclusively
matched to a suspect, not when that evidence “could have been” matched.
We reach the same conclusion regarding the exception for photographic
identification. Lay argues that the police had access to his photograph because
he was a registered sex offender and the police “could have shown the photograph
to [T.R.]” after she provided the name “John Lay.” But, there is no dispute that
T.R. did not positively identify Lay from a photograph, as required for the statute
of limitations to begin to run. We therefore conclude the statute of limitations did
not commence until Lay’s DNA was matched to the sexual assault kit in March of
2018. The trial court did not err in denying Lay’s motion to dismiss the charge
against him on statute of limitations grounds.
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Due Process
Lay next argues that, even if the State filed charges within the statute of
limitations, the delay in bringing charges violated his due process rights. We again
disagree.
Whether preaccusatorial delay violates due process is a question of law we
review de novo. State v. Oppelt, 172 Wn.2d 285, 290, 257 P.3d 653 (2011).
Preaccusatorial delay violates due process if prosecution of the case “violat[es]
fundamental conceptions of justice.” Id. at 295.
This court employs a three-part test in order to determine whether
preaccusatorial delay violates due process. First, the defendant must show actual
prejudice. Id. A defendant is not required to show bad faith, but “[w]here the
State’s reason for delay is mere negligence, establishing a due process violation
requires greater prejudice to the defendant than cases of intentional bad faith
delay.” Id. at 296. “If the defendant establishes prejudice, the burden shifts to the
State to show the reasons for the delay.” McConnell, 178 Wn. App. at 606 (citing
Oppelt, 172 Wn.2d at 295). The court then balances the State’s justification
against the prejudice to the defendant and determines “whether fundamental
conceptions of justice would be violated by allowing prosecution.” Oppelt, 172
Wn.2d at 295.
The Ninth Circuit has characterized the defendant’s burden in a claim of
prosecutorial delay as “heavy” and rarely met. United States v. Huntley, 976 F.2d
1287, 1290 (9th Cir. 1992). “Prejudice, whenever it is alleged, must be specially
demonstrated and cannot be based upon speculation.” State v. Haga, 8 Wn. App.
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481, 489, 507 P.2d 159 (1973) (citing United States v. Marion, 404 U.S. 307, 92
S. Ct. 455, 30 L. Ed. 2d 468 (1971)). The mere assertion that a missing witness
might have been useful does not establish actual prejudice. United States v. Mays,
549 F.2d 670, 677 (9th Cir.1977). Nor does the assertion that “witnesses’
memories may have faded with the passage of time.” Prantil v. California, 843
F.2d 314, 318 (9th Cir.1988).
Lay argues that the delay in his prosecution was the result of mere
negligence, not bad faith. Therefore, Lay must make a heightened showing of
prejudice to obtain relief under a negligent delay theory. Oppelt, 172 Wn.2d at
292-93.
We find the analysis in McConnell instructive. There, the defendant argued
he suffered actual prejudice from a 12-year delay in filing charges because, by that
point, his mother was no longer alive to testify and the State had destroyed much
of the physical evidence. 178 Wn. App. at 606. The court concluded that
McConnell failed to demonstrate actual prejudice because he did not identify what
his mother would have said if called to testify or explain how the physical evidence
would have aided his defense. Id. at 607.
In this case, Lay similarly argues that he suffered actual prejudice because
the passage of time prohibited him from developing his defense of consent. He
claimed that T.R. approached him and offered sex in exchange for crack cocaine.
He testified that because he did not have any drugs or any money with which to
purchase them, he and T.R. walked around downtown Seattle in search of a dealer
who would give Lay drugs for which he could pay later. While walking around, Lay
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claimed he found an envelope on the ground containing $500, and shortly
afterwards found a dealer from whom he purchased $200 worth of crack. He
testified that the two then found a spot out of public view near the sports stadiums
where they smoked the crack and had consensual sex.
Lay argues that T.R. lied about having been raped and the State’s delay in
bringing a rape charge made it impossible for him to recover possible security
camera footage of the downtown area where she alleged she was abducted. He
contends that had he been immediately charged, he could have found this security
footage to prove no abduction by car occurred in the location she claimed. Lay
submitted a declaration from an investigator with the public defender’s office who
stated that in 2007 there were surveillance cameras on the southwest and
northwest corners of the intersection of Second Avenue and Pike Street. He
testified that when he visited the businesses at that location in January 2019, there
were cameras at the intersection but the businesses that had been present in 2007
were no longer there. From this testimony, Lay contends that surveillance camera
footage to prove T.R. lied about the abduction was lost.
This argument, however, is speculative and insufficient to carry a claim of
unconstitutional preaccusatorial delay. Lay has no evidence that any exculpatory
security camera footage ever existed. Even if there are security cameras at the
intersection, there is no way to know that the cameras were directed toward the
location T.R. identified as the place of her abduction.
Even less convincing is Lay’s argument that, had the State charged him
sooner, he could have found witnesses in the area of the alleged abduction to rebut
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T.R.’s account of the rape. Despite testifying that he and T.R. interacted with a
number of other individuals on the day in question, Lay has not identified any
witness who could have corroborated his story. His mere assertion that such
evidence might have existed is insufficient. Based on this record, Lay has failed
to meet his burden of establishing actual prejudice.
Right to an Impartial Jury
Lay finally argues that we should reverse his conviction because the
underrepresentation of African Americans in his jury venire violated his right to an
impartial jury under both the state and federal constitutions. We reject this
argument as well.
During jury selection before his second trial, Lay orally moved for a new
venire because only two potential jurors in the venire of 147 identified themselves
as Black or African American. Lay, who is Black, argued that the jury pool
underrepresented the Black population of King County in violation of his
constitutional right to an impartial jury. But when he moved to strike the jury panel
below, defense counsel admitted “I don’t know the county’s approach to sending
out . . . Jury Summons” and “I don’t have evidence—to say that the . . . jury
summonsing process is explicitly bias.” He nevertheless argued that the result of
the process in Lay’s case was a disparity between the racial make-up of King
County and the venire assigned to Lay’s trial. He presented no statistical data to
support this allegation.
The court denied the motion because Lay could not identify a deficiency in
the county’s jury summons process. The trial court opined that Lay was “asking
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[the court] to redo the same thing we’ve already done . . . [a]nd hoping for a
different result.” The court stated the juror selection process was “race neutral,”
but indicated that if Lay found evidence indicating otherwise, the court was willing
to hear it. Lay never brought such evidence before the trial court. At the conclusion
of voir dire, the parties selected a panel of 14 jurors, including two alternates. None
of the jurors was Black.
A defendant has a right under the Sixth and Fourteenth Amendments and
article I, § 22 of the Washington constitution to be tried by a jury that is
representative of the community. Taylor v. Louisiana, 419 U.S. 522, 527, 95 S. Ct.
692, 42 L. Ed. 2d 690 (1975); State v. Hilliard, 89 Wn.2d 430, 440, 573 P.2d 22
(1977). A defendant is not, however, entitled to exact cross representation in the
jury pool and the jury selected for the defendant’s trial need not be of any particular
composition. Hilliard, 89 Wn.2d at 442. A jury selection process is adequate as
long as it “may be fairly said that the jury lists or panels are representative of the
community.” Taylor, 419 U.S. at 538.
To establish a prima facie case of a violation of his right to a fair cross
section of the community, Lay must establish “(1) that the group alleged to be
excluded is a ‘distinctive’ group in the community; (2) that the representation of this
group in venires from which juries are selected is not fair and reasonable in relation
to the number of such persons in the community; and (3) that the
underrepresentation is due to systemic exclusion of the group from the jury
selection process.” State v. Cienfuegos, 144 Wn.2d 222, 231-32, 25 P.3d 1058
(2001) (quoting Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 58 L. Ed. 2d
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579 (1979)). If a defendant establishes all three elements, he has shown a prima
facie case of a Sixth Amendment violation and the State must justify the
infringement “by showing attainment of a fair cross section to be incompatible with
a significant state interest.” Duren, 439 U.S. at 364.
In this case, the trial court found that Lay failed to demonstrate the second
and third elements of the Duren test and denied Lay’s motion to strike the venire.
We review a trial court's ruling on challenges to the venire process for abuse of
discretion. State v. Tingdale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991). A
challenge to the jury panel will be sustained only if there is a demonstrated material
departure from the procedures provided by law. State v. Roberts, 142 Wn.2d 471,
519, 14 P.3d 713 (2012).
The trial court did not abuse its discretion in denying Lay’s motion to strike
the venire. Lay did not challenge the method by which King County Superior Court
generates its master list of prospective jurors. Nor did he argue that the court
departed from the statutory procedures for creating this random list. And there is
no evidence it did so.
Chapter 2.36 RCW guides the assembly of Washington jury panels.
Superior courts derive master jury source lists from all registered voters and all
“licensed drivers and identicard holders” residing in each county. RCW
2.36.054(1). Potential jurors are selected at random. RCW 2.36.065. The court
then sends those potential jurors summonses through the mail. RCW 2.36.095.
In Hilliard, our Supreme Court held that the statutory method of selecting jurors at
random from voter registration lists is the best source of compiling a fair cross-
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section of the community. 89 Wn.2d at 440. Since Hilliard, the Washington
legislature has revised the methods for compiling jury lists in an effort to make the
pool of eligible jurors more inclusive and representative. State v. Lanciloti, 165
Wn.2d 661, 668-69, 201 P.3d 323 (2009). We have no basis to conclude that the
method by which King County Superior Court generates its list of prospective jurors
violates either the state or federal constitution.
Moreover, Lay provided no evidence to the trial court that King County’s jury
selection procedure leads to an unfair or unreasonable underrepresentation of
Black voters in relation to the numbers of eligible members of that group in the
community or that the court systematically excludes Black voters from the jury
pool. Lay relied solely on the fact that, in his case, only two of the 147 potential
jurors identified as Black or African American. But a mere allegation of
underrepresentation in a jury venire does not establish a violation of a defendant’s
right to an impartial jury. In re Pers. Restraint of Yates, 177 Wn.2d 1, 20, 296 P.3d
872 (2013). For all these reasons, the trial court did not abuse its discretion in
denying Lay’s motion to strike the venire.
Lay raises two new arguments on appeal. First, Lay contends that by
splitting King County into two different jury assignment areas, the court has created
jury venires with disparate percentages of Black jurors in relationship to their
numbers in the community. He maintains that King County Superior Court’s
adoption of two jury assignment areas, one for residents who live north of Interstate
90 and a second for residents who live south of Interstate 90, perpetuates historic
racial disparities, the result of which is an unfair representation of the Black
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population in Seattle jury pools. 2 Lay points to census data indicating that the
Black population in Seattle, Kent and Renton is 9.2 percent, 12.4 percent, and 12.7
percent, respectively. He also relies on the academic research of Peter Collins
and Brooke Miller Gialopsos who recently published the results of juror surveys
which they undertook to determine whether there are gender, racial or ethnic, or
sexual orientation disparities within jury pools in Washington state courts. See
Collins & Gialopsos, “Answering the Call: An Analysis of Jury Pool Representation
in Washington State,” 22 Criminology, Criminal Justice Law & Society 1 (2021).
Based on the survey responses from jurors, Collins and Gialopsos found that there
is, in general, an underrepresentation of Black jurors at both the Seattle and Kent
courthouses. Id. at 10.
But neither the demographic data Lay submits nor the survey results
discussed in “Answering the Call” attribute this underrepresentation to the King
County Superior Court jury assignment area boundaries or any other exclusionary
aspect of the jury selection process. In fact, Lay has made no attempt to
demonstrate disproportionality under any of the recognized statistical methods that
courts have employed. See United States v. Hernandez-Estrada, 749 F.3d 1154,
2 Our Supreme Court upheld the split between judicial divisions in King County as constitutional
under both article I, section 22 of the State Constitution and the Sixth Amendment. State v. Lanciloti, 165 Wn.2d 661, 671-72, 201 P.3d 323 (2009). In that case, a Black defendant challenged the constitutionality of RCW 2.36.055 which permitted superior courts with more than one courthouse to divide its jury source list in a way to make it easier for jurors to travel to the courthouse nearest to their residence. Id. at 671. With the amendment to RCW 2.36.055, King County Superior Court passed amendments to Local CrR 5.1 and Local General Rule 18, dividing its jury source list into Seattle and Kent jury assignment areas. The boundary of the two jury assignment areas is Interstate 90. LCrR 5.1(2)(A), (B). The purpose of moving away from a county-wide unitary jury pool system was to reduce racial disparities in jury service. Lanciloti, 165 Wn.2d at 664, n.1. The Supreme Court held that RCW 2.36.055 did not violate the Sixth Amendment or article I, § 22’s right to an impartial jury. Id. at 671-72.
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1160 (9th Cir.), cert. denied, 574 U.S. 1029 (2014) (discussing strengths and
weaknesses of various analytical methods for evaluating fair cross-section cases).
A showing of underrepresentation alone does not establish systematic exclusion
of a group in the jury selection process. Duren, 439 U.S. at 366. Instead, a
defendant must show that any underrepresentation is inherent in the jury selection
process. Id. The resulting underrepresentation must be “due to the system by
which juries were selected.” Id. at 367. Lay produced no evidence to establish a
nexus between the jury assignment area system and the underrepresentation of
people who identify as Black or African American in jury venires. 3
Second, Lay asks this court to jettison the nexus requirement of the Duren
test and hold that article I, §§ 21 and 22—in combination—confer broader
protections of the right to a jury drawn from a fair cross section of the community
than the Sixth Amendment. He argues that “this Court should find under the
Washington Constitution, unlike the Sixth Amendment, evidence of
underrepresentation of a distinctive group in the jury pool sufficiently establishes a
fair cross section claim.” In State v. Munzanreder, 199 Wn. App. 162, 174, 398
P.3d 1160, review denied, 189 Wn.2d 1027 (2017), Division Three of this court
3 This court has repeatedly rejected challenges to the jury venire process on appeal where the
defendant failed to make an evidentiary showing at trial that a distinctive minority group had been systematically excluded from the jury pool. See State v. Severns, no. 81668-3-I, slip op. at *4-5 (Wash. Ct. App. Dec. 6, 2021)3 (a single instance of an unrepresentative jury pool is “anecdotal” and “does not prove that jury venires in King County are disproportionately lacking in African Americans relative to the population of African Americans in the county itself”); State v. Clark, 167 Wn. App. 667, 674-76, 274 P.3d 1058 (2012) (“A systematic failure, in the absence of evidence that normal selection procedures were not followed, would require evidence that a cognizable group routinely was excluded from jury service.”); State v. Singleton, 9 Wn. App. 399, 406-07, 512 P.2d 1119 (1973) (trial court properly rejected defendant’s challenge to the jury panel where no evidentiary showing was made in support of his argument that the jury selection process excludes large portions of poor and minority segments of King County).
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rejected this argument. A panel of this division recently certified this question to
our Supreme Court. See State v. Paul Rivers, no. 81216-5, Order of Certification
(May 11, 2022). A commissioner of that court accepted certification and
transferred the case to the Supreme Court for a determination on the merits. See
State v. Paul Rivers, no. 100922-4, Ruling Accepting Certification (May 12, 2022).
Despite the pendency of this constitutional issue in the Supreme Court, we
conclude we need not reach it here because even if we were to adopt the test Lay
advances, he failed to present sufficient evidence to establish a prima facie case
under that lesser standard. Based on the record before us, we cannot find for the
first time on appeal that an underrepresentation of people who identify as Black or
African American in jury venires at the Seattle courthouse is a per se violation of
the state constitution’s right to an impartial jury. 4
Because the data Lay presents is so scant and the analysis so superficial,
we conclude that he has not established a prima facie case of a constitutional
violation under either the Sixth Amendment or article I, §§ 21 and 22.
Statement of Additional Grounds
Finally, Lay raises several additional arguments in his statement of
additional grounds. We reject each of these arguments.
Lay argues that the State committed prosecutorial misconduct. To establish
prosecutorial misconduct, the defendant must establish both improper conduct by
4 We further note that Lay had the ability to ask the trial court to transfer venue to the Kent
assignment area if he believed he would receive a more representative jury venire in that courthouse. King County Superior Court Local Criminal Rule (KCLCrR) 5.1(d)(3)(E) states that “The Court on its own motion or on the motion of a party may assign or transfer cases to another case assignment area in the county whenever required for the just and efficient administration of justice in King County.” Lay never moved to change venue.
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the prosecutor and prejudicial effect. State v. Furman, 122 Wn.2d 440, 455, 858
P.2d 1092 (1993). Prejudice is established only if there is a substantial likelihood
the instances of misconduct affected the jury's verdict. State v. Evans, 96 Wn.2d
1, 5, 633 P.2d 83 (1981). Lay first contends the prosecutor committed misconduct
by releasing his criminal history to the press. However, there is no evidence in the
record to substantiate this claim. Lay’s allegation that his criminal record can be
found online is wholly insufficient and does not establish prosecutorial misconduct.
Lay also argues that the prosecutor committed misconduct by
characterizing his crime as “brutal” and alleges that the prosecutor called him an
“animal” in front of the jury. The latter never happened. It was T.R. who described
Lay as an animal. And although the prosecutor did describe the crime as “brutal,”
our Supreme Court has held that a prosecutor’s repeated characterization of a
crime as “brutal” does not constitute prosecutorial misconduct. State v. Pirtle, 127
Wn.2d 628, 673-74, 904 P.2d 245 (1995). Lay argues that the prosecutor’s use of
the term had racist connotations, citing the fact that African American men have a
long history of being characterized as “brutes” and “savages.” But the prosecutor
never called Lay a “brute.” She stated that Lay “brutally raped” T.R., an accurate
factual description of the crime as it was described by the victim. Lay has also
failed to make any showing that the prosecutor’s use of the term had any effect on
the jury’s verdict.
Next, Lay argues that Seattle police did not read him his Miranda 5 warning
upon his arrest. Miranda warnings protect a defendant's constitutional right not to
5 Miranada v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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make incriminating confessions or admissions to police while in the coercive
environment of police custody. State v. Harris, 106 Wn.2d 784, 789, 725 P.2d 975
(1986), cert. denied, 480 U.S. 940, 107 S. Ct. 1592, 94 L. Ed. 2d 781 (1987).
Without a Miranda warning, a suspect’s statements during custodial interrogation
are presumed involuntary. State v. Sargent, 111 Wn.2d 641, 647-48, 762, P.2d
1127 (1988). In this case, the State did not offer any of Lay’s custodial statements
as evidence. Even if the State did fail to give a Miranda warning, this failure did
not affect Lay’s conviction.
Finally, Lay argues he received ineffective assistance of counsel for his trial
counsel’s failure to meet with Lay for strategic discussions, failure to give Lay full
discovery, and failure to question T.R. on her drug use.
To demonstrate ineffective assistance of counsel,
[f]irst, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Lay cannot meet this standard. Even if we conclude that defense counsel
made the errors Lay claims and that these errors rose to the level of deficient
performance, he has not made any showing of prejudice. Lay does not explain
how the outcome of trial would have changed if he had had strategic meetings with
counsel and full access to discovery material. Moreover, T.R. freely admitted to
using crack cocaine on the day she was raped. Lay does not explain how further
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questioning on that subject would have helped his case.
Affirmed.
WE CONCUR:
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