State v. Beliz, No. 17779-3-III, (Slip Op., January 11, 2001).
Jan. 2001 STATE v. BELIZ 1
Cause No. 17779-3-III
[No. 17779-3-III. Division Three. January 11, 2001.]
STATE OF WASHINGTON, ) No. 17779-3-III
)
Respondent, ) Division Three
)
v. ) PUBLISHED OPINION
)
MANUEL L. BELIZ, )
)
Appellant, ) FILED: January 11, 2001.
Trial Court: Superior Court, Adams County,
No. 97-1-00049-1, Richard Miller, J., August 24, 1998.
Dennis W. Morgan, for appellant.
Prosecuting Attorney's Office, by Gary J. Brueher and Randy
J. Flyckt; Leslie K. Magryta, Special Deputy Prosecuting
Attorney, for respondent.
BROWN, A.C.J. - After guilty verdicts, conviction, and sentencing for
two counts of first degree child rape and two counts of first degree
child molestation, Manuel Beliz filed this appeal. He contests the trial
court's (A) decision to order lesser sanctions rather than dismiss for
prosecutorial misconduct (we disagree), and (B) failure to grant a
mistrial for discriminatory peremptory jury challenges (we agree).
Accordingly, we reverse and remand for a new trial.
FACTS
The alleged events occurring in 1983 and 1990 in Adams County are
largely irrelevant to our appeal issues. The alleged victim was at the
time a minor. By the time sex abuse charges were brought in April 1997,
the victim had become an adult struggling with painful memories. After
arraignment, Mr. Beliz was released pending trial. In July 1997, an
amended information was filed charging three counts of rape of a child
in the first degree (RCW 9A.44.073) and three counts of first degree
child molestation (RCW 9A.44.083). About this time, Mr. Beliz retained
Dennis W. Morgan as defense counsel.
Recovered memory syndrome became a concern for both sides in July 1997.
Elizabeth F. Loftus, Ph.D. was an agreed expert to determine if repressed
memory would be an issue at trial; she was appointed as the court's
expert. Both sides had equal access to Dr. Loftus, but reserved the
right to retain other experts depending on her opinion. The court order
authorized payment of Dr. Loftus's retainer by the county auditor. In
August 1997, a deputy prosecutor sent a copy of the order to Dr. Loftus
and promised to have her retainer processed for payment. It was not
processed. Dr. Loftus did not get paid. She did not send a report. The
trial court later blamed the State for not getting the report.
Mr. Beliz eventually entered four speedy trial waivers while waiting
for the expert's report; a succession of prosecutors said it was coming.
The last waiver extended to June 30, 1998. Finally, Mr. Beliz decided he
could not wait for Dr. Loftus's report and refused another continuance.
Mr. Beliz was then unaware Dr. Loftus's retainer fee had not been
processed through the auditor's office by the State.
Four persons from the prosecuting attorney's office handled this case,
three deputies and the prosecutor. In the end, a special deputy tried
the case beginning July 29, 1998. Gayle M. Petrusic was the first deputy
prosecutor; she resigned by June 24, 1997. Next was Dennis DeFelice; he
left sometime in August 1997. Irene K. Asai followed; she left before
June 1998. After David M. Sandhaus, the prosecuting attorney then took
over, he appointed Dennis R. Scott a special deputy prosecutor to handle
the trial.
Ms. Petrusic agreed with Mr. Morgan not to call certain potential
witnesses due to privilege and First Amendment religious reasons.
Nonetheless, just before trial, Mr. Scott subpoenaed them. They were not
on the State's earlier witness list. An unexpected expert was also
identified to Mr. Beliz at the same time. In response Mr. Beliz filed a
Motion in Liminie, a Motion to Exclude Testimony, a motion under CrR
8.3(b) to dismiss, a CR 11 motion, and finally, a challenge to Mr.
Scott's appointment based on procedural grounds. As a result, the court
granted nearly all the Motion in Limine, imposed severe sanctions under
CrR 8.3(b)/CrR 4.7(h)(7), and declared Mr. Scott's appointment void.
Over Mr. Beliz's objection, Mr. Scott was reappointed on June 29, 1998,
just prior to jury selection and served as trial counsel for the State.
During jury selection, Mr. Beliz unsuccessfully challenged the State's
peremptory challenges as racially motivated under Batson v.
Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).
When resisting the challenge, Mr. Scott indicated his challenges were
generally not made to exclude Hispanics but rather to exclude women.
At trial, the court dismissed two counts. Mr. Beliz was found guilty
of the remaining four counts, two first degree child rapes and two first
degree child molestations. After conviction and sentencing, Mr. Beliz
filed this appeal.
ISSUES
The dispositive issues are (A) whether the trial court erred by abusing
its discretion when denying Mr. Beliz's dismissal motion and ordering
less severe sanctions based upon prosecutorial misconduct; and (B)
whether the trial court should have granted Mr. Beliz's Batson
objection based upon the State's alleged discriminatory exercise of
peremptory challenges. Thus, other issues relating to the validity of
the special deputy's appointment, cumulative error, and Mr. Beliz's pro
se issues of juror misconduct and ineffective counsel will not be
discussed.
ANALYSIS
A. Prosecutorial Misconduct
We review an order denying a motion to dismiss for manifest abuse of
discretion. State v. Gary J.E., 99 Wn. App. 258, 261, 991 P.2d
1220, review denied, 141 Wn.2d 1020 (2000). Dismissal of
criminal prosecution due to arbitrary action or governmental misconduct
is an extraordinary remedy that is warranted only if a defendant can show
prejudice. City of Seattle v. Knutson, 62 Wn. App. 31, 813 P.2d
124 (1991).
Mr. Beliz first contends his speedy trial right was prejudiced due to
the State's conduct regarding Dr. Loftus's report. Mr. Beliz was
arraigned on May 5, 1997. His trial did not commence until June 29,
1998. Mr. DeFelice received Dr. Loftus's billing and promised to get it
paid, but that was not done. Mr. Beliz argues fraud, but merely shows
negligence. Although not assigning error to any speedy trial ruling, he
cites State v. Ralph G., 90 Wn. App. 16, 20-21, 950 P.2d 971
(1998). Ralph G. is a "Hobson's Choice" case, inapplicable
here. Mr. Beliz did refer to speedy trial as an issue. We infer from
his brief that the speedy trial issue relates to prosecutorial
misconduct. Moreover, Mr. Beliz signed valid waivers of his speedy trial
rights each time a continuance was sought. Nevertheless, we consider the
State's negligent mismanagement due to the succession of prosecutors as
proper for the trial court to consider when deciding sanctions.
Next, Mr. Beliz argues the trial court did not give enough weight to
the State's late disclosure of witnesses in conflict with an earlier
deputy's agreement, the undisclosed expert, and delay in receiving a
videotape when deciding on lesser sanctions. While the record supports
the trial court's decisions that misconduct occurred, it decided after
careful reasoning, that although close, lesser sanctions were proper.
The trial court imposed fairly severe sanctions against the State.
First, it excluded the State's tardily disclosed expert. Second, it did
not allow any previously undisclosed testimony. Third, it excluded any
evidence discovered by the State after a stated time. Finally, it warned
the State that any attempt to introduce excluded evidence would likely
result in dismissal. In light of the strict standard for review, we
cannot say the court abused its discretion.
Last, during trial the State asked Othello Police Officer David Rehaume
three successive questions calling for comments on Mr. Beliz's veracity
and credibility. Defense counsel successfully objected to each question.
A discussion regarding the questions and objections was held off the
record; therefore it is unclear whether dismissal was requested at that
time. The court in State v. Jerrels, 83 Wn. App. 503, 508, 925
P.2d 209 (1996), concluded that the State commits misconduct when its
cross-examination seeks to compel a witness's opinion regarding the
veracity of another witness. In Jerrels, the defendant's wife
was asked whether she believed her children were telling the truth when
they reported sex abuse by their father. Here, although the State
violated the order in limine prohibiting it from asking questions
relating to the veracity of any witness, because the discussion was off
record, we do not know if dismissal was requested.
In sum, we conclude the trial court did not abuse its discretion when
ruling on the pretrial motion for dismissal for prosecutorial
misconduct. Given that the trial objections were sustained before any
answer and that the record discloses no request for dismissal, we
decline to conclude that the isolated questions alone merit dismissal.
B. Discriminatory Peremptory Challenges
Under Batson and its progeny /1 discriminatory challenges
against a member of a protected class are prohibited by the equal
protection clause of the Fourteenth Amendment. State v. Evans,
100 Wn. App. 757, 759, 998 P.2d 1373 (2000). It is the court's duty to
protect the right of jurors to participate in the civic process and to
ensure that our justice system is free from any taint of bias.
Id. at 762.
We apply the three-part test developed in Batson. First, the
defendant must establish a prima facie case of purposeful discrimination.
A defendant meets this burden if he or she establishes peremptory
challenges were exercised against a member of a protected class; and if
so, when taken together with other relevant circumstances, an inference
can be raised indicating the challenge was based on membership in the
class. State v. Rhodes, 82 Wn. App. 192, 196, 917 P.2d 149
(1996). Relevant circumstances may include multiple strikes against a
particular racial group or suspect questions asked during voir dire.
Id.; State v. Wright, 78 Wn. App. 93, 99-100, 896 P.2d
713 (1995) (listing other relevant circumstances). Second, if this prima
facie showing is made, the burden shifts to the one making the challenge
to articulate a race-neutral explanation for each challenge.
Rhodes, 82 Wn. App. at 196. Third, the trial court must then
determine whether purposeful discrimination in fact occurred. The
court's ruling may depend partly on a juror's demeanor and credibility,
matters peculiarly within the trial court's province and entitled to
great deference. Id. at 196-97. We will not reverse the trial
court's determination unless it is clearly erroneous. Id. at
197.
Here, the 36 members of the jury venire included seven possible
Hispanics. Of the four examined, the State struck three (one is conceded
race-neutral), the defense struck one. The burden then shifted to the
State to provide a race-neutral explanation after the Batson
objection. An off-the-record discussion about the challenges occurred
with the parties then attempting to recreate the discussion for the
record. As the State attempted to give its race-neutral reason for
striking the jurors, it revealed it was attempting to exclude women based
upon certain gender stereotypes and to counteract what it perceived to be
defense exclusion of males. The State admitted it was looking for a
predominately older male jury. Neither the defense nor the court noted
the State's obvious gender bias. The trial court solely decided to
believe the challenges were not based upon race.
Although Mr. Beliz did not raise the gender bias issue in the trial
court, because this issue affects a constitutional right, it may be
addressed for the first time on appeal. RAP 2.5(a). Further, the court
in State v. Burch, 65 Wn. App. 828, 837, 830 P.2d 357 (1992),
decided a male criminal defendant has standing to raise an equal
protection bias claim based on the State's peremptory challenges, even
though he is not a member of the protected class. Division One reversed
Mr. Burch's conviction and remanded for a new trial based on the State's
gender bias in jury selection. Burch is strikingly similar to
our case and is persuasive. Moreover, in light of a trial court's duty
noted in Evans to intercede upon facts indicating improper
discriminatory challenges, we conclude the gender bias exhibited by the
State merits reversal under the principles established in Batson
and the case law discussed here.
CONCLUSION
We hold the trial court did not abuse its discretion when denying
dismissal based upon the prosecutorial misconduct evidenced in this
record and deciding lesser sanctions were merited. However, the trial
court should have interceded when made aware of the State's gender bias
and preemptory challenges; they were demonstrably biased against women.
Because these issues are dispositive, we do not address other issues.
Reversed and remanded for a new trial.
KATO, J., and EITZEN, J.P.T., concur.
_______________
1 United States v. Martinez-Salazar, 528 U.S. 304, 120 S. Ct.
774, 781, 145 L. Ed. 2d 792 (2000) ("a peremptory challenge may not be
exercised to invidiously discriminate against a person because of
gender, race, or ethnicity"); and J.E.B. v. Alabama ex rel.
T.B., 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994)
("gender discrimination in the exercise of peremptory challenges
violates the equal protection clause").
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