Opinion
No. 56961-9-I.
April 30, 2007.
Appeal from a judgment of the Superior Court for King County No. 03-1-07957-6, Paris K. Kallas, J., entered September 20, 2005.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Appelwick, C.J., and Becker, J.
Charles Jackson led his friend Donald Phillips to the basement of the house where Jackson lived and showed Phillips a dead woman's body. Jackson explained to Phillips that he had strangled the woman because she had previously stolen money from him.
The next day a passer-by found Julie Sterling's body in a wooded area near Jackson's residence. Dr. Richard Harruff, King County's Chief Medical Examiner, determined that Sterling had been dead for several days before her body was discovered. From the pattern of livor mortis, Dr. Harruff also determined that the body had been moved after death. Based on the autopsy Dr. Harruff subsequently performed, and on his evaluation of the circumstances, Dr. Harruff classified the cause of death as "probable manual strangulation."
After Jackson's subsequent arrest, he admitted to Seattle police detectives that he had invited Sterling to his residence and that they had engaged in sexual intercourse. Jackson initially claimed Sterling choked to death on a small plastic bottle cap Jackson had shoved into an old beer can. After the detectives expressed skepticism about Jackson's story, Jackson told the detectives that Sterling stopped breathing after being pushed against a dresser while engaged in sexual intercourse with Jackson. Jackson further explained that he kept Sterling's body in his house for two days, that a friend helped him move her body, and that he threw away her clothes to eliminate evidence linking her to him.
A jury ultimately convicted Jackson of murder in the second degree. On appeal from the judgment entered on the verdict, Jackson asserts: (1) the trial court erroneously ruled that the State produced sufficient independent evidence of a causal connection between Sterling's death and a criminal act to establish the corpus delicti, and that Jackson's statements to Phillips and police were, thus, improperly admitted; (2) Jackson's statements to police were made following his invocation of his right to counsel and, therefore, should have been ruled inadmissible; (3) the evidence produced at his trial was insufficient to support his conviction; (4) the medical examiner's testimony that "somebody was responsible for the death" of Sterling, even though the trial court struck the remark and gave a curative jury instruction, was so prejudicial that a new trial is required; and (5) the trial court erred by excusing from service a potential alternate juror. Finding no error, we affirm.
FACTS
On August 2, 2003, Jackson repeatedly told his friend Phillips that Jackson was keeping a body in the basement of his mother's house, where he lived. Jackson explained that the body was that of a woman who had previously stolen money from him. Phillips did not believe that Jackson was serious. The two men went to Jackson's mother's house, drank several beers, and smoked cocaine. Jackson then led Phillips into the basement. Jackson showed Phillips the foot of a body that was wrapped in a black plastic bag. Phillips noticed a strong odor of what he referred to as "[d]eath smell." Jackson removed the plastic and Phillips saw the entire body. He ran out of the house. Jackson followed and caught up with Phillips outside.
Phillips said that when he asked Jackson, "why did you do it?" Jackson responded, "don't nobody steal from him." Phillips related that Jackson also said that, after he brought the woman to his house, he punched her in the head, grabbed her neck, and strangled her. Jackson asked Phillips for help removing the body from his house. Phillips refused, telling Jackson to drive Phillips to his father-in-law's house and never call him again.
The next day, a passer-by discovered Sterling's body in a wooded area approximately ten blocks from Jackson's mother's house. There were several pieces of dark plastic, consistent with a lawn or garbage bag, on her body. The words "nigger bitch" were written across her chest in ink from a ballpoint pen. There was also illegible writing on her leg.
Dr. Harruff conducted an autopsy on Sterling's body the day after its discovery. He concluded that Sterling had been dead for several days. He observed evidence of injuries occurring before or around the time of death, including scrapes and bruises on her knees, back, and hands. A scratch to her neck appeared to have been made by a fingernail. Dr. Harruff classified the cause of death as "probable manual strangulation." Dr. Harruff also concluded from the patterns of livor mortis that the body had been moved between the time of death and its discovery in the wooded area.
Phillips, meanwhile, told members of his family about seeing the body at Jackson's house. One of his relatives contacted the Seattle Police Department. On August 5, 2003, Seattle Police Detective Steiger arrested Phillips on an outstanding warrant from an unrelated incident. Phillips voluntarily spoke with police officers investigating Sterling's death. After speaking with Phillips, detectives obtained search warrants for Jackson's mother's house and the residence of Jackson's girlfriend.
Police officers found Jackson at his girlfriend's house and arrested him. Detective Steiger testified that Jackson asked why he was being arrested. Detective Steiger said, "Charles, you know what this is all about." Jackson replied, "Yeah, I know. I should have called you guys a long time ago. I'll talk to you. I think I want a lawyer there, but I'll talk to you." Detective Steiger told Jackson, "If you want a lawyer, I'll get you one, but I'm not going to take a statement from you if you do." Jackson stated, "[F]uck it. I ain't got nothing to hide. I'll just talk to you."
Detectives Dan Dudik and Eugene Ramirez transported Jackson to the police station. As Jackson was being placed in their car, Detective Ramirez advised Jackson of his Miranda rights. After reading each right to Jackson, Detective Ramirez asked if Jackson understood what had been read to him and if he had any questions. Jackson stated that he understood his rights. The detectives did not question Jackson during the car ride. However, Jackson began speaking on the way to the police station. He told the detectives that he had brought Sterling to the basement of his mother's house and had sexual intercourse with her, and alleged that she had choked on something plastic she had ingested from inside an old beer can.
Miranda v. Arizona, 384 U.S. 436, 85 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After an approximately fifteen minute car ride and a "few minutes" spent at the police station, Detective Ramirez again advised Jackson of his Miranda rights. Jackson signed a form, stating: "I have read the above explanation of my constitutional rights and I understand them. I have decided not to exercise these rights at this time."
Approximately 20 minutes later, after the detectives began operating audio and video equipment to record the discussion, Detective Ramirez advised Jackson of his Miranda rights for a third time. Jackson acknowledged that he understood his rights, that he had been advised twice previously, and that he had already signed a form to indicate his waiver of his Miranda rights.
Jackson spoke to the detectives for approximately forty minutes. During the interview, Jackson claimed that on the night of August 1, 2003, he was approached by a woman who offered to have sex with him in exchange for twenty dollars. He told the detectives that he invited her to his residence, and there had sexual intercourse with her. Afterwards, he claimed, she picked up an open beer can full of Jackson's urine into which he had stuffed a plastic baggie containing a plastic cap from a miniature liquor bottle. Jackson further claimed that the woman had taken several gulps and then gasped for air. Jackson stated that he stuck his hand into her throat and removed the object, but the woman eventually stopped breathing. Jackson claimed that he began to call 911, but stopped because he was afraid. Jackson claimed that he could not remember what happened next.
Jackson also stated that he kept the body, wrapped in plastic and placed in a plastic tub, in his house for two days. Jackson claimed that a friend helped him move the body. He also stated that he put the woman's clothing in a dumpster to eliminate evidence tying her to him. Jackson repeatedly denied writing on the woman's body but, ultimately, indicated that he might have done so.
The detectives confronted Jackson, stating that his account was not credible. In response, he recounted a different version of how Sterling died. Jackson told the detectives that Sterling stopped breathing after being pushed against a dresser during "rough" sexual intercourse with Jackson. He also admitted to writing "nigger bitch" on her chest and explained that he hoped the writing would mislead investigators because he "didn't want it to come back" to him.
The prosecuting attorney charged Jackson with murder in the second degree. Prior to trial, Jackson moved to exclude evidence of his statements to Phillips and to police detectives. The trial court ruled that all of the statements were admissible, except for his statement, "Fuck it. I ain't got nothing to hide. I'll just talk to you."
At trial, the State presented the testimony of Phillips and the police detectives who had interviewed Jackson. The State also presented expert testimony that DNA samples taken from semen found in Sterling's body matched Jackson's DNA. In addition, Dr. Harruff described the condition in which he first encountered Sterling's body, and the conclusions he reached through conducting the autopsy:
The body was found unclad, dumped into an area alongside the road. There were pieces of plastic consistent with a plastic bag on the body surface. And the body had markings on the body surface. These features led me to conclude that this had the markings of a homicide or that it would be highly consistent with a homicide or that the body had been disposed of in this fashion in a way that someone had something to conceal, that was outside of my experience of seeing bodies in this condition that weren't homicides. The body had not gotten there by itself. The features strongly indicated that somebody had put it there. We use the word dumped to indicate these types of features. We don't see bodies dumped commonly or very infrequently in drug overdoses in our experience. It does happen, but rarely. I don't think I have seen a dumped body for some time due to drug overdose. It can happen. But anytime we see a dumped body, we have to start thinking this is a homicide. . . .
. . .
Just to conclude, that the conditions in which I found the body, observed the body, along with the markings, were features that indicated this body was disposed of because somebody was responsible for the death.
Dr. Harruff also explained that, although Sterling had ingested cocaine in the period immediately prior to the time of her death, the amount she had ingested was not necessarily a lethal amount.
Jackson objected to the testimony that "someone was responsible" for Sterling's death, and moved for a mistrial. The trial court sustained the objection, struck the improper testimony, and gave the following jury instruction:
Ladies and gentlemen, Dr. Harruff's testimony included testimony to the effect that the body was disposed of because someone was responsible for the death. That testimony is stricken. The jury is not to consider that.
You are also instructed that Dr. Harruff's testimony regarding his conclusions about the scene are offered only to explain his opinion about the cause and manner of death and should not be considered by you for any other purpose.
The trial court denied Jackson's motion for a mistrial.
The jury convicted Jackson of murder in the second degree.
DISCUSSION I.
Jackson asserts that the prosecution failed to establish the corpus delicti of his crime and claims that the trial court erred by not excluding evidence of his incriminating statements made to police officers and to Phillips. We conclude that the trial court correctly ruled that the prosecution established the corpus delicti. Jackson's statements were, accordingly, properly admitted at trial.The corpus delicti rule protects a defendant from an unjust conviction based solely on a false confession. State v. Rooks, 130 Wn. App. 787, 802, 125 P.3d 192 (2005). Pursuant to this exclusionary rule, a defendant's incriminating statements are not admissible unless independent corroborating evidence establishes the corpus delicti of the crime. State v. Aten, 130 Wn.2d 640, 656, 927 P.2d 210 (1996); Rooks, 130 Wn. App. at 802. Before such an incriminating statement can be properly admitted at trial, the State must present evidence, independent of the statement, to corroborate the defendant's incriminating statement. State v. Brockob, 159 Wn.2d 311, 328, 150 P.3d 59 (2006).
In reviewing the sufficiency of the evidence proffered to establish the corpus delicti, an appellate court assumes the truth of the State's evidence and draws all reasonable inferences therefrom in the light most favorable to the State. Aten, 130 Wn.2d at 658; State v. Neslund, 50 Wn. App. 531, 544, 749 P.2d 725 (1988). The independent corroborating evidence proffered may be either direct or circumstantial. Rooks, 130 Wn. App. at 802. The evidence need not be sufficient to support a conviction but, rather, must provide prima facie corroboration of the crime described in the defendant's incriminating statement. Aten, 130 Wn.2d at 656. Such prima facie corroboration exists if the independent evidence supports a "logical and reasonable inference of the facts sought to be proved." Aten, 130 Wn.2d at 656; State v. Vangerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995).
To establish the corpus delicti in a homicide case, the State must present evidence, independent of the defendant's admissions, to establish both the fact of death and a causal connection between the death and a criminal act. Aten, 130 Wn.2d at 655. Here, Sterling's corpse provides prima facie evidence of the fact of death. Our primary consideration, therefore, is whether the independent evidence corroborating Jackson's admissions supports a reasonable and logical inference that Sterling's death was caused by a criminal act.
Assuming the truth of the State's evidence and viewing all reasonable inferences therefrom in the light most favorable to the State, the independent evidence does support a reasonable and logical inference that the crime Jackson described in his admissions actually occurred. The prosecution presented this independent corroborating evidence: (1) Sterling's nude body was discovered in a wooded area; (2) someone had written the words "nigger bitch" across Sterling's chest; (3) an abrasion on Sterling's neck was consistent with a mark made by a fingernail, and was made near the time of her death; (4) patterns of livor mortis indicated that Sterling's body had been moved after her death; (5) pieces of plastic were found attached to Sterling's body; (6) the day before Sterling's body was found in the wooded area, Jackson had shown Phillips a woman's body wrapped in a plastic garbage bag in his basement; (7) DNA taken from semen found in Sterling's body matched Jackson's DNA; (8) Dr. Harruff classified the cause of death as probable manual strangulation; (9) Dr. Harruff testified that the amount of cocaine Sterling had ingested before her death was not necessarily a lethal dose; and (10) Dr. Harruff testified that, as the result of decomposition, many signs of strangulation were obscured, but that based upon his experience the circumstances were "highly consistent with a homicide." This evidence amply supports a logical and reasonable inference that someone killed Sterling by strangling her. Accordingly, the State presented evidence independent of the defendant's admissions to establish a causal connection between the death and a criminal act, the second element of proof of the corpus delicti in a homicide prosecution. Aten, 130 Wn.2d at 655.
Because of the factual similarities between Jackson's case and Rooks, this court's decision in that case is instructive in resolving the merits of Jackson's argument. In a taped statement to police officers, Rooks admitted that he strangled his former girlfriend to death. Rooks, 130 Wn. App at 794. At Rooks's trial, the medical examiner testified that the decedent's body was in an advanced state of decomposition and he was thus unable to determine the cause of her death. Rooks, 130 Wn. App at 794. The medical examiner also found evidence that the decedent ingested cocaine within a few days before her death, and was unable to exclude either strangulation or cocaine overdose as the cause of death. Rooks, 130 Wn. App at 794. On appeal, Rooks argued that the corpus delicti was not established, asserting that independent evidence supported reasonable and logical inferences of both a criminal and a noncriminal cause of the decedent's death. Rooks, 130 Wn. App at 801-02. Rooks' argument on this issue strongly parallels the argument Jackson advances here.
In Rooks, this court clarified the scope of the Supreme Court's holding in Aten. 130 Wn.2d at 659-62. In Aten, the Supreme Court held that the corpus delicti was not established because the independent evidence in that case did not lead to a "reasonable and logical" inference that the death at issue resulted from the crime charged. Aten, 130 Wn.2d at 661. In Rooks, we recognized that
Aten does not hold that the corpus delicti cannot be established where there are reasonable and logical inferences of both criminal and noncriminal causes of death. The court's opinion in Aten . . . suggests that where there is more than one reasonable and logical inference as to the cause of death, if one inference is more consistent with the independent evidence than another, it might make the other inference less likely or reasonable.
Here, unlike Aten, the totality of the independent corroborating evidence leads to the conclusion that there is a causal connection between [the decedent's] death and a criminal act.
Rooks, 130 Wn. App. at 804.
As in Rooks, any inference that the victim died from a drug overdose is supported by "scant evidence" and much speculation. Rooks, 130 Wn. App. at 806. On the other hand, when viewed in the light most favorable to the State, the evidence strongly supports a conclusion that Sterling's death was caused by a criminal act.
Furthermore, contrary to Jackson's argument, the independent evidence produced at trial does not support "reasonable and logical inferences of a non-criminal cause" of death. In ruling on the admissibility of Jackson's statements, the trial court expressly stated:
There is nothing innocent about keeping a dead body in one's home in a garbage bag. . . .
. . . [T]he evidence before the court indicates the nude body was found with writing on her chest which can be characterized as crude and obscene.
When these circumstances are viewed in a light most favorable to the State, there is nothing innocent about the circumstances. And the reasonable inferences exclude an innocent explanation such as a suicide or a natural death or accidental death.
We agree with trial court's assessment of the evidence.
There was no error.
Because we conclude that the corpus delicti was established and that Jackson's statements to police officers and to Phillips were properly admitted on that basis, we need not address Jackson's claim that the statements were inadmissible under RCW 10.58.035, an alternative basis for admitting the statements addressed by the trial court.
II.
Jackson next asserts that law enforcement officers failed to honor his invocation of his right to counsel and did not obtain a valid waiver of his Miranda rights. Jackson assigns error to the trial court's admission of the statements he made after that. We conclude that the evidence at issue was properly admitted.
A suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning. Miranda, 384 U.S. at 469-73. In order to invoke the right to counsel, the suspect must unequivocally ask to speak with an attorney. Davis v. United States, 512 U.S. 452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994). A request for counsel is equivocal if, in light of the circumstances, "a reasonable officer . . . would have understood only that the suspect might be invoking the right to counsel." Davis, 512 U.S. at 459.
Specifically, Jackson contends that he invoked his right to counsel when he stated, "I should have called you guys a long time ago. I'll talk to you. I think I want a lawyer there, but I'll talk to you."
However, Jackson's remark was not a clear and unequivocal invocation of his right to remain silent. At most, it was an equivocal request to have counsel present during questioning. His subsequent behavior, including his voluntarily re-initiation of the conversation with Detectives Ramirez and Dudik, indicate that, to the contrary, Jackson had every intention of speaking to detectives without counsel present. Jackson's execution of an express waiver of his rights at the police station further compels such a conclusion. The trial court found as follows:
6. Although the defendant did not expressly waive his rights, the defendant gave an implied waiver of his Miranda rights by engaging in conversation with the detectives during the transport process.
7. The implied waiver allowed for a continuation of the interrogation. Therefore, the defendant's statements to Detectives Ramirez and Dudik during the transport to the police station are admissible.
8. The defendant was again advised of his Miranda rights at the homicide office. The defendant's initial statements to Detective Ramirez in the homicide office do not appear to be in response to custodial interrogation. Nevertheless, by signing the acknowledgment of rights and waiver portion, the defendant expressly waived his Miranda rights. These statements are admissible.
9. The defendant was again advised of his Miranda rights during the taking of the taped statement. The statement was given in response to custodial interrogation. Although there was no additional express waiver, the defendant acknowledged making his previous express waiver. The waiver was made knowingly, intelligently and voluntarily. The taped statement is admissible.
We conclude that the trial court's resolution of this issue was correct.
Jackson next argues that State v. Robtoy, 98 Wn.2d 30, 39, 653 P.2d 284 (1982), requires that if the invocation of the right to counsel is equivocal, further questioning by the authorities must be limited to clarifying the nature of the request. Robtoy was decided after, and was premised upon, the United States Supreme Court's decision in Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). However, the Supreme Court substantially limited the applicability of Edwards in Davis, 512 U.S. 452. After Davis, Robtoy no longer correctly states the law. State v. Walker, 129 Wn. App. 258, 275 n. 46, 118 P.3d 935 (2005), review denied sub nom. State v. Garrison, 157 Wn.2d 1014 (2006). Thus,
where a suspect has received Miranda warnings the invocation of the right to remain silent must be clear and unequivocal (whether through silence or articulation) in order to be effectual; if the invocation is not clear and unequivocal, the authorities are under no obligation to stop and ask clarifying questions but may continue with the interview.
Walker, 129 Wn. App. at 276.
Jackson's equivocal invocation of his right to have counsel present during questioning did not impose an obligation upon the interviewing police officers to clarify his remark. Walker, 129 Wn. App. at 276. There was no error.
Jackson next asserts that he did not expressly waive his Miranda rights before signing the waiver form at the police station, and argues that the unrecorded statements he made at his girlfriend's house, en route to the police station, and at the station before he signed the form should have been excluded at trial. Jackson cites Missouri v. Seibert, 542 U.S. 600, 124 S. Ct. 2601, 159 L. Ed. 2d 643 (2004), in support of this contention.
In Seibert, pursuant to police protocol, after the police arrested Seibert, the officer deliberately withheld Miranda warnings to elicit a confession. 542 U.S. at 604-05. Specifically, an officer questioned Seibert for 30 to 40 minutes without giving Miranda warnings. Seibert, 542 U.S. at 604-05. After Siebert confessed, officers gave her a 20-minute coffee and cigarette break. Seibert, 542 U.S. at 605. When she returned, an officer turned on a tape recorder, gave Seibert the Miranda warnings, and obtained her signature on a waiver of rights form. Seibert, 542 U.S. at 605. The officer resumed the questioning by reminding her of her earlier admissions, and she again confessed. Seibert, 542 U.S. at 605. The United States Supreme Court held that the police technique of interviewing suspects, in which officers first obtained a confession from a suspect and only afterward gave Miranda warnings, did not satisfy Miranda's purpose:
For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.
Seibert, 542 U.S. at 612. The court held that the post-warning statements were inadmissible.
The circumstances in this case are substantially different from those in Seibert. Jackson was effectively informed of his Miranda rights three times. The first of these warnings occurred before he made any of the statements admitted at trial. The Miranda warnings given were sufficient to allow Jackson to make an informed choice about waiving the rights set forth therein. Jackson impliedly made an informed choice to waive his Miranda rights by engaging in conversation with the detectives while being transported, and again at the police station. His subsequent signing of the waiver form provided an express waiver of those rights for the recorded interview.
There was no error.
III.
Jackson next contends that insufficient evidence was introduced at trial to support the jury's verdict. We disagree.
An appellate court reviewing a challenge to the sufficiency of the evidence to support a conviction views the evidence and all reasonable inferences therefrom in the light most favorable to the prosecution. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). In relevant part, RCW 9A.32.050(1)(b) provides that a person is guilty of murder in the second degree when he "commits or attempts to commit any felony, including assault, . . . and, in the course of and in furtherance of such crime . . . causes the death of a person."
When viewed in the light most favorable to the State, the following evidence amply supports Jackson's conviction: (1) DNA evidence that Jackson's semen was present inside Sterling's body; (2) Phillips's testimony that Jackson showed Phillips a woman's dead body; (3) Phillips's testimony that Jackson explained that he killed the woman because she had stolen money from him; (4) Phillips's testimony that Jackson stated that he brought the woman into his home, punched her in the head, grabbed her neck, and strangled her; (5) Phillips's testimony that he smelled a strong odor of what he referred to as "[d]eath smell" in Jackson's basement; (6) Phillips's testimony that the body had been wrapped in plastic; (7) Dr. Harruff's testimony that Sterling's body was found with pieces of plastic consistent with a plastic bag on the body surface; (8) Dr. Harruff's testimony that the body was found unclad and "dumped" in an area along the road; (8) Dr. Harruff's testimony that the body was found with a mark on the neck that could have been made by a fingernail; (9) Dr. Harruff's testimony that the death was "highly consistent with a homicide;" (10) Jackson's statement to detectives that he invited a woman to his residence and had sex with her; (11) Jackson's inconsistent explanations of the death to detectives — namely, that the woman choked on a plastic object, or stopped breathing after being pushed against a dresser during sexual intercourse; (12) Jackson's admission that he wrote "nigger bitch" on the body; (13) Jackson's statement to detectives that he disposed of Sterling's clothing to avoid linking her to him; and (14) evidence that Jackson had kept Sterling's body concealed in his basement for days following her death. This evidence was sufficient for a rational trier of fact to conclude that Jackson committed or attempted to commit an assault and, in the course of and in furtherance of the assault, caused Sterling's death.
Jackson's conviction is amply supported by the evidence adduced at his trial. Green, 94 Wn.2d at 220-22.
IV.
Jackson next contends that Dr. Harruff's opinion testimony that "somebody was responsible for the death" constituted an improper opinion on Jackson's guilt, and that the trial court erred by denying Jackson's subsequent motion for a mistrial. Noting that the trial court struck the remark and instructed the jury to disregard the testimony, we disagree.
Although it is improper for an expert witness to express an opinion about the guilt of the defendant, either directly or by inference, State v. Cruz, 77 Wn. App. 811, 814, 894 P.2d 573 (1995), trial courts are accorded discretion in denying a motion for mistrial. Such denials will be affirmed on appeal unless there is a substantial likelihood that an irregularity in the trial affected the jury's verdict. State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994). In determining whether a witness' opinion on the guilt of the defendant affected the jury's verdict, the appellate court examines (1) the seriousness of the irregularity, (2) whether the irregularity involved cumulative evidence, and (3) whether the trial court properly instructed the jury to disregard the irregularity. State v. Thompson, 90 Wn. App. 41, 46, 950 P.2d 977 (1998) (citing State v. Johnson, 124 Wn.2d 57, 76, 873 P.2d 514 (1994)). None of these factors favor Jackson's argument.
First, Dr. Harruff's opinion that "somebody was responsible for the death" did not assign blame specifically to Jackson for the death and did not expressly address Jackson's credibility. In this regard, the statement is less prejudicial than the type of objectionable testimony that courts have found to provide the basis for a mistrial. State v. Garrison, 71 Wn.2d 312, 427 P.2d 1012 (1967) (proprietor of burglarized tavern, without any specific knowledge, opined that defendant participated in the burglary); State v. Haga, 8 Wn. App. 481, 490, 507 P.2d 159 (1973) (police officer testified that the defendant accused of murdering his wife "didn't attempt to assist" and was "very calm and cool" whereas "usually the husband or the wife will attempt to assist.").
Second, the statement was cumulative of other evidence admitted without objection. For example, Dr. Harruff had previously testified, without objection, that the fact that the body was found unclad, dumped along the road, with pieces of plastic and markings on the body "led me to conclude that this had the markings of a homicide or that it would be highly consistent with a homicide or that the body had been disposed of in this fashion in a way that someone had something to conceal."
Third, the trial court struck Dr. Harruff's remark and instructed the jury not to consider it. Jurors are presumed to follow such instructions. State v. Lough, 125 Wn.2d 847, 864, 889 P.2d 487 (1995). Thus, we assume that the jury did as it was instructed, and disregarded Dr. Harruff's remark.
Finally, the trial judge is best suited to assess the prejudicial effect of testimony. State v. Weber, 99 Wn.2d 158, 166, 659 P.2d 1102 (1983). The record supports the conclusion that Dr. Harruff's remark was not sufficiently prejudicial, in light of the trial court's actions, to have affected the jury's verdict.
In the time since this court heard oral argument on this case, our Supreme Court has decided State v. Kirkman, No. 76833-1 (Wash. Apr. 5, 2007). Based on the holdings of that case, it is questionable whether the trial court was even required to sustain the objection made by Jackson.
As the Supreme Court noted, "it has long been recognized that a qualified expert is competent to express an opinion on a proper subject even though he thereby expresses an opinion on the ultimate fact to be found by the trial of fact. The mere fact that the opinion of an expert covers an issue which the jury has to pass upon, does not call for automatic exclusion." Kirkman, slip op. at 12-13 (citations omitted).
There was no error.
V.
Jackson claims that the trial court erred by granting the prosecuting attorney's peremptory challenge, over Jackson's Batson objection, to a potential alternate juror, one of only two African Americans in the venire, who expressed that his religious beliefs might complicate his ability to return a verdict. However, because no alternate juror actually deliberated, Jackson's verdict was rendered by the twelve jurors impaneled at the outset of trial, who were selected prior to the exclusion of the potential alternate juror. Thus, Jackson has not established that he was in any way prejudiced as a result of the trial court's ruling. In these circumstances the error, if any, was harmless.
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
A. Facts pertaining to the exclusion of the potential alternate juror
During jury selection, Juror 51 indicated on his jury questionnaire form that he had religious or philosophical views that might interfere with his ability to serve as a juror. The trial court interviewed Juror 51 in an individual voir dire, during which the potential juror re-iterated his ambivalence about his ability to serve due to his religious beliefs. The prosecuting attorney exercised a peremptory challenge against Juror 51, and the trial court excused him.
Jackson objected to the trial court's granting of the peremptory challenge, arguing that a prosecutor's use of peremptory challenges to exclude members of the defendant's racial group from his jury in a criminal trial violated the defendant's right to right to equal protection under the Fourteenth Amendment. Batson, 476 U.S. 79.
Following closing argument, the alternate jurors were excused and did not deliberate with the remaining jurors as the jury determined its verdict.
B. Analysis
Jackson claims that the trial court erroneously granted the State's peremptory challenge to Juror 51, asserting that the trial court's ruling violated his right under the Equal Protection Clauses of the Washington and United States Constitutions not to have members of his racial group excluded from his jury. He also contends that the alleged race-neutral basis for excluding Juror 51 was Juror 51's religious beliefs, and that excluding Juror 51 on this basis was further violation of the juror's state and federal rights to equal protection of his freedom to practice his religion, and a violation of article I, section 11 of the Washington Constitution.
The Equal Protection Clauses of the United States and Washington Constitutions prohibit a prosecutor from using peremptory challenges to exclude otherwise qualified and unbiased persons from a jury solely on the basis of race. State v. Sanchez, 72 Wn. App. 821, 825, 867 P.2d 638 (1994) (citing Batson, 476 U.S. 79). In addition, article I, section 11 of the Washington Constitution provides:
In general, appellate review of a trial court's Batson ruling employs a three part test:
[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination.
State v. Vreen, 143 Wn.2d 923, 926-27, 26 P.3d 236 (2001) (quoting Purkett v. Elem, 514 U.S. 765, 767, 115 S. Ct. 1769, 131 L. Ed. 2d 834 (1995). A potential juror's specific responses and demeanor may constitute a race neutral reason for exercising a peremptory challenge. State v. Burch, 65 Wn. App. 828, 840, 830 P.2d 357 (1992). The trial court's decision as to whether the reason is race-neutral may depend on a juror's demeanor and credibility, matters within the trial court's province to which we give great deference. State v. Rhodes, 82 Wn. App. 192, 196-97, 917 P.2d 149 (1996).
No religious qualification shall be required for any public office or employment, nor shall any person be incompetent as a witness or juror, in consequence of his opinion on matters of religion, nor be questioned in any court of justice touching his religious belief to affect the weight of his testimony.
Although the superior court rules allow each party in a criminal trial to exclude a number of potential jurors without providing a reason, CrR 6.4(e), this court recognizes that "the purpose of the Batson case and its progeny is to protect the rights of jurors to participate in our judicial system free from the taint of invidious discrimination." State v. Evans, 100 Wn. App. 757, 764, 998 P.2d 373 (2000). Batson was designed "to serve multiple ends," Powers v. Ohio, 499 U.S. 400, 406, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (quoting Allen v. Hardy, 478 U.S. 255, 259, 106 S. Ct. 2878, 92 L. Ed. 2d 199 (1986)), which include protecting individual defendants from discrimination in the selection of jurors, and protecting the excluded jurors and the community at large from the harm caused by a prosecutor's discriminatory use of peremptory challenges. Powers, 499 U.S. at 406. Thus, a criminal defendant may raise the third-party equal protection claims of jurors excluded by the prosecution solely on the basis of their race. Powers, 499 U.S. at 415.
However, even if Jackson's argument on this issue raised a constitutional error, a questionable premise, the error in this case was harmless. In Washington v. Recuenco, ___ U.S. ___, 126 S. Ct. 2546, 2551, 165 L. Ed. 2d 466 (2006), the United States Supreme Court emphasized that almost all constitutional errors at trial are subject to a harmless error analysis. The Court explained that, "`"[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis."'" Recuenco, 126 S. Ct. at 2551 (quoting Neder v. United States, 527 U.S. 1, 8, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)). Furthermore, it is only in rare cases that a "structural" error renders a trial "fundamentally unfair" or "unreliable . . . for determining guilt or innocence," thus precluding a harmless-error analysis and requiring an automatic reversal. Recuenco 126 S. Ct. at 2551.
There is "a limited class of fundamental constitutional errors that defy analysis by harmless error standards.'" Neder, 527 U.S. at 7 (internal quotation marks omitted) (quoting Arizona v. Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)). United States Supreme Court cases have included in this class of errors a complete deprivation of the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); a biased trial judge, Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927), and unlawful racial discrimination in selection of a grand jury. Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986).
The critical facts in our resolution of Jackson's claims are, first, that Juror 51 was considered as a potential alternate juror and, second, that it was not necessary to replace any of the jurors empanelled at the outset of trial with an alternate juror; thus, no alternate juror participated in rendering the verdict. Although a defendant has a constitutional right to trial by jury, a defendant does not have a constitutional right to have alternate jurors present during his trial. Instead, the practice of, and procedure for, seating alternate jurors is governed by court rule. The decision to have alternate jurors attend a given trial is a matter within the trial court's discretion. State v. Ashcraft, 71 Wn. App. 444, 461, 859 P.2d 60 (1993); CrR 6.5 ("When the jury is selected the court may direct the selection of one or more additional jurors, in its discretion, to be known as alternate jurors.").
In State v. Rivera, 108 Wn. App. 645, 651, 32 P.3d 292 (2001), this court held that an error depriving a defendant of a peremptory strike against an alternate juror was harmless because that juror never deliberated, quoting United States v. Patterson, 215 F.3d 776, 782 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1033, 121 S. Ct. 621, 148 L. Ed. 2d 531 (2000), for the proposition that, "[w]hen the jury that actually sits is impartial, as this one was, the defendant has enjoyed the substantial right" to a fair and impartial jury guaranteed by the Sixth Amendment of the United States Constitution. Given that the alternate jurors never deliberated, Jackson has not demonstrated any error in the composition of the jury that actually determined his guilt. Any error in the selection of the alternate jurors affords no basis for appellate relief.
(Emphasis omitted.) Other jurisdictions have reached the same conclusion. See United States v. Lane, 866 F.2d 103, 106 n. 3 (4th Cir. 1989); Nevius v. Sumner, 852 F.2d 463, 468 (9th Cir. 1988) (challenge to alternate juror was harmless, as no alternate jurors were called upon to serve on the petit jury); State v. Green, 301 S.C. 347, 392 S.E.2d 157, 161 (1990); State v. Ford, 334 S.C. 444, 513 S.E.2d 385, 387 (Ct.App. 1999) ("Any Batson violation in regards to a possible alternate juror is harmless where an alternate was not needed for deliberations."); State v. Thompson, 304 S.C. 85, 403 S.E.2d 139, 141 (Ct.App. 1991).