Filed Washington State Court of Appeals Division Two November 10, 2020 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II STATE OF WASHINGTON, No. 52893-2-II Respondent, v. JAMES HENDERSON LISTOE, PUBLISHED OPINION Appellant. CRUSER, J. — James Listoe appeals his convictions of possession of methamphetamine with intent to deliver and possession of a controlled substance (Suboxone). He argues that he is entitled to a new trial because the trial court employed an improper standard under GR 37 when it allowed the State to exercise a peremptory challenge excusing the only juror who was a member of a racially cognizable group. Listoe also argues that there was insufficient evidence that he possessed methamphetamine and Suboxone. We hold that, under the totality of the circumstances, an objective observer aware of implicit bias could view race as a factor in the State’s use of the peremptory challenge. We also hold that there was sufficient evidence that Listoe had constructive possession over the methamphetamine and the Suboxone discovered in the car that he was driving. Accordingly, we reverse and remand for a new trial. 1 No. 52893-2-II FACTS I. LISTOE’S ARREST On May 11, 2018, Deputy Andrew Hren of the Kitsap County Sheriff’s Office observed a black car parked at a 7-Eleven convenience store. On running the license plate, Hren discovered that the car’s registration had expired. The car pulled out of the 7-Eleven parking lot, Hren got behind it and pulled it over. Listoe, who was driving the car, did not pull over immediately but traveled for about 1,000 feet first, which Hren believed was uncommon. As Hren approached the car, he could see Listoe making “a bunch of movements with his hands.” 2 Verbatim Report of Proceedings (VRP) at 193. Listoe opened the door and began to step out, but Hren ordered him to get back in the car. Hren observed Listoe making additional “furtive movements” in his lap area. Id. Hren then ordered Listoe to place his hands on the steering wheel, and Listoe complied. Hren informed Listoe of the reason for pulling him over, and Listoe responded that the car was not his and that he did not know the registration was expired. Rhonda Lemon was sitting in the car’s passenger seat. After briefly speaking to Lemon, Hren told Lemon that she was free to leave, and she left. Lemon was not searched during the encounter. Hren ordered Listoe out of the vehicle and placed Listoe under arrest.1 During the search incident to Listoe’s arrest, Hren found a plastic bag that contained a white crystalline substance on Listoe’s person. The substance appeared to be methamphetamine. Listoe also had $221 in his wallet. 1 Listoe was arrested on an unrelated warrant. Listoe’s counsel made a motion in limine asking the trial court to prohibit any mention of the basis for the arrest. The trial court granted the motion. 2 No. 52893-2-II A K-9 unit alerted to the presence of controlled substances in the car Listoe was driving. Due ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals