IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87173-1-I (consolidated with Respondent, No. 87935-9-I)
v. DIVISION ONE MARQUES JERRELL ECHOLS, UNPUBLISHED OPINION Appellant.
BUI, J. — A jury convicted Marques Jerrell Echols of assault in the third degree. He now asserts insufficient evidence to support the conviction because there was no evidence that the substantial pain experienced by the victim was considerable and lasted for a significant period of time. He also asserts the trial court erred in giving the first aggressor jury instruction and in ordering restitution. Finally, Echols asserts the trial court erred in denying an evidentiary hearing and new trial based on a claim of jury racial bias. We affirm.
FACTS
During the COVID-19 1 pandemic, Joe’s Bar and Grill (“Joe’s”) required its customers to present proof of their COVID-19 vaccination status to enter and remain inside the establishment.
On December 27, 2021, Echols and Leandre Nearing walked
1 COVID-19 is the World Health Organization’s official name for “coronavirus disease
2019,” first discovered in December 2019 in Wuhan, China. COVID-19 is a severe, highly contagious respiratory illness that quickly spread throughout the world.
approximately 18 blocks to Joe’s. While passing an elementary school Echols found a stick, which he used as a walking stick in the icy and snowy conditions. Echols assumed the stick was most likely a mop stick with a metal endpiece.
Echols and Nearing entered Joe’s and separated; Nearing sat at the bar and Echols sat at a table. Bartender Felicite Ogilvy approached Echols and asked for his COVID-19 vaccination card, which he did not have, so Ogilvy told Echols to leave.
Echols got up from the table and went toward the door. On his way to the door, he stopped at a little wall about four to five feet from where Nearing sat. Echols waited for Nearing to finish his drink, so the two could leave together. Ogilvy testified that she initially allowed Echols to wait for Nearing until he began arguing with her about needing to show proof of vaccination.
While waiting for Ogilvy to cash out Nearing’s bar tab, Echols turned to Ogilvy and asked why she did not ask other patrons, including Nearing, for their vaccination cards. Ogilvy responded that the other patrons either showed their card that day or had done so previously. Echols testified to feeling he was not being treated “fairly” and felt “unequal.”
Ogilvy asked another bartender Kathrine Fraser to remove Echols from Joe’s. Fraser told Echols to leave and placed her hands on his hips. Echols raised his arms, and Fraser and Ogilvy pushed Echols toward the direction of the door. Echols grabbed Ogilvy’s hair and shoulders, and swung his stick, which cut Ogilvy’s cheek.
Medics responded to Joe’s and transported Ogilvy to the hospital where
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she received 31 stitches. Ogilvy received continuous treatment for the cut and it took approximately two years to remove the scar.
The State charged Echols with assault in the second degree. In the first trial, the jury could not unanimously agree on a verdict. In the second trial, the trial court gave a jury instruction on self-defense, as proposed by Echols. Over Echols’ objection, the trial court also gave a jury instruction on first aggressor, as proposed by the State.
The jury found Echols guilty of the lesser crime of assault in the third degree. The court set sentencing for June 7. Prior to the scheduled sentencing, the court received separate letters from juror 8 and from juror 13 In both letters, the jurors described what happened during jury deliberation and they expressed the challenges they faced to reach a verdict.
On June 3, the trial judge informed counsel about the letters. On June 5, Echols requested to continue sentencing so he could file a motion for an evidentiary hearing and for a new trial. The trial court did not continue the sentencing date and deferred ruling on Echols’ motions. The trial court set a hearing to decide how to proceed with the two letters.
At the June 12 hearing, the trial court asked Echols’ counsel to “specifically identify” the juror misconduct in the letters. In response, counsel admitted “the statements the jurors have made thus far do not necessarily indicate that misconduct has occurred,” but claimed “they do raise an inference of misconduct and do create this lingering doubt that Mr. Echols has not received a fair trial.” Counsel noted juror 8 wrote they had doubts about self-defense. And
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that the juror’s doubt should be sufficient for the court to infer “that this juror’s verdict was the product of bullying, intimidation, misconduct,” worthy of exploring in an evidentiary hearing to explore the “lingering doubt.” The State responded there was no evidence of juror misconduct and objected to any party contacting the jurors. The trial court denied Echols’ request for an evidentiary hearing.
That was not the final ruling about the letters. Without prompting from either party, and over State’s objection, the trial judge allowed counsel to jointly send a letter to both jurors, informing them their letters had been received, and offering them an opportunity to voluntarily speak to both counsel. Only juror 13 responded by the deadline and spoke with counsel jointly by phone on June 18.
At the July 9 hearing, Echols renewed his motion for an evidentiary hearing and a new trial, and his counsel attached a declaration containing a summary of her conversation with juror 13. In the declaration, counsel stated that juror 13, who identified herself as “Black or African American,” believed there was implicit bias, but not explicit, during jury deliberation. The declaration further stated that juror 13 believed “the framing of the State’s closing argument led to some of the bias, with the idea that there is a tall black man attacking these women.” Additionally, counsel stated juror 13 expressed that a few of the older male jurors referred to the female bartenders as “these girls” or “these helpless girls.” Counsel stated juror 13 “called out this implicit bias,” and while some jurors supported her, in juror 13’s opinion “there was definitely bias present that folks were not admitting to but was there during deliberations.”
The State disagreed with defense counsel’s characterization of juror 13’s
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statements and argued juror 13’s statements were hearsay and should not be considered by the court. Echols agreed that juror 13’s statements were hearsay but argued the court could still consider the statements in counsel’s declaration for purposes of determining whether an evidentiary hearing should be held.
The trial court found, despite counsels’ disagreement about what juror 13 may have said, that the implications of juror 13’s conduct indicated she “may actually have felt some pressure to vote guilty as a consequence of pressure she was feeling.” The court found it was “not aware whether any of the other jurors identif[ied] as Black or African American.” The trial court found “there is a credible allegation of racial bias or implicit racial bias” given juror 13’s phone conversation with both counsel. Consequently, the trial court stated it needed to do “more investigation” by questioning juror 13 to determine whether there was “a prima facie case to go forward with a more extensive evidentiary hearing.”
The court denied Echols’ request to have any other jurors appear at the hearing, including juror 8 who wrote the other letter but did not respond by the deadline.
On August 2, juror 13 appeared remotely to answer questions posed by the trial judge. The trial judge asked “[d]id racial bias against Mr. Echols affect the jury’s verdict?” and juror 13 responded “Not directly . . . Like, like, I think there was a moment where folks were talking about, oh, there’s, like, these two gals, like, these two small gals, and this -- this guy, and it was just like, it wasn’t entirely what folks wanted to say, but it wasn’t, like, explicit, if that makes sense.” The trial judge then asked for details whether she or any other jurors “ever
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raise[d] concerns about bias to your fellow jurors?” and juror 13 responded “[i]t was less racial bias and more like class bias.” Juror 13 stated “there was some talking about race, but like, it was never, like, acknowledged that, like, Mr. Echols was black.” Juror 13 stated race came up when the jurors discussed the “makeup of the folks who were approaching him,” specifically, when the jurors described the “Hispanic man” as one of the approaching individuals. Finally, juror 13 stated there were some “eye rolls and shutdown” during the discussion of race in the “context of, like what may have led to actions, and like, some folks, you know, were more willing to go there.”
The next question was whether the jury “attempted to reach a verdict free from racial bias against Mr. Echols” and juror 13 answered “yes.” According to juror 13, she believed the jury was “specifically focused on, like making sure that this was racially equitable,” that they were “empathetic” and “fair.”
The trial judge then asked whether she felt “threatened, intimidated, or forced into reaching a verdict by other members of the jury.” Juror 13 described that she felt “somewhat intimidat[ed]” by another juror, in pressuring her in reaching a verdict because the juror said “is there anything that you could do . . . like, is there anything that would, like, get you to, like, a guilty verdict.” Juror 13 stated, however, that the intimidation feeling was “in hindsight.”
The trial judge conferred with counsel, and juror 13 was brought back into the courtroom for follow-up questions, over the State’s objection. When asked whether race or racial bias was a factor during the victim’s testimony in comparison to Echols, juror 13 responded there were a few times when “more
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empathy” was given to the “helpless girls,” the bartenders, than to Echols, because he was Black, but no juror said this out loud; “it was all just sort of like implied.”
The trial judge also asked a follow-up question about the interaction with a juror who rolled his eyes when the topic of race came up. Juror 13 stated the juror refused to consider self-defense, and he did not offer an explanation for his position.
The trial court did not make a ruling that day and took the matter under advisement. On August 6, the trial court entered a written order denying Echols’ motion for an evidentiary hearing and for a new trial. The trial court denied Echols’ motion for reconsideration or for new trial pursuant to CR 59.
On March 5, 2025, the court entered an order setting restitution, over Echols’ objection.
Echols timely appealed both orders.
ANALYSIS
First Aggressor Jury Instruction On appeal, Echols argues giving the first aggressor instruction based only on his refusal to leave the premises and his words was error. We disagree.
Whether sufficient evidence supports jury instruction is question of law we review de novo. State v. Bea, 162 Wn. App. 570, 577, 254 P.3d 948 (2011).
The trial court gave the following first aggressor instruction:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer, or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt
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that the defendant was the aggressor, and that defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense. Words alone are not adequate provocation for the defendant to be the aggressor.
“ ‘Jury instructions are sufficient if they permit each party to argue [their]
theory of the case and properly inform the jury of the applicable law.’ ” State v. Riley, 137 Wn.2d 904, 909, 976 P.2d 624 (1999) (quoting State v. Bowerman, 115 Wn.2d 794, 809, 802 P.2d 116 (1990)).
A first aggressor instruction potentially removes self-defense from the jury’s consideration, relieving the State of its burden of proving that a defendant did not act in self-defense. State v. Douglas, 128 Wn. App. 555, 563, 116 P.3d 1012 (2005). To raise self-defense before a jury, a defendant bears the initial burden of producing some evidence that their actions occurred in circumstances amounting to self-defense, which are the statutory elements of reasonable apprehension of great bodily harm and imminent danger. State v. Janes, 121 Wn.2d 220, 237, 850 P.2d 495 (1993). The evidence of self-defense must be assessed from the standpoint of a reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Janes, 121 Wn.2d at 238.
However, in general, “one who was the aggressor or who provoked the altercation . . . , cannot successfully invoke the right of self-defense . . . , unless he in good faith had first withdrawn from the combat at such a time and in such a manner as to have clearly apprised his adversary that he in good faith was desisting, or intended to desist, from further aggressive action.” State v. Craig, 82 Wn.2d 777, 783, 514 P.2d 151 (1973). “Where there is credible evidence from
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which a jury can reasonably determine that the defendant provoked the need to act in self-defense, an aggressor instruction is appropriate.” Riley, 137 Wn.2d at 909-10 (citing State v. Hughes, 106 Wn.2d 176, 191-92, 721 P.2d 902 (1986); State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990)).
“The requesting party need only produce some evidence that the accused was the aggressor. The evidence is viewed in the light most favorable to the requesting party.” State v. Sanchez, 29 Wn. App. 2d 382, 391, 546 P.3d 436 (2024) (citing Bea, 162 Wn. App. at 577). A first aggressor instruction is still warranted even “ ‘if there is conflicting evidence as to whether the defendant’s conduct precipitated a fight.’ ” State v. Wingate, 155 Wn.2d 817, 822, 122 P.3d 908 (2005) (quoting Riley, 137 Wn.2d at 910).
Ogilvy testified Echols got “verbally aggressive” and started arguing when he was told he had to leave because he did not have a vaccination card, but Nearing and other patrons who did not show their vaccination cards were allowed to remain. Ogilvy explained to Echols that she knew Nearing due to him being a regular customer. Ogilvy stated she had asked Echols “probably at least two times” to leave, in reply Echols told Ogilvy he was not leaving, called Ogilvy “a bitch multiple times,” and started “waving his hands around.” Bartender Fraser came over to assist, put her hands on Echols’ hips to push him out of the bar, and Echols told Fraser, “Don’t touch me. Don’t touch me,” and pushed Fraser “hard.” Ogilvy was next to Fraser, and both tried to push Echols out the door. At this point, approximately six bar patrons stood up from their seats and went toward Ogilvy, Fraser, and Echols, and told Echols to leave. Echols started to
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swing the stick, and it hit and cut Ogilvy’s cheek.
Fraser testified to an account of the incident that was consistent with Ogilvy’s. There was also a video with no audio depicting the incident.
According to Echols, up to the point of Fraser and Ogilvy placing their hands on him, the circumstances only consisted of his words and his refusal to leave. However, a first aggressor instruction may be issued in circumstances where there is a conflict in the parties’ proffered evidence as to what happened and the order in which the events happened. State v. Anderson, 144 Wn. App. 85, 89, 180 P.3d 885 (2008).
Viewing the evidence in the light most favorable to the requesting party, the State, the trial court gave the first aggressor instruction along with the self- defense instruction because the jury had to decide, given the competing stories, who started the conflict. The trial court did not err in giving the instruction as there was some evidence of intentional acts that a jury could reasonably find would have provoked a belligerent response. Sufficiency of the Evidence Echols contends the State failed to present sufficient evidence to prove an element of the crime, that Ogilvy suffered substantial pain and considerable suffering. We disagree.
Due process of law requires that the State prove every element of a charged crime beyond a reasonable doubt to obtain a criminal conviction. State v. O’Hara, 167 Wn.2d 91, 105, 217 P.3d 756 (2009). Because the sufficiency of the evidence is a question of constitutional law, we review this issue de novo.
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State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016) (citing State v. Berg, 181 Wn.2d 857, 867, 337 P.3d 310 (2014)).
When analyzing a claim of insufficiency of the evidence, we determine whether any rational fact finder could have found the essential elements of the crime beyond a reasonable doubt, and we review the evidence in the light most favorable to the State. State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980). “Evidence sufficiency challenges admit the truth of the State’s evidence and all reasonable inferences that can be drawn from it.” State v. Stewart, 12 Wn. App. 2d 236, 240, 457 P.3d 1213 (2020) (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). “We defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence.” Stewart, 12 Wn. App. 2d at 240 (citing State v. Killingsworth, 166 Wn. App. 283, 287, 269 P.3d 1064 (2012)). Substantial evidence is evidence that would convince an unprejudiced, thinking mind of the truth of the fact to which the evidence is directed. State v. Hutton, 7 Wn. App. 726, 728, 502 P.2d 1037 (1972).
To prove assault in the third degree, the State must prove the defendant “[w]ith criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering.” RCW 9A.36.031(1)(f).
“ ‘[B]odily harm’ means physical pain or injury, illness, or an impairment of physical condition.” RCW 9A.04.110(4)(a). The impairment must be accompanied by “substantial pain.” Although the statute does not define
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“substantial pain,” the Supreme Court held the word “substantial” as used in RCW 9A.36.021(1)(a) “signifies a degree of harm that is considerable and necessarily requires a showing greater than an injury merely having some existence.” State v. McKague, 172 Wn.2d 802, 806, 262 P.3d 1225 (2011). “[B]y requiring that the pain must last long enough to cause ‘considerable suffering,’ ” the legislature indicated a durational requirement. State v. Loos, 14 Wn. App. 2d 748, 766, 473 P.3d 1229 (2020). “The State must demonstrate that the amount of pain the victim experienced was considerable and the pain the victim experienced lasted for a significant period of time.” Loos, 14 Wn. App. 2d at 766.
Echols, relying on Loos, argues that there was no evidence to show that Ogilvy suffered any pain, let alone “substantial pain that extended for a period of time show considerable suffering, as required under RCW 9A.36.031(1)(f).” We disagree.
The facts in Loos are distinguishable. In Loos, we held that no reasonable jury could conclude that the child suffered substantial pain that extended for a period sufficient to cause considerable suffering. Loos, 14 Wn. App. 2d at 768. Neither the eyewitnesses’ testimony nor the 51-second video of the incident supported any contention that the child victim was unable to quickly and easily eliminate the water from his throat or that he remained in any pain once he did so. Loos, 14 Wn. App. 2d at 767. The victim had no visible injuries, did not require CPR, vomit, lose consciousness, appear to have any swelling of his belly, sustain any lung injury, or require medical treatment. Loos, 14 Wn. App. 2d at 755, 767.
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Here, the nature of Ogilvy’s injuries shows substantial pain and considerable suffering. Ogilvy had a four-centimeter laceration to her cheek, which required two layers of stitches because the cut caused injuries to the muscle. According to the emergency room physician, the cut went through “two to three layers, depending on whether or not you want to count the fat as [a] layer,” requiring the physician to consult a specialist because the cut was a deeper laceration.
Ogilvy experienced shock immediately after the assault and during the ambulance ride. She underwent approximately 25 treatments to remove the scar over a period of two years that included microneedling, laser treatment, and “CO2 treatments,” all of which caused to her miss “a lot of work” and impacted her mental health.
On this record, a rational trier of fact could conclude beyond a reasonable doubt that Ogilvy experienced substantial pain for a period long enough to cause considerable suffering. Post-Verdict Claims of Jury Bias Echols claims the trial court erred in denying his request for an evidentiary hearing and for a new trial. We disagree.
We initially limit our review to the letters written by juror 8 and juror 13 because that was the evidence before the trial judge at the time the issue of alleged juror misconduct was first raised. We review the trial court’s decision under an abuse of discretion standard. State v. Berhe, 193 Wn.2d 647, 649-50, 444 P.3d 1172 (2019). “Discretion is abused when the trial court’s decision is
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manifestly unreasonable, or is exercised on untenable grounds, or for untenable reasons.” State v. Blackwell, 120 Wn.2d 822, 830, 845 P.2d 1017 (1993). A decision is based on “untenable grounds” or made “for untenable reasons” if it rests on facts unsupported in the record or was reached by applying the wrong legal standard. State v. Rundquist, 79 Wn. App. 786, 793, 905 P.2d 922 (1995).
Echols argues the letters raised a doubt that this “verdict was the product of bullying, intimidation, misconduct, of that sort in the jury room.” We disagree, because the letters do not contain facts describing claims of juror misconduct, and neither letter contained evidence of explicit or implicit racial bias. The letter from juror 13 contained her account of the difficulty in reaching a verdict and “grapp[ling] with the delicate balance between compassion and the rule of law.” The juror wrote “[a]fter deliberating for 2.5 days and reflecting over a weekend, I still struggle with whether our choice to follow the strict letter of the law was the correct moral ruling for the decision the defendant made in a 20 second incident.” Juror 13 wrote “is prison the appropriate place to ensure this crime isn’t repeated—or is imprisonment more likely to reduce the likelihood of further violence or introduce the same factors that led to the events of December 27, 2021?” Juror 13 ended the letter by “respectfully urg[ing] you [trial judge] to consider the possibility of leniency in sentencing,” which was the same request written at the beginning of the letter.
The letter from juror 8 starts with “I’d like to plead with the court for mercy and leniency during sentencing.” Juror 8 wrote that “most of our jury members” had doubts and that “we very nearly could not agree on a verdict.” Then, the juror
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expressed their belief that Echols was “being singled out” and described how they could identify with Echols because they also had to deal with “trauma in my own life.” The juror concluded by expressing “that time in prison [for Echols] is neither helpful nor necessary.”
These letters focused on the jurors’ struggles with making the decision and reaching the verdict, and on their requests to the trial judge to be lenient when imposing its sentence. Based on the contents of the two letters, the trial court’s decision to deny an evidentiary hearing was not manifestly unreasonable or exercised on untenable grounds or for untenable reasons.
However, that does not end our analysis because the trial court, later in the hearing, revisited the claim of juror misconduct, and ruled that counsel may send a joint letter to each juror and ask whether they wish to have a telephone conversation with counsel jointly about the letters they wrote. Counsel did so, and both counsel were able to converse with juror 13. However, while the trial judge allowed counsel to contact the jurors and ask questions about the letters, the conversation was not on the record and without court supervision. This process should not have been allowed to occur.
In Berhe, the court stated “[r]ather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record” and “the court shall take affirmative steps to oversee further inquiry into the matter and instruct counsel not to have any further communications with the jurors unless it is on the
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record and supervised by the court.” 193 Wn.2d at 662. The court noted that “[i]t is far too easy for counsel, in their role as advocates, to taint the jurors and impede the fact-finding process.” Berhe, 193 Wn.2d at 661. Because the court should not have allowed counsel to send letters to both jurors, and then conversed with juror 13 off the record, not under court supervision, we do not consider the evidence of the phone conversation.
We turn to Echols’ assertion that the trial court did not conduct a thorough inquiry. We review whether the trial court abused its discretion by limiting its inquiry to only juror 13’s testimony on August 2 because Echols argues juror 13’s testimony revealed sufficient evidence of implicit racial bias, to warrant “at the very least,” calling juror 8, who wrote the other letter, and the juror who rolled his eyes and disagreed with juror 13. We disagree.
As a general rule, “ ‘a trial court has significant discretion to determine what investigation is necessary on a claim of juror misconduct.’ ” Berhe, 193 Wn.2d at 661 (quoting Turner v. Stime, 153 Wn. App. 581, 587, 222 P.3d 1243 (2009)). In a claim of racial bias, the trial court must exercise its discretion by “tailor[ing] their approaches to account for the unique challenges presented” by claims of implicit racial bias. Berhe, 193 Wn.2d at 661. “At the prima facie stage, courts must limit themselves to determining whether the evidence, taken as true, permits an inference that an objective observer who is aware of the influence of implicit bias could view race as a factor in the jury’s verdict.” Berhe, 193 Wn.2d at 666. “Where the evidence is unclear or equivocal, as it will often be in cases of alleged implicit racial bias, the court must conduct further inquiries before
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deciding whether a prima facie showing has been made.” Berhe, 193 Wn.2d at 666.
Echols argues that “many facts present in Berhe are present here.” But the facts in Berhe are distinguishable. In Berhe, the court held the evidence in the record was “at least sufficient to require further inquiry” because the specific examples in Juror 6’s declaration went beyond her “subjective feeling” of racial bias. 193 Wn.2d at 668. In her declaration, Juror 6, who was the only African American juror, stated she was being “ridiculed in a way that the other dissenting jurors were not,” and she gave specific examples of that ridicule, including having her ideas about the weight of the evidence “mocked as ‘stupid’ and ‘illogical.’ ” Berhe, 193 Wn.2d at 668. Juror 6 also stated other jurors interpreted her rhetorical question to be “a comment on police misconduct towards African Americans” when Juror 6 responded to another juror questioning whether Berhe’s pants were indeed big and baggy since Berhe did not hold the pants when he exited his vehicle during the police stop. Berhe, 193 Wn.2d at 654, 668. Juror 6 stated she was “the last hold-out before a verdict was reached.” Berhe,193 Wn.2d at 654. As a result, Juror 6 stated she “couldn’t handle the pressure of being a hold-out anymore” and “only agreed to the Guilty verdicts because I felt emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors.” Berhe, 193 Wn.2d at 655.
Here, juror 13 mentioned one example of a juror who rolled their eyes when the topic of race came up during deliberations, and this was the same juror who refused to consider self-defense. Critically, when the trial judge asked juror
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13 multiple questions about the topic of racial bias during jury deliberations, juror 13 did not provide concrete examples. Rather, her responses described her subjective beliefs.
Echols argues the trial court abused its discretion in applying the wrong legal standard for an evidentiary hearing on juror misconduct of “clear inference” of racial bias and failing to “recognize that it must take the evidence gathered as true.” We disagree.
We agree the trial court applied an incorrect standard of “clear inference of bias,” which was the standard enunciated in the Court of Appeals decision State v. Jackson, 75 Wn. App. 537, 543, 879 P.2d 307 (1994). In deciding Berhe, our Supreme Court reaffirmed the proper general framework in Jackson and also expanded that general framework to “adequately address allegations of implicit racial bias.” 193 Wn.2d at 661. And, the “prima facie showing” standard became “whether the evidence, taken as true, permits an inference that an objective observer who is aware of the influence of implicit bias could view race as a factor in the jury’s verdict.” Berhe, 193 Wn.2d at 666.
While we agree with Echols on the correct standard, Echols fails to explain how the standard, as applied and reviewed de novo, entitled him to an evidentiary hearing. Simbulan v. Nw. Hosp. .& Med. Ctr., 32 Wn. App. 2d 164, 175, 555 P.3d 455 (2024) (Because the determination as to whether a prima facie showing has been made relies on the objective standard under GR 37 and incorporates the totality of the circumstances at trial, we review the prima facie showing de novo.). “This court will not consider claims insufficiently argued by
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the parties.” State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
When we apply the correct standard, based on the evidence of the two juror letters and the testimony of juror 13, discussed supra, no objective observer could conclude that bias based on race affected this verdict. Echols has not established a prima facie case that entitled him an evidentiary hearing. Restitution In the companion case, Echols appealed the trial court’s restitution order.
While Echols objected to the imposition of restitution below, on appeal, neither party briefed the issue of restitution. We consider the argument abandoned. Diel v. Beekman, 1 Wn. App. 874, 876, 465 P.2d 212 (1970).
We affirm the trial court’s order denying an evidentiary hearing and order setting restitution.
WE CONCUR: