Appeal from Sedgwick District Court; KAREN LANGSTON, judge.
1. When a defendant objects to the State's use of its peremptory strikes to eliminate African-American venirepersons, a court conducts a three-step analysis as outlined in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69,
The opinion of the court was delivered by: Green, J.
Affirmed in part, reversed in part, and remanded with directions.
Before BUSER, P.J., GREEN and MARQUARDT, JJ.
Jeremy Davis appeals his jury trial conviction for aggravated robbery in violation of K.S.A. 21-3427. First, Davis argues that the trial court erred in overruling his objection under Batson v. Kentucky, 476 U.S. 79, 90 L.Ed. 2d 69, 106 S.Ct. 1712 (1986), to the State's use of peremptory challenges to strike the only two African-American members of the jury panel. Because the trial court never conducted a full analysis under step three of Batson and thus never reached the ultimate determination of whether Davis had shown purposeful discrimination by the State, we reverse on this issue and remand the case to the trial court for a proper Batson hearing. In the event the trial court determines that the reason given for striking either of the two minority jurors was pretextual, the trial court shall grant Davis a new trial. Also, Davis argues that the trial court erred in authorizing prosecution as an adult. Nevertheless, substantial evidence exists in the record to support the trial court's decision to authorize prosecution of Davis as an adult. Therefore, Davis' argument fails. Accordingly, we affirm in part, reverse in part, and remand for a proper Batson hearing.
Davis' conviction in this case stems from a robbery that occurred at a CB Express Store in Wichita in November 2003. During the robbery, a male wearing pantyhose over his head held a knife to the throat of Carl Blackmon, a clerk at the CB Express Store, and demanded money. Before the person could take any money, however, he bumped his head and stumbled out of the store. Although the male did not take any money, he took beer and cigarettes from the store. Blackmon called 911.
As Officer Brian Hightower was responding to the 911 call, he saw a car speeding away from the shopping center where the CB Express Store was located. Hightower followed the car. The car eventually stopped in the driveway of a residence, and a male got out of the front seat of the car and ran into the house. Hightower ran after the male and encountered Davis' mom at the front door. Initially, Davis' mom said that she had not seen anyone run into her house. Nevertheless, Davis' mom eventually told Hightower that Davis ran into the house. Officers later found Davis in his boxer shorts crouching behind a shed. Officers recovered cartons of cigarettes and a case of beer from the car. In addition, a knife was found on top of the dashboard on the front passenger's side of the car. Davis was 17 years old at the time.
Davis was charged with aggravated robbery in violation of K.S.A. 21-3427. The State moved for authorization to prosecute Davis as an adult. At the conclusion of an evidentiary hearing held on the State's motion, the trial court authorized the prosecution of Davis as an adult. The trial court later issued a journal entry setting forth in detail its findings for its decision to prosecute Davis as an adult.
Davis' case proceeded to a jury trial. After voir dire proceedings, Davis objected under Batson, to the State's use of its peremptory challenges to eliminate the two African-Americans from the 28-member jury panel. Nevertheless, the trial court found that the State's reasons for eliminating the two African-American panel members were race neutral and overruled Davis' objection.
At trial, Davis testified that he and Blackmon had staged the robbery. According to Davis, he and Blackmon agreed that Davis would come into the store with a knife and grab cigarettes and beer. Davis' defense was that there had been no taking by threat of bodily harm, a necessary element of aggravated robbery. Nevertheless, the jury convicted Davis of aggravated robbery. The trial court imposed a downward dispositional departure sentence and placed Davis on probation for 36 months, with an underlying prison term of 55 months.
First, Davis argues that the trial court erred in overruling his objection under Batson to the State's use of peremptory challenges to strike the only two African-American members of the jury panel.
Our Supreme Court in State v. Pham, 281 Kan. 1227, Syl. ¶ 3, 136 P.3d 919 (2006), set forth the three-step process under Batson for analyzing a defendant's argument that the State has used peremptory challenges to eliminate potential jurors on the basis of race:
"The Batson analysis involves a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. In this second step, the prosecutor is only required to put forth a facially valid reason for exercising a peremptory strike. Finally, the trial court must determine whether the defendant has carried his or her burden of proving purposeful discrimination."
Moreover, our Supreme Court in Pham set forth the standards applicable to each step of the process:
"The standard of review of the first step--the prima facie showing on the basis of race--is a question of legal sufficiency subject to plenary review. State v. Bolton, 274 Kan. 1, 9, 49 P.3d 468 (2002).
"Regarding the second step--the prosecutor's burden to show a race-neutral explanation for striking the jurors in question--it does not demand a prosecutor's explanation that is persuasive, or even plausible, but merely facially valid. See State v. Vargas, 260 Kan. 791, Syl. ¶ 3, 926 P.2d 223 (1996). Further, unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral. Accordingly, the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike. State v. Vargas, 260 Kan. 791, Syl. ¶ 3.
"Finally, the standard of review of the third step--the trial court's decision on the ultimate question of whether the defendant has carried the burden of proving purposeful discrimination--is greatly deferential because the determination is factual. State v. Walston, 256 Kan. 372, 379, 886 P.2d 349 (1994)." Pham, 281 Kan. at 1237.
After voir dire, defense counsel objected to the State's use of its peremptory challenges to eliminate prospective jurors V.S. and E.C., the only African-American members of the 28-member jury panel. In responding to defense counsel's objection, the prosecutor first asserted that Davis had to show that he was African-American, which was not clear in the case. Nevertheless, the trial court noted that the complaint and information listed Davis as an African-American male.
The prosecutor then set forth his reasons for eliminating the two African-American jury panel members. Concerning E.C., the prosecutor stated:
"Your Honor, I was prepared to keep [E.C.] up until [defense counsel] questioned him this morning and [E.C.]--and I don't recall the specific question asked by [defense counsel], but [E.C.] replied that--I think it was on the burden of proof. And he said certainly given the--what's at stake in this case.
"And I have talked to the jury about the fact that they shouldn't consider the penalty and that that doesn't help us determine whether or not he committed this crime; yet [E.C.] expressed a correlation between the burden of proof and what is at stake, which lead[s] me to believe that he does think about the penalty in terms of the burden of proof. And that's why I struck him."
During voir dire proceedings, defense counsel had questioned E.C. about whether he thought the State's burden of proof was unfair. He responded: "No, not for what's at stake here. Defense counsel questioned him further: "I believe you said not for what's at stake here?" He responded, "I mean, you know, a person's freedom."
The prosecutor set forth his reasons for eliminating V.S. as follows:
"[V.S.], Your Honor, struck me as someone who was overly intelligent, overly--his answers were, I thought, highly educated, he--I did not want someone who would overanalyze this case. And [V.S.], by his answers to me, struck me as someone who would in fact overanalyze the case and perhaps be a difficult witness--I mean, I'm sorry, a difficult juror on fine details and I did not want that."
After the prosecutor gave his reasons for eliminating the prospective jurors, the trial court asked defense counsel if she had any response. Before defense counsel could answer, however, the prosecutor stated, "Your Honor, I would object to [defense counsel] giving any response. The law says ...