The opinion of the court was delivered by
This is a direct appeal by Donovan Belnavis, who was convicted
by a jury in Wyandotte County of three counts of sale of cocaine,
contrary to K.S.A. 65-4127a. The trial court sustained the
State's motion to invoke the enhancement provisions of the
Uniform Controlled Substances Act, K.S.A. 65-4127a, and imposed
concurrent sentences of 10 to 20 years. The sentences for sale of
cocaine are to run consecutively to sentences already
imposed by the circuit court of Jackson County, Missouri, for
previous drug offenses.
The facts are not in dispute. On June 20, 1988, Donovan
Belnavis, a black male, was charged in Wyandotte County District
Court with three counts of sale of cocaine. After a preliminary
hearing, the case was set for trial on October 3, 1988.
During the trial, after voir dire, Belnavis moved for a
mistrial on the grounds that the prosecutor systematically
excluded black veniremen from the jury through use of peremptory
challenges. The prosecutor denied striking the two veniremen
based upon their race and stated that he struck Miss Cooper
because she did detail work with photography and struck Miss
Small because she was a young person likely to be sympathetic to
Belnavis. The motion for mistrial was denied. Trial proceeded,
and on October 4, 1988, the jury returned a guilty verdict on all
counts of sale of cocaine.
A post-trial hearing was held on Belnavis' motion for a new
trial. Belnavis' motion was based upon the State's use of
peremptory challenges to exclude two black persons from the jury
panel. The district court denied Belnavis' motion and Belnavis
The sole issue on appeal is whether the State exhibited
purposeful racial discrimination in using peremptory challenges
to strike two black persons from the jury panel.
In Batson v. Kentucky, 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct.
1712 (1986), the United States Supreme Court found that the Equal
Protection Clause of the United States Constitution forbids
prosecutors from exercising peremptory challenges against
potential jurors solely on account of their race or on an
assumption that black jurors as a group will be unable to
impartially consider the State's case against a black defendant.
476 U.S. at 89.
In order to question the State's use of peremptory challenges,
a defendant must make a prima facie showing of purposeful
discrimination in the State's selection of the jury. In Batson,
the court set forth requisite elements which a defendant must
show to establish purposeful discrimination:
"[T]he defendant first must show that he is a member
of a cognizable racial group [citation omitted], and
that the prosecutor has exercised peremptory
challenges to remove from the venire members of the
Second, the defendant is entitled to rely on the
fact, as to which there can be no dispute, that
peremptory challenges constitute a jury selection
practice that permits `those to discriminate who are
of a mind to discriminate.' [Citation omitted.]
Finally, the defendant must show that these facts and
any other relevant circumstances raise an inference
that the prosecutor used that practice to exclude the
veniremen from the petit jury on account of their
race. This combination of factors in the empaneling
of the petit jury, as in the selection of the venire,
raises the necessary inference of purposeful
discrimination." 476 U.S. at 96.
Once the defendant makes a prima facie showing of purposeful
discrimination, the burden shifts to the State to come forward
with a neutral explanation for challenging black jurors. The
prosecutor's explanation, however, need not rise to the level of
justifying an exercise of a challenge for cause. 476 U.S. at 97.
On the other hand,
"the prosecutor may not rebut the defendant's prima
facie case of discrimination by stating merely that
he challenged jurors of the defendant's race on the
assumption or his intuitive judgment that they
would be partial to the defendant because of their
shared race. [Citations omitted.] . . . Nor may the
prosecutor rebut the defendant's case merely by
denying that the had a discriminatory motive or
`affirm[ing] [his] good faith in making individual
selections.'" 476 U.S. at 97-98.
This rule, as stated in Batson, was adopted in toto by the
Kansas Supreme Court in State v. Hood, 242 Kan. 115
, 744 P.2d 816
In the present case, Donovan Belnavis is a 22-year-old black
male of Jamaican descent. The original venire panel consisted of
thirty-three people. The record shows that four of the first
twenty-four people on the venire list were also black. Each party
exercised six peremptory challenges as provided by statute.
K.S.A. 22-3412(c). The prosecution used its two final peremptory
challenges to exclude two black females from the jury panel.
Belnavis' attorney also used a peremptory challenge to exclude a
black male from the panel for the reason that he knew one of the
State's witnesses. From the next three names on the venire list,
each party exercised one peremptory ...