The State of Washington, Respondent, v. Gary Daniel Meredith, Petitioner, 178 Wash. 2d 180

Owens, J. ¶1 The equal protection clause of the federal constitution prohibits racial discrimination during the jury selection process. Batson v. Kentucky, 476 U.S. 79, 86, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Such discrimination injury selection harms not only individual defendants and excluded jurors, it undermines the public’s confidence in the basic fairness of the judicial system. Id. at 87. The United States Supreme Court established a three-part test (the Batson test) to detect and eradicate the discriminatory use of peremptory challenges during jury selection.

The first step of the Batson test requires that the defendant make a prima facie showing of discrimination. Id. at 93-94. ¶2 In 2010, this court addressed that first step of the Batson test in State v. Rhone, 168 Wn.2d 645, 229 P.3d 752 (2010). In Rhone, the four-vote lead opinion applied this state’s established rule for the first step of the Batson test. See id. at 657. The four-vote dissent proposed a new bright-line rule. See id. at 661 (Alexander, J., dissenting). Chief Justice Madsen wrote a concurrence, stating, “I agree with the lead opinion in this case.

However, going forward, I agree with the rule advocated by the dissent.” Id. at 658 (Madsen, C.J., concurring). This has caused lower courts to question whether, going forward, they should follow the rule in the lead opinion or the dissent of Rhone. See, e.g., State v. Meredith, 165 Wn. App. 704, 711-12, 259 P.3d 324 (2011), review granted, 173 Wn.2d 1031, 275 P.3d 303 (2012). ¶3 To clarify this issue, we granted review in this case solely on the scope of the bright-line rule articulated in Rhone.

We now clarify that Rhone did not establish a bright-line rule and that the rule in Washington remains the rule applied in the lead opinion in Rhone. FACTS ¶4 In 1996, Gary Meredith was charged by amended information with rape of a child in the second degree and communication with a minor for immoral purposes. During jury selection for Meredith (a Caucasian man), the State used a peremptory strike to remove the only African-American member of the venire panel, juror 4. Meredith’s counsel raised a Batson objection to the State’s use of a peremptory challenge against juror 4.

Explaining the basis for the objection, Meredith’s counsel stated that none of the juror’s answers provided a proper basis for removal (such as confusion, evasiveness, or bias) and that the only reason the juror was removed was because of her race. ¶5 The prosecutor responded that Meredith’s counsel had failed to satisfy his burden of proof because he had not presented any evidence other than to indicate that juror 4 appeared to be the only African-American on the panel. The prosecutor then indicated that there might be other racial minorities on the panel.

Meredith’s counsel responded that a prima facie case had been made and had not been rebutted. He then moved for a mistrial. The trial court denied Meredith’s Batson objection. The jury subsequently found Meredith guilty of both rape of a child in the second degree and communicating with a minor for immoral purposes. ¶6 After his conviction, Meredith absconded and did not appear for his sentencing hearing in July 1996. The court then issued a bench warrant for Meredith’s arrest. Twelve years later, Meredith was finally arrested and extradited to Washington.

In 2008, the trial court entered the judgment and sentence, imposing a 198-month sentence. Meredith appealed, and while that appeal was pending, this court decided Rhone. ¶7 The Court of Appeals affirmed Meredith’s conviction and sentence. Meredith, 165 Wn. App. at 707.

With respect to the Batson objection, the Court of Appeals majority expressed confusion as to whether the Rhone court adopted the bright-line rule from the dissent, but the Court of Appeals majority proceeded to hold that Meredith had failed to establish a prima facie case of purposeful discrimination under either the Rhone lead opinion’s analysis or the dissent’s bright-line rule. ¶8 Meredith petitioned this court for review of the Court of Appeals decision with respect to his Batson objection.

We granted review “only on the issue of the scope of the bright line rule articulated in [Rhone] in establishing a prima facie case of discrimination under [Batson].” Order, State v. Meredith, No. 86825-5 (Wash. Apr. 23, 2012). ISSUE ¶9 What is the scope of the bright-line rule articulated in the Rhone dissent? ANALYSIS ¶10 In Rhone, four justices signed the lead opinion that employed the rule articulated in State v. Hicks, 163 Wn.2d 477, 490, 181 P.3d 831 (2008), and State v.

Thomas, 166 Wn.2d 380, 397-98, 208 P.3d 1107 (2009), that a trial court may, but need not, find that a party has made a prima facie showing under Batson “ ‘based on the dismissal of the only venire person from a constitutionally cognizable group.’ ” Rhone, 168 Wn.2d at 653 (lead opinion) (internal quotation marks omitted) (quoting Thomas, 166 Wn.2d at 397).

The lead opinion required “ ‘something more’ than a peremptory challenge against a member of a racially cognizable group.” Id. at 654 (lead opinion). ¶11 Four justices signed a dissent authored by Justice Alexander that would have adopted, in that case, a bright-line rule “that a prima facie case of discrimination is established under Batson when the sole remaining venire member of the defendant’s constitutionally cognizable racial group or the last remaining minority member of the venire is peremptorily challenged.” Id. at 661 (Alexander, J, dissenting).

Chief Justice Madsen signed neither opinion and instead wrote a two-sentence concurrence, stating, “I agree with the lead opinion in this case. However, going forward, I agree with the rule advocated by the dissent.” Id. at 658 (Madsen, C.J., concurring). ¶12 The Court of Appeals expressed uncertainty as to whether the court had adopted the bright-line rule described in the Rhone dissent. We now clarify that the court did not adopt that bright-line rule. Chief Justice Madsen’s concurrence with the lead opinion “in this case” resolved the Rhone case. Id.

Her second sentence expresses support for adoption of a bright-line rule in a future case, but it does not relate to the disposition of Rhone and is merely dicta. Until five justices agree to actually adopt such a bright-line rule, the previous rule remains in effect. ¶13 The Court of Appeals found that the trial court did not err under pre-Rhone case law. Because we granted review only on the scope of the bright-line rule articulated in Rhone, we do not review this portion of the Court of Appeals decision and thus need not proceed with an analysis of Meredith’s Batson objection under pre-Rhone case law.

CONCLUSION ¶14 We granted review of this case so that we could clarify whether Rhone established a bright-line rule. We hold that it did not. Accordingly, we affirm the Court of Appeals. C. Johnson, Fairhurst, J.M. Johnson, and Wiggins, JJ., concur. The State does not make any argument as to whether Meredith’s decision to abscond has any legal significance in this case. Because we find that Rhone did not establish a bright-line rule, we do not address whether Meredith’s decision to abscond has legal significance.