State v. RiversState v. Rivers
- Reporters:
- , ,
- Before:
- Stephens, González, Montoya-Lewis (en banc)
Though Rivers argues his convictions must be reversed under existing United States Supreme Court precedent, he urges that article I, sections 21 and 22 of the Washington Constitution provide greater protection of the fair cross section guaranty
No one in this case disputes that jury diversity is lacking in Washington and that more can and must be done to promote juror diversity statewide. This court and others have an administrative responsibility to address the policy question of how to facilitate juror participation and achieve greater jury diversity across Washington. However, the case before us invokes our appellate jurisdiction, not our
Because Rivers is not entitled to a new trial based on his fair cross section claim, we address his additional challenge to the trial court‘s admission of expert testimony regarding the correlation between strangulation and memory loss as well as the trial court‘s decision not to answer a written question from the jury regarding the mens rea of assault by suffocation. We affirm on each claim because the trial court acted within its discretion in both instances. We remand for resentencing, however, because Rivers is entitled to the benefit оf
As Rivers‘s principal challenge is to the composition of his jury venire, some background is necessary regarding the jury summons process in King County and, more generally, race demographic data for the county.
A. Jury Summons Procedures in King County
Across Washington, courts randomly select prospective jurors from master jury lists.
B. Seattle and Kent Jury Assignment Areas
King County has two full-service superior courthouses: the King County Courthouse in Seattle and the Norm Maleng Regional Justice Center in Kent. State v. Lanciloti, 165 Wn.2d 661, 664, 201 P.3d 323 (2009). Until 2007, King County summoned prospective jurors to either courthouse randomly regardless of proximity. Id. Superior Court judges began to observe that jurors were more likely to appear for jury service when summoned to the courthouse closest to their home. Id. One judge compiled detailed demographic data that tended to show “distance to the courthouse had a disproportionate impact on poor and minority jurors, making juries overall less representative of King County.” Id.
In response to requests from King County Superior Court judges, the legislature amended the jury summons statutes to permit counties with two or more courthouses to create multiple jury districts within the county. Id.; see also LAWS OF 2005, ch. 199, codified as
C. King County‘s Racially Disparate Neighborhood Demographics
The United States hаs a shameful history of segregating neighborhoods through the use of racially restrictive covenants. See In re That Portion of Lots 1 & 2, 199 Wn.2d 389, 395-96, 506 P.3d 1230 (2022) (tracing the history of racial covenants across the country). Seattle is no exception.
Seattle‘s first known racially restrictive covenant was written in 1924. Catherine Silva, Racial Restrictive Covenants History: Enforcing Neighborhood Segregation in Seattle, SEATTLE CIV. RTS. & LABOR HIST. PROJECT, https://depts.washington.edu/civilr/covenants_report.htm [https://perma.cc/NY93-
Redlining also contributed to racial segregation in Seattle. “Redlining” is “[c]redit discrimination . . . by an institution that refuses to provide loans or insurance on properties in areas that are considered to be poor financial risks or to the people who live in those areas.” BLACK‘S LAW DICTIONARY 1531 (11th ed. 2019). Lenders relied on maps drawn to indicate the “best” Seattle area neighborhoods in which banks should invest; banks generally refused to lend money for properties in “declining” and “hazardous” neighborhoods. See HOME OWNERS’ LOAN CORPORATION SECURITY MAP AND AREA DESCRIPTIONS (January 10, 1936), https://cdm16118.contentdm.oclc.org/digital/collection/p16118coll2/id/379 [https://perma.cc/CTP4-PRL6]; see also Bruce Mitchell & Juan Franco, HOLC “Redlining” Maps: The Persistent Structure of Segregation and Economic Inequality, NAT‘L CMTY. REINVESTMENT COAL. (Mar. 20, 2018), https://ncrc.org/holc/ [https://perma.cc/JWQ7-MZL5].
The consequences of this history remain. Racially restrictive covenants and redlining “have had a profound and lingering impact on the Seattle area, reflected
The Seattle-Kent jury district divide tracks these racial disparities because it separates King County into two distinct northern and southern jury assignment areas. The record in this case contains data indicating that while King County‘s overall population in 2015 was 5.60 percent Black, the Seattle assignment area population was only 4.14 percent Black while the Kent area‘s was 8.11 percent Black. In other words, the Kent jury assignment area had nearly twice as many Black residents as the Seattle jury assignment area.
CASE FACTS AND PROCEDURAL HISTORY
A. Background Facts of Paul Rivers‘s Case
Paul Rivers met Summer Power in 2017 and they began a sporadic dating relationship. At approximately 2:00 a.m. on February 11, 2018, Seattle police responded to a 911 call in which the caller reported a female assaulting a male in the street. When officers arrived, both parties admitted to having a verbal argument but denied physical contact. The officers decided to separate the parties; one officer drove Rivers home while another drove Power to the precinct to call her own ride
Later that morning around 4:00 a.m., Power went to Rivers‘s home, and the two resumed arguing. The first thing Power remembers from the night is the altercation that ensued. Power alleges that when she tried to leave Rivers‘s house, Rivеrs pushed her onto the bed and got on top of her. He lifted her shirt and forcefully bit her breast. Rivers then placed his hand on Power‘s throat and began “choking” her. 2 Verbatim Rep. of Proc. (VRP) at 914. Rivers also covered her nose and mouth, blocking her breathing. When Rivers stood up, Power ran out of the house and attempted to call the police using her cell phone. Rivers followed and grabbed Power‘s phone. Power ran to a neighbor‘s house and began screaming for help while banging on the front door. A resident called 911.
Officers soon arrived and observed that Power appeared “very flustered,” “was crying,” and “seemed out of breath.” 2 VRP at 568. Power told police Rivers had choked her. One officer noticed “her neck was visibly red” and had “marks . . . where she stated she was choked.” 2 VRP at 572, 574-75. When Rivers spoke to officers at the scene, he denied choking Power but stated that the two had been drinking and that Power was his girlfriend. He admitted to grabbing Power‘s phone but claimed he had done so playfully like “a game.” 2 VRP at 625-26. Police arrested Rivers for domestic violence. The State charged Rivers with one count of
B. Pretrial Motion for a Jury Venire Drawn from a Fair Cross Section
Before trial, Rivers filed a motion seeking a jury venire drawn from a fair cross section of the community, raising arguments under both the federal and state constitutions. In support of his motion, Rivers provided statistical data from a report by University оf Washington Professor Katherine Beckett titled “The Under-Representation of Blacks in the King County Jury Pool.” Clerk‘s Papers (CP) at 106. Beckett‘s report analyzes demographic data collected from jurors summoned in King County over a period of 20 consecutive court days in 2015. From this data, Beckett found a general trend of underrepresentation of Black jurors in King County. For example, although the county‘s overall population was 5.60 percent Black, only 3.61 percent of King County jurors were Black. Black jurors were also underrepresented in the individual jury pools of both Kent (5.33 percent) and Seattle (2.29 percent) when compared to the overall Black population of King County.
Rivers argued in his motion that the underrepresentation of Black jurors in Seattle was the result of systematic exclusion because King County‘s summons procedures combined with low juror response rates produce an “oversampling” of predominantly white zip codes and an “undersampling” of more racially diverse zip codes. He further argued that King County‘s choice to divide itself into two separate
C. Facts Relating to Rivers‘s Evidentiary Challenge to the Admission of Expert Witness Testimony
At trial, Power testified for the State. She admitted to having no memory of most events from the evening in question but described her experience being pushed onto the bed, bitten, choked, and smothered. The State offered expert testimony from Theresa Stewart, a sexual assault nurse examiner (SANE). Rivers objected to Stewart‘s testimony regarding the connection between strangulation and memory loss, arguing she was not an expert on the subject. The court conducted voir dire on Stewart‘s qualifications outside the presence of the jury. Stewart had worked at Harborview Medical Center for 17 years treating sexual assault and domestic violence patients, including those who suffered strangulation. She participated in and conducted trainings on the topic of sexual assault strangulation. Stewart had previously been qualified as an expert and testified in court on the topic of strangulation approximately 20 times.
D. Facts Relating to the Trial Court‘s Response to the Jury‘s Question
During jury deliberations, the jury sent out a question about the criminal intent required if someone were killed by suffocation: “Regarding instruction 14: If someone accidentally killed someone by impairing their ability to breathe without the intent of obstructing airflow, would the defend[a]nt be found guilty of suffocation?” CP at 62. Instruction 14 defined “suffocation“: “‘Suffocation’ means to block or impair a person‘s intake of air at the nose and mouth, whether by smothering or other means, with the intent to obstruct the person‘s ability to breathe.” CP at 50. The court was concerned about the hypothetical nature of the jury‘s question, given that no homicide charge was at issue, and it invited proposed
The court decided not to give the jury further instructions in response to the hypothetical question and tоld the jury to refer to the instructions already given. The given instructions included a standard pattern instruction defining “intent“: “A person acts with intent or intentionally when acting with the objective or purpose to accomplish a result that constitutes a crime.” CP at 48; 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 10.01 (5th ed. 2021). It is undisputed that the jury instructions concerning the mens rea for assault reflected an accurate statement of the law, requiring the jury to find the defendant acted with intent.
E. Facts Relating to Rivers‘s Sentencing and Appeal
The jury convicted Rivers on both charges. At sentencing, the trial court found Rivers to be a persistent offender based on his convictions for three “most serious offense[s],” including two prior convictions for second degree robbery. CP at 194, 200. The Court sentenced Rivers to life imprisonment without parole on count one based on the persistent offender statute,
Rivers appealed, raising numerous challenges, including violation of his constitutional right to an impartial jury panel drawn from a fair cross section of the community. Following oral argument on March 2, 2022, the Court of Appeals determined pursuant to
Whether article I, section 21 and/or section 22 of the Washington State Constitution provide greater protection of the right to a jury venire drawn from a fair cross section of the community than the Sixth Amendment to the United States Constitution.
Ord. of Certification, State v. Rivers, No. 81216-5-I, at 1 (Wash. Ct. App. May 11, 2022). The Court of Appeals accordingly certified this сase to our court, and we accepted the transfer of the appeal for determination on the merits.
ANALYSIS
We first address Rivers‘s fair cross section claim before turning to his remaining challenges to his conviction and sentence. Constitutional issues are questions of law we review de novo. State v. Jorgenson, 179 Wn.2d 145, 150, 312 P.3d 960 (2013) (citing State v. Sieyes, 168 Wn.2d 276, 281, 225 P.3d 995 (2010)). We generally review a trial court‘s decisions admitting testimony and determining how to respond to a deliberating jury‘s questions for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004) (admission of testimony); State v. Sublett, 176 Wn.2d 58, 82, 292 P.3d 715 (2012) (plurality opinion) (questions from deliberating jury).
Rivers has not shown a violation of his fair cross section rights under either the state or federal constitution. We decline to adopt his proposed tests under article I, sections 21 and 22 of the Washington State Constitution. While Rivers and Amici identify serious ongoing concerns about jury diversity in King County and statewide, Rivers fails to demonstrate how his proposed tests are constitutionally required to address these concerns. We adhere to the test set forth by the United States Supreme Court in Duren, which this court has long applied. Because Rivers has not shown a constitutional violation under the analysis established in Duren, we decline to order a new trial on this basis.
We also decline to order a new trial based on the trial court‘s decision to admit expert testimony from a sexual assault nurse and its decision not to further instruct the jury in response to its question during deliberations. In both instances, the abuse of discretion standard applies and the trial court reasonably exercised its discretion. We therefore affirm Rivers‘s convictions, though he is entitled to resentencing because his life sentence as a persistent offender is no longer authorized by
A criminal defendant is entitled to a trial by an impartial jury, and this constitutional right includes the right to have jury panels drawn from a fair cross section of the community. Duren, 439 U.S. at 358-59 (citing Taylor v. Louisiana, 419 U.S. 522, 526-31, 95 S. Ct. 692, 42 L. Ed. 2d 690 (1975)); State v. Hilliard, 89 Wn.2d 430, 440, 573 P.2d 22 (1977) (citing Taylor, 419 U.S. at 528). Rivers argues he was deprived of his fair cross section right under both the federal and state constitutions when King County‘s jury selection system produced his venire containing no apparent Black potential jurors. To prove a fair cross section violation under the Sixth Amendment, the Duren test requires a defendant to show (1) a distinctive group (2) is unreasonably underrepresented in his own venire and in jury venires generally, (3) as a result of systematic exclusion in the jury selection process. Duren, 439 U.S. at 364, 366. Washington has consistently applied this test in past cases considering claims of underrepresentation on juries. See, e.g., Yates, 177 Wn.2d at 18-23; State v. Cienfuegos, 144 Wn.2d 222, 230-32, 25 P.3d 1011 (2001); State v. Rupe, 108 Wn.2d 734, 746-48, 743 P.2d 210 (1987).
In Rivers‘s view, the Duren test has failed to adequately guard the fair cross section right. He urges us to interpret our state constitution to require a more stringent test for assessing fair cross section claims. Rivers, supported by Amici, proposes we eliminate Duren‘s requirement of showing underrepresentation
A. Background on the Fair Cross Section Right
The Sixth Amendment to the United States Constitution, as applied to the states through the Fourteenth Amendment, grants all criminal defendants the right to trial “by an impartial jury.”
Shortly after deciding Taylor, in Duren, the United States Supreme Court announced a three-part test for assessing fair cross section claims. Under Duren, a claimant must show
(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 this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
439 U.S. at 364. Once a claimant makes a prima facie showing of a fair cross section violation by satisfying each of Duren‘s three requirements, the burden shifts to the State to “justify[] this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest.” Id. at 368-69 (State failed to meet this burden because “the preclusive domestic responsibilities of some women is insufficient justification for their disproportionate exclusion on jury venires“).
Most litigation centers on Duren‘s second and third requirements. Regarding the second requirement to date, neither this court nor the United States Supreme
Comparative disparity expresses the absolute disparity as a percentage of the group‘s overall representation in the community. It purports to state “the diminished likelihood that members of an underrepresented group, when compared to the population as a whole, will be called for jury service.” Ramseur v. Beyer, 983 F.2d 1215, 1231-32 (3d Cir. 1992). Comparative disparity is measured by dividing the absolute disparity figure by the percentage of a distinctive group in the overall jury eligible population. For example, if Group X comprises 10 percent of the population but only 4 percent of the jury pool, there is a comparative disparity of 60 percent.
Neither statistical method is perfect. Both have been criticized as poor indicators of underrepresentation when the distinctive group comprises a relatively small percentage of the overall population. See, e.g., Smith, 559 U.S. at 329 (both methods “can be misleading when, as here, ‘members of the distinctive group comp[ose] [only] a small percentage of those eligible for jury service‘” (alterations in original) (quoting People v. Smith, 463 Mich. 199, 203-04, 615 N.W.2d 1 (2000))). Absolute disparity tends to “understate[] the systematic representative deficiencies” of small groups. United States v. Rogers, 73 F.3d 774, 776-77 (8th Cir. 1996). For example,
if we assume a group makes up 90% of the population, but 80% of the jury pool, there would be a 10% absolute disparity. Under those circumstances, it is doubtful that any court would consider the group underrepresented. However, if a population group constituted 10% of the population, but had no representation in a jury pool, that result might give rise to fair cross-section concerns. Yet, the absolute disparity—10%—would be identical under both scenarios.
United States v. Hernandez-Estrada, 749 F.3d 1154, 1162 (9th Cir. 2014). In contrast, comparative disparity tends to “overstate the underrepresentation of a group that has a small population percentage.” Id. at 1163. For example,
[l]et‘s assume . . . that a group constitutes .1% of the population, with no representation in the jury pool. The comparative disparity of that group would be 100%. Few would argue that the absence of a group representing just 0.1% of the population violates the fair cross-section
requirement, yet comparative disparity analysis would suggest otherwise.
Id. To account for these problems, courts tend to use a combination of both methods, sometimes in combination with other statistical methods. See, e.g., id. at 1162-64 (discussing standard deviation, the absolute impact test, and the disparity-of-risk test); United States v. Orange, 447 F.3d 792, 799 (10th Cir. 2006) (using combination of absolute and comparative disparity); Mosley v. Dretke, 370 F.3d 467, 479 n.5 (5th Cir. 2004) (using absolute disparity as primary method and permitting comparative disparity in some instances); Ramseur, 983 F.2d at 1231 (using combination of absolute disparity, comparative disparity, and deviation from expected random selection).
Next, Duren‘s third component requires the claimant to show the impermissible underrepresentation is caused by systematic exclusion. This requirement implements Taylor‘s and Duren‘s fundamental premise: that a process that systematically excludes distinctive groups from the jury pool is constitutionally intolerable because it deprives the defendant of an impartial jury. Taylor, 419 U.S. at 538 (“Defendants are not entitled to a jury of any particular composition, but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.” (citations omitted)).
While systemic and systematic mean different things, we note that it remains an open question whether systemic factors can nonetheless inform the systematic exclusion analysis; the United States Supreme Court has expressly declined to address the issue. Smith, 559 U.S. at 333 n.6 (“We have also never ‘clearly’ decided,
With this background, we now turn to Rivers‘s fair cross section claim under the Washington Constitution.
B. We Decline To Adopt Rivers‘s Proposed Tests for Assessing Fair Cross Section Claims under the Washington Constitution
As noted, Rivers and amici urge us to interpret article I, sections 21 and 22 independently from the Sixth Amendment and to adopt a separate state constitutional analysis to assess fair cross section claims. This court has a duty, where feasible, to resolve constitutional questions first under our own state constitution before relying on federal law. In re Pers. Restraint of Williams, 198 Wn.2d 342, 353, 496 P.3d 289 (2021).
Article I, section 21 provides, in relevant part, “[t]he right of trial by jury shall remain inviolate.”
Not all claims encompassed within a particular constitutional provision are the same, so our analysis centers on Rivers‘s specific claim: that аrticle I, sections 21 and 22 require a more stringent assessment of fair cross section claims than the
Beyond the Gunwall factors, Rivers urges an independent state constitutional analysis on the ground that the Duren test fails to adequately protect the fair cross section right. Rivers compares Duren to Batson, noting how our “observation that ‘Washington appellate courts have never reversed a conviction’ under Batson spurred [this court] to adopt a new standard for peremptory challenges.” Supp. Br. of Pet‘r at 11 (quoting Saintcalle, 178 Wn.2d at 45-46). Out of the 20 cases that Rivers cites in which Washington appellate courts assessed fair cross section
This is not to say that Rivers‘s concerns about jury diversity in King County and across Washington are unfounded or trivial. Rivers identifies a number of systemic barriers that contribute to persistent and troubling underrepresentation in Washington jury pools and petit juries. These include, among other things, low juror pay, work obligations, lack of family care, and lack of transportation. See Collins & Gialopsos, supra, at 31-33. We know these socioeconomic barriers to jury service disproportionately impact BIPOC communities and operate to produce less diverse and more homogenous juries. See Jury Diversity Task Force, Minority & Just. Comm‘n, 2019 Interim Report 2-3 (2019), https://www.courts.wa.gov/subsite/mjc/docs/Jury%20Diversity%20Task%20Force
A lack of jury diversity results from many systemic contributors and, as a result, any effective approach to the problem requires multifaceted solutions. Adversarial litigation and appellate review certainly provide one avenue to effect change, but within limitations. Our role here, sitting as a court in review, is not to decide the best method for optimizing jury diversity or juror participation generally. These policy questions are best answered through legislative action or the judiciary‘s formal rule-mаking process, as with
Still, we emphasize the critical importance of jury diversity and the urgent need to promote juror participation and representation statewide. It is beyond
C. Rivers Does Not Establish a Fair Cross Section Violation under Duren
Turning to the merits of Rivers‘s fair cross section claim, we adhere to our precedent and apply the three-part test set forth in Duren. Rivers bears the burden of proving that his jury selection system is unconstitutional and wаrrants a new trial. Hilliard, 89 Wn.2d at 440. Under the Duren test, he must show (1) a distinctive group (2) is unreasonably underrepresented on venires generally and on his own venire, and (3) this underrepresentation is the result of systematic exclusion. Duren, 439 U.S. at 364, 366. When a defendant makes a prima facie showing of a fair cross section violation under Duren, the burden shifts to the State to justify the infringement by demonstrating that attainment of a fair cross section is incompatible with a significant state interest. Id. at 367-68.
Rivers easily meets Duren‘s first element. Black people form a distinctive group for Duren purposes. Yates, 177 Wn.2d at 20. This case, like most, turns on Duren‘s second and third elements: underrepresentation and systematic exclusion.
With respect to Duren‘s second requirement, we take this opportunity to clarify that Washington courts are not confined to any one statistical method of measuring underrepresentation. We decline to adopt any particular methodology as constitutionally mandated and instead endorse a flexible approach because different factual scenarios will require different statistical methods. We hold that Washington courts may use one or more statistical models, including but not limited to absolute
not only statistical significance, but also legal significance. The results of any statistical method must be examined in the context of the likely, actual, “real life” impact on the jury pool at issue. As we have observed in earlier cases, “we look to people not percеntages.”
Hernandez-Estrada, 749 F.3d at 1165 (quoting United States v. Kleifgen, 557 F.2d 1293, 1297 (9th Cir. 1977)). If a statistical analysis shows underrepresentation, but the disparity “does not substantially affect the representation of the group in the actual jury pool, then the underrepresentation does not have legal significance in the fair cross-section context.” Id. This approach strikes the appropriate balance and we adopt it here, recognizing that statistics can be helpful but only when understood in light of the actual people and groups they measure.
However, we do not reach the question of underrepresentation in this case because Rivers does not meet Duren‘s third element, systematic exclusion. Systematic exclusion means underrepresentation of the distinctive group is “inherent in the particular jury-selection process utilized.” Duren, 439 U.S. at 366. Rivers offers two theories of systematic exclusion. First, he argues that low juror response rates combined with King County‘s summons practices produce an “oversampling” of predominantly white zip codes and an “undersampling” of more diverse zip codes.
Rivers next claims that King County‘s summons procedures are exclusionary because the county chose to divide itself into two demographically disparate jury districts: Seattle and Kent. He argues the Seattle-Kent divide constitutes systematic exclusion because, as a result of historically racist housing policies, King County‘s Black population is mоre heavily concentrated in the Kent jury assignment area. This means fewer Black residents are summoned for jury service in the Seattle jury assignment area and, consequently, Seattle juries are less diverse than Kent juries. The State responds that the Seattle-Kent divide was created in an effort to promote jury participation and diversity by eliminating long travel distances. As noted, the legislature enacted
Rivers‘s argument about the geographic subdivision of King County could establish a form of systematic exclusion under Duren, but he has failed to prove this argument with evidence. Although racial demographics combined with jury districting ”might contribute to a group‘s underrepresentation,” there must be proof of causation. See Smith, 559 U.S. at 330-32 (a Kent County, Michigan jury
Rivers has not substantiated his theory of systematic exclusion with evidence as required by Duren, and for this reason we hold Rivers fails to establish a fair cross section violation.
II. Rivers‘s Remaining Claims Do Not Warrant a New Trial, Though He Is Entitled to Resentencing
Beyond his fair cross section claim, Rivers seeks a new trial due to (1) the trial court‘s admission of expert testimony from an experienced Harborview nurse regarding the correlation between strangulation and memory loss and (2) the trial court‘s decision not to answer a written question from the jury regarding the mens rea of assault by suffocation and to instead refer the jury to its instructions. We hold that the trial court did not abuse its discretion on either occasion. However, Rivers argues and the State does not dispute that he is entitled to resentencing as a result of recent legislative amendments. We agree and remand to the trial court for a new sentencing hearing.
A. The Trial Court Acted within Its Discretion in Qualifying a Nurse Witness as an Expert on the Relationship between Strangulation and Memory Loss
Rivers claims the trial court erred in permitting expert testimony by a SANE, Theresa Stewart, on the correlation between strangulation and memory loss. Specifically, Rivers alleges Stewart lacked training as a psychologist, neurobiologist, or neuroscientist; that she had not researched the connection between strangulation and memory loss; and that her experience on this subject was limited to anecdotal observations and a single training video. According to Rivers, the testimony was beyond Stewart‘s area of expertise and therefore not helpful to the jury‘s understanding of the evidence.
We review the admission of expert testimony for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 970 (2004). Reversal is warranted only where “no reasonable person would have decided the matter as the trial court did.” Id. The evidence rules permit expert testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”
The trial court sustainably qualified Stewart as an expert on the correlation between strangulation and memory loss. Stewart obtained her bachelor of science in nursing in 1989. In 2002, she completed a 40-hour didactic SANE training to become a forensic nurse. At the time of trial, Stewart had worked as a nurse examiner at Harborview Medical Center for 17 years. She has seen over 500 patients for sexual assault exams and estimates that approximately 15 percent of all sexual assault victims report strangulation. Stewart has performed strangulation examinations on both sexual assault and domestic violence patients in the course of her work at Harborview. Stewart occasionally performs forensic examinations specifically related to strangulation. When Stewart evaluates patients, the first thing she does is obtain a patient history of “as much as they‘re able to remember about what‘s happened to help guide the exam and the care” provided to the patient. 2 VRP at 735. Stewart also regularly attends trainings and conferences on sexual assault strangulation, pattern injuries, neurobiology, and related topics. She has trained other nurse examiners, law enforcement, prosecutors, and advocates on the
We cannot say that no reasonable person would have ruled as the trial court did here. Based on her experience and training, Stewart was qualified to render her expert opinion that memory loss is a symptom of strangulation. That Stewart lacked academic credentials on this particular subject goes to the weight of her testimony, not admissibility. See State v. Flett, 40 Wn. App. 277, 285, 699 P.2d 774 (1985) (“[O]nce basic requisite qualifications are established, any deficiencies in an expert‘s qualifications go to weight, rather than admissibility of testimony.“). The record does indicate, as Rivers points out, that many of the trainings on strangulation that Stewart has either attended or planned recycle the same training video created by Dr. Rebecca Campbell, a neurobiologist who studies the effects of trauma. This, too, goes to the weight of Stewart‘s testimony, not admissibility. Moreover, the testimony was helpful to the trier of fact because it established that strangulation could have contributed to Power‘s memory loss from the evening of the alleged assault. The trial court acted well within its discretion in permitting Stewart‘s expert opinion on this topic.
B. The Trial Court Acted within Its Discretion in Declining To Answer the Jury‘s Written Question
Next, Rivers claims he is entitled to a new trial because the trial court declined to answer a question from the deliberating jury concerning the mens rea for assault
We review a trial court‘s decision of how best to respond to a deliberating jury‘s question for abuse of discretion. State v. Becklin, 163 Wn.2d 519, 529-30, 182 P.3d 944 (2008). Jurors are presumed to follow the court‘s instruction. State v. Weaver, 198 Wn.2d 459, 467, 496 P.3d 1183 (2021). We presume they read the instructions as a whole to discern the relevant legal standard. Id. A single jury question “does not create an inference that the entire jury was confused, or that any confusion was not clarified before a final verdict was reached.” State v. Ng, 110 Wn.2d 32, 43, 750 P.2d 632 (1988) (no abuse of discretion where trial court declined to answer jury question because instructions already answered that question).
There was no abuse of discretion here. It is undisputed that the jury‘s instructions reflected an accurate statement of the law. Instruction No. 14 defined suffocation and expressly stated that it requires a person act with intent to block another‘s ability to breathe. The trial court acted reasonably when it declined to answer a question involving hypothetical facts about death by suffocation and instead referred the jury to the instructions already given, which contained an answer
Rivers cites three primary cases in support of his argument, but each is readily distinguishable. In State v. Sanjurjo-Bloom, the trial court erred by admitting character evidence without a limiting instruction. 16 Wn. App. 2d 120, 127-28, 479 P.3d 1195 (2021). When the jury asked a question indicating it was considering this evidence for improper propensity purposes, the court “compounded” the existing error by failing to correct the jury‘s misunderstanding. Id. The Court of Appeals reversed not because the lower court declined to answer a jury question, but because the court permitted the jury to consider improper propensity evidence. Id. at 129-30. In Rivers‘s case, however, there was no existing evidentiary error the court was obligated to correct.
In State v. Campbell, one of the jury‘s instructions did not accurately inform the jury of the law. 163 Wn. App. 394, 401, 260 P.3d 235 (2011). When read as a whole, the instructions did not cure the deficiency. Id. “This error was compounded when, in response to the jury‘s question, the trial court referred the jurors back to the instructions already given rather than clarifying the applicable law.” Id. at 401-02. Unlike Campbell, the jury instructions here correctly stated the law on assault, including the element of intent, and the trial court did not compound an existing error by declining to answer the jury‘s question.
In sum, the trial court acted well within its discretion when it responded to the jury‘s question by referring the jury to its instructions, which reflected an accurate statement of the law.
C. Rivers Is Entitled to Resentencing
Although Rivers‘s other claims fail, he is entitled to a new sentencing hearing. Under the Persistent Offender Accountability Act, persistent offenders are sentenced to life imprisonment without the possibility of parole.
Rivers is entitled to resentencing under the amended statutes. He was sentenced in 2020 to life imprisonment without the possibility of parole under the Persistent Offender Accountability Act. This sentence was based in part on his two prior convictions for second degree robbery. Rivers therefore must receive a resentencing hearing because his “past conviction[s] for robbery in the second degree” servеd as the basis for his sentence as a persistent offender.
CONCLUSION
We affirm Rivers‘s convictions and remand for a resentencing hearing. We decline to adopt Rivers‘s proposed state constitutional tests and instead analyze his fair cross section claim under the existing Duren test. Applying that test here, we
Stephens, J.
WE CONCUR:
Gordon McCloud, J.
Johnson, J.
Yu, J.
Madsen, J.
Owens, J.
Whitener, J.
Long-standing precedent puts the burden on the defendant to show that the pool of potential jurors does not represent a fair cross section of the community. While this accords with the regular course of judicial review, the truth is that the defеndant does not have access to the information that would allow them to meet that burden. Whether the jury pool in fact represents a fair cross section of the community is a matter courts have all too often taken on faith, often in the face of considerable reasons to think otherwise. When a defendant cannot meaningfully
As the majority properly acknowledges, jury pools have historically not been drawn from that fair cross section. Justice demands more than we have done. Under the impossible burden established by Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979), the controlling federal precedent, Paul Rivers has not established that he is entitled to relief. Nor has he done the work to establish a right to a different result under our state constitution. Accordingly, I reluctantly concur with the majority.
I write separately to express my deep concern with the unworkable legal framework set forth in Duren and the inadequate steps we have taken to make our jury pools represent a fair cross section of our communities. Duren has failed and we have failed. We—judges, court clerks, and the legislature—must do more.
I. APPLICATION OF DUREN STANDARD
Duren articulated a three-pronged test for fair cross section challenges. When a defendant raises a fair cross section challenge, they must make a prima facie showing:
(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 this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren had challenged a state law that exempted women from jury service upon their request. Id. at 360. Near the time of Duren‘s trial, women represented approximately 54 percent of the population eligible for jury service but only 26.7 percent of those summoned and 14.5 percent of those on venires. Id. at 362-63, 367.
The Court rejected the State‘s argument that Duren failed to show the exemption of women on request had “‘any effect’ on or was responsible for the underrepresentation of women on venires.” Id. at 368. The Court held Duren had made a “prima facie showing of an infringement” of his fair cross section right. Id. at 368. In essence, the Duren Court did not require a stringent showing of causation to meet the systematic exclusion prong. See Nina W. Chernoff, Wrong
The Court arguably required a more particularized shоwing of the cause of the disparity in Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010). There, Smith challenged Kent County‘s jury assignment order that assigned jurors first to district courts then to circuit courts. The city of Grand Rapids made up 37 percent of Kent County, and Black residents made up 85 percent of Grand Rapids. Id. at 322. Smith alleged that the order siphoned Black jurors from the circuit court to the district court, resulting in an underrepresentation of Black jurors in the circuit court where his trial was held. He provided evidence showing a drop in the comparative underrepresentation of Black jurors from 18.0 percent to 15.1 percent after the order was discontinued, but the court concluded that Smith failed to show that the order caused the underrepresentation. Id. at 331. In my view, the constitutional guaranty to a fair cross section should not be so constrained.
Nevertheless, our court has followed federal courts and repeatedly applied this strict reading of Duren in consistently rejecting fair cross section claims. See In re Pers. Restraint of Yates, 177 Wn.2d 1, 20-23, 296 P.3d 872 (2013); State v. Cienfuegos, 144 Wn.2d 222, 232, 25 P.3d 1011 (2001); In re Pers Restraint of Lord, 123 Wn.2d 296, 312, 868 P.2d 835 (1994); State v. Rupe, 108 Wn.2d 734, 747-48, 743 P.2d 210 (1987); see also David M. Coriell, An (Un)fair Cross Section: How the Application of Duren Undermines the Jury, 100 CORNELL L. REV. 463, 465 (2015) (concluding that a strict reading of Duren places “a high bar [on the defendant] that often renders the fair cross section guarantee illusory“) Today, we add Rivers to this unpleasant legacy of fair cross section claims.
Rivers contends that King County Superior Court‘s procedure of dividing its jury source list into two assignment areas systematically excludes Black panel members from the “Seattle Jury Assignment Area.” His contention is supported by a report by Professor Katherine Beckett, albeit a report that was limited by considerable constraints. Dr. Beckett analyzed (1) juror summons information for each zip codе in King County and the separate assignment areas for the year of 2015, aggregated with the latest United States census data, and (2) juror survey responses conducted in both the Seattle and Kent courthouses from January to April 2015. Clerk‘s Papers (CP) at 111-13. This data showed that only 4 percent of eligible jurors in the Seattle Jury Assignment Area were Black, whereas more than 8 percent of the “Kent Jury Assignment Area” were Black. CP at 113. The numbers are even more concerning when we consider that only 2 percent of jurors who showed up for jury duty in the Seattle Jury Assignment Area were Black. Id. But without equally powerful analysis comparing the disproportionality of the jury pools that would exist without the assignment areas, I am constrained to agree with
II. BURDEN UNDER DUREN
The majority suggests that Rivers could have made a prima facie showing by providing juror data predating the adoption of King County Superior Court‘s Local General Rule (LGR) 18 to test if the rule had operated as intended and, if not, whether it systematically excluded Black jurors. Id. LGR 18 was adopted after King County judges observed that the general inverse relationship between the distance from the courthouse and the likelihood of appearing in response to a juror summons was more pronounced when the juror was lower income or a person of color. State v. Lanciloti, 165 Wn.2d 661, 664, 201 P.3d 323 (2009). Whether LGR 18 has worked as intended is absolutely something that should be tested. The majority suggests this data might have shown “whether the divide has produced systematic exclusion rather than inclusion . . . or what other consequences flow from the decision to subdivide the areas.” Majority at 36. But it is unrealistic to think that this is a showing an individual defendant should be able to make in the heat of trial. It illustrates the difficulty defendants face when trying to enforce their Sixth Amendment fair cross section right.
Such an approach to establishing the prima facie case demonstrates the nearly impossible burden under Duren today. Defendants depend largely on our courts for access to jury information. This information is not complete and cannot be easily analyzed. In addition, some courts do not consistently track juror demographic information.1 Under our court rules, such information is presumed to be private, and, in most cases, requests for this information will be granted by the court only upon a showing of good cause and after the conclusion of the trial. GR 31(j). The record in this case shows that King County does not regularly collect data regarding the race of its jurors. CP at 159. However, to mount a successful fair cross section challenge, defendants “need the government‘s data about the race of potential jurors . . . [and] access to the operation of the system to understand the source of the disparity.” Nina W. Chernoff, No Records, No Right: Discovery & the Fair Cross-Section Guarantee, 101 IOWA L. REV. 1719, 1734-35 (2016). An inability to access such information can be fatal to Sixth Amendment fair cross section claims.
In Lopez-Ramirez, the defendant moved for a jury drawn from a fair cross section of the community before trial, arguing that Black residents in King County were underrepresented in jury venires. He requested access to demographic information on potential jurors in the jury assembly room, but the trial judge declined to provide such information. Lopez-Ramirez, No. 75546-3-I, slip op. at 8-9. Similar to Rivers, Lopez-Ramirez relied on the same report from Professor Beckett. The Court of Appeals held that Lopez-Ramirez failed to meet his burden under Duren. Id. at 13.
b. STATE‘S BURDEN TO JUSTIFY INFRINGEMENT
Even under the existing inadequate Duren test, I am concerned that putting the burden on the defendant to show a difference before and after adoption of LGR
The State seems to suggest that since its intentions are good and the rule rational, the Sixth Amendment has not been violated. Br. of Resp‘t at 38. That is not sufficient as “‘[t]he right to a proper jury cannot be overcome on merely rational grounds.‘” Duren, 439 U.S. at 367 (alteration in original) (quoting Taylor, 419 U.S. at 534). The State must provide proof. See also Smith, 559 U.S. at 332-33 (explaining that when the State argued that the exemption complained of did not cause the systematic exclusion, the State must demonstrate how the other exemptions, that would justify failure to achieve a fair cross section, are the cause of the systematic exclusion).
Our state has made considerable efforts over the years to make our juries more reflective of the community. I commend the ongoing work of stakeholders to find and fund ways to track and increase juror participation. However, the lack of diverse juries in our criminal justice system still persists. Therefore, it is important that a defendant be able to enforce their Sixth Amendment cross section right with access to appropriate juror demographic information essential to making a prima facie case of systematic exclusion. See Letter from Wash. State Sup. Ct. to Members of Judiciary & Legal Cmty. 1 (June 4, 2020), https://www.courts.wa.gov/content/publicUpload/Supreme%20Court%20News/Judiciary%20Legal%20Community%20SIGNED%20060420.pdf [https://perma.cc/QNT4-H5P7] (“[W]e must recognize the harms that are caused when meritorious claims go unaddressed due to systemic inequities.“)
We should hold ourselves accountable and scrutinize our own court rules and procedures that govern the jury selection process and access to juror records to amend or craft such rules to reflect what we have learned about the shortcomings of Duren. See GR 31(j) (allowing defendants access to limited juror information upon a showing of good cause and only after the conclusion of the trial); GR 18(b) (requiring that jury source lists include only the juror‘s name, date of birth, gender, mailing and residential address).
I concur with the majority that under existing law and based on the factual showing made, Rivers is not entitled to relief. But his case starkly points out how jury pools in this state do not resemble the people of this state. Now that we know better, we must do better.
With these observations, I concur with the majority.
González, C.J.
Montoya-Lewis, J.